THE QUEEN v ARTEMUS RYAN [2002] NZCA 333 (19 December 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 165/02

THE QUEEN

V

ARTEMUS RYAN

Coram:

McGrath J

Anderson J

Glazebrook J

Counsel:

R J Stevens for Appellant

J M Jelas for Crown

Judgment (On the papers):

19 December 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]

This is an appeal against conviction and sentence which has been heard on the papers pursuant to the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions which have been received in accordance with R29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offence and sentence

[2]

The appellant was convicted on his trial before a District Court Judge and jury on one count that on or about 6 March 2001, at Upper Hutt, he did have in his possession an offensive weapon, namely a corkscrew, 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.Such an offence is proscribed by s202A(4)(b) of the Crimes Act 1961.He was sentenced to three months periodic detention.

Relevant facts

[3]	The appellant and his brother Tutekohi Jefferis faced an indictment alleging six counts relating to events at the residence of the appellant’s then recently estranged former partner, the complainant.They went round to the complainant’s address to trace two men who had threatened and made menacing demands of their mother.Because feelings had run high over the break-up between the appellant and the complainant he thought that she might be able to give them information about those two men.He and his brother drove to the complainant’s home and on alighting from their car the appellant put in his pocket a corkscrew in order, he said, to defend himself should the men they were seeking be at that place.The appellant’s brother smashed a window for which he was charged with wilful damage to a dwelling house.He pleaded guilty to that count in the indictment.The appellant was charged with breaking and entering the building with intent to commit a crime therein.He was acquitted on that count.His brother was charged with unlawfully entering a building with intent to commit a crime therein and he also was acquitted.
[4]	Once inside the house they challenged the complainant in a way which gave rise to a charge against the appellant of being a male did assault a female, allegedly consisting of pushing over the complainant.He was acquitted by the jury on that count.The complainant testified that the brother threatened her with a knife which both the appellant and his brother disputed.The brother was charged pursuant to s202A(4)(b) of the Crimes Act but acquitted.The complainant’s evidence was that as the brother was threatening her verbally and with the knife the appellant produced the corkscrew from his pocket and held it at his side.Whilst disputing the complainant’s version of events as threatening and aggressive he nevertheless conceded that at one point he did take the corkscrew from his pocket and hold it at his side.His explanation for this is that the corkscrew was digging into him.As we have mentioned, the jury convicted him on that count.
[5]	After verdict counsel for the appellant applied for an order discharging him pursuant to s347 of the Crimes Act but was unsuccessful.He also submitted that the appropriate sentence was a discharge without conviction pursuant to s19 of the Criminal Justice Act 1985 principally on the grounds that a conviction would be out of proportion to the offence, particularly having regard to its potential impact on a pending application by the appellant for a Manager’s Certificate under the Sale of Liquor Act 1989 and the consequences in terms of his career.

Grounds of appeal against conviction

[6]	There are three principal grounds of appeal against conviction.The first is alleged misdirection by the Judge in relation to s202A(4)(b) and 202A(5).Those statutory provisions are as follows:

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

...

(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.]

[7]	Counsel referred to the Judge’s jury direction summarising the issues in this way:

In terms of count three, are you satisfied beyond reasonable doubt that a reasonable person looking on would think that he was intending to use it as a weapon in the way that I have already defined or, are you satisfied on the balance of probabilities that what he said was true and that he had no subjective intention to use it in that way.

[8]	In counsel’s submission the Judge was clearly giving the jury a choice – either they found the charge proved or they accepted the appellant’s evidence.Counsel submitted that the jury would certainly have felt constrained to choose one of the two options presented whereas in fact there was a third option.This is that the charge had not been proved beyond reasonable doubt and it was only if they found the charge otherwise proved beyond reasonable doubt that they needed to go on to consider whether the defence provided by s202A(5) had been made out.Indicative of the constraining effect of the Judge’s direction, in counsel’s submission, is the acquittal of the appellant on the first two counts but conviction on the third.
[9]	Counsel also submitted that the Judge failed adequately to direct the jury with respect to the defence provided by subs (5).He submitted that the Judge did not properly explain the defence and in particular the defence that there was no intention to use the offensive weapon to commit an offence involving bodily injury or the threat or fear of violence.Nor did he explain to the jury that such defence need only be considered if the Crown had proved the charge beyond reasonable doubt.The result in his submission was jury confusion.Nor was a possible defence of self-defence properly put to the jury when such was available in view of the appellant’s evidence that he was carrying the corkscrew into the house for protection against the people who had assaulted his mother.
[10]	The second major ground of appeal is that the jury’s verdict was unreasonable or could not be supported having regard to the evidence.The complainant testified that the appellant’s brother pulled out a knife and made jabbing motions at her but he was acquitted in that respect.Yet her evidence was that at the time the brother was doing this the appellant had the corkscrew by his side.In view of the acquittal of the brother, the holding of the corkscrew was clearly not a threatening use so that even if the jury was entitled to reject his explanation for removing the corkscrew from his pocket there was nothing about his evidence which would have enabled the jury to find the prima facie intention.Further, the jury’s verdict on this count is inconsistent with the verdict of acquittal on the burglary count.Counsel submitted that if the jury was satisfied that the appellant had committed the offence of possession of an offensive weapon, either because he had the corkscrew in his pocket when he entered the property or because he took the corkscrew out of his pocket whilst inside, he would also clearly have been guilty of the burglary, both offences forming part of a single transaction.He submitted the different verdicts in respect of each simply cannot be reconciled.The explanation for the differing verdicts, in counsel’s submission, is that the jury compromised.
[11]	The third ground of appeal against conviction refers to an opening remark of the Judge said to be an unintentional but clear suggestion that the jury would find the charge proved.What the Judge said was:

The third charge is a charge of possession of an offensive weapon and this is, particularly the last of the elements that the Crown has to prove, sometimes somewhat subtle and not quite as easy as it might be, but I am sure we will get there.

Grounds of appeal against sentence

[12]

Counsel submitted that in all the circumstances this was an appropriate case for a discharge without conviction pursuant to s19 of the Criminal Justice Act 1985.In declining to exercise his discretion in favour of the appellant the Judge had failed to give sufficient weight to relevant considerations and had given too much weight to irrelevant considerations.The relevant considerations were the effect on the appellant’s career, as previously mentioned in this judgment, and the extenuating circumstance of the assault on the appellant’s mother by two men at the instigation, according to the appellant, of the complainant.On the other hand, it was submitted, the Judge inaccurately characterised the conduct of the appellant and his brother as “vigilante justice” and overstated the situation in describing them as “armed and in force”. The Judge also referred to a “potential for disaster” which, submitted counsel, is just not evident from the facts of the case.

Crown submissions

[13]

The Crown’s response is to the effect that given the animus between the appellant and the complainant, the uninvited entry into the complainant’s house accompanied by verbal abuse and the standing over of the complainant by the appellant and his brother, it was open to the jury to reject the explanation the appellant gave for taking the corkscrew out of his pocket in the course of the confrontation.The acquittals in respect of the counts of breaking and entering or entering with intent were not inconsistent with the guilty verdict.It was open to the jury to accept the reasonable possibility that there was no intent to commit a crime at the time the appellant entered the complainant’s home but that the circumstances prima facie showed a proscribed intent at the time the appellant took out the corkscrew from his pocket.There was no misdirection nor propensity for confusion from what the Judge told the jury and the Judge’s comment about “getting there in the end” was clearly related to the subtleties and intricacies of the ingredients of s202A(4)(b).

[14]

As to the appeal against sentence the Crown submitted that the circumstances made it quite inappropriate to consider a discharge without conviction.There was a forced entry of a private home with a clear threat of violence to a woman who had been extremely traumatised in the result.A weapon was presented.There was nothing to indicate that the Judge had exercised his discretion on a wrong basis.

Discussion

[15]	Recently, in R v Haqiqzai CA 158/02; judgment 18 December 2002, this Court questioned the appropriateness of prosecuting a charge in terms of s202A(4)(b) in circumstances where there is not mere possession but the use of a weapon in a violent confrontation.This case is another example of the introduction of unnecessary complexity in respect of what is essentially an assault rather than mere possession in suggestive circumstances.The Crown case here was that when the complainant was being berated by two men who had entered her home without invitation and who were expressing their anger at least verbally, one of them produced an offensive weapon from his pocket and held it in a way that it could be seen by the victim. Those facts disclose an assault and indeed assault with a weapon.The Crown saw fit, however, to invoke s202A(4)(b).The difficulties arising in such circumstances were what the Judge was referring to in his opening remarks when he said of such a charge “particularly the last of the elements that the Crown has to prove, sometimes somewhat subtle and not quite as easy as it might be, but I am sure we will get there”.The Judge then went on to explain in some detail the ingredients of the offence.It is plainly the difficulty and subtlety of the charge and the need for the jury to come to grips with this that the Judge is referring to when he said “but I am sure we will get there”.The submission by counsel for the appellant that the observation is in the nature of a direction to the jury to convict is entirely meritless.
[16]	Nor are we persuaded that the Judge misdirected or inadequately directed the jury in relation to s202A(4)(b) or subs (5).The opening remarks to the jury include an adequate description of the ingredients of s202A(4)(b).The Judge also gave the jury a preliminary memorandum explaining the ingredients of all the offences.In his closing remarks he took more than a page of the transcript to outline to the jury, again, the ingredients of the charge and the application of subs (5).
[17]	Near the end of his directions the Judge summarised the position, as previously mentioned herein, as follows:

In terms of count three, are you satisfied beyond reasonable doubt that a reasonable person looking on would think that he was intending to use it as a weapon in the way that I have already defined or, are you satisfied on the balance of probabilities that what he said was true and that he had no subjective intention to use it in that way.

[18]	By the time the Judge came to direct the jury in those terms his previous, often repeated directions were such as to make it entirely clear that he was talking about sequential considerations.Dissection of the transcript of the directions, long after trial, may disclose a syntactical slip without there being any real cause for concern that the jury may have been mislead.Here, considering the opening and closing remarks we find no basis for concern that the jury may have been constrained by the thought of a stark choice between proof of the charge and acceptance of the appellant’s explanation.We note, moreover, that although the Judge gave an indication to counsel that he would consider any matter they might wish to raise at the conclusion of the summing up, no objection, such as that now argued, appears to have been raised.If the words used by the Judge had conveyed the meaning now complained of counsel would surely have raised the matter at that time.
[19]	Nor are we persuaded that the jury’s verdict was unreasonable either in terms of inadequacy of an evidential basis for it or apparent irrationality by reason of inconsistent verdicts.It was entirely open to the jury, on the evidence, to be satisfied that the circumstances in which the appellant produced the corkscrew from his pocket showed, prima facie, an intention to threaten the complainant with it.They did not accept as proved, on the balance of probabilities, that the corkscrew was produced to ease the appellant’s comfort, an explanation which strains credulity more than it tends to prove.The acquittals on the counts of breaking and entering, or entering, with intent to commit a crime therein are explicable on the basis that there was a reasonable doubt whether entry was made in order to offer violence in the premises to anyone even though anger came to the fore when the complainant was confronted.Although she was on the ground at one stage the verdict of acquittal on the count of assault is rationally explicable on the basis that the jury had a reasonable doubt whether the appellant pushed the complainant over, as she said, or the complainant fell over, as the appellant suggested.
[20]	We are not persuaded to allow the appeal.
[21]	As to the appeal against sentence, and in particular the decision not to discharge without conviction pursuant to s19 of the Criminal Justice Act, we approach the issue, as counsel for the appellant by his submissions appreciates we must, on the basis that there is a challenge to the exercise of a discretion.Counsel submitted that the Judge overstated the circumstances in the terms described, but we are conscious of the advantage he had in presiding over a defended trial in which he had the opportunity of observing both the complainant and the appellant as they testified and of appreciating, therefore, the degree of animus which must have existed at the relevant time.Two young men, angry at what had happened to their mother, set out to confront the recently estranged complainant.The relationship had ended in rancour and there had already been an angry scene prior to the day in question.Feelings were obviously running high and could have got out of control.To some extent they did, with the appellant’s brother smashing a window and the appellant producing the corkscrew as he did.
[22]	It is regrettable that the appellant may have compromised his career in the hospitality industry but an evidential basis for the proposition that he has done so is absent.He has otherwise been of good character and his reaction on the day in question was significantly provoked by what seems to have been outrageous conduct towards his mother.No doubt these mitigating factors will be given appropriate consideration when he applies for a Manager’s Certificate.
[23]	A general submission to the effect that a sentence of periodic detention rather than community service is manifestly excessive and wrong in principle is not accepted.The sentence imposed was fairly open to the Judge.

Result

[24]	For the above reasons the appeals against conviction and sentence are dismissed.

Solicitors

Fanselows, Wellington for Appellant

Crown Law Office, Wellington for Crown