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DARLING v POLICE No. SCCIV-03-493 [2003] SASC 179 (19 June 2003)

Last Updated: 22 June 2003

Court

Judgment of the Honourable Justice Duggan

Hearing

Catchwords and Materials Considered

CRIMINAL LAW --- EVIDENCE --- MATTERS RELATING TO PROOF --- BURDEN OF PROOF

Appellant found guilty of carrying an offensive weapon - magistrate stated in his reasons for decision that the appellant had not provided a reasonable explanation for the presence of the knife in his vicinity - whether reversal of onus of proof.

• Summary Offences Act 1953 s 15, referred to.

CRIMINAL LAW --- PARTICULAR OFFENCES --- OFFENCES AGAINST PEACE AND PUBLIC ORDER --- OFFENSIVE WEAPONS

Whether knife in question constituted an offensive weapon.

• Coleman v Zanker [1991] SASC 3121; (1992) 58 SASR 7;
• Chadbourne v Ansell [1975] WAR 104, distinguished.
• Considine v Kirkpatrick [1971] SASR 73;
• Freundt v Hayes (1992) 59 A Crim R 430, discussed.
• Rowe v Conti [1958] VR 547;
• Threlfall v Panzera [1958] VR 547;
• Pelvay v Brebner [1963] SASR 36;
• Sandaev v Forster (1983) 35 SASR 38, considered.

CRIMINAL LAW --- APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION --- APPEAL AND NEW TRIAL --- PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION --- POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF JUDGMENT OF ACQUITTAL

Discussion as to whether order for retrial appropriate. Appeal allowed.

• DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627;
• Cheatley v R [1981] Tas R 123, discussed.

Representation

Respondent: POLICE
Counsel: MS A FIELD - Solicitors: CROWN SOLICITOR FOR THE STATE OF SOUTH AUSTRALIA

SCCIV-03-493

Judgment No. [2003] SASC 179

19 June 2003

On Appeal from ADELAIDE MAGISTRATES COURT (MR C KITCHIN SM)

(Magistrates Appeals: Criminal)

DARLING v POLICE

[2003] SASC 179

Magistrates Appeal

1. DUGGAN J. The appellant was found guilty after a summary trial in the Adelaide Magistrates Court on a charge of carrying an offensive weapon contrary to s 15 of the Summary Offences Act 1953 (the Act). He has appealed against this finding and the subsequent conviction recorded against him by the magistrate.

2. The charge arose out of an incident which occurred on the evening of 19 December 2001. After receiving information that a disturbance had taken place at South Terrace in the city earlier in the evening, Constable Allen, who was on patrol in the area, drove to Frew Street. He gave evidence that he saw the appellant standing on the footpath not far from Burdekin House, a youth refuge. Another youth was standing with the appellant.

3. Constable Allen said that the appellant answered the description of a person allegedly involved in the incident on South Terrace. According to his evidence, he drove towards the appellant. When the officer was four or five metres from him, the appellant put his right hand into his jacket and "flicked something out". The object landed by the appellant's right foot. The appellant then walked away. Constable Allen said that the object thrown by the appellant was a black handled folding knife.

4. Up to this point, Constable Allen was seated in the police vehicle which he was driving. He then left the vehicle and spoke to the appellant. He told the appellant that he was under arrest for carrying an offensive weapon. The appellant said words to the effect "It's not mine. Wasn't me". Constable Allen was the only witness called for the prosecution.

5. The appellant gave evidence. He said that on this evening he had been to Eastwood to visit a friend. He then left with a group of five or six friends to walk to Burdekin House. The appellant's brother was in the group. They walked through the parklands. He said he did not know if they were on South Terrace at any time. He denied being involved in any disturbance on South Terrace. He said he did not see a disturbance.

6. The appellant said that when they reached Frew Street the group, with the exception of the appellant and his brother, went into Burdekin House. The appellant and his brother walked on for about 10 or 14 metres. He said there were other people in the street. He saw the police car turn into Frew Street. A police officer got out of the vehicle and approached him. He said the police officer pushed him against a wall and handcuffed him. The officer then used a torch to search the area and came back with a knife. Other police officers then arrived. The appellant said that another officer held him while Constable Allen conducted his search. He said the other police officer had alighted from the same vehicle as Constable Allen. In his evidence Constable Allen stated that he was alone in the police car at the time he drove to Frew Street.

7. The appellant denied seeing the knife before that evening. He said it was not his knife.

8. The appellant's brother was called to give evidence. He said he was in the group which walked from Eastwood to Burdekin House. He saw the police vehicle enter Frew Street and he said that a police officer got out of the vehicle and walked straight up to his brother and placed him against the wall. He said he did not how many officers were present at this stage. However, he did say that while the police officer was apprehending his brother, another police officer was taking details from the witness. He saw the police officer who spoke to his brother pick something up off the ground about a metre or two from where the witness was standing.

9. The appellant's brother was asked whether any of his party were involved in a disturbance on South Terrace. He said "Yes, something was happening down there". When asked whether he could describe precisely what happened during the incident at South Terrace he replied that he could not because it was very dark. He said he just knew something was going on. He said he was keeping clear.

10. In his reasons for decision the learned magistrate said:

"I have taken all of the evidence and the submissions of both prosecution and defence into consideration in this matter. I agree with Ms Griffith that Constable Allen had 'an attitude'. I found him unhelpful, casual and impatient. His failure to bring his notebook to Court is of concern.

However, at the end of the day, I am left with no reasonable explanation from the defendant as to how the knife came to be in the immediate vicinity of where he was standing on that particular night when approached by the police."

11. Later in his reasons the magistrate said:

"The defendant has given no reasonable explanation for his failure to notice the incident on South Terrace. Likewise he has given no reasonable explanation as to how a knife was found in the very near vicinity of the place in which he was standing at or near to the time that Constable Allen arrived."

12. The magistrate accepted the evidence of Constable Allen that the appellant had taken an object from his jacket and thrown it on the ground. He made a finding that the object was the knife retrieved by Constable Allen. He then found the appellant guilty of the offence.

13. The appellant's counsel has pointed out that the magistrate made no specific finding that the knife was an "offensive weapon"; nor did he make any reference to the aspect of lawful excuse.

14. In order to sustain a finding of guilt it was necessary for the prosecution to prove beyond reasonable doubt that the accused was carrying the knife. In deciding that issue, the magistrate was required to take into account the relevant prosecution and defence evidence. However, there was no requirement for the appellant to provide a reasonable explanation for the presence of the knife on the footpath. The fact that he did not provide such an explanation could not be used in the way in which it was by the magistrate, namely, to support the evidence of the police officer. According to the appellant's version, he had nothing to do with the knife and could not have provided any explanation as to how it came to be on the footpath. Furthermore, the use which the magistrate made of the failure of the appellant to provide an explanation for the presence of the knife is inconsistent with the requirement that the onus of proof rests with the prosecution.

15. On the hearing of the appeal, counsel for the respondent acknowledged this flaw in the magistrate's reasoning and conceded that the finding of guilt and consequent conviction could not stand.

16. Mr English, for the appellant, submitted that I should not direct a rehearing. He referred to certain discrepancies in the prosecution case and the fact that the magistrate made some comments which reflected on the attitude of the police officer when giving evidence. He also argued that the appellant and his brother gave cogent evidence. He referred to the fact that the alleged offence took place in December 2001.

17. In the joint judgment of the High Court in DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630 their Honours said:

"The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decided whether the interests of justice require a new trial to be had. In so doing the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, or if it was not, it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case."

18. (See also Cheatley v R [1981] Tas R 123 at 137 where it was said that there is no presumption in favour of a retrial and the discretion must be exercised by reference to the relevant facts and circumstances.)

19. In the present case, it could not be said that there were obvious deficiencies in the prosecution case such that a conviction was not open on the evidence. In making this comment I am not to be taken as prejudging the outcome of any subsequent trial of the matter.

20. Although Mr English referred to delay in the matter up to this stage, it would appear that the conduct of the appellant was an important contributing factor in this respect. In all the circumstances it is my view that a retrial should be ordered.

21. There is a further matter which requires consideration. I have said that the magistrate proceeded to a finding of guilt without making a specific finding that the knife was an offensive weapon. It is unclear why he did not direct his attention to this element of the offence. However, in the light of my decision to direct a retrial, it is appropriate that I should comment on some aspects of this element of the offence which were raised during the hearing of the appeal.

22. Section 15(1) of the Act relevantly provides:

"A person who, without lawful excuse -

(a) carries an offensive weapon

is guilty of an offence.

Section 15(3) states that " 'offensive weapon' includes a rifle, gun, pistol, sword, knife, club, bludgeon, truncheon or other offensive or lethal weapon or instrument."

23. The section requires proof that the defendant was carrying the instrument which is the subject of the charge. Then it must be proved that the instrument was an "offensive weapon". Finally, the carrying of the weapon must be without lawful excuse. It is unnecessary for the prosecution to prove the absence of lawful excuse; the onus is on the defendant to prove such an excuse on the balance of probabilities (s 5).

24. It will be seen that a knife is specifically included in the definition of "offensive weapon". The question which arises is whether the prosecution is required to prove anything further in relation to the nature of the knife or the purpose for which it was used in order to establish that it was an offensive weapon for the purposes of s 15.

25. Counsel drew my attention to this issue because of observations made by Olsson J in two cases, Coleman v Zanker [1991] SASC 3121; (1992) 58 SASR 7 and Freundt v Hayes (1992) 59 A Crim R 430.

26. In Coleman v Zanker the defendant appealed against a conviction recorded in the Magistrates Court for carrying an offensive weapon, namely, a knife in a sheath. In his reasons for decision, Olsson J said at 12:

"The knife in question was, by its very nature and on the evidence of the appellant, ordinarily designed for domestic and sporting purposes. No doubt it was also capable of use as an offensive weapon. As the Full Court held in Chadbourne v Ansell [1975] WAR 104 at 106, it is incumbent on the prosecution to prove that the appellant carried a thing that was not in common use for any other purpose than a weapon, or an instrument which has a normal use other than as a weapon if, on the occasion charged, it was intended by the appellant to be used as a weapon of attack. The prosecution evidence fell far short of doing so. (See also Sandaev v Forster (1983) 35 SASR 38 at 42-43; Considine v Kirkpatrick [1971] SASR 73;  Holmes  v  Hatton  (1978) 18 SASR 412)."

27. In my respectful view, in Coleman v Zanker and in the present case the prosecution were entitled to rely on the specific inclusion of a knife in the definition of "offensive weapon" to establish that the knife in each case was an offensive weapon. It was unnecessary for the prosecution to go further and prove that the knife had no normal use other than as a weapon or that, on the relevant occasion, it was intended to be used as a weapon.

28. The legislation specifically includes certain instruments such as knives in the description of "offensive weapon". However, the Act identifies a further category of offensive weapons by the addition of the words "or other offensive or lethal weapon or instrument". In the case of this last-mentioned category it has been held that whether or not the relevant instrument can be described as an offensive weapon will depend on its nature or on the intention with which it was used on the occasion of the alleged offence: Considine v Kirkpatrick [1971] SASR 73.

29. It would seem that in Coleman v Zanker, Olsson J considered that the test for the general category of "other" offensive weapons was applicable also to those instruments which were specifically included and described as offensive weapons in the definition section of the Act.

30. I am unable to agree with this conclusion. In my view, Chadbourne v Ansell which is cited as authority for the proposition does not support it. In that case, the defendant was carrying a small steel mallet which he said was used for knocking in tent pegs at a caravan park at which he was staying. The steel mallet did not fit the description of any of the instruments specified in s 65(4a) of the Act which was in terms similar to s 15 of the Summary Offences Act. In the joint judgment of the Full Court their Honours said (106):

"Upon the true construction of s 65(4a) we are of opinion that in order to establish the commission of an offence under that section the prosecution must prove that a defendant, without lawful excuse, carries or has on or about his person or in his possession (a) one of the named weapons; or (b) 'a thing that is not in common use for any other purpose than a weapon' - using the words quoted by Bray CJ at 74 of the report of Considine v Kirkpatrick [1971] SASR 73; or (c) an instrument which has a normal use other than a weapon if on the occasion charged it was intended by the defendant to be used as a weapon of attack. We consider that this accords with the judgments in the cases cited from Victoria and South Australia with which, so far as is material for this appeal, we respectfully agree."

31. Categories (b) and (c) refer to cases which are to be considered by reference to the description "other offensive ... weapon or instrument" which is present in both the South Australian and West Australian legislation.

32. A test similar to that proposed for categories (b) and (c) referred to in Chadbourne v Ansell was applied to knives in Rowe v Conti and Threlfall v Panzera, both reported in [1958] V R 547 but only because knives were not specifically included in the definition of "offensive weapon" in the relevant Victorian legislation. The same test was applied to the carrying of a starting pistol in Pelvay v Brebner [1963] SASR 36 and a cigarette lighter in the form of a replica pistol in Sandaev v Forster (1983) 35 SASR 38 on the basis that neither was a "pistol" within the meaning of that term in s 15 of the Act.

33. In Freundt v Hayes (supra) the defendant was carrying a pocket knife. Olsson J, who heard the appeal from the magistrate, said (436):

"As to the third count, one commences with an acceptance of the proposition that the pocket knife in question was not per se an offensive weapon. It only became such a weapon if and when an attempt was made to use it for an offensive purpose or if it can properly be said that it was a 'knife' within the meaning of that expression as contained in the definition of 'offensive weapon' in subs (3) of s 15 of the Summary Offences Act 1953 (SA). It was carried in a pouch on the appellant's belt for use as a normal incident of the appellant's employment.

. . .

In Coleman v Zanker (supra) I pointed out that the onus lies on the prosecution of proving beyond reasonable doubt that the appellant carried an item that was not in common use for any other purpose than a weapon or that, if it was an instrument capable of more than one use, the appellant, on the occasion in question, intended to use it as a weapon of attack. In that case my attention was not invited to the statutory definition of the expression 'offensive weapon' and my comments at the time must accordingly be read in that light.

An interesting question immediately arises as to what is meant by the word 'knife' as employed in subs (3) of s 15.

The full definition therein contained reads as under:

'offensive weapon' includes a rifle, gun, pistol, sword, dagger, knife, club, bludgeon, truncheon or other offensive or lethal weapon or instrument'.

Clearly the words employed must take their flavour and intendment from the phrase 'or other offensive or lethal weapon or instrument' in the definition.

I find it impossible to believe that Parliament could have intended that literally every item which could be described as a knife was in contemplation, regardless of whether or not it could be used as an offensive or lethal instrument. One can, for example, readily think of items such as small, round-nosed fruit peeling knives sold to tourists as souvenirs and very small pocket knives with blunt-nosed blades used for sharpening pencils. It seems most unlikely that items of that type were ever envisaged by the legislature as falling within the definition, it being difficult, if not impossible, to discern how they could be used with potentially lethal effect.

In the end, what is in issue may well be a question of fact and degree. However that may be, we are here contemplating a large pocket knife which, when unfolded, had a pointed 4-inch blade. Clearly it must be taken to have been encompassed by the statutory definition."

34. There may be cases in which a real question arises as to whether a particular instrument can be described as a "knife", although I do not subscribe to the view that the matter is to be determined according to degree. However, I have no doubt that the pocket knife in the present case is a "knife" within the meaning of that word as it is used in the definition of "offensive weapon". It follows, in my view, that no further enquiry need be undertaken as to the nature of the instrument or the intention with which it was used on the occasion of the alleged offence. If the prosecution proves beyond reasonable doubt that the appellant was carrying the knife at the relevant time, the only issue which then remains is whether the appellant is able to prove on the balance of probabilities that he had a lawful excuse for doing so.

35. The appeal will be allowed and the conviction and penalty set aside. I direct that there be a retrial before another magistrate.