R v Grey [2018] NZDC 9996 (18 May 2018)

Last Updated: 5 June 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT TAURANGA

CRI-2017-070-003483

[2018] NZDC 9996

THE QUEEN

v

MARCUS TE NGARE GREY

Hearing:	18 May 2018
Appearances:	O Salt and S Davison for the Crown W Nabney for the Defendant
Judgment:	18 May 2018

ORAL JUDGMENT OF JUDGE I D R CAMERON

[1] Marcus Grey has defended charges of threatening to do grievous bodily harm to a person and resisting police. The incident in question occurred [in September 2017]. [The complainant], a security officer contracted to the [City Council], was patrolling the [Council building deleted] during that afternoon. He received a complaint that a customer of the [Council-owned building] had observed the defendant asleep and snoring.

[2] [The complainant’s] evidence was that he went to where the defendant was, that he essentially was straddled over two chairs and in a lying position and was clearly asleep. His evidence was that he tapped him on the shoulder and awakened him and spoke to him about maintaining an upright position for fear that if he continued to lie down he could return to sleep. His evidence was that the defendant did not appreciate

R v MARCUS TE NGARE GREY [2018] NZDC 9996 [18 May 2018]

the intervention of [the complainant] and acted angrily, including throwing a book or books against the bookshelf, kicking the table and telling [the complainant] to “f-off”. The evidence was that the defendant then left the area where he had been located and was making his way out of the building, which involved him going down the stairs. It was common ground that [the complainant] followed the defendant as he made his way through the building with intention to exit and [the complainant’s] evidence is that he was threatened by the defendant before the defendant had exited the building. I will return to that alleged exchange shortly.

[3] Police were notified and arrested the defendant in an arcade a few blocks away from the [Council-owned building]. There was evidence from police of the defendant being non-compliant at the time of arrest and hence the charge of resisting police in the execution of their duty.

[4] The defendant elected not to give evidence in Court, but a video interview of him by police was played as part of the evidence in this case in which the defendant gave a detailed account of what he said had occurred. He denied reacting in the angry way which [the complainant] described. His evidence was that he did not appreciate being followed so closely by the security officer as he made his way through the building with a view to leaving and that he made that fact known to the security officer and that he did not threaten the security guard in the way alleged. As to his subsequent arrest by police his position is that he received mixed messages from the various police who attended that particular incident and did not resist them in any way.

[5] Accordingly, there are two markedly different accounts of what was said between the defendant and the security officer, [the complainant], at the relevant time. [The complainant’s] evidence was that prior to exiting the building and after he followed the defendant downstairs he heard the defendant say words to the effect “I will get a gun and f-ing kill you.” Even though the defendant was facing away from him at the time he was closely behind the defendant and could clearly hear that being said. [The complainant’s] evidence was that he then asked the defendant whether that was a serious threat and at that point the defendant turned around and said the words “it's not a threat, it's a promise.” [The complainant] evidence was that that was said in a matter of fact way and while the defendant was staring directly into the eyes of

[the complainant]. [The complainant’s] evidence was to the effect that it was said in a serious way as though he meant it and that it was taken in a serious way by [the complainant] who felt threatened by it.

[6] The defendant’s version of that exchange differs. In his interview he told police that while proceeding down the stairs he said to [the complainant] words to the effect “why are you following me?” [The complainant] then responded along the lines of an answer “because you might wreck the place” or words to that effect. That prompted the defendant to say to him “it's not like I gone home grabbed a gun and shot you.” That is, the defendant’s position that there was no threat made or intended to be made.

[7] The two different versions are so far apart that it cannot be a case of [the complainant] mishearing what the defendant said. In other words, it is clear that either [the complainant] or the defendant are simply not telling the truth about the real exchange. I make the following observations:

• (a) That the defendant in his video interview stated that he did refer to a gun and to shooting the security officer, although of course he maintained it was couched in the hypothetical and is an action that he had not carried out.
  
• (b) That the defendant on his own evidence, as given in the DVD interview, clearly resented the intrusion of the security officer and in particular being followed as he went down the stairs to exit the building.
  
• (c) That [the complainant’s] account of the actions of the defendant when awakened and told to sit up and not lie down were that the defendant became angry and acted in the way I have already described, including abuse to the security officer in terms of being told to “f-off” and there was evidence that the defendant was swearing as he made his way out of the building. [The complainant’s] evidence was very clear about this and the defendant’s anger, as described by [the complainant], is also

consistent with how police found him when they went to arrest him. He was described by the police as being in an angry state at that time.

(d) The fact that the defendant in effect in his video interview admitted that he referred to a gun and to shooting is consistent with [the complainant’s] evidence that he did indeed refer to a gun and to shooting but in a different way from that described by the defendant.

[8] In terms of the background to the exchange between [the complainant] and the defendant I find that the defendant was already in a state of anger and had been swearing at the security officer and did not appreciate at all being followed out of the building. I find that the threat [the complainant] said the defendant made is consistent with the defendant’s abusive behaviour which immediately preceded the exchange of words as described by [the complainant]. [The complainant’s] evidence was that he clearly heard what the defendant said, responded to it asking whether it was a serious threat and was then told very directly that it was not a threat but a promise. His evidence was that those statements were made in anything but a light-hearted way.

[9] [The complainant’s] account is much more convincing than the defendant’s contention that he gave a reasoned response to the security officer in the form of a hypothetical statement as I have already described. The fact of the matter is that this defendant was clearly abusive leading up to that exchange and [the complainant’s] evidence of what then occurred is consistent with escalating abuse emanating from the defendant.

[10] Mr Nabney points to the different versions of what [the complainant] said was told to him by the defendant. His evidence in Court was quite clear that the defendant told him “I will get a gun and f-ing kill you.” It transpired that what [the complainant] told police in a police statement on the day of the incident was that the defendant had said to him “I am going to get a gun and shoot you.” Mr Nabney emphasised the difference between those two statements, but I do not consider that difference to be major. Both refer to a gun and a threat to shoot the security officer. Both carry the same essential meaning, so I consider that discrepancy, as identified, does not undermine the credibility of [the complainant’s] evidence.

[11] I do not accept the defendant’s evidence for the reasons I have given. I put it to one side. Looking at the prosecution case I accept [the complainant’s] version of events and that the threat was seriously made and intended to be so.

[12] I consider the prosecution has established beyond reasonable doubt that the defendant threatened to inflict grievous bodily harm on [the complainant] in that he used language that both meant and was intended by him to mean that he intended to cause serious bodily harm to him.

[13] I am also satisfied that the prosecution has established beyond reasonable doubt that the defendant intended [the complainant] to take the threat seriously as a threat that might be carried out.

[14] Accordingly, that charge is proved.

[15] As to the resisting charge I am not satisfied on the particular facts of this case that the defendant’s actions as described by police in holding his arms to his side at the time of handcuffing and not putting them behind his back amounted to resisting police. I dismiss that charge.

I D R Cameron District Court Judge