Carpenter v R [2014] NZHC 892 (2 May 2014)

High Court of New Zealand

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Carpenter v R [2014] NZHC 892 (2 May 2014)

Last Updated: 15 May 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-14 [2014] NZHC 892

BETWEEN	LIAM DAVID CARPENTER Appellant
AND	THE QUEEN Respondent

Hearing:	29 April 2014
Counsel:	F Kelly and K Preston for Appellant S A H Bishop for Respondent
Judgment:	2 May 2014

_{JUDGMENT OF GODDARD J}

This judgment was delivered by me on 2 May 2014

at 12.45 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Public Defence Service for Appellant

Crown Solicitor, Wellington

CARPENTER v R [2014] NZHC 892 [2 May 2014]

Introduction

[1] Mr Carpenter was found guilty of possession of a knife in a public place without reasonable excuse¹ by Judge Tompkins on 4 March 2014. He was fined

$200 plus court costs of $130 and an order made for destruction of the knife. Mr Carpenter now appeals against his conviction.

Background

[2] Mr Carpenter was pulled over by police on an unrelated matter when driving his car on 2 July 2013 at around 1.45 pm. He was found to have a folding pocket knife in his pocket attached to his pants with a lanyard.

[3] The defence case was that Mr Carpenter, who is a possum trapper, had earlier in the morning cleared his possum traps, using the knife to skin the possums. He had used the knife again later, after returning home to prepare possum skins. Mr Carpenter said he had not turned his mind to the knife still being on his person when he went to collect his son from school. However, plans changed and he returned home to have lunch by himself. It was after lunch, while on his way to the local swimming pool to meet his son for a swimming lesson, when he was stopped by police and the knife discovered on his person.

Legislation

[4] Section 13 A of the Summary Offences Act 1981 provides:

13A Possession of knives

(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), the court may order that the knife be forfeited to the Crown.

District Court decision

[5] It was not in dispute that Mr Carpenter had a knife on him when stopped by Police in a public place or that he had been carrying it about in public places earlier. The sole issue for the hearing was whether he had a reasonable excuse for doing so.

[6] At the hearing, a police officer, Constable Boggs, gave evidence that Mr Carpenter had previously been warned about carrying the same knife in public and warned that he should not carry it unless going to work or hunting. Judge Tompkins relied on this evidence in concluding that Mr Carpenter’s claim of

forgetfulness did not constitute a reasonable excuse.² The Judge recorded as follows:

Ms Kelly submits that Mr Carpenter had simply forgotten about the presence of his knife in his pocket and that because he had earlier used it legitimately for possum skinning in the bush his forgetfulness constituted a reasonable excuse... I cannot accept that submission. Some four weeks earlier, Mr Carpenter had interacted with another police officer ... in circumstances where the same knife was located in the same fashion on the same lanyard... The police ... explicitly warned Mr Carpenter that he should not carry a knife in that fashion in public other than travelling to or from work and using it in the bush to skin possums.

[7] The Judge found that Mr Carpenter “had not proved on the balance of

probabilities that he had a reasonable excuse for the possession of the knife”.

[8] It is accepted the Judge incorrectly placed the onus of proving any excuse or exemption on the appellant on the balance of probabilities. The onus is correctly on the Crown to refute the existence of a defence beyond reasonable doubt, once an evidential burden is raised. On that basis, the Crown acknowledged that the Judge had erred in his description of the burden of proof. However, the Crown’s submission is that the case turned on a legal rather than a factual finding and accordingly, was not amenable to any particular standard of proof. The sole issue was whether Mr Carpenter’s failure to dispose of the knife after possum hunting amounted to a reasonable excuse for possession. The legal question for Judge Tompkins was whether the appellant’s acknowledged conduct was reasonable in the circumstances.

Grounds of appeal

[9] The grounds of appeal are that:

(a) The Judge erroneously imposed on Mr Carpenter the burden of demonstrating that he had, on the balance of probabilities, a reasonable excuse for possession of the knife in a public place.

(b) The Judge erroneously admitted the evidence of Constable Boggs that Mr Carpenter had previously been warned for carrying the same knife in a public place.

Submissions

[10] In relation to the first ground, Ms Kelly, for the appellant, emphasised that Judge Tompkins had erred in requiring Mr Carpenter to show on the balance of probabilities that his possession of the knife was reasonable. As she correctly stated, once Mr Carpenter had raised an evidential foundation of ‘reasonable excuse’ the prosecution had been required to prove beyond reasonable doubt that the evidential basis Mr Carpenter had raised was displaced.

[11] In relation to the second ground, Ms Kelly argued that Constable Boggs’ evidence was propensity evidence and not admissible pursuant to s 43(4) of the Evidence Act 2006 (the Act). She submitted the evidence was irrelevant and should have been excluded under s 7 of the Act. The fact of a previous warning for carrying a knife in public had no relevance to a determination of whether Mr Carpenter had a reasonable excuse for his possession of the knife in the particular circumstances and at the particular time.

[12] If relevant, and not propensity evidence, Ms Kelly submitted the evidence should be ruled inadmissible under s 8 of the Act.

[13] I record that these same submissions were made to Judge Tompkins at trial, and rejected by him.

[14] Ms Bishop for the Crown accepted that the evidence constitutes propensity evidence but submitted that it was in any event relevant and of significant probative value because it cast doubt on Mr Carpenter’s evidence that he had forgotten the knife was in his possession. The fact he had received a Police warning in similar circumstances four weeks prior made this forgetfulness inherently unlikely. Further, the warning rendered it less “reasonable” for Mr Carpenter to have failed to remove the knife, whether deliberately or negligently. Thus the fact that he had been warned by police only four weeks earlier lent substance to a finding that it was unreasonable for him to have kept the knife in his in his possession for several hours after any reasonable excuse for possessing it had expired.

[15] The evidence of the recently past incident and police warning was therefore relevant and carried significant probative weight in relation to the central issue of reasonableness at the hearing.

Approach on appeal

[16] Section 229 of the Criminal Procedure Act 2011 provides a convicted person with a right of appeal against conviction. The appeal court must allow the appeal if, in a judge alone trial, there has been a miscarriage of justice because the trial judge erred in his or her assessment of the evidence, or, for any other reason.³

[17] A miscarriage of justice is defined as “any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity”.⁴

[18] If an appeal against conviction is allowed the court must enter an acquittal, or

direct a rehearing, substitute a conviction for a different offence, or “make any other

_{order it considers justice requires”.}⁵

³ _{Section 232(2)(b) and (c).}

⁴ _{Section 232(4).}

⁵ Section 233.

Discussion

[19] In relation to the first ground of appeal, I do not find particularly useful the distinction by the Crown between a legal finding and a factual finding. The test is whether the error affecting the trial created a real risk of the outcome of that trial being affected. The Court is however entitled to dismiss an appeal if it is satisfied that, notwithstanding the error, the guilty verdict was inevitable or the only reasonably possible verdict.

[20] In this case, Judge Tompkins was tasked with assessing whether the appellant had a reasonable excuse for possessing the knife in public. After considering the evidence put forward by both sides, the Judge concluded that the appellant had failed to establish, on the balance of probabilities, that he had a reasonable excuse for possession of the knife. This was clearly the wrong test, involving the wrong onus and standard of proof. The question is whether there is a real risk that the error affected the outcome of the trial in this case? If so, a miscarriage of justice will have occurred.

[21] In relation to the second ground of appeal, I am satisfied that Constable Boggs’ evidence was both relevant and admissible. While it could conceivably amount to a ‘reasonable excuse’ to possession under s 13A to forget about a work knife when one subsequently goes into a public place,⁶ “this will depend on whether such forgetfulness can be regarded as ‘reasonable’ in all the circumstances, including the amount of time that has elapsed”.⁷

[22] The fact that Mr Carpenter has, on a previous and relatively recent occasion, forgotten to remove his knife when in a public place and been warned by police about the need to remove that same knife when in public is clearly relevant to an assessment of whether his explanation that he simply forgot to remove the knife is credible and reasonable. I am satisfied the information about his recent history in this regard meets the s 7 test of relevance in assessing the reasonableness of his

_{‘innocent’ explanation.}

⁶ _{Police v Wineera (1989) 4 CRNZ 449 (HC); Freundt v Hayes (1992) 59 A Crim R 430.}

⁷ Adams on Criminal Law at [S013A.05].

[23] In my opinion it also meets the threshold for admission as propensity evidence. Section 40(1) relevantly defines propensity evidence as:

40 Propensity rule

(1) In this section and sections 41 to 43, propensity evidence—

(a) means evidence that tends to show a person’s propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved;

[24] I accept Constable Boggs’ evidence as establishing that Mr Carpenter had a tendency to carry his knife on his person when in public, and although there is only one such prior incident known in his case, the Court of Appeal has accepted that single incidents can demonstrate a propensity.⁸

[25] Whether or not the evidence is considered to be propensity evidence I find it to be relevant and admissible: therefore either pursuant to ss 7 and 8 (if not propensity evidence); or pursuant to s 43(1) (if propensity evidence).

[26] Taking the two matters in combination, as Judge Tompkins no doubt did; and applying the correct legal test in assessing the reasonableness of Mr Carpenter’s excuse, I am satisfied that the prosecution has proved its case beyond reasonable doubt. Therefore, the error of approach by Judge Tompkins has not created any real risk that the outcome of the case was affected.

Result

[27] The appeal is dismissed.

_{Goddard J}

⁸ R v Taea [2007] NZCA 472 at [38]; R v Tainui [2008] NZCA 119 at [55].