THE QUEEN v KENNETH CHARLES RICHARDSON [2003] NZCA 60 (25 March 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA450/02

THE QUEEN

v

KENNETH CHARLES RICHARDSON

Hearing: 19 March 2003

Coram: Blanchard J

Robertson J

William Young J

Appearances: C J Tennet for Appellant

M A Woolford for Crown

Judgment: 25 March 2003

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

Introduction

[1]	This is an appeal against conviction and sentence.Mr Richardson stood trial in the District Court at Hamilton in October 2002 on an indictment which alleged that on 2nd July 2001 he was in possession of :

• a pistol, namely a cut-down Remington single barrel semi-automatic shotgun contrary to s50(1)(a) of the Arms Act 1983

• a firearm, namely a Mossberg 12 gauge pump action shotgun except for some lawful, proper and sufficient purpose contrary to s 45(1)(b) of the Arms Act 1983, and

• a military style semi-automatic firearm namely an AK47 not being authorised or permitted to be in possession of that firearm contrary to s50(1)(c) of the Arms Act 1983.

[2]	The jury returned verdicts of guilty in respect of the first two counts and not guilty on the third count.He was subsequently sentenced to 18 months imprisonment on the count related to the Mossberg 12 gauge pump action shotgun and a concurrent sentence of 12 months in respect of the pistol.
[3]	The grounds of appeal against conviction are that there was a miscarriage of justice because:

(a) the Judge misdirected the jury on the burden of proof and how to assess the evidence given by the appellant

(b) although shortly after they retired to consider their verdicts the jury were recalled and further directions were given which remedied any prior omissions, the subsequent directions were too late

(c)	the Judge misdirected the jury concerning whether the jury were unsure about the appellant’s evidence, the appellant failed to rebut the presumption and/or raise an affirmative defence
(d)	the Judge misdirected the jury on the issue of self-defence
(e)	the conduct of the Judge during his summing up entered into dialogue with jury members.
[4]	The appeal against sentence was advanced on the basis that insufficient credit had been given for mitigating circumstances and the starting point was too high.

Background

[5]	In 2001 the appellant acquired Cambridge Auto Spares, a car wrecking and car parts business.On 2 July 2001 the Police executed a search warrant at those premises.The search warrant also related to a white Holden Commodore motor vehicle which was operated by the appellant.
[6]	At the premises of Cambridge Auto Spares there was a car yard with a small building unit. Parked on the roadside outside the business was the appellant’s house bus.
[7]	At the time the search was commenced three adults and a child were present but not the appellant.The Police located a Remington single barrel semi-automatic shotgun under a bed in a room Police described as a bedroom.This was the subject of Count 1.In the tearoom, leaning against a kitchen unit, the Police found the AK47 which was the subject of Count 3.
[8]	Mr Richardson arrived at the premises about an hour and a half after the Police had commenced their search.He was driving the white Holden motor vehicle.When the Holden was searched, at the back of the boot the Police found a Mossberg 12 gauge pump action shotgun, the magazine of which contained five live rounds.This was the subject of Count 2.
[9]	Mr Richardson made a short written statement to the Police in which he acknowledged possession of the firearm in his car.He denied all knowledge of the firearm in the tearoom.He told the Police he had found the Remington single barrelled semi-automatic shotgun when cleaning up the premises after he acquired the business.
[10]	The appellant gave evidence at trial in which he confirmed these positions.He said the Mossberg firearm was necessary for his personal protection as two years previously he had been a Crown witness in a murder trial.As a result of his giving evidence he said he had been harassed, intimidated and assaulted by gang members.He said he lived in constant fear for the safety of himself and his family.
[11]	He also confirmed what he had initially told the Police, namely that he had no knowledge of the firearm in the tearoom and that it had not been present on the business premises when he had last been there three or four days previously.
[12]	He said that he had discovered the third firearm, which was located under the bed, with a lot of other rubbish at the time that he took over the business and that he had just left the firearm in the nail box where he had found it.He said it was always his intention to dispose of it and he had no idea how it ended up under his bed.
[13]	Mr Richardson said that no one was living at the premises of Cambridge Auto Spares and that when he stayed overnight in Cambridge, he slept in the house bus which was parked on the street.He said he had slept in the bedroom unit on one occasion a month or two earlier when he had been unable to connect electricity to the house bus.
[14]	The Police, however, located documentation and personal correspondence in the bedroom area of the building which were addressed to Mr Richardson.He could not explain how these items had come to be in the bedroom.

Misdirection on Burden of Proof

[15]	In respect of each of the three counts possession was an essential ingredient.The admission of Mr Richardson in respect of the firearm in his car meant that the matter was not a live issue on the second count at trial but it was in respect of both the other counts.The Crown were entitled to invite the jury to infer possession from all the circumstances including what he had said to the Police.
[16]	In addition to this circumstantial evidence, the Crown was entitled to rely on s66 of the Arms Act 1983 which provides:

66 Occupier of premises or driver of vehicle deemed to be in possession of firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive found therein

For the purposes of this Act every person in occupation of any land or building or the driver of any vehicle on which any firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive is found shall, though not to the exclusion of the liability of any other person, be deemed to be in possession of that firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive, unless he proves that it was not his property and that it was in the possession of some other person.

[17]

This was an additional means of establishing the ingredient of possession if the jury were satisfied that Mr Richardson was the occupier.

[18]

We have assessed Mr Tennet’s submission on this issue but there is no impediment to the way the Crown presents its case to the jury.The fact that the appellant gave evidence of abandonment did not preclude the presumption of possession applying.The appellant had admitted possession of the pistol at an earlier time but when the warrant was executed he claimed he did not have it.In these circumstances it was incumbent on the Judge to direct the jury on the presumption which was being relied on as part of the Crown case.The first ground of appeal has no merit.

Direction on Treatment of Appellant’s Evidence

[19]	As is commonplace, after the jury had retired, counsel were asked whether there were any matters in the summing-up about which they were concerned.As a result of representations made by Mr Tennet the jury was recalled and the Judge gave a further direction on the manner in which they could deal with the evidence which they had heard from Mr Richardson at trial.Mr Tennet agrees that what was then said adequately covered the position and was correct in law.He now complains that because it came at this stage it was ineffectual.
[20]	Upon analysis, that submission cannot have validity.It is because a matter may be overlooked or misstated that the practice is adopted.It is a means of ensuring that the jury is comprehensively directed.It would make a mockery of this sensible practice to conclude that additions or corrections made in those circumstances were without efficacy.
[21]	Associated with this, Mr Tennet also argued that there was a misdirection in the jury being told that if they were unsure about the appellant’s evidence, then the appellant had failed to rebut the presumption.The Judge said:

In considering his evidence, I suggest that there are three possible conclusions you might come to in considering his evidence on those things that he has to prove.One, the first possibility is that you accept what he has said as being more likely than not to be true.If that is so, he has rebutted the presumption and should be found not guilty.In the case of count 2, he has established his defence and should be found not guilty.The second possibility, you do not accept his explanation as being more likely or not to be true.If that is so, he has not rebutted the presumption and he should be found guilty.The third possibility is that you cannot decide one way or the other whether his explanation is more likely or not to be true.If that is so, then again he has not rebutted the presumption and should be found guilty.

[22]	That is the legal position.Where there is a presumptive situation the onus is on an accused person on the balance of probabilities to rebut the presumptive conclusion.If the evidence of the accused person is not persuasive the presumption remains operative.

Direction on Self Defence

[23]	Mr Richardson, in evidence, had talked about his apprehensions about the safety of himself and his family as a result of his involvement in the prior court case.He described instances from some time ago.It was argued by Mr Tennet that the issue of self-defence which arose on Count 2 was not properly put before the jury.
[24]	The issue was adverted to on two occasions in the summing-up and was also the subject of a specific direction in reference to a jury question.The defence position on the point was described by the Judge as follows:

Here, the defence position is that the lawful, proper and sufficient purpose for possession of the firearm was to defend himself against an attack that he feared might occur.Within limits, you are, of course entitled to defend yourself.The law provides that everyone is justified in using in the defence of himself or in the defence of another such force as in the circumstances as he believed them to be it is reasonable to use.

In considering a claim of self-defence there are two principal issues to consider.One, that the person claiming to act in self-defence was in fact acting in defence of himself.You need to consider whether it was more probable than not that he genuinely believed he was under threat of attack.The second issue is that when a person uses force in self-defence, it must be reasonable in the circumstances as he believes them to be.Here the test is not to determine what the circumstances actually were but look at the matter through the eyes of the accused and decide what he believed the circumstances to be.Having decided what those circumstances were then you must decide whether the possession of that sort of weapon was reasonable in the circumstances given the force that he felt was confronting him.Here the accused says, for the reasons that he gave, he believed that there was to be an attack on him and that he had the firearm to protect himself.Overall, the accused must satisfy you that it is more probable than not that his claim for a lawful purpose is not based on mere fancy or upon an aggressive desire on his part.There are three things which he must satisfy you were more probable than not.One, that he honestly anticipated an attack on himself.Two, that the anticipated violence was reasonably imminent.Three, that he believed that the anticipated attack was of such nature that using a firearm to defend against it would, judged objectively, be reasonable force.If you are satisfied that that is so then the accused would have established that he had a lawful, proper and sufficient purpose.

To recap, the Crown has established that it is a firearm, they have established that it is in the accused’s possession.The accused therefore has to prove that he had it for a lawful, proper and sufficient purpose.He claims a lawful, proper and sufficient purpose based on the suggestion that he needed it to defend himself.He therefore must establish for you that he honestly anticipated an attack on himself or his family.Second, that that anticipated violence was reasonably imminent and, three, that he believed that the anticipated attack was of such a nature that using a firearm to defend against it would, judged objectively, be reasonable force.

[25]

We accept the Crown’s submission that, in light of the available evidential basis to support the defence, it would have been inappropriate to go further and to direct the jury on a highly hypothetical position as Mr Tennet now urges.There was no suggestion that there was any imminent danger which would have entitled Mr Richardson to act in self-defence.This aspect of the case seems to have been predicated on the quite unsustainable premise that if a person subjectively believed that they were under constant threat, they would be able to carry loaded weapons.That is not the law and the ground is unmeritorious.

Dialogue with the Jury

[26]	At three points during the course of his summing-up, the Judge directly responded to questions or interjections which had come from members of the jury.
[27]	This is not a practice which is appropriate or desirable.The well-established approach of having any communication between the jury and the Judge in writing and normally responded to only after some discussion with counsel, has much to commend it.Such a disciplined process avoids complaints of the sort which are now made about this aspect of the trial.
[28]	In conducting jury trials the orthodox practices which have developed over decades should normally be adhered to so that an orderly and fair disposal of the case can be ensured.They are based on the collective wisdom and experience of the system and deviations should be treated with caution.
[29]	That having been said, there is in fact nothing arising from any of the interchanges in this case which raises the possibility of a miscarriage of justice occurring. That is the only basis upon which this Court intervenes on an appeal. There is no substance in this ground of appeal.

Appeal against sentence

[30]	As a result of the jury’s verdict, this man was to be sentenced for the possession of a pistol which was under a bed in an area where the jury must have been satisfied he had control, and for possession of a loaded firearm in the boot of his vehicle which he was not justified in having.
[31]	Although the appellant had no history of violence he had a significant previous criminal history.
[32]	The Judge reached the view, in light of decisions of this Court to which he referred without specification, that a two year starting point in respect of the possession of the two weapons was appropriate.Mr Tennet submits the starting point was too high and the discount granted was insufficient, although before us he was unable to identify any decision which suggested a mistake of focus by the Sentencing Judge.
[33]	Loaded firearms are anathema within our community.Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability because of the potential for danger from their possession.
[34]	It appears to us that the Judge adopted a merciful approach by providing credit for previous history and assistance to the Police.We do not accept thatR v Verschaffelt, [2002] 3 NZLR 772, to which counsel referred, had any reference in this case.
[35]	Although it is not a matter which strictly falls within the parameters of the appeal, the Crown’s advice to us (which is not challenged) is that while on bail in respect of these offences Mr Richardson committed another offence of unlawful possession of ammunition and a pistol which did not attract any additional sentence.If he was entitled to any consideration for his previous assistance to the authorities, it has been amply recognised in that concurrent sentence.Further, since he has been in prison we are told there has been no segregation of the appellant nor any request for it.

Result

[36]	The appeal against both conviction and sentence is dismissed.

Solicitors:

Crown Law Office, Wellington