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High Court of New Zealand Decisions |
Last Updated: 2 October 2018
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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
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CRI-2017-463-000056
[2018] NZHC 2129 |
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IN THE MATTER OF
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an appeal against conviction and sentence
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BETWEEN
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DONALD JAMES GORRIE
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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13 August 2018
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Counsel:
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R W Maze for the Appellant
R W Jenson for the Respondent
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Judgment:
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17 August 2018
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JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 17 August 2018 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Counsel: R W Maze, Christchurch
Solicitors: Pollett Legal (Office of the Crown Solicitor), Tauranga
GORRIE v POLICE [2018] NZHC 2129 [17 August 2018]
[1] Mr Gorrie was convicted of assaulting a child following a judge-alone trial in the Whakatane District Court.1 He was sentenced to a fine of $500 and costs of $130. Mr Gorrie appeals against conviction and sentence.
The offending
[2] The offending arose out of events at the Edgecumbe Mall on 18 January 2017. Mr Gorrie owns a local supermarket at the mall. The complainant, a 10-year-old boy, was near the entrance to Mr Gorrie’s shop, up a narrow alleyway which leads from College Street into the mall and into the supermarket.
[3] It appears there is some history between Mr Gorrie and the complainant. The complainant had been banned from entering Mr Gorrie’s shop in the weeks before the incident.
[4] It was not in dispute at trial that there had been an interaction between Mr Gorrie and the complainant that constituted an assault. However, there was a dispute about the finer details about what had occurred. In essence, the Judge found that the assault involved Mr Gorrie grabbing the complainant by the hoodie whilst on his bike, the complainant coming off his bike, and Mr Gorrie continuing to hold the complainant when he stood up, only releasing him when his brother intervened.
The Judge’s decision
[5] The issue at trial was whether Mr Gorrie was acting in defence of another under s 48 of the Crimes Act 1961.
[6] The Judge heard evidence from the complainant, two civilian witnesses, and the officer in charge. Mr Gorrie also elected to give evidence in his own defence. The evidence of one of the civilian witnesses was put to one side due to inconsistencies between what she had told police she had seen on the day and what she said in Court. The evidence of the complainant and the other eyewitness was accepted by the Judge, who made findings of fact as follows:
1 Pursuant to s 194(a) of the Crimes Act 1961.
[9] On that issue and before turning to self-defence I accept the evidence of the complainant, [complainant’s name], and the witness Donaldson as to what happened. I conclude beyond reasonable doubt that it was the hoodie that was grabbed and that even after the bike was stopped Mr Gorrie kept hold of the boy by his clothing. He did go to the ground, either by falling off his bike or being pushed off his bike but whatever the position there Mr Gorrie kept hold of him and continued to hold him after he stood up and only let go when there was pleading by a brother.
[7] The Judge then turned to the question of defence of another and said:
[11] Self-defence needs to be considered in three particular stages. Firstly, was Mr Gorrie acting in self-defence? If he was what then was the situation that he saw it to be and then looking through his eyes I must make an objective assessment as to whether his actions were reasonable. If he was acting in self- defence and if in the circumstances as he saw them to be he acted reasonably then the assault is justified and he would be not guilty.
[12] The first question is, was Mr Gorrie acting in self-defence? I do not accept that he was under any circumstances acting in self-defence in the sense that s 48 contemplates that is the defence of another. There were no people in the alleyway and although there might have been a potential for people to come round the corner Mr Gorrie’s purpose for chasing the complainant was not in any way in my view to do with self-defence. It was because he did not want the complainant boy to be there, he had had trouble with him in the past, he had trespassed him and Mr Gorrie was angry and wanting to chase him away and if he could catch him to teach him a lesson. Self-defence is not available on that narrative.
[8] On that basis, the Judge did not consider it necessary to go on and consider the second and third stages of the self-defence test, but made the following observations:
[13] I do not then need to consider the second and third stages, that being what Mr Gorrie saw the situation as he saw it to be or whether his actions were reasonable. What happened here, Mr Gorrie, was that you saw a young boy who had given you trouble in the past. You were no doubt frustrated by him. You assumed some policeman role within the mall and you made it clear that you had trespassed him and others in the past and you may see yourself as a custodian but what you did was out of anger. Chase a young boy on his bike, grab him and through your actions he ended up on the ground. He may have been screaming and angry but he says that is because you grabbed him and I accept that. You acted out of your own interests and I do not accept for a second that you had the interest of anyone else in mind. It might be difficult being a shopkeeper in a small town with kids on bikes making nuisances of themselves but you do not have the authority to assault.
[9] A conviction was entered accordingly, and Mr Gorrie was fined $500 and ordered to pay costs of $130.
Approach on appeal
[10] Section 229 of the Criminal Procedure Act 2011 provides a right of appeal against conviction. An appeal court must allow the appeal if satisfied that, in the case of a judge-alone trial, the judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or a miscarriage of justice has occurred for any reason.2
[11] A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trial that created a real risk that the outcome was affected or resulted in an unfair trial or a trial that was a nullity.3 A “real risk” will have arisen if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong.4
[12] The predominant approach to an appeal based on a trial Judge’s finding is to treat those findings as equivalent to a jury verdict.5 Accordingly, on this approach, the appeal court is performing a review function and is not substituting its own view of the evidence.6 Such an approach requires deference to be paid to the Judge’s factual findings given that the trial Judge heard and saw the witnesses give evidence.
[13] Mr Gorrie also appeals against sentence. He says the Judge should have considered whether a discharge without conviction under ss 106 and 107 of the Sentencing Act 2002 should have been granted. That aspect of the appeal is also an appeal against conviction.7
[14] To the extent that Mr Gorrie seeks a conviction and discharge or sentence to come up if called upon, then the appeal is against sentence. Section 250(2) of the Criminal Procedure Act provides that the court must allow an appeal if satisfied that:
2 Criminal Procedure Act 2011, s 232(2).
3 Criminal Procedure Act 2011, s 232(4).
4 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
5 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].
6 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87; Owen v R [2007] NZSC 102, [2008] 2 NZLR
37 at [13].
(b) a different sentence should be imposed.
[15] In any other case, the court must dismiss the appeal.8 An appeal court will not intervene unless there is a material error, and if so, the court will then go on to form its own view of an appropriate sentence.9
Conviction appeal: grounds of appeal
[16] In his written submissions, Mr Maze submitted that the trial Judge erred in analysing the defence of another by departing from the preferred order of questions set out by the Court of Appeal in R v Li.10 He submitted that this led the Judge into error in that Mr Gorrie’s perception of the events, particularly of the risks posed by the complainant, was not properly considered. Accordingly, Mr Maze submitted that there were no findings of fact on the critical issues, and the charge should have been dismissed.
[17] However, in oral submissions, Mr Maze submitted that in fact when the Judge’s factual findings are considered in context, it appears that the Judge accepted Mr Gorrie’s evidence of what had occurred but did not consider that this was capable of constituting defence of another as contemplated by s 48 of the Crimes Act.
[18] Alternatively, if the Judge’s findings were to be construed as a rejection of Mr Gorrie’s evidence, then Mr Maze submitted that there was a breach of s 92 of the Evidence Act 2006. That is because the police prosecutor did not put to Mr Gorrie in cross-examination that he was lying about acting to protect others. In light of that breach, Mr Maze submitted that the Judge was bound to accept Mr Gorrie’s evidence as both honest and reliable.
8 Criminal Procedure Act 2011, s 250(3).
10 R v Li CA140/00, 28 June 2000 at [22].
[19] I have addressed each of these grounds of appeal by considering the following questions:
(a) Did the Judge err in applying the test for defence of another?
(b) Did the Judge reject Mr Gorrie’s evidence of his subjective belief?
(c) If so, was there a breach of s 92 of the Evidence Act?
(d) If not, did the Judge err in determining that Mr Gorrie was not acting in defence of another?
Did the Judge err in applying the test for defence of another?
[20] Section 48 of the Crimes Act provides:
48 Self-defence and defence of another
Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
[21] In R v Li, the Court of Appeal set out the preferred approach to the assessment of self-defence as follows:11
[22] Although, looking at the entirety of what was said, we are not persuaded that the jury would have been misled by what the Judge told them, we consider that the format he adopted is one which should not be followed. The preferable approach, and the one upon which trial Judges usually proceed, is that taken by Tipping J in Shortland v Police (High Court Invercargill AP74/95, 23 April 1996) (see Adams CA48.07). In summary, on this approach the jury is asked to consider first what the accused believed the circumstances to be, from his or her point of view. The second question is whether, bearing in mind that belief of the accused about what was happening, he or she was acting in self-defence (again considered from his or her point of view). The last question is whether, given that belief, the force used in self-defence was actually reasonable.
[22] The difficulties in departing from this formulation were articulated by Tipping J in Shortland v Police,12 cited by the Court of Appeal in R v Li. The problem
11 R v Li CA140/00, 28 June 2000.
12 Shortland v Police HC Invercargill AP74/95, 23 April 1996 at 2–3.
with reversing the sequence is that it can give rise to a suggestion that the questions of self-defence and reasonable force are to be viewed against the circumstances considered objectively, rather than subjectively as required.
[23] However, in R v Lindroos, the Court of Appeal observed that there is no compulsion in a trial Judge directing on self-defence as in Li. The Li formulation is merely for guidance, and is preferable rather than compulsory.13 In Lindroos, the District Court Judge had directed the jury in the same sequence applied by the trial Judge in the present case. The Court of Appeal confirmed that whatever the formulation used, the fundamental necessity was to draw the jury’s attention to the need to assess both the self-defence limb and the reasonable force limb of s 48 in light of the circumstances as the defendant perceived them to be.14 Although those observations were made in the context of a jury trial, they apply equally to a judge- alone trial.
[24] It is clear that the Judge did not follow the three-step process as set out in Li. Instead, he approached the inquiry by first asking whether the defendant was acting in self-defence. Having concluded that he was not acting in self-defence, he then went on to say that he did not need to consider the second and third stages of the inquiry.15
[25] However, although this approach departed from the preferred sequence of events, it is far from clear that it led the Judge into error, let alone an error which has created a real risk of a miscarriage of justice. On Mr Gorrie’s case, the Judge’s reasons can either be interpreted as a rejection of Mr Gorrie’s evidence regarding his subjective view of the circumstances, or an acceptance of that evidence with a finding that Mr Gorrie was not acting in defence of another. Either way, the conclusions reached by the Judge involved an assessment of the circumstances as Mr Gorrie perceived them to be. Accordingly, the crux of the appeal does not turn on an alleged failure to consider Mr Gorrie’s subjective belief, but the approach that the Judge took to Mr Gorrie’s evidence in that regard. That approach is considered next.
13 R v Lindroos CA463/05, 2 August 2006 at [24].
14 At [25].
15 Police v Gorrie [2018] NZDC 4160 at [13] (quoted above at [8]).
Did the Judge reject Mr Gorrie’s evidence of his subjective belief?
[26] Mr Gorrie’s evidence at trial was that he acted to protect people who may have been coming around the corner into the alleyway from being hit by the complainant on his bike. Mr Maze submits that, when read in context, the Judge accepted that evidence but determined that it was not capable of constituting defence of another under s 48 of the Crimes Act.
[27] I accept that the factual findings at [9] of the judgment reflect Mr Gorrie’s evidence at trial regarding the nature of the assault. In particular, the Judge appears to have afforded the benefit of the doubt to Mr Gorrie as to whether the assault involved pulling the complainant off his bike (as Ms Donaldson alleged), or whether the complainant had fallen off (as Mr Gorrie seemed to suggest).
[28] But I do not consider that the Judge accepted Mr Gorrie’s explanation that he was acting to protect others. Rather, the Judge found that Mr Gorrie was angry with the complainant, wanted to teach him a lesson, and was acting in his own interests rather than the interests of others. That is made plain at [12]–[13] of the judgment, reproduced here for ease of reference:
[12] The first question is, was Mr Gorrie acting in self-defence? I do not accept that he was under any circumstances acting in self-defence in the sense that s 48 contemplates that is the defence of another. There were no people in the alleyway and although there might have been a potential for people to come round the corner Mr Gorrie’s purpose for chasing the complainant was not in any way in my view to do with self-defence. It was because he did not want the complainant boy to be there, he had had trouble with him in the past, he had trespassed him and Mr Gorrie was angry and wanting to chase him away and if he could catch him to teach him a lesson. Self-defence is not available on that narrative.
[13] I do not then need to consider the second and third stages, that being what Mr Gorrie saw the situation as he saw it to be or whether his actions were reasonable. What happened here, Mr Gorrie, was that you saw a young boy who had given you trouble in the past. You were no doubt frustrated by him. You assumed some policeman role within the mall and you made it clear that you had trespassed him and others in the past and you may see yourself as a custodian but what you did was out of anger. Chase a young boy on his bike, grab him and through your actions he ended up on the ground. He may have been screaming and angry but he says that is because you grabbed him and I accept that. You acted out of your own interests and I do not accept for a second that you had the interest of anyone else in mind. It might be difficult being a shopkeeper in a small town with kids on bikes making nuisances of themselves but you do not have the authority to assault.
[29] The Judge was entitled to form that view on the evidence called at trial. In particular, the evidence of Ms Donaldson, an eyewitness to the assault, provided a foundation upon which Mr Gorrie’s narrative could be rejected. Her account of what happened was as follows:
As I just hit the alleyway a man came rushing past me yelling at some kids that were at the end of the alleyway. So that’s two children at the end of the alleyway. He was yelling, “You’re trespassed you’re not meant to be here.” One of the boys hopped on a bike, um, that’s when the man started to run and caught up to the boy on the bike and grabbed him by the scruff of the neck. He’s kept yelling, “You’re trespassed you’re not mean to be here.” I proceeded to walk past and my car was parked at the first carpark there, so I was only probably two or three metres away from it. I wasn’t quite sure what to do. So I just stood at – by my car. Um, he continued to yell, “You’re trespassed you’re not mean to be here.” They just stood there. I looked away and then looked back and there was a big bang. And the man had pulled the boy off the bike. Um, the thud of him hitting the concrete and then the scream he let out when that happened, um, really concerned me. I heard someone say they’d called the police anyway. So I just, yeah, I didn’t know to intervene or not. I just got a little bit scared so I stayed by my car. Other boys started coming around and saying, “Please let him go.” The boy was still screaming by this point. Um, the boy had stood up and the man was still holding him. I didn’t see him let him go at all. Um, and then another boy came and said, “Can you please let go of my brother.” I then proceeded to the back of my car and, um, when I looked back the man had let the boy go and he biked off.
[30] Under cross-examination, Ms Donaldson maintained that Mr Gorrie had a hold of the complainant for quite some time, before she heard the thud of him coming off his bike. And she would not accept that he was released quite quickly after being stopped. Her firm evidence under cross-examination was:
Q. And then –
A. The bike hadn’t fallen over.
Q. – he was released?
A. No. No, so still holding him yelling that, ah, for a period of time. And then pulled him off the bike still holding him. And then he stood up, the boy stood up. Then the other boys came over. And then the brother came over. And then he released him.
[31] In summary, I consider the Judge rejected Mr Gorrie’s account of the purpose for which he assaulted the complainant. There was a clear evidential basis for him to do so. The next issue is whether there was a breach of s 92 of the Evidence Act,
meaning the Judge was not entitled to reject Mr Gorrie’s evidence of his purpose in assaulting the complainant. That issue is considered next.
Was there a breach of s 92 of the Evidence Act?
[32] Mr Maze submits that if the police prosecution case was that Mr Gorrie was lying then that needed to be put squarely to Mr Gorrie, and the failure to do so was a breach of s 92 of the Evidence Act. He submits that in those circumstances, the Judge was bound to accept the evidence of Mr Gorrie as honest and reliable, and he cites the Court of Appeal’s judgment in R v Dewar16 as well as Duffy J’s judgment in Samuel v Auckland City Council17 and R v Herlund18 in support of that submission.
[33] Section 92 of the Evidence Act provides:
92 Cross-examination duties
(1) In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.
(2) If a party fails to comply with this section, the Judge may—
(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or
(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or
(c) exclude the contradictory evidence; or
(d) make any other order that the Judge considers just.
[34] The authors of Cross on Evidence have described the purposes of the duty as follows:19
16 R v Dewar [2008] NZCA 344.
17 Samuel v Auckland City Council HC Auckland CRI-2010-404-469, 2 June 2011.
18 R v Herlund HC Auckland CRI-2006-004-21413, 28 May 2008.
The two purposes of the duty are to ensure fairness to the party and the witness whose evidence is contradicted; and to promote accurate fact-finding by ensuring the trier of fact has the benefit of the witness’s response. The duty is not intended to protect the interests of the party cross-examining the witness. The scope and extent of the duty in any particular case should be interpreted in the light of its purpose.
(footnotes omitted)
[35] The duty will be triggered where there is a significant matter raised in cross- examination that was both relevant and in issue and which contradicted the evidence of the witness, and in respect of which the witness could reasonably be expected to be in a position to give admissible evidence.20 The courts have recognised that the duty is not absolute, and there is flexibility in recognising when the duty is triggered and the extent to which cross-examination must take place. That flexibility extends to the appropriate remedies if there is a breach of the duty in any particular case.21
[36] As the Court of Appeal observed in R v Dewar, “context is all”.22 The s 92 duty need not be slavishly followed where the witness is perfectly well aware that his or her evidence is not accepted on a particular point.23 The Court’s further observations are apposite:
[49] Whatever rationale one accepts for the existence of the rule in Browne v Dunn [the duty to cross-examine], whether it be “fairness”, “accuracy-in- fact-finding”, or “acceptance” of the witness’s evidence by the other side, exception could not be taken to the conduct of the cross-examination in this case. The defence always knew precisely what the Crown was saying, there could have been no surprise, and the defence must have considered carefully what the response should be. It took the course we have described. The material evidence was before the jury for it to consider. There were no additional matters of context to be clarified, such as when and in what circumstances this thing happened, because the very nature of the defence was that it did not happen at all.
[37] I do not consider the failure to specifically put to Mr Gorrie the fact that he was lying constitutes a breach of the s 92 duty in this case. The significant matter in issue concerned the purpose for which Mr Gorrie accosted the complainant, and his
22 R v Dewar [2008] NZCA 344 at [46].
23 At [44].
justification for doing so. Mr Gorrie must have been aware that this was the key issue in the case as there was no dispute that the interaction between him and the complainant had occurred.
[38] Further, although it would have been preferable for the police prosecutor to specifically put to Mr Gorrie that he was not acting with the purpose of protecting another, that was nevertheless apparent from the line taken in cross-examination. Mr Gorrie was questioned by the police prosecutor about whether he could have contacted local police who would have known of the complainant and gone and spoken to him about any complaints. He was then questioned about why he had moved from his check-out towards the door. There was the following exchange:
A. Yes.
Q. Why were you doing that?
A. Because I saw these two kids on pushbikes.
A. To tell them that they weren’t allowed on pushbikes in the mall.
A. Yes.
Q. Yes?
A. Well I was within –
Q. You were close?
A. I s’pose a metre or thereabouts, maybe two metres maximum.
Q. If he hadn’t take off what would you have done?
A. I honestly don’t know, Sir, it’s just – I guess that’s just speculation. It’s, um I probably would’ve told him to get off his bike and might’ve even told him that I was gonna call the police.
Q. Right, but he rode away?
A. He rode away.
Q. And you ran after him?
Q. And you ran after him?
A. I chased after him yes.
[39] Later in the cross-examination, it was put to Mr Gorrie that he worked in a mall and had had problems with a group of kids in the past. The cross-examination then continued as follows:
Q. So there’s a boy that you know?
A. Mhm.
Q. [Complainant’s name]?
A. Yes.
A. Yes.
Q. – that is running away from you?
A. Yes.
Q. What is your justification for holding onto him?
A. Well it was to – I was going to tell him that he shouldn’t be doing that and that I would call the police on him. But as I say because of the screaming I – I did not expect the screaming to continue. And when it did, well I let him go but, um –
Q. What is your justification for holding him, onto him, as you did?
A. Well to advise him that he could not do that and that there was a danger to other people with him riding his bike through there and especially at the speed he had been.
A. Oh, as a concerned member of the public if there’s a danger –
THE COURT:
Q. You don’t have any powers of arrest or detention, do you?
A. No.
Q. I am telling you, you don’t.
A. No. But that’s pretty well-known.
CROSS-EXAMINATION CONTINUES: SERGEANT DODDS
Q. But yet you held onto him?
A. For a very short period of time, yes.
Q. I put it to you that is neither proportionate or reasonable.
THE COURT ADDRESSES SERGEANT DODDS – JUDICIAL DECISION
THE COURT:
A. Well as I explained to the sergeant that it was because there was a danger to people and I was going to advise him and tell him I’d call the police.
[40] Considered in the context of all of the evidence at trial, and the central issue in dispute, I consider this line of questioning meets the purposes of fairness and accurate fact-finding underpinning s 92. It was not necessary to put to Mr Gorrie that he was lying about why he assaulted the complainant. There was no breach of the duty in s 92.
[41] However, even if I am wrong about that, I do not consider any such breach would have compelled the Judge to accept the evidence of Mr Gorrie as honest and reasonable. The judgments of Samuel v Auckland City Council and R v Herlund do not assist. In Samuel, Duffy J found that the failure to put to Mr Samuel that he had fabricated evidence by falsely claiming that a pay and display ticket was his, when it actually belonged to someone else, was a breach of natural justice.24 The Judge concluded that the failure to put this matter squarely meant that the District Court Judge could not conclude that there was no reasonable possibility that the parking officer who had issued the infringement notice was mistaken, and accordingly the Judge could not have been sure that the prosecution had proved that Mr Samuel had committed the parking infringement at issue in that case.25 The appeal was allowed.
24 Samuel v Auckland City Council HC Auckland CRI-2010-404-469, 2 June 2011 at [16].
25 At [20].
[42] At issue in Herlund was the evidence given by a constable regarding an omission to record certain details about a defendant justifying a vehicle search.26 Duffy J noted that there was a line of cross-examination that suggested the constable, having already experienced one arrest failing through his omission to follow correct procedure, was seeking to avoid that outcome in this case through his evidence. However, because the constable was not directly challenged on his honesty, Duffy J was unable to treat the constable as a dishonest witness,27 though she did express reservations about his reliability.28
[43] Both these cases are distinguishable from the present case. In this case, I am satisfied that there was sufficient evidence before the Judge from which to infer that Mr Gorrie’s purpose in assaulting the complainant had nothing to do with defence of another. The evidence of the complainant and Ms Donaldson, which was accepted by the Judge, was inconsistent with acts taken to defend others. Mr Gorrie’s own evidence about initially entering the alleyway to tell the children they were not allowed on pushbikes in the mall, and his admission that he was not aware of any others in the alleyway at the time and was only focused on the kids, adds to that evidential foundation. There was ample evidence from which the Judge could conclude that Mr Gorrie was not acting in defence of another in this case.
[44] In summary, I am not persuaded that there was a breach of the s 92 duty in this case. But even if there was, such a breach did not mean that the Judge was compelled to accept Mr Gorrie’s evidence regarding purpose uncritically. There was a sufficient evidential foundation from which the Judge could conclude that Mr Gorrie was not acting in defence of another. Accordingly, there has been no error in the Judge’s assessment of the evidence, and certainly no error which gives rise to a miscarriage of justice.
26 R v Herlund HC Auckland CRI-2006-004-21413, 28 May 2008.
27 At [20].
28 At [21]–[22].
If the Judge accepted Mr Gorrie’s evidence, did he err in concluding that Mr Gorrie was not acting in defence of another?
[45] My finding that the Judge rejected Mr Gorrie’s evidence, and did not err in doing so, is sufficient to dispose of the appeal against conviction. However, for completeness I address the alternative interpretation of the Judge’s reasons put forward by Mr Maze, albeit in relatively brief terms.
[46] Mr Maze submits that if the Judge in fact accepted Mr Gorrie’s evidence that he was acting to defend other people, then the Judge must have decided that such a narrative did not fall within the defence of another as contemplated by s 48.
[47] Counsel could not refer me to any decisions where the scope of the section in relation to defence of another has been considered. I could not find any either. The starting point is the section itself. Section 48 refers to defence of another. Accordingly, the defence cannot be advanced unless there is “another” who is being defended. The section does not require the other person to be physically present, and nor does it require an imminent threat to be made to another in order to be engaged.29
[48] However, as a matter of statutory interpretation, I do not consider the underlying purpose of s 48 is to authorise vigilante action taken to protect members of the public generally. But there may be instances where steps to protect members of the public from harm may fall within the purview of s 48. Whether such action falls inside or outside the section is a question of fact to be determined on a case-by-case basis.
[49] The reasonableness of the force used will also determine whether the s 48 defence is available. The assessment of reasonableness will depend on factors particular to a case, such as the nature and imminence of the risk posed to others, and the force used relative to that risk.
29 It is observed in AP Simester and WJ Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, 2012) at [15.1.4(6)] that “[i]mminence is not a distinct formal requirement but rather an ingredient in the melting pot of reasonableness”.
[50] Even if the Judge accepted Mr Gorrie’s evidence that he was acting to defend others, I do not consider the force used was reasonable in the circumstances. Mr Gorrie continued to hold the complainant even after the bike was stopped, when he went to ground and even when he stood up again. That force went beyond what was reasonable in the circumstances to prevent the complainant from posing any risk to others. And, as the police prosecutor touched upon in cross-examination, Mr Gorrie’s actions in chasing after the complainant added to the risk posed by the complainant, and in fact created an additional risk that those coming into the alleyway may have been missed by the bike but bowled over by Mr Gorrie.
[51] Accordingly, even if the Judge accepted Mr Gorrie’s evidence that he was acting in defence of another, the s 48 defence did not provide justification for the assault because the force used was not reasonable.
[52] It follows that Mr Gorrie’s grounds of appeal against conviction are unsuccessful and the appeal against conviction is accordingly dismissed.
Appeal against sentence
[53] Mr Gorrie appeals against his sentence on the grounds that the Judge failed to comply with s 11 of the Sentencing Act. That section requires the court to consider, before entering a conviction and imposing a sentence, whether the offender would be more appropriately dealt with by:
(a) discharging the offender without conviction under s 106;
(b) convicting and discharging the offender under s 108; or
(c) convicting the offender and ordering the offender to come up for sentence if called upon.
[54] As the Court of Appeal confirmed in R v Hughes, s 11 places the onus on the Court to consider these alternatives whether or not an application for any of them has been made.30
[55] The Judge in this case simply proceeded to enter conviction and impose a fine without considering any of the options set out in s 11. I accept that this was not in accordance with s 11 and was therefore in error. In Leatinuu v Auckland Council, Courtney J found there had been a breach of s 11 and proceeded to consider whether to enter a discharge without conviction.31 Both parties to this case approached the sentence appeal on the basis that I would determine whether any of the s 11 options were appropriate, and that is the basis upon which I approach this appeal.
Should a discharge without conviction be granted?
[56] Mr Maze submits that this Court should grant Mr Gorrie a discharge without conviction on the grounds that the consequences of conviction are out of all proportion to the gravity of the offence.
[57] Sections 106 and 107 of the Sentencing Act govern the application for a discharge without conviction. In Z (CA447/12) v R, the Court of Appeal said that s 107 requires consideration of three factors:32
(a) the gravity of the offence;
(b) the direct and indirect consequences of a conviction; and
(c) whether those consequences are out of all proportion to the gravity of the offence.
[58] The gravity of the offence is reflected in the Judge’s findings at [9] of his judgment. If the Judge had found that Mr Gorrie had pulled the complainant off his bike as alleged by both the complainant and Ms Donaldson, then the assault would
30 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [47].
31 Leatinuu v Auckland Council [2013] NZHC 3489 at [16].
32 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
have been slightly more serious. But the Judge did not make a firm finding to that effect, and I respectfully defer to that judgment. Both parties consider that Mr Gorrie’s offending falls at the low end of the spectrum both generally and for offences of this nature. I agree. I assess the gravity of Mr Gorrie’s offending as low.
[59] In terms of consequences, Mr Gorrie has sworn an affidavit in support of the application which sets out the consequences he says he will suffer if a conviction is entered. The Crown does not oppose the admission of this affidavit, and I admit it accordingly. Mr Gorrie identifies two consequences of the conviction:
(a) First, the New Zealand Transport Agency (NZTA) has proposed declining Mr Gorrie’s application for a “P” (Passenger) endorsement to his driver’s licence on grounds that he is not a fit and proper person to hold such an endorsement.
(b) Second, Mr Gorrie may lose his licence to sell alcohol as a result of his conviction. This is because under s 105 of the Sale and Supply of Alcohol Act 2012 the suitability of the applicant to hold such a licence is a relevant factor.
[60] In addition, Mr Maze submits that the stain of a conviction on Mr Gorrie’s otherwise unblemished record is a consequence which is also out of all proportion to the gravity of the offence.
[61] Each of these consequences are dealt with in turn. The first is the loss of the passenger endorsement on Mr Gorrie’s licence. Mr Gorrie has held that endorsement for 41 years. He obtained it originally to allow him to work as a bus driver for the Wellington Paraplegic Association. Mr Maze informs me from the bar that, as a result of flooding in the region, the supermarket has been closed and is likely to remain closed for some time. The passenger endorsement on Mr Gorrie’s licence provides a fall back employment alternative for him should he need it. However, no mention of that was made in Mr Gorrie’s affidavit. In fact, Mr Gorrie stated in his affidavit that he does not currently need the endorsement for work.
[62] The NZTA has sent Mr Gorrie a notice of proposal to decline the application on the basis that he is not a “fit and proper person” due to the conviction. However, NZTA has subsequently decided to wait for the outcome of the appeal before making a final decision.
[63] The Notice of Proposal to Decline states that the NZTA is aware of the circumstances of the conviction which are outlined in a document attached to the schedule. I note that the circumstances as reflected in that document record that “Mr Gorrie pulled the victim off his bike which fell onto the ground”. Whilst that is consistent with what Ms Donaldson observed, the Judge’s findings of fact were more equivocal than that and there was no positive finding that Mr Gorrie did in fact pull the complainant off his bike. Mr Gorrie has the right to make submissions on the intended decline, and a right of appeal to the District Court should the application be finally declined.
[64] What is apparent from the NZTA notice is that the NZTA has considered the circumstances of the offending in reaching its decision on whether to decline renewal. The consequence does not just flow from the conviction itself, but also flows from the nature of the offending. The NZTA is in a position to assess whether Mr Gorrie is a “fit and proper person” and Mr Gorrie has an avenue of appeal to challenge that determination.
[65] In addition, there is no specific evidence of the hardship that Mr Gorrie will suffer as a result of losing his passenger endorsement. The submissions made by his counsel from the bar are at odds with Mr Gorrie’s own statements in his affidavit that he does not need the passenger endorsement for work. That affidavit was sworn at a time (31 July 2018) when the supermarket had presumably been closed for some time as a result of the floods.
[66] Overall, I am not persuaded that this is sufficient evidence that a conviction will lead to consequences in relation to the loss of a passenger endorsement that are out of all proportion to the gravity of the offence.
[67] The second alleged consequence concerns a suggestion that Mr Gorrie might not receive a renewal of his alcohol licence. But this claim is not substantiated by the evidence. Mr Gorrie has simply identified a risk by virtue of a provision in the enabling statute. Whether such a risk will eventuate is totally speculative. I am not satisfied that there is a real and appreciable possibility of such a consequence arising in this case, and accordingly, it cannot be considered to be out of all proportion to the gravity of the offence.
[68] As to the stain on Mr Gorrie’s reputation, I accept that this will be difficult for him to bear at his stage of life. But the stigma associated with having a conviction is a consequence that all those who are convicted must bear. It is not a consequence which is out of all proportion to the gravity of the offence in my view.
[69] Accordingly, I am not satisfied that the direct and indirect consequences which flow from conviction are consequences which are out of all proportion to the gravity of the offence. I do not consider there are grounds upon which to enter a discharge without conviction, and such an application should be dismissed.
Did the Judge err in imposing a fine?
[70] Mr Maze submits that a conviction and discharge, or a conviction with a sentence to come up if called upon, should be entered if the application for a discharge without conviction is declined.
[71] I do not consider the sentence imposed by the Judge to be manifestly excessive in the circumstances of this case. Such a sentence reflects the gravity of the offending (being at the lower end of the scale). It holds Mr Gorrie accountable for his actions in circumstances where he has not shown any remorse for what occurred, and has not taken any responsibility for his actions. Indeed, submissions made on behalf of Mr Gorrie (that he was provoked by the complainant, and that Mr Gorrie’s role at the mall included enforcing security) suggest that Mr Gorrie still maintains that he was justified in his actions. I consider his actions require denouncement, and the fine imposed by the Judge is the least restrictive sentence in all the circumstances.
[72] Accordingly, the appeal against sentence must be dismissed.
Result
[73] The appeal against conviction and sentence is dismissed.
Edwards J
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/2129.html