S v Police HC Christchurch Cri-2009-409-170

[2009] NZHC 2451

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-409-000170

S

v

POLICE

Hearing:         19 November 2009

Appearances: J McCall for Appellant

T J Mackenzie for Respondent

Judgment:      20 November 2009

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against conviction.

[2]       Following a defended hearing, the appellant, Mr S  , was convicted in the District Court of three offences under s 45(1) of the Arms Act 1983, namely that he:

i)was  in  possession  of  an  explosive,  namely  a  clear  plastic container containing an approximately 45mm pyrotechnic ball, electrical ignition ignitor and stones being an improvised explosive device except for some lawful, proper and sufficient

purpose;

S V POLICE HC CHCH CRI-2009-409-000170  20 November 2009

ii)was in possession of an explosive, namely pyrotechnic tube, electrical ignition ignitor and black and milk powder being an improvised explosive device except for some lawful, proper and sufficient purpose; and

iii)was in possession of explosives, namely a butane improvised explosive device.

[3]      On appeal it is not disputed:

(a) The devices in question  were all explosive devices within the meaning of the Act.

(b) The appellant, who has a current Approved Handlers Certificate “For Pyrotechnic Display” was in possession of the items at the relevant date.

[4]      The sole issue is whether the Judge was wrong to find that the appellant’s purpose in possessing the explosives was not a sufficient purpose within the meaning of s 45(1).

Factual background

[5]      The  evidence  before  the  District  Court  established  that  the  appellant’s original purpose in possessing the three items was to experiment with them purely out of interest and curiosity.  The appellant did not give evidence himself, but in a taped police interview described it as a hobby.

[6]      At the time Mr S   purchased the explosives and made the devices, he resided at a lifestyle block in Wigram, and so had space available to ignite the devices without risk to anyone else.  He then shifted to a residential address where there was, as the Judge stated, no such opportunity.

[7]      The three devices in question, which were left over from experiments at

Wigram, were stored in a taped carton and left in the garage of the new house.  They

remained there for five months before the police found them.  In his interview the appellant told the police he had basically forgotten about them.

[8]       The  reason  the  police  came  to  discover  the  existence  of  the  items  was because unfortunately there was an accident at the house.   The appellant had left some black powder in his bedroom where his 13 year old brother found it.   The brother took it outside, played with it, there was an explosion and the brother was badly burnt.   Police were called to the scene, and during a search of the property found the three items in the carton.

[9]      It was common ground that:

i)        The  appellant  had  manufactured  the  explosive  devices  at

Wigram illegally (the subject of a separate charge).

ii)The storage in the taped carton was also unlawful.  It should have been made secure (also the subject of a separate charge).

iii)The certificate meant the appellant was entitled to possession of the active ingredients and, at least on one interpretation, was entitled under appropriate conditions to detonate the devices.

The decision of the District Court Judge

[10]     In his decision the Judge reviewed the background facts and then turned to the issue of purpose:

[14]     As to the question whether the defendant possessed the explosives for a “lawful, proper and sufficient” purpose:

•      Aside from the regulatory controls over outdoor pyrotechnic displays, Mr Mackenzie was unable to identify any basis, independently of s.45 of the Arms Act 1983, upon which it could be said that the defendant’s purpose of experimentation was unlawful.   There is apparently no express statutory or regulatory prohibition on causing explosions by way of experiment or any prohibition on possession for such a purpose.

There is no evidence to suggest that his proposed experiments would have some consequence that would attract any criminal liability.

•      Mr Mackenzie was unable to identify any impropriety with respect to the defendant’s purpose.  There is nothing to suggest that the defendant intended to cause any adverse impact upon anyone to any degree.

•     Mr Mackenzie did not identify any respect in which the defendant’s purpose was insufficient to justify his possession of the explosives, other than to suggest that he was not sufficiently qualified to safely experiment as he had intended.

[15]      I am of the opinion that s.45 imposes upon the Court an obligation to consider whether, in all the circumstances, the defendant’s purpose ought to be accepted as sufficient.   This enquiry concerns not only the defendant’s particular qualifications and experience and the likely circumstances of carrying out his intended purpose but also the broader public interest in that purpose.  In this case, the relevant considerations include:

a)    The inherent risks relating to the possession of explosives, as illustrated by the facts of this case.

b)    The aggravation of those risks due to:

(i)The  lack  of  any  organisation,  structure,  protocols, supervision, oversight, peer review or consultation with respect to mitigation of risk when individuals act alone.

(ii)      The  purpose  of  experimentation  by  trial  and  error,  as opposed to the initiation of explosions where the results are reliably predictable.

(iii)      The complete absence of any appropriate and safe actual or available means of storage of the explosives.

(iv)     The delays in carrying through his purpose.

(v)       The defendant’s lack of qualifications and experience with respect to experimentation with explosives.

c)    The complete lack of any social, scientific or commercial utility or benefit in the kind of personal, casual and informal experimentation carried out by the defendant.

d)    As at 21 May 2008, the evidence shows that defendant’s purpose could only have continued to subsist in his mind as a possibility that might happen on some undetermined date in unknown circumstances.  It was not a real and present purpose with any specificity.

[16]     Having regard to these considerations, I find that the defendant’s purpose in possessing the explosives was not a sufficient purpose, within the meaning of s.45.   The prosecution has proved that the defendant was in possession of explosives, as alleged in the three informations.  In no case has the defendant proved, on the balance of probabilities, that he possessed the explosives for any sufficient purpose. I find him guilty on each charge.

Grounds of appeal

[11]     On appeal, counsel Mr McCall submits that the factors the Judge took into account in assessing sufficiency of purpose were outside the scope of the Act and had the effect of placing an extended meaning on the word ‘sufficient’ beyond that which Parliament intended.  In his submission, ‘sufficient’ simply meant ‘justified’, and in order to establish sufficiency of purpose all the appellant was required to establish on the balance of probability was that the three items were in his possession for a purpose that was allowed or contemplated by the Handlers Certificate.

[12]     Mr McCall acknowledged the manufacturing had been illegal but contended that was irrelevant, relying on the decision in Brocas v Police HC Auckland AP279/97, 2 February 1998, Randerson J.   In Brocas it was held the fact the defendant in that case had acquired the items without the required permit to procure did not prevent him from having a lawful, proper and sufficient purpose.  The Judge in Brocas accepted that the purpose of his possession was to further his object as a genuine collector – such a purpose being lawful, proper and sufficient.

Discussion

[13]     Brocas is one of a number of decisions which has considered the meaning of the phrase “lawful, proper and sufficient”.   Others include R v Macpherson HC Hamilton CRI-2006-419-000168, 7 March 2007, Lang J; Daly v Police (2005) 22

CRNZ 10; and Sharp v District Court At Whangarei [1999] NZAR 221. Unfortunately, none of the cases are directly on point. However, it is possible to distil the following general principles:

i)In construing and applying the section, the Court should have regard to the underlying policy of the Arms Act, which is to promote  the  safe  use  and  control  of  firearms  and  other weapons.

ii)The word ‘purpose’ in s 45(1) refers to the object or end in view.

iii)The words “lawful, proper and sufficient” are to be read cumulatively, so it is possible for a purpose to be lawful but not sufficient.

iv)      A” lawful” purpose is one that is not criminal.

v)Because the section focuses on purpose rather than possession, the fact a defendant may hold the relevant licence does not mean in itself that the purpose is lawful.  A firearm in lawful possession may be possessed for an unlawful  purpose, and vice versa.

vi)In every case it will be a question of fact and degree whether the   defendant   has   established   some   lawful,   proper   and sufficient purpose.  In approaching the question of purpose, all of   the   surrounding   circumstances   must   be   considered, including storage.

vii)The focus must be on the purpose for which the items were in the  defendant’s  possession  on  the  date  and  at  the  time specified by the charge.

[14]     In my view, the wording of s 45(1) and the case law make it clear that “sufficient” is to have its own distinct meaning and not be considered surplusage.  If that  is  so,  it  follows  the  word  must  denote  some  qualitative  assessment  of  the purpose having regard to all the circumstances.

[15]     However, in order to decide the appeal it is not necessary for me to determine whether the Judge has put an unwarranted gloss on the word by importing a public interest element.  That is because in my view this appeal must fail in any event for two reasons.

[16]      First, the purpose contemplated by the Handlers Certificate was expressly stated  to  be  “For  Pyrotechnic  Display”.    However,  the  evidence  was  that  the

appellant did not have displays in mind.  He was experimenting for its own sake.  I accept the point made by Mr McCall that anyone having the certificate must be able to  conduct  a  dress  rehearsal,  as  it  were,  for  the  display,  to  see  how  it  works. However, I do not consider there was sufficient evidence from which the Judge could be satisfied this was the appellant’s purpose.   At no stage during the police interview did he say he was building up a knowledge base for a pyrotechnic display.

[17]     Secondly, even if he did at one time have a sufficient purpose, the focus in law must be on the date of the offence.  In my view, as at the date of these offences, any sufficient purpose had expired.  In the appellant’s own words, the devices were “left over”, “put away” and “basically forgot about”.  In those circumstances, I do not accept it can be said he had a sufficient purpose on the day of the offence.

[18]     It follows from all of the above that I see no reason to interfere with the Judge’s decision.  In my view the appellant was not able to show on the evidence on the balance of probabilities that his purpose on the day in question was a lawful, proper and sufficient purpose.

[19]     The appeal is accordingly dismissed.

Solicitors:

Papprills, Christchurch

Crown Solicitor, Christchurch