Batt v Police [2018] NZHC 2699 (18 October 2018)

Last Updated: 31 October 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000044 [2018] NZHC 2699

BETWEEN	KONRAD PERA BATT Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	18 October 2018
Appearances:	R T Nye-Wood and G Prentice for Appellant B Vaili for Respondent
Judgment:	18 October 2018

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 18 October 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

BATT v NEW ZEALAND POLICE [2018] NZHC 2699 [18 October 2018]

[1] On 31 July 2018, Judge A S Menzies found Mr Batt guilty on a charge of being in possession of an offensive weapon in circumstances that prima facie showed an intention to use it to commit an offence involving the threat or fear of violence.¹ In the same decision the Judge sentenced Mr Batt to 12 months supervision.²

[2] Mr Batt appeals against conviction on the basis that the evidence adduced by the prosecution was insufficient to justify the Judge finding the charge proved beyond reasonable doubt.

The hearing in the District Court

[3] Mr Batt initially stood trial on a charge of being in possession of an offensive weapon in a public place without lawful authority or reasonable excuse.³ The prosecution called two witnesses in support of the charge. The first was Mr Govind, a motorist who was driving along Wainui Road near Raglan at about 9.30 am on 23

November 2017. He noticed a youth riding a bicycle in the opposite direction. This person was wearing a red bandanna tied across the lower part of his face. Mr Govind also noticed the handle of a baseball bat poking through the cyclist’s backpack.

[4] Mr Govind said he “had seen this youth previously in a threatening manner”. He was also aware “there had been a carload of youths that were driving round town with bad attitudes, trying to confront people and cause a bit of trouble”. Mr Govind had personally witnessed three separate incidents over the previous two or three days. For that reason he decided to call Constable Ryburn of the Raglan Police to tell him about the person on the bicycle. Mr Govind said he knew that person as Konrad Smith.

[5] The second witness for the prosecution was Constable McMillan. He received a telephone call from Constable Ryburn passing on the information Mr Govind had provided. Constable McMillan drove to Wainui Road and found Mr Batt riding a bicycle whilst wearing a backpack. He had a red scarf around his chin and the constable could see that a hooded sweatshirt was covering an object in the backpack.

¹ Crimes Act 1961, s 202A(4)(b).

² New Zealand Police v Batt [2018] NZDC 15799.

³ Crimes Act 1961, s 202A(4)(a).

[6] Constable McMillan stopped Mr Batt and obtained his consent to search the backpack. Under the sweatshirt he found an aluminium softball bat with the handle sticking up out of the bag. Constable McMillan then took Mr Batt, his bicycle and the baseball bat to the Raglan Police Station where he placed Mr Batt under arrest.

Mr Batt declined to answer any questions as to why he was carrying the baseball bat. Constable McMillan did not discover any items in the backpack that might normally be associated with use of the baseball bat for innocent purposes.

[7] At the conclusion of the prosecution case, Mr Nye-Wood indicated that Mr Batt did not propose to give or call evidence. Both the prosecuting sergeant and

Mr Nye- Wood then made final submissions to the Judge. After adjourning to consider the submissions and hearing further from the prosecutor and Mr Nye-Wood, the Judge decided to amend the charge to one under s 202A(4)(b). This required the prosecution to prove Mr Batt was in possession of an offensive weapon 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.

[8] The Judge then gave Mr Batt an opportunity to give evidence in relation to the amended charge. Mr Batt elected to give evidence, and said he had received the baseball bat the previous day and was returning it to the owner when Constable McMillan stopped him. He said he was riding a bicycle because it was his only form of transport. Under cross-examination, Mr Batt confirmed he was wearing colours indicating he had an affiliation with a particular gang. He denied, however, that he had been wearing his scarf over his face. Mr Batt acknowledged he had heard there had been tensions in Raglan between youths prior to the date of the incident giving rise to the charge. When questioned regarding the contents of his backpack, he maintained it contained a tennis ball. He denied being in possession of the bat because he wanted to scare somebody with it, or that he was intending to use it on somebody rather than for its original purpose.

The Judge’s decision

[9] After setting out the facts that were not in dispute, the Judge traversed the evidence given by Mr Batt. He rejected Mr Batt’s evidence as being implausible. He

said that, had Mr Batt been returning the baseball bat to somebody else, he would have volunteered immediately to the constable why he was returning the bat and to whom. Mr Batt could also have called the owner of the bat to corroborate his evidence.

[10] The Judge found the charge proved in the following passage of his decision:⁴

[22] I do not find Mr Batt’s evidence plausible or credible for those reasons. He acknowledges that he was wearing gang regalia. He acknowledges possession of the softball bat. All of the circumstances that have been described take me to the view that a prima facie case has been made out to show that he had the intention to use it for one of the options that are considered or contemplated by the section. I would add to that in the context of amending the charge I was not satisfied that the police case reached the point that establishing an intention to cause bodily injury was made out. I remain of that view and the determination that I make is that a prima facie intention has been made out to commit an offence involving the threat or fear of violence.

[23] I am satisfied that the police case has been made out in that context. I am satisfied of that to the required standard of beyond reasonable doubt and I therefore enter a conviction in relation to the charge against Mr Batt.

Approach on appeal

[11] This is a general appeal, which proceeds by way of rehearing. The appeal must be allowed if I am satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.⁵

Decision

[12] There was no dispute that Mr Batt was in possession of the aluminium baseball bat on the date referred to in the charge. The issue at trial was therefore whether the prosecution could prove beyond reasonable doubt that he had it in his possession in circumstances that prima facie showed an intention either to use it to commit an offence involving bodily injury or the threat or fear of violence. The passage set out above demonstrates that the Judge concluded the prosecution could not establish any intention to cause bodily injury. As a result, the issue on appeal is whether the Judge was entitled to conclude Mr Batt had the bat in his possession in circumstances that

⁴ New Zealand Police v Batt, above n 2.

⁵ Criminal Procedure Act 2011, s 232(2)(b).

prima facie showed an intention to use it to commit an offence involving the threat or fear of violence.

[13] The learned authors of Adams on Criminal Law venture the opinion that in this context “prima facie” carries its usual meaning of “at first appearance” or “on the face of it”.⁶ Prima facie circumstances are those that are sufficient to show or establish an intention in the absence of evidence to the contrary. Furthermore, the intention is to be ascertained objectively by reference to the actual circumstances existing at the time of the alleged offence.⁷ The Supreme Court has approved the same approach in relation to s 202C(1)(b),⁸ which is similarly worded to s 202A(4)(b). It is therefore necessary to have regard to the surrounding circumstances in order to ascertain whether they objectively point to an intention by the defendant to use an item for one of the purposes set out in ss 202A(4)(b).

[14] The relevant circumstances in the present case include the fact that there had recently been tensions in and around Raglan created by a carload of youths with a bad attitude, and Mr Batt was both a youth and aware of those tensions. Furthermore, on the day in question he was wearing regalia over his face indicating his affiliation with a particular gang, and he gave no satisfactory explanation for the fact that he was in possession of the bat. On the latter point I do not consider the fact that Mr Batt may have told a lie regarding the existence of a tennis ball in his backpack to be an indicator of guilt. Rather, his evidence on that point is to be disregarded. The issue is whether, taken as a whole, these circumstances are sufficient to prove beyond reasonable doubt that Mr Batt intended to use the baseball bat to threaten or create fear of violence.

[15] The Judge clearly thought so, but I respectfully take a different view. There was no evidence to suggest Mr Batt had been involved in any of the incidents that occurred during preceding days. Nor was there any evidence to show the gang with which he is affiliated was involved in those incidents. Mr Govind was not asked to expand on his observations of Mr Batt acting in a threatening way on an earlier occasion. His evidence is therefore of little utility in relation to whether Mr Batt has

⁶ Simon France (ed) Adams on Criminal Law (online ed, Westlaw) [at CA202A.9].

⁷ R v Haqiqzai CA158/02, 18 December 2002.

⁸ Te Moananui v R [2017] NZSC 93, declining leave to appeal from Te Moananui v R [2017] NZCA

88, (2017) 28 CRNZ 404.

been involved in incidents involving violence or threats of violence. In addition, there was no evidence that any violent disturbance was taking place or about to take place in or around the location where Mr Batt was found, or that one occurred later.

[16] The position would obviously be different if the prosecution had adduced evidence that Mr Batt had told somebody before setting off on his bicycle that he was going to an event that might involve violence or the threats of violence. It would also be different if the prosecution could show a violent incident was taking place, or about to take place or later took place, somewhere near the location where Mr Batt was found. Similarly, the position may well be different if the prosecution could show that Mr Batt (or even the gang with which he is affiliated) had been involved in the events that occurred during preceding days. In the absence of any such evidence, and notwithstanding the lack of any satisfactory explanation by Mr Batt, I consider the prosecution fell well short of proving the existence of circumstances that prima facie showed the intention necessary to found a conviction on the amended charge.

Result

_{[17] The appeal is allowed and the conviction and sentence are quashed.}

Lang J

Solicitors:

Crown Solicitor, Hamilton

Public Defence Service, Hamilton