LEWIS v NEW ZEALAND POLICE [2019] NZHC 100

LEWIS v NEW ZEALAND POLICE [2019] NZHC 100 [7 February 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2018-441-000034[2019] NZHC 100BETWEEN ZANE KORARI METE LEWISAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2019Counsel: R B Philip for AppellantC C Gullidge for RespondentJudgment: 7 February 2019JUDGMENT OF COLLINS JIntroduction[1] On 8 October 2018, Mr Lewis was convicted of having with him, an offensiveweapon, namely a machete, in a public place without lawful authority or reasonableexcuse contrary to s 202A(4)(a) of the Crimes Act 1961.1[2] Mr Lewis accepts the machete was an offensive weapon, that he was in a publicplace and that, if the machete was with him, he had no lawful authority or reasonableexcuse to have it. He appeals his conviction on the ground that the evidence did notdemonstrate beyond reasonable doubt that he had the machete with him at the relevanttime.1 New Zealand Police v Lewis [2018] NZDC 26989.Facts[3] Mr Lewis was a passenger in a car stopped by the police on 11 May 2018. Hewas sitting in the front passenger seat. The car was driven by his female cousin.Mr Lewis said that his cousin had picked him up from an address and was driving himhome and that he did not know about the contents of the vehicle.[4] When the police searched the vehicle, they found a flick knife and items ofstolen property. The machete was found to be lodged between the front passenger'sseat and the central console of the car. The machete was therefore just a fewcentimetres to the right of where Mr Lewis was sitting in the car.[5] When the police commenced searching the vehicle, Mr Lewis first told themthey would not find anything of interest in the car. When the police found the machete,Mr Lewis then said to one of the officers: "You guys aren't very onto it, it took youthat long to find it".[6] Mr Lewis was charged with having both the machete and the flick knife.Judge Mackintosh found him not guilty of having the flick knife. The appeal thereforeonly relates to the machete.District Court decision[7] In her decision, the Judge concentrated on whether or not Mr Lewis hadpossession of the machete. The Judge does not appear to have specifically focused onwhether or not Mr Lewis had the machete with him. This minor omission was,however, not fatal.[8] The Judge was satisfied that Mr Lewis's second comment to the policedemonstrated beyond reasonable doubt he had knowledge that the machete was in thevehicle and that, given he was seated next to it, he also had sufficient control over themachete so as to have possession of it.[9] Mr Lewis was sentenced to three months' imprisonment. He had alreadyserved that time on remand.Approach on appeal[10] In the case of a Judge-alone trial, the appeal court must allow an appeal againstconviction if it is satisfied that the trial Judge erred in his or her assessment of theevidence to such an extent that a miscarriage of justice occurred, or if it is satisfiedthat a miscarriage of justice has occurred for any other reason.2 A miscarriage ofjustice is defined as any error, irregularity, or occurrence that created a real risk thatthe outcome of the trial was affected, or that resulted in an unfair trial or a trial thatwas a nullity.3Analysis[11] There are three elements to the charge of a defendant unlawfully having withhim or her an offensive weapon:4(1) The defendant must know of the presence of the weapon.5(2) The defendant must have physical custody or control of the weapon.(3) There must be "a very close physical link and a degree of immediatecontrol" over the weapon by the defendant.6[12] The third requirement means the prosecution had to prove more than thatMr Lewis had possession of the machete. This extra degree of proximity wasdescribed by Barker J in Ellmers v Police as the weapon being either "on the personof the offender or reasonably available to him or at hand".7 Given that the machetewas located mere centimetres away from Mr Lewis's right hand, this element was notreasonably in contention, provided the prosecution could establish the first twoelements of the offence.2 Criminal Procedure Act 2011, s 232(2).3 Section 232(4).4 See R v Rogers [2007] NZCA 286 at [25].5 See R v Cugullere [1961] 1 WLR 868 (CA).6 R v Manapouri [1995] 2 NZLR 407(CA) at 417, citing R v Kelt [1977] 1 WLR 1365 (CA) at 1369.7 Ellmers v Police (1988) 3 CRNZ 259 (HC) at 260.[13] In the present case, the Judge was entitled to infer that Mr Lewis knew of theexistence of the machete. His comment to the police that they were slow to find theweapon was compelling evidence he knew the machete was located right next to wherehe had been sitting.[14] Despite the apparent focus in the District Court on the issue of knowledge, themore problematic element for the prosecution was actually whether Mr Lewis hadphysical custody or control of the machete. The difficulty arose from Mr Lewis'saccount that he was simply in the vehicle to be driven home. It is not a criminaloffence to merely be in the presence of an offensive weapon, even knowingly.8 Theoffence with which Mr Lewis was charged only concerns the situation where such aweapon is "with" someone. On its natural meaning, the preposition "with" suggests adegree of involvement of the defendant with the item in question.9[15] In my view, where it is necessary to consider the issue, the requisite degree ofinvolvement is best captured by the phrase "assumption of control".10 In the ordinarycase, it is apparent that the defendant has physical custody or control of the weaponbecause they are in actual control of it, for instance, if the weapon is found on theirperson or they admit ownership of it. However, there are more difficult cases wherethe defendant has encountered an offensive weapon not belonging to them in a publicplace. In such a case, the defendant will still be liable under s 202A(4)(a) if theirconduct demonstrates an assumption of control over the weapon.[16] An example of the latter kind of case is Bullock v Police, where the defendantwas convicted after police found him in his vehicle with a metal cosh sitting besidethe driver's seat.11 The defendant denied ownership of the cosh, but admitted that hewas aware of its presence in the vehicle. His explanation was that several associates8 See R v Lester (1955) 39 Cr App R 157 (CA) at 161.9 Although in relation to the interpretation of "reasonable excuse", the following passage from theMinister of Justice's speech to Parliament when the law was introduced is apposite to demonstratethat Parliament did not intend a meaning that would be too onerous on citizens:The clause has been carefully worded to ensure that the ordinary citizen going about his lawful business,if he happens to be carrying a knife, will not be molested. If by some mischance the police do charge aperson under this provision, then we rely on the court being satisfied that the person concerned wascarrying a knife or other offensive weapon for a proper purpose.(17 October 1956) 310 NZPD 2571.10 See R v Manapouri, above n 6, at 417.11 Bullock v Police HC Auckland AP241/95, 19 February 1996.had been in his vehicle earlier that day and that he had not been aware of the cosh untilhe got into the vehicle on the occasion he was stopped by police. Williams J said thatthe defendant "continued to have" the cosh with him "until he did something to ridhimself of it".12 It could be said that the defendant had assumed control of the coshby deciding to drive the vehicle while knowing that the cosh was in close proximity.[17] In some instances, denial or silence by the defendant will make it a matter forthe fact finder to determine whether the case is of the ordinary or more difficult kinddescribed in [15]. The Judge must then decide, by logical inference, whether or notthe defendant either had actual control of the weapon, or had assumed control of theweapon. That was precisely the situation that confronted the Judge in the DistrictCourt.[18] It was open for the Judge to conclude either that Mr Lewis was the person inactual control of the machete, or that he had assumed control of it during his time inthe vehicle. Either of these conclusions could have legitimately been inferred by theJudge on the basis of the evidence presented to her for the following two reasons.[19] First, Mr Lewis's second comment to police, combined with his failed attemptto deny knowledge of the machete at trial, suggests he was in fact the party in custodyof the machete. His comment suggests not only that he was aware of the machete, butthat it was on his mind when police were searching the vehicle.[20] The second relates to Mr Lewis's first comment that the police would not findanything of interest in the vehicle. This was a forlorn attempt by Mr Lewis to preventpolice from searching the vehicle. In R Manapouri, the Court of Appeal relied onevidence that the defendants had attempted to interfere with a police search todemonstrate an assumption of control.13 A similar inference was available againstMr Lewis.12 Bullock v Police, above n 11, at 5, citing R v McCalla (1988) 87 Cr App R 372 (CA) at 379.13 R v Manapouri, above n 6, at 417.[21] Once the Judge was properly satisfied that Mr Lewis knew about the macheteand had control of the weapon, it was a minute step for her Honour to conclude thathe also had it with him because it was "reasonably available to him or at hand".[22] Thus, all three elements of the charge before the Court were satisfied. In thesecircumstances, no miscarriage of justice arose through Mr Lewis having been foundguilty.Result[23] The appeal is dismissed.________________________D B Collins JSolicitors:Bramwell Bate, Hastings for AppellantCrown Solicitor, Napier for Respondent