S v Police HC Auckland CRI 2005-404-409

[2006] NZHC 820

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-409

BETWEEN  S

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         13 July 2006

Counsel:        Appellant in person

KE Hogan for Respondent

Judgment:      13 July 2006

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Meredith Connell, P O Box 2213, Auckland for Respondent

S V POLICE HC AK CRI 2005-404-409  13 July 2006

Introduction

[1]      The appellant pleaded guilty in the District Court at Auckland on 8 December

2004 to a charge, under s 13A(1) of the Summary Offences Act 1981, of having a knife in his possession in a public place without reasonable excuse.   He was fined

$250 and ordered to pay Court costs of $130.   He appeals against conviction and sentence.

[2]      That is the appropriate course where the appeal is brought following sentence on a guilty plea. By s 42 of the Summary Proceedings Act 1957, the District Court may grant leave to withdraw a plea of guilty before a defendant has been sentenced or otherwise dealt  with.   Once sentencing has taken place a conviction  may  be challenged only by way of an appeal: R v Le Page [2005] 2 NZLR 845 (CA).

Background

[3]      The plea of guilty was entered following a defended hearing on three charges. They were of threatening to cause grievous bodily harm, resisting a police officer in the execution of his duty and, in breach of s 202A(4)(a) of the Crimes Act 1961, that the appellant without lawful authority or reasonable excuse had with him in a public place an offensive weapon, namely, a pocket knife.

[4]      The charges arose from an incident at the Auckland Central Police Station on

16 January 2004.  The appellant approached the counter in the public office.  It was alleged by police officers, who gave evidence for the prosecution, that he became abusive.  He was asked to leave.  He refused.  As he was being escorted towards the exit, he is alleged to have said to the police constable, “Get your fucking hands off me or I’ll slice you up”.  An altercation then occurred.  The police officer sought to arrest the appellant.  He resisted.  Subsequently, he was searched and was found to be carrying a pocket knife.

Judge’s decision

[5]      After hearing prosecution and defence witnesses, Judge M Lee delivered an oral decision in which she said that, because of discrepancies in the accounts given by the police officers who gave evidence for the prosecution, she was left in doubt as to what had occurred.  She said she was not satisfied beyond reasonable doubt that the appellant had threatened to do grievous bodily harm to one of the constables or that he effected a lawful arrest of the appellant.   Accordingly, she dismissed the charges of threatening to do grievous bodily harm and resisting arrest.  She went on to deal with the remaining charge in the following way:

The knife, there is no dispute that the knife was found on Mr S  .  He was in a public place.  The knife constitutes an offensive weapon.  I am not sure he has given an explanation of why he had it with him except that he always had it with him.  So I find that charge proved.  I should say it is not disputed by the defence that the knife constituted an offensive weapon.

[6]      Before entering a conviction, however, the Judge suggested to the prosecutor that the appellant had been “over-charged” and proposed that the charge under s 13A of the Summary Offences Act be substituted.   A discussion ensued involving the prosecution, the appellant and his counsel, culminating in the appellant’s agreement to the information being amended and his entering a plea of guilty to the lesser charge.  The Judge ascertained before amending the information that a plea of guilty would be entered.  She was concerned to ensure that the appellant would not insist on his right to have a new hearing on the substituted charge.

Discussion

[7]      The notice of appeal was filed on 7 December 2005, almost a year after the hearing and some eleven months outside the time limit laid down under s 116 of the Summary Proceedings Act 1957.   The appellant has explained to me that he was unaware of the time limit.  He had taken time to consult with counsel who appeared for him at trial.  He had not filed an appeal until he had completed consultations and given careful consideration to his position.  Although the delay is lengthy, the Crown does not suggest that it has been prejudiced as a result.  If the appeal proves to have

merit, there seems  no  reason why the time  for  filing  the  appeal should  not  be extended.

[8]      There is jurisdiction to entertain an appeal from a conviction following a plea of guilty where there is evidence that a miscarriage of justice may have occurred. Among the circumstances in which a miscarriage may arise is where a plea of guilty has  been  entered  under  some  obvious  mistake,  misunderstanding  or misapprehension: Udy v Police [1964] NZLR 235 at 237. Such a mistake, misunderstanding or misapprehension may arise as a result of a ruling that incorporated a wrong decision on a question of law or was based on facts which could not support a conviction.

[9]      I am satisfied that in this case the appellant’s decision to plead guilty to the lesser charge was based on such an error.  The Judge’s finding that the charge had been proved was wrong.

[10]     As earlier  mentioned, the charge  was  brought  under  s 202A(4)(a) of the

Crimes Act which provides:

Every one is liable to imprisonment for a term not exceeding [2 years]—

(a)       Who, without lawful authority or reasonable excuse, has with him in any public place any [knife or] offensive weapon or disabling substance.

By subs (1) of s 202A for the purpose of subs (4)(a), an 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.

[11]     As noted in Adams on Criminal Law at CA202A.02, only a relatively narrow range of articles have, by their very nature, been regarded by the Courts as offensive per se.   Among the articles which have not been so regarded are a catapult and a machete, a sheath knife, a razor, a fishing knife and a carving knife.   Plainly, the pocket knife in issue in this case, which has been described to me as a small article with one blade and a device for opening bottles and cans, could not be an offensive weapon for the purpose of s 202A unless the appellant intended to have it with him

to  cause  bodily  injury.    I  do  not  understand  it  to  have  been  any  part  of  the prosecution case that he had such an intention.

[12]     I also doubt that the Judge was entitled to find the appellant did not have reasonable excuse for carrying the pocket knife.  I cannot reach a final view on this issue as I have not been provided with those parts of the notes of evidence which include the appellant’s evidence.   However, it is apparent from the passage of the Judge’s decision quoted in [5] that the appellant said in evidence that he always carried the pocket knife, presumably for perfectly legitimate purposes.  If that is so and if his evidence on this point (as on other crucial issues) were accepted by the Judge, it is hard to see why she could have found that he did not have reasonable excuse for having the pocket knife with him.

[13]     As  a  result  of  the  Judge’s  unequivocal  intimation  that  the  charge  of possession of an offensive weapon had been established, the appellant, on advice, agreed to the information being amended and to entering the plea of guilty.   He entered the plea under the misapprehension that he was guilty of the offence with which he was charged.  I am satisfied that a miscarriage of justice resulted.  Had he not agreed to enter a plea, a conviction on the more serious charge would have been open to challenge.   The conviction on the lesser charge is unsafe, in any event, in view of the doubts already referred to regarding the existence of reasonable excuse.

[14]     There has been a further  ground  advanced  for  impugning  the  conviction which  it  is  not  necessary  for  me  to  finally  determine  but  which  I  mention  in deference to the argument put forward by the appellant and addressed by Ms Hogan in her comprehensive and careful submissions.   It arises from the Judge’s finding that the appellant’s arrest had not been lawful.  As Ms Hogan acknowledged, if the arrest was unlawful, the consequential exercise by the police of the common law right to search was also unlawful.  If the search were also unreasonable and did not survive the test in R v Shaheed [2002] 2 NZLR 377, the finding of the pocket knife would not be admissible in evidence.

[15]     I  accept  that  the  search  was  unlawful.    It  is  arguable  that  it  was  not unreasonable.  There is merit in Ms Hogan’s submission that, as the appellant was to

be detained in custody (albeit unlawfully), it was important for the police to ascertain whether he was in possession of any articles which could harm himself or others.  In the circumstances, and given that there seems no indication that the police acted other than in good faith, it may well be that the search would have survived the Shaheed balancing test.   However, in light of my finding that the conviction was founded on a mistake, it is unnecessary and, having regard to the unsatisfactory state of the evidence, undesirable, for me to finally determine the issue.

Result

[16]     Leave is granted to bring the appeal out of time.  The appeal is allowed.  The conviction is quashed and with it the sentence imposed.