Batt v Police - [2018] NZHC 2699

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000044 [2018] NZHC 2699

BETWEEN
KONRAD PERA BATT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 October 2018

Appearances:

R T Nye-Wood and G Prentice for Appellant
B Vaili for Respondent

Judgment:

18 October 2018

JUDGMENT OF LANG J [on appeal against conviction]

Thisjudgment was delivered by me on 18 October 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BATT v NEW ZEALAND POLICE [2018] NZHC 2699 [18 October 2018]

[1] On 31 July 2018, Judge A S Menzies found Mr Batt guilty on a charge of being in possession of an offensive weapon in circumstances that prima facie showed an intention to use it to commit an offence involving the threat or fear of violence.1 In the same decision the Judge sentenced Mr Batt to 12 months supervision.2

[2] Mr Batt appeals against conviction on the basis that the evidence adduced by the prosecution was insufficient to justify the Judge finding the charge proved beyond reasonable doubt.

The hearing in the District Court

[3] Mr Batt initially stood trial on a charge of being in possession of an offensive weapon in a public place without lawful authority or reasonable excuse.3 The prosecution called two witnesses in support of the charge. The first was Mr Govind, a motorist who was driving along Wainui Road near Raglan at about 9.30 am on 23
November 2017. He noticed a youth riding a bicycle in the opposite direction. This person was wearing a red bandanna tied across the lower part of his face. Mr Govind also noticed the handle of a baseball bat poking through the cyclist’s backpack.

[4] Mr Govind said he “had seen this youth previously in a threatening manner”. He was also aware “there had been a carload of youths that were driving round town with bad attitudes, trying to confront people and cause a bit of trouble”. Mr Govind had personally witnessed three separate incidents over the previous two or three days. For that reason he decided to call Constable Ryburn of the Raglan Police to tell him about the person on the bicycle. Mr Govind said he knew that person as Konrad Smith.

[5] The second witness for the prosecution was Constable McMillan. He received a telephone call from Constable Ryburn passing on the information Mr Govind had provided. Constable McMillan drove to Wainui Road and found Mr Batt riding a bicycle whilst wearing a backpack. He had a red scarf around his chin and the constable could see that a hooded sweatshirt was covering an object in the backpack.

1      Crimes Act 1961, s 202A(4)(b).
2      New Zealand Police v Batt [2018] NZDC 15799.
3      Crimes Act 1961, s 202A(4)(a).

[6] Constable McMillan stopped Mr Batt and obtained his consent to search the backpack. Under the sweatshirt he found an aluminium softball bat with the handle sticking up out of the bag.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2699
Decision Date: 18 October 2018

CaseChat Overview and Summary

The case of Batt v Police involves an appeal by Konrad Pera Batt against his conviction for being in possession of an offensive weapon in circumstances that prima facie showed an intention to use it to commit an offence involving the threat or fear of violence. The initial charge against Batt was for possessing an offensive weapon in a public place without lawful authority or reasonable excuse. However, during the trial, the Judge amended the charge to require proof of an intention to use the weapon for threatening or violent purposes. Batt was found guilty and sentenced to 12 months supervision. The appeal focuses on whether the evidence presented by the prosecution was sufficient to prove the amended charge beyond reasonable doubt.

The legal issue at the heart of this appeal is whether the prosecution provided enough evidence to prove beyond reasonable doubt that Batt had the baseball bat in his possession with the intention to use it to threaten or create fear of violence. The court must determine whether the surrounding circumstances objectively pointed to such an intention. The prosecution's case relied on the fact that Batt was wearing gang colours, had recently been observed in a threatening manner, and had no satisfactory explanation for possessing the bat. However, there was no direct evidence linking Batt to any specific incidents of violence or threats of violence, nor was there evidence of an ongoing disturbance in the area where he was found.

In considering the appeal, the court emphasised that the intention to use the weapon must be ascertained objectively by reference to the actual circumstances existing at the time of the alleged offence. The court found that while the circumstances surrounding Batt's possession of the bat were concerning, they did not provide sufficient evidence of an intention to use the bat for threatening or violent purposes. There was no evidence that Batt had been involved in any violent incidents, that his gang was involved in the recent disturbances, or that a violent incident was occurring or about to occur at the time he was found with the bat. Without such evidence, the court concluded that the prosecution had not met the required standard of proof beyond reasonable doubt.

Consequently, the appeal was allowed, and the conviction and sentence were quashed. The court found that the prosecution had not provided enough evidence to justify the conviction on the amended charge.

Orders