L v Police HC Christchurch CRI 2007-409-144

[2007] NZHC 929

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000144

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 September 2007

Counsel:        A J Bailey for Appellant

B Hawes for Respondent

Judgment:      20 September 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      Following a defended hearing in the District Court on 4 July 2007 before Judge Green the appellant, L  , was convicted of a charge of possession of an offensive weapon in a public place without authority or excuse.  He was fined the sum of $450.   He appeals against that conviction upon the grounds that the Judge’s process of reasoning, particularly with reference to a lie and its implications, was flawed.

[2]      The relevant events occurred on 14 February 2007.   That day the appellant went home from work.   He encountered his younger brother who he said was in

L V NEW ZEALAND POLICE HC CHCH CRI 2007-409-000144  20 September 2007

possession of a knife which later became the subject of the charge.   It is a large

Bowie knife which measures 36 centimetres in length.

[3]      Subsequent  to the discussion  between the two  brothers they were  in  the appellant’s car.   They came into contact with a man with whom the appellant had had some sort of difference a short while earlier.  The appellant was threatened by this person.  He took the threats seriously.  So much so that he went to the home of his older brother and reported what had happened.  That brother also got into the car.

[4]      A short  while  later they encountered the  man who  had  threatened  Cody L  .  There was something of an altercation in the street.  A baseball bat was in evidence.  A second person joined in to support the man who had earlier issued the threats.  That incident ended with the three L   brothers going back to the appellant’s  car  and  driving  off.    However,  they  were  stopped  in  Ruru  Street, Linwood.   The youngest of the three brothers left the scene either then or even possibly before.  In any event it is the actions of the appellant which are of central importance to the present appeal.

[5]      Upon being stopped he got out of the driver’s door of the car.   His actions were then described by Constable Whalley, a police dog handler.   He described going to the boot of his vehicle, I assume to fetch his dog.  As he did so he noticed the appellant’s movements.  He said that the appellant on getting out of the car stood with his back towards him (the constable).  Then, while Constable Whalley remained six or more metres away, he noted the appellant put his hand in his pocket, removed something, bend over towards the car as if to place the object inside the car.

[6]      Moments later Constable Whalley approached the appellant.  Once he got in the vicinity of his car and looked through the window he could see the blade of the subject knife protruding into the driver’s well from underneath the driver’s seat, that is the handle was obscure but  the blade was not.   He made a comment  to  the appellant  to the  effect, what  were you  doing  earlier  bending  over  in that  way? Needless to say the knife was recovered and following an interview, which produced a written statement, the appellant was charged with the present offence.

[7]      Before Judge Green the appellant gave evidence  in his own defence.   In cross-examination Constable Whalley was not challenged concerning his version of events, in particular his description of the removal of something from a pocket and a bending action consistent with the placing of an object in the car.

[8]      When  the  appellant  gave  evidence  he  denied  that  any  such  thing  had occurred.  On the other hand he acknowledged that Constable Whalley had asserted that there had been a bending action as soon as he approached him and spoke to him beside the car.  The appellant’s evidence was to the effect that the knife was not his, nor did he have any knowledge of it.  The pregnant possibility was that it could have been brought to the car by his younger brother, whom he said had it a short time earlier  in the day,  and that  in some way  it  was placed under  the seat  but  was protruding from the front of the seat at the point that the police recovered it.

[9]      The sole issue therefore was whether the appellant had the knife with him when stopped in Ruru Road which is obviously a public place, or was there reasonable doubt as to that, and could the knife have come to be in the position in the car I have described unbeknown to the appellant?

[10]     Judge Green was satisfied that the appellant did have the knife with him.  He said:

[13]  Do I infer and am I satisfied beyond reasonable doubt, that the only logical conclusion about the defendant’s activities in taking something from his pocket, bending down, and placing something in the car, that he was placing something he did not wish the police to see, and that indeed what he placed there was the Bowie knife.

[14]  For me to reach that conclusion I have to decide that I do not accept the evidence of the defendant on his lack of knowledge of the knife being in the car, and the inference that it got into the car by the agency of his younger brother, and he was entirely unaware of it.

It is the next paragraph which was the focus of Mr Bailey’s argument.  The Judge continued:

[15]   The actions of the defendant in taking something from his pocket, bending down and putting that something into the vehicle, are denied by the defendant as having occurred.   I have no reason whatsoever to doubt the constable as to what he saw, and what the defendant did.  That the denial by

the defendant is untrue.  He did indeed place something there, and I conclude that his denial of doing so rather strengthens the possibility of drawing the inference that he indeed had the knife with him, in the sense of it being with him and he being aware of its presence, and I am content  to draw that inference and conclude that indeed the defendant had brought the knife with him in his vehicle.  The vehicle was in a public place and the case law is such that items from in a vehicle in a public place are themselves in a public place.

[11]     The criticism made of this paragraph was two-fold, although Mr Bailey also acknowledged that in essence his argument could be reduced to a single proposition. The first point was that on the Judge’s own reasoning it was obvious he could not conclude that the object removed from the appellant’s pocket was a knife.  Indeed he referred to that object as “something”.   Mr Bailey submitted that had it been the subject knife it is difficult to see how the constable would not have seen something of it and been able to confirm that it was a knife or something similar.  He stressed in argument that at a length of 36 centimetres it was not an object which could be easily fitted into a pocket, let alone removed in one’s hand without a police officer (a trained observer) seeing something of it.

[12]     The second aspect of the argument was with reference to the lies reasoning. Mr Bailey rightly drew attention to the relevant Court of Appeal authorities which establish that evidence of a lie is to be treated with considerable caution.  Almost all lies should be seen as relevant to credibility, at most.  As was said by the Court of Appeal in one of the leading cases R v Toia [1982] 1 NZLR 555:

It is only when a lie is more consistent with guilt than with innocence, as when it suggests that the accused cannot give an innocent explanation, that it can add anything to the case against him.

Hence, as juries are told time and again, even if satisfied that an accused has told a lie it should never automatically produce an assumption of guilty and more often than not it is only relevant to credibility.   In a few cases the lie will be of such a character as to necessarily suggest the accused was incapable of giving an innocent explanation and for that reason the lie may add a dimension to the Crown case.

[13]     Mr Bailey submitted that the present was not a case in this special category; that the Judge was wrong to regard the lie as relevant, save as to credibility.   He criticised the process of reasoning which he said had the effect that the Judge was

able to convert a partial observation of the constable (that he had seen something removed and placed in the car), into a positive finding that what was removed was the knife and that therefore it was in the appellant’s possession.

[14]     Mr Hawes, by contrast, submitted that this was a straight-forward situation. He submitted that this was a lie of such a character that it was permissible for the Judge to use it as he had.  Alternatively, he suggested that even if the Judge had not supplemented his reasoning by reference to, and reliance upon the lie, it would have been entirely open for him to simply conclude by way of inferential reasoning that the appellant did have the knife in his pocket and had placed it into the car in quite sinister circumstances as described by the constable.

[15]     I tend to agree with Mr Bailey that this was a situation where most judges would have been reluctant to view the lie as adding cubits to the Crown case.  That said, I am not persuaded that the line of reasoning adopted by Judge Green was not open to him.  This was an exigency situation.  The appellant had just been stopped by the police in the aftermath of a street altercation.  He got out of his car, but rather than acting in a normal fashion and facing effectively his accuser, he stood with his back to Constable Whalley.  That was curious enough.  Then he was involved in the action which the constable described.  Like Judge Green it does not impress me as an action which could be mistaken by the constable.  The more so when, apparently, he immediately confronted the appellant as to what he had just done on reaching the appellant’s vicinity.

[16]     In those circumstances I regard the observed actions as highly suspicious to say the least.  They immediately preceded the finding of the knife in the situation I have already described.   The other side of the coin is, of course, that when taxed about the matter on oath in the witness box, the appellant denied that any such action on his part had occurred.  It was in my view entirely open to the Judge to accept the constable’s evidence, as he unhesitatingly did, and to conclude that the appellant had lied.  Was he also entitled to view the lie as one which could only be regarded as consistent with an inability to give an innocent explanation for the incriminating conduct? I think he was.

[17]     It may well be that at first instance my process of reasoning would have been a more conservative one.  In that regard I agree with Mr Hawes’ submission that on the basis of an inference it would have been equally open (without resort to lies reasoning), to conclude that the appellant had the knife in his possession at the time of the car being stopped.

[18]     For completeness I note that the issue of lies is now dealt with in s124 of the Evidence Act 2006.  That section did not apply at the time of the hearing, albeit only by a week or two.  However I agree with Mr Bailey’s observation that effectively the section is a re-enactment of the principles which have applied at common law.  I do not think it can be said that the Judge inferred guilt simply on account of a lie. Rather, I believe he was influenced by the nature of the lie, against the background circumstances which I have described, and which, by and large, made it permissible, I think, to reason that the lie was relevant to more than just credibility.

[19]     For these reasons I find that the conviction is safe and that the appeal must therefore be dismissed.

Solicitors:

A J Bailey Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch