The Queen v Mackenzie

[2007] NZCA 8

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 430/06
[2007] NZCA 8

THE QUEEN

v

JOHN TE HUIA MACKENZIE

Hearing:12 February 2007

Court:Robertson, Ronald Young and Venning JJ

Counsel:P T R Heaslip for Appellant

E M Thomas for Crown

Judgment:16 February 2007 at 3 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       This appeal raises the issue of the duplication of charges. The appellant was charged on 26 September 2005 that:

(a)contrary to s 45 of the Arms Act 1983 he carried a firearm without lawful, proper and sufficient purpose (maximum penalty, four years’ imprisonment);

(b)contrary to s 47 of the Arms Act he was in charge of a firearm whilst under the influence of drink to such an extent as to be incapable of having control of the firearm (maximum penalty, three months’ imprisonment); and

(c)contrary to s 52(1) of the Arms Act he presented a firearm at Constable Copeland (maximum penalty, three months’ imprisonment).

[2]       The appellant pleaded guilty to the s 47 charge and was convicted and sentenced to two months imprisonment.  He elected trial by jury on the s 45 charge and pleaded not guilty to the s 52 charge.  An indictment was presented by the Crown on the s 45 charge.  At a pre-trial hearing, Judge Kerr ruled that there was no duplication.

[3]       As a result of the ruling by Judge Kerr, the appellant pleaded guilty to the ss 45 and 52 charges.  On the s 45 charge he was convicted and sentenced to six months’ imprisonment concurrent with the two months’ imprisonment imposed on the s 47 charge.  On the s 52 charge he was convicted and discharged.

[4]       The appellant has three grounds of appeal:

(a)charging the appellant with three offences under the Arms Act, offends against the prohibition in s 10(3) of the Crimes Act 1961;

(b)the s 45 charge is substantially the same as the s 47 charge (to which the appellant pleaded guilty) but with an allegation of aggravation.  Thus the appellant says the Crown were barred from presenting an indictment with respect to the s 45 charge pursuant to s 359(1) of the Crimes Act; and

(c)there has been a miscarriage of justice (s 385(1)(c) Crimes Act) in allowing the prosecution to proceed with all three offences.

Background facts

[5]       On the 26^th of September 2005 the appellant was seated in his car in Newton, Auckland, when the police observed he was inhaling petrol and paint from a plastic bag.  The police asked the appellant to get out of the car to be searched.  He did so.  After the search the appellant reached into the back seat of the car and picked up an air gun, pointed it at a police constable and swore at him.  The appellant then threw the air gun into the back of the car and explained to the constable he had only been joking.  He was then arrested and charged with the three offences.  The airgun was said to be indistinguishable from a “real” firearm.

Submissions and discussion

[6]       The first ground of appeal requires consideration of the application of s 10(3) of the Crimes Act to the facts of this case.

[7]       Section 10(3) provides as follows:

10       Offence under more than one enactment

. . .

(3)Where an act or omission constitutes an offence under 2 or more provisions of this Act or of any other Act, the offender may be prosecuted and punished under any one of those provisions.

[8]       The appellant submitted that subs (3) provided where, as here, an act gives rise to an offence under two or more provisions of the Arms Act the Crown may proceed only to prosecute under one of those provisions.  The effect, therefore, in this case the appellant submits is the prosecution could only bring and the Court could only punish the appellant for one offence.  The appellant submitted that, given he had pleaded guilty and been sentenced first with respect to the s 47 charge, then the other two charges (s 45 and s 52) should be seen as offending against s 10(3). 

[9]       We are satisfied on the facts of this case the three distinct charges that were laid contained different elements which the Crown was required to prove and therefore s 10(3) can have no application: see R v Clarke [1982] 1 NZLR 654 (CA).

[10]     In Clarke the Court were concerned with s 10(1), an equivalent section to subs (3) but where the act alleged is an offence under the Crimes Act and any other Act.  In considering the application of subs (1) and whether it was restrictive or permissive, the Court said at 656:

Even if that subsection be interpreted as restrictive and not permissive - we do not determine the point which was not fully argued and only note the contrary view in Adams on Criminal Law and Practice in New Zealand (2^nd ed) para 178 - the act or omission of the applicant constituting each offence was not the same or substantially the same.

[11]     In the s 47 charge the Crown must establish that the accused was in charge of an air gun whilst under the influence of alcohol.  In the s 45 charge the Crown must establish the appellant was carrying the gun without lawful or sufficient purpose.  And with respect to the s 52 charge the Crown must establish the appellant presented the gun to the police constable.  Each charge has therefore distinctive acts distinguishing that charge from the others.  For example, in the s 47 charge, the appellant must have been under the influence when in charge of the gun, in the s 45 charge the appellant must have been carrying the gun, and in the s 52 charge the appellant must have presented the gun.  We are satisfied, therefore, that each charge has a distinctive act distinguishing that charge from the others.  It cannot be said that the acts constituting each offence are the same or substantially the same.  We are satisfied, therefore, there was no breach of s 10(3) of the Crimes Act.

[12]     The second ground of appeal is, in substance, no different from the first ground.  Section 359(1) of the Crimes Act provides as follows:

359     Second accusation

(1)Where an indictment charges substantially the same offence as that with which the accused was formerly charged, but adds a statement of intention or circumstances of aggravation tending if proved to increase the punishment, the previous acquittal or conviction shall be a bar to the indictment.

[13]     The appellant initially pleaded guilty to the s 47 charge.  He later elected trial by jury on the s 45 charge and ultimately the Crown filed an indictment with respect to that allegation.  The appellant’s submission is that the s 45 charge laid by indictment after the guilty plea to the s 47 charge increased the penalty the appellant faced and therefore offended against s 359(1). 

[14] First, we are satisfied that the s 45 charge is not substantially the same as the s 47 charge or the s 52 charge for reasons already given [11]. In the s 45 charge the essence of the allegation is carrying the gun without lawful or sufficient purpose. This differs markedly from the allegation under s 47 which is being in charge of a firearm while under the influence of alcohol.

[15]     Secondly, the s 45 charge does not “add a statement of intention or aggravation”.  In R v Lee [1973] 1 NZLR 13 (CA) there was a previous charge of possession of LSD to which the appellant had pleaded guilty and been sentenced. By indictment he was charged with possession of the same LSD for sale or supply. The Court said at 16:

Section 359, the section which is invoked in the present case, has a rather wider range. It deals with cases in which the charges presently preferred against the accused are not precisely the same as those upon which he was previously acquitted or convicted, but are "substantially" the same, the only difference lying in the fact that in the second prosecution he is charged with a graver offence, owing to the inclusion in the allegations of an element of intention or aggravation omitted in the definition of the offence with which he was charged earlier.

[16]     In this case, the s 45 charge does not allege any additional statement of intention or aggravation to the s 47 charge to which the appellant pleaded guilty.

[17]     We are satisfied, therefore, that s 359(1) of the Crimes Act has no application to the facts of this case.

[18]     As to the third ground of appeal the appellant submits that the degree of unfairness in proceeding against this appellant for three offences arising from the one set of facts is so substantial that a miscarriage of justice has occurred (see s 385(1)(c) Crimes Act).  We reject this ground of appeal.  As the Crown acknowledged, the appellant’s actions may not have required his prosecution for three separate charges for this conduct.  However, the charges were open to be laid on the facts.  We note that on the ss 45 and 47 charges, the appellant was sentenced to concurrent terms of imprisonment whilst the s 52 charge was dealt with by way of a conviction and discharge.

[19]     For the reasons given the appeal will be dismissed.

Solicitors:

Crown Law Office, Wellington