Steve Braunias congratulates the judiciary in admitting the law is an ass.
The law, in the weird matter of well-known conspiracy hobbyist Liz Gunn, has very rightly been found to be an ass. Finally, sensibly, after the nonsense of a week-long trial at the Manukau District Courtin May 2024, a cool head has prevailed, justice served, and Gunn set free at last.
God almighty, free at last, a Martin Luther King moment in the life of New Zealand’s strangest political martyr.
A brief recap of the facts which are entirely detrimental to the police, Crown Law, and a judge with a touchingly girlish first name. In 2023, Liz Gunn, then the political leader of lively rebel faction New Zealand Loyal, was arrested at Auckland International Airport. She had touched a security guard on the arm. Calamity! Two cops came down on her like a tonne of bricks, actually quite literally, forcing her to the floor and causing her enduring injury. It got worse. Gunn was charged with assault, trespass, and resisting arrest. The latter two charges were dismissed at trial but just when things seemed to be heading towards common sense, the assault charge was kept alive. It got worse. Judge Janey Forrest found Gunn guilty. “Shame!” howled Gunn’s supporters in the public gallery.
Gunn appealed the conviction. It was heard last week at the High Court. Reserving her decision, Justice Mary Peters said as she left the court: “This oughtn’t take very long.” She was as good as her word. She quashed the conviction in a ruling which the High Court released at 2.30pm on Thursday.
Liz Gunn, aka Elizabeth Jane Cooney, in the Manukau District Court for sentencing after being found guilty of assaulting an Auckland Airport worker in May 2024. Photo / George Block
I attended the trial, the sentencing, the appeal. It was a nadir for law and order in New Zealand. They went about it with a great stubborn silliness at best and a vindictive desire for politically motivated punishment at worst. Film of the airport incident was played at the trial. I watched it many times and never once viewed the heavy-handed actions of the police with anything less than contempt. As for the guard, when asked on a scale of 1-10 how she would rate the painfulness of Gunn’s brief, fleeting touch on her arm, she answered, with a straight face, as deadpan as any comic genius: “Five.”
Well, no one expects much from airport cops and guards. Plus they were acting in the heat of the moment. Not so Judge Forrest. And yet of all the parties involved in this peculiar saga, she responded the most severely, really laying into Gunn. “Confrontational …hostile… rude…inappropriate.”
Anyway, it all got sorted out by good old Justice Mary Peters, whose 2422-word judgment set aside the conviction, and concluded: “The Court has often recognised that there will be occasions in which a defendant’s offending is so trifling that consequences are out of all proportion to the gravity of the offending. This is such a case.”
Huzzah, and quite right. Justice Peters summed up the criminal matter of the touching of someone’s arm, thus: “Ms Gunn said ‘Excuse me’, and then reached out and touched [the guard’s] upper arm. This touch constituted the actus reus of the assault charge. It was common ground at trial that Ms Gunn’s touch was light, fleeting, and for the purpose of getting [the guard’s] attention.” And that was it, lightly and fleetingly summarised, the actus reus floating up, up above the page, as weightless and baseless as a mite of dust. There had been no assault. There can be no conviction.
The law, having been exposed as an ass, got things right in the High Court ruling, via another beast: an ox. Justice Peters referred to a precedent dating back to 1807. In Wiffin v. Kincard, a police officer tried to restrain a member of the public who wanted to look at “a mad ox”. He touched him on the shoulder with his policeman’s staff. The man cried blue bloody murder, and took the officer to court on a charge of battery. It formed part of a later court ruling on the subject of touching someone: “Forms of conduct, long held to be acceptable, include touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, a touch by a constable’s staff on the shoulder of a man who had climbed on a gentleman’s railing to gain a better view of a mad ox, the touch being only to engage the man’s attention, did not amount to a battery.”
The judge threw out the wimp’s complaint. They got it right in 1807; they eventually, got it right in 2025.
