No jury likely to convict pharmacist - expert

No jury is ever likely to convict Grant Gillard, the pharmacist who fought off a burglar who later died, an expert says.

Grant Gillard, 68, has today spoken in detail about his struggle with Bruce Allan Jones, 43, when the career burglar broke into his pharmacy last Tuesday morning.

The break-in happened at 4.30am and Mr Gillard went to his shop. After a security guard had left and he was clearing up Mr Gillard said he went to his storeroom, only to find Jones hiding.

He said Jones grabbed a spanner and swung at him, while he held him in a bear hug.

"It was looking a very serious situation when we got into this situation. I was extremely worried if he managed to hit me with that spanner it was going to be all over for me," Mr Gillard said in an interview on Radio NZ.

"I realised I had to do something fairly radical to control the situation. I managed to put a headlock on him."

"I put a reasonable amount of pressure on and ordered him to drop the spanner and he did."

It was not a choke hold however, he said.

"I was in a very desperate situation."

"I was very anxious that he not manage to escape because I realised if he did and he got another weapon I was in a very vulnerable situation."

While holding onto Jones Mr Gillard managed to phone his wife and police, who arrived eight minutes later.

Only then did he let Jones go and realised he had stopped breathing. CPR failed to revive Jones.

Police have yet to decide if they will charge Mr Gillard. A spokeswoman today said it could be weeks before a decision is made.

But Auckland University law professor Warren Brookbanks says if Mr Gillard goes before the courts a jury is unlikely to ever convict.

Mr Gillard could plead self defence and given the facts he has outlined, he was entitled to use force to defend himself.

The law allows force, even fatal force, in self defence if a person is genuinely in fear of their life, Mr Brookbanks says.

"The courts have also said they 'will not weigh with fine scales the degree of necessary force' in a situation of self defence," Mr Brookbanks says.

"There would be a great deal of sympathy for the pharmacist and even if there were excessive force used, it's possible it could be just a case of jury nullification - a jury deciding there is no way we are letting this guy go away when he was defending in his own pharmacy against a burglar."

Mr Brookbanks says it is rare for police not to lay charges but in this case they would have to consider that "if they said no jury is ever going to convict in this situation it would be putting the guy through unnecessary stress to go with a prosecution.

"That's certainly available to them [the police] as part of their prosecutorial discretion."

He said Mr Gillard's decision to tell his side of the story in the media would help him.

"It gets any potential juror on side - they have already heard the evidence in a sense."

Mr Gillard's lawyer Richard Earwaker said Mr Gillard would be making no more comment after today.

- © Fairfax NZ News