The Queen v Harris

[2007] NZCA 390

IN THE COURT OF APPEAL OF NEW ZEALAND

CA176/07
[2007] NZCA 390

THE QUEEN

v

LEE ANTHONY HARRIS

Hearing:22 August 2007

Court:Arnold, Gendall and Priestley JJ

Counsel:J K W Blathwayt for Appellant

A Markham for Crown

Judgment:6 September 2007 at 11.30 am

JUDGMENT OF THE COURT

APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gendall J)

[1]       Shortly after midnight on 28 July 2006 Mr Harris was driving a vehicle in the company of a female friend, Ms O’Connell, in central Masterton when it was stopped by police officers on mobile patrol.  A large knife was located down the front seat and Mr Harris was found guilty after a jury trial of having the knife with him in a public place without lawful authority or reasonable cause.

[2]       He appeals against his conviction primarily on the basis that the jury’s verdict was not supported on the evidence.  Subsidiary grounds advanced were that there was no evidence of intent to unlawfully use the knife; hearsay evidence ought not to have been admitted; and, because the vehicle may not have been lawfully stopped, any subsequent search of it was unlawful.

Background

[3]       The police stopped Mr Harris’s vehicle, they said, to undertake a routine check of registration, driver’s licence, and warrant of fitness.  It was not suggested to them in evidence that the stopping was for any other reason.  One police officer spoke to Mr Harris and as the vehicle was a left-hand drive, he was nearest the kerb.  In the roadway, another officer spoke with Ms O’Connell.  He smelt cannabis.  Mr Harris and Ms O’Connell were told that they and the vehicle were to be searched pursuant to s 18 of the Misuse of Drugs Act 1975.  The odour was not imagined as Ms O’Connell later said that she had “smoked a joint”.  She got out of the car so as to undergo a personal search.  She took off her jacket and emptied her pockets at the roadside.  She then left to go to a toilet at a nearby service station.

[4]       In the meantime, a police officer had thoroughly searched the inside of the vehicle and found nothing that interested him.

[5]       Mr Harris was then outside the vehicle.  He agreed to be searched.  First, he removed his jacket and placed it on the outside of the vehicle.  But he then went to the driver’s door, and removed items from his pocket and placed them onto a seat inside the vehicle.  The vehicle was searched again.  A number of items that had not initially been present were on the seat inside the vehicle, namely a wallet, some keys and coins, and a sheath for a knife.  The knife was located between the back and bottom of the seat.  On her return Ms O’Connell said to an officer that the knife was hers.  Mr Harris denied any knowledge of the weapon or that it was his. 

[6]       The appeal raises the following issues:

(a)Should the jury’s verdict be set aside on the basis that it was unreasonable or could not be supported having regard to the evidence (s 385(1)(a) Crimes Act 1961)?

(b)Does an offence against s 202A(4)(a) of the Crimes Act require proof of some intent or circumstance that points to an unlawful purpose for possession of a knife in a public place?

(c)Was hearsay evidence that Ms O’Connell refused to make a statement to the police on a later occasion improperly admitted, so as to result in unfairness to the appellant and a risk of miscarriage of justice?

(d)Was the stopping of the vehicle and subsequent search unlawful, because it was for purposes extraneous to road safety or the provisions of the Land Transport Act 1998?

Was the verdict supported by the evidence?

[7]       A verdict is unreasonable and cannot be supported having regard to the evidence only if a court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the appellant’s guilt: R v Ramage [1985] 1 NZLR 392, 393 (CA). It is not enough that an appellate court might simply disagree with the verdict of the jury.

[8]       The Crown case against Mr Harris depended to a large extent upon circumstantial evidence and the inferences, if any, that could be drawn from it.  No challenge is made to Judge M J Behrens QC’s summing up.  He accurately directed the jury on the issue of circumstantial evidence.

[9]       When the initial search was made neither the knife nor sheath were found.  It was a methodical search.  Was it open for the jury to conclude that the appellant, when shielded from the sight of the police officers, and emptying his pockets into the vehicle, had placed the knife and sheath in it at the same time?  There was evidence that the sheath, although separated from the knife, was warm.  This was consistent with it having come from someone’s body, and that could only have been the body of the appellant.

[10]     The defence suggestion was that the knife belonged to Ms O’Connell given her statement at the scene that she thought it was hers.  That statement however was hearsay and could not be treated as proof of its content, although it was properly admitted in evidence as to the fact that it was made.  Ms O’Connell was not called as a witness for the prosecution or defence.  No evidence was called for the defence and the jury had, apart from the evidence of the police officers, only the statement of the appellant to the effect that the knife was not his and he did not know whose it was.

[11]     There was ample evidence to enable the jury to properly draw the inference that the knife and sheath had been on the appellant’s person immediately before it was placed, by him, inside the vehicle.  The evidence was not left in such a state that no reasonable jury could have found the count to be established beyond a reasonable doubt.  Judge Behrens so ruled when dismissing the s 347 application made at the end of the Crown case, and he was correct.

[12]     This ground of appeal fails.

Elements of the offence

[13]     We do not accept the appellant’s argument that, apart from proof of possession of a knife by an offender or having it “with” him/her, the Crown was required to prove some nefarious intent before such possession was an offence against s 202A(4).  There is a distinction between weapons offensive per se, where the prosecution is not required to prove an intent to cause injury, and weapons offensive only if accompanied by such an intent.

[14]     Mr Blathwayt accepted that the knife was in a public place but argued that an ordinary object such as a knife does not become a weapon for the purposes of the section, unless there is some untoward intent or circumstance accompanying the possession.  That may have been the position under earlier authorities such as Police v Smith [1974] 2 NZLR 32 (SC) where an article is not an offensive weapon per se. But it is not the case now with knives. Subsection 4(a) was amended in 1987 to place knives into the category of being offensive weapons per se.  This came against a background of legislative concern about ready resort in violent encounters to knives being carried upon persons.

[15]     Once the prosecution proves that an accused had, in a public place, a knife, then there must be some evidentiary foundation to support a claim of reasonable excuse, or lawful authority for possession of the knife.  None existed here.

[16]     There is no substance to this ground of appeal.

Admission of hearsay evidence

[17]     Apart from the evidence as to what Ms O’Connell said at the scene (not disadvantageous to Mr Harris), the evidence of the officer in charge of the case was that another officer later spoke to Ms O’Connell seeking to obtain a statement, but that she refused to give one.  The words of her refusal were not led.  Strictly speaking, the evidence of the officer in charge was hearsay.

[18]     But we cannot see that any prejudice arose to the appellant through the evidence that Ms O’Connell declined to make a statement being led.  The Crown did not suggest that this carried any implication that she resiled from an earlier claim to ownership at the scene, which the Judge correctly rejected.  Naturally, the evidence of Ms O’Connell refusing to make a statement had no relevance and ought not to have been led, but it could not possibly be said that this resulted in any unfairness or prejudice to the appellant.  Mr Blathwayt contended that he should have been able to elicit in evidence the contents of the jobsheet, ie, statements made to an officer who was not giving evidence.  Simply to state the proposition illustrates the futility of the application, which the Judge was entirely correct in rejecting.

Unlawful search

[19]     Mr Blathwayt acknowledged that this ground arose as an “after thought”.  No challenge was made to the search, whether in a s 344A application, or at trial.  The best that can be said by the appellant is that it may have been that the stopping of the vehicle by the police officers was not a bona fide exercise of their powers.  If that was the case, everything that flowed from it, including the search under the Misuse of Drugs Act, was flawed and the evidence of locating the knife inadmissible. 

[20]     That is speculation.  There was no evidentiary foundation of ulterior purpose.  The Judge had not been required at a voir dire to determine the issue of the good faith of the police officers.  Nor was it put in issue at trial.  There existed no evidential foundation for any claim that the stopping was unlawful.  It is too late for the appellant to endeavour to raise that claim at this stage.

Conclusion

[21]     None of the grounds advanced in support of the appeal have any substance.  No risk of miscarriage of justice arises and the verdict was not unsafe.  The appeal is dismissed.

Solicitors:
WCM Legal, Carterton for Appellant
Crown Law Office, Wellington