Bentink v Nguyen
[2004] WASCA 211
•16 SEPTEMBER 2004
BENTINK -v- NGUYEN [2004] WASCA 211
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 211 | |
| Case No: | SJA:1030/2004 | 12 AUGUST 2004 | |
| Coram: | BARKER J | 16/09/04 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SUSAN MARIE BENTINK HOA MY NGUYEN |
Catchwords: | State appeal against dismissal of charge under Weapons Act 1999 (WA) Whether Magistrate erred in excluding evidence Whether Magistrate erred in upholding no case to answer submission Turns on own facts |
Legislation: | Weapons Act 1999 (WA), s 3, s 8, s 10 |
Case References: | Harling v R (1997) 94 A Crim R 437 Nicholls v Woods [2000] WASCA 373 R v Dolan (1992) 58 SASR 501 R v Swaffield; Pavic v R (1998) 192 CLR 159 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
HOA MY NGUYEN
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR CALDER SM
File Number : PE 47998 of 2003
Catchwords:
State appeal against dismissal of charge under Weapons Act 1999 (WA) - Whether Magistrate erred in excluding evidence - Whether Magistrate erred in upholding no case to answer submission - Turns on own facts
(Page 2)
Legislation:
Weapons Act 1999 (WA), s 3, s 8, s 10
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D J Matthews
Respondent : Mr P A Roth
Solicitors:
Appellant : State Solicitor
Respondent : Paul Roth & Associates
Case(s) referred to in judgment(s):
Harling v R (1997) 94 A Crim R 437
Nicholls v Woods [2000] WASCA 373
R v Dolan (1992) 58 SASR 501
Case(s) also cited:
R v Swaffield; Pavic v R (1998) 192 CLR 159
(Page 3)
- BARKER J:
Introduction
1 The respondent was charged that on 31 October 2003 at Northbridge, he, not being a person exempted under subs (3), (5) or s 10, possessed an article, namely a machete, not being a firearm, a prohibited weapon, or controlled weapon, with the intention of using it to cause any person to fear that someone will be injured or disabled by its use, contrary to s 8(1)(b) of the Weapons Act 1999 (WA).
2 At the trial of the charge, the learned Magistrate, after determining that evidence of part of a conversation between the appellant (complainant at trial) and the respondent was not admissible in evidence, ruled that the respondent had no case to answer and dismissed the charge against him.
Grounds of appeal
3 By leave granted on 4 May 2004, the appellant appeals against the whole of the decision of the Magistrate on the ground that he erred in law in:
"1. Excluding the Respondent's answers to questions put to him by [the appellant] prior to the Respondent receiving a caution.
2. Allowing the Respondent's no case to answer submission when there was evidence capable of invoking the presumption in s 8(2)(a) of the Weapons Act 1999 (WA)."
The evidence and course of proceedings before the Magistrate
4 Soon after the trial before the Magistrate commenced, counsel for the respondent told the Court that the admissibility of some of the evidence proposed to be given by the appellant would be challenged on the basis that the respondent had not been cautioned prior to the interview conducted with him by the appellant. As a result, the Magistrate took the appellant's evidence on a voir dire.
5 The evidence given by the appellant was to the effect that the respondent, at material times, was sitting on some steps in Lake Street, Northbridge, at about 10.30 pm on Friday, 31 October 2003. A red laundry bag belonging to the respondent was placed next to him. The appellant asked the respondent if she could look in the bag. The respondent agreed to her doing so. The bag contained two items, one of
(Page 4)
- which was a machete wrapped in some paper. There was some later dispute as to whether this was thin tissue paper or a thicker type of paper, but that is not material to the determination of this appeal.
6 The appellant gave evidence of her conversation with the respondent about the two items in his laundry bag. In the conversation, the respondent indicated that he had purchased the machete for home decoration at about 1 pm that day and that it was his intention to go nightclubbing that night. The appellant asked the respondent if he had been home since purchasing the machete. When the respondent said that he had been home, the appellant cautioned the respondent and soon after arrested him. The charge under the Weapons Act was then preferred against him.
7 The Magistrate ruled, in accordance with a submission then put to him by counsel for the respondent, that the appellant had cautioned the respondent too late in the investigative process and that she should have cautioned him immediately after she had asked the respondent where he intended to go and he told her he intended to go nightclubbing.
8 The Magistrate ruled on the issue in this way:
"I think it was reasonable to ask what he was going to do with it [the machete] but she didn't ask that question. She said, 'What are you going to - - where do you intend to go?' or something to that effect and she's said - - the answer that she said he gave was that he intended to go night-clubbing and, by inference, take the bag with him.
I think to go beyond that stage really did cross the line, where [what] she was in fact endeavouring to obtain from him then was evidence which could be used against him. He had already given, in my view, enough information to her to enable her to have formed the view that, as she said she reached at the next stage, he had committed an offence and that she was going to charge him and therefore intervene, she said, and cautioned him.
So, as I said, I correct that initial ruling that I made. I think the questions up to the time when she asked him if he had been home since were admissible on the basis that they were preliminary inquiries but, beyond that, the next question was not admissible."
(Page 5)
9 Having made that ruling, the Magistrate then ruled that there was no case to answer and dismissed the complaint against the respondent.
The question of the caution
10 The first ground of the appeal, as noted, is that the Magistrate erred in excluding the respondent's answers to questions put to him by the appellant prior to the respondent receiving a caution.
11 To have some greater understanding of the significance of the evidence that the appellant wished to lead and the Magistrate's ruling on the caution, it is appropriate to observe the nature of the offence with which the respondent had been charged. Section 8(1) of the Weapons Act relevantly provides that:
"(1) Except as provided in subsections (3) and (5) and section 10, a person who carries or possesses an article, not being a firearm, a prohibited weapon or a controlled weapon, with the intention of using it, whether or not for defence -
(a) to injure or disable any person; or
(b) to cause any person to fear that someone will be injured or disabled by that use,
commits an offence.
Penalty: $4000 or imprisonment for one year."
12 Section 8(2) then goes on to provide that:
"(2) A person is presumed to have had the intention referred to in subsection (1) if -
(a) the article was carried or possessed in circumstances that give reasonable grounds for suspecting that the person had the intention; and
(b) the contrary is not proved."
(Page 6)
- possession of the machete contrary to s 8(1)(b). No offence against s 8(1)(a) was alleged.
14 Section 8(2) is plainly intended to make it easier than it would otherwise be for the prosecutor of an offence against s 8(1) to prove that a person in possession of a relevant article has the relevant intention to injure or disable any person or to cause any person to fear that someone will be injured or disabled by the use of the article, as the case may be.
15 Nonetheless, while s 8(2) is plainly intended to make it easier for the prosecution to prove the relevant intention, by its terms s 8(2) only enables a Court to presume the relevant intention if the article was carried or possessed "in circumstances that give reasonable grounds for suspecting that the person had the intention" and the contrary is not proved.
16 Relevantly, then, there must be "circumstances" that give "reasonable grounds" for suspecting that a person had the relevant intention.
17 From the appellant's point of view, at material times when questioning the respondent in Northbridge, her inquiry was designed to ascertain information from which she could form the view whether there were circumstances that gave reasonable grounds for suspecting that the respondent had the intention to cause any person to fear someone would be injured or disabled by the use of the machete she found in the respondent's red bag.
18 In essence, the respondent argues on this appeal, as he did before the Magistrate, that at the point at which the appellant learned from the respondent that he had apparently taken the recently purchased machete home with him prior to going to Northbridge and had then taken the machete to Northbridge with him, she must then have reasonably suspected that he had the relevant intention, given the operation of s 8(2) of the Act, and so should have cautioned him at that point.
19 By contrast, the appellant on this appeal says that the appellant was entitled to obtain further information, by way of asking the respondent where he intended to go that evening after she had interviewed him. The appellant contends that her line of questioning continued to constitute reasonable inquiry and did not at the point she asked the respondent this question, call for a caution.
20 I am inclined to accept the submission of the appellant.
(Page 7)
21 It is well understood that there is a point during a police investigation at which the police officer, having acquired certain information, forms the view that there are reasonable grounds for suspecting that a person has committed an offence and at which time should caution the person of their right not to answer further questions. In R v Dolan (1992) 58 SASR 501 at 505, King CJ stated the rule as to a caution in these terms:
"[W]hile the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for a caution … however … where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions."
- This statement of the rule has been applied in this State on a number of occasions, including in Harling v R (1997) 94 A Crim R 437 at 441, per Anderson J, and in Nicholls v Woods [2000] WASCA 373, per Miller J.
22 In Harling (supra), the case against the appellant was based entirely on the oral evidence of two detectives concerning the appellant's conduct in producing to them a bowl containing a pipe and cannabis and her statement to them admitting the cannabis and the pipe were "mine". The evidence of confessional statements made by the appellant was objected to unsuccessfully. The appellant gave evidence that she had in fact denied the existence of the bowl and that she had not made any admissions. It was her case that no drugs were hers and that she did not smoke marijuana.
23 The appellant appealed on the ground that the confessional evidence given by the detectives ought not to have been admitted because there was no caution, no interview was conducted and no written note of the alleged conversation made.
24 Anderson J held, amongst other things, that there was no basis for rejecting the confessional statements in the exercise of the Magistrate's discretion on the broader ground of unfairness. At 441, his Honour stated:
"Having found the appellant at the address it would be startling if they could not ask her the questions that were asked even if her presence there and her retrieval from behind the wooden chest of the pipe and cannabis leaf made her a possible suspect."
(Page 8)
- His Honour then referred to what King CJ had said in Dolan (supra) as cited above, and added:
"As to the manner of questioning, there is no evidence the appellant was imposed upon or importuned or made the subject of unduly aggressive or overly persistent interrogation."
26 In Nicholls (supra), the appellant police officer Nicholls in company with another, having arrested the juvenile respondent, took him to a police station and there asked him to empty out his pockets. Out of one of his pockets was produced a knife described as "a metal folded bladed knife approximately 100mm in length". Constable Nicholls testified as to the words which were then spoken by himself and the respondent:
"I said to the defendant, 'What's the knife for?' The defendant replied, 'I need a knife because I've got enemies in High Wycombe'."
- The Magistrate ruled that no caution had been given to the juvenile before he was asked what the knife was for.
27 Miller J accepted the appellant's contention that the question asked by Constable Nicholls was properly asked and did not require the giving of a caution before it was asked. At [10] Miller J observed:
"The evidence reveals merely that Constable Nicholls, whilst requesting the respondent to empty his pockets, saw a knife and asked the simple question what it was for. To that question he received a reply which prima facie constituted an offence by the respondent against the provisions of s 8(1) of the Weapons Act."
28 Miller J, after reciting a number of authorities, including Dolan (supra) and Harling (supra) stated, at [13]:
"In my view, no caution was required in the circumstances of this case. All that the police officer did was ask a neutral question in relation to the knife which had been produced from the respondent's pocket. It cannot be the case that merely seeing the knife should thereupon have put the officer on notice that a caution should first be administered before asking any question in relation to it. The respondent may well have had an
(Page 9)
- entirely innocent explanation for possession of the knife. It could have been related to his work, leisure activities or anything else."
29 In this case, in my view, similar considerations apply. The situation simply was that the appellant, a police officer, came across the respondent sitting in Northbridge at 10.30 pm on a Friday night with a red bag in his possession. Having obtained the respondent's permission to look inside the bag, the appellant discovered a machete wrapped in paper. It is not unlawful to possess a machete under the law of this State. However, depending on the circumstances, an offence against s 8(1) of the Weapons Act may be indicated. The first thing the appellant then did was ask the respondent what the item was for, to which he replied, "home decoration". He also explained he had purchased the machete approximately 10 hours earlier. The appellant then asked the respondent where he intended to go that night and he said he intended to go nightclubbing. She then asked the respondent if he had been home since purchasing the items, to which he replied, "Yes".
30 In my view, the simple fact that the questions were asked in the order they were asked at 10.30 pm on a Friday night in Northbridge, a well-known entertainment area of Perth, is neither here nor there. I do not consider that, at the point the appellant asked the respondent where he intended to go that evening and received the answer, "night-clubbing", she had reasonable grounds to suspect he had the necessary intent to commit the offence referred to in s 8(1)(b) of the Act. At that point, the appellant was entitled, in my view, to obtain further information to clarify the sequence of events which had led to the respondent being in Northbridge at that time of night with a machete in a bag, by ascertaining whether, between the time the respondent purchased the machete and the time she had found him in Northbridge, he had been home and thereby had had the opportunity of depositing the machete at his home for the ostensible purpose of home decoration. It was when the appellant learned that the respondent had in fact been home after purchasing the machete that she was entitled to form the view that he may be guilty of the offence of acting contrary to s 8(1)(b) of the Act. At that point, the appellant, in fact, administered the caution. Up to that point, the information that the respondent had purchased the machete earlier in the day and planned to go nightclubbing later, did not, in my view, provide the appellant with a reasonable basis for suspecting that the respondent was guilty of acting contrary to s 8(1)(b) of the Act such that she should have administered the caution.
(Page 10)
31 Counsel for the respondent submits that the only possible purpose in the appellant asking the further question about whether he had been home since purchasing the machete could have been to test his veracity, having already formed the view that there were reasonable grounds for suspecting that he had committed an offence against s 8(1)(b). Whether or not to some extent, by asking the further question whether the respondent had been home after purchasing the machete, the appellant had begun to doubt his "credibility", as counsel for the respondent put it, in my view, the question asked was designed to obtain, and did obtain, further information which helped complete the investigative process and which then rightly raised the need for a caution. At that point, the appellant gave the caution.
32 I do not think in circumstances such as these, taken as a whole, the appellant should be criticised for failing to administer a caution any earlier than she did. I do not, therefore, agree with the learned Magistrate's ruling that, at the point the appellant asked the question about his movements after purchasing the machete, she "crossed the line" and went from obtaining information by way of investigation to obtaining evidence that could be used to incriminate the respondent at a hearing of the charge against him.
33 In those circumstances, I would allow the appeal on this first ground.
The question of the exercise of the discretion to exclude the evidence in any event
34 Having found that the Magistrate should not have ruled that the caution given by the appellant was given too late, this second issue raised by the appellant's first ground of appeal falls away.
35 Once it is accepted that a caution was not required any earlier than when given by the appellant, contrary to the ruling made by the Magistrate, the evidence the appellant wished to give of her conversation with the respondent was admissible.
The no case to answer issue
36 The question remains, however, whether, even with the appellant's evidence of her conversation with the respondent in evidence before the Court, the learned Magistrate erred in finding that there was no case to answer. This Court on appeal is in as good a position as the Magistrate to determine this issue.
37 As the appellant says on this appeal, it is not an offence in this State for a person to be in possession of a machete. As the terms of s 8(1) of
(Page 11)
- the Weapons Act indicate, the law of this State makes specific provision about firearms, prohibited weapons and controlled weapons. A machete is none of those things. Whether or not it should be is a question for the Parliament of the State.
38 What s 8(1)(b) of the Act does, however, is make possession of an "article" with the intention of using it, whether or not for defence, to cause any person to fear that someone will be injured or disabled by that use, an offence. An "article" is very generally defined by s 3 of the Act to include "liquid or gas". Otherwise, an "article" has the same meaning in s 8(1) as it has in ordinary usage, namely, in this context, a particular material thing (of a specified class); a commodity; a piece of goods or property: Shorter Oxford English Dictionary, 5th ed. Consequently, a machete is an "article" for the purposes of s 8(1) of the Act.
39 The question on the no case submission was, and is, whether there was any evidence upon which the Magistrate, as a reasonable finder of fact, could find that the respondent possessed the machete "with the intention of using it … to cause any person to fear that someone will be injured or disabled by that use". Having regard to the terms of s 8(2) referred to above, that intention can be presumed if the machete was possessed "in circumstances that give reasonable grounds for suspecting that the person had the intention" of so using it and the contrary is not proved.
40 Counsel for the respondent submits that the bare facts are that the respondent was found by the appellant sitting on some steps in Northbridge at 10.30 pm on a Friday night. Next to him was his red bag. In it was the machete. Nothing said by the respondent in answer to the questions then put to him by the appellant provided circumstances that gave reasonable grounds for suspecting that the respondent had the intention of using the machete to cause any person to fear that someone will be injured or disabled by its use.
41 Counsel for the appellant says that there were circumstances that gave reasonable grounds for suspecting that the respondent had the intention of so using the machete and that these derive from the answers given by the respondent that he had purchased the machete earlier on the Friday, had been home later in the day before going to Northbridge, obviously had not left the machete at home, and intended later to go nightclubbing.
(Page 12)
42 There is nothing more than that by way of evidence so far as the no case submission is concerned. For example, there is no evidence that the respondent was acting in any particular, animated fashion. There is no evidence that, at any material time when the appellant spoke to the respondent, the respondent spoke in an emotionally agitated manner. There is no evidence the respondent was, or had been, brandishing the machete. Indeed, all the evidence suggests the respondent was in an extremely passive state. He allowed the appellant to inspect his bag. He answered her questions about the machete. He told her he was planning to go nightclubbing. He also told her had been home before coming to Northbridge and after purchasing the machete.
43 I find it extremely difficult on those bare facts to identify any circumstances that give "reasonable grounds" for suspecting that the respondent had the intention of using the machete to "cause any person to fear that someone will be injured or disable by that use". Whether or not the respondent planned to go to a nightclub later on the evening in question and intended carrying the machete in his red bag if and when he did so, is simply incapable of supplying a circumstance that gives reasonable grounds for suspecting the respondent had the intention of using the machete to cause any person to fear that someone will be injured or disabled by that use. More facts or other circumstances would be required before any such intention could reasonably be divined.
44 In those circumstances, I do not consider that the learned Magistrate erred in ruling that there was no case to answer on the evidence before him, albeit that, in my view, he should have made that ruling on the basis of the evidence of the whole of the appellant's conversation with the respondent at material times in Northbridge on the night in question.
Conclusion and order
45 In summary, in my view, the learned Magistrate erred in finding that the appellant should have given the respondent a caution sooner than she did when she interviewed him in Northbridge at 10.30 pm on 31 October 2003.
46 However, taking into account the evidence of the appellant's full conversation with the respondent on that night, I do not consider that the Magistrate erred in finding that the respondent had no case to answer on the complaint brought against him.
47 For these reasons, I would, in the event, dismiss the appeal.
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