WEBSTER v NEW ZEALAND POLICE [2019] NZHC 1335

WEBSTER v NEW ZEALAND POLICE [2019] NZHC 1335 [13 June 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-090[2019] NZHC 1335BETWEEN COLIN WEBSTERAppellantAND NEW ZEALAND POLICERespondentHearing: 28 May 2019Appearances: S Kimberley and R N Roy for the AppellantS M Murphy for the RespondentJudgment: 13 June 2019JUDGMENT OF PALMER JSolicitors: Crown Solicitor, ManukauPublic Defence Service, ManukauSummary[1] In August 2018, Mr Colin Webster called for Police assistance at his home inManurewa, Auckland, because of an altercation with his methamphetamine-addictedson. Mr Webster was highly agitated and holding a metal pole a short distance fromhis son when the Police arrived. The two constables did not know quite what thesituation was. One entered his property, without permission, to ask questions and MrWebster pushed him away. He was charged with behaving in a disorderly manner, towhich he pleaded guilty. He was also charged with assaulting a police officer in theexecution of his duty and possession of an offensive weapon, to which he pleaded notguilty but was convicted after a trial. He appeals.[2] A reasoned judgment is essential to a fair trial. The judgment under appeal didnot identify the law, or directly engage with the issue, of the lawfulness of theconstable's presence on Mr Webster's property. I do not consider the constable waslawfully on the property and, therefore, he was not in the execution of his duty. Neitherdid the judgment under appeal identify the legal definition of an offensive weapon orprovide any reasoning about whether its possession was proved. I do not consider theevidence sustains, beyond a reasonable doubt, that the metal pole was intended by MrWebster for the use of causing bodily injury or that he had no reasonable excuse tohold it. Accordingly, there was a miscarriage of justice in respect of each conviction.I allow the appeal of both convictions and set aside the sentences. I also set aside thesentence of community work for behaving in a disorderly manner, which was notlawfully available.What happened?[3] Mr Webster's evidence was that his son had been struggling withmethamphetamine addiction issues for five years and Mr Webster had previouslycalled the Police for assistance at his home on a number of occasions. In the earlyhours of 13 August 2018, he said he had had an altercation with his son who had rippedtheir mail box out of the ground. Three hours later he called the Police. They arrivedaround midnight, as he was chasing his son away from the driveway and away fromhis other son's car. Mr Webster said he was pleased the Police had arrived, he walkedback into his property and told them his son was a P-head and they needed to take himaway.[4] The evidence of Constables Mendoza and Park was that they saw Mr Webstereither inside or outside his fence waving or brandishing a metal pole. His son wasabout three to six metres away on the street or near the footpath. At trial Mr Websterdenied holding a metal pole or bar though he accepted there was a bar inside the fence.There was a lot of screaming and shouting by Mr Webster and his son. Constable Parksaid he secured details from the son, who he observed to be unaffected by drugs oralcohol. Constable Mendoza said he told Mr Webster to put the pole down and wasabused for his efforts. Mr Webster acknowledged he was absolutely angry andConstable Park kept trying to ask him questions. He acknowledged he told the policeto "fuck off" and "go and do your job". Constable Mendoza accepted Mr Webster toldhim his son was the troublemaker and that he wanted his son removed.1 ConstablePark said Mr Webster told him his son was the problem, but did not recall him askingthem to take his son away.2 But the Constable said he was informed by Policecommunications staff that Mr Webster had called Police saying that he wanted his sonremoved who was high on methamphetamine.3 There were allegations at trial of racialabuse on both sides.[5] Constable Mendoza said, after a minute and a half or so, Mr Webster had putthe pole down and was standing inside his fence. Accounts of what happened nextvary slightly. Constable Park said he opened the gate to arrest Mr Webster and tooksteps forward, Mr Webster stood in front of him and told him to get out, Mr Websterpushed him and tried to close the gate but Constable Park put his foot on the gate toprevent it closing.4 Constable Mendoza said Constable Park tried to open the gate butMr Webster tried to push it back and then used both hands to push Constable Park'schest, forcing him to step backwards.5 Mr Webster said he deliberately closed the gateto his property and Constable Park tried to knee the gate back open while he was1 Notes of Evidence (NOE) 10/4–23.2 NOE 28/12–27.3 NOE 19/19–24, 22/26–27.4 NOE 23/30–24/14.5 NOE 6/11–19.shutting it, so he pushed it hard.6 He denied the assault, saying there was no physicalcontact and the officers gave false evidence.[6] Mr Webster then went inside his house. Constable Mendoza's evidence wasMr Webster rang 111 again and made threats against the Police while inside.Eventually, Mr Webster came out of the house and Constable Park arrested him.[7] Constable Mendoza's evidence was that he was concerned that his safety andthat of Constable Park was at risk.7 Constable Park said the reason he could not leavethe property was that he needed to know who was in the house and whether anyonewas injured.8 He was trying to investigate further and make sure whoever else wasinvolved was fine.9[8] Mr Webster was charged with behaving in a disorderly manner under s 4(1) ofthe Summary Offences Act 1981, to which he pleaded guilty. He was also chargedwith assaulting a police officer acting in the execution of his duty and possession ofan offensive weapon, to which he pleaded not guilty and for which he was tried theManukau District Court on 18 January 2019.[9] My overall impression, from the papers, is that the altercation leading to thesecharges owed much to emotion and mis-communication. Mr Webster was in a highlyemotionally charged state, as might be expected of someone dealing with a childaddicted to methamphetamine over a number of years, with whom he had just had aconfrontation. The police officers had a difficult situation to deal with and were notsure what was going on. The question is whether the elements of each of the twooffences were satisfied.6 NOE 42/8–10.7 NOE 12/9-18.8 NOE 23/28-24/2; NOE 30/10-13.9 NOE 30/21; NOE 31/19.The decision under appeal[10] On 18 January 2019, Judge A C Roberts had no hesitation in accepting theevidence of the two officers, over that of Mr Webster, that there was a push.10 Heconsidered they were acting in the execution of their duty when Constable Park soughtto enter the property and was assaulted. He found Mr Webster was in possession ofthe metal pole.11 Judge Roberts stated Mr Webster would be convicted and found"[t]here is proof in abundance to substantiate both charges".12 On the same day, JudgeRoberts sentenced Mr Webster to 100 hours' community work, imposed on the offenceof assaulting the police officer. He imposed concurrent sentences of 50 hours'community work for the offensive weapon offence and 40 hours for what he describedas the "disorderly behaviour" offence.13 Mr Webster appeals against the assault andoffensive weapon convictions.The law of conviction appeals[11] Under s 232(2) of the Criminal Procedure Act 2011, relevantly, I must allowan appeal against conviction if: I am satisfied the Judge erred in his or her assessmentof the evidence, to such an extent a miscarriage of justice occurred (subs (b)); or amiscarriage of justice has occurred for any reason (subs (c)). Otherwise, I mustdismiss the appeal. A miscarriage of justice is defined to be "any error, irregularity, oroccurrence in or in relation to or affecting the trial" that "has created a real risk thatthe outcome of the trial was affected" or "has resulted in an unfair trial or a trial thatwas a nullity".[12] The Supreme Court recently considered and clarified the meaning ofs 232(2)(b) in Sena v New Zealand Police.14 The Court noted that, even in 1982 underpredecessor appeal provisions for summary proceedings, "an unreasoned decision washighly likely to be set aside on appeal".15 It considered it "reasonably clear" that the10 New Zealand Police v Webster [2019] NZDC 3296 at [21] (the judgment is erroneously dated 18February 2019).11 At [21].12 At [23].13 New Zealand Police v Webster [2019] NZDC 5595.14 Sena v New Zealand Police [2019] NZSC 55.15 At [10].legislative purpose of s 232(2)(b) was that appeals be dealt with in the same manner.16Its reasons included that "there is no sensible policy reason why the approach toappellate review of decisions made by a judge should be less intensive in criminalcases than in civil cases".17 Accordingly, the conventional Austin Nichols approachapplies.18 It is for the appellant to show that an error has been made and the appellatecourt must take into account any advantages a trial judge may have had, meaning anappellate court will exercise "customary caution" to a challenge to credibility findingsbased on contested oral evidence.19 But, if the appellate court comes to a differentview of the evidence, the trial judge must necessarily have erred and the appeal mustbe allowed.20[13] The Supreme Court's requirements of judicial reasoning also apply to appealsunder s 232(2)(c). Absence of reasons is highly likely to be an error. The Courtexplained the kind of reasons judges should provide:21They should show an engagement with the case, identify the critical issues inthe case, explain how and why those issues are resolved, and generally providea rational and considered basis for the conclusion reached. Reasoning whichconsists of conclusory credibility preference is unlikely to suffice. Thelanguage of s 232(2)(b) reflects an assumption that the reasons given by ajudge will reflect that judge's assessment of the evidence and why thatassessment resulted in a conviction. A failure to provide such an assessmentfrustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); thison the basis that a reasoned judgment is essential to a fair trial. A failure toprovide a reasoned resolution of a significant evidential dispute may,alternatively, suggest a misapprehension of the effect of the evidence, forinstance a misapprehension of the significance of the dispute.[14] The Court also accepted that "imperfection of expression is practicallyunavoidable, particularly in oral judgments":22In saying all of this, we accept that imperfection of expression is practicallyunavoidable, particularly in oral judgments. Accordingly, appellate courtsshould assess reasons contextually, in light of the evidence given and allowingfor the burden for judges of balancing the need for prompt determination ofcriminal cases with other workload requirements. The adequacy (or not) of16 At [26].17 At [30].18 At [32], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR141.19 At [38].20 At [38].21 At [36].22 At [37].reasons must be assessed in light of the type of case (including seriousness)and the issues involved. What is required are reasons which address thesubstance of the case advanced by the losing party. Depending on thecircumstances, this can be achieved without necessarily referring in detail (orsometimes at all) to every issue or argument which that party has advanced.[15] If there are no reasons at all, the appeal court must undertake its inquiry afresh,without the assistance of the trial judge. In Sena, the Supreme Court allowed theappeal on the ground the reasons given by the Judge for finding the appellant guiltywere inadequate.23 It found she mischaracterised the substance of evidence by somewitnesses and erred in her assessment of the evidence to such an extent that amiscarriage of justice had occurred.24 It quashed the convictions and directed a newtrial.Assaulting a police officer in the execution of his dutyThe law of a constable executing his or her duty[16] Section 10 of the Summary Offences Act 1981 provides, relevantly, "[e]veryperson is liable who assaults any constable acting in the execution of his duty".What is involved in a constable acting in the execution of his or her duty? It is afundamental principle of New Zealand law that the coercive power of the State,including entering onto private property, may only be exercised under lawfulauthority.25 There was no implied licence to enter, in the circumstances here.[17] Police rely on s 14 of the Search and Surveillance Act 2012 (the Act) regardingentry to prevent an offence or respond to a risk to life or safety. Section 14(1) providesa constable may enter a place, and take any action he or she has reasonable grounds tobelieve is necessary to prevent offending or to avert an emergency, if he or she has"reasonable grounds to suspect that any 1 or more of the circumstances in subsection(2) exist in relation to a place ", which are:(a) an offence is being committed, or is about to be committed, that wouldbe likely to cause injury to any person, or serious damage to, or seriousloss of, any property:23 At [47].24 At [56] and [58].25 Entick v Carrington (1765) 19 State Trials 1029; 95 ER 807.(b) there is risk to the life or safety of any person that requires anemergency response.[18] Alternatively, the Police rely on s 8 of the Act. It provides a constable mayenter a place without a warrant and arrest a person the constable suspects hascommitted an offence, where he or she has reasonable grounds, under subs (2):(a) to suspect that the person has committed an offence punishable byimprisonment and for which he or she may be arrested withoutwarrant; and(b) to believe that the person is there; and(c) to believe that, if entry is not effected immediately, either or both ofthe following may occur:(i) the person will leave there to avoid arrest:(ii) evidential material relating to the offence for which the personis to be arrested will be destroyed, concealed, altered, ordamaged.[19] In reviewing the Act in 2017, the Law Commission did not consider thedifficulty in satisfying s 8 was reason enough to justify widening it, noting the power"was intended to be available in a relatively small number of cases only".26 It citedthe Court of Appeal in H v R which stated:27The power vested by s 8 is of an extraordinary nature. Any entry or search ofa property is a trespass unless conducted in accordance with a warrant lawfullyissued or in the absence of a warrant within carefully prescribed statutorylimits. The text and context of s 8 leave no doubt that police officers areauthorised to exercise the warrantless power of entry and search only in verynarrowly defined circumstances. There must be a real and pressing need to acturgently because otherwise the person would avoid arrest or evidentialmaterial will be damaged or destroyed.[20] In R v Fraser, the Court of Appeal interpreted a predecessor to s 8 in 2004 asleaving open a carefully circumscribed application of the doctrine of necessity. It heldPolice can rely on the doctrine of necessity to enter private property where they havereasonably objective grounds for a belief, and do believe, that a 111 call is indicativeof an emergency where life and safety are endangered.28 The Court considered theintegrity of the 111 emergency system is based on acceptance by citizens that, in26 Law Commission Review of the Search and Surveillance Act 2012 (NZLC R141, 2017) at [13.14].27 H v R [2015] NZCA 49 at [10].28 R v Fraser [2005] 2 NZLR 109 (CA) at [33].exercising their duty arising from an emergency call, the Police may impinge uponprivate property rights.29 In Aue v Police, the High Court suggested the doctrine ofnecessity did not apply to a 111-call asking for help with a verbally abusive adult sonwhere: no weapons were involved; the Police had assessed the situation as presentingno apparent risk; and police officers were only sent four hours after the call.30[21] Since those cases the Act, including s 14, has been passed regarding emergencyresponses by the Police. The Act derives from a Law Commission report proposingthat a statutory power of warrantless entry and the common law doctrine of necessitybe codified in a single provision with two limbs: "one for crime prevention, and onefor emergency assistance to people".31 The Commission's reasoning for therecommended threshold for entry, of "reasonable grounds to suspect", was "[t]hese arecircumstances where quick action is paramount; police delay out of concern that theydo not know enough about the circumstances to satisfy the threshold of belief wouldjeopardise the interests we are seeking to protect".32 The proposed threshold forfurther action, having entered, was to be reasonable belief, as the common law hadpreviously set for entry as well. The defence of necessity was recommended to beexpressly preserved for people other than police officers, which was achieved by s44.33[22] I consider it likely, as Ms Kimberley submits, that the doctrine of necessitynow has no independent existence from the Act, as far as police officers are concerned.Section 14 now appears to "cover the field" and substitutes for, or subsumes, theapplication of the doctrine of necessity in emergency situations. But, whether or notthat is so, the result is the same here.Submissions[23] Ms Kimberley, for Mr Webster, submits Constable Park entered the propertywithout lawful authority when the assault occurred so he was not acting in theexecution of his duty. She submits he had no reasonable grounds for suspicion under29 At [28].30 Aue v Police [2013] NZHC 637, [2013] NZAR 471.31 Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [5.50].32 At [5.56].33 At 146, recommendation 5.8.s 14 and there was no emergency. She submits s 8 does not apply because ConstablePark was not sure what offence he suspected Mr Webster of committing, ConstablePark could have asked further questions from where he was and Mr Webster did notdisplay an intention to leave or avoid arrest or interfere with evidence. She submits itwas not necessary for him to enter the property.[24] Ms Murphy, for the Police, submits the Judge did not err. She submits Sena vNew Zealand Police applies to appeals under s 232(2)(b) and, in relation to s 232(2)(c),does not establish more stringent requirements for the adequacy of reasons than thoseaddressed by the parties. She submits Constable Park was lawfully entitled to enterthe property under the doctrine of necessity which is preserved by s 14 of the Act. Sherelies on Fraser and Aue on the basis the 111-call indicated a threat to public safetywhich was confirmed by Mr Webster's agitation and refusal to follow directions. Shesubmits Constable Park had a duty to investigate the reason for the call and identifyanyone who needed protection and his entry onto the property was as minimal aspossible. Alternatively, she submits s 8 entitled entry onto the property.Should the conviction be overturned?[25] Judge Roberts identified the elements of the offence of assaulting a policeofficer in the execution of his or her duty, being an assault and the officer being in theexecution of his duty. He found Mr Webster pushed Constable Park when he attemptedto enter the property, which was an assault. As to the Judge's reasoning, he said "[t]hiscomes down to a question of credibility".34 It can be inferred, from his repeatedcharacterisation of the witness testimony, that Judge Roberts' finding in this regardwas based on his view of Mr Webster's "attitude", "fixation" and "disturbed thoughtpatterns".35 He stated, in the sentence preceding his statement that it comes down tocredibility: "[i]f the police had to deal that night with the attitude that this man showsin [t]his very Court trial regarding his behaviour, then I have every sympathy forthem".3634 New Zealand Police v Webster, above n 10, at [21].35 New Zealand Police v Webster, above n 10, at [16] and [20].36 At [20].[26] This is not particularly persuasive reasoning. A judge, like a jury, needs to becareful not to draw inferences of guilt from a witness's demeanour in court. TheJudge's reasoning here looks like the sort of "conclusory credibility preference" whichthe Supreme Court in Sena warns "is unlikely to suffice" as reasoning.37 It appearsthat Judge Roberts' concluding paragraph was accurate in saying he had rejected MrWebster's evidence "out of hand".[27] However, there was evidence on which a finding of assault could be based.The record shows Mr Webster's evidence that he pushed the gate, rather thanConstable Park, was consistent with some of Constable Mendoza's evidence. But theevidence of the two police witnesses was generally consistent about Mr Websterpushing Constable Park, and not so consistent as to suggest it was concocted. Thecredibility of Mr Webster compared with that of the constables is a relevantconsideration. I do not consider Judge Roberts erred in finding an assault hadoccurred.[28] The second, and primary, issue on appeal is whether Constable Park wasexecuting his duty when he attempted to enter Mr Webster's property and wasassaulted. Judge Roberts identified the issue, which was put by defence counsel incross-examination, of whether the constable had authority to enter onto the property.38However, having identified the issue, Judge Roberts did not engage directly with thequestion of whether Constable Park had lawful authority to enter onto the property.He had "no hesitation in saying that these police officers were acting in the executionof their duty and particularly Constable Park at the time he was assaulted".39 And hehad "no doubt at all that the constable, his concern possibly for the presence of others,was acting in his duty when he sought to enter the property".40 He said "[o]ne onlyhas to have regard to what it was these two officers witnessed" and pointed to theofficers observing Mr Webster on the footpath with a metal bar, "behavingaggressively and in a disorderly manner" and being "unsure whether there was anyone37 Sena v New Zealand Police, above n 14, at [36].38 At [15].39 At [21].40 At [22].else in the house".41 But the Judge did not relate any of his reasoning to the issue ofwhether there was lawful authority for Constable Park to enter Mr Webster's property.[29] In relation to s 14 of the Act, there was no consideration of what offence wasbeing committed or about to be committed, that "would be likely to cause injury toany person" or why there was "risk to the life or safety of any person that requires anemergency response". Was such reasoning available? From the perspective of thePolice, that midnight, they were responding to a 111 call and Mr Webster was angryand abusive and had been brandishing a metal pole. He would not engage with theirquestions. But, by the time Constable Park attempted entry, Mr Webster had droppedthe pole and was standing inside his property at his gate some distance from his son.Constable Park's evidence was that he had not identified an offence being committed.[30] The closest the evidence comes to satisfying s 14 is that Constable Park wasconcerned there might be someone else in the house, which the Judge did mention.But the constable knew Mr Webster was the one who had made the call and knew hewanted them to take his methamphetamine-using son away. It was reasonable forConstable Park to continue to try to find out what was going on. But that does notsatisfy the requirements of s 14 to empower him to enter the property. ConstablePark's evidence was that he did not know there was anyone else inside. And there wasno indication in Mr Webster's 111 call that anyone else was involved in the dispute. Ido not consider the officer had reasonable grounds to suspect an offence was about tobe committed causing injury or that there was a risk to the safety of any personrequiring an emergency response. Quick action, in entering the property, was notparamount and not doing so would not have jeopardised emergency assistance.Accordingly, I do not consider the Police proved beyond reasonable doubt thatConstable Park was lawfully on Mr Webster's property under s 14 and was, therefore,acting in the execution of his duty when he was assaulted.[31] Neither do I consider Constable Park was lawfully on Mr Webster's propertyunder the circumstances very narrowly defined in s 8. I consider there is insufficientevidence that Constable Park had reasonable grounds to believe, if entry was not41 At [21].effected immediately, Mr Webster may leave to avoid arrest or evidence may bedestroyed. There was no "real and pressing need to act urgently", in the words of theCourt of Appeal in H v R.[32] Overall, in relation to the issue of whether Constable Park was acting in theexecution of his duty, I consider the decision under appeal is under-reasoned. Areasoned judgment is essential to a fair trial. There was a useful recitation of theevidence. But, in his oral judgment at the end of the trial, the Judge did not identifythe law, or directly engage with the issue, of the lawfulness of the constable's presenceon Mr Webster's property. The decision does not meet the requirements set out by theSupreme Court in Sena. This is not a matter of expecting too much of the Judge in thetime available. A necessary issue was either missed or the reasoning omitted. Eitherfrustrates the operation of s 232(2)(b) and engages s 232(2)(c). In any case, I have tomake up my own mind on appeal. I do not consider the constable was lawfully on MrWebster's property when the constable was assaulted and he was not, therefore, in theexecution of his duty. There was a miscarriage of justice. I uphold the appeal of theconviction for assaulting a police officer in the execution of his duty.Possession of an offensive weaponThe law of possession of an offence weapon[33] Mr Webster was also charged with the offence of possession of an offensiveweapon under s 202A(4)(a) of the Crimes Act 1961. It holds liable a person who,"without lawful authority or reasonable excuse, has with him or her in any public placeany knife or offensive weapon or disabling substance". "Offensive weapon" isdefined, for that purpose in subs (1), to mean "any article made or altered for use forcausing bodily injury, or intended by the person having it with him or her for suchuse". An intention to frighten or intimidate has been held to be insufficient unless theintention is to cause injury by shock.4242 R v Edmonds [1963] 2 QB 142 (Crim App) at 150–151 and R v Rapier (1979) 70 Cr App R 17(Crim App), where the Court of Criminal Appeal interpreted an equivalent definition of offensiveweapon.[34] In assessing intention, it is immaterial whether the article is carried foroffensive or defensive purposes, although that may be relevant to the issue ofreasonable excuse.43 In Thompson v Police, a member of a gang left its headquarterswith a baseball bat over his shoulder during a time of high gang tension in Invercargill.His evidence was that he went outside to retrieve a softball and to speak with agardener, but that he took the baseball bat to defend himself in case he encounteredtrouble from a rival gang. Tipping J was satisfied the appellant intended to use the batfor bodily injury if the need arose, which was sufficient to satisfy s 202A(1).44However, he held the appellant had a reasonable excuse because there was areasonable possibility he took the bat for purely defensive purposes and it could notbe held that he left the headquarters with deliberately aggressive purposes.45 Therewas no evidence supporting an inference that he intended to use more force than thecircumstances justified. Tipping J stated "one is entitled to go about one's businessand is not necessarily confined to staying indoors and calling the Police. Everythingmust ultimately turn on the reasonableness of one's preparations to act in self-defencein the circumstances prevailing."46Submissions[35] Ms Kimberley submits the Judge did not consider whether Mr Webster had areasonable excuse for possessing the weapon and that he did, to defend himselfagainst, or to intimidate, his son who he appeared to believe was high onmethamphetamine. She says the convictions are a miscarriage of justice.[36] Ms Murphy submits Mr Webster did not raise a defence of reasonable excuse,none was available on the evidence and the Judge found there was none. She submitsthe best evidence Mr Webster intended bodily injury was his behaviour in wavingaround the metal pole as a weapon, but she acknowledges it could have been used onlyto intimidate.43 Thompson v Police HC Invercargill AP35/96, 6 May 1996 at 6.44 At 7.45 At 9.46 At 11.Should the conviction be overturned?[37] Early in his judgment, Judge Roberts identified the ingredients of the offenceas "Mr Webster was in possession of an item that could be used as a weapon" and that"it is contended it was a steel pipe, that he was in a public place and that he had nolawful authority or reasonable excuse".47 But the Judge did not identify the definitionof offensive weapon for the relevant offence, in s 202A(4)(a): "any article made oraltered for use for causing bodily injury, or intended by the person having it with himor her for such use".[38] All the rest of the judgment concerned the assault charge. The only reasoningrelating to whether the offensive weapon charge was proved is the last sentence in thejudgment, which appears to be an afterthought, that "[t]here is proof in abundance tosubstantiate both charges".48 Such lack of reasoning does not satisfy the SupremeCourt's requirements in Sena.[39] Considering the issue afresh, I do not consider the definition of "offensiveweapon" is satisfied here. There is no suggestion the metal pole was "made or alteredfor use for causing bodily injury". For the definition to be satisfied, then, Mr Webstermust have "intended having it with him such use [for causing bodily injury]". Theevidence of Mr Webster's behaviour is the best basis on which to establish an intentionfor use of the pole for causing bodily injury. It was Mr Webster who called the Policewhich is not the usual course of action of someone intending bodily injury. He haddone the same before because his son had initiated fights.49 The uncontradictedevidence of Mr Webster is that his son was being aggressive and had initiated threefist fights with him that evening and he had acted as if he was going to do a karatekick on his son, causing his son to throw down the letterbox and run.50 He had thepole when he was confronting his son, when the Police arrived, but dropped it afterthey arrived. I do not consider the evidence sustains, beyond reasonable doubt, themetal pole being intended by Mr Webster for the use of causing bodily injury.47 At [4].48 At [23].49 NOE 37/25–30.50 NOE 37/20–26, 39/32, 40/8–12.[40] Neither do I consider the evidence sustains, beyond reasonable doubt, MrWebster having no reasonable excuse to hold the pole. There is a reasonablepossibility he held the pole for purely defensive purposes and did not intend to usemore force in defending himself than the circumstances justified.[41] Accordingly, I do not consider it was proved beyond reasonable doubt that MrWebster possessed an offensive weapon. There was a miscarriage of justice. I upholdthe appeal of the conviction for possession of an offensive weapon as well.Result[42] I uphold the appeal and set aside Mr Webster's convictions of assaulting apolice officer in the execution of his duty and possession of an offensive weapon.[43] Finally, there is also a problem with the community work sentence the Judgeimposed for the conviction for behaving in a disorderly manner under s 4(1) of theSummary Offences Act 1981, to which Mr Webster pleaded guilty. As Ms Murphyresponsibly pointed out, community work is not a lawful sentence for that offence.Under s 236(2)(b) and/or s 233(3)(e) of the Criminal Procedure Act 2011, I quash thatsentence. Instead, given the process he has already been through, I order Mr Webster,under s 110 of the Sentencing Act 2002, to appear for sentence if called upon to do sowithin eight months of his conviction. I expect counsel to explain clearly to him, inperson, what that means.Palmer J