King v Police
[2016] NZHC 977
•16 May 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-65 [2016] NZHC 977
BETWEEN REECE KING
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 26 April 2016 Counsel:
T J Darby for Appellant
N Dobbs for RespondentJudgment:
16 May 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 16 May 2016 at 11.30 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Point Chevalier Law, Point Chevalier, Auckland
Crown Solicitor, Manukau
KING v NEW ZEALAND POLICE [2016] NZHC 977 [16 May 2016]
[1] Mr King was charged with being in possession of a knife in a public place without a reasonable excuse. Following a defended hearing on 31 July 2015, Judge Simpson found the charge proved.1 At a later hearing she refused Mr King’s application for a discharge without conviction, and sentenced him to come up for sentence if called upon. Mr King appeals against his conviction and the Judge’s refusal to discharge him without conviction.
Factual background
[2] At the defended hearing, Mr King and his grandmother gave evidence to the effect that he suffers from a number of medical ailments including foetal alcohol syndrome, aspergers syndrome, post-traumatic stress syndrome and epilepsy. He also suffers from a developmental delay which leads to him behaving immaturely.
[3] Mr King said that whenever he goes out, he is picked on by others and that this has caused him to fear for his safety. So he carried a knife for his own protection.
[4] Mr King said that on the day of the offending, 11 November 2014, he visited his partner Ms Pio at her home in Papakura. Some alcohol was consumed and it appears there was an argument. Mr King became upset at Ms Pio’s consumption of alcohol as she was pregnant with their child. She was drinking Bourbon and Cola. He did not want his child to suffer from foetal alcohol syndrome as he does. There was an argument. Others in the house told him to leave Ms Pio alone. They seemingly were not concerned about her drinking alcohol while pregnant.
[5] Mr King left Ms Pio’s home and went for a walk to a lookout where he sat for approximately 30 minutes. Before he left Ms Pio’s home, he removed a knife from the kitchen.
[6] Then Mr King decided to return to Ms Pio’s home and to confront her again
about the potential harm her behaviour posed to their child. He found an empty one litre vodka bottle lying on the footpath near to her home. He recognised the bottle as
1 Summary Offences Act 1981, s 13A.
one of the bottles the persons partying at Ms Pio’s house had used. He said he saw the empty bottle as a symbol of what was going on in Ms Pio’s house. He was upset. He kicked it several times, causing the bottle to break so that shards of glass were scattered across the road.
[7] A woman in a neighbouring house, Ms Karaka, saw Mr King break the bottle.2 She was concerned about the risk to safety and told Mr King to pick up the glass. Mr King did not take kindly to this. The exact words which followed are unclear but it is clear that Mr King called Ms Karaka “a bitch” and threatened to “fuck her up”. He then took a knife from his pants. Ms Karaka went back into her house and Mr King continued on to Ms Pio’s home. The Police were called, which
resulted in Mr King being apprehended and charged with possession of a knife under s 13A of the Summary Offences Act 1981.3
[8] When Mr King was asked by Police why he presented the knife to Ms Karaka, he said that he thought she had been at the party earlier, and that he might receive some harm at her hands. Subsequent photographs of the knife indicate that it was an ordinary kitchen knife with a black wooden or plastic handle, about 30 centimetres long with a 20 centimetre long blade. When the Police arrived there was a fight going on at Ms Pio’s home. Mr King was found by the Police being held against a wall, and he had “quite a bit of blood on his face”. The Police arrested Mr King and two other persons.
[9] Section 13A provides:
13A Possession of knives
(1) Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in any public place, without reasonable excuse, has any knife in his or her possession.
(2) On convicting any person of an offence against subsection (1), the court may order that the knife be forfeited to the Crown.
2 Ms Karaka lived at 2 Lansdown Place and Ms Pio lived at 6 Lansdown Place.
3 He was also charged with committing an offence under s 306 of the Crimes Act 1961, which was dismissed by Judge Simpson.
Decision regarding conviction
[10] Judge Simpson found that there was no “good excuse” for Mr King having the knife and on that basis she found the charge under the Summary Offences Act was proved. The Judge approached the question of whether there was a reasonable excuse for Mr King to have the knife in his possession from the perspective of whether Mr King had established such an excuse.
Grounds of Appeal
[11] Mr King appeals his conviction on the ground that Judge Simpson misdirected herself regarding the element of “without reasonable excuse” as to both burden of proof and standard of proof, and consequently erred in her finding that the charge against Mr King was proved.
[12] Mr King also appeals against the refusal to discharge him without conviction on the ground that Judge Simpson misdirected herself regarding the need for specific consequences to be established in order to grant a discharge without conviction.
Appellant’s submissions
[13] In respect of the appeal against conviction Mr Darby, for Mr King, submits that it is well established law that the element of “without reasonable excuse” must be proved by the prosecution to a standard of “beyond reasonable doubt” once an evidential burden is raised. Instead, Mr Darby argues, Judge Simpson treated the element of “without reasonable excuse” as being a defence which needed to be
established by the defendant on the balance of probabilities.4 Mr Darby submits that
it would be improper and unsafe to conclude that the same outcome would have resulted if the correct test had been applied and, therefore, that the conviction should
be quashed.
4 However Mr Darby acknowledges that he bears an element of responsibility for this error, since he made erroneous submissions at the defended hearing to the effect that the element of “without reasonable excuse” was something that needed to be proved by the defence on the balance of probabilities.
Respondent’s submissions
[14] Mr Dobbs, for the respondent, accepts that Judge Simpson misdirected herself on the correct burden and standard of proof. However, he submits that the conviction should stand, on the basis that the Judge would have reached the same conclusion if the correct test had been applied.
[15] Mr Dobbs submits that the reasonableness of an excuse must be judged in the light of the particular circumstances. Where the excuse offered is self-defence, Mr Dobbs submits that the prosecutor must show either:
(a) That it was not reasonable for the defendant to have it with him or her for defensive purposes at all; or
(b)That the defendant intended to use the weapon in a way which went beyond legitimate self-defence.
[16] Mr Dobbs argues that there was no specific or imminent threat to Mr King outside his partner’s address. Although Mr King stated in evidence that he felt threatened by Ms Pio’s friends, Mr Dobbs points to Mr King’s decision to return to that address after his walk to the lookout rather than him going home. Mr Dobbs contends that there was no evidence that any of the people at Ms Pio’s address were armed with a weapon. Under those circumstances, Mr Dobbs submits, it was not reasonable for Mr King to have the knife in his possession. Mr Dobbs also disputes that Mr King only intended to use the weapon in legitimate self-defence. He notes that Ms Karaka did not pose any threat to Mr King. Rather, Mr Dobbs submits that Mr King was willing to produce the knife and make threats without provocation.
[17] Accordingly, Mr Dobbs submits that even though Judge Simpson misdirected herself on the burden and standard of proof, the outcome would have been the same. Mr King did not have a ‘reasonable excuse’ for being in possession of the knife and would have been found guilty of the charge.
Appeal against conviction
[18] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge alone trial.
[19] Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court 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”:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means 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.
(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[20] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of
justice.5 The error or irregularity must lead to either of the consequences listed in s
232(4)(a) or (b).
[21] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”6 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.7
[22] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.8 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.9 Courts have held that an unfair trial can also exist when a defect in the trial causes an unacceptable appearance of unfairness without actual prejudice to the defendant.10
Analysis
[23] Both parties accept that the learned Judge erred in her approach to determining whether Mr King had committed the offence of possessing a knife under s 13A of the Summary Offences Act.
[24] The Criminal Procedure Act has repealed s 67(8) of the Summary
Proceedings Act 1957 and there is no equivalent provision in the new legislation.11
5 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
6 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
7 At [110].
8 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
9 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R, above n 8, at [38].
10 See James v R [2011] NZCA 219, [2012] 1 NZLR 353 at [29], where the failure to address the juror’s capacity meant that there was a risk of a miscarriage of justice even though the verdict would have stood if the juror had been discharged.
11 Section 67(8) of the Summary Proceedings Act provided that where a charge was laid summarily by information in the District Court any exception, exemption, proviso, excuse or qualification
It follows that once there was raised on the evidence an issue about whether Mr King had lawful authority or a reasonable excuse for having a knife in his possession it was for the prosecution to prove beyond reasonable doubt that such authority or excuse did not exist.
[25] Mr King claimed that he carried the knife with him for personal protection, as he was afraid that he would be assaulted. Proof of a defendant’s possession of a knife for personal protection without more will usually enable the prosecution to prove the defendant had no lawful authority or reasonable excuse for such possession. A reasonable excuse for possession of a knife in a public place will usually only arise when there is evidence of an imminent or attack or threat that
affects the particular circumstances.12
[26] However, it seems to me that the result of any enquiry to exclude the existence of a reasonable excuse will be fact specific. In the present case the Judge’s misapplication of the burden of proof will have meant that her enquiry proceeded from the wrong perspective. This may have affected the outcome that she reached.
[27] Also relevant here is the point in time at which the assessment regarding the exclusion of a reasonable excuse is made. When Mr King left Ms Pio’s home with the knife in his possession he was moving away from the argument that had developed between him on the one hand and Ms Pio and her friends on the other. It is difficult to see how any threat could be imminent then. However, when Mr King returned to Ms Pio’s home, his evidence was that he had decided to go back and continue remonstrating with her about her consumption of alcohol while pregnant, despite how this might be received by those present at her home. Given Ms Pio’s reaction and the reaction of her friends when he first raised his concern about her consumption of alcohol he may well have reasonably expected that raising the same concern again could present a risk of harm or a threat of harm to himself. In this regard I note that when he did return to Ms Pio’s home ultimately a fight broke out
between him and others at the house, which resulted in him suffering some visible
may be proved by the defendant but need not be negatived by the informant. This lead to a different burden depending upon whether a charge was laid summarily or indictably; see discussion in R v Rangi [1992] 1 NZLR 385 (CA) at 387.
12 Watts v Police (1984) 1 CRNZ 227 (HC) at 229.
facial injury. Therefore, when Mr King encountered Ms Karaka in proximity to Ms Pio’s home, his apprehension about what might occur when he encountered Ms Pio and her friends again might well be enough to create a reasonable doubt when it came to the prosecution excluding whether Mr King had a reasonable excuse for possession of the knife or not.
[28] Whilst Mr King’s encounter with Ms Karaka may have appeared threatening to her, the charge under s 13A is focussed on Mr King’s possession of a knife and not the use he might appear to have made of it when he encountered Ms Karaka. It is the circumstances of his possession of the knife that must be assessed.
[29] As matters stand it seems to me that when Mr King first left Ms Pio’s home there was little in the way of imminent harm or threat of harm to warrant Mr King having possession of a knife for self protection. Whether that changed on his return to Ms Pio’s home to such an extent that the prosecution could no longer discharge the burden of proof when it came to excluding the existence of reasonable excuse is another matter.13 The point in time that the prosecution relied on to prove the offence was when Mr King encountered Ms Karaka, which was the same time that he was practically outside Ms Pio’s home. At that particular time Mr King’s belief regarding the risk of harm he faced if he resumed his remonstrations about Ms Pio’s
alcohol consumption might be enough to raise a reasonable doubt that the prosecution could not exclude self protection being a reasonable excuse for possession of a knife in those circumstances. This is something that cannot be determined by this Court on appeal. The answer is to be found through a court of first instance hearing the evidence and reaching its determination in accordance with the correct legal tests.
[30] I am satisfied, therefore, that the Judge’s application of the wrong legal test meets the threshold for this Court finding that the conviction is unsafe. I propose to allow the appeal and to remit the matter back to the District Court for re-hearing. It
follows that there is no need to consider the refusal to discharge without conviction.
13 The question of lawful authority is not relevant in this case.
Result
[31] The appeal is allowed and the conviction entered in the District Court is set aside.
[32] The matter is remitted back to the District Court for re-hearing in accordance with the law as I have found it to be.
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