Beswick v Police
[2024] NZHC 3502
•21 November 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-231
[2024] NZHC 3502
IN THE MATTER of an appeal against conviction BETWEEN
SHANDELL BESWICK
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 November 2024 Appearances:
A McKenzie for Appellant M Fulton for Respondent
Judgment:
21 November 2024
ORAL JUDGMENT OF OSBORNE J
Introduction
[1] Shandell Beswick, with two co-defendants, pleaded guilty to attempted burglary.1 Ms Beswick and one co-defendant, Kauri Baker, were also convicted of two arms offences: unlawful possession of a cut-down semi-automatic .22 LR Ruger2 and a prohibited magazine.3 On 10 May 2024, Judge Neave found the firearm and magazine charges proven following a trial (the Judgment).4 Ms Beswick appeals the two convictions.
1 Crimes Act 1961, ss 231(1)(a), 72 and 311; maximum penalty five years’ imprisonment.
2 Arms Act 1983, s 50D; maximum penalty five years’ imprisonment.
3 Section 50B; maximum penalty two years’ imprisonment.
4 Police v Kura [2024] NZDC 10594.
BESWICK v NEW ZEALAND POLICE [2024] NZHC 3502 [21 November 2024]
Facts
[2] Around 4 am on 24 August 2023, Ms Beswick, Mr Baker and Poona Kura were in Addington, Christchurch. Ms Beswick drove past Black Sheep Trading. She reversed a short time later and Mr Baker exited the front passenger seat. Mr Baker approached the premises, used a tool to remove the door seals and worked at removing the windowpane from the door. Mr Kura was in the rear right passenger seat and got out to approach the premises. He attempted to pull a security light fixture off the wall but was unsuccessful. After removing the glass screen, Mr Baker realised there was a further metal gate that prevented access to the store. He replaced the glass pane before he and Mr Kura returned to the car.
[3] Ms Beswick remained in the car at all times keeping a lookout. Upon the others’ return, she drove off. She drove a short distance before police stopped the vehicle. Mr Baker tried to climb into the driver’s seat to drive the vehicle away. He was tasered and became compliant. As Ms Beswick was removed from the car, a firearm’s silencer dropped onto the road. Police invoked powers under the Search and Surveillance Act 2012 to search the car. A black bag was found under the driver’s seat, in front of where Mr Kura’s feet had been. Inside the bag was the cut-off rifle. It had a magazine attached to it with 20 rounds in the magazine and one round in the chamber ready to be fired.
Principles on appeal
[4] Section 232 Criminal Procedure Act 2011 provides the High Court may allow an appeal against conviction only if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.5
5 Criminal Procedure Act 2011, s 232(4).
[5] The appeal proceeds by way of rehearing. This Court is required to form a view of the facts.6 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.7 The onus is on the appellant to show that an error occurred.
[6] The relevant law in this appeal is s 66 Arms Act 1983 (s 66). Section 66 provides:
Occupier of premises or driver of vehicle deemed to be in possession of firearm, airgun, pistol, imitation firearm, restricted weapon, prohibited magazine, or explosive found therein
For the purposes of this Act every person in occupation of any land or building or the driver of any vehicle on which any firearm, airgun, pistol, imitation firearm, restricted weapon, prohibited magazine, or explosive is found shall, though not to the exclusion of the liability of any other person, be deemed to be in possession of that firearm, airgun, pistol, imitation firearm, restricted weapon, prohibited magazine, or explosive, unless he proves that it was not his property and that it was in the possession of some other person.
[7] In summary, the appellant faced a rebuttable presumption. She had to establish on the balance of probabilities that the firearm and the prohibited magazine were not her property and that they were in the possession of some other person.
District Court decision
[8] Judge Neave identified two of the defendants, Ms Beswick and Mr Baker, were under s 66 deemed to be in possession of the firearm and the magazine. The Judge identified the issue as being whether or not each of the defendants had proved they were not “in ownership of the firearms” and that “the firearms were in someone else’s possession”. The Judge stated the test for “possession” to involve knowledge and control and an intention to exercise control, either alone or jointly, with another person.
6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32].
7 At [38].
[9] The application of s 66 in this case is the issue. The key passage in the Judgment refers to the accounts of Ms Beswick and Mr Baker as to possession and/or knowledge of the bag containing the items:
[26] Their stories are mutually exclusive, to the extent they cancel one another out. Even if there was nothing one way or the other to enable me to pick one over the other, in my view, the burden of proof would not be satisfied.
[27] The best case is I would be left in a state of equipoise and that is not sufficient to satisfy the balance of probabilities. But I have to say neither explanation has the ring of truth. Neither provides any logical explanation as to how they came to be in the vicinity of this place about to commit the burglary. They are not charged with the burglary, of course, but it is part of the surrounding circumstances leading up to the finding of and possession of the weapon, nor is there any really rational explanation from either of them as to how the bag came to be under the seat of the driver. Certainly, on Mr Baker’s explanation, there is no explanation as to how it came to be there. Ms Beswick, of course, says that Mr Baker put it there. Mr Baker’s memory, it seems to me, is shaky in the extreme and I also note there is nothing in any of the police officers’ evidence to suggest that he was so badly so affected by his 16-day bender that he was incapable of rational thought or activity and it was not suggested in cross-examination to any of them that he was in any way, shape or form noticeably affected by methamphetamine or lack of sleep.
[28] Similarly, Ms Beswick’s explanation is not much stronger as to why suddenly out of nowhere there should have been this random decision to go and commit the burglary. I just do not find either story particularly convincing. That is in addition to the fact that, as I say, their accounts are mutually exclusive. It is possible for more than one person to be in possession of an item as a matter of law. I was referred to a case of Schwaab v R but it seems to me that has no relevance to the present case.8 The circumstances were completely different and, in any event, that was a case about whether somebody was a party to someone else’s possession rather than two joint principles.
[29] It, therefore, follows from what I have said, I am not satisfied on the explanation of either Ms Beswick or Mr Baker that they have rebutted the presumption in s 66. That presumption, therefore, deems them to be in possession and accordingly, the charge is proven in respect of each of those two defendants.
Submissions
Appellant’s submissions
[10] Mr McKenzie, appearing for Ms Beswick, submits the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.9
8 Schwaab v R [2022] NZCA 385.
9 Criminal Procedure Act 2011, s 232(2)(b).
[11] Ms Beswick gave evidence explaining how the bag containing the prohibited items came to be under her seat. She stated that Mr Baker placed the bag under her seat when he got into the vehicle and she thought nothing of it so did not enquire as to its contents. Mr Baker gave evidence denying any knowledge of the bag or its contents and did not provide any evidence as to how it came to be there.
[12] The crux of the Judge’s decision on liability is submitted to be at [26]–[29] (set out above at [9]). Mr McKenzie submits the Judge did not appear to rely on demeanour in such a way that the appellate court is disadvantaged by not having seen or heard the witnesses.
[13] Mr McKenzie submits the Judge erred in his overall assessment and rejection of Ms Beswick’s evidence because:
(a)Ms Beswick provided a clear explanation as to how the bag came to be under the seat (Mr Baker placed it there);
(b)the failure to provide a “logical explanation” about how the defendants came to be in the vicinity of the burglary is irrelevant to the inquiry about possession/knowledge of the bag’s contents as the defendants had all pleaded guilty to attempted burglary;
(c)the Judge’s essential finding that the two conflicting and mutually exclusive explanations led necessarily to a draw (or state of equipoise) such that the burden was not satisfied, contrary to his later finding that the appellant’s evidence was “not much stronger” (emphasis added) was an error;
(d)the appellant’s account was direct and concise to be contrasted with Mr Baker’s denial of any knowledge whatsoever; and
(e)the Judge relied on a lack of a really rational explanation as to how the bag came to be under the seat whereas the appellant’s evidence was that Mr Baker had put it there.
[14] Mr McKenzie submits the combined effect of these matters resulted in a material error in the assessment of the evidence and gives rise to a miscarriage of justice. Although traditionally an appellate court is slow to overturn credibility findings made by a first instance court, this is one of those cases where the appellant court, in his submission, is in an equally strong position to reassess the finding. Mr McKenzie submits the appellant’s account was clear and is clearly to be preferred over Mr Baker and his shaky memory.
Respondent’s submissions
[15] Ms Fulton, for the Police, submits that based on the factual finding that Ms Beswick was the driver of the vehicle and therefore was in possession of the items in question and the reverse onus applied, and that at trial there were competing narratives between Ms Beswick and Mr Baker, the Judge did not err in rejecting the appellant’s narrative and was entitled to conclude the presumption was not rebutted. Ms Fulton further submitted the Court can be sure of the appellant’s guilt for the same reasons.
Analysis
[16] Section 66 (set out above at [6]) establishes the reverse onus that applies to both the firearm and magazine charges.
[17] It is not disputed that Ms Beswick was the driver of the car when apprehended by police (or that Mr Baker was the driver earlier in the day) when (at both times) the bag containing the firearm and magazine were present, and that s 66 applies to Ms Beswick. Therefore, to rebut the presumption of possession, Ms Beswick bore the onus of proving that on the balance of probabilities the firearm and the magazine were not her property, and they were in the possession of someone else.
[18] I accept that Ms Beswick had a provided a clear explanation for how the bag came to be under the driver’s seat. However, that cannot be considered in isolation.
[19] Applying s 66, both defendants could be found guilty of the firearm and magazine offences if neither could prove, on the balance of probabilities, someone
else possessed the firearm and magazine to the exclusion of themselves. More than one person may have been in possession.10 Simply proving someone else was in possession does not discharge the presumption.11 Section 66 does not provide for exclusion from liability if one defendant is more convincing than the other or provides a more direct and concise account of events. The onus remains on each defendant to establish, on the balance of probabilities, that the firearm and magazine in this case were not their property and were in the possession of someone else. Although, when two defendants are jointly charged in these circumstances and give evidence, the Court will inevitably compare their accounts and may well find one more plausible than the other, the test under s 66 remains whether the account (as supported by any other evidence) of not being in possession has reached the level of being probable.
[20] While the Judge noted Ms Beswick’s explanation was the stronger, he found it was “not much stronger”. The Judge was clearly not impressed by the candour or credibility of either defendant. He noted that Ms Beswick “seemed to have a good memory for some parts and not for others, and certainly when asked about the [burglary agreement] her account was sketchy to say the least”. Whereas Mr Baker’s memory was “shaky in the extreme”. Even when Ms Beswick’s evidence is assessed as stronger than Mr Baker’s, it does not inexorably follow that Ms Beswick has proved the firearm and magazine probably belonged to someone else, and there were in someone else’s possession.
[21] I accept the Judge’s reference to a lack of rational explanation from the defendant as to how the bag came to be under the seat was in error but, as counsel recognise, the Judge was entitled to assess the evidence as a whole and I am satisfied he did,
[22] I do not find the Judge erred by referring to irrelevant evidence relating to the failure to provide a “logical explanation” about being in the vicinity of the burglary. While the circumstances surrounding the burglary and how the defendants came to be in that vicinity are not material elements of the firearm and magazine charges, those events formed part of the narrative of the overall offending on 24 August. They were
10 Sullivan v R [2021] NZCA 702 at [99]; Heeni v R [2018] NZCA 359 at [16].
11 Heeni v R, above n 10, at [17].
matters of evidence available to the Judge when assessing overall credibility. It was for the Judge to weigh the credibility of the evidence and the explanations given. The Judge did not err in considering the whole of the evidence to determine the credibility of the witnesses and assess whether the appellant had discharged the onus under s 66.
[23] I find the Judge’s findings were open to him on the facts. I find that an error has not been established.
[24] Therefore the Judge did not err to the extent that a miscarriage of justice has occurred.
Result
[25]I dismiss the appeal.
Osborne J
Solicitors:
Crown Solicitor, Christchurch
Andrew McKenzie, Barrister, Christchurch for Appellant
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