Prisoner Matthew Ngatai Te Moananui's appeal against conviction fails after trying to shank prison guard

The prisoner pulled out a 32cm shank and tried to strike a Corrections officer with it. Photo/Ross Setford

A man who tried to stab a prison guard with a shank has failed to have his conviction overturned.

Matthew Ngatai Te Moananui was convicted by a jury in the Wellington District Court of assaulting a Corrections officer while in possession of a metal shank, but tried to appeal the conviction by saying the judge misdirected the jury as to the requirements of the offence.

Te Moananui was previously convicted of throwing boiling water over an officer.

His most recent offending happened after he refused to undergo a rub down at the prison, the Court of Appeal decision said.

"He refused to undergo the search and so was ordered back to his cell."

Te Moananui refused to go back into his cell, and when a Corrections officer put his hand on Te Moananui's shoulder to direct him into the cell, began to struggle.

"During the struggle, Mr Te Moananui reached into the right side of his track pants and pulled out an improvised metal weapon, commonly referred to as a shank. It was 32cm in length, made from a round metal bar. One end had been sharpened to a point."

Te Moananui tried to strike the officer with the shank, but was subdued when a second officer arrived. He was later charged with assault with a weapon.

The charge states a person, while assaulting another person, is liable to imprisonment if they have anything with them in circumstances that prima facie show an intention to use it as a weapon.

The jury were directed to assess the evidence as if they were reasonable observers to the events.

In submissions to the Court of Appeal, Te Moananui's counsel argued intent is subjective, and it is "counterintuitive and artificial to assess a defendant's intention by reference to what a reasonable observer would have made of events at the time, rather than by reference to the defendant's subjective view of events".

The Crown argued the test the jury had to apply was "entirely objective", and while the jury could take Te Moananui's evidence on intent into account, the evidence was only relevant to the extent it informs the objective test.

The appeal decision quoted Rt Hon Geoffrey Palmer in his second reading of the Violent Offences Bill, saying it should not be a defence for the defendant to show there was no actual intention to use the weapon.

"I want to make it clear that the offence is committed if anyone uses a firearm or a weapon when it is reasonably believed by others that it will be used. The secret intention of the user will be relevant, if at all, only to the question of penalty."

The judge told the jury the defendant could raise evidence as to his subjective intent, which the jury could take into account, but emphasised it remained an objective inquiry overall.

The Court of Appeal found he had not erred in his directions, and dismissed the appeal.