Brameld v Salt - [2010] WASC 227

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BRAMELD -v- SALT [2010] WASC 227

CORAM: EM HEENAN J

HEARD: 26 JULY 2010

DELIVERED : 26 JULY 2010

PUBLISHED : 26 AUGUST 2010

FILE NO/S: SJA 1015 of 2010

MATTER :Criminal Appeals Act 2004 Pt 2
and
Prosecution Notice number PE 9537/10 in the Magistrates Court of Western Australia at Perth

BETWEEN: CLAYTON AARON KIRK BRAMELD
Applicant
AND
KYNE ANTONY ROYLE SALT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J R PACKINGTON
File No  :PE 9537 of 2010

Catchwords:

Application for leave to appeal - Conviction for possessing a controlled weapon - Weapons Act 1999 (WA) s 7(2)(b) - Plea of guilty - Order for forfeiture of commercial grade compound bow and arrows - No error of magistrate shown - Application for leave to appeal refused

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14(2)
Weapons Act 1999 (WA), s 3, s 7(2)(b), s 16
Weapons Regulations 1999 (WA)

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Ms R Young

Solicitors:

Applicant: In person
Respondent: State Solicitor's Office

Case(s) referred to in judgment(s):

Coumbe v Whittaker [1999] WASCA 151
Horsman v Bishop [2000] WASCA 316
Jaworski v Police [2009] SASC 284

EM HEENAN J: At the conclusion of the hearing of this application by which time it had become apparent, and accepted by the applicant, that the learned magistrate had made no error of law or fact in reaching the decision and making the orders which led to this application for leave to appeal, I dismissed the application for leave to appeal with costs. Nevertheless, it is necessary that I set out in more detail my reasons for that conclusion and those orders, as I now do.

Background

At about 6.30 pm on 4 December 2009 the respondent, Constable Salt, a police officer, attended at the P H Dodd Reserve situated at the intersection of Fisher Street and Tonkin Highway, Belmont, together with two other constables. Their visit was as a result of a complaint by a neighbour that some person was firing arrows from a bow in the reserve. The P H Dodd Reserve is located on the north‑western side of Tonkin Highway and comprises an area of mixed open grassed ground with other pockets of bushland. On the south‑eastern side it is bounded by Tonkin Highway but to the south‑west and north-west there are houses in a typical suburban garden layout. On arrival, Constable Salt observed an archery target set up in the centre of the reserve and a person, whom he later identified as the applicant, in nearby bushes retrieving arrows. The applicant readily acknowledged that he had been using his compound bow to fire arrows at the target in the reserve and explained that he had taken precautions, had a clear field ahead, and that he would have lowered the bow had any person walked by. The applicant was accompanied by two other men, who were drinking, and the applicant admitted to having consumed one drink, but there was no suggestion that he was intoxicated.
The respondent seized the bow and arrows from the applicant, gave him a property receipt, and told him that he would contact him about the matter again. Some time later, after further investigations, the respondent advised the applicant by telephone that he would be charged by summons with the offence of possessing a controlled weapon. In the course of this conversation the applicant stated to the respondent that he would just plead guilty to the charge. The respondent informed the applicant that if he did plead guilty or was found to be guilty the court would then have to make a decision about what was to become of the compound bow and arrows which had been seized and that it was possible that an order may be made that they be destroyed or forfeited. In the course of this conversation the respondent informed the applicant that he would recommend that consideration be given to the return of the property upon conviction but ultimately any decisions made in relation to that matter would be at the discretion of the magistrate. I accept, and in an affidavit filed on this application the respondent readily concedes, that he did indicate to the applicant that he would recommend that the seized property be returned but that any decision in that regard would be that of the court.
It is clear that the respondent formed a good impression of the applicant and did, in fact, recommend that no application for forfeiture should be made because, upon explanation, the applicant readily acknowledged the danger of his conduct, was apologetic for his actions and displayed no intention of repeating his conduct. Despite the unsafe practices the applicant had erected a target and was not deliberately intending to harm anyone, and had been advised to follow the safety instructions for the weapon and only use it at an appropriate archery range in future.
In due course, the applicant was charged under the provisions of s 7(2)(b) of the Weapons Act 1999 (WA) that on 4 December 2009 at Cloverdale, not being a person exempted under s 10 without lawful excuse, possessed a controlled weapon in a manner likely to cause someone to fear that someone will be injured. The applicant entered an endorsed plea of guilty and the matter came before his Honour, Magistrate J R Packington in the Magistrates Court on 29 January 2010. The matter was dealt with on the endorsed plea of guilty in the absence of the applicant although it appears, from the transcript of that hearing, that a letter or some form of written explanation and apology from the applicant was before the court and read to the court.
After hearing the account of the facts, his Honour imposed a fine of $300 and ordered the applicant to pay the costs of the proceedings fixed at $119.20. At that point, the prosecuting police officer made an oral application for an order for the forfeiture of the compound bow and arrows which had been seized at the scene and, without any further consideration being given to the matter, the learned magistrate made an order for forfeiture of that property. It is this order for forfeiture which is now the main concern of the applicant because, as already made clear, he had hoped that no such order would be sought and that the property would be returned to him. Furthermore, the compound bow and arrows are quite valuable and are estimated to be worth something in the vicinity of $1,600.
The explanation for the application for the forfeiture order appears from affidavits which have been filed on behalf of the respondent and which have been received and read on this application without objection. They demonstrate that the respondent did, in fact, recommend that consideration be given to the return of the property to the applicant but his recommendation in this regard was overruled by his superior, a senior constable, who was responsible for the prosecutions in the court that day and who appeared to conduct the prosecution. In his own affidavit sworn 25 May 2010, this officer explains the reasons why he reached that different opinion and decided to move for the order for forfeiture, but it is not necessary to examine these because there is no suggestion that this was anything but a conscientious decision which was open to the prosecutor and could be taken without any breach of an obligation or undertaking to the applicant.

Application for leave to appeal

By an appeal notice dated 19 February 2010, Mr Brameld applied for leave to appeal against his conviction on 29 January 2010 and the order for forfeiture of the bow and arrows. His proposed grounds of appeal, annexed to the notice of appeal, are as follows:
1.I wish to appeal the decision on the grounds that the Order for Forfeiture is excessive and places me in undue financial difficulty and mental/emotional strain. This is because I have a long‑standing passion for Archery and my son is also keenly interested in the sport. The result being that I will have to buy all this equipment again to re‑participate in the discipline. The $1,600 replacement cost of my equipment alone shall prove extremely difficult to raise given that I have a very low income due to being self‑employed in what is a depressed economy, let alone the funds I must raise for membership costs and equipment for my son.
2.It has always been my intention to join an Archery club here in Perth (Whiteman Park) and I believe I may have the means to prove this if given leave to proceed with my appeal, as I had indeed gone to the club with my two children on a Saturday a couple of weeks prior to the date of the offence and had picked up membership application forms. I did not apply for membership at that time due to my inability to meet the financial costs involved. I was unemployed after having returned from Victoria after a failed relationship.
3.I also believe that the report initially given places undue bias against me as a result of it's wording and some factual errors and misrepresentations, such as distances and visual evidence of the actual layout of the reserve. I have prepared detailed aerial photographs of the location that I am certain will stand up to scrutiny when viewed by all present on the day.
4.I wish to make clear also that I pleaded guilty on the repeated insistence of Officer Salt that it was my best option and that he would include with his report a recommendation that the property be returned to me after the court date. He repeated this opinion to my mother also when he served my conviction notice on her. As we are none of us familiar with criminal matters, we assumed that this was advice given in good faith and intention. I still maintain this belief but must now concede, with hindsight, that it was not in my best interests at all, hence this appeal.
5.It is my intent to appeal the Order for forfeiture only as having researched the Weapons Act I now realise the error of my ways and accept the Fine and Conviction as just punishment for stupidity. I can absolutely assure the court that such stupidity shall never be repeated by myself ever again. I have learned this lesson thoroughly.
The notice of appeal and proposed grounds of appeal were later followed by affidavits of the applicant sworn 14 May 2010 and by an affidavit of his mother, Mrs N C Brameld, also sworn 14 May 2010. As implied in the grounds of appeal, these confirmed that the applicant had taken a number of safety precautions when setting up the target at P H Dodd Reserve and was a careful and experienced follower of the sport of archery. He denied that he had been in possession of any liquor at the site, although he agreed that his two companions did have some drink. He says that he admitted to the police officer at the time that he had drunk one 300 ml bottle of beer earlier in the day but maintains that he was not in the least intoxicated. I interpolate that the police accepted that is so. By his affidavit and by Mrs Brameld's affidavit there is also an explanation of how Constable Salt did give them assurances that he would recommend against the forfeiture of the bow and arrows and that they both assumed that, because of this, no eventual forfeiture order would be made. It was on this footing that the endorsed plea of guilty was entered and that Mr Brameld did not appear before his Honour Magistrate J R Packington on 29 January 2010. In addition, there are two further affidavits, one from the respondent, Constable Salt, and another from the senior constable at the Perth prosecuting division who conducted the case and made the decision to apply to the court for the forfeiture order or for an order for the destruction of the bow. These essentially confirm what was submitted at the hearing, that the respondent did, in fact, recommend against any forfeiture order being made but was overruled in this respect by his senior officer, the prosecutor, who, for his own reasons but conscientiously, considered that such an order should be sought, as it was.
An appeal from this decision of the Magistrates Court can only be by leave, Criminal Appeals Act 2004 (WA) s 9, and leave to appeal should not be granted unless one or more proposed grounds of appeal has a reasonable prospect of success.
The application for leave to appeal came before Jenkins J on 3 June 2010 on the papers and on that day her Honour made orders and directions which included:
(1)the application for leave to appeal is to be heard at the same time as the appeal;
(2)the parties are granted leave to apply orally at the hearing of the appeal to rely on the affidavits each have filed to date in the appeal;
…
Accordingly, the application for leave to appeal and the proposed appeal came on for hearing before me simultaneously and the parties sought leave to rely upon the four affidavits which I have already identified. I gave leave to rely on the affidavits and have accepted them as read on the application.

Merits of the proposed appeal

This bow was a commercial grade compound bow with arrows and, as such, is a controlled weapon under s 3 of the Weapons Act 1999 and reg 5 and sch 2 of the Weapons Regulations 1999 (WA).
As is apparent from his proposed grounds of appeal, Mr Brameld does not actually wish to appeal against his conviction or fine but, rather, only against the order for the forfeiture. It is not entirely clear from the order made by his Honour whether the forfeiture applied to both the bow and the arrows seized but, as arrows are controlled weapons under the Weapons Act 1999 and the Weapons Regulations 1999, an order for forfeiture can be made in respect of both items: Weapons Act 1999 s 16.
The respondent submits that no error of fact or law was made by the learned magistrate and because there is no reasonable prospect of any of the proposed grounds of appeal succeeding the application for leave to appeal should be dismissed. Furthermore, the respondent submits that even if leave to appeal were to be granted and any error by the learned magistrate identified such error has not led to any miscarriage of justice and that, pursuant to s 14(2) of the Criminal Appeals Act 2004, the appeal ought to be dismissed.
The respondent further submits that orders for forfeiture made under the Weapons Act 1999 do not form part of the sentence imposed for that offence pursuant to pt 15 of the Sentencing Act 1995 (WA): by analogy with the Firearms Act 1973 (WA), see Horsman v Bishop [2000] WASCA 316 [31] (Murray J). Consequently, the respondent submits that the applicant may not appeal on the ground that an order for forfeiture, being part of the sentence, was excessive. However, the respondent acknowledges that the ground of appeal in this case may be considered as asserting that the imposition of the order for forfeiture was the result of an error of law or fact or both: Criminal Appeal Act s 8(1)(a)(i).
The power for a court convicting a person for an offence under the Weapons Act 1999 to make an order for forfeiture is contained in s 16 of that Act. The power is discretionary and while no specific factors are identified for consideration in the exercise of that discretion, the discretion should be exercised in accordance with the public interest in the forfeiture of weapons from irresponsible users, the need for general deterrence, the interest of the offender, and the circumstances of the offending: Jaworski v Police [2009] SASC 284 [22] ‑ [25] (Sulan J); Horsman v Bishop [32] (Murray J) and compare Coumbe v Whittaker [1999] WASCA 151 [13] (McKechnie J). Often the discretion is exercised in favour of forfeiture because of the public interest in controlling or restricting the use of weapons: Coumbe v Whittaker [14] (McKechnie J).
The respondent submits that no error of law or fact was made by the learned magistrate and that his Honour did take into account, or by necessary implication should be regarded as having taken into account, the general purpose of the discretion to order forfeiture and the following particular factors:
(a)the way the bow was carried and used, even if the use could be justified by lawful excuse (such as recreation), in this case constituted the offence;
(b)the circumstances of the offending;
(c)the powerful nature of the bow itself;
(d)the applicant's letter to the court read to the learned magistrate before sentencing.
For these reasons, the respondent submitted that it can be inferred that all the relevant factors in this particular case relevant to the exercise of the discretion to order forfeiture were addressed by the learned magistrate, and taken into account.
The respondent's submissions went on to address the principles of whether or not additional evidence, such as contained in the affidavits, can or should be admitted into evidence but, as these were accepted without controversy at the hearing, it is unnecessary for me to examine those submissions further. It is clear that the respondent did indicate to the applicant that he would recommend against an application or order of forfeiture being made but this could not be regarded as binding and it was, always, a matter for the court itself to consider.
The respondent's written submissions also consider the question of whether or not there might possibly have been a miscarriage of justice because the plea of guilty might have been induced, in part, by the representation that no application for forfeiture would be made. However, the facts clearly establish that the offence alleged was committed. The applicant acknowledged this at the time, entered his endorsed plea of guilty unconditionally and, even now, does not wish to suggest that he was wrongly convicted. As I have said his only concern on this appeal is in relation to the order for forfeiture.
At the hearing I explained to the unrepresented applicant, and after this explanation he acknowledged that he understood, that an application for leave to appeal or an appeal is not a rehearing of the original charge. An application for leave to appeal or an appeal itself can only succeed if it established that there is some error of law or fact by the learned magistrate apparent from the record of proceedings, including the learned magistrate's reasons or, even if not expressly apparent, implicit in the overall result arising because of disproportion or incongruity in the actual result. For an appeal in such circumstances to succeed it is necessary there has been demonstrated a miscarriage of justice. Commendably, Mr Brameld was quite unequivocal that there had been no error of fact by the learned magistrate and that the account of events as accepted by his Honour was accurate and comprehensive. Once the course of events leading to the making of the application for a forfeiture of the bow and arrows had been explained, the explanation involving as already described the more senior police officer conducting the prosecution, overruling the recommendation that the respondent, Mr Brameld also accepted that although he was disappointed that this had happened he had no cause for complaint and that this did not amount to any error of law or fact. All in all Mr Brameld displayed a conspicuous attitude of responsibility, and readiness to accept the consequences of his actions. He was plainly disappointed and distressed that what he took to be an innocent and harmless activity had led to this charge, conviction and order for forfeiture but he also admitted that he should personally accept liability for all those consequences.
I was satisfied that there was no arguable ground to contend that the learned magistrate had made an error of law or fact in disposing of this charge or in making the order for forfeiture and I refused the application for leave to appeal.

In conclusion, Mr Brameld made a very good impression in his presentation of his application for leave to appeal and, more significantly, in the attitude of personal responsibility which he demonstrated for his actions. Had he appeared in person before the learned magistrate and put his case in his own persuasive and eloquent way he might perhaps have persuaded his Honour not to make an order for forfeiture in the particular case. However, he did not do this and this application is not any general rehearing of the original matter. His Honour was entitled to make the order which he did and no arguable error has been shown or suggested in relation to the making of that order.