Conroy v Police [2014] NZHC 1921 (14 August 2014)

Last Updated: 22 August 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000053

CRI-2014-409-000054 [2014] NZHC 1921

ROGER CONROY

v

_{NEW ZEALAND POLICE}

Hearing:	14 August 2014
Appearances:	Appellant in person MAJ Elliott for Respondent
Judgment:	14 August 2014

_{JUDGMENT OF DUNNINGHAM J}

[1] Mr Conroy appeals against an order for destruction of a knife which was made by Judge Callaghan in the course of sentencing Mr Conroy on charges of possession of knife in a public place (s 13A Summary Offences Act 1981) and the failure to answer police bail.

[2] The charge of possession of a knife arose because, when Mr Conroy entered the Christchurch District Court and passed through the Courts security search station, a lock knife with a seven centimetre blade was located in the defendant’s bag. He refused to provide an explanation for carrying the knife to Court security staff and to the police. He was therefore arrested and charged with possession.

[3] It is an element of the offence that a defendant does not have a “reasonable excuse” for possession of the knife. Had an excuse been offered to the police they

_{would have taken it into account in deciding whether to charge the appellant.}

ROGER CONROY v NEW ZEALAND POLICE [2014] NZHC 1921 [14 August 2014]

[4] The District Court Judge also asked Mr Conroy why he had the knife. The answer he gave was:

Um, I, well I didn’t have a reason, sometimes I have my knife with me, um, if I’m going to use it and sometimes I don’t and on that day I’d forgotten that it was in my pack and I didn’t have any reason to have it.

[5] On the two charges, Mr Conroy was sentenced to 60 hours community work and an order was made for destruction of the knife.

[6] The only aspect of that sentence which Mr Conroy challenges is the order for destruction. He wants the knife returned. He explains that the pocket knife is a good quality product made by Gerber in Seattle, USA. Mr Conroy is 68 years old and the knife would have lasted him for the rest of his life. The pocket knife was a present from his daughter and her husband and so it is not only useful to him but also has sentimental value. He has not been able to find an exact replacement, but to replace it would cost about $60.

[7] Unfortunately, however, Mr Elliott for the Crown has explained that the order for the destruction of the knife was made on 26 June 2014 and the police destroyed the knife on 2 July 2014. At the time the knife was destroyed, the officer-in-charge was not aware of the appeal, although it had been lodged on 27 June 2014. However, of course, under s 343 of the Criminal Procedure Act 2011, a sentence is not suspended when an appeal is filed unless the appeal court expressly directs a suspension or a statute provides for such. In other words, in this case unless a suspension of the sentence had been promptly sought and granted, the police were entitled to put into effect the order made.

[8] That, of course, in a practical sense means the appeal cannot succeed, because the knife cannot now be returned.

[9] However, for completeness it is important to note that it was within the District Court’s power to take possession of the knife and carry out its destruction. Section 13A of the Summary Offences Act 1981 provides:

(1) Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in any public place, without reasonable excuse, has any knife in his or her possession.

(2) On convicting any person of an offence against subsection (1) of this section, the Court may order that the knife be forfeited to the Crown.

[10] While s 13A simply gives a Judge the discretion to order forfeiture of the knife, rather than a specific power to order destruction, it is logical that, as a consequence of forfeiture, such property vests in the Crown and it can dictate what happens to that property at that point.

[11] The circumstances arising made it clear that the defendant did not offer a “reasonable excuse” for possession of the knife, nor was the Judge addressed on any reasons which might influence his discretion to allow Mr Conroy to retain the knife. In those circumstances, I cannot see that the Judge erred when making the order for the knife to be handed over and destroyed.

[12] Accordingly, no ground of appeal has been made out and the appeal is dismissed.

Solicitors:

Raymond Donnelly & Co., Christchurch