COOPER v NEW ZEALAND POLICE [2020] NZHC 2514

COOPER v NEW ZEALAND POLICE [2020] NZHC 2514 [24 September 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-52[2020] NZHC 2514AMON ELBERT COOPERvNEW ZEALAND POLICEHearing: 1 September 2020Appearances: S W Campbell and B A Crowley for AppellantL R van der Lem for RespondentJudgment: 24 September 2020JUDGMENT OF CLARK JIntroduction[1] In a reserved decision issued 11 June 2020 Judge Johnston convictedMr Cooper of the following two charges:1(a) possession of a pipe for the purpose of consuming methamphetamine;2and(b) possession of a knife without reasonable excuse.31 New Zealand Police v Cooper [2020] NZDC 10643 [District Court decision].2 Misuse of Drugs Act 1975, s 13(1)(a)(iii), maximum penalty one year's imprisonment or $500fine.3 Summary Offences Act 1981, s 13A, maximum penalty three months' imprisonment or $2,000fine.[2] The Judge found that the warrantless search of the vehicle Mr Cooper wasdriving was unlawful and unreasonable and that the evidence "relating to the searches"was improperly obtained.4 He determined nevertheless, under s 30 of the EvidenceAct 2006, that excluding the evidence would be disproportionate to the impropriety.[3] Mr Cooper appeals his convictions on the basis that the evidence obtained fromthe unlawful search should have been ruled inadmissible and that the Judge erred infinding Mr Cooper lacked a reasonable excuse for possession of a knife. Broadlyspeaking, the respondent's case is that the breach was entirely technical and theexclusion of such probative evidence would amount to "judicial disciplining" of thePolice and would undermine the credibility of the justice system.[4] The appellant accepts that if his appeal is successful on the inadmissibilityground and the convictions are quashed then the other issues do not need to beaddressed.5Factual background[5] On 22 November 2019 around 11.30 pm, Mr Cooper was driving onMazengarb Road in Paraparaumu. Two of his friends, one of whom (Ms Cross) wasthe owner of the car, were passengers.[6] Constable Whitaker observed the car swerving and driving slowly. Heactivated the lights on his police vehicle requiring Mr Cooper to pull over.[7] Constable Whitaker approached the car and collected the details of theoccupants. His evidence was that as he took their details he noticed a glass pipesticking out of a "bum-bag" across Mr Cooper's chest and that he observed Ms Crossreach across and poke the pipe out of sight. Constable Whitaker returned to his vehicleand requested backup. At 11.45 pm two police units arrived. Constable Whitakerreturned to the vehicle and invoked a warrantless search under the Search and4 District Court decision, above n 1, at [51] and [67].5 The other issues being that the trial Judge failed to address Mr Cooper's evidence denyingpossession of the pipe and his reasoning was therefore inadequate, and as to the reason Mr Cooperhad a knife in his possession.Surveillance Act 2012. A methamphetamine pipe was found in a bag in the passengerfootwell. Prior to searching Mr Cooper, he was asked if he had anything in his pockets.Constable Whitaker's evidence was that Mr Cooper advised he had a knife. A smallcraft knife was located in Mr Cooper's pocket and a second, larger knife in a blacksheath, was located on the inside of Mr Cooper's trousers. Mr Cooper told the officerhe had the craft knife for tinting windows and the larger knife was for cutting apples.Mr Cooper was not charged in relation to the craft knife.The decision under appeal[8] Judge Johnston proceeded on the basis the actual powers available to, andutilised by, the officer were ss 20 and 21 of the Search and Surveillance Act.[9] Section 20 provides:20 Warrantless search of places and vehicles in relation to someMisuse of Drugs Act 1975 offencesA constable may enter and search a place or vehicle without a warrantif he or she has reasonable grounds—(a) to believe that it is not practicable to obtain a warrant and thatin or on the place or vehicle there is—(i) a controlled drug specified or described in Schedule1 of the Misuse of Drugs Act 1975; or(ii) a controlled drug specified or described in Part 1 ofSchedule 2 of the Misuse of Drugs Act 1975; or(iii) a controlled drug specified or described in Part 1 ofSchedule 3 of the Misuse of Drugs Act 1975; or(iv) a precursor substance specified or described in Part 3of Schedule 4 of the Misuse of Drugs Act 1975; and(b) to suspect that in or on the place or vehicle an offence againstthe Misuse of Drugs Act 1975 has been committed, or is beingcommitted, or is about to be committed, in respect of thatcontrolled drug or precursor substance; and(c) to believe that, if the entry and search is not carried outimmediately, evidential material relating to the suspectedoffence will be destroyed, concealed, altered, or damagedA constable conducting a search of a place or vehicle under s 20 may search any personin that place or vehicle without a warrant.6[10] In addressing whether or not Constable Whitaker had reasonable grounds tobelieve it was not practicable to obtain a warrant,7 Judge Johnston reviewed therelevant Court of Appeal authorities and in particular, the Court of Appeal'sconfirmation of the importance of the "warrant preference rule" principleunderpinning the Search and Surveillance Act.8[11] Noting that it was open to Constable Whitaker to apply orally for a searchwarrant but that he had never before done so and did not turn his mind to the possibilityof doing so on this occasion, Judge Johnston concluded Constable Whitaker did nothave an objective and credible basis for the belief it was not practicable to obtain awarrant. In other words, his Honour found that the search was unlawful.9 Havingmade this finding, it followed that the search of Mr Cooper was also unlawful.[12] Because they would be relevant to the admissibility assessment under s 30 ofthe Evidence Act 2006, the Judge considered the disputed evidence in light of the othercriteria necessary for the warrantless searches under s 20.10[13] First, although Mr Cooper's evidence was that he was not wearing, and did notown the "bum-bag" in question, the Judge accepted the officer's evidence as to whathe had observed. The veracity of the officer's evidence was supported by the fact amethamphetamine pipe of the kind he had seen was actually found in the vehicle.[14] Second, having concluded that Constable Whitaker did observe the pipe theJudge found the constable had reasonable grounds to suspect an offence under theMisuse of Drugs Act had been committed in the vehicle.6 Search and Surveillance Act, s 21.7 Section 20(a).8 District Court decision, above n 1, at [24] citing Hall v R [2018] NZCA 279, [2019] 2 NZLR 325at [56].9 At [29], [32] and [34].10 At [34].[15] Third, in terms of the constable's concern that the glass pipe he had seen wouldbe easily concealed or destroyed, the Judge accepted that Constable Whitaker had seenMs Cross poke the pipe down to conceal it from his view and that this was clearly anattempt to conceal the pipe. An attempt to conceal was a reasonable basis for a beliefthat if the search were not conducted quickly the pipe would have been concealed ordestroyed.[16] Having found the searches were both unlawful and unreasonable it followedthat the evidence obtained from them was improperly obtained. The Judge thenaddressed whether the evidence should be excluded under s 30 of the Evidence Act.After addressing the relevant factors he concluded that exclusion would bedisproportionate to the impropriety of the search.11[17] Next, the Judge considered whether the charges had been proved to therequisite standard. Having found on the balance of probabilities (for the purpose ofdetermining the lawfulness of the search) that Mr Cooper was in possession of themethamphetamine pipe the Judge was satisfied beyond reasonable doubt the defendantwas in possession of the pipe.12 As to the knife charge the Judge found Mr Cooper'sexplanation for needing the knife to cut an apple was "implausible, unconvincing andnot credible". It did not therefore amount to a reasonable excuse.The appeal[18] The respondent accepts the evidence obtained through the search of the vehiclewas improperly obtained but submits the Judge was correct to have held the evidencewas nonetheless admissible under s 30. This part of the appeal turns, therefore, onwhether the Judge was correct in his analysis under s 30 of the Evidence Act.[19] Under s 30:(2) The Judge must—11 At [52]–[56].12 At [58]–[59].(a) find, on the balance of probabilities, whether or not theevidence was improperly obtained; and(b) if the Judge finds that the evidence has been improperlyobtained, determine whether or not the exclusion of theevidence is proportionate to the impropriety by means of abalancing process that gives appropriate weight to theimpropriety and takes proper account of the need for aneffective and credible system of justice.(3) For the purposes of subsection (2), the court may, among any othermatters, have regard to the following:(a) the importance of any right breached by the impropriety andthe seriousness of the intrusion on it:(b) the nature of the impropriety, in particular, whether it wasdeliberate, reckless, or done in bad faith:(c) the nature and quality of the improperly obtained evidence:(d) the seriousness of the offence with which the defendant ischarged:(e) whether there were any other investigatory techniques notinvolving any breach of the rights that were known to beavailable but were not used:(f) whether there are alternative remedies to exclusion of theevidence which can adequately provide redress to thedefendant:(g) whether the impropriety was necessary to avoid apprehendedphysical danger to the Police or others:(h) whether there was any urgency in obtaining the improperlyobtained evidence.(4) The Judge must exclude any improperly obtained evidence if, inaccordance with subsection (2), the Judge determines that itsexclusion is proportionate to the impropriety.(5) For the purposes of this section, evidence is improperly obtained ifit is obtained—(a) in consequence of a breach of any enactment or rule of law bya person to whom section 3 of the New Zealand Bill of RightsAct 1990 applies;[20] As did Judge Johnston, I address the matters in s 30(3) to which the Court mayhave regard. I proceed on the basis that the evidence at issue is the pipe (there beingno dispute about possession of the knife).[21] The notes of evidence record that the audio was missing from 1400 – 1443.The notes commence with the continuation of the cross-examination ofConstable Whitaker. Mr Cooper had been, as Constable Whitaker put it "entirely co-operative and volunteered information that he had a couple of knives on him". Theknives were given to Constable Whitaker. Mr Cooper was arrested. The vehicle wasthen searched and the pipe was found during the search. There was no challenge tothe officer's evidence as to the sequence of arrest and search.The importance of the right breached by the impropriety and the seriousness of theintrusion on the right: s 30(3)(a)[22] The respondent submits there was only a technical impropriety as the Policecould have lawfully searched the vehicle without a warrant under s 84 of the Searchand Surveillance Act following the defendant's arrest. Further, the privacy rightattaching to a vehicle is low and Mr Cooper was not the owner of the vehicle.[23] The Crown made a similar argument in R v Anderson.13 While the Court ofAppeal accepted that the right to privacy in relation to a vehicle is "somewhat lessthan that relating to the person or the home", it is still a real right.14 Judge Johnstonrecognised the defendant had a privacy interest to which he was entitled although itwas a lesser privacy interest as he was not the owner of the vehicle.15 That view,however, does not reflect the Court of Appeal's approach. In R v Anderson the Courtsaw no basis for distinguishing between the driver and passenger. They both had areasonable right to privacy as they were both lawfully in the vehicle.[24] There is a further, and fundamental, point. The right infringed was not simplya right to privacy. It was the right to be secure from unreasonable search and seizure.And, as the Court of Appeal recently emphasised, that right is confirmed by s 21 of13 R v Anderson (2005) 21 CRNZ 393 (CA) at [44].14 At [46].15 District Court decision, above n 1, at [53](a).the New Zealand Bill of Rights Act 1990 (NZBORA).16 Thus, the right infringed is asignificant right, one that is protected by NZBORA. In Hamed v R Elias CJ describedthe s 21 NZBORA right in the following way:17Section 21 protects personal freedom and dignity from unreasonable andarbitrary State intrusion. Whether such intrusion is unreasonable or arbitraryis objectively assessed according to the standard of what limitation onpersonal freedom can be "demonstrably justified in a free and democraticsociety". The right protects privacy but, more fundamentally, it holds aconstitutional balance between the State and citizen by preserving space forindividual freedom and protection against unlawful and arbitrary intrusion byState agents. It describes a "right to be let alone". Police investigation whichinvades such private space constitutes search within the meaning of s 21. Itmay be undertaken through remote technology or through in personobservation. I therefore take the view, differing from that expressed byBlanchard J, that s 21 guarantees reasonable expectations of privacy fromState intrusion.[25] Mr Campbell also referred to the purpose provisions in the Search andSurveillance Act and the Evidence Act. The purpose of the Search and SurveillanceAct is set out in s 5:5 PurposeThe purpose of this Act is to facilitate the monitoring of compliancewith the law and the investigation and prosecution of offences in amanner that is consistent with human rights values by—(a) modernising the law of search, seizure, and surveillance to takeinto account advances in technologies and to regulate the use ofthose technologies; and(b) providing rules that recognise the importance of the rights andentitlements affirmed in other enactments, including the NewZealand Bill of Rights Act 1990, the Privacy Act 1993, and theEvidence Act 2006; and(c) ensuring investigative tools are effective and adequate for lawenforcement needs.[26] The purpose of the Evidence Act is set out at s 6:6 PurposeThe purpose of this Act is to help secure the just determination ofproceedings by—16 Court v R [2020] NZCA 76 at [20].17 Hamed v R [2011] NZSC 101, [2012] NZLR 305 at [10] (footnotes omitted).(a) providing for facts to be established by the application of logicalrules; and(b) providing rules of evidence that recognise the importance of therights affirmed by the New Zealand Bill of Rights Act 1990; and(c) promoting fairness to parties and witnesses; and(d) protecting rights of confidentiality and other important publicinterests; and(e) avoiding unjustifiable expense and delay; and(f) enhancing access to the law of evidence.[27] As Mr Campbell submitted, these provisions suggest the balancing exerciseunder s 30 of the Evidence Act is to be approached in a way that is human-rightsfocused. But it is also apparent from the purpose provisions set out above at [25] and[26] that other values are also engaged, for instance, law enforcement needs includingfacilitating the investigative process. Included in the assessment of a proportionateresponse to the breach is " the Government interest in adducing the evidence inquestion".18 I accept also that a human-rights focus tends to favour exclusion ofevidence obtained in breach of the s 21 NZBORA right to be secure againstunreasonable search and seizure.The nature of the impropriety: s 30(3)(b)[28] I agree with the Judge's conclusion that the conduct of the officer was notreckless or in bad faith but he nonetheless failed to have regard to the practicality ofobtaining a warrant and did not apply for one.The nature and quality of the evidence: s 30(3)(c)[29] The appellant's position is that the evidence has reduced weight in light of theissues raised around the chain of custody, proof of possession, the fact the pipe wasseized from the front passenger foot well and the lack of any photographs or propertyrecord of the "bum-bag". I tend to favour the respondent's submission that the pipe is"highly probative physical evidence" when considered with the constable's evidencethat he saw the pipe poking out of a bag in the appellant's possession.18 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [297].Seriousness of the offence: s 30(3)(d)[30] I share the Judge's view that possession of a pipe is not a particularly seriousoffence. It carries a maximum penalty of one year's imprisonment. I do not considerthe position in relation to the knife because, as I have mentioned, it was not seizedpursuant to a search — lawful or otherwise.Known alternative investigative techniques: s 30(3)(e)[31] In his report, the constable stated the search power used was s 81. He believedat the stage he carried out the search that s 81 was the correct power but accepted incross-examination it was not. In those circumstances I think it is unrealistic to suggestthat, approaching midnight, the occupants should have been detained in their carpending a warrant.Remedies alternative to exclusion: s 30(3)(f)[32] Neither party suggests a remedy for the breach alternative to exclusion of theevidence.Avoiding physical danger to police or others: s 30(3)(g)[33] The Judge approached this factor on the basis the officer was unaware of thefact Mr Cooper had a knife in his possession when conducting the warrantless search.But at the stage when the search was carried out, the constable was aware of the knivesand Mr Cooper had been arrested.[34] Again, the evidence that is the subject of the s 30 assessment is the pipe. Thereis no suggestion there was any apprehension of physical risk or danger at any time,much less when the search was carried out.Urgency: s 30(3)(h)[35] The constable had observed an attempt to conceal the pipe. There were threeoccupants in the car and his evidence was that a glass pipe was readily concealed ordestroyed. While he was aware a vehicle could be detained for up to six hours he didnot regard this as practicable. At that time of night transport would have to beorganised to get the three occupants to their homes. I share the Judge's view that therewas a moderate degree of urgency to the search.The balancing process[36] Two factors tend to favour exclusion. The first is the low-level nature of theoffence of possession of a pipe. While the serious nature of an offence tends to favourinclusion of the evidence, in this case the offence of possession of a pipe is low-leveloffending. That fact points towards exclusion.19[37] The second factor tending to favour exclusion is the fact that the constable wasunaware he had an ability to apply for a warrant by placing a phone call. Given hisyears of experience it was reasonable to expect that he ought to have been aware ofthe important facilitative power in s 100(3) whereby an application for a searchwarrant may be made orally "for example, by telephone call". It has been said that a"credible system of justice ought not to countenance" the sort of poor police practicethat has police conducting searches under mistaken understandings of their powers.20[38] Standing back, however, I consider that exclusion of the evidence on thesebases would not be proportionate to the impropriety. The fact lawful investigatorytechniques were available favours admission21 although I do not agree with therespondent that the search could have been conducted under s 84 of the Search andSurveillance Act. Section 84 provides:84 Warrantless entry and search of vehicle after arrestA person to whom this subpart applies who has arrested a person andwho has reasonable grounds to believe that evidential material relatingto the offence for which the person was arrested is in or on a vehiclemay enter and search it without a warrant.[39] The arrest appears to have been in relation to the knives. There is no evidencethat the constable searched the vehicle because he had "reasonable grounds forbelieving that evidential material relating to the offence for which [Mr Cooper] was19 See for example Rihia v R [2016] NZCA 200 at [22].20 Kueh v R [2013] NZCA 616 at [52].21 McGarrett v R [2017] NZCA 204 at [38].arrested",22 (the knives) was in the vehicle. On the facts s 84 would not haveauthorised a warrantless search.[40] The constable, however, had seen the meth pipe. Section 123 permits an officerwho is lawfully in any place or vehicle to seize items in plain view. In this instancethe constable had reasonable grounds to believe he could have seized the item underanother search power exercisable under the Search and Surveillance Act.23 Theconstable had reasonable grounds to believe that an offence against the Misuse ofDrugs Act was to be, or had been, committed in relation to methamphetamine; and hehad reason to believe that if the search was not carried out immediately the glass pipemight be destroyed or concealed.[41] On two occasions the Court of Appeal has found the balance under s 30 clearlyfavours admission of evidence obtained from an unlawful search where the error as tothe search power was made in good faith in the context of urgency and uninvokedpowers to secure the same evidence in fact existed. As in those cases there was noadditional restraint on Mr Cooper compared with what would have been the case hadthe correct power been relied on and no other prejudice to him arose as a result of thewrong power being relied upon.24[42] In reaching this conclusion I bear in mind the appellant's emphasis onLethbridge v New Zealand Police, a decision in which Cull J reviewed the approachof recent authorities to the "warrant preference" rule and its ambit.25 Even if thewarrant preference rule is at play in this case, there is an important distinction betweenthe two cases. The warrantless search at issue in Lethbridge involved an officerclimbing through a window into the house. He began to look for the weapon heunderstood to be there (an axe), took photos of items he found then seized the itemsand left. The impropriety in Lethbridge was plainly more egregious.[43] I am satisfied that in this case, as in Rihia v R, a credible system of justice doesnot require exclusion of the evidence in the context I have described at [40] and [41].22 Search and Surveillance Act, s 84.23 Section 123(2).24 Kueh v R, above n 20, at [50]; and Rihia v R [2016] NZCA 200 at [38].25 Lethbridge v New Zealand Police [2018] NZHC 2240.[44] I turn now to Mr Cooper's appeals against conviction.The appeals against convictionCharge of possession of methamphetamine pipe[45] In this part of his appeal Mr Cooper argues that, in his reserved decision, theJudge did not properly address Mr Cooper's evidence; no credibility finding wasmade; and the Judge erred in finding facts both on the balance of probabilities andbeyond reasonable doubt. Mr Campbell submitted the failure to properly address andassess the evidence has resulted in a miscarriage of justice.26[46] The Judge's determination of this charge appears at [57]–[59] of his decisionwhere he makes the following points:(a) It was accepted that the pipe was one used for smokingmethamphetamine.(b) Having found, on the balance of probabilities for the purposes ofdetermining the lawfulness of the search that Mr Cooper was inpossession of the pipe, the Judge said he must decide whether it wasestablished beyond reasonable doubt that Mr Cooper was in possessionof the pipe for the purpose of the charge under the Misuse of Drugs Act.(c) The Judge accepted the evidence of Constable Whitaker that he hadobserved Mr Cooper in possession of the pipe in a bum bag across hischest. That being consistent with the timeline of events from therequest for backup up to the point of the search, the Judge was "satisfiedbeyond reasonable doubt that the defendant was in possession of thepipe".27[47] The respondent submits that as Mr Cooper's and Constable Whitaker'saccounts were "diametrically opposed" and the Judge accepted Constable Whitaker's26 Criminal Procedure Act, s 232(2)(b) and (c).27 District Court decision, above n 1, at [59].evidence then "by definition" that involved a complete rejection of the appellant'saccount. The respondent stressed the following passage of the Supreme Court decisionin Sena v New Zealand Police:28What is required are reasons which address the substance of the case advancedby the losing party. Depending on the circumstances, this can be achievedwithout necessarily referring in detail (or sometimes at all) to every issue orargument which that party has advanced.[48] The respondent submitted Sena permits a Judge's reasons to be tacit in somecircumstances. I accept that reasons may sometimes be inferred. As theSupreme Court stated in Sena "appellate courts should assess reasons contextually allowing for the burden for judges of balancing the need for prompt determination ofcriminal cases with other workload requirements".29 Judge Johnston engaged in ameticulous analysis of the factors relevant to the s 30 admissibility point but in dealingwith this charge it is not apparent that the Judge engaged with Mr Cooper's evidence.Mr Cooper's evidence, broadly, was as follows:(a) he denied possessing the pipe or knowing it was in the vehicle;(b) he denied knowing there were any scales or snap lock bags in thevehicle (which were seized during the search);(c) the front passenger, Ms Cross, did not reach across and poke amethamphetamine pipe down into a chest bag allegedly carried byMr Cooper; and(d) he denied carrying or ever possessing a chest bag as he was alleged tohave been wearing.[49] The Judge clearly preferred Constable Whitaker's evidence. But even wherethe Judge has a "conclusory credibility preference" the expectation is that there willbe a judicial assessment of the evidence, an engagement with the case and, anidentification of the critical issues and a considered basis for the conclusion reached.3028 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [37].29 At [37].30 At [36].[50] That was necessary in this case because there were three individuals in the car.Mr Cooper did not own the car. He was the driver and the pipe was found in the frontpassenger footwell in a black case. It is significant, I think, that no chest/bum bag wasseized or photographed at the scene. The constable had not recorded his observationin his notebook nor in the post-search report. There being no evidence beyond theconstable's as to what he saw, as Mr Campbell put it, combined with Mr Cooper'sevidence a reasonable doubt was raised about the prosecution case and the reliabilityof the constable's memory of the incident.[51] The usual approach on appeal would be for the appeal court to assess theevidence but unfortunately there is no record of Constable Whitaker's examination-in-chief. As I have mentioned, a 43 minute chunk is missing from the notes ofevidence.[52] The Judge was obliged to record, even briefly, a credibility finding. Thedecision contains no assessment of the appellant's evidence or why it was implicitlyrejected in whole or in part. While occasionally it will be necessary to infer reasons,where a witness's evidence has been rejected in its entirety, it is necessary to say why.[53] Even accepting that only minimal reasons were required in light of the low-level seriousness of the offence,31 an implicit global credibility finding wasinsufficient.32 The meth pipe was of course found. But there was no evidence of the"bum-bag" from which the pipe was said to be protruding. Mr Cooper's credibilitywas not challenged in cross-examination. It was necessary for the Judge to explainhow the issues had been resolved: "[r]easoning which consists of a conclusorycredibility preference is unlikely to suffice".33[54] I am satisfied in the circumstances I have outlined, that the failure to provideany reasons frustrates the assumption underlying s 232(b) of the Criminal Procedure31 At [37].32 I say "implicit" because the Judge's determination of this charge, (set out above at [46]) involvesa simple acceptance of the officer's evidence that he observed the pipe in the bag.33 Sena v New Zealand Police, above n 28, at [36].Act and engages s 232(c). As the Supreme Court has stated, "a reasoned judgment isessential to a fair trial".34[55] The appellant has made out this ground of appeal. The conviction forpossession of a pipe is set aside. I decline to order a new trial. In reaching that decisionI take into account the minor nature of the offence and the expense and length of timebefore a retrial is likely to be heard as a result of the backlog of criminal trialsoccasioned by the nationwide Covid-19 lockdowns. Furthermore, Mr Cooper willhave served almost half of the nine months supervision to which he was sentenced.Charge of possession of a knife[56] Mr Cooper's evidence was that:(a) he had used the knife to cut weed mat earlier in the day at his addressand then later to cut an apple;(b) he had holes in his teeth so he needed to cut the apple into bite sizedpieces;(c) he wiped the knife on his tee-shirt before putting it into its sheath; and(d) he did not return to the house to leave it there as he couldn't "bebothered walking back up to the house" because he was at the car bythe time he had eaten the apple.[57] The Judge found that Mr Cooper's excuse was "implausible, unconvincing andnot credible. It does not amount to a reasonable excuse."35 Mr Cooper provided theevidential basis for his reasonable excuse but it appears from the Judge's reasoningthat he regarded Mr Cooper as having to "prove" his excuse to a higher standard thanan "evidential basis". In fact, once Mr Cooper had provided an evidential basis for areasonable excuse, the burden passed to the prosecution to prove beyond reasonable34 At [36].35 District Court decision, above n 1, at [65].doubt that Mr Cooper did not have a reasonable excuse.36 In my view the prosecutionwas unable to do so for the following reasons.[58] With respect to the learned Judge I do not share the view he has taken of theevidence. First, Mr Cooper's account seems to have been rejected, in part, becausethe Judge could see no time when Mr Cooper could have cut the apple as he wasdriving. But Mr Cooper was clear when he was cross-examined on this point:A. Just for cutting the weed mat, as well as, as we were leaving I used itto, what do you call it, cut an apple, to smaller bite sized pieces.Q. But you were driving?A. Yes.Q. Okay so you're driving along the road cutting up this apple into bitesized pieces?A. No, I had done that before we left.Q. So before you got into the car?A. Correct.Q. In the house?A. No, in the driveway.Q. In the driveway? Okay but at your home address?A. Yes.[59] Thus, Mr Cooper explained where he was when he cut up the apple.Mr Cooper's evidence was recorded inaccurately in the District Court decision.Mr Cooper did not say he carried the "knife with him so that it was later available tocut an apple".37[60] This impression of Mr Cooper's evidence possibly affected the way in whichthe Judge viewed Mr Cooper's other explanations. The Judge said there was nocorroborating evidence of apples or leftover pieces of apple in the vehicle or any appleresidue found on the knife. But why would there be leftover pieces of apple if, as36 See R v Gorrie [2007] NZCA 144, [2008] 3 NZLR 620; and R v Rangi [1992] 1 NZLR 385 (CA).37 At [62].Mr Cooper said, he had finished eating it by the time he left the address? And theknife was not tested for any kind of residue.[61] The Judge also asserted that it did not seem reasonable to take a knife of thissize and type to cut an apple — without saying why. I was shown a photograph of theknife alongside a biro. The blade and length of the biro were comparable. It seems tome perfectly reasonable to expect that people will cut apples with knives having evenlarger blades. I make the further observation that the knife was not so large thatMr Cooper was unable to be seated, driving the car with the knife in his trousers.[62] The reasonableness of Mr Cooper's excuse is to be judged in light of theparticular circumstances.38 Mr Cooper explained he had been using the knife as a toolearlier in the day and simply kept it with him instead of returning it to the house whenhe left to drop his friends home. Mr Cooper estimated the journey would be no morethan half an hour. In the circumstances, Mr Cooper's reasons were capable ofconstituting a reasonable excuse.[63] For the reasons set out at [58]–[62] the respondent has not disprovedMr Cooper's excuse. It follows the conviction was entered in error.Disposition[64] The appeals against the convictions on both charges are allowed. Theconvictions are set aside and acquittals are to be entered._____________________________Karen Clark JSolicitors:Public Defence Service, Wellington for AppellantCrown Solicitor, Wellington for Respondent38 Police v Wineera (1989) 4 CRNZ 449 (HC); and R v Hyde (1990) 7 CRNZ 366 (HC).