P v Police HC Auckland CRI 2005-4014-268

[2006] NZHC 400

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-4014-000268

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 April 2006

Counsel:         P Le’Au’Anae for Appellant

K E Hogan for Respondent

Judgment:      24 April 2006

JUDGMENT OF KEANE J

Solicitors

Crown Solicitor, Auckland

P V POLICE HC AK CRI 2005-4014-000268  24 April 2006

[1]      On 15 February 2005 P   was convicted of possession of an offensive weapon in the aggravating circumstances specified in s 202A(4)(b) of the Crimes Act 1961.  Originally he had been charged with assault with a weapon under s 202C(a) but in the decision under appeal the Judge convicted him of this lesser offence.   In essence, Mr P   contends the Judge’s conclusion is founded on unsafe inference, in an anticipation of violence that never happened.

[2]      The immediate difficulty however, is this.   The critical part of the Judge’s decision is lacking. That the decision continued more extensively is apparent from a contemporary prosecutor’s note. The tape has gone missing.  There was a suggestion that it might have been found.  That has been checked today without result. That is an issue in itself.

Context

[3]      At about 12.30pm on 18 October 2004, Mr P   was at home in Glass Road, Mt Roskill, Auckland, with his wife, the complainant, and their six children. An argument ensued about a scratch to the family car.

[4]      Mrs P   went outside to speak with Mr P  .  The argument became heated and she returned inside closing the door behind her.  Mr P  , unable to open the door, gained entry by picking up a recycling bin and throwing it through a window.  When he entered the house he carried with him a machete.  Mrs P   had by then telephoned the police, but told Mr P   that she was ringing her brother.  She put down the phone, she said, because Mr P   wanted her to.

[5]      The police responded promptly to Mrs P  ’s call.  When spoken to, Mr P   said that he had the machete with him, as Mrs P   was aware, because he was using it outside and he intended to go to the laundry to find the grinder.  He denied that he had presented it to her.  That was his evidence at the hearing.  It is common ground that he in no active sense used it.

Offence and defence

[6]      The offence constituted by s 202A(4)(b) lies in:

… possession in any place any offensive weapon … in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.

[7]      Section 202A(5) creates this defence:

It is a defence to a charge under subsection (4)(b) of this section if the person charged proves that he did not intend to use the offensive weapon … to commit an offence involving bodily injury or the threat or fear of violence.

[8]      ‘Prima facie’, in subs (4)(b), carries its usual meaning, ‘at first appearance’: R v Haqiqzai  (CA158/02  18  December  2002).     The  offence  itself  has  to  be established to the criminal standard.  The defence by contrast is to the civil standard.

Incomplete decision

[9]      The question whether, in finding the charge proved, the Judge made any unsafe inference or, when excluding the subs (5) defence, failed to take into account any favouring Mr P  , obviously calls for careful scrutiny.  It is not usual on an appeal to depart from inferences taken in the decision under appeal unless there is a patent lack of evidence, or any inferences are at odds with such evidence as there is. Complicating that assessment in this case, however, is that those the Judge took were expressed orally and cannot be retrieved.

[10]     That does not vitiate the Judge’s decision.  Even had he chosen to give no reasons, his decision might still be supportable on the evidence, if evidence there were.  There is no inflexible rule of universal application that reasons be given:  R v Jeffries [1999] 3 NZLR 211, para [16]. Rather, as the Court said in paras [16] and [22], this Court on the appeal must discharge its own responsibilities under ss 119 and 121, consistently with what is ‘feasible and best calculated to meet the interests

of justice’.   Those options include hearing and determining the appeal on such material as there is, which can embrace rehearing evidence or receiving more, or remitting the matter back for rehearing.  Or, where the interests of justice require, because no other course is possible, quashing the conviction.

[11]     In that case the Court upheld the decision of the Judge, sitting on appeal in this Court, to rehear the case on the record as it was before the Justices, because they had given no reasons for their decision.  That was possible, the Court said, because there had been a single witness and there was no issue of credibility.

Conclusions

[12]     In this case the same course is open even though Mr & Mrs P   each gave evidence because essentially they did not disagree as to what had happened. On the critical point, on which they appeared first to disagree, Mrs P   held back.

[13]     When asked whether to confirm that Mr P   wanted to know when he came into the house where the grinder was she first denied that he had.   But she conceded immediately that she could have been too frightened and might not have taken that in.  The issue is then, whether, taking her evidence and his as by and large consistent, the conclusions to which the Judge had to come to find the offence under subs (4) proved, and to exclude the defence under subs (5), were fairly open to him.

[14]     There  is  no  issue  that  the  machete  was  capable  of  being  an  'offensive weapon’ as a matter of intent under s 202A(1).  Nor that whether the intent was there is allied to whether under subs (4) the circumstances gave the appearance that Mr P   intended to use the machete on Mrs P   or to threaten her or cause her fear; and whether under subs (5) Mr P   had excluded that inference.

[15]     It appears that Mr P   did not, of course, commit any offence with the machete.  The assault charge was withdrawn and the corollary is that any inference as to intent to use, under subs (4), ought equally not to be taken.  There remains the issue  whether  Mr  P    gave  the  appearance  of  intending  to  threaten  Mrs

P   or to induce fear and whether under subs (5) Mr P   had countered that.

[16]     The first part of the Judge’s decision, that has been transcribed, is helpful as to  each  of  these  related  issues.  The  Judge  describes  Mr  P    as  a  man accustomed to bullying and intimidating his wife and their children.   He says also that the way in which Mr P   acted - becoming angry about the car, then breaking the glass to get in the door – confirmed that he was then in a high temper and acting violently.  That conclusion was clearly open to the Judge.

[17]     Consistent with it is the evidence of Mrs P  .  She lied to Mr P   about whom she was ringing.   She said she was ringing her brother and not the police.  Then to comply, she says, with what Mr P   told her to do she put the telephone down.  Both demonstrate fear on her part.  Moreover, it must have been apparent to Mr P   that his will had prevailed, and why; and it can be inferred, as the Judge evidently did, that this is exactly what Mr P   intended.

[18]     Despite then the absence of the Judge’s reasoning on the critical point, I conclude that he made no error.  It was open to him to conclude, as he did, that the charge was proved and that the defence on which Mr P   relied did not avail him.  On my own review of the evidence I agree.

[19]     In this, I have not taken account of the prosecutor’s note, which may be incomplete. But it does confirm that the Judge considered both issues and there is no reason on this appeal to be troubled that in that respect he fell into frank error.  The only issue can be whether the inferences he took were open to him and, as I have

found, they were. The appeal will be dismissed.

P.J. Keane  J