DAVID ALBERT ALFRED GOLDSACK AND COMMISSIONER OF NEW ZEALAND POLICE
[2024] NZHC 3142
•25 October 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-167
[2024] NZHC 3142
BETWEEN DAVID ALBERT ALFRED GOLDSACK
Appellant
AND
COMMISSIONER OF NEW ZEALAND POLICE
Respondent
Hearing: 24 October 2024 Appearances:
D Iremonger for Appellant
B W D Alexander for Respondent
Judgment:
25 October 2024
JUDGMENT OF CHURCHMAN J
Introduction
[1] Following a Judge-alone trial in the Christchurch District Court, on 6 June 2024 the appellant, Mr Goldsack, was convicted1 of possession of a knife in a public place without reasonable excuse or lawful authority.2
[2] The appellant now appeals his conviction on the basis that there has been a miscarriage of justice because further evidence has become available since trial. There has been no formal application for the admission of further evidence (a photograph of property returned to Mr Goldsack after his arrest) but, after hearing from counsel, I agreed to admit it.3
1 New Zealand Police v Goldsack [2024] NZDC 15720.
2 Crimes Act 1961, s 202A(4)(a)—maximum penalty of three years’ imprisonment.
3 Section 335(2)(c) of the Criminal Procedure Act 2011.
GOLDSACK v COMMISSIONER OF NEW ZEALAND POLICE [2024] NZHC 3142 [25 October 2024]
Background
[3] At around 3.35 am on Friday 17 February 2023 Mr Goldsack was driving a Nissan Primera on Highstead Road in Bishopdale, Christchurch. The vehicle was stopped by police and impounded on an unrelated matter.
[4] During an inventory search of the vehicle, a knife was located in the driver’s door pock, with another large knife located in the passenger footwell.
[5] The police decided to invoke their powers under the Search and Surveillance Act, and after conducting a personal search of Mr Goldsack located a tomahawk in the pocket of some shorts Mr Goldsack had been wearing under some tracksuit pants.
[6] The summary of facts records that when asked to explain the presence of the tomahawk Mr Goldsack stated he just had the tomahawk and mentioned Christchurch being a dangerous place.
District Court Decision
[7] In her decision, District Court Judge Elkin determined the prosecution had not proved beyond reasonable doubt that Mr Goldsack knew the knives were in the vehicle, given the vehicle was not his, with Mr Goldsack’s evidence being he had borrowed it.
[8] The Judge was satisfied the tomahawk was properly characterised as a knife, given the dictionary definition of a knife was a sharp blade attached to a handle for cutting, and the finding in Kearns v R that there were good policy reasons to construe knives as including any sharp edged implement capable of being used against others as a cutting or stabbing weapon.4
[9] The Judge also found it clear from the evidence that Mr Goldsack had the tomahawk on his person when arrested and knew that to be the case, with the remaining issue to be determined being whether or not Mr Goldsack had a reasonable excuse to have the knife on him when arrested.
4 Kearns v R [2017] NZCA 51.
[10] The Judge noted that Mr Goldsack’s evidence at trial differed from what he had said when arrested and was that he had been out gathering paua at Sumner Beach prior to being stopped by the police and had just delivered some paua to his cousin on Riccarton Road. Mr Goldsack’s evidence was that he had been diving and fishing with two others, and that they had already left him. He claimed that when he was stopped he had 20 live paua in ziplock bags, dive gear, fishing gear and several wetsuits in the car. The Judge also noted that all three police officers who gave evidence denied or did not recall seeing any of those things in the course of the vehicle search.
[11] The Judge considered the small snaplock bag visible in one of the photographs to not seem large enough to hold the number of paua alleged. She noted there was also no evidence in the photos of the other items alleged to have been in the car. The Judge also remarked that there was no evidence of paua in the property records of Mr Goldsack on his release, despite his evidence that the paua were given back to him when he was bailed and were eaten later that day.
[12] In the decision it was also noted that Constable Cosgrove’s evidence was Mr Goldsack was asked a number of questions at the time of the arrest, with his response to a question why he had the tomahawk being “I dunno I just did” and that in a general chat with Constable Cosgrove, Mr Goldsack mentioned Christchurch as being a dangerous place, a comment Mr Goldsack did not deny making. The Judge also highlighted the fact Mr Goldsack’s written statement dated 23 February 2023, being within a week of the arrest, records Mr Goldsack said nothing about paua or diving.
[13] Her honour found it was unlikely that, if there had been live paua and other diving related gear in the car, it would have been missed in the search or that an explanation given to that effect would have been ignored by police, especially when another explanation was recorded. The Judge also found it very unlikely the explanation about paua gathering would have been given alongside the explanation that Mr Goldsack did not know why he had the tomahawk. The contentions that Mr Goldsack was delivering paua at three in the morning and that he took 20 live paua into custody with him and was given them back with no record of it were also found to be unlikely.
[14] Based on these findings the Judge rejected Mr Goldsack’s evidence as to the reason for his possession of the tomahawk. Her honour considered the other elements of the charge to have been proved by the prosecution, and so in the absence of a reasonable excuse, found Mr Goldsack guilty of having a knife with him in a public place without reasonable excuse or lawful authority.
Approach to appeal
[15] A first appeal against conviction is governed by s 232 of the Criminal Procedure Act 2011. The Court must allow an appeal if the Court is satisfied that, having regard to the evidence, the verdict was unreasonable, or a miscarriage of justice has occurred for any reason.5 The Court must dismiss the appeal in any other case.6 If the appeal is allowed, the Court must set aside the conviction.7 The Court may direct that a judgment of acquittal be entered, direct that a new trial be held, substitute a conviction for a different offence or make any other order it considers justice requires.8
[16] A “miscarriage of justice” is defined in s 232(4) as “any error, irregularity, or occurrence in or in relation to or affecting the trial that— (a) has created a real risk that the outcome of the trial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity”.
Submissions
Appellant’s submissions
[17] Mr Iremonger for the appellant responsibly submitted that the appeal turns on whether the photo admitted on appeal can be interpreted as showing a snaplock bag of paua.
[18] Mr Iremonger notes the trial prosecutor accepted that if Mr Goldsack had the tomahawk for the purpose of gathering paua, that would constitute a reasonable excuse. He submits that if the photograph had been available as evidence on the trial
5 Criminal Procedure Act 2011, s 232(2)(a) and (c).
6 Section 232(3).
7 Section 233(2).
8 Section 233(3).
date, the evidence of the attending officers could have been called into question more strenuously than he was able to at trial. He also says that the fact the evidence challenges the officer’s recollection of the possession of paua casts doubt on their recollection of Mr Goldsack’s excuse for having the tomahawk on him.
Respondent’s submissions
[19] Mr Alexander for the Crown submits that the photograph does not depict a snap lock bag containing paua.
[20] Mr Alexander submits there remains no evidence, except for that of the Mr Goldsack that he took 20 live paua into custody, with none of the police officers recalling any paua or dive gear in the vehicle, and Mr Goldsack’s explanation at trial seeming unlikely. He submits the Court can be sure of Mr Goldsack’s guilt, and states there has been no miscarriage of justice, so the appeal should be dismissed.
Analysis
[21] On the evidence before the Court the findings reached by the Judge are unassailable. The sole issue is whether the photograph changes that position.
[22]I have concluded that it does not.
[23] Although there is a plastic bag at the centre of the photograph, its contents are unclear, and it is clearly not large enough to contain the 20 paua alleged. I note also that none of the accompanying diving and fishing equipment that Mr Goldsack claimed were in the car are present in the photo either.
[24] I am not satisfied that the appellant has established that there is a real risk of a miscarriage of justice in the findings of the District Court Judge. The Judge correctly concluded that the evidence of Mr Goldsack was unconvincing and conflicted with that of the Police officers as well as his earlier written statement, and his response to Constable Cosgrove recorded in his notes that he did not know he possessed the tomahawk.
Conclusion
[25]The appeal is dismissed.
Churchman J
Solicitors:
Crown Solicitor’s Office, Christchurch for Respondent
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