THE QUEEN v SIMON JAMES BUSBY [2001] NZCA 254 (26 September 2001)

IN THE court of appeal of new zealand

ca211/01

THE QUEEN

V

SIMON JAMES BUSBY

Hearing:	25 September 2001
Coram:	Gault J Keith J Salmon J
Appearances:	Appellant in Person (written submissions) A J F Perkins for Crown
Judgment:	26 September 2001

judgment of the court DELIVERED BY GAULT J

[1] The appellant was found guilty by a jury in the District Court at Auckland of one count of possessing an offensive weapon contrary to s202A(4)(b) Crimes Act 1961.He had earlier pleaded guilty to being a male assaulting a female, his partner.In respect of each offence he was sentenced to imprisonment for six months which was suspended under s21A Criminal Justice Act 1985 for 18 months.He appeals against his conviction on the possession charge and his sentence.

[2] The circumstances in which the offending occurred can be stated briefly. On 8 September 2000 Mr Tofiau and a friend, Mr Watson, visited the house that the appellant shared with his partner, Ms Paraha, for an afternoon of drinking. The atmosphere was initially congenial but at one point the appellant became agitated seemingly over the attention paid by the visitors to his partner and he asked them to leave.They departed and Mr Watson dropped Mr Tofiau at a friend's house and then went home.Following their departure the appellant assaulted his partner who left the house through the bathroom window and went to Mr Watson's house.

[3] At some point Mr Tofiau returned to the house that he shared with Mr Watson and, although there was some dispute about the order of events, the appellant arrived at the house and became involved in a fight with Mr Tofiau during which the appellant wielded a pair of scissors.Despite sustaining multiple superficial stab wounds Mr Tofiau managed to overpower the appellant and, after discussion about calling the police, Mr Tofiau left to seek medical attention.The appellant later left the scene.

[4] The police attended at Mr Watson's house some hours later.While they were there the appellant returned to the house.He was questioned by the police who subsequently searched his car discovering a large orange-handled knife which he had taken from the kitchen in his own house shortly before.

[5] As a result of the police investigation the appellant was charged with the three offences;he pleaded guilty to assaulting his partner but not guilty to charges of wounding Mr Tofiau with intent to cause grievous bodily harm and of possession of an offensive weapon in circumstances that prima facie showed an intention to use it to commit an offence.The jury found him guilty on the possession charge (count three) but acquitted him of wounding with intent (count two).

[6] At sentencing the Judge noted that the assault on Mr Paraha was at the lower end of the scale but he thought that there were some sinister overtones to the charge of possession of the knife.He took the view that both offences warranted a term of imprisonment.He was clearly influenced by the appellant's list of previous convictions including those for violent offending and his historical failure to comply with non-custodial sentences.The Judge imposed the suspended prison sentences accordingly.

[7] The appellant did not appear at the hearing but filed written submissions in support of his appeal.He appeals against his conviction on the possession charge which was brought under s202A(4)(b) which, with subsection (5), reads:

(4) Every one is liable to imprisonment for a term not exceeding 2 years -

(a) ...

(b) Who has in his possession in any place any offensive weapon or disabling substance in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.

(5) It is a defence to a charge under subsection (4)(b) of this section if the person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.

[8] The appellant submits that his conviction on count three is inconsistent with his acquittal on count two and that self-defence should have been put to the jury in respect of count three.Common to both grounds is the appellant's belief that his acquittal on count two resulted from the jury concluding that he was acting in self-defence.

[9] We deal first with the submission on inconsistent verdicts.It is for the appellant to show that no rational jury could have reached the inconsistent verdicts on the evidence:see Adams on Criminal Law Ch. 5.6.03.If there is a reasonable explanation to be found in the evidence such that the jury could have differentiated rationally between the charges there is no inconsistency:R v Irvine [1976] 1 NZLR 96.

[10] We are completely satisfied that the appellant cannot discharge the burden in this case.Not only did the charges in the two counts relate to two different incidents separated in time and circumstance, but also the offences themselves involved different levels of intent in order to satisfy the charges. It was open to the jury to find that the appellant was not shown to the level of beyond reasonable doubt to have intended to cause grievous bodily harm to Mr Tofiau.Indeed in light of the medical evidence that the victim's injuries were consistent with minor force the acquittal is not surprising.That view is equally consistent with the jury's verdict as is the appellant's perception that they were not satisfied by the Crown that self-defence was excluded. However, whatever view the jury may have taken, they were on the charge of wounding with intent addressing a separate matter altogether from whether the appellant had rebutted the prima facie intention of using the knife to commit an offence in defence of the charge of possession of an offensive weapon.The jury quite reasonably were entitled to find that he did not do that.This was not a case where the difference in the verdicts required that the jury believed certain evidence in relation to one count but rejected that same evidence in relation to another count.There is no inconsistency.

[11] We are further satisfied that it was unnecessary for the Judge to put self-defence to the jury in respect of the possession charge, although he rightly did so in respect of count two.Self-defence provides justification for the use of force where that is reasonable in circumstances as the accused believed them to be (s48 Crimes Act).Force may include threats of force: R v Terewi (1985) 1 CRNZ 623.

[12] The offence for which the appellant was charged was an offence of possession in specified circumstances.It is not an offence having as an element the use of force.Section 202A(5) recognises that an accused may prove (on the balance of probabilities) that he did not intend to use the offensive weapon to commit an offence involving bodily injury or the threat or fear of violence.In that way he may rebut the prima facie intention.That is what the appellant sought to do in this case but the jury plainly did not accept his explanation.

[13] Where the offence is complete (subject only to the accused proving that he did not intend to use the weapon to commit an offence of the stated kind) upon proof of possession together with circumstances that prima facie show an intention to use it to commit an offence, there is no room for self-defence. Indeed as Mr Perkins for the Crown submitted:

When subsections (4) and (5) are viewed in tandem, it is clear that the "usual" direction on self-defence would be incompatible with the provisions.Most obviously, the onus upon the Crown when self-defence arises (in the usual sense), could not be rationalised with subsection (5) where the onus is prescribed to be on the accused.

[14] In respect of offences under subsection (4)(b) of s202A, so far as the judgment in Tuli v Police [1987] NZHC 222; (1987) 2 CRNZ 638 recognises the availability of self-defence, it seems wrong.

[15] Accordingly, the appeal against conviction is dismissed.

[16] The appeal against sentence was stated to be on the ground that it is manifestly excessive.This was not elaborated upon in the appellant's written submissions.In light of the circumstances of the offending, the totality of offending, the appellant's history of violence and his acknowledged unsuitability for non-custodial sentences, we do not consider that the sentence imposed can in any way be said to be manifestly excessive.

[17] The appeal against sentence also is dismissed.

Solicitors

Crown Solicitor, Auckland