Cooper v Police
[2020] NZHC 2514
•24 September 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-52
[2020] NZHC 2514
AMON ELBERT COOPER v
NEW ZEALAND POLICE
Hearing: 1 September 2020 Appearances:
S W Campbell and B A Crowley for Appellant L R van der Lem for Respondent
Judgment:
24 September 2020
JUDGMENT OF CLARK J
Introduction
[1] In a reserved decision issued 11 June 2020 Judge Johnston convicted Mr Cooper of the following two charges:1
(a)possession of a pipe for the purpose of consuming methamphetamine;2 and
(b)possession of a knife without reasonable excuse.3
1 New Zealand Police v Cooper [2020] NZDC 10643 [District Court decision].
2 Misuse of Drugs Act 1975, s 13(1)(a)(iii), maximum penalty one year’s imprisonment or $500 fine.
3 Summary Offences Act 1981, s 13A, maximum penalty three months’ imprisonment or $2,000 fine.
COOPER v NEW ZEALAND POLICE [2020] NZHC 2514 [24 September 2020]
[2] The Judge found that the warrantless search of the vehicle Mr Cooper was driving was unlawful and unreasonable and that the evidence “relating to the searches” was improperly obtained.4 He determined nevertheless, under s 30 of the Evidence Act 2006, that excluding the evidence would be disproportionate to the impropriety.
[3] Mr Cooper appeals his convictions on the basis that the evidence obtained from the unlawful search should have been ruled inadmissible and that the Judge erred in finding Mr Cooper lacked a reasonable excuse for possession of a knife. Broadly speaking, the respondent’s case is that the breach was entirely technical and the exclusion of such probative evidence would amount to “judicial disciplining” of the Police and would undermine the credibility of the justice system.
[4] The appellant accepts that if his appeal is successful on the inadmissibility ground and the convictions are quashed then the other issues do not need to be addressed.5
Factual background
[5] On 22 November 2019 around 11.30 pm, Mr Cooper was driving on Mazengarb Road in Paraparaumu. Two of his friends, one of whom (Ms Cross) was the owner of the car, were passengers.
[6] Constable Whitaker observed the car swerving and driving slowly. He activated the lights on his police vehicle requiring Mr Cooper to pull over.
[7] Constable Whitaker approached the car and collected the details of the occupants. His evidence was that as he took their details he noticed a glass pipe sticking out of a “bum-bag” across Mr Cooper’s chest and that he observed Ms Cross reach across and poke the pipe out of sight. Constable Whitaker returned to his vehicle and requested backup. At 11.45 pm two police units arrived. Constable Whitaker returned to the vehicle and invoked a warrantless search under the Search and
4 District Court decision, above n 1, at [51] and [67].
5 The other issues being that the trial Judge failed to address Mr Cooper’s evidence denying possession of the pipe and his reasoning was therefore inadequate, and as to the reason Mr Cooper had a knife in his possession.
Surveillance Act 2012. A methamphetamine pipe was found in a bag in the passenger footwell. Prior to searching Mr Cooper, he was asked if he had anything in his pockets. Constable Whitaker’s evidence was that Mr Cooper advised he had a knife. A small craft knife was located in Mr Cooper’s pocket and a second, larger knife in a black sheath, was located on the inside of Mr Cooper’s trousers. Mr Cooper told the officer he had the craft knife for tinting windows and the larger knife was for cutting apples. Mr Cooper was not charged in relation to the craft knife.
The decision under appeal
[8] Judge Johnston proceeded on the basis the actual powers available to, and utilised by, the officer were ss 20 and 21 of the Search and Surveillance Act.
[9]Section 20 provides:
20Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences
A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—
(a)to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—
(i)a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii)a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii)a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv)a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b)to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
(c)to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged
A constable conducting a search of a place or vehicle under s 20 may search any person in that place or vehicle without a warrant.6
[10] In addressing whether or not Constable Whitaker had reasonable grounds to believe it was not practicable to obtain a warrant,7 Judge Johnston reviewed the relevant Court of Appeal authorities and in particular, the Court of Appeal’s confirmation of the importance of the “warrant preference rule” principle underpinning the Search and Surveillance Act.8
[11] Noting that it was open to Constable Whitaker to apply orally for a search warrant but that he had never before done so and did not turn his mind to the possibility of doing so on this occasion, Judge Johnston concluded Constable Whitaker did not have an objective and credible basis for the belief it was not practicable to obtain a warrant. In other words, his Honour found that the search was unlawful.9 Having made this finding, it followed that the search of Mr Cooper was also unlawful.
[12] Because they would be relevant to the admissibility assessment under s 30 of the Evidence Act 2006, the Judge considered the disputed evidence in light of the other criteria necessary for the warrantless searches under s 20.10
[13] First, although Mr Cooper’s evidence was that he was not wearing, and did not own the “bum-bag” in question, the Judge accepted the officer’s evidence as to what he had observed. The veracity of the officer’s evidence was supported by the fact a methamphetamine pipe of the kind he had seen was actually found in the vehicle.
[14] Second, having concluded that Constable Whitaker did observe the pipe the Judge found the constable had reasonable grounds to suspect an offence under the Misuse of Drugs Act had been committed in the vehicle.
6 Search and Surveillance Act, s 21.
7 Section 20(a).
8 District Court decision, above n 1, at [24] citing Hall v R [2018] NZCA 279, [2019] 2 NZLR 325 at [56].
9 At [29], [32] and [34].
10 At [34].
[15] Third, in terms of the constable’s concern that the glass pipe he had seen would be easily concealed or destroyed, the Judge accepted that Constable Whitaker had seen Ms Cross poke the pipe down to conceal it from his view and that this was clearly an attempt to conceal the pipe. An attempt to conceal was a reasonable basis for a belief that if the search were not conducted quickly the pipe would have been concealed or destroyed.
[16] Having found the searches were both unlawful and unreasonable it followed that the evidence obtained from them was improperly obtained. The Judge then addressed whether the evidence should be excluded under s 30 of the Evidence Act. After addressing the relevant factors he concluded that exclusion would be disproportionate to the impropriety of the search.11
[17] Next, the Judge considered whether the charges had been proved to the requisite standard. Having found on the balance of probabilities (for the purpose of determining the lawfulness of the search) that Mr Cooper was in possession of the methamphetamine pipe the Judge was satisfied beyond reasonable doubt the defendant was in possession of the pipe.12 As to the knife charge the Judge found Mr Cooper’s explanation for needing the knife to cut an apple was “implausible, unconvincing and not credible”. It did not therefore amount to a reasonable excuse.
The appeal
[18] The respondent accepts the evidence obtained through the search of the vehicle was improperly obtained but submits the Judge was correct to have held the evidence was nonetheless admissible under s 30. This part of the appeal turns, therefore, on whether the Judge was correct in his analysis under s 30 of the Evidence Act.
[19]Under s 30:
…
(2)The Judge must—
11 At [52]–[56].
12 At [58]–[59].
(a)find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b)if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.
(3)For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b)the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c)the nature and quality of the improperly obtained evidence:
(d)the seriousness of the offence with which the defendant is charged:
(e)whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f)whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g)whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h)whether there was any urgency in obtaining the improperly obtained evidence.
(4)The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5)For the purposes of this section, evidence is improperly obtained if it is obtained—
(a)in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies;
…
[20] As did Judge Johnston, I address the matters in s 30(3) to which the Court may have regard. I proceed on the basis that the evidence at issue is the pipe (there being no dispute about possession of the knife).
[21] The notes of evidence record that the audio was missing from 1400 – 1443. The notes commence with the continuation of the cross-examination of Constable Whitaker. Mr Cooper had been, as Constable Whitaker put it “entirely co- operative and volunteered information that he had a couple of knives on him”. The knives were given to Constable Whitaker. Mr Cooper was arrested. The vehicle was then searched and the pipe was found during the search. There was no challenge to the officer’s evidence as to the sequence of arrest and search.
The importance of the right breached by the impropriety and the seriousness of the intrusion on the right: s 30(3)(a)
[22] The respondent submits there was only a technical impropriety as the Police could have lawfully searched the vehicle without a warrant under s 84 of the Search and Surveillance Act following the defendant’s arrest. Further, the privacy right attaching to a vehicle is low and Mr Cooper was not the owner of the vehicle.
[23] The Crown made a similar argument in R v Anderson.13 While the Court of Appeal accepted that the right to privacy in relation to a vehicle is “somewhat less than that relating to the person or the home”, it is still a real right.14 Judge Johnston recognised the defendant had a privacy interest to which he was entitled although it was a lesser privacy interest as he was not the owner of the vehicle.15 That view, however, does not reflect the Court of Appeal’s approach. In R v Anderson the Court saw no basis for distinguishing between the driver and passenger. They both had a reasonable right to privacy as they were both lawfully in the vehicle.
[24] There is a further, and fundamental, point. The right infringed was not simply a right to privacy. It was the right to be secure from unreasonable search and seizure. And, as the Court of Appeal recently emphasised, that right is confirmed by s 21 of
13 R v Anderson (2005) 21 CRNZ 393 (CA) at [44].
14 At [46].
15 District Court decision, above n 1, at [53](a).
the New Zealand Bill of Rights Act 1990 (NZBORA).16 Thus, the right infringed is a significant right, one that is protected by NZBORA. In Hamed v R Elias CJ described the s 21 NZBORA right in the following way:17
Section 21 protects personal freedom and dignity from unreasonable and arbitrary State intrusion. Whether such intrusion is unreasonable or arbitrary is objectively assessed according to the standard of what limitation on personal freedom can be “demonstrably justified in a free and democratic society”. The right protects privacy but, more fundamentally, it holds a constitutional balance between the State and citizen by preserving space for individual freedom and protection against unlawful and arbitrary intrusion by State agents. It describes a “right to be let alone”. Police investigation which invades such private space constitutes search within the meaning of s 21. It may be undertaken through remote technology or through in person observation. I therefore take the view, differing from that expressed by Blanchard J, that s 21 guarantees reasonable expectations of privacy from State intrusion.
[25] Mr Campbell also referred to the purpose provisions in the Search and Surveillance Act and the Evidence Act. The purpose of the Search and Surveillance Act is set out in s 5:
5Purpose
The purpose of this Act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values by—
(a) modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies; and
(b) providing rules that recognise the importance of the rights and entitlements affirmed in other enactments, including the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, and the Evidence Act 2006; and
(c) ensuring investigative tools are effective and adequate for law enforcement needs.
[26]The purpose of the Evidence Act is set out at s 6:
6Purpose
The purpose of this Act is to help secure the just determination of proceedings by—
16 Court v R [2020] NZCA 76 at [20].
17 Hamed v R [2011] NZSC 101, [2012] NZLR 305 at [10] (footnotes omitted).
(a) providing for facts to be established by the application of logical rules; and
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests; and
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
[27] As Mr Campbell submitted, these provisions suggest the balancing exercise under s 30 of the Evidence Act is to be approached in a way that is human-rights focused. But it is also apparent from the purpose provisions set out above at [25] and
[26] that other values are also engaged, for instance, law enforcement needs including facilitating the investigative process. Included in the assessment of a proportionate response to the breach is “… the Government interest in adducing the evidence in question”.18 I accept also that a human-rights focus tends to favour exclusion of evidence obtained in breach of the s 21 NZBORA right to be secure against unreasonable search and seizure.
The nature of the impropriety: s 30(3)(b)
[28] I agree with the Judge’s conclusion that the conduct of the officer was not reckless or in bad faith but he nonetheless failed to have regard to the practicality of obtaining a warrant and did not apply for one.
The nature and quality of the evidence: s 30(3)(c)
[29] The appellant’s position is that the evidence has reduced weight in light of the issues raised around the chain of custody, proof of possession, the fact the pipe was seized from the front passenger foot well and the lack of any photographs or property record of the “bum-bag”. I tend to favour the respondent’s submission that the pipe is “highly probative physical evidence” when considered with the constable’s evidence that he saw the pipe poking out of a bag in the appellant’s possession.
18 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [297].
Seriousness of the offence: s 30(3)(d)
[30] I share the Judge’s view that possession of a pipe is not a particularly serious offence. It carries a maximum penalty of one year’s imprisonment. I do not consider the position in relation to the knife because, as I have mentioned, it was not seized pursuant to a search — lawful or otherwise.
Known alternative investigative techniques: s 30(3)(e)
[31] In his report, the constable stated the search power used was s 81. He believed at the stage he carried out the search that s 81 was the correct power but accepted in cross-examination it was not. In those circumstances I think it is unrealistic to suggest that, approaching midnight, the occupants should have been detained in their car pending a warrant.
Remedies alternative to exclusion: s 30(3)(f)
[32] Neither party suggests a remedy for the breach alternative to exclusion of the evidence.
Avoiding physical danger to police or others: s 30(3)(g)
[33] The Judge approached this factor on the basis the officer was unaware of the fact Mr Cooper had a knife in his possession when conducting the warrantless search. But at the stage when the search was carried out, the constable was aware of the knives and Mr Cooper had been arrested.
[34] Again, the evidence that is the subject of the s 30 assessment is the pipe. There is no suggestion there was any apprehension of physical risk or danger at any time, much less when the search was carried out.
Urgency: s 30(3)(h)
[35] The constable had observed an attempt to conceal the pipe. There were three occupants in the car and his evidence was that a glass pipe was readily concealed or destroyed. While he was aware a vehicle could be detained for up to six hours he did not regard this as practicable. At that time of night transport would have to be
organised to get the three occupants to their homes. I share the Judge’s view that there was a moderate degree of urgency to the search.
The balancing process
[36] Two factors tend to favour exclusion. The first is the low-level nature of the offence of possession of a pipe. While the serious nature of an offence tends to favour inclusion of the evidence, in this case the offence of possession of a pipe is low-level offending. That fact points towards exclusion.19
[37] The second factor tending to favour exclusion is the fact that the constable was unaware he had an ability to apply for a warrant by placing a phone call. Given his years of experience it was reasonable to expect that he ought to have been aware of the important facilitative power in s 100(3) whereby an application for a search warrant may be made orally “for example, by telephone call”. It has been said that a “credible system of justice ought not to countenance” the sort of poor police practice that has police conducting searches under mistaken understandings of their powers.20
[38] Standing back, however, I consider that exclusion of the evidence on these bases would not be proportionate to the impropriety. The fact lawful investigatory techniques were available favours admission21 although I do not agree with the respondent that the search could have been conducted under s 84 of the Search and Surveillance Act. Section 84 provides:
84 Warrantless entry and search of vehicle after arrest
A person to whom this subpart applies who has arrested a person and who has reasonable grounds to believe that evidential material relating to the offence for which the person was arrested is in or on a vehicle may enter and search it without a warrant.
[39] The arrest appears to have been in relation to the knives. There is no evidence that the constable searched the vehicle because he had “reasonable grounds for believing that evidential material relating to the offence for which [Mr Cooper] was
19 See for example Rihia v R [2016] NZCA 200 at [22].
20 Kueh v R [2013] NZCA 616 at [52].
21 McGarrett v R [2017] NZCA 204 at [38].
arrested”,22 (the knives) was in the vehicle. On the facts s 84 would not have authorised a warrantless search.
[40] The constable, however, had seen the meth pipe. Section 123 permits an officer who is lawfully in any place or vehicle to seize items in plain view. In this instance the constable had reasonable grounds to believe he could have seized the item under another search power exercisable under the Search and Surveillance Act.23 The constable had reasonable grounds to believe that an offence against the Misuse of Drugs Act was to be, or had been, committed in relation to methamphetamine; and he had reason to believe that if the search was not carried out immediately the glass pipe might be destroyed or concealed.
[41] On two occasions the Court of Appeal has found the balance under s 30 clearly favours admission of evidence obtained from an unlawful search where the error as to the search power was made in good faith in the context of urgency and uninvoked powers to secure the same evidence in fact existed. As in those cases there was no additional restraint on Mr Cooper compared with what would have been the case had the correct power been relied on and no other prejudice to him arose as a result of the wrong power being relied upon.24
[42] In reaching this conclusion I bear in mind the appellant’s emphasis on Lethbridge v New Zealand Police, a decision in which Cull J reviewed the approach of recent authorities to the “warrant preference” rule and its ambit.25 Even if the warrant preference rule is at play in this case, there is an important distinction between the two cases. The warrantless search at issue in Lethbridge involved an officer climbing through a window into the house. He began to look for the weapon he understood to be there (an axe), took photos of items he found then seized the items and left. The impropriety in Lethbridge was plainly more egregious.
[43] I am satisfied that in this case, as in Rihia v R, a credible system of justice does not require exclusion of the evidence in the context I have described at [40] and [41].
22 Search and Surveillance Act, s 84.
23 Section 123(2).
24 Kueh v R, above n 20, at [50]; and Rihia v R [2016] NZCA 200 at [38].
25 Lethbridge v New Zealand Police [2018] NZHC 2240.
[44]I turn now to Mr Cooper’s appeals against conviction.
The appeals against conviction
Charge of possession of methamphetamine pipe
[45] In this part of his appeal Mr Cooper argues that, in his reserved decision, the Judge did not properly address Mr Cooper’s evidence; no credibility finding was made; and the Judge erred in finding facts both on the balance of probabilities and beyond reasonable doubt. Mr Campbell submitted the failure to properly address and assess the evidence has resulted in a miscarriage of justice.26
[46] The Judge’s determination of this charge appears at [57]–[59] of his decision where he makes the following points:
(a)It was accepted that the pipe was one used for smoking methamphetamine.
(b)Having found, on the balance of probabilities for the purposes of determining the lawfulness of the search that Mr Cooper was in possession of the pipe, the Judge said he must decide whether it was established beyond reasonable doubt that Mr Cooper was in possession of the pipe for the purpose of the charge under the Misuse of Drugs Act.
(c)The Judge accepted the evidence of Constable Whitaker that he had observed Mr Cooper in possession of the pipe in a bum bag across his chest. That being consistent with the timeline of events from the request for backup up to the point of the search, the Judge was “satisfied beyond reasonable doubt that the defendant was in possession of the pipe”.27
[47] The respondent submits that as Mr Cooper’s and Constable Whitaker’s accounts were “diametrically opposed” and the Judge accepted Constable Whitaker’s
26 Criminal Procedure Act, s 232(2)(b) and (c).
27 District Court decision, above n 1, at [59].
evidence then “by definition” that involved a complete rejection of the appellant’s account. The respondent stressed the following passage of the Supreme Court decision in Sena v New Zealand Police:28
What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.
[48] The respondent submitted Sena permits a Judge’s reasons to be tacit in some circumstances. I accept that reasons may sometimes be inferred. As the Supreme Court stated in Sena “appellate courts should assess reasons contextually … allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements”.29 Judge Johnston engaged in a meticulous analysis of the factors relevant to the s 30 admissibility point but in dealing with this charge it is not apparent that the Judge engaged with Mr Cooper’s evidence. Mr Cooper’s evidence, broadly, was as follows:
(a)he denied possessing the pipe or knowing it was in the vehicle;
(b)he denied knowing there were any scales or snap lock bags in the vehicle (which were seized during the search);
(c)the front passenger, Ms Cross, did not reach across and poke a methamphetamine pipe down into a chest bag allegedly carried by Mr Cooper; and
(d)he denied carrying or ever possessing a chest bag as he was alleged to have been wearing.
[49] The Judge clearly preferred Constable Whitaker’s evidence. But even where the Judge has a “conclusory credibility preference” the expectation is that there will be a judicial assessment of the evidence, an engagement with the case and, an identification of the critical issues and a considered basis for the conclusion reached.30
28 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [37].
29 At [37].
30 At [36].
[50] That was necessary in this case because there were three individuals in the car. Mr Cooper did not own the car. He was the driver and the pipe was found in the front passenger footwell in a black case. It is significant, I think, that no chest/bum bag was seized or photographed at the scene. The constable had not recorded his observation in his notebook nor in the post-search report. There being no evidence beyond the constable’s as to what he saw, as Mr Campbell put it, combined with Mr Cooper’s evidence a reasonable doubt was raised about the prosecution case and the reliability of the constable’s memory of the incident.
[51] The usual approach on appeal would be for the appeal court to assess the evidence but unfortunately there is no record of Constable Whitaker’s examination- in-chief. As I have mentioned, a 43 minute chunk is missing from the notes of evidence.
[52] The Judge was obliged to record, even briefly, a credibility finding. The decision contains no assessment of the appellant’s evidence or why it was implicitly rejected in whole or in part. While occasionally it will be necessary to infer reasons, where a witness’s evidence has been rejected in its entirety, it is necessary to say why.
[53] Even accepting that only minimal reasons were required in light of the low- level seriousness of the offence,31 an implicit global credibility finding was insufficient.32 The meth pipe was of course found. But there was no evidence of the “bum-bag” from which the pipe was said to be protruding. Mr Cooper’s credibility was not challenged in cross-examination. It was necessary for the Judge to explain how the issues had been resolved: “[r]easoning which consists of a conclusory credibility preference is unlikely to suffice”.33
[54] I am satisfied in the circumstances I have outlined, that the failure to provide any reasons frustrates the assumption underlying s 232(b) of the Criminal Procedure
31 At [37].
32 I say “implicit” because the Judge’s determination of this charge, (set out above at [46]) involves a simple acceptance of the officer’s evidence that he observed the pipe in the bag.
33 Sena v New Zealand Police, above n 28, at [36].
Act and engages s 232(c). As the Supreme Court has stated, “a reasoned judgment is essential to a fair trial”.34
[55] The appellant has made out this ground of appeal. The conviction for possession of a pipe is set aside. I decline to order a new trial. In reaching that decision I take into account the minor nature of the offence and the expense and length of time before a retrial is likely to be heard as a result of the backlog of criminal trials occasioned by the nationwide Covid-19 lockdowns. Furthermore, Mr Cooper will have served almost half of the nine months supervision to which he was sentenced.
Charge of possession of a knife
[56]Mr Cooper’s evidence was that:
(a)he had used the knife to cut weed mat earlier in the day at his address and then later to cut an apple;
(b)he had holes in his teeth so he needed to cut the apple into bite sized pieces;
(c)he wiped the knife on his tee-shirt before putting it into its sheath; and
(d)he did not return to the house to leave it there as he couldn’t “be bothered walking back up to the house” because he was at the car by the time he had eaten the apple.
[57] The Judge found that Mr Cooper’s excuse was “implausible, unconvincing and not credible. It does not amount to a reasonable excuse.”35 Mr Cooper provided the evidential basis for his reasonable excuse but it appears from the Judge’s reasoning that he regarded Mr Cooper as having to “prove” his excuse to a higher standard than an “evidential basis”. In fact, once Mr Cooper had provided an evidential basis for a reasonable excuse, the burden passed to the prosecution to prove beyond reasonable
34 At [36].
35 District Court decision, above n 1, at [65].
doubt that Mr Cooper did not have a reasonable excuse.36 In my view the prosecution was unable to do so for the following reasons.
[58] With respect to the learned Judge I do not share the view he has taken of the evidence. First, Mr Cooper’s account seems to have been rejected, in part, because the Judge could see no time when Mr Cooper could have cut the apple as he was driving. But Mr Cooper was clear when he was cross-examined on this point:
A.Just for cutting the weed mat, as well as, as we were leaving I used it to, what do you call it, cut an apple, to smaller bite sized pieces.
Q. But you were driving?
A. Yes.
Q.Okay so you're driving along the road cutting up this apple into bite sized pieces?
A. No, I had done that before we left.
Q. So before you got into the car?
A. Correct.
Q. In the house?
A. No, in the driveway.
Q. In the driveway? Okay but at your home address?
A. Yes.
[59] Thus, Mr Cooper explained where he was when he cut up the apple. Mr Cooper’s evidence was recorded inaccurately in the District Court decision. Mr Cooper did not say he carried the “knife with him so that it was later available to cut an apple”.37
[60] This impression of Mr Cooper’s evidence possibly affected the way in which the Judge viewed Mr Cooper’s other explanations. The Judge said there was no corroborating evidence of apples or leftover pieces of apple in the vehicle or any apple residue found on the knife. But why would there be leftover pieces of apple if, as
36 See R v Gorrie [2007] NZCA 144, [2008] 3 NZLR 620; and R v Rangi [1992] 1 NZLR 385 (CA).
37 At [62].
Mr Cooper said, he had finished eating it by the time he left the address? And the knife was not tested for any kind of residue.
[61] The Judge also asserted that it did not seem reasonable to take a knife of this size and type to cut an apple — without saying why. I was shown a photograph of the knife alongside a biro. The blade and length of the biro were comparable. It seems to me perfectly reasonable to expect that people will cut apples with knives having even larger blades. I make the further observation that the knife was not so large that Mr Cooper was unable to be seated, driving the car with the knife in his trousers.
[62] The reasonableness of Mr Cooper’s excuse is to be judged in light of the particular circumstances.38 Mr Cooper explained he had been using the knife as a tool earlier in the day and simply kept it with him instead of returning it to the house when he left to drop his friends home. Mr Cooper estimated the journey would be no more than half an hour. In the circumstances, Mr Cooper’s reasons were capable of constituting a reasonable excuse.
[63] For the reasons set out at [58]–[62] the respondent has not disproved Mr Cooper’s excuse. It follows the conviction was entered in error.
Disposition
[64] The appeals against the convictions on both charges are allowed. The convictions are set aside and acquittals are to be entered.
Karen Clark J
Solicitors:
Public Defence Service, Wellington for Appellant Crown Solicitor, Wellington for Respondent
38 Police v Wineera (1989) 4 CRNZ 449 (HC); and R v Hyde (1990) 7 CRNZ 366 (HC).
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