Ratu v The Queen
[2013] NZHC 3555
•20 December 2013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CIV-2013-470-000013 [2013] NZHC 3555
BETWEEN RAYMOND TE KURA RATU Applican
ANDTHE QUEEN Respondent
Hearing: On the papers (last submission received 6 December 2013)
Counsel: C J Tuck for Applicant
R W Jenson for Crown
Judgment: 20 December 2013
JUDGMENT OF KATZ J
This judgment was delivered by me on 20 December 2013 at 2:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga
Counsel: C J Tuck, Tauranga
RATU v THE QUEEN [2013] NZHC 3555 [20 December 2013]
Introduction
[1] On 15 August 2013 I delivered a judgment (“Judgment”) dismissing Raymond Ratu’s appeal against his District Court conviction (following a Judge alone trial) for possession of an offensive weapon, an offence under s 202A of the Crimes Act 1961 (“Act”). Mr Ratu now seeks leave to appeal the Judgment to the Court of Appeal.
Application for an extension of time
[2] Mr Ratu’s appeal is pursuant to s 144 of the Summary Proceedings Act 1957 (this being a proceeding commenced prior to the Criminal Procedure Act 2011). Section 144(1) of the Summary Proceedings Act provides for further appeals to the Court of Appeal on a question or questions of law arising from the Judgment. Any application for leave must be made within 21 days or within such further time as the
Court allows.1
[3] Mr Ratu therefore had until 5 September 2013 to seek leave to appeal to the Court of Appeal. His application for leave is dated 11 September 2013 on its face, but it was not filed in the High Court until 20 November 2013. The reason advanced for the delay is that Mr Ratu changed counsel and there was a delay in obtaining legal aid. Mr Ratu also says that counsel mistakenly filed the Appeal in the Court of Appeal, believing that the new Criminal Procedure rules applied.
[4] The first issue that arises therefore is whether the Court should exercise its discretion to grant an extension for the filing of the application. Although the reasons for delay are not compelling, there is no prejudice to the respondent in granting the extension sought, and I do so. I now turn to consider the merits of the leave application.
Summary of the Judgment
[5] Mr Ratu was arrested in September 2012 on an unrelated matter. He was taken to the Tauranga police station and searched. When he took his belt off the
1 Summary Proceedings Act 1957, s 144(2).
police officer noticed that the buckle of the belt appeared to be a knuckleduster, which detached from the belt fairly easily. Mr Ratu said that he had bought the belt a couple of years ago, from a skate shop in Tauranga. He said he had no intention of using the buckle as a knuckleduster. It was strictly used as a belt buckle, for the purposes of holding his pants up.
[6] Mr Ratu was charged with possessing an offensive weapon in a public place without lawful authority or reasonable excuse, an offence under s 202A(4)(a) of the Act. He was convicted by Judge P S Rollo in the District Court at Tauranga and sentenced to 130 hours’ community work (which sentence has now been completed). Mr Ratu appealed his conviction, on the grounds that the Judge erred in fact and law. The Judgment addressed the following issues:
a) Is a knuckleduster an offensive weapon per se?
b) Is the article in this case a knuckleduster?
c) If it is a knuckleduster, did Mr Ratu have a reasonable excuse for having it in his possession?
[7] Section 202A recognises four separate categories of offensive weapons, including articles “made for use” for causing bodily injury. Articles falling within this category are referred to in the case law as offensive weapons per se, because they have no alternative legitimate purpose. This can be contrasted with other potential offensive weapons, such as a knife, which can be used both as a weapon and for legitimate purposes.
[8] I considered, in the abstract, whether a knuckleduster was an offensive weapon per se and concluded it was, because it is made solely for the purposes of causing bodily injury and has no alternative legitimate purpose.
[9] I then turned to consider the more difficult issue, which was whether the particular article before the Court was a knuckleduster. I considered that issue in two stages. First, I found that the particular “belt buckle” before the Court
(which was in evidence as an exhibit) considered in isolation, was a knuckleduster. Second, I considered whether that article retained its character as a knuckleduster once it is attached to and forms a functional part of a belt. I upheld the Judge’s factual finding that it did, on the basis that an object that has all the characteristics of a knuckleduster does not cease to be a knuckleduster merely because it also has a secondary function of being used as a belt buckle.
[10] Finally, I found that the fact that Mr Ratu was using the article in question as a belt buckle did not constitute a “reasonable excuse” in terms of the Act.
Leave applications – legal principles
[11] The Court may grant leave if:2
...in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
[12] The Court of Appeal’s decision in R v Slater discusses the general ambit of s
144:3
Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.
[13] A full bench of the High Court in Countdown Properties (Northlands) Ltd v
Dunedin CC discussed the use of the words “may” and “ought” in s 144(2):4
The word “may” in s 144(2) points to a discretion as to the granting of leave while the word “ought” refers to the propriety or correctness of the proposed questions of law being submitted to the Court of Appeal.
[14] The essential elements are set out by Slater as follows:5
2 Summary Proceedings Act 1957, s 144(2).
3 R v Slater [1997] 1 NZLR 211 at 215 (CA).
4 Countdown Properties (Northlands) Ltd v Dunedin CC HC Wellington AP214/93, 20 June 1994 at 4.
5 At 215.
Thus, there must be: (i) a question of law; (ii) the question must be one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal; and (iii) the Court must be of the opinion that it ought to be so submitted.... The Court might, perhaps, in certain circumstances decide that a question of law which is not of general or public importance ought to be submitted to the Court for decision because of the words "or for any other reason". But these words go to the reasons for submitting the question of law to this Court for decision; they do not enable the Court to dispense with the requirement that there must be a question of law.
Mr Ratu’s leave application
[15] Mr Ratu seeks leave to advance two questions before the Court of Appeal:
Question 1: Is the question whether an article with an innocent purpose is an offensive weapon under s 202A of the Crimes Act 202A:
(a) A question for the fact finder to determine on the whole of the evidence; or
(b) A matter that is susceptible to a ruling as a matter of law? And
(c) Who carries the burden of proof?
Question 2: Did the Court correctly interpret the test for reasonable excuse?
[16] I will consider each question in turn.
Question one
Mr Ratu’s submissions
[17] Mr Ratu submitted that question one is a question of fact to be determined by the fact finder on the whole of the evidence, with the burden of proof resting on the prosecution throughout and that the Judgment incorrectly treated the issue as an issue of law. Mr Ratu further submitted that the ruling that the belt buckle was an offensive weapon (because of the fact that it fits the description of a knuckleduster) offends against the presumption of innocence. That is because, he says, it relieves the prosecution of the burden of having to prove that the belt buckle was made for an offensive purpose, namely “for use for causing bodily injury”.
Crown submissions
[18] The Crown submitted that no error had been made as to the burden of proof (which was on the Crown throughout). Rather, question one essentially invited a review of the factual conclusions reached both in the District Court and on appeal. The Crown submitted that, in reality, Mr Ratu is trying to dispute the factual conclusion that the item in question was a knuckleduster and continued to be so, even though it had a dual purpose.
Discussion
[19] Question one is somewhat difficult to follow. I have concluded, however, that as currently drafted it fails to raise a legitimate issue arising out of the Judgment, whether of fact or of law.
[20] A weapon is offensive in terms of s 202A where it is “made...for use for causing bodily injury”. The use of the word “innocent purpose” in question one accordingly begs the question. It imports the answer, by assuming that the relevant article is “innocent” (not made for use for causing bodily injury). However, whether the article is made for causing bodily injury is the exact issue before the Court for determination. Question one, when carefully analysed, is actually as follows:
Question 1: Is the question whether an article with an innocent purpose [i.e. not made for use for causing bodily injury] an offensive weapon [i.e. an article made for use for causing bodily injury]:
(a) A question for the fact finder to determine on the whole of the evidence; or
(b) A matter that is susceptible to a ruling as a matter of law? And
(c) Who carries the burden of proof?
[21] The simple answer is that the question is meaningless – it answers itself. An article not made for use for causing bodily injury (an “innocent” article) could never be an article made for use for causing bodily injury. Accordingly it is unnecessary to consider whether this is a factual or legal issue and who would have the burden of proving it. It is simply not a question that was, or could have been, addressed in the Judgment.
[22] As noted above, the Judgment concluded that knuckledusters (in the abstract) are offensive weapons per se. It did not automatically follow, however, that the belt buckle in this case was an offensive weapon. It was necessary to undertake a factual inquiry in order to establish whether the Crown had proved, beyond reasonable doubt, that the belt buckle fitted into the definition of a knuckleduster and was thereby an offensive weapon.
[23] I suspect that the Crown is correct in its assumption that the underlying intent of the question is to dispute the conclusion that the item in question was a knuckleduster and continued to be so, even though it had a dual purpose. The circuitous drafting of the question may be attributable to the fact that the applicant has endeavoured to derive a legal question from what are essentially factual issues.
[24] Question one does not appear to raise a question of law, let alone one of public or general importance.
Question two
[25] Question two is: “Did the Court correctly interpret the test for reasonable excuse?”
[26] The relevant passage of the Judgment states:
[48] In my view a reasonable person would not view the fact that an offensive weapon has been incorporated into an item of clothing as providing a reasonable excuse for carrying it. Only if the article was modified in such a way that it was no longer fit for purpose would a reasonable excuse potentially arise.
[49] Each case will turn on its own facts, but if reasonable excuse could be established by incorporating a per se offensive weapon into a fashion accessory then this could significantly undermine the statutory regime. Knuckleduster belts could become standard issue for certain gangs or criminal elements, who could wear them freely in public without fear of any criminal liability arising. Allowing knuckledusters to be lawfully used as belt buckles is contrary to the statutory purpose and could lead to a proliferation of prohibited offensive weapons being carried in public places.
[27] Mr Ratu submitted that the Judgment erred in determining that the correct threshold for a reasonable excuse is one which required the object to be modified in such a way that it was unfit for purpose as an offensive weapon. If that threshold
was not correct, then Mr Ratu says that he may have had a reasonable excuse available on the facts.
[28] Mr Ratu also submits that any concern about a proliferation of knuckleduster buckles among gangs or criminals is answered by the statement that each case turns on its own facts and notes that there is no evidence that Mr Ratu had gang connections. There was nothing to discredit the explanation that he bought the belt buckle at a skate shop to hold up his pants.
[29] The Crown submitted that the reasonable excuse test was given an orthodox application, and that the conclusion reached was proper and available on the facts. Further, the Crown submitted that Mr Ratu has not identified any specific error in the application of the reasonable excuse test, and therefore no question of law arises. As for the reference to gang and criminal connections, the Crown noted that it was made in the context of discussing why a reasonable person might not see such an excuse as reasonable (because of the potential ramifications) rather than implying that Mr Ratu had gang or criminal connections.
[30] I have some reservations as to whether, properly analysed, the proposed question raises a legal issue at all. Mr Ratu’s essential complaint is that his excuse (that he was wearing the knuckleduster as a belt buckle) was not accepted as being “reasonable”. Assuming however, that question two can be categorised as a legal one, it is necessary to consider whether it is a question of public or general importance.
Public or general importance
[31] Mr Ratu makes five submissions to support the proposition that question two is a question of law is of public or general importance:
a) Clarification of the law is of general importance to all cases involving offensive weapons under s 202A;
b) The public policy in respect offensive weapons is a matter of public importance;
c) The potential for the criminalisation of fashion is a matter of public interest and importance. Even more so as the reasons in your judgment would essentially result in liability down the supply chain including potentially the retailer, importer and manufacturer;
d) The decision could create a whole new category of offensive weapons of innocent items with the characteristics of weapons; and
e) Mr Ratu’s case rests squarely on the rights of individuals to the
presumption of innocence and a fair trial.
[32] The Crown submits that there are no questions identified by Mr Ratu that are of sufficient general or public importance to warrant a second tier appeal. In particular, the Crown responds that each case regarding possession of an offensive weapon will largely turn on its own facts, involving an analysis of the nature of the article in question and the circumstances in which it was possessed. Only where the further appeal concerns a new or controversial class of items, or where there was a clear error of law in relation to the lower Court’s application of s 202A or the relevant case law will there be a matter of sufficient general or public importance.
[33] I do not find any of Mr Ratu’s submissions on this issue particularly persuasive. There does not appear to be a pressing need for clarification of the law in this area. There is nothing particularly controversial that requires settling. Each case will largely turn on its own facts. This case will be of particular interest to people who choose to wear belts in public places that incorporate readily detachable and fully functional knuckledusters as belt buckles. Those who seek to import or sell such items may also be affected. This is likely to be a very small group of people.
[34] The issues raised by this case are certainly interesting, but the paucity of previous New Zealand case law in the area suggests that the incorporation of per se offensive weapons (designed to cause bodily injury) into fashion items, or other dual purpose items, is not a widespread problem requiring guidance from the Court of Appeal.
Conclusion
[35] This case raises interesting legal and factual issues that are not without difficulty. I suspect that, with careful drafting, it would be possible to articulate one or more legal questions arising out of the Judgment. I am not persuaded however, that the applicant has done so. The first question purports to be a legal question but is essentially meaningless, as currently drafted. The second question is probably at best a mixed question of fact and law. Neither question raise issues of sufficient general or public importance to warrant leave to appeal being granted.
[36] The issues raised by this case have now been comprehensively considered by Judges of both the District and High Courts. Both judgments were reserved. The relevant legal authorities, including comparable overseas statute and case law, were comprehensively reviewed and analysed. I am not persuaded that the questions are of sufficient importance to warrant their consideration by the Court of Appeal.
Result
[37] For all of the reasons outlined, I have concluded that the relatively high threshold for leave under s 144 has not been met.
[38] The application for leave is declined.
Katz J
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