Bourne v Head
[2017] ACTSC 45
•2 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bourne v Head |
Citation: | [2017] ACTSC 45 |
Hearing Date: | 15 December 2016 |
DecisionDate: | 2 March 2017 |
Before: | Burns J |
Decision: | The appeal is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – offences punishable summarily and summary procedure generally – possession of offensive weapons and disabling substances with intent – only rational inference – appeals dismissed. |
Legislation Cited: | Crimes Act 1900 (ACT) |
Parties: | Alex Bourne (Appellant) Catherine Head (Respondent) |
Representation: | Counsel Mr P Edmonds (Appellant) Mr T Buckingham (Respondent) |
| Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 57 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 29 July 2016 Case Title: Head v Bourne Citation: CC16/538 |
BURNS J:
On 29 July 2016, the appellant was found guilty by a Magistrate of one offence of possessing an offensive weapon, namely a black metal baseball bat, in circumstances that indicated an intent to use the baseball bat to commit an offence involving actual or threatened violence, contrary to s 381(1) of the Crimes Act 1900 (ACT) (the Crimes Act). The appellant was found guilty after a proceeding by way of a “hand-up brief”, following which parties made oral submissions. There was no great contest about the facts of the matter, only about what could be made of them in light of the charge. The Magistrate adjourned the matter for sentencing until 15 August 2016.
On 12 August 2016, the appellant filed a Notice of Appeal, a date that pre-dated the sentence hearing in the Magistrates Court. The effect of filing the Notice of Appeal was to stay the Magistrate’s decision finding the offence proved. Therefore the appellant has not yet been sentenced for the offence.
The appellant appealed from the conviction on the ground that the decision of the Magistrate was unsafe and unsatisfactory, in particular that the learned Magistrate:
(i)found the defendant did not originally possess the weapon unlawfully, at the time he placed it in his car;
(ii)found that at the point the appellant exited his car he intended to use it to commit an offence of actual or threatened violence;
(iii)rejected the appellant’s claim of self-defence, in part because she found that at the point he exited the car there was no one in the immediate vicinity of the appellant.
The appellant submitted that given the Magistrate’s finding that no one was in the vicinity of the appellant, she could not be satisfied beyond reasonable doubt that he intended to use the baseball bat to commit an offence of actual or threatened violence towards persons unknown at some unspecified time and place.
The appellant sought orders that a verdict of acquittal be entered and the conviction be set aside; or in the alternative, the matter be remitted to the Magistrates Court for rehearing.
The offence of possessing an offensive weapon is created by s 381 of the Crimes Act:
381 Possession of offensive weapons and disabling substances with intent
(1)A person who has on his or her person an offensive weapon or a disabling substance, in circumstances indicating intent to use the weapon or substance to commit an offence involving actual or threatened violence, is guilty of an offence punishable, on conviction, by a fine of $2 000, imprisonment for 1 year or both.
In short, the prosecution case was that the appellant, who was driving a white sedan, had been involved in an on-road altercation during which he chased a red car, ending up on McBryde Crescent, Wanniassa. While on McBryde Crescent, the appellant stopped his car near the centre of the road and exited the vehicle holding a black metal baseball bat. Police arrived at the scene shortly thereafter and confronted the appellant, directing him to put the bat down at which time he did. The appellant then spoke to the police, saying words to the effect that he had been run off the road by a red car with five people in it, that his hubcaps were damaged and that he had jumped out of his car with the baseball bat and ‘chased them up there’.
When questioned by police, the appellant was asked why he was carrying the bat, to which he replied ‘there was five of them and only me’. After police conducted relevant checks, the appellant was arrested, cautioned and conveyed to Tuggeranong Police Station where he elected to participate in a record of interview, during which he denied threatening any person.
There was no issue raised in the hearing at the Magistrates Court that the baseball bat amounted to an offensive weapon under the Crimes Act. There was also no issue that the appellant intended to possess the baseball bat. The issues raised were self-defence and the time at which the relevant intent must be formed.
The following documents were tendered as evidence in the hearing:
(a)Court Duty report dated 1 August 2016;
(b)Australian Federal Police (AFP) Statement of Facts;
(c)the appellant’s criminal history;
(d)photograph of a black metal baseball bat;
(e)CCTV activity logs from 7-elevent Erindale and McDonalds restaurant Erindale;
(f)AFP Witness Statement by Ms Theuma with a hand drawn map attached;
(g)transcript from the record of interview of Alex Bourne;
(h)hand drawn map by Alex Bourne; and
(i)eight AFP Statements, some with excerpts from official AFP notebooks under the hand of: Constable Catherine Head, Senior Constable Justin Alexander; Acting Sergeant Jason Craig, Constable Travis Mills; First Constable Timothy Hannan, Constable Kimberly Frost, Constable Bevan Ashby and Constable David Braden.
The Magistrate ultimately found the offence proved, rejecting the appellant’s submission that he was acting in self-defence and further rejecting the proposition that the relevant intent must be formed at the inception of possession. In considering the whole of the circumstances surrounding the appellant’s possession of the baseball bat at the critical time, the Magistrate was satisfied that those circumstances evinced intent to use the bat to commit a relevant offence.
The following is an extract of the Magistrates ex tempore reasons for finding the appellant guilty:
An interesting argument has been raised in relation to the legal issue of when a weapon becomes an offensive weapon or when an item becomes an offensive weapon perhaps put more properly. Before that though, I turn to an issue that was essentially or effectively decided by me, that is to the extent that I reject for the reasons I outlined before moving to formal decision that the defendant was not at the material time acting in self-defence. It seems to me that... no rational explanation can be given as to why he would follow the red car in the manner that he did, particularly in the manner that was described in the statement of Ms [Theuma] - that is at some pace - other than that he was following the vehicle and his conduct thereafter it seems to me even if some non-rational or irrational reason was held in the mind of the defendant that no reasonable person would have thought what the defendant did was an act of self-defence or was something he was required to do in self-defence. In any event, the perhaps more significant issue of a matter of law is one that arises in relation to whether or not the baseball bat can be viewed as an offensive weapon.
It seems to me that in the circumstances particularly relying on what the defendant said to police with regard to what he was doing with the baseball bat that he had certainly an intent to use the baseball bat to commit an offence either by threatening the people in the red car or by damaging the red car or the people therein. The issue is one of whether or not the baseball bat was in fact an offensive weapon as it should be considered in that section. I was taken to the decision of Wilson v Kuhl [1979] VR 34 (sic); [1979] VR 315 of 31 October 1978. I note that this case does not appear to have been followed on this point by any court in this jurisdiction, either this court, the Supreme Court or the Court of Appeal in this jurisdiction. It does raise some interesting arguments about the point of time in which - at which a weapon ought properly to be described as such in the terms as it is set out in this - in the ACT legislation.
I note in particular that the comments of Lord Widgery in regard to what I think must properly be described as somewhat different legislation with a similar character rather than specifically identical legislation and that - the thrust of his Honour’s reasoning and indeed reasoning of courts following that particular decision of Lord Widgery in the case of R v Dale [1974] 1 WLR 181;[1973] 3 All ER at 1151 were effectively that in order for something to be an offensive weapon, it must be something that has been brought by the defendant to the scene if you like for the purpose of it being an offensive weapon. An example given in - or rather a matter before the court in Wilson v Kuhl or set out in that judgment also referred to an example of a person who was pushed from the London Underground, pushed to the floor. That person happened to be a tradesman, had a hammer in his possession for perfectly lawful reasons, seized upon the hammer and used it to strike another person thereby occasioning to him actual bodily harm.
Essentially then what is urged upon me is that in order to - that this legislation in the ACT should properly be interpreted such that if a person seizes something to hand in an - having formed an intent to commit a violent act, that that cannot make out this offence, that, in fact, the person must need to form a prior intent that that weapon or that item is to be used as a weapon prior to - almost perhaps prior to an intent is formed for the specific purpose to which it is put or about to be put.
It seems to me in all the circumstances that firstly the legislation in the ACT is somewhat different from that legislation to which I have been referred. There is some persuasiveness in the argument that if two people engaged in conduct were about to fight each other and one of them snatched up an item and - for example, a piece of wood - and hit the other person in that instant, I could certainly see an argument that that would not be sufficient to contravene s 381(1) of the Crimes Act (ACT)(sic). However, in my view, this set of facts is somewhat different. It seems to me on all the evidence before me that I can be satisfied beyond reasonable doubt that the defendant formed a view that he was certainly going to do something toward the red vehicle after he had been involved in the incident at the roundabout. He stopped the vehicle. He then got out with the baseball bat. At that point in time, the red car was certainly nowhere within easy reach of the defendant.
The police as I have already said were unable to locate the vehicle despite the fact that they had come upon the incident reasonably quickly. On any CCTV angle shown to me at the McDonalds area which seems to be the area where the best view can be seen of - although not a perfect view of and not indeed a view of the defendant per se but certainly there is no sight of the red car in the McDonalds carpark or in any area close to where the defendant had stopped. Taking his words to police, he had clearly formed a view that he was going to go after the people in the car or the vehicle itself with the baseball bat. In those circumstances it seems to me that there was sufficient time - or there is a period of time sufficient for his actions not to be characterised as immediate or spontaneous or in the course of an imminent - by imminent I mean seconds - confrontation and in those circumstances it seems to me that the prosecution have satisfied beyond reasonable doubt the requirements of the section.
I am satisfied beyond reasonable doubt that on 3 January 2016, the defendant had on his person a bat which although in and of itself is not an offensive weapon is properly deemed an offensive weapon in the circumstances given. That the defendant had, in my view, quite clearly formed a view when he stopped the car that he was going to take the bat and that he had formed an intent to use that bat which by this stage had become a weapon to commit an offence involving actual or threatened violence towards the red car and its occupants. For those reasons, I find the offence proved beyond reasonable doubt although I have to say I am interested in seeing whether this line of authority is one that will develop further in the ACT. It seems that it is a matter of law that - to properly be followed up perhaps but not in cases in my view that have quite the same factual matrix as this particular case.
The finding by the Magistrate that the appellant was “going to do something towards the red vehicle” when he stopped his car and alighted from it was not only open to the Magistrate, but was the only rational inference from the appellant’s conduct.
When spoken to by police at the scene, the appellant had alighted from his car with the baseball bat and had followed the red car on foot in the direction of the front of the Erindale Shopping Centre. The appellant told police that that was the direction the red car travelled.
The appellant provided police with no rational reason for him stopping his car on McBryde Crescent, blocking both lanes of traffic, and following the red car on foot, rather than simply driving after the red car. He said that he took the baseball bat with him because “there were 5 of them and only one of me”, but the question is: why was he chasing them?
The appellant participated in a taped record of conversation with police later that evening in which he clearly told a number of lies. When asked why he had moved away from his vehicle when he left it in the middle of McBryde Crescent he said “I was just getting a bit of fresh air”. He then claimed to have found the baseball bat next to a charity bin fifteen metres from where he left his vehicle, which contradicted his earlier statement at the scene that he had alighted from the vehicle with the bat. The appellant did not mention the red car to police in this interview, and denied having chased a red car or trying to confront the people in that car.
The appellant’s version of events given to police in the taped record of interview can clearly be dismissed as a fabrication. The version of events that he gave to police at the scene finds some support in the evidence of the witness, Ms Theuma, who saw a white car chasing a red car on Ashley Drive, heading in the direction of Erindale. The clear inference is that this was the appellant chasing the red car to which he referred when spoken to by police at McBryde Crescent.
The appellant did not suggest that he had been unable to take the registration number of the red car. In any event, the only inference to be drawn from the appellant stopping his car on McBryde Crescent and following the red car on foot towards the Erindale Shopping Centre was that the appellant anticipated that the red car would stop at the shopping centre and the occupants alight. By stopping as he did, and where he did, he made it less likely that he could identify the driver of the red vehicle, if that had been his intent. In any event, the appellant did not suggest to police this is why he acted as he did.
The appellant was clearly not a credible historian. He lied to police about these events within hours of them occurring. No weight can be given to any suggestion by the appellant to police at the scene on McBryde Crescent that he was in possession of the baseball bat for self-defence.
It was well open to the Magistrate to find that the appellant was not acting in self-defence when he took the baseball bat from his car and started to follow the red car on foot. The only rational inference from all of the admitted objective facts is that he intended to use the bat offensively if he came upon the red car and its occupants.
The appellant has not demonstrated error on the part of the Magistrate. The appeal will be dismissed.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Burns. Associate: Date: 2 March 2017 |
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