Gorrie v Police [2019] NZCA 54 (14 March 2019)

Last Updated: 22 March 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA553/2018 [2019] NZCA 54

	BETWEEN	DONALD JAMES GORRIE Applicant
	AND	NEW ZEALAND POLICE Respondent

Court:	Clifford, Mallon and Wylie JJ
Counsel:	Applicant in person M L Wong for Respondent
Judgment: (On the papers)	14 March 2019 at 3 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

[1] Mr Gorrie was convicted on one charge of assaulting a child following a Judgealone trial before Judge Mabey QC in the District Court at Whakatane.^[1] He then appealed against both conviction and sentence. The appeal was dismissed by Edwards J.^[2]
[2] Mr Gorrie now seeks leave to further appeal both his conviction and sentence, pursuant to ss 237 and 253 of the Criminal Procedure Act 2011. The Crown opposes the grant of leave.

Background

[3] Mr Gorrie owns supermarket premises in Edgecumbe. On 18 January 2017, the complainant, a 10 year old boy, was near the entrance to Mr Gorrie’s supermarket. The complainant had previously been banned from entering Mr Gorrie’s supermarket.
[4] According to the complainant, when he saw Mr Gorrie he went to ride off on his bicycle because he knew he had been banned. Mr Gorrie followed him and grabbed him by a hood forming part of his jacket. He was pulled off his bicycle and thrown to the ground. Mr Gorrie then kneed him in the back, releasing him only when his brother arrived.
[5] Mr Gorrie’s version of events was rather less dramatic but there was no dispute that a physical altercation occurred and that that altercation constituted an assault.
[6] The issue at trial was whether Mr Gorrie acted in defence of another under s 48 of the Crimes Act 1961. Mr Gorrie gave evidence. He said that he assaulted the child to protect people who may have been coming around the corner into the alleyway from being hit by the complainant on his bicycle.
[7] In the District Court, Judge Mabey found that Mr Gorrie had not acted in defence of another. He accepted the evidence of the complainant and another eye witness. The Judge found that there were no other persons in the alleyway and he was satisfied beyond reasonable doubt that Mr Gorrie had not acted in defence of another when he assaulted the complainant. Rather, the Judge found that the Mr Gorrie was angry at the complainant, wanted to chase him away and, if he could catch him, teach him a lesson.^[3]
[8] Mr Gorrie’s appeal against conviction was advanced primarily on the ground that the trial Judge erred in the way in which he considered the issue of defence of another. It was argued that Judge Mabey erred in analysing the issue of defence of another and that he departed from the stepped approach discussed by this Court in R v Li.^[4] It was also argued that, when the Judge’s factual findings were considered in context, he must have accepted Mr Gorrie’s evidence about what occurred. Alternatively, it was argued that if the Judge had rejected Mr Gorrie’s evidence, the prosecutor had failed to put the prosecution case to Mr Gorrie as required by s 92 of the Evidence Act 2006. The sentence imposed was also challenged, and it was submitted that Mr Gorrie should have been discharged without conviction.
[9] Each of these grounds of appeal was rejected by Edwards J. She considered that Judge Mabey had rejected Mr Gorrie’s explanation for his actions.^[5] She accepted that the Judge had not followed the approach discussed in R v Li, but considered that this had not led the Judge into error.^[6] The Judge observed that even if Judge Mabey had accepted Mr Gorrie’s evidence, the force used was beyond what was reasonable to prevent the complainant posing a risk to others.^[7] Further, she considered that the prosecution case was clear from the cross-examination, and that when the cross-examination was considered in context, there was no breach of s 92.^[8] Edwards J was not persuaded that the consequences of the conviction would be out of all proportion to the gravity of the offending, and she dismissed both the appeal against conviction and against sentence.^[9]

Leave applications

[10] Section 237 of the Criminal Procedure Act 2011 provides as follows:

237 Right of appeal against determination of first appeal court

(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a) the appeal involves a matter of general or public importance; or

(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[11] Section 253 is in substantially similar terms.
[12] The threshold for leave is high. An appeal will not generally give rise to an issue of general or public importance unless it raises an issue of general principle or importance in the administration of the criminal law, that is of broad application beyond the circumstances of the particular case.^[10] Similarly, not every error will amount to a miscarriage of justice.^[11] This Court will be slow to grant leave where an applicant seeks to require the Court to reverse concurrent findings of fact made in the Courts below. This will particularly be so where the trial was before a Judge alone, and where the applicant has had the benefit of two judgments, each giving reasons for the factual findings made.

Analysis

[13] We do not consider that Mr Gorrie’s proposed appeal involves matters of general and public importance, or that a miscarriage of justice has occurred in this case.
[14] While Judge Mabey did not deal with the various elements of self defence using the stepped approach discussed in Li, that was because, on his factual findings, two of the three steps discussed in Li did not fall for consideration. Further, as Edwards J observed, the approach discussed in Li provides guidance only.^[12] While the approach there suggested is preferable, is not compulsory. This has previously been recognised by this Court,^[13] and the arguments raised by Mr Gorrie do not involve any matter of general or public importance going beyond the circumstances of this case.
[15] Other allegations made by Mr Gorrie in his submissions — for example that the police’s decision to lay the charge in the first place signifies a change in police procedure — have no evidential foundation.
[16] Nor are we satisfied that a miscarriage of justice may have occurred.
[17] The trial Judge rejected Mr Gorrie’s explanation for his actions. Edwards J took the view that Judge Mabey was entitled to form the view that he did on the evidence called at the trial.^[14] She also expressed the view, noted in [9] above, that the force used by Mr Gorrie was unreasonable even if the complainant did pose a risk to others. There are concurrent findings of fact by both Courts below. Any appeal against those findings would be unlikely to succeed.
[18] Mr Gorrie criticises counsel retained by him both at trial and for the appeal. There is no foundation for his criticisms. They are speculative and tendentious, and Mr Gorrie does not point to any specific or material error on the part of either counsel.
[19] Mr Gorrie also asserts that his rights under the New Zealand Bill of Rights Act 1990 (the Act) have been breached.

• (a) He suggests that he should have had the opportunity to instruct counsel to dissuade the police from filing the charge in the first place. There is nothing advanced to suggest that there was any error by the police in exercising the discretion to charge, let alone any breach of the Act. Indeed, both the District Court and High Court decisions illustrate that the prosecution was properly pursued.
• (b) Other assertions by Mr Gorrie including that the police investigation was delayed, and that the police were predisposed to view him unfavourably, similarly have no evidential foundation. As we understand it, the charge was filed within the statutory limitation period and a number of witnesses were called to give evidence at the trial. Again, there is nothing advanced to suggest any breach of the Act.

[20] As to sentence, the appropriate approach to an application under s 106 of the Sentencing Act 2002 is well settled by this Court.^[15] Mr Gorrie has belatedly asserted that there is a potential prejudice to him because he could lose his manager’s certificate under the Sale and Supply of Alcohol Act 2012. He says that he requires a manager’s certificate to sell alcohol at his supermarket. The limited evidential support for this submission has been filed very late (in reply submissions) and even now it is not in proper form. The relevant licensing authority is best placed to assess the circumstances of the conviction and determine for itself whether the manager’s certificate should be revoked. There is no obvious miscarriage of justice.
[21] Accordingly, leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Gorrie [2018] NZDC 4160.

^[2] Gorrie v Police [2018] NZHC 2129.

^[3] Police v Gorrie, above n 1, at [12].

^[4] R v Li CA140/00, 28 June 2000.

^[5] Gorrie v Police, above n 2, at [26]–[31].

^[6] At [24]–[25].

^[7] At [50].

^[8] At [32]–[44].

^[9] At [56]–[72].

^[10] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

^[11] McAllister v R, above n 10, at [38].

^[12] Gorrie v Police, above n 2, at [23].

^[13] R v Lindroos CA463/05, 2 August 2006 at [24].

^[14] At [29] and [31].

^[15] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620; and Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.