Lewis v Police
[2019] NZHC 100
•7 February 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2018-441-000034
[2019] NZHC 100
BETWEEN ZANE KORARI METE LEWIS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 February 2019 Counsel:
R B Philip for Appellant
C C Gullidge for Respondent
Judgment:
7 February 2019
JUDGMENT OF COLLINS J
Introduction
[1] On 8 October 2018, Mr Lewis was convicted of having with him, an offensive weapon, namely a machete, in a public place without lawful authority or reasonable excuse contrary to s 202A(4)(a) of the Crimes Act 1961.1
[2] Mr Lewis accepts the machete was an offensive weapon, that he was in a public place and that, if the machete was with him, he had no lawful authority or reasonable excuse to have it. He appeals his conviction on the ground that the evidence did not demonstrate beyond reasonable doubt that he had the machete with him at the relevant time.
1 New Zealand Police v Lewis [2018] NZDC 26989.
LEWIS v NEW ZEALAND POLICE [2019] NZHC 100 [7 February 2019]
Facts
[3] Mr Lewis was a passenger in a car stopped by the police on 11 May 2018. He was sitting in the front passenger seat. The car was driven by his female cousin. Mr Lewis said that his cousin had picked him up from an address and was driving him home and that he did not know about the contents of the vehicle.
[4] When the police searched the vehicle, they found a flick knife and items of stolen property. The machete was found to be lodged between the front passenger’s seat and the central console of the car. The machete was therefore just a few centimetres to the right of where Mr Lewis was sitting in the car.
[5] When the police commenced searching the vehicle, Mr Lewis first told them they would not find anything of interest in the car. When the police found the machete, Mr Lewis then said to one of the officers: “You guys aren’t very onto it, it took you that long to find it”.
[6] Mr Lewis was charged with having both the machete and the flick knife. Judge Mackintosh found him not guilty of having the flick knife. The appeal therefore only relates to the machete.
District Court decision
[7] In her decision, the Judge concentrated on whether or not Mr Lewis had possession of the machete. The Judge does not appear to have specifically focused on whether or not Mr Lewis had the machete with him. This minor omission was, however, not fatal.
[8] The Judge was satisfied that Mr Lewis’s second comment to the police demonstrated beyond reasonable doubt he had knowledge that the machete was in the vehicle and that, given he was seated next to it, he also had sufficient control over the machete so as to have possession of it.
[9] Mr Lewis was sentenced to three months’ imprisonment. He had already served that time on remand.
Approach on appeal
[10] In the case of a Judge-alone trial, the appeal court must allow an appeal against conviction if it is satisfied that the trial Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice occurred, or if it is satisfied that a miscarriage of justice has occurred for any other reason.2 A miscarriage of justice is defined as any error, irregularity, or occurrence that created a real risk that the outcome of the trial was affected, or that resulted in an unfair trial or a trial that was a nullity.3
Analysis
[11] There are three elements to the charge of a defendant unlawfully having with him or her an offensive weapon:4
(1)The defendant must know of the presence of the weapon.5
(2)The defendant must have physical custody or control of the weapon.
(3)There must be “a very close physical link and a degree of immediate control” over the weapon by the defendant.6
[12] The third requirement means the prosecution had to prove more than that Mr Lewis had possession of the machete. This extra degree of proximity was described by Barker J in Ellmers v Police as the weapon being either “on the person of the offender or reasonably available to him or at hand”.7 Given that the machete was located mere centimetres away from Mr Lewis’s right hand, this element was not reasonably in contention, provided the prosecution could establish the first two elements of the offence.
2 Criminal Procedure Act 2011, s 232(2).
3 Section 232(4).
4 See R v Rogers [2007] NZCA 286 at [25].
5 See R v Cugullere [1961] 1 WLR 868 (CA).
6 R v Manapouri [1995] 2 NZLR 407(CA) at 417, citing R v Kelt [1977] 1 WLR 1365 (CA) at 1369.
7 Ellmers v Police (1988) 3 CRNZ 259 (HC) at 260.
[13] In the present case, the Judge was entitled to infer that Mr Lewis knew of the existence of the machete. His comment to the police that they were slow to find the weapon was compelling evidence he knew the machete was located right next to where he had been sitting.
[14] Despite the apparent focus in the District Court on the issue of knowledge, the more problematic element for the prosecution was actually whether Mr Lewis had physical custody or control of the machete. The difficulty arose from Mr Lewis’s account that he was simply in the vehicle to be driven home. It is not a criminal offence to merely be in the presence of an offensive weapon, even knowingly.8 The offence with which Mr Lewis was charged only concerns the situation where such a weapon is “with” someone. On its natural meaning, the preposition “with” suggests a degree of involvement of the defendant with the item in question.9
[15] In my view, where it is necessary to consider the issue, the requisite degree of involvement is best captured by the phrase “assumption of control”.10 In the ordinary case, it is apparent that the defendant has physical custody or control of the weapon because they are in actual control of it, for instance, if the weapon is found on their person or they admit ownership of it. However, there are more difficult cases where the defendant has encountered an offensive weapon not belonging to them in a public place. In such a case, the defendant will still be liable under s 202A(4)(a) if their conduct demonstrates an assumption of control over the weapon.
[16] An example of the latter kind of case is Bullock v Police, where the defendant was convicted after police found him in his vehicle with a metal cosh sitting beside the driver’s seat.11 The defendant denied ownership of the cosh, but admitted that he was aware of its presence in the vehicle. His explanation was that several associates
8 See R v Lester (1955) 39 Cr App R 157 (CA) at 161.
9 Although in relation to the interpretation of “reasonable excuse”, the following passage from the Minister of Justice’s speech to Parliament when the law was introduced is apposite to demonstrate that Parliament did not intend a meaning that would be too onerous on citizens:
The clause has been carefully worded to ensure that the ordinary citizen going about his lawful business, if he happens to be carrying a knife, will not be molested. If by some mischance the police do charge a person under this provision, then we rely on the court being satisfied that the person concerned was carrying a knife or other offensive weapon for a proper purpose.
(17 October 1956) 310 NZPD 2571.
10 See R v Manapouri, above n 6, at 417.
11 Bullock v Police HC Auckland AP241/95, 19 February 1996.
had been in his vehicle earlier that day and that he had not been aware of the cosh until he got into the vehicle on the occasion he was stopped by police. Williams J said that the defendant “continued to have” the cosh with him “until he did something to rid himself of it”.12 It could be said that the defendant had assumed control of the cosh by deciding to drive the vehicle while knowing that the cosh was in close proximity.
[17] In some instances, denial or silence by the defendant will make it a matter for the fact finder to determine whether the case is of the ordinary or more difficult kind described in [15]. The Judge must then decide, by logical inference, whether or not the defendant either had actual control of the weapon, or had assumed control of the weapon. That was precisely the situation that confronted the Judge in the District Court.
[18] It was open for the Judge to conclude either that Mr Lewis was the person in actual control of the machete, or that he had assumed control of it during his time in the vehicle. Either of these conclusions could have legitimately been inferred by the Judge on the basis of the evidence presented to her for the following two reasons.
[19] First, Mr Lewis’s second comment to police, combined with his failed attempt to deny knowledge of the machete at trial, suggests he was in fact the party in custody of the machete. His comment suggests not only that he was aware of the machete, but that it was on his mind when police were searching the vehicle.
[20] The second relates to Mr Lewis’s first comment that the police would not find anything of interest in the vehicle. This was a forlorn attempt by Mr Lewis to prevent police from searching the vehicle. In R Manapouri, the Court of Appeal relied on evidence that the defendants had attempted to interfere with a police search to demonstrate an assumption of control.13 A similar inference was available against Mr Lewis.
12 Bullock v Police, above n 11, at 5, citing R v McCalla (1988) 87 Cr App R 372 (CA) at 379.
13 R v Manapouri, above n 6, at 417.
[21] Once the Judge was properly satisfied that Mr Lewis knew about the machete and had control of the weapon, it was a minute step for her Honour to conclude that he also had it with him because it was “reasonably available to him or at hand”.
[22] Thus, all three elements of the charge before the Court were satisfied. In these circumstances, no miscarriage of justice arose through Mr Lewis having been found guilty.
Result
[23]The appeal is dismissed.
D B Collins J
Solicitors:
Bramwell Bate, Hastings for Appellant Crown Solicitor, Napier for Respondent
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