Ratu v The Queen
[2013] NZHC 2083
•15 August 2013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2013-470-000013 [2013] NZHC 2083
RAYMOND TE KURA RATU Appellant
v
THE QUEEN Respondent
Hearing: 5 August 2013 Counsel:
M P Nepia for Appellant
R W Jenson for CrownJudgment:
15 August 2013
JUDGMENT OF KATZ J
This judgment was delivered by me on 15 August 2013 at 4:00 p m
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:
Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga
Counsel:
M P Nepia, Tauranga
RATU v R [2013] NZHC 2083 [15 AUGUST 2013]
Introduction
[1] Raymond Ratu was arrested in September 2012 on a matter unrelated to the present appeal. He was taken to the Tauranga police station and searched. When he took his belt off the police officer noticed that the buckle of the belt appeared to be a knuckleduster, which detached from the belt fairly easily.
[2] 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.
[3] Mr Ratu was charged with possessing an offensive weapon in a public place without lawful authority or reasonable excuse.1 He was convicted by Judge P S Rollo in the District Court at Tauranga and sentenced to 130 hours’ community work. Mr Ratu now appeals that conviction, on the grounds that the Judge erred in fact and law. The key issues on appeal2 are:
(a) Is a knuckleduster an offensive weapon? (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?
[4] I will consider each issue in turn.
Is a knuckleduster an offensive weapon?
[5] I will first consider, in the abstract, whether a knuckleduster is an offensive weapon.
1 An offence under s 202A(4)(a) of the Crimes Act 1961.
2 This is a “general appeal” by way of rehearing. Accordingly, the observations of the Supreme
Court in Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [4] and [5] apply.
What is a knuckleduster?
[6] The term “knuckleduster” is not statutorily defined in New Zealand. Judge Rollo helpfully set out in is judgment the Australian and United Kingdom statutory definitions of the term “knuckleduster,” which I summarise below.
[7] In the United Kingdom it is an offence to manufacture, sell, hire, offer for sale or hire, expose or possess for the purpose of sale or hire, or lend or give to any other person, an offensive weapon.3 One such weapon is a knuckleduster, which is defined as being:4
...[A] band of metal or other hard material worn on one or more fingers, and designed to cause injury, and any weapon incorporating a knuckleduster.
[8] It is also an offence to be in possession of a knuckleduster in most Australian States. In the Australian Capital Territory a knuckleduster is defined as an article made or modified to be fitted over the knuckles of the hand of the user to protect the knuckles and to increase the effect of a punch or other blow.5 In New South Wales a knuckleduster is similarly defined as an article made of any hard substance and that can be fitted over two or more knuckles of the hand of the user to protect the
knuckles and increase the effect of a punch or other blow, or that is adapted for use as such.6 Similar definitions appear in legislation in the Northern Territories,7
Victoria,8 Western Australia9 and South Australia.10
Is a knuckleduster an offensive weapon under the Crimes Act 1961?
[9] Mr Ratu was charged under s 202A of the Crimes Act 1961 which provides as follows:
202A Possession of offensive weapons or disabling substances
3 Criminal Justice Act 1988, s 141.
4 Criminal Justice Act 1988 (Offensive Weapons) Order 1988, r 1(a).
5 Prohibited Weapons Act 1996 (ACT), s 5 and part 1.2 of sch 1.
6 Weapons Prohibition Act (NSW), s 7 and sch 1.
7 Weapons Control Act (NT) s 6; Weapons Control Regulations (NT), sch 2.
8 Control of Weapons Act 1990, s 5 (Vic); Control of Weapons Regulations 2000 (Vic), sch 2.
9 Weapons Act 1999, s 6 (WA); Weapons Regulations 1999 (WA), sch 1.
10 Summary Offences Act 1953 (SA), s 21F; Summary Offences (Weapons) Regulations 2012 (SA), r 5.
(1) In subsection (4)(a) offensive weapon means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use.
(2) In subsection (4)(b) offensive weapon means any article capable of being used for causing bodily injury.
....
(4) Every one is liable to imprisonment for a term not exceeding 3 years—
(a) who, without lawful authority or reasonable excuse, has with him in any public place any knife or offensive weapon or disabling substance; or
(b) who has in his possession in any place any offensive weapon or disabling substance 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.
(5) It is a defence to a charge under subsection (4)(b) if the person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.
[10] As Judge Rollo noted, s 202A recognises four categories of offensive weapon:
(a) an article made for use for causing bodily injury; (b) an article altered for use for causing bodily injury;
(c) an article intended for use for causing bodily injury by the person having it with him or her (subsection (1)); and
(d) an article capable of being used for causing bodily injury.
[11] Categories (a) and (b) relate to weapons that are offensive per se (a term not appearing in the Act, but one generally adopted in the cases).11 Weapons that are offensive per se are weapons that are deemed to be offensive in and of themselves, without having to consider any outside factors such as whether the defendant intended to use the weapon. The relevant category in this case is category (a),
namely articles made for use for causing bodily injury.
11 Eg R v Petrie [1961] 1 WLR 358 at 361.
[12] Which category an offensive weapon falls into is important, because if an item is offensive per se, the prosecution has only to show that the defendant had it with him in a public place. The onus will then be on the defendant to show lawful authority or reasonable excuse for that possession.
[13] If, on the other hand, the item is not offensive per se, the prosecution has the more difficult task of showing not only that the defendant had it with him, but also that he had it in circumstances that prima facie showed an intention to use it to commit an offence involving bodily injury or the threat or fear of violence. Only if the prosecution surmounts those hurdles will the onus then shift to the defendant to prove that he did not intend to use the offensive weapon to commit such an offence.
[14] English authority is of particular assistance in interpreting s 202A, as the equivalent statutory provision in England is almost identical.12 The leading English case is R v Petrie.13 In that case the Court held that:14
It is clear that the definition section of the Act contemplates offensive weapons of at any rate, two classes namely, (a) an article which per se is an offensive weapon, that is to say, an article made or adapted for use for causing injury to the person; and (b) an article which, though it is not made or adapted for such use, is carried with the intent so to use it. A cosh, a knuckle-duster, and a revolver are examples of articles in the first class. A sandbag and a razor are examples of articles in the second class.
[15] Another useful discussion of offensive weapons is found in the English Court of Appeal decision of Houghton v Chief Constable of Greater Manchester:15
...[T]he definition of “offensive weapon”, as is well-known to those who practise in the criminal courts, draws a distinction between those articles which are offensive weapons per se, as is said, and those articles which are brought within the definition because the person having them with him intends to use those articles as offensive weapons, although per se they may not be such. An example taken in some cases is that of a sandbag. That can be an effective weapon if it is intended to be used as such; on the other hand it has a purpose and a use wholly devoid of any offensive nature. It is therefore not an offensive weapon per se. In order to obtain a conviction of a person for possessing a sandbag, it must be proved that that person intended to use that sandbag as an offensive weapon on that occasion.
12 Prevention of Crime Act 1953 (UK), s 1(1).
13 R v Petrie, above n 11.
14 At 361.
15 Houghton v Chief Constable of Greater Manchester (1987) 84 Cr App R 319 (CA).
[16] In Houghton it was held that a truncheon was an offensive weapon per se because it was intended, if used at all, to be used as a weapon. Other examples of weapons that have been held to be offensive per se include a flick-knife16 and a swordstick17 as well as the examples of a knuckleduster, a revolver, and a cosh given in R v Petrie. The English Court of Appeal has also indicated that rice flails (also known as nunchaku or nunchucks) ought to be regarded as offensive per se.18
A catapult is not, however, offensive per se.19 Nor is a rounders bat.20 Both of these
items have legitimate alternative uses.
[17] Counsel for Mr Ratu submitted that knuckledusters are not offensive weapons per se. In particular, he submitted that it cannot be found that a knuckleduster is necessarily made for causing bodily injury unless its defining characteristics are identified. For example, a belt could be wrapped around a person’s fist to form an impromptu knuckleduster, but the belt would not be an offensive weapon per se.
[18] It was further submitted that evidence would need to be adduced of the manufacturer’s intention before it could be held that a particular article that has the appearance of a knuckleduster was in fact made for causing bodily injury.
[19] In my view Judge Rollo was correct to find that knuckledusters are offensive weapons per se. Although the term knuckleduster is not statutorily defined in New Zealand, its meaning is well understood and is consistent with the statutory definitions I have outlined at [7] and [8] above. A knuckleduster is an article made or designed to be fitted over the knuckles of the hand of the user to protect the knuckles and to increase the effect of a punch or other blow. Impromptu knuckledusters, such as a normal belt wrapped around a fist, would be unlikely to
fall within this definition.
16 R v Simpson [1983] 1 WLR 1494 (CA).
17 Davis v Alexander (1970) 54 Cr App Rep 398; Butler [1988] Crim L R 695
18 R v Standen (1988) 10 Cr App R 28.
19 Southwell v Chadwick (1986) 85 Cr App R 235.
20 R v Humphries [1987] EWCA Crim J0407-10.
[20] Nor do I accept that it is necessary to prove the manufacturer’s intention before it can be found that an item which fits the description of a knuckleduster is an offensive weapon. The legislation must be interpreted purposively. The clear intent of s 202A is to prevent people from carrying offensive weapons in public places. The Act would quickly become unworkable if the police were required to trace each such weapon to its source and adduce evidence of the manufacturer’s intention. Such a requirement would potentially result in unscrupulous manufacturers asserting that their products are intended to be purely ornamental or that they have some far- fetched alternative use.
[21] The Act already sufficiently protects those who may have a knuckleduster in their possession in a public place for legitimate reasons (although such cases are likely to be rare). For example, if an actor was stopped on their way to a film set and could prove that the knuckleduster in their possession was for use as a film prop, they would likely be able to establish a defence of reasonable excuse. There is no need to interpret the term knuckleduster in a restrictive way in order to protect such persons from criminal liability.
[22] The “per se” analysis of offensive weapons from R v Petrie has, as Judge Rollo noted, been previously approved by the High Court.21 In my view the Court was correct in that case to identify knuckledusters as an example of an offensive weapon per se. Knuckledusters are clearly articles made for causing bodily injury. Unlike a knife, a razor or a softball bat, they have no alternative legitimate use.
[23] I am reinforced in this view by the fact that knuckledusters have been classified as offensive weapons in New Zealand for customs purposes. They are prohibited from being imported into New Zealand pursuant to s 54 of the Customs and Excise Act 1956. The relevant Customs Import Prohibition Order 2011 (SR 2011/236) prohibits knuckledusters, knives incorporating knuckledusters and any weapon disguised to give the appearance of another article, from being imported into New Zealand.
[24] Although not determinative, this is a relevant factor in considering whether knuckledusters should also be considered to be offensive weapons under the Crimes Act. I note that Winkelmann J took a similar view in R v Thomson.22 In that case her Honour considered that the fact that butterfly knives and flick-knives are prohibited imports (on the basis that they are offensive weapons) was relevant to a determination as to whether they were offensive weapons for the purposes of charges under the Aviation Crimes Act 1972.
[25] In conclusion, I find no error in the Judge’s thorough and careful analysis of
this issue. A knuckleduster is an offensive weapon per se.
Is the article in this case a knuckleduster?
[26] A more difficult issue in this case is whether the article before the Court is a knuckleduster. There are two aspects to this issue:
(a) Is the belt buckle, considered in isolation, a knuckleduster?
(b)If it is, does it retain its character as a knuckleduster once it is attached to and forms a functional part of a belt?
Is the belt buckle a knuckleduster?
[27] Counsel for Mr Ratu submitted that there was no evidence to demonstrate that the article in this case is wearable on a person’s hand. There was also no evidence as to the intention of the manufacturer.
[28] Mr Ratu’s evidence in the District Court was that his fingers were too big to fit through the finger holes on the belt buckle/knuckleduster. Counsel submitted that it is insufficient that an article resembles or is similar to a particular type of weapon. The belt buckle might simply be a decorative belt buckle that looks like a knuckleduster.
[29] The Judge did not accept such arguments. In his view the various definitions set out at [7] and [8] above could have easily applied to the article in question. The Crown noted that the Judge had the belt buckle produced as an exhibit. As the finder of fact he was entitled to examine it in order to make an assessment as to whether it was a knuckleduster.
[30] Like Judge Rollo, I have had the benefit of seeing the buckle itself. It is clearly capable of fitting an adult hand (albeit, Mr Ratu claims, not his hand). It is sturdy and made of solid metal. It could readily be fitted over the knuckles of a person’s hand to protect them and to increase the effect of a punch or other blow. There have been no modifications to the article that would make it unfit for such a purpose or incapable of being used in this way. If considered in isolation (detached from the belt) I have no hesitation in concluding that the Judge was correct to find that the article was a knuckleduster by any ordinary definition. For the reasons I have outlined at [20] above, evidence from the manufacturer as to its intent in manufacturing the article was irrelevant and unnecessary.
Does a knuckleduster cease to be an offensive weapon per se once it is attached to and forms a functional part of a belt?
[31] Mr Ratu was not merely found with a belt buckle in his possession. The buckle was attached to a belt that he was wearing at the time of his arrest. His evidence was that the belt was being used to hold his pants up. In examination in chief, Constable McGregor gave the following evidence about the belt:23
Subsequent to that arrest the defendant was processed at the Tauranga Police Station, when searched he removed a belt with a knuckleduster attached to the end of it. When he gave me the belt with the knuckleduster I asked him, “What is this?” and he told me it was a, um, knuckleduster or an ornament on the end of his belt, in front of him I pulled the belt from or the knuckleduster from the belt and it came off easily...
[32] Counsel for Mr Ratu submitted that a belt (including its buckle) is an innocent item. It must be considered in totality and cannot therefore be an offensive weapon per se. That is because a belt has an innocent use, namely holding up a
person’s pants or for use as a fashion accessory.24 Counsel submitted that this must take the article out of the category of offensive weapons per se. Mr Ratu also relied on R v Carroll25 which says that there is a distinction between per se offensive weapons and those which may or may not be used as an offensive weapon depending on the intention of their possessor.
[33] The Judge did not accept such arguments. He concluded that a knuckleduster that has an innocent secondary function as a belt buckle remains an offensive weapon. He referred to the English decision of R v Vasili26 which considered whether an article which was both a flick-knife and a lighter was an offensive weapon per se. It was submitted in Vasili that because the article had a dual purpose, it could not be offensive per se. Because there was a secondary purpose, whereby the lighter flame could be switched on, it could not be said that the item was “made for use” to cause personal injury. The Court concluded that:27
In our judgment this was an object which was both a flick-knife and a lighter. An object which has all the characteristics of a flick-knife does not cease to be a flick-knife because it also has the secondary characteristic of being a lighter. The same no doubt would also apply to a handgun which was also a lighter although possession of a handgun might be dealt with under a different statute. James Bond might no doubt carry an object of this kind for a dual purpose but a flick-knife does not, in our judgment, lose its character as a flick-knife because it is also a lighter. It is just as much an offensive weapon and potentially dangerous as if the lighter function were not there.
[34] Judge Rollo applied the reasoning in Vasili. He concluded 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 characteristic of being a belt buckle. Whether the knuckleduster was being used for an innocent purpose was irrelevant. The Judge referred to the following statement from DPP v Hynde,28 cited with approval by
Winkelmann J in R v Thomson:29
24 The appellant relied on the following cases: Johns v Police HC Christchurch AP76-98, 27 May
1998; Waenga v Police HC Auckland M1681-49, 12 February 1980; McGlone v Police HC Auckland M213-83, 19 May 1983; Considine v Kirkpatrick [1971] SASR 73; Deing v Tarola [1993] 2 VR 163.
25 R v Carroll [1975] 2 NZLR 474 cited with approval by the Court of Appeal in Mason v R
CA517/05, 11 April 2006 at [10].
26 R v Vasili [2011] EWCA Crim 615.
27 At [10].
28 DPP v Hynde [1998] 1 WLR 1222 (QB).
29 At 1226.
...[A] bayonet may be used as a toasting fork, but it is still made for causing bodily injury to the person.
[35] Counsel for Mr Ratu sought to distinguish Vasili on the grounds that, unlike the flick-knife/lighter in that case, the article in this case does not have a distinctive mechanism designed for concealment, speed and surprise. Instead, it was worn as a belt buckle, was on display and unusable as a knuckleduster unless it was detached from the belt.
[36] The reasoning in Vasili did not turn on the fact that the flick-knife/lighter in that case had a mechanism designed for concealment, speed and surprise. The determinative factor was that the article was still fit for purpose as a flick-knife (an offensive weapon per se) despite having a secondary use as a lighter. Applying the same reasoning, in this case the article is still fit for purpose as a knuckleduster, despite having a secondary use as a belt buckle.
[37] Counsel for Mr Ratu also relied on Adams on Criminal Law30 which states that where an article can be used for both law-abiding and illicit purposes it will not be regarded as an offensive weapon per se. However, that passage refers to examples such as a carving knife, a fishing knife or a razor. Those articles are not made for causing bodily injury; their use depends on the intention of the possessor as Casey J pointed out in R v Carroll. Such items are not made for the purposes of causing bodily injury, but can be used in such a way.
[38] Knuckledusters fall into a different category. They are designed specifically for the purpose of causing bodily injury. A dual purpose for the knuckleduster, such as being used a belt buckle, does not change the underlying qualitative features of the object. In order for such an item to no longer be classified as an offensive weapon per se it would need to be modified or altered in such a way that it could no longer be used as a knuckleduster.
[39] It follows that the cases relied on by Mr Ratu, to the effect that belts are not offensive per se, are of limited relevance. It is uncontroversial that belts are not
offensive per se. However a functional knuckleduster (an offensive weapon per se)
30 Bruce Robertson Adams on Criminal Law (online ed, Brookers) at CA 202A.02.
that has a dual purpose as a detachable belt buckle will retain its offensive character. To hold otherwise would significantly undermine the statutory purpose and enable people to carry knuckledusters in public places with impunity, merely by attaching them to a belt and asserting that they are a belt buckle, albeit a readily detachable one, and therefore not an offensive weapon.
[40] In my view the District Court Judge was correct to find that the knuckleduster in this case was an offensive weapon, despite the fact that it had a dual role as a belt buckle.
Did the Judge err in finding that Mr Ratu did not have a defence of reasonable excuse?
[41] The final issue is whether the Judge erred in finding that Mr Ratu did not have a reasonable excuse for being in the possession of the knuckeduster/belt buckle in a public place.
[42] The facts relied on as establishing “reasonable excuse” were essentially that Mr Ratu had purchased the belt in a legitimate retail outlet (a skate shop in Tauranga). His sole intention was to use the item as a belt, and his fingers were too big for the finger holes in the knuckleduster buckle in any event.
[43] In my view the Judge was correct to conclude that Mr Ratu’s claim that his fingers were too big for the knuckleduster is irrelevant to the offence. If a weapon is offensive per se it will generally not be relevant that a particular defendant claims an inability to use the weapon. For example, a person in possession of a flick-knife would not usually have a defence on the grounds that at the time of his arrest he could not use the flick-knife due to his hands being injured or bandaged. A defendant will not have a reasonable excuse to carry an offensive weapon simply because he or she cannot use it. A reasonable excuse must be founded on something more substantial.
[44] Mr Ratu’s strongest argument is that the article was purchased as a belt, not as a knuckleduster, and that his sole reason for wearing the belt was to hold his pants up. The knuckleduster could only be used if detached from the belt. Counsel for
Mr Ratu submitted that a reasonable person would consider that Mr Ratu had a reasonable excuse being in possession of a knuckleduster in such circumstances.
[45] The Crown’s response was essentially that s 202A is targeted at restricting the unnecessary presence of offensive weapons in public. The statutory purpose would be significantly undermined if courts were to find it a reasonable excuse to possess an offensive weapon if it were incorporated into a belt or used otherwise as a fashion item or accessory.
[46] I accept the Crown’s submissions. An honestly held belief will be insufficient if it is not also a reasonably held belief.31 The author of Smith and Hogan’s Criminal Law notes that the defence of lawful authority or reasonable excuse has generally been given a narrow construction by the courts.32
[47] I have some sympathy with Mr Ratu’s position if, as he says, he purchased the belt at a skate shop and solely intended to use it as a belt. However, I have concluded that even if Mr Ratu had an honest belief that he was entitled to be in possession of a knuckleduster in a public place on that basis that it was being used as a belt buckle, that belief was not reasonable in all the circumstances.
[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 as an offensive weapon 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
31 Bryan v Mott (1976) 62 Cr App R 71.
32 David Ormerod Smith and Hogan Criminal law (13th ed, OUP, 2011) at 710.
purpose and could lead to a proliferation of prohibited offensive weapons being carried in public places.
[50] I have accordingly concluded that Mr Ratu did not have a reasonable excuse for being in possession of an offensive weapon in a public place.
Result
[51] For the reasons outlined above, the appeal is dismissed.
Katz J