Liz Gunn, during an earlier appearance art Manukau District Court, reveals how she will plead for the wilfully trespassing, resisting arrest and assault charges. Video / Michael Craig
Liz Gunn appeared in court seeking to overturn her assault conviction involving an Auckland Airport security officer.
Her lawyer argued the District Court misinterpreted the law and the assault was a “light touch.”
The Crown maintained the conviction, citing the context of the confrontation and lack of remorse from Gunn.
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: willful trespass and resisting arrest.
Appearing today before Justice Mary Peters in the High Court at Auckland, 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 — and had considered things she shouldn’t have during the sentencing process, including an alleged racist comment after the incident.
“New Zealand is only for New Zealanders,” Gunn was alleged to have said outside as she was being arrested.
Unlike much of the confrontation earlier, the interactions outside were not caught on video and Gunn doesn’t accept she said that, her lawyer said.
The Crown argued the conviction should be upheld.
Gunn could have faced up to six months’s imprisonment for the the assault charge.
She 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.
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 explained.
The District Court judge also noted that Gunn had courted media coverage by taking a leading public role promoting misinformation about vaccines.
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. Photo / Michael Craig
Those comments were strongly objected to outside the District Court on the day of the sentencing hearing as Gunn again addressed the media, as she had during prior court appearances. The objection was renewed today before the High Court judge.
“It was an unfair, inaccurate, baseless comment to make and it shouldn’t have been made,” Hague said, adding that it was, more importantly, “not relevant to the offences at all”.
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.”
The District Court judge shouldn’t have been focused on the “reasonableness” of Gunn’s belief that she wasn’t committing assault, Hague said, arguing an honest belief there was implied consent should have been enough for an acquittal.
Even if the High Court judge ultimately agrees with the District Court judge’s finding of guilt, the defence lawyer said Gunn should have been granted a discharge without conviction given how low the incident ranked on the spectrum of assaults.
The judge had found there wasn’t enough evidence that a conviction would have a major impact on Gunn’s ability to travel overseas or re-apply for her law licence. Gunn has a law degree but isn’t currently on the roll of barristers and solicitors.
Liz Gunn, aka Elizabeth Jane Cooney, appears in the Manukau District Court for sentencing in November 2024 after being found guilty of assaulting an Auckland Aiport worker. Photo / George Block
But any impact, even if not major, should be enough to justify a discharge without conviction given the low gravity of the offending, Hague said.
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”.
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.
In addition to the alleged racist comment that would happen later, Bragg noted Gunn had asked the security employee where she was from and brought up post-war Germany.
“In those circumstances, the appellant cannot have considered that a security guard being confronted ... would have wanted to be touched in that situation,” the prosecutor said.
As for the discharge without conviction request, Bragg acknowledged that in some cases involving low-level crimes the balancing act falls in the defendant’s favour. But those cases generally involve remorse and efforts at rehabilitation, which don’t apply to Gunn, she said.
Justice Peters reserved her decision.
If she eventually sides with Gunn, Hague suggested that it wouldn’t be in the interests of justice to order a retrial given the low level of the charge. Justice Peters should instead quash the conviction then send the matter back to the District Court so that Gunn could seek costs for the charges that were dropped, he suggested.
Judge Forrest had previously rejected the costs request.
Today marked the second time Gunn had attempted to appeal Judge Forrest’s decisions.
In September, the High Court rejected her attempt to appeal the guilty finding, suggesting that the appeal was premature. Gunn had applied for a discharge without conviction but at that point had not yet been sentenced, Justice Mathew Downs noted. While defendants have the right to appeal a conviction or sentence, they do not have the right to appeal a guilty finding, he said.
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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