THE QUEEN v SIBGHATULLAH HAQIQZAI [2002] NZCA 324 (18 December 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 158/02

THE QUEEN

V

SIBGHATULLAH HAQIQZAI

Hearing:

18 November 2002

Coram:

Anderson J

Williams J

Baragwanath J

Appearances:

J W Mackey for Appellant

F E Guy for Crown

Judgment:

18 December 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of appeal and background

[1]	Mr Haqiqzai appeals against his conviction by a District Court jury, on 27 February 2002, on one count of having in his possession an offensive weapon, a brass rod, in circumstances that prima facie showed an intention to use it to commit an offence involving bodily injury or the threat or fear of violence, contrary to s202A(4)(b) of the Crimes Act 1961.
[2]	The appellant and his brother Hedaytullah Haqiqzai operated a panelbeating and painting business at Henderson. The complainant, Mr Alfred Fish, was employed in adjacent trade premises occupied by a metal foundry.On 27 January 2001 the appellant and Mr Fish got into an argument over welding work to a stainless steel rail for the appellant’s boat.After a heated verbal exchange outside the respective premises Mr Fish went into the foundry and chained an access grille behind him.A few minutes later the appellant entered the foundry through another door and a physical confrontation ensued, giving rise to counts against the appellant of assault using a hammer as a weapon and assault.The jury acquitted the appellant on those matters.
[3]	Mr Haqiqzai went into his own premises and discussed the incident with his brother who immediately armed himself with a steel steering wheel locking-bar, went into the foundry and struck Mr Fish with that weapon.In the same trial as the appellant’s the brother faced a single count of injuring with intent to cause grievous bodily harm.He was convicted.
[4]	At the time the brother was dealing with Mr Fish, the appellant, who had returned to the foundry, was holding a length of brass rod which he had picked up in the foundry.That is the weapon the subject of the charge.
[5]	The terms of s202A(4)(b) render everyone liable for imprisonment for a term not exceeding two years:

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.

[6]	But s202A(5) provides:

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.

[7]	The crucial issue in relation to the count on which he was convicted was the appellant’s intent whilst in possession of the bar.Did the circumstances prima facie show an intention unlawfully to use it on Mr Fish or did they prima facie show he was in possession in order to defend himself or his brother against unlawful force by Mr Fish?In a statement given to the Police the appellant said, “The guy who hit me came at my brother ... in self-defence I grabbed the guy by the collar with my left hand and then grabbed a large piece of brass from somewhere with my right hand.I told him that if he does not stop I will hit him with the brass.”
[8]	In his evidence to the Court the appellant said, “I told him to stop and apparently he came towards me ... and the brass there was lying on the bench somehow ... so I picked it up and grabbed him on one hand, I told him, ‘Look we already had enough, we only trying to suss this out so why you angry’ ... the actual piece was not therefore to threaten him, it was not even shown to him.”
[9]	The jury struggled with the count in question.They asked two questions, one when they had been in retirement for about three and a half hours and the second some fifty minutes after that.The first question sought directions in relation to trespass, an issue of no legal relevance in the trial, and the second was whether self-defence could be applied to count number 4.

Appellant’s submissions

[10]	Counsel for the appellant challenged the Judge’s directions in respect of the second jury question.He submitted that the effect of the direction was to mislead the jury in fact and in law and as well, by its tenor, it unfairly favoured the Crown and ignored the defence case.
[11]	Counsel also criticised the Judge in respect of directions given to the jury when they indicated, after about seven and a half hours of retirement, that they were unanimously agreed upon some but not all of the counts.
[12]	Counsel’s written submissions contained further complaints about the summing up in relation to count 4; of the Judge’s direction in relation to the question about trespass; that the Judge had made critical remarks to the jury about a matter counsel had mentioned at the end of his closing address; and that just before the jury returned with its verdicts the Judge instructed the court taker to inform the jury that he was going to discharge them.
[13]	Of the matters mentioned immediately above counsel, with a realistic appreciation of their cogency, preferred not to advance them in oral argument except in respect of the last matter.That point was discussed by the Bench with both counsel and eventually Mr Mackey felt unable to pursue the point.It seems to us that at the end of a long jury retirement counsel thought there may have been an irregularity but upon further inquiry the concern had no foundation.This left counsel to focus on the two more substantial issues relating to the second jury question and the direction near the end of a lengthy retirement.
[14]	It is expedient to set out at this point the Judge’s remarks in reply to the second question:

QUESTION 2:

Ladies and gentlemen, I have a question from you: can self-defence be applied to count 4?

You have a type-up of the direction I gave you about self-defence so I will not repeat what is in there.As a matter of law, self-defence is a defence available to the charge in count 4 but the nature of the defence is that the Crown has got to negative the possibility of self-defence but that means to negative either that as a possibility in the particular circumstances – in other words, their evidence showing somebody was not acting in self-defence – or it can achieve that result simply by proving circumstances which mean that self-defence is not a realistic practical possibility.

What is alleged in count 4 is the picking up and brandishing of a weapon by the accused, Sib, [the appellant] in circumstances where, as I understand the evidence – and if your understanding is different then it is your understanding that prevails – there is no suggestion that he was under attack.His version of events was that he went in following his brother and there was trouble between his brother and [Mr Fish].It is not self-defence to offend when you can meet the needs of the situation by walking away – that is not defence.If that is a reasonably available option.

You will have noticed in the material about self-defence – it refers to defence of himself or another.If he honestly believed that his brother was being attacked by Mr Fish then he, in defence of his brother if that is his honest belief, is entitled to use such force as might be reasonable in the circumstances as he believed them to be to protect his brother rather than himself.But you will understand that the foundation for that would have to be a genuine belief that it was Fish and not Sam who was the aggressor.If you are satisfied on the evidence that the brother went in armed with a wheel lock in circumstances that Sib was following behind him a short distance away, what does that tell you about the appreciation that he would have had about what the brother was up to.If you are not satisfied about the steering wheel lock then what effect does that have on your evaluation of Mr Fish’ evidence as a whole.

Those are matters of fact for you to grapple with (and I do not want you to understand anything I say, any view I have got of the evidence) but I say them because I have a sense that you may be up a little bit of a side-alley on this one.Given the situation that count 4 occupies in the sequence of events given that the onus of proof is on the Crown to move certain things beyond reasonable doubt, you have got in count 4 the situation where there is an admission of picking up this object.

It is entirely a matter for you but I realise that it is after 8.30 now but you might have the sense that in grappling with what did or did not happen in the events immediately prior to the picking up of that object lies the answers to the issue you are grappling with.If you think it is a reasonable possibility that Mr Fish was the aggressor on the occasion then obviously there is an issue as to self-defence.If, on the other hand, you are satisfied that it was Sam, the brother, who was the aggressor – particularly given what had happened to Sib a short time before in terms of being asked to go – where does that leave Sib’s part in this.The matter is entirely for you and I have talked about the facts a bit just to try to explain that it is entirely for you what you make of the evidence but does, in a practical sense, self-defence arise if you follow someone in where you are not welcome to and that someone is, to your knowledge, carrying a weapon and is on a sorting-out expedition.

Do not take that as any indication as to where the truth lies but if that is not established then, frankly, the Crown is in trouble and if it is established then I am struggling a little to see how long in the circumstances we have got here there is any evidence of any intervening material which could give rise to an issue of self-defence.If you are satisfied that there is no weapon – in the sense of no weapon in Sam’s hands – then I would have thought it would only have taken you a few moments to have dealt with count 4.If you are satisfied there was then is there anything which makes self-defence a live issue in the sense is there anything, when we say the Crown has got to negate self-defence it can negate it simply by showing that the general circumstances are such that it could not possibly arise.

It is entirely for you.It is your case, not mine.

[15]	Counsel submitted, in effect, that the Judge’s direction depreciated the significance of the appellant’s explanation to the Police and evidence he gave to the Court disclosing circumstances in relation to which lawful, defensive force was not excluded.The defence was not obliged to prove that but there was evidence in support of the proposition, and the Judge should have directed the jury that they were not entitled to convict unless in all the circumstances there was no reasonable possibility that the appellant had taken possession of the brass rod because he thought he or his brother might be set upon by Mr Fish.
[16]	Counsel further submitted that the Judge should have identified as a relevant issue whether the appellant did not know or might not have known that his brother was carrying and intending to use offensively on Mr Fish a weapon, such as a steering lock.He submitted it was inappropriate to suggest that the jury was going up a side alley when their question showed they were focusing on a crucial issue.In counsel’s submission the Judge merged the position of the brother with that of the appellant in an inappropriate way.
[17]	The course of events at the late stages of the jury’s retirement are recorded as follows:

REGISTRAR SUMMONS THE ACCUSED INTO COURT

REGISTRAR MAKES ENQUIRY AS TO VERDICTS

THE COURT:I am sorry I did not catch your reply, have you unanimously agreed?

MR FOREMAN:Are you asking, Sir, on all counts or?

THE COURT:Yes, on all counts.

MR FOREMAN:No Sir.

THE COURT:All right.Have you – this is something I had not expected.Have you agreed on any counts?

MR FOREMAN:Yes Sir.

THE COURT:Is it likely that you are going to make any more progress on the ones that you have not agreed on?

MR FOREMAN:I personally believe yes, and (inaudible).

THE COURT:All right.Just sit yourselves down.Thank you Mr Foreman.The accused can be seated.I better say to you what I was going to get you in to say to you.We are reaching a stage of the night where it is – we are going to get into country where it is unfair to require people to keep going after so many hours and to make serious decisions.I am happy, if it will help resolve this thing, to allow you a bit more time but we are getting to the stage where the law requires me to pull the curtain.If you feel that given a little more time you can resolve more charges than you have presently resolved then the last thing I want to do is to take that opportunity away from you, but I am conscious of the tiredness factor, it is not apparent I must admit, looking at your faces which says great things for your fortitude.So I will ask you to retire again and perhaps Mr Foreman, if you could think in terms of letting us know if you had hit the wall.If you do not hit the wall then I will make another enquiry of you in a little while.All right thank you.

JURY RETIRE:10.24 PM

[18]	Mr Mackey says at some time between 10.24 and 10.43 the Judge returned to the Court door from Chambers and called over the Court taker and instructed her that it was time to “pull the curtain”.He told us the Court taker then went over to the door of the jury room and knocked.The record notes:

JURY RETURN:10.43 PMUNANIMOUS VERDICTS – ALL COUNTS

[19]

Counsel submitted that after a retirement of more than seven hours the jury may have been induced by the Judge’s directions to become anxious about coming to unanimity on what must have been, or have included, count 4.It was argued that the Judge ought to have made it plain to the jury that their verdicts could be taken on the counts on which they were unanimous and that there could be another trial on the remaining counts.Instead he told them that he might be required “to pull the curtain” with the implication that the jury would have effectively failed to resolve the case before it.In short, he submitted, the failure to give a conventional Papadopoulos direction created a risk of injustice to the appellant by forcing closure by the jury.

Crown submissions

[20]

The Crown submitted that the Judge’s direction on self-defence in answer to the jury’s second question made it clear that self-defence, including defence of another was available in respect of the particular offence alleged under count 4 and that in any event the jury had with them a written direction dealing with the law of self-defence and no complaint is made about that direction.In counsel’s submission the crucial issue was, in effect, whether the complainant was the aggressor or the victim of aggression on the part of the appellant and his brother.That factual issue, in the circumstances, was crucial to the applicability of self-defence.

[21]

Concerning the absence of a Papadopoulos direction the Crown points out that although a jury may be discharged by the Judge after the statutory period of four hours there is no obligation on a Judge to give a Papadopoulos direction rather than allowing the jury to continue its deliberations.In this case the jury was in retirement from about 3.55 p.m. until 10.45 p.m. and counsel submitted that in respect of a trial involving two accused, four counts and reasonably lengthy closing addresses the period of deliberation was not unreasonable.There was no indication that the jury was not making progress.To the contrary, when the jury was brought into Court at 10.16 p.m. the foreman indicated that verdicts had been reached on some counts and progress was likely to be made in respect of the remaining counts.The Judge observed, as the record shows, that the jury members did not appear to be tired.Counsel submitted there is no basis for a suggestion that the jury was rushed into a verdict, and the directions were not a misdirection.

Discussion

[22]	The High Court examined s202A(4)(b) in Tuli v Police [1987] NZHC 222; (1987) 2 CRNZ 638, an appeal against conviction in the District Court.The Police were called to the car park of a hotel at Christchurch where two gangs were fighting each other.A number of people, not gang members, had come from the hotel and were in the vicinity of the fight.A police constable saw Mr Tuli in the immediate area of the fight standing next to a car.Mr Tuli had a crowbar raised above his shoulder and there was a large group of people brawling around in that area.He was standing still and not participating in the brawl.The police officer directed Mr Tuli to drop the bar, which he did.The police officer said in evidence that he was aware that Mr Tuli was not associated with either of the gangs, that the general atmosphere was alarming and threatening, and that persons who were not members of either gang had reason to be apprehensive for their safety.Mr Tuli had later told the Police that his cousin had become involved, apparently involuntarily, and Mr Tuli had gone to assist his cousin.As he was moving away he saw a crowbar under a car and picked it up with the object of ensuring that neither he nor his cousin got hurt as they were leaving the area.
[23]	Williamson J held that prima facie circumstances are those which are sufficient to show or establish an intent in the absence of evidence to the contrary.He held there was no doubt that the Police had acted properly because, when the constable arrived and saw the appellant with the crowbar held up, he had reasonable cause to suspect that an offence may be occurring or about to occur.But the conviction by the District Court was quashed because Williamson J accepted that the District Court Judge appeared not to have considered the circumstances applying at the time when the crowbar was held up but rather considered what he perceived to be the likely sequence of events if the crowbar had in fact been used.The High Court also accepted a submission on behalf of the appellant that the District Court Judge appeared to have placed some onus on the appellant to satisfy him that the action which he took was reasonable in the circumstances.In the High Court’s view the law clearly was that the prosecution had to establish that the appellant was not justified.
[24]	In R v Busby CA 211/01 judgment 26 September 2001, this Court dismissed an appeal against conviction for the particular offence when the appellant had put in issue the question of self-defence but the trial Judge had declined to put that to the jury.The circumstances involved the appellant being involved in a fight during which he wielded a pair of scissors.He was charged on one count pursuant to s202A(4) and another count of wounding with intent to injure.The Court said:

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.

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.

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.

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.

[25]	Force which would be unlawful is rendered otherwise by s48 of the Crimes Act which states:

48Self-defence and defence of another

Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

[26]	The application of s202A(4)(b) is not without difficulty in cases where self-defence may be an issue.The difficulty arises, particularly, in connection with the ingredients of the offence and the requisite proof required of the Crown, having regard to the reference to “circumstances that prima facie show an intention”.The term “prima facie” must carry its usual meaning “at first appearance”.An intention engaged by s202A(4)(b) is therefore one to be ascertained objectively, by reference to actual circumstances, and in conjunction with mere possession.By contrast, s48 is concerned with subjective intention, namely an intention to defend, actual or threatened use of force not mere possession, and circumstances not as they actually were but as the user of force subjectively believed them to be.Also, s202A(4)(b) is concerned with an intention as to future use, whereas s48 justifies actual use of force
[27]	Care is needed in defining the relevant circumstances in any particular case.They are such circumstances as are apparent.If, in a particular case, what the actual circumstances prima facie show admits the reasonable possibility that a person was in possession of a weapon in order to defend himself or another by using no more force than was reasonable in the apparent circumstances, it must follow that the Crown will not have proved the offence proscribed by s202A(4)(b).
[28]	But if the apparent circumstances admit no such reasonable possibility, a mere assertion by an accused in other circumstances, such as in the course of a Police interview or testifying at trial, that the weapon was not possessed with an intention to use it to commit an offence, will not be a circumstance at the relevant time.There will be no obligation on the Crown to exclude the possibility of the alleged exonerating intention; it must be for the accused to establish that defence pursuant to subs (5).
[29]	When directing a jury in respect of s202A(4)(b) a Judge should tell them to determine whether the accused was in possession of an offensive weapon or, as the case may be, a disabling substance. They must then examine the apparent circumstances, without reference to what the accused says was his or her state of mind, and decide whether such circumstances show, prima facie, an intention to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.If they are satisfied of those matters the accused will be guilty unless he or she proves, on the balance of probabilities, that there was no intention to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.
[30]	If an accused should seek to justify pursuant to subs (5) on the basis that the possession was not with the intention to commit an offence but to use force justified by self-defence it would be an error for the Judge to direct the jury, as occurred in this case, that the Crown had to exclude that possibility.The Crown’s burden is to prove the circumstances prima face showing the prohibited intention.The accused’s burden is to displace the prima facie appearances by proving the absence of unlawful intent on the basis that he was in possession of the prohibited thing with the intention of defending himself or another and of using no more force in doing so than was reasonable in the circumstances as he believed them to be.
[31]	In the present case the circumstances asserted by the Crown were, in effect, that the appellant and his brother returned to the brass foundry intending to retaliate offensively to a perceived insult by Mr Fish.The brother’s immediate reaction upon hearing the appellant’s complaint, the proximity in time between the entry of the two brothers into the foundry, and the evidence of Mr Fish and a co-worker relating to the steering lock, showed, prima facie, that the appellant knew of his brother’s offensive purpose and took possession of the brass rod with a similar purpose.The appellant’s version of the relevant circumstances was that he and his brother simply went next door to ask Mr Fish why he had acted so aggressively and that Mr Fish had immediately responded with gratuitous violence of such a nature as to make him reach, more or less instinctively, for the security of the brass rod.
[32]	In reality the case for the Crown depended on the veracity of Mr Fish’s version of events.If the jury were satisfied of that, the apparent circumstances were such as to show, prima facie, a prohibited intention on the part of the appellant.He would then have needed affirmatively to justify his possession pursuant to subs (5) on the basis that he had no unlawful intention in the sense already discussed.
[33]	As we have indicated the Judge’s direction to the jury that the Crown had to exclude self-defence was erroneous but was in the appellant’s favour so that he cannot complain about it.In passing, however, we question whether, generally, it is apt for the particular offence to be charged in circumstances where there is conflicting evidence as to who was the actual aggressor in a violent situation.The offence is concerned with possession and prima facie circumstances, not actual use and conflicting versions of the circumstances.A charge involving elements of force would seem more appropriate in a case such as the present.Yet here no injustice has occurred.
[34]	Nor are we persuaded that there has been a miscarriage of justice because the Judge directed the jury in the terms indicated earlier in this judgment rather than in terms of a Papadopoulos type direction.There is no obligation on a trial Judge to give any such direction before discharging a jury which is unable to reach unanimous agreement.If however a direction is given, its terms must not be such as to encourage the jury to agree simply for the sake of agreement.The conventional direction which indicates the possible consequences of disagreement is calculated to remind the jury of its responsibility but at the same time to avoid a sense of coercion for the sake of a result.Another purpose of a Papadopoulos direction is to assure a jury that it will not be kept in deliberation unless and until it comes up with a unanimous decision.
[35]	No exception can properly be taken to the direction given by the Judge in the present case.It indicated that they would not be required to deliberate indefinitely, expressed solicitude for any indications of fatigue and indicated that the Judge would like to give the jury a little more time to resolve more charges than they had already resolved rather than immediately withdrawing that chance.
[36]	Counsel’s submission to the effect that the jury might have felt obliged to return a unanimous verdict on all counts so their efforts would not be wasted on any of them is untenable in light of the terms the Judge used and remains entirely speculative.

Result

[37]	For these reasons the appeal against conviction is dismissed.

Solicitors

Crown Law Office, Wellington for Crown