Chapman v Police HC Nelson CRI-2011-442-36

[2011] NZHC 1969

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2011-442-36

BETWEEN  CLIVE JON CHAPMAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 December 2011

Counsel:         D Holloway for Appellant

M A O'Donoghue for Respondent

Judgment:      8 December 2011

JUDGMENT OF MILLER J

[1]      Mr Chapman appeals his conviction for possessing a firearm in a public place except for some lawful purpose, contrary to s 51 of the Arms Act 1983.  Possession in  a public place having been  proved,  the  statute prescribes  that  the  burden  of proving the existence of some lawful purpose lies on the defendant.

[2]      At about 8pm on 7 May 2011 Mr Chapman crashed his car at Stoke.  He was intoxicated, having just spent some hours drinking at a friend’s house.  The police attended, and discovered two weapons in the car.  One was an air rifle, but the other was  a  .308  calibre  rifle  for  which  Mr  Chapman  lacked  the  necessary  firearms licence.  There is no dispute that he possessed this firearm in a public place.  The question at the summary hearing was whether he had established a lawful purpose for doing so.

[3]      Mr Chapman gave evidence, and the Judge fairly summarised his evidence as follows:

CLIVE JON CHAPMAN V NEW ZEALAND POLICE HC NEL CRI-2011-442-36 8 December 2011

[6]       In fact the firearm had, on the defendant’s evidence, been in his possession only for a period of some hours prior to the accident.   He explained that he was working as an engineer overseeing logging gangs operating in the Marlborough Sounds.  He was travelling to the Sounds and back from his home in Richmond.  On 7 May he had been in the Manaroa area of the Marlborough Sounds.  On this, or an earlier occasion when he was there overseeing the logging gang, he would accompany loggers from the gang when they went out deer stalking or pig shooting.  The defendant’s evidence was that he simply accompanied the shooters because he liked being out in the open air and he enjoyed the thrill of being part of a deer stalking or a pig shooting expedition.  He was quite adamant in his evidence that he had not participated in shooting deer and/or pigs, and that he was only accompanying the shooters.

[7]       The defendant acknowledged that he does some shooting himself and that the air rifle found in the car was one that he had used from time to time  to  shoot  possums.    The  defendant’s  evidence  was  that  he  did  not consider that there was any need for him to have a firearms licence because he  was  not  one  of  those  involved  in  shooting  deer  or  pigs  on  these expeditions in the Sounds out of Manaroa.

[8]       On 7 May, the defendant said he was the last to leave the worksite at Manaroa, this was at about 1.00 pm on 7 May, a Saturday.  He said all the loggers in the gang had already left and just before he was to leave the site he saw this .308 rifle leaning against a locked smoko hut.  He understood it to belong to one of those in the logging gang, a man called Joe.  He said that the bolt for the rifle and a box of ammunition were on the step beside where the rifle was leaning against the hut.

[9]       The defendant’s evidence was that he thought that it was unsafe to leave for the weekend with the rifle exposed in this position leaning against the hut with ammunition in a box beside it.  The defendant therefore decided to put it in his work truck and bring it back to Nelson, a trip of some three and a half to four hours. I take it from the defendant’s evidence that he did not have any key to the smoko hut or the tool shed at Manaroa, which he said were locked after the loggers in the gang had left. He explained that he did not know anything more about Joe than his first name and that he was a member of this logging gang who had this rifle and was one of those who would go out shooting.

[4]      However,  the  Judge  was  not  persuaded  that  Mr  Chapman  acted  for  an unlawful purpose when he transferred the rifle from his work truck into the car then went drinking at a friend’s house.  He might have left the rifle in the work truck and locked it up, or locked the rifle in one of the buildings or the office at his work premises.   Instead he kept it and left it in his car while he was drinking and subsequently driving to his home.  The Judge gave him the benefit of the doubt on his original purpose of possession but concluded that any lawful purpose was extinguished by his later actions.  The Judge concluded that at the time he was found

with the weapon, in Stoke, about 8.20 pm on 7 May, he was unable to establish a lawful purpose for possession.

[5]      The difficulty with this evidence was that when the police inquired about the rifle after the crash, Mr Chapman explained that it was “Joe’s” and explained its presence by saying he just carried it around with him.  When asked how long it had been there he replied “on and off for the last three weeks.”

[6]      The  Judge  was  sceptical  about  Mr  Chapman’s  evidence  in  light  of  this statement, but ultimately gave him the benefit of the doubt, accepting that he was no doubt shaken up after the crash and concerned about his situation.  After all, he had crashed a vehicle which did not belong to him and he was over the breath alcohol limit.   For these reasons he might not have answered the police questions with appropriate care.

[7]      However,  the  Judge  was  not  persuaded  that  Mr  Chapman  acted  for  an unlawful purpose when he transferred the rifle from his work truck into the car then went drinking at a friend’s house.  He might have left the rifle in the work truck and locked it up, or locked the rifle in one of the buildings or the office at his work premises.   Instead he kept it and left it in his car while he was drinking and subsequently driving to his home.  The Judge gave him the benefit of the doubt on his original purpose of possession but concluded that any lawful purpose was extinguished by his later actions.  The Judge concluded that at the time he was found with the weapon, in Stoke, about 8.20 pm on 7 May, he was unable to establish a lawful purpose for possession.

[8]      On appeal, counsel emphasises that Mr Chapman was given the benefit of the doubt on the conflict of evidence.  He then contended that the Judge was wrong to hold that the lawful purpose was extinguished when Mr Chapman transferred the rifle from the work truck to the car.  It was not reasonable to draw an inference from the evidence that his purpose changed when he did that, however foolish his actions may have been.

[9]      Further, counsel contended, the Judge erred in law because even where an accused has failed to establish a lawful purpose the question remains whether his possession of the firearm was in pursuit of an “unlawful purpose”, being a “purpose to commit a criminal act”.  For that proposition he cited the judgment of the Court of Appeal in R v Iti [2008] 1 NZLR 587.

[10]     I begin by examining the elements of the offence, having regard to what the Court of Appeal said in Iti.   There is no difficulty with the requirements that the defendant should be in possession of a firearm.  Nor is it in dispute that Mr Chapman possessed it in a public place.  The offence, however, is that of possessing it “except for some lawful purpose”.  In the ordinary way, it would be for the Crown to prove the absence of some lawful purpose, but in s 51(2) the legislature has provided that the onus of proof shifts to the defendant once it is proved that the defendant is in possession of a firearm in any public place.  It is not in dispute that the burden is that of the preponderance of probabilities.

[11]     Iti is a difficult case which, as the Court of Appeal was careful to emphasise, could only be understood in the context of the events of the particular day.  Mr Iti discharged a shotgun during two wero (challenges) as part of an historically significant occasion when the Waitangi Tribunal entered the Ruatoki Valley to hear Tuhoe grievances.  The incident occurred during a re-enactment of Tuhoe’s account of historic wrongs for which the Crown was accountable.   The ceremony was intended to permit the venting of anger for past wrongs and “the fullest licence was allowed”. The firearm was discharged on a public road and on a marae.

[12]     Having regard to the unusual factual setting, the Court of Appeal was much troubled by the Crown’s decision to charge Mr Iti under s 51 of the Act, pointing out that he could have been charged under s 48 with discharging a firearm without reasonable cause in  or near a dwellinghouse or public place so  as  to endanger property or to endanger, annoy or frighten any person.   The Court outlined the elements of s 51, including the burden of proving the existence of an unlawful purpose, but the principal question as whether the ātea at the marae, where Mr Iti discharged the firearm, was a public place.  A secondary question was whether the discharge was lawful according to Tuhoe custom and, if so, whether that mattered

under the Arms Act.   I accept that the Court appears to have assumed the Crown must prove that Mr Iti acted for the purpose of committing a criminal act, but it did so without analysing s 51 in any detail or relating its conclusions to any burden of proof.   The focus was on s 48.   The Crown argued that Mr Iti contravened s 48, although he had not been charged under that section.  His purpose was then analysed by the Court in terms of s 48;  see paragraphs [52]-[56] of the judgment.  The Court was not satisfied that the elements of s 48 were made out, and concluded that the prosecution under s 51 must therefore fail.

[13]     In my opinion, Iti is no authority for the proposition that the Crown must prove a criminal purpose in the present setting. The statute plainly says otherwise.

[14]     The Judge’s reasoning in this case unsatisfactory, because he does not appear to have applied the burden of proof when it came to the original purpose of possession.    There  is  evident  in  the  Judge’s  reasons  a  clear  scepticism  about Mr Chapman’s evidence and to give Mr Chapman the benefit of the doubt is merely to say that reasonable doubt exists.  But I think Mr Hollowayis correct to argue in the circumstances that the Judge must be taken to have accepted Mr Chapman’s claim that he took the rifle from the logging site in order to secure it.

[15]     However, it does not follow logically that because he had the rifle in his possession for a lawful purpose when he arrived back at his work premises from the logging site, that lawful purpose remained some hours later when he crashed the car. He must have had a reason for taking it out of the truck and putting it into the car. The informant did not have to prove what that purpose was, and the Judge was entitled to conclude that the purpose changed because he did not take the obvious and ready opportunity to secure the weapon in his work premises or in the work truck which he had driven from the logging camp.  He behaved in a manner which was not consistent with the alleged purpose of keeping it secure.

[16]     Accordingly, it was open to the Judge to conclude that Mr Chapman had failed to discharge the burden of proving that his purpose was lawful at the time that he was found in possession of the weapon.   I agree that Mr Chapman could not discharge that burden on the evidence.

[17]     I need not deal with the Crown’s alternative argument that a purpose of securing the weapon to return it to its (presumably licensed) owner is an unlawful purpose unless the defendant can point to a specific exemption in the Arms Act.

[18]     The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for Respondent