WAITE v NEW ZEALAND POLICE [2019] NZHC 213

WAITE v NEW ZEALAND POLICE [2019] NZHC 213 [20 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-348[2019] NZHC 213BETWEEN MICHAEL WILLIAM JOHN WAITEAppellantAND NEW ZEALAND POLICERespondentHearing: 11 February 2019Counsel: J M Grainger for AppellantH E Savage for RespondentJudgment: 20 February 2019JUDGMENT OF THOMAS JThis judgment was delivered by me on 20 February 2019 at 4.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:Public Defence Service, Auckland for AppellantCrown Solicitor's Office, Auckland for Respondent[1] In the early hours of 29 July 2017, two police constables were on duty inMt Roskill, Auckland and observed a car with a smashed windscreen swerving in itslane. They stopped the car, whereupon the driver, the appellant, Mr Waite, emergedand began to behave erratically. The front seat passenger appeared to be under theinfluence of alcohol and was hostile. One constable noticed an axe in the frontpassenger seat footwell and, upon being informed of that fact, the second constabledecided to search the car. Not only was the axe seized but the police found ahomemade knife under the driver's seat and two glass pipes, used to smokemethamphetamine, in a bag. Mr Waite said he owned the axe and used it for his work.[2] Following a Judge-alone trial in the District Court,1 Mr Waite was found guiltyof two counts of being in a public place with an offensive weapon,2 two counts ofpossession of utensils for the commission of an offence against the Misuse of DrugsAct 1975,3 and failure to answer District Court bail.4 Mr Waite was sentenced to sixmonths' supervision and 40 hours of community work.[3] Mr Waite appeals his convictions for possession of offensive weapons andpossession of utensils on the basis the Judge erred in her assessment of the evidenceto such an extent that a miscarriage of justice occurred. Specifically, the legality ofthe search, the admissibility of the evidence obtained as a result and the finding ofguilt in respect of possession of an offensive weapon (the axe) is challenged.[4] Mr Waite also appeals his sentence if his appeal against conviction issuccessful.The evidence[5] The prosecution case consisted of evidence from both constables. It is brieflysummarised in this section, with the crucial evidence on the two grounds of appealconsidered in more detail when those grounds are addressed later in this decision.1 Police v Waite [2018] NZDC 21926.2 Crimes Act 1961, s 202A(4)(a). Maximum penalty of 3 years imprisonment.3 Misuse of Drugs Act 1975, ss 13(1)(a) and 31(3). Maximum penalty of 1 year imprisonment anda $500 fine.4 Bail Act 2000, s 24. Maximum penalty of 3 months imprisonment or $1,000 fine.[6] On 29 July 2017, at around 12.45 am, Constables Doak and Toelau werepatrolling the Mount Roskill area in Auckland and observed a car with a "totallysmashed windscreen on the driver's side principally" driving in the area.5 The car wasswerving in its lane.[7] The constables stopped the car and approached it with one constable movingforward on either side of the car. The driver of the vehicle, Mr Waite, suddenly andwithout warning exited the car, behaving erratically. Constable Doak's evidence wasthat he was doing "asphalt angels" by moving his arms and legs up and down whilelying on the road.6 In his November 2017 statement, to which he was referred duringcross-examination, Constable Doak described Mr Waite as "[exhibiting] signs ofrecent methamphetamine use due to his extremely erratic behaviour". ConstableToelau attempted to settle Mr Waite down, while Constable Doak talked to the twopassengers still sitting in the car.[8] Constable Doak described the front seat passenger as appearing to be under theinfluence of alcohol – he smelled like alcohol and was hostile. He told the constableto "F off and go and attempt to locate real criminals".7 The backseat passenger wascompliant and was eventually allowed to leave the scene.8 Constable Doak said that,while talking to the front seat passenger, he noticed an axe in the passenger front seatfootwell. This was easily accessible to the driver of the car (had he been in his seat)and the other occupants of the car. Constable Doak ordered the front seat passengerto get out of the car, away from the axe. He then informed Constable Toelau of hisfind.[9] At around 1.07 am Constable Toelau invoked a search under s 28 of the Searchand Surveillance Act 2012 (the Act) and read Mr Waite his rights.[10] The constables conducted a search of the car; finding a homemade knife underthe driver's seat, the axe in the footwell of the front passenger seat and two glass pipesused for smoking methamphetamine in a small green bag.5 Police v Waite, above n 1, at [3].6 At [4].7 At [5].8 At [8].[11] When asked about the axe, Mr Waite said he owned it and it was in his car forwork. He also said he owned the small green bag and at least one of the glass pipes.9[12] Mr Waite elected not to give or call evidence.District Court decision[13] Mr Waite had challenged several of the police assertions. Specifically, thatMr Waite was making "asphalt angels" and lying on the ground before the search. TheJudge simply noted that Constable Doak stood by his statement that Mr Waite did liedown on the ground.[14] The Judge noted defence counsel's reliance on the Court of Appeal decision inKearns v R in his submission that the search under s 28 of the Act was unlawful.10 InKearns v R, the police failure to inquire about the defendant's lawful authority orreasonable excuse to have a craft knife with him in a public place rendered the searchunder s 28 unlawful.11[15] The Judge considered that the police had good cause to stop the car and thatMr Waite had indeed been acting erratically. The Judge noted that, due to the "volatilesituation and the risk associated with the demeanour of the passenger and driver, theofficer was concerned about the safety of persons".12 For this reason, shedistinguished the present case from Kearns v R, which had involved a relativelypeaceful, compliant defendant. In the present case, there was an "emergencysituation" where "life and limb" could have been threatened had the axe been"grabbed".13 This was despite no person reaching for the axe. The Judge also notedthat Mr Waite was difficult to communicate with initially, although he was laterquestioned and told the constables that the axe was for work.[16] The Judge concluded:9 At [16].10 Kearns v R [2017] NZCA 51.11 As required by s 28(2)(a) of the Search and Surveillance Act 2012 and s 202A(4)(a) of the CrimesAct 1961.12 Police v Waite, above n 1, at [21].13 At [22].[25] The Court finds that this was a lawful search. The defendant electednot to give evidence and so the charge is proven beyond reasonable doubt.Law on appeal[17] Section 232(2)(c) of the Criminal Procedure Act 2011 provides that theHigh Court must allow an appeal if the Court is satisfied that a "miscarriage of justicehas occurred for any reason".[18] A "miscarriage of justice" is defined in s 232(4) as "any error, irregularity, oroccurrence in or in relation to or affecting the trial that has created a real risk that theoutcome of the trial was affected; or has resulted in an unfair trial or a trial that was anullity". Not every error or irregularity causes a miscarriage of justice. Importantly,"a miscarriage is more than an inconsequential or immaterial mistake orirregularity".14[19] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".15 This standard means that "an appellant does not have toestablish a miscarriage in the sense that the verdict is actually unsafe" but that there isa real possibility the verdict would be unsafe.16[20] As an appellate Court, there are limitations involved in not seeing or hearingdirectly from the witnesses,17 and this Court should only interfere with the factualfindings of the trial judge "in exceptional circumstances".18[21] Section 232(2)(b) of the Criminal Procedure Act provides that the High Courtmust allow an appeal where a judge, in a judge-alone trial, erred in his or herassessment of the evidence to such an extent that a miscarriage of justice has occurred.Under this provision, the verdict of a judge sitting alone is to be treated as the14 Matenga v R [2009] NZSC 18 at [30].15 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].16 At [110].17 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]–[31].18 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38]; affirmed in McLean v R [2017]NZHC 3127 at [10].equivalent of a jury's verdict.19 To that extent, the principles set out by the SupremeCourt in R v Owen apply:20(a) The appellate court is performing a review function, not one ofsubstituting its own view of the evidence.(b) Appellate review of the evidence must give appropriate weight to suchadvantages as the jury may have had over the appellate court.Assessment of the honesty and reliability of the witnesses is a classicexample.(c) The weight to be given to individual pieces of evidence is essentiallya jury function.(d) Reasonable minds may disagree on matters of fact.(e) Under our judicial system the body charged with finding the facts isthe jury. Appellate courts should not lightly interfere in this area.(f) An appellant who invokes s 385(1)(a)21 must recognise that theappellate court is not conducting a retrial on the written record. Theappellant must articulate clearly and precisely in what respect orrespects the verdict is said to be unreasonable and why, after makingproper allowance for the points made above, the verdict shouldnevertheless be set aside.[22] A simple disagreement with a Judge's factual assessment is insufficient,"[s]omething more is required to meet the "real risk" test".22Issues[23] The two questions to be considered are whether the Judge erred in concluding:(i) the search of the car undertaken by the police under s 28 of the Act waslawful and the evidence obtained from the search was admissible; and(ii) Mr Waite was guilty of possessing an offensive weapon, the axe, inlight of the statutory requirements of the offence.19 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].20 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13]; affirming the principles set out inR v Munroe [2007] NZCA 510, [2008] 2 NZLR 87.21 Section 385 of the Crimes Act 1961 was replaced by s 232 of the Criminal Procedure Act. Thenew section does not materially change the approach to conviction appeals: Wiley v R [2016]NZCA 28, [2016] 3 NZLR 1 at [56].22 Gotty v R [2017] NZCA 528 at [15].[24] Both issues involve consideration as to what constitutes an offensive weapon.The difference in the two grounds is the identity of the person who must be satisfiedand the standard to which the person must be satisfied.Was the search of the car lawful and the evidence obtained as a result admissible?Relevant law[25] Section 28 of the Act provides:28 Stopping and searching vehicles without warrant if offenceagainst section 202A of Crimes Act 1961 suspected(1) A constable who has reasonable grounds to suspect that thecircumstances in subsection (2) exist in relation to a vehicle maysearch the vehicle.(2) The circumstances are that –(a) a person travelling in the vehicle or who has alighted from itis committing an offence against section 202A(4)(a) of theCrimes Act 1961 (which relates to possession of knives,offensive weapons, and disabling substances); and(b) the vehicle contains a knife, offensive weapons, or disablingsubstances.[26] Section 202A of the Crimes Act 1961 provides:202A Possession of offensive weapons or disabling substances(1) In subsection (4)(a) offensive weapon means any article made oraltered for use for causing bodily injury, or intended by the personhaving it with him or her for such use.(4) Every one is liable to imprisonment for a term not exceeding 3 years–(a) Who, without lawful authority or reasonable excuse, has withhim or her in any public place any knife or offensive weaponor disabling substance[27] Items "made" or "altered" to cause bodily injury render the item offensiveper se.23 The item in this case, an axe, is not intrinsically offensive given its lawfuluses.23 Ratu v R [2013] NZHC 2083, (2013) 27 CRNZ 65 at [10]–[11].[28] Therefore, in order for the search of the car to have been lawful, the policemust have had reasonable grounds to suspect that either Mr Waite or his passengerintended to use the axe to cause bodily harm. The question of intention is one ofinference to be formed from the circumstances of the factual scenario.24 Conditionalintention, or intention to cause bodily injury only if certain circumstances arise, is alsosufficient to satisfy this requirement.25[29] In Mr Grainger's submission, for Mr Waite, axes have multiple uses and therewas no suggestion that he or the passenger were intending to use the axe as a weapon.Mr Waite also refers to the cross examination of the constables when they acceptedthere was nothing to suggest that Mr Waite was intending to use the axe as a weapon.Further, Mr Waite's occupation and the fact there was a chainsaw in the car bootsupported an inference of lawful possession.[30] Mr Grainger accepted that, had the constables had a suspicion that eitherMr Waite or his passenger was committing an offence against s 202A(4)(a) of theCrimes Act 1961 and that the vehicle contained an offensive weapon then, in thecircumstances, that would have been reasonable. However, in his submission, thatposition was not supported by the evidence.What was the evidence?[31] Constable Doak gave evidence first. He said in evidence in chief:Whilst I was speaking to [the front seat passenger] I observed an axe locatedin the front passenger footwell beside this male's leg. Given his hostile natureI quickly advised Constable Toelau of my find and I quickly ordered the frontseat passenger out of the car and away from this axe just for my safety.[32] He then said that, when he told Constable Toelau about the axe, ConstableToelau said he was going to invoke a search of the car under the Act.[33] Constable Doak said at this stage Mr Waite was still behaving erratically, hadbeen placed in handcuffs and appeared to be banging his head against a neighbouring24 Thompson v Police HC Invercargill AP35/96, 6 May 1996 at 5.25 At 6.fence. Constable Doak requested police backup, given Mr Waite's behaviour and thefact of two other passengers in the car, saying: I believed it would be safer for everyone involved if there were morenumbers and once that unit was near to our location I began conducting asearch of the vehicle.[34] Following the search, he attempted to obtain details from the two passengers.The backseat passenger was compliant and provided details so was allowed to leave.The front passenger continued to be hostile and verbally abusive. He was told he wasfree to go but continued to approach both constables, being verbally abusive. Afternumerous warnings, he was arrested for obstruction and disorder.[35] In cross-examination, Constable Doak accepted there was no suggestion thateither Mr Waite or the front passenger would try and "grab" the axe but the passengerwas "going off" at him. He got out of the car when told to do so.[36] Constable Doak agreed there was nothing which led him to believe thatMr Waite was intending to use the axe as a weapon. He stated that: the most immediate threat which was the axe in the footwell and a hostilefront passenger who had the potential to escalate the situation.[37] Constable Toelau described the following in his evidence in chief:Again I was trying to talk to [Mr Waite]. I wasn't really able to communicateor make a conversation with him. He just wasn't making any sense with me,he wasn't listening to my instructions, he was pacing back and forth walkingaround and again, with the behaviours all up and down. If I was to describeit, one second he'd be yelling and swearing and screaming and then the nexthe'd be sort of down. And yeah, at that time, Constable [Doak] advised methat there was a – he observed initially an axe in the passenger's footwellwhich I had also observed from the driver's side which was sitting right nextto the passenger's foot.[38] Constable Toelau then said Mr Waite apparently managed to get his handcuffsfrom behind his back, where they were initially, to his front. He said:I grew suspicious towards that as didn't know what his intentions were withthat behaviour.[39] He said that once he saw the axe:I invoked the warrant, the search under the Search and surveillance Act 2012given that the position of where the axe was and the behaviour of the driverbut also the passenger Constable [Doak] was dealing with and sort of thehostile situation we were in there was a bit of concern for our safety or mysafety and my partner's safety and also just where that axe was positioned. Atthe time I felt that there was, yeah, concerns for our safety.[40] In cross-examination, Constable Toelau confirmed that, prior to invoking thesearch, he did not ask Mr Waite about the axe; he never saw anybody making a grabfor it and that the front passenger had got out of the car. He confirmed there was noone near the axe at the time.[41] There was then the following exchange:Q. And there was nothing to suggest that someone was going to use theaxe as a weapon, was there?A. Sorry, can you say that again?Q. There was nothing to suggest that someone was going to use the axeas a weapon, was there?A. I took it into consideration at the time.Q. That's not an answer to the question. There was nothing to suggestthat there was?A. Oh so no, I didn't – no, there was no suggestion, no.[42] There was no re-examination of either constable.Discussion[43] It is fair to observe that the prosecution did not focus on what constituted anoffensive weapon, the need to prove that the axe was an offensive weapon or that, toinvoke the search, the constables had to suspect it was an offensive weapon.[44] The decision to invoke s 28 of the Act was taken by Constable Toelau. Therewas no evidence there was a discussion between Constables Doak and Toelau prior tothe decision. When it comes to assessing whether Constable Toelau had reasonablegrounds to suspect an offence, the evidence of Constable Doak is contextual but inlarge part irrelevant.[45] I do note, however, that Constable Doak's question in cross-examination wasconfined to whether there was anything to suggest Mr Waite intended to use the axeas a weapon. He was not asked about the intentions of the front seat passenger.Constable Toelau was asked whether there was anything to suggest "someone"intended to use the axe as a weapon.[46] Constable Toelau's response was somewhat garbled and it would have beenpreferable had he been asked to clarify his response. In Mr Grainger's submission,however, Constable Toelau's response undermined his evidence in chief. I am notcertain I would go that far.[47] Furthermore, I agree with the submission of Ms Savage that the context ofConstable Toelau's cross-examination at this point focused on what occurred aroundthe time of the search. The questions did not address what suspicions the constablesmight have had as to either Mr Waite or his passenger's intended use of the axe moregenerally. That is, the constables were not asked about any suspicion they might havehad as to conditional intent.[48] I will briefly comment on the failure to ask Mr Waite prior to the search whythe axe was in the car. While the guidance in Kearns explains the proper course, inthe circumstances of the present case I am satisfied that step was not feasible.Constable Toelau said that he invoked the Act when Mr Waite was yelling andscreaming and behaving erratically. In those circumstances, Constable Toelau cannotbe criticised for not asking the question.[49] The constables' evidence did not assist in establishing the lawfulness of thesearch. There was no clear evidence as to Constable Toelau's suspicion. Given thequestion is whether he had reasonable grounds to suspect there was an offensiveweapon in the car, the prosecution failed to establish the necessary grounds for thesearch. The evidence obtained as a result of the search must therefore be consideredimproperly obtained.26 That being so, I must now address whether the evidence wasnevertheless admissible.2726 Evidence Act 2006, s 30(5).27 Section 30(2)(b).Was the evidence admissible?[50] The question is whether the evidence's exclusion, having been obtainedcontrary to the requirements of s 28 of the Act, would be disproportionate to theimpropriety.28[51] The first and most compelling point is that, on an objective basis, asMr Grainger accepts, there were reasonable grounds to suspect an offence unders 202A(4)(a) of the Crimes Act. The erratic behaviour of Mr Waite and the hostilityof the front passenger, together with the location of the axe within the car, raisedserious questions about their intentions.[52] In Mr Grainger's submission, there was a moderate degree of intrusion intoMr Waite's privacy. He stressed the intensive search of everything in the car, includingopening up the bag or bags in which the methamphetamine utensils were located.Mr Grainger did accept that, once the police found the knife, it would have beenreasonable to conduct a thorough search of the car.[53] Mr Grainger's submission that the breach was not justified for reasons of policesafety, as the passenger and Mr Waite were out of the car, is perhaps viewing the matterwith the benefit of hindsight. I agree overall with the Judge's assessment as to thevolatile situation, given Mr Waite's unusual behaviour and the undoubted aggressionand hostility of the front seat passenger.[54] I am satisfied the evidence is admissible, having conducted the requisitebalancing exercise, for the following reasons:(i) The breach was not "deliberate, reckless, or done in bad faith".29 Whilethis can be considered a neutral factor, that there clearly werereasonable grounds for the search weighs heavily in favour ofadmissibility. This is particularly so when the evidence failed to elicita full picture of the constables' considerations.28 I note that this only relates to the charges of possessing the knife and the methamphetamine pipesbecause police had seen the axe before invoking the search power.29 Section 30(3)(b).(ii) The police were confronted with an "emergency situation", to use thewords of the Judge,30 which suggests "the impropriety was necessaryto avoid apprehended physical danger to the Police".31(iii) The evidence was real, reliable and critical to the prosecution case inrelation to the knife and the methamphetamine pipes,32 albeit that theoffences are at the lower end of the scale.Was Mr Waite guilty of possessing an offensive weapon, the axe, in light of thestatutory requirements of the offence?[55] The next issue to be addressed is the Judge's finding of guilt on the charge ofpossession of an offensive weapon – the axe. The appeal, in this regard, rests on thefailure of the Judge to address whether she was satisfied beyond reasonable doubt thatMr Waite possessed the axe with the intention of using it to cause bodily injury.[56] In Mr Grainger's submission, not only was it unsafe for the Judge to haveconcluded, implicitly as the Crown maintains, that the axe was an offensive weaponbut such a conclusion was not available to her on the evidence. Mr Grainger submitsthat the "high point" of the police case was the location of the axe in the car. Althoughsuggesting that the position of the axe in the front passenger footwell did not supportMr Waite's intention to use it for causing bodily injury, Mr Grainger did agree it wouldbe surprising if the driver of a motor vehicle put an axe in the driver's footwell. In hissubmission, however, the evidence was insufficient for a finding beyond reasonabledoubt in respect of Mr Waite's intention as regards use of the axe.[57] Mr Grainger fairly conceded that the focus of the District Court hearing wason the lawfulness of the search and that focus was reflected in the Judge's decision.Unfortunately, however, what the Judge failed to do, having found the search lawful,was specifically to address whether she could be satisfied beyond reasonable doubtthat Mr Waite possessed the axe with the intention of using it to cause bodily injury.30 Police v Waite, above n 1, at [22].31 Evidence Act 2006, s 30(3)(g).32 Section 30(3)(c).It is also fair to say that the prosecution did not focus on this aspect, as I have alreadyobserved.[58] Ms Savage contends it can be inferred that the Judge was satisfied as to theelements of the offence. The following statements in the judgment, although made inthe context of the search, could potentially be viewed as discussing Mr Waite'sintention to use the axe to cause bodily injury:33[14] Once he saw the axe he invoked the warrant search under thesearch and surveillance act 2012; and given the position where the axe wasand the behaviour of [Mr Waite] and also the passenger, Officer [Doak] wasdealing with a hostile situation, so they were concerned for their safety andalso his partner's safety, because of where the axe was positioned.[21] Because of the volatile situation and risk associated with thedemeanour of the passenger and the driver, the officer was concerned aboutthe safety of persons, not only the passengers in the car, but also the officers[22] Here we have an emergency situation where life and limb couldhave been threatened had the aggressor passenger grabbed the axe. It is truethat he did not do so [23] A small axe by the leg of the passenger and a knife. The axe wasreadily available to the passenger and given his demeanour, the Court finds itquite reasonable that they search the vehicle.[59] These statements all assess the situation as being dangerous, with harm havingthe potential to result. None of them, however, directly discuss Mr Waite's intentionto do bodily harm with the axe. Furthermore, the comments were made as part of theassessment as to whether the constable had reasonable grounds to suspect eitherMr Waite or a passenger possessed an offensive weapon.[60] In Ms Savage's submission, the following circumstances were sufficient toestablish the requisite intention:(i) Mr Waite was acting in an erratic manner, including lying on the road,screaming and yelling, and banging his head against a fence;33 Police v Waite, above n 1.(ii) the axe was in the footwell of the front passenger's seat;(iii) a knife was under the driver's seat and there were twomethamphetamine pipes in the car;(iv) a chainsaw was in the boot of the car and was not, therefore, readilyaccessible in the same way; and(v) an axe is intrinsically able to be used as a weapon.[61] I agree that these factors were matters of concern to the police and certainlysufficient to establish a suspicion that the occupants of the car intended to use the axeto cause bodily injury. I am not satisfied, however, that these matters mean the Judgecould be sure (satisfied beyond reasonable doubt) about that. While Mr Waite wascertainly behaving erratically on the night, it was the front passenger who exhibitedsigns of violent behaviour by his hostility to the police.[62] Although the car had a cracked windscreen and there was at least a question asto whether the axe had been used in connection with that, this was not raised either inevidence or by the Judge in her decision. In any event, for the axe to be an offensiveweapon, the possessor of the item must intend to use it for causing bodily injury. Anintention to use it to cause damage is not enough. Furthermore, aspects of the evidenceweighed against the conclusion of guilt. Mr Waite told the police he used the axe forwork. Mr Waite was a builder and there was at least one other item associated withthat occupation – a chainsaw – located in the car, albeit in the boot. On the evidence,it was not possible to be sure that Mr Waite possessed the axe intending to use it forcausing bodily injury.[63] The same assessment does not apply in respect of the charge of possession ofa knife as the prosecution is required only to prove that there was no reasonable excusefor possession of the knife.34 Although Constable Doak accepted in cross-examinationit was possible a knife like that could be used for clearing flax or as part of work, there34 Crimes Act 1961, s 202A(4)(a).was no evidence on behalf of Mr Waite in respect of the knife.35 The Crown is notrequired to negative the existence of any "lawful authority or reasonable excuse"unless the defence has first established an evidential foundation for such a claim.36[64] In these circumstances, I am satisfied that the Judge erred in her assessment ofthe evidence, in respect of the charge concerning the axe, to such an extent that amiscarriage of justice had occurred. That is, there was a real risk that the outcome ofthe trial was affected and a not guilty verdict on the charge of possession of anoffensive weapon might have been delivered had this issue been properly addressed.Sentence[65] Mr Waite's sentence appeal is contingent upon the outcome of his convictionappeal. Having been successful only on the appeal against one of the charges ofpossession of an offensive weapon, Mr Grainger conceded the sentence wasappropriate and would not require review.Result[66] For the reasons given, the conviction on the charge of possession of anoffensive weapon, the axe, is quashed. All other convictions stand. The sentence isundisturbed.Thomas J35 Unlike in respect of the axe where Mr Waite told the police he used it for his work.36 Simon France (ed) Adams on Criminal Law — Offences and Defences (online loose-leaf ed,Thomson Reuters) at [CA202A.01].