R v Payne CA69/03

[2003] NZCA 363

IN THE COURT OF APPEAL OF NEW ZEALAND

CA69/03

THE QUEEN

v

MATTHEW NORMAN PAYNE

Hearing:        26 March 2003

Coram:Gault P Blanchard J Glazebrook J

Appearances: N J Sainsbury and M W Snape for Appellant G J Burston for Crown

Judgment:     26 March 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]        Mr Payne faces trial with another on charges of conspiracy to kidnap and possession of a pistol without lawful, proper or sufficient purpose.

[2]        He has brought two pre-trial appeals. The first, against a ruling refusing severance, is no longer relevant and is dismissed. The second appeal is against refusal by the High Court to exclude as inadmissible part of the evidence to be given by a police armourer.

[3]        The witness examined a sawn-off shotgun said to be held by the co- conspirators. His evidence is intended to provide a description of the weapon

R V MATTHEW NORMAN PAYNE CA CA69/03 [26 March 2003]

primarily to show that it is a pistol within the Arms Act 1983 under which the possession charge is brought.

[4]        There is no objection to the evidence so far as it provides a description of the weapon and proves that it was operational. There is objection to that part of the evidence giving the findings of the witness as a result of his testing the weapon as follows:

Shock and drop tests proved that the shotgun’s left barrel could fire unintentionally.

The trigger pressures are 2.113kg and 0.578kg for the front and rear triggers respectively.

The front trigger (right barrel) has a safe pressure but the rear trigger (left barrel) has an unsafe pressure.

The safety catch also fails to function.

[5]The Judge ruled:

In my view the Crown is entitled to lead evidence as to what precisely was found. There is no evidence that I am presently aware of that the accused knew of the deficiencies in the weapon. Therefore I had difficulty in seeing any prejudice to them. Indeed the weapon could have been dangerous to them, to. I rule that the evidence may be led.

[6]        In support of the appeal, Mr Sainsbury submitted that the ruling was wrong and that this part of the evidence is both irrelevant and prejudicial. On relevance he said that there is no element of the offences charged for which the dangerous state of the weapon is probative. He referred to the fact that the weapon was not loaded when found by the police. All that needs to be proved on the possession charge is that the weapon qualifies as a pistol under the Act and its defective state is immaterial.

[7]        On prejudice he submitted that the state of the weapon could distract the jury and inflame their emotions against the accused leading the jury to focus on what actually happened and what could have happened instead of confining their consideration to the alleged conspiracy.

[8]        For the Crown, Mr Burston argued that the evidence is entirely conventional in that it gives an appropriate description of the weapon and its operation. He submitted that the Crown is entitled to lead evidence of the facts and to provide reasonable detail with a view to meeting any defence that might be raised. He said there will be no illegitimate prejudice to the accused considering there was also found at the same time two cartridges the evidence of which has not been objected to.

[9]        Matters such as this are essentially for trial Judges. Rulings will not be interfered with on appeal unless made on an improper basis or plainly wrong. We are not prepared to so characterise the present ruling.

[10]      The nature of the defence to the charges has not been disclosed – though  Mr Sainsbury was not in a position to accept that the weapon constitutes a pistol. Evidence of its nature and characteristics is clearly relevant. That it was found to be operational cannot be objected to. Evidence of findings or observations made in the course of testing the weapon reasonably are part of the description of its nature and characteristics.

[11]      That the gun was found to be unusually dangerous on grounds which seemingly would be apparent to anyone who had used it might also bear on the mental elements in the offences.

[12]      In practical terms, in prosecuting for a criminal offence, the Crown must be entitled to lead evidence of events and circumstances broader than the bare elements of the offence. It is in that way that the general nature of the offending and culpability are exposed. The credibility of explanations and defences will be assessed against the context and circumstances in which the offence is shown to have been committed. Accordingly, because there is no requirement for accused persons to notify in advance what parts of the Crown case are accepted and what parts are challenged, the Crown must be given some leeway in presenting the evidence. That does not mean, of course, that the leading of unnecessary and wholly irrelevant evidence should be condoned. Trial Judges must ensure that time is not wasted and trials are not unnecessarily prolonged.

[13]      The evidence with which this appeal is concerned is brief and no more than reasonably incidental to the evidence of the description of the weapon and its operation. We do not consider that it will create any real prejudice to the accused beyond that legitimately arising from the evidence of the location of the gun and the cartridges.

[14]Leave is granted to bring the second appeal but that also is dismissed.

Solicitors:

Richardson Chapman, Upper Hutt, for Appellant Crown Solicitor, Wellington