Ratu v R
| Jurisdiction | New Zealand |
| Judge | Katz J |
| Judgment Date | 15 August 2013 |
| Neutral Citation | [2013] NZHC 2083 |
| Docket Number | CRI-2013-470-000013 |
| Court | High Court |
| Date | 15 August 2013 |
[2013] NZHC 2083
CRI-2013-470-000013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
Appeal against conviction for possession of offensive weapon in a public place without lawful authority or reasonable excuse — appellant charged under s202A Crimes Act 1961 (possession of offensive weapons or disabling substances) for wearing a belt with a buckle that appeared to be knuckleduster which could be detached from the belt — whether a knuckleduster was an offensive weapon per se — whether it was necessary to prove the manufacturer's intention before it could be found to be an offensive weapon — whether a knuckleduster retained its character as an offensive weapon when it was used for a dual purpose — whether the appellant had a reasonable excuse for having it in his possession.
M P Nepia for Appellant
R W Jenson for Crown
JUDGMENT OF Katz J
Raymond Ratu was arrested in September 2012 on a matter unrelated to the present appeal. He was taken to the Tauranga police station and searched. When he took his belt off the police officer noticed that the buckle of the belt appeared to be a knuckleduster, which detached from the belt fairly easily.
Mr Ratu said that he had bought the belt a couple of years ago, from a skate shop in Tauranga. He said he had no intention of using the buckle as a knuckleduster. It was strictly used as a belt buckle, for the purposes of holding his pants up.
Mr Ratu was charged with possessing an offensive weapon in a public place without lawful authority or reasonable excuse. 1 He was convicted by Judge P S Rollo in the District Court at Tauranga and sentenced to 130 hours' community work. Mr Ratu now appeals that conviction, on the grounds that the Judge erred in fact and law. The key issues on appeal 2 are:
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(a) Is a knuckleduster an offensive weapon?
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(b) Is the article in this case a knuckleduster?
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(c) If it is a knuckleduster, did Mr Ratu have a reasonable excuse for having it in his possession?
I will consider each issue in turn.
I will first consider, in the abstract, whether a knuckleduster is an offensive weapon.
The term “knuckleduster” is not statutorily defined in New Zealand. Judge Rollo helpfully set out in is judgment the Australian and United Kingdom statutory definitions of the term “knuckleduster,” which I summarise below.
In the United Kingdom it is an offence to manufacture, sell, hire, offer for sale or hire, expose or possess for the purpose of sale or hire, or lend or give to any other person, an offensive weapon. 3 One such weapon is a knuckleduster, which is defined as being: 4
…[A] band of metal or other hard material worn on one or more fingers, and designed to cause injury, and any weapon incorporating a knuckleduster.
It is also an offence to be in possession of a knuckleduster in most Australian States. In the Australian Capital Territory a knuckleduster is defined as an article made or modified to be fitted over the knuckles of the hand of the user to protect the knuckles and to increase the effect of a punch or other blow. 5 In New South Wales a knuckleduster is similarly defined as an article made of any hard substance and that can be fitted over two or more knuckles of the hand of the user to protect the knuckles and increase the effect of a punch or other blow, or that is adapted for use as such. 6 Similar definitions appear in legislation in the Northern Territories, 7 Victoria, 8 Western Australia 9 and South Australia. 10
Mr Ratu was charged under's 202A of the Crimes Act 1961 which provides as follows:
202A Possession of offensive weapons or disabling substances
(1) In subsection (4)(a) offensive weapon means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use.
(2) In subsection (4)(b) offensive weapon means any article capable of being used for causing bodily injury.
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(4) Every one is liable to imprisonment for a term not exceeding 3 years—
(a) who, without lawful authority or reasonable excuse, has with him in any public place any knife or offensive weapon or disabling substance; or
(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) 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.
As Judge Rollo noted, s 202A recognises four categories of offensive weapon:
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(a) an article made for use for causing bodily injury;
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(b) an article altered for use for causing bodily injury;
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(c) an article intended for use for causing bodily injury by the person having it with him or her (subsection (1)); and
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(d) an article capable of being used for causing bodily injury.
Categories (a) and (b) relate to weapons that are offensive per se (a term not appearing in the Act, but one generally adopted in the cases). 11 Weapons that are offensive per se are weapons that are deemed to be offensive in and of themselves, without having to consider any outside factors such as whether the defendant intended to use the weapon. The relevant category in this case is category (a), namely articles made for use for causing bodily injury.
Which category an offensive weapon falls into is important, because if an item is offensive per se, the prosecution has only to show that the defendant had it with him in a public place. The onus will then be on the defendant to show lawful authority or reasonable excuse for that possession.
If, on the other hand, the item is not offensive per se, the prosecution has the more difficult task of showing not only that the defendant had it with him, but also that he had it 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. Only if the prosecution surmounts those hurdles will the onus then shift to the defendant to prove that he did not intend to use the offensive weapon to commit such an offence.
English authority is of particular assistance in interpreting s 202A, as the equivalent statutory provision in England is almost identical. 12 The leading English case is R v Petrie. 13 In that case the Court held that: 14
It is clear that the definition section of the Act contemplates offensive weapons of at any rate, two classes namely, (a) an article which per se is an offensive weapon, that is to say, an article made or adapted for use for causing injury to the person; and (b) an article which, though it is not made or adapted for such use, is carried with the intent so to use it. A cosh, a knuckle-duster, and a revolver are examples of articles in the first class. A sandbag and a razor are examples of articles in the second class.
Another useful discussion of offensive weapons is found in the English Court of Appeal decision of Houghton v Chief Constable of Greater Manchester: 15
…[T]he definition of “offensive weapon”, as is well-known to those who practise in the criminal courts, draws a distinction between those articles which are offensive weapons per se, as is said, and those articles which are brought within the definition because the person having them with him intends to use those articles as offensive weapons, although per se they may not be such. An example taken in some cases is that of a sandbag. That can be an effective weapon if it is intended to be used as such; on the other hand it has a purpose and a use wholly devoid of any offensive nature. It is therefore not an offensive weapon per se. In order to obtain a conviction of a person for possessing a sandbag, it must be proved that that person intended to use that sandbag as an offensive weapon on that occasion.
In Houghton it was held that a truncheon was an offensive weapon per se because it was intended, if used at all, to be used as a weapon. Other examples of weapons that have been held to be offensive per se include a flick-knife 16 and a swordstick 17 as well as the examples of a knuckleduster, a revolver, and a cosh given in R v Petrie. The English Court of Appeal has also indicated that rice flails (also known as nunchaku or nunchucks) ought to be regarded as offensive per se. 18 A catapult is not, however, offensive per se. 19 Nor is a rounders bat. 20 Both of these items have legitimate alternative uses.
Counsel for Mr Ratu submitted that knuckledusters are not offensive weapons per se. In particular, he submitted that it cannot be found that a knuckleduster is necessarily made for causing bodily injury unless its defining characteristics are identified. For example, a belt could be wrapped around a person's fist to form an impromptu knuckleduster, but the belt would not be an offensive weapon per se.
It was further submitted that evidence would need to be adduced of the manufacturer's intention before it could be held that a particular article that has the appearance of a knuckleduster was in fact made for causing bodily injury.
In my view Judge Rollo was correct to find that knuckledusters are offensive weapons per se. Although the term knuckleduster is not statutorily defined in New Zealand, its meaning is well understood and is consistent with the statutory definitions I have outlined at [7] and [8] above. A knuckleduster is an...
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