L v Police HC Auckland Cri-2004-404-77a

[2006] NZHC 476

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-404-0077A

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 February 2006

Appearances: B J Hart for the Appellant

Ms A R Longdill for the Respondent

Judgment:      9 May 2006

JUDGMENT OF FRATER J

Solicitors:    B J Hart P O Box 47016 Ponsonby for the Appellant

Meredith Connell P O Box 2213 Auckland for the Respondent

L V POLICE HC AK CRI-2004-404-0077A 9 May 2006

Introduction

[1]      The  basis  for  this  appeal  against  conviction  is  that  the  record  of  the District Court  Judge’s  judgment,  finding  the  charges  proven,  has  been  lost  and cannot be found.

[2]      Initially,  the  appeal  covered  all  four  convictions  entered  by  His  Honour Judge Recordon following defended hearings in the District Court at Auckland on charges arising out of two separate incidents.

[3]      After the first hearing, on 1 and 2 December 2003, the Judge found Mr L   guilty of one charge of possession of explosives (ammunition) and dismissed another of possession of a pistol.  Both charges were laid under s 45(1) of the Arms Act 1983 and arose out of a search of the appellant’s property in Epsom on 26 November

2002, following the execution of a search warrant.

[4]      At the second hearing, which started on the afternoon of 2 December, and ended immediately after the conclusion of the first, with the delivery of an oral judgment on 5 December, Mr L   was found guilty of three offences:

•    Possession of offensive weapons (knives) in a public place contrary to s 202A(4)(a) of the Crimes Act 1961;

and two against s 51 of the Arms Act:

•    Possession of a pistol;  and

•    Possession of ammunition.

[5]      These charges arose out of  an episode in which Mr L   was  found in possession of four knives, a pistol and ammunition at a service station on the corner of K’ Rd and Ponsonby Rd, in Newton in the early hours of the morning of 2 April

2003.

[6]      Mr L   was not sentenced on any of the charges until 11 February 2004.  In the face of submissions from counsel for the prosecution that custodial sentences should be imposed on all four charges, the Judge sentenced Mr L   to concurrent sentences of 280 hours community work.  In addition, on the charge of possessing a pistol, he was sentenced to 12 months supervision, with special conditions that he undertake alcohol and drug counselling programmes, including residential rehabilitation if considered necessary, as directed by his probation officer.  He was also given a final warning.

[7]      On 9 March the Crown filed a notice of appeal against sentence on  the grounds that those imposed were manifestly inadequate and wrong in principal. Mr L   responded by appealing against the convictions entered on both 2 and

5 December.

[8]      In accordance with the standard processes, the District Court was then asked to provide transcripts of the hearings, the Judge’s decisions and sentencing notes.

[9]      After much searching, it became clear that the record of the Judge’s oral decision, given on 5 December 2003, had been irretrievably lost.

[10]     Fortunately,  however,  we  are  not  totally  bereft  of  relevant  material. District Court  staff  have  produced  transcripts  of  the  hearings  on  1,  2,  3  and

4 December  2003,  including  all  interlocutory  rulings,  and  the  Judge’s  decision delivered on 2 December.  They have also transcribed the Judge’s sentencing notes of 11 February.

[11]     In addition, I have a typewritten transcript of handwritten notes made by Mr L  ’s then counsel, Mr Foley, on 5 December 2003 when Judge Recordon delivered his decision on the second group of charges.

Stance taken on behalf of Mr L 

[12]     In the circumstances, Mr Hart who now acts for Mr L  :

a)       properly  abandoned  that  part  of  the  appeal  which  related  to  the conviction   for   possession   of   ammunition   found   following   the execution of the search warrant on 26 November 2002;  and

b)argued  that,  in  the absence  of  the  judgment  it  was  impossible  to ascertain  whether  the  Judge  correctly  addressed  and/or  directed himself on the issues of reasonable excuse and burden of proof under:

i)        s 202A of the Crimes Act 1961;  or

ii)in  relation  to  the  affirmative  defence  of  lawful  excuse advanced by Mr L   in relation to the two charges laid under s 51 of the Arms Act;

c)       submitted the only proper  course was to allow Mr L  ’s appeal against conviction on the charges relating to the events of 2 April

2003 and remit them back to the District Court for rehearing before a different Judge.

Approach to adopt when judgment inadequate or unavailable

[13]     There is no one correct approach to take where the reasons for the decision appealed against are either inadequate or unavailable.

[14]     This issue was considered by the Court of Appeal in R v Jefferies (1999) 17

CRNZ 128.  The decision of the Justices of the Peace under appeal in that case was one sentence long.

[15]     In the High Court, William Young J concluded that, given the comparatively minor nature of the proceedings (driving over 100 kph in a restricted zone) and the expense and inconvenience which it would have caused all parties, it would be inappropriate to remit the case to the District Court for rehearing.  Instead, he dealt with the matter on the basis of the notes of evidence and by rehearing argument on the issues which Mr Jeffries had raised in the District Court.   Having done so, he concluded that the prosecution case was overwhelming and dismissed the appeal.

[16]     On appeal to the Court of Appeal this approach was endorsed.   The Court found that William Young J had exercised his jurisdiction under s 121 of the Summary Proceedings Act 1957 appropriately and in a way which met the interests of justice in the particular circumstances.

[17]     Richardson P, delivering the judgment of the Court said (at [22]):

It follows that faced with an absence or insufficiency of reasons for the decision  of  the  District  Court  the  High  Court  may,  on  hearing  and determining the appeal, adopt whichever of the statutory courses it considers feasible and best calculated to meet the interests of justice in the particular circumstances, those interests including Bill of Rights considerations.   The statutory options are:

(1) hearing and determining the appeal on the material before the court, including rehearing any part of the evidence and receiving further evidence;

(2) directing the District Court to provide adequate and proper reasons; (3) remitting the matter to the District Court for rehearing; and

(4) simply quashing the conviction.

[18]     Further guidance can be found in the Court of Appeal judgments in R v Hooker  [1998] 3 NZLR 562, R  v  Taito  [2005] 2 NZLR 815 (upheld by the Supreme Court: see Taito  v  R  [2005]  NZSC  36)  and  R  v  Amosa  CA328/98

15 December  1998.     All  these  cases  concerned  appeals  from  convictions  in circumstances where the record of the trial Judge’s summing up had been lost or was unavailable.

[19]     In R v Hooker at 565, the Court of Appeal endorsed the following principles enunciated by the Court in R v Symes CA214/95 8 November 1995 at 3-4:

(1)... the mere fact that there is no, or no adequate record of the trial is not   in   itself   a   ground   for   finding   a   conviction   unsafe   or unsatisfactory;

(2)... before an appellant may claim that result he [or she] must be able to show an irregularity at the trial or a misdirection in the summing up; and

(3)... ‘where however there is reason to suspect there is something wrong in connection with the hearing of  a  case, the absence or insufficiency of a proper shorthand note may be material’.

[20]     The particular features of the trial in Hooker which raised sufficient doubt about the Judge’s summing up to cause the Court, in the absence of a record of what he/she actually said, to conclude that a conviction was unsafe and order a new trial were that:

a)       There was no reliable record of what the Judge had told the jury – both counsel had taken notes but they were incomplete and not fully consistent with each other;

b)Following the Judge’s summing up and after the jury had retired, defence counsel raised concerns over what the Judge had said to the jury;  and

c)       After an hour of deliberations the jury returned with a question for the

Judge specifically relating to the problematic issue.

[21]     But in R v Taito, where the Court found “no reason to suppose” that the Judge’s summing up had been inappropriate, the Court of Appeal dismissed the absence of a summing up as a ground of appeal.   While agreeing with defence counsel that a transcript of it may have provided “more fertile ground” on which to base “additional challenges” to the trial, the Court, citing R v Amosa, reiterated that that consideration does not, of itself, warrant allowing an appeal.

[22]     This approach was confirmed by the Supreme Court in Taito v R supra at [5]

where the Court said:

The Court of Appeal dealt with the point concerning the absence of a record of the summing-up by applying settled law to the subject.  No complaint was made about the summing-up on the first appeal, when the trial was relatively recent.   In the event, nothing more than speculation supports the suggestion that there may have been some error or  omission in  the summing-up. ... There is no tenable basis for finding that Mr Taito’s conviction should be quashed simply because no copy of the summing- up was available. (emphasis added)

Onus and/or standard of proof

[23]     In this case the alleged error or omission in the judgment has been belatedly identified as the manner in which the Judge directed himself and/or applied the onus and standard of proof in each case.

[24]     Under  s  51(2)  of  the  Arms  Act  1983  the  normal  onus  is  reversed. Subsection (2) states:

In any prosecution for an offence against subsection (1) of this section, in which it is proved that the defendant was carrying in any public place or had in his possession in any public place any firearm, airgun, pistol, ammunition, explosive, or restricted weapon, the burden of proving the existence of some lawful purpose shall lie on the defendant. (emphasis added)

[25]     The standard of proof for proving a lawful purpose is the civil standard of the balance of probabilities.

[26]     Section 202A(4)(a) of the Crimes Act does not address whose responsibility it is to prove whether or not the defendant had a reasonable excuse for having the weapons.

[27]     Whether or not Judge Recordon did, in fact err, is a matter to be determined on the basis of the secondary evidence.

[28]     Again, there are no hard and fast rules as to what is required.  In some cases it may not be necessary for the Judge to mention the point at all.

[29]     One such case was Vercoe v Police AP10/01 6 June 2002.  The appellant in that case was convicted by Justices of the Peace for careless driving.   One of the arguments on appeal was that the Justices’ decision was defective because they had not reminded themselves of the onus and standard of proof to be applied.  Neazor J found that the decision was adequate.   In the circumstances all that was required were findings of fact and opinion;  no elaborate analysis was needed.  He recognised, however, that more might be required in other cases, saying at [34]:

...  the  onus  and  standard  of  proof.    There  may  be  cases  where  that  is necessary or advisable, for example in a case such as R v Atkinson [1984] 2

NZLR  381  where  the  issue  could  not  be  resolved  simply  by  choosing

between the evidence of one side and the other, there being an issue whether the remaining evidence was sufficient.  In other cases, particularly when the same Court is hearing more than one case in a day, to refer to the burden of proof each time could give the appearance of a routine incantation rather than an  identification  of  issues.    Williamson  J  adverted  to  the  point  in McNicholl v Police (1989) 5 CRNZ 82-83:

The case presently being considered is one in which detailed reasons are given.  These reasons are expressed in relation to credibility.    They do  not expressly  say  that  the  standard being applied is one of proof beyond reasonable doubt but such an express statement cannot be required on every occasion upon which admissibility of a statement is determined.  Some principles of law become so clear that to continually express them is unnecessary.  There is certainly nothing in the judgment given by the District Court Judge which is contrary to or inconsistent with application of such a standard.  Indeed the effect of the findings which he made and the expressions which he uses in the context of the circumstances of this particular case are sufficient in my view to make it apparent that he was in fact applying a standard of beyond reasonable doubt.

[30]     Another  case  in  which  similar  comments  are  made  is  Lolohea  v  Police

AP16/01 19 June 2001 where Priestly J said at [15]:

A District Court Judge sitting in summary jurisdiction who is faced with conflicting evidence of the type we have here, does not in my judgment need to give him or herself directions on the burden of proof.  The District Court Judges by training and temperament have the necessary legal knowledge and forensic skills to grapple with the criminal onus without having to remind themselves about it during the course of giving decisions.

The secondary evidence

[31]     The Crown case was that the available secondary evidence shows that the Judge correctly identified and applied the relevant onus and standard of proof in each case.

[32]     In making this submission they relied primarily upon Mr Foley’s notes made at the time and Judge Recordon’s sentencing notes made three months later.

[33]     Mr Hart did not dispute that this evidence was admissible for the purposes of reconstructing the missing judgment:  R v Thompson [2001] 1 NZLR 129.

[34]     But, without explaining why, asserted that the notes of evidence could not constitute secondary evidence.  Alternatively, he said that these notes were incapable of throwing any light on the legal reasoning and/or legal factual findings arrived at by the Judge.

Notes of evidence

[35]     I do not agree.   In my view they provide a useful context for the Judge’s decision.

[36]     Three Police Officers, Constables Bayley, McKenzie-Potter and Richards, gave evidence for the prosecution.  What they said was largely undisputed.  It was that,  at  about  1.00  am  on  2  April  2003,  Mr  L    was  apprehended  at  the Mobil Service Station on the corner of K’ Rd and Ponsonby Rd, Newton, in the company of two gang members.

[37]     Mr L   readily admitted having the various weapons and arms on him. Some, like the large knife and a scabbard attached to a belt on his back were obvious from the start;  when asked whether he had any more he produced a pocket knife attached to a chain.   He also volunteered that he had a pistol in his shin pocket which, on inspection, was found to be loaded.  Later, when he was searched at the Police Station, the officers found two other pocket knives:  one in his trouser pocket, another in his jacket, and another bullet, of the same calibre as the pistol, in his trousers.

[38]     While, at the outset, there was some issue about whether or not the pistol was real, when he gave evidence Mr L   readily conceded that it was, as was the ammunition.

[39]     The focus of the hearing was whether Mr L   had the pistol, ammunition and knives for any lawful purpose.  He gave an elaborate and lengthy explanation for having them.

[40]     By way of background he told how had been a successful property developer, how he had come in contact with gang members and had employed them as workers on his construction sites.  He became friends with them on a social basis and began consuming drugs, including methamphetamine, with them.  However, at some stage, he got into a dispute with the gangs and was soon the subject of repeated and violent attacks and reprisals.  These included the thefts of valuable motor vehicles, physical assaults on him and demands for substantial sums of money by way of protection.

[41]     He said this particular episode started early in the morning of 1 April when he was visited by two men with gang affiliations.   He understood one to be the president of a gang.   They had told him that his partner and teenage son were in serious danger and that he needed to do something about it.  They stayed with him for about three hours during which time they smoked some methamphetamine together.  At about 6.30 am after they had left, he found the pistol on the floor of his room.  During the following day he tried to contact his partner to ascertain whether she was in danger.  When he eventually spoke with her at about 3.30 pm she said that she wasn’t aware of any threats and didn’t feel threatened by any gangs or other criminal elements.  Then, about 10 to 15 minutes later, he was contacted by a senior gang member, Mr Rockell, who asked him to come and see him because four or five of his club members had been killed in an accident.  Mr L   immediately got into a taxi and went to his home, taking the pistol with him as he thought it would be an ideal opportunity to return it to the person who had delivered it to him.  Over the ensuing four or five hour period he consumed more methamphetamine with those at the flat.  Then, at about 10.30 or 11.00 pm Mr L   and Mr Rockell left the address and met up with the other gang member, Mr Neohe, in Symonds St.   While there they discussed the pistol.  Mr Neohe suggested that perhaps it had been planted on him as a result of some unlawful conspiracy between members of the Police motor cycle unit and the Head Hunters gang to “fit him up with possession of a pistol”. Accordingly, Mr L   decided that the best course was to deliver the pistol to the Police.   However, rather than going directly from Symonds St to the Vincent St Police Station, they drove along to the Mobil Service Station in order to get some petrol.

[42]     Mr L   gave a similar explanation to Constable Bayley, either at the service station or en route to the Police Station or at the Police Station itself, although he failed to tell him that he was in fact returning the pistol to the Police.  He said that he was waiting for the opportunity to do so in Court.  He also said that he had lost faith in the Police.

[43]     Mr L  ’s explanation for having the large knife was that he usually had it on his belt, along with a big bowie knife, which he used for getting pigeon droppings off the floor of the property at Vulcan Lane that he was refurbishing.  He had taken the bowie knife off when he went to Mr Rockell’s.  He had forgotten the other one was still there.

[44]     He said that he carried the smaller knives because an injury to his right index finger meant he had difficulty in doing things like cutting open packages, opening drink bottles with screw caps and opening packets of chips or biscuits and other grocery items.  He said that they were cheap knives:  he had paid between $15 and

$20 maximum each for them at the Victoria Market.  He bought a number of them because, in his experience, often either the blade or the mechanism broke.   He thought if he had a number of them, one of them at least would have been all right.

[45]     He did not give any separate explanation for having the bullet in his trousers.

Oral ruling of Judge Recordon on 3 December 2003

[46]     Also relevant is a brief oral ruling of Judge Recordon on 3 December 2003 in which he allowed a line of questioning which Mr Foley had objected to.  He states:

[1]       Mr Foley, for what it is worth I think the line of questioning should be allowed.   You are arguing lawful use and Mr Woolford is correct in saying that  it  is  part  of  the  prosecution  case  that  he  was  not  going  to surrender the gun and ammunition, and that was not his “purpose”.   From their point of view, he is not as “squeaky clean” as he may be arguing when arguing lawful purpose.

[2]       For that reason, the questioning will be allowed.  I think I am able to look at his state of mind on the occasion in Karangahape Rd and work out for myself whether on this occasion he had lawful purpose.

Mr Foley’s notes

[47]     Crown counsel who appeared  for  the  prosecution,  during the  substantive hearing, Mr Woolford, did not appear when judgment was given on 5 December.  I am told that Mrs Marshall appeared.  However, it seems that she did not take any notes or, if she did, they too have been lost.  The only notes of the hearing are the following, abbreviated notes made by Mr Foley.  There is no suggestion that they are not accurate insofar as they go.  The main difficulty, of course, is that they are not complete.

COUNSEL’S NOTES OF RECORDON D.J.’s DECISION

5  DECEMBER  2003  –  COURT  ROOM  7  –  3.00PM.   REGISTRAR: HAZEL

COUNSEL FOR POLICE: MRS MARSHALL

RECORDON D.J.

I dealt earlier this week with two charges now –

Here both counsel agreed Nov …… infos then present chgs.

No diffic challenges related other evid – counsel had option another Judge, another day.

3 chgs            -         S202A4(a)

-        S51  - pistol Grender Inc

-        S51  - ammo - .380 round

Knives          -         ………….

- “reasonable excuse” – reverse onus to show on bal. Of probabilities

-        a lot of cutting ….. change to

-        diff to find good pocket knife – sore finger

-        hunting knife blade was clean

-- no evid pigeon droppings residue, - h/e could have been cleaned other ? pocket knife

-        ……

It was clear the def had had a fairly major problem with Index finger of L

hand

-        the need for protection not argued nor could it have been

-I cannot accept lawful excuse or authority to have knives – find defendant G.

Pistol

-        elements made out – same for ‘pistol’ – no objection taken evid

-        no evid from police arms expert

-        evid 2 policemen – one ……… know consid more

-onus on def to show lawful purpose – the pistol was loaded, an issue is whether the prosec found that the gun is a gun Heron J’s dec –

-        I am able on totality that pistol is a pistol
-        lawful purpose

-        bullet stuck in barrel –

-        some corob to story

-        pocket ……

-given to him for protection of Susan St John – under threat and being stood over

-        evid in transcript? – deliver back to person deliver it to me
-        to give to police – taxi to see friends –

-        bullet out of barrel

…..

-        some corob to story in that similar said to police

-         h/e other evid tends to cast a diff light on story

-         knives on chain

-         smoked meth

-         intim behaviour / ???, around 1.00am – asked not ring police –

have knowledge if phone up – mention of April fools day

-         I cannot accept, viewing totally of evid def either ?

-         G on charge.

Ammunition

-         no xx or denial, looks like ammo – armourer’s of evid (not equal)

-         essential to establishing is a bullet

………...

-         I asked certain q’s

-         view ammunition was indeed ammunition

…….

-         put in pocket.

-         Evidence bullet in chamber + found - totality

-         G on that charge as well

Judge’s sentencing notes

[48]     The following passages from the Judge’s sentencing notes are relevant.  He said:

[5]      I saw the knives – they were not penknives, they were largish pocketknives.  There was a round of ammunition in your pocket.  The pistol was in your shin pocket. The evidence was that the pistol was loaded.  There were bullets in the magazine.   We have discussed today whether it was

cocked or not, the question being whether or not it was in a state where it could have been used, in theory.  Whether it was jammed or not is, in my view, neither here nor there as far as your intention was concerned or the possibilities were concerned – it was loaded.

[6]       Your   explanation   for   the   hunting   knife   was   that   you   were “removing” (in your words) “pigeon crap from the floor”.  You kept losing it so you put it in your belt – it was stuck on the back of your belt.  The other knives – your explanation was that you do a lot of cutting for work.  You always buy more than one knife because you consider you “never get a good knife automatically,” you are “going to get one good one out of three” or words to that effect.  You told me you had a steel pin put in your right index finger and you needed a knife to open packets of chips (for example).  You were asked by Mr Woolford in cross-examination, if push came to shove and your life was in danger would you have used one of them.  Your answer was “I guess”.

[7]       Your explanation for the pistol was that it was left at your place by a senior gang member to protect Susan and that you were taking it to the police to hand it in.   You believed there was a real threat from the gangs (that was your evidence), and therefore you were returning it to the police. You thought it might have been an April 1st  joke.   It was at 12.30 in the morning.  In the car with you were two gang members from different gangs. You had a knife sticking out of your belt and three others scattered around your body.   In your Court evidence, you admitted having smoked methamphetamine that night.   Nevertheless you were still, in your words, and it seems you are still sticking to the story, on the way to the police station to hand in the pistol.  You were going to walk into the police station with a knife hanging out of your back belt, three other knives on you and a round of ammunition in your pocket, with two gang members in the car, at what would have been close to 1 o’clock in the morning.

[8]       It takes a bit to believe, but even if it were true, it in fact in some ways makes things worse.  What person would do that? What person in their right mind would actually, with the public profile that you have, turn up at the  police  station  at  1  o’clock  in  the  morning  in  a  car  with  two  gang members and carrying “weapons”, to hand in a gun.

[9]       I have to say, Mr L  , that it did not take a huge amount of thought from me to find the charges proved beyond reasonable doubt.  I understand that you are sticking to your story and you are entitled to do that.  However, as I have suggested, there is a considerable naivety present if your story were true – or stupidity.  You appeared to be high on drugs.  Who knows what effect that had on your judgement at the time.

…

[13]      There is no evidence of what you were going to do with the gun.  It is hard to know why you had the gun, possibly for protection. Your explanation obviously is different from the advice that the police had in charging you and I had in finding you guilty without a lawful purpose or a reasonable explanation for why you had the gun.

Discussion

[49]     This is not a case like Friar v Police A72/03 11 July 2003, Malthus v Police AP91/01 28 February 2002 or Kostevc v Police CRI-2004-404-18 4 June 2004, where the record of the evidence is missing.  To the contrary, I have 105 pages of notes recording the evidence taken over three days, interspersed with exchanges between counsel and rulings.  What emerges is a very clear picture of the hearing and the matters in issue at it.   The question of lawful purpose was clearly at the forefront of the Judge’s mind and something which he addressed directly in his judgment.

[50]     Mr Hart was unable to point to any specific errors on the Judge’s part.

[51]     Section 202A(4)(a) does not have an explicit provision placing the onus on the defendant to prove a reasonable excuse on the balance of probabilities. Accordingly, it could conceivably be argued (although Mr Hart did not), that, notwithstanding s 67(8) of the Summary Proceedings Act 1957, it is for the Crown to prove beyond reasonable doubt that Mr L   did not have a reasonable excuse.

[52]     However, while that may be the case when charges are laid indictably under s 202A(4)(a) – see R v Rangi [1992] 1 NZLR 385, it seems clear that in summary proceedings as these were, the onus is on the defendant to prove the reasonable excuse on the balance of probabilities – see Chatha v Police AP21/02 18 November

2002.  Accordingly, I am satisfied that Judge Recordon did not err when he placed the burden on Mr L   to show a reasonable excuse for having the knives.

[53]     Mr  L  ’s  challenge  to  the  approach  the  Judge  took  in  relation  to  the Arms Act offences is even weaker.  The clear record provided by Mr Foley is that the Judge correctly noted that the onus was on the defendant to show a lawful purpose.   It is apparent from the remainder of the notes that, having reviewed the evidence and Mr L  ’s explanation in particular, the Judge did not accept his explanation and therefore found the charges proved.

Result

[54]     Somewhat unusually, the secondary evidence available in this case provides more than ample proof that Judge Recordon specifically and correctly addressed the issue of the onus and standard of proof on each charge.  Possession was not an issue. Nor, ultimately was whether the pistol and ammunition were firearms.  The outcome of the case depended on the view the Judge took of Mr L  ’s credibility.  The onus was on Mr L   to establish that he had a lawful excuse for having the various items with which he was charged.   Quite simply, and understandably, the Judge did not believe his explanations.  He said that it did not take “a high amount of thought to find the charges proved beyond reasonable doubt”. That, in my view, would almost have been enough.  Certainly it was not necessary for the Judge to go through and analyse each part of the evidence.   In particular, it was not necessary, as Mr Hart suggested, for him to rule whether or not he accepted that Mr L   had forgotten that he was carrying the large knife on his belt.

[55]     In the circumstances it was inevitable that the Judge would find Mr L   guilty as charged.  I am satisfied he received a fair and proper hearing.

[56]     As the appeal is without foundation, there is no need to remit the case to the

District Court for rehearing. The appeal is dismissed.

Sentence appeal

[57]     In view of this decision it will be necessary for time to be allocated before me for the hearing of the Crown’s sentence appeal, if they still wish to pursue it.

M A Frater J