Activist Liz Gunn’s appeal against judge who found her guilty of assault is dismissed

Liz Gunn has had her appeal dismissed due to "lack of jurisdiction".

Controversial media personality and anti-vaccination campaigner Liz Gunn has been unsuccessful in challenging a judge’s finding that she was guilty of assault.

Gunn was found guilty at a judge-alone trial in May of assaulting an Auckland Airport staffer.

She had gone to Auckland Airport, along with cameraman Jonathan Clark, with a microphone and a large video camera. When the pair attracted attention, security officer Anna Kolodeznaya approached and asked if they had permission to film at the airport.

The interaction that followed, both with the security officer and police, resulted in charges of assault, trespass and resisting police.

Judge Janey Forrest dismissed the charges of trespass and resisting police, but found Gunn guilty of assaulting the security officer by “deliberately touching her without her consent”.

Gunn, who has yet to be sentenced, has applied to be discharged without conviction. As such, a conviction has not been entered by the District Court for the assault, but Gunn tried to appeal the guilty finding.

Gunn’s lawyer lodged an appeal in the High Court citing three potential areas of jurisdiction: section 124(2) of the District Court Act 2016, and sections 296 and 229 of the Criminal Procedure Act 2011.

In a decision released today, Justice Mathew Downs said the first section was found to be an “awkward choice” under which to lodge an appeal.

“Section 124(2) is an awkward choice because it sits in the part of the act directed at civil proceedings.”

Justice Downs said the other two potential areas of jurisdiction also didn’t hold grounds for an appeal.

He determined Gunn’s submission about the way Judge Forrest treated the issue of consent, which formed part of the evidence that led to the guilty finding, wasn’t one where there was a problem with the way the judge applied the law.

“[Gunn] has not identified any question of law, and none arises,” Justice Downs said.

The final grounds for the appeal failed because essentially, while Gunn has been found guilty, there has yet to be a conviction entered, therefore there is no conviction to appeal.

The decision stated the New Zealand Bill of Rights Act 1990 does not recognise a right to appeal a determination of guilt.

It provides a right to appeal, to a higher court, a conviction, a sentence, or both.

“Under our system of criminal justice, it is a conviction that carries jeopardy and stigma,” Justice Downs said.

It was important for the court to be able to discharge a defendant without conviction should the consequences of a conviction be out of all proportion to the gravity of the office.

Gunn’s application in the District Court “for such relief” remains live.

Justice Downs dismissed the application for an appeal for lack of jurisdiction.

Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.