Gunn, 65, whose legal name is Elizabeth Jane Cooney, was convicted and discharged – meaning there was no punitive aspect other than the conviction itself – in November. Manukau District Court Judge Janey Forrest had found her guilty of the single common assault charge following a judge-alone trial in May, dismissing two other charges of wilful trespass and resisting arrest.
But in an eight-page decision released this afternoon, High Court at Auckland Justice Mary Peters determined that a miscarriage of justice had occurred and the District Court judge had erred.
By touching an airport security officer’s arm, the basis of the assault complaint, the interaction fell “within the ambit of what the law considers generally acceptable physical contact occurring in everyday life, and so was not an assault”, Justice Peters wrote.
Gunn was accused at trial of having illegally grabbed the security officer’s arm in February 2023 after she and a co-defendant with a professional-looking camera were told to leave the international arrivals area at the airport. They had been wanting to film the arrival of a family that had been kept in lockdown in Tokelau after refusing the Covid-19 vaccine, but the airport does not allow professional filming without a permit.
Gunn’s lawyer said there was no evidence before the court that it was for professional purposes.
Liz Gunn, whose legal name is Elizabeth Jane Cooney, arrives outside the High Court at Auckland ahead of a hearing to appeal her conviction for assault last week. Photo / Michael Craig
The security guard testified her arm was grabbed with enough force to cause a pain level of five out of 10, which she acknowledged was due in part to an old injury. Gunn vigorously denied the claim, with her lawyer describing it as a “light touch” to get the other woman’s attention when the airport employee turned to address someone else.
But Judge Forrest said Gunn was “rude, overbearing and offensive” in the interaction. While the arm grab was a low-level form of assault, it was not merely intended to get the airport worker’s attention, the District Court judge found. The judge also noted Gunn did not appear to show remorse.
“She has, in my view, displayed a remarkable lack of insight,” she said.
During a High Court hearing last week, defence lawyer Matthew Hague argued the District Court judge had misinterpreted the law in finding Gunn guilty – failing to properly consider his client’s state of mind when she touched the complainant.
Under the law, as little as a tap on the shoulder or the throwing of water on someone can be considered an assault, depending on the circumstances. But a judge must also take into consideration whether the person had an honest belief their actions would constitute assault in everyday life, he said. For instance, slapping a friend on the back at a loud party to get their attention wouldn’t equate to assault, the lawyer said.
Likewise, he said, neither would touching someone lightly to get their attention in a busy, loud airport terminal.
“There’s no dispute about the ... nature of the touch,” Hague said, describing it as light enough that it wouldn’t have hurt someone without a prior injury, which his client had no way of knowing about. “We see this type of interaction all the time in New Zealand society.”
Crown prosecutor Jacinda Bragg countered that Gunn was rightly convicted when considering the context of what was happening at the time. There was “a confrontation happening and the appellant has touched the victim’s arm in order to continue that confrontation”, she said, noting that the judge found Gunn’s action to be “hostile” and “not socially acceptable”.
Liz Gunn appears in the dock at Manukau District Court for sentencing in May 2024 after being found guilty of assaulting an Auckland Airport worker. Photo / George Block
The District Court judge had taken into account Gunn’s view at the time of the assault and found her explanation to be disingenuous, Bragg said.
But Justice Peters, after watching CCTV footage of the interaction multiple times over the past week while mulling her decision, sided with the defence.
“It is conceivable that what is considered acceptable might be negated by prevailing circumstances,” Justice Peters explained of her decision and that of the District Court judge before her. “Certainly, the judge did not accept that Ms Gunn could have believed C [the security officer] consented to what occurred. That was because, in the judge’s view, by then the discussion between Ms Gunn and C had become ‘confrontational and hostile (on the part of Ms Gunn)’, and that Ms Gunn had been ‘rude and inappropriate’ in asking C where she was from.
“However, having viewed/heard what occurred (several times) I do not share the judge’s view of the tenor of the discussion or of Ms Gunn’s manner. My assessment is that Ms Gunn was polite, albeit assertive and wishing to communicate her view to C.”
Even had she allowed the guilty finding to stand, Justice Peters said she would have ordered Gunn to receive the discharge without conviction that she sought – but was denied – at sentencing.
“What occurred between Ms Gunn and C was trivial,” she said.
“The court has often recognised that there will be occasions in which a defendant’s offending is so trifling that consequences such as those to which I have just referred are themselves out of all proportion to the gravity of the offending. This is such a case.”
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
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