Denton v Bodycoat - [2000] WASCA 424

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DENTON -v- BODYCOAT [2000] WASCA 424

CORAM: ROBERTS-SMITH J

HEARD: 19 DECEMBER 2000

DELIVERED : 19 DECEMBER 2000

FILE NO/S: SJA 1158 of 2000

BETWEEN: JEFFREY RAYMOND DENTON
Appellant (Complainant)
AND
MICHAEL JAMES BODYCOAT
Respondent (Defendant)

FILE NO/S :SJA 1159 of 2000

BETWEEN :JEFFREY RAYMOND DENTON
Appellant (Complainant)
AND
ANDREW CHRISTOPHER HICKEY
Respondent (Defendant)

Catchwords:

Criminal law - Licensed security officer - Conditions of licence - Possession of weapon on duty - Oleoresin spray - Condition prohibiting imposed by regulations but not endorsed on licence - Whether honest and reasonable mistake of fact - Whether ignorance of law

Legislation:

Criminal Code (WA), s 22, s 24, s 31(3)

Security and Related Activities Control Act 1996 (WA), s 23, s 62, s 63, s 64
Security and Related Activities Control Regulations, reg 21, reg 9(3)

Weapons Act 1999 (WA), s 3

Result:

Appeals allowed
Orders dismissing complaints and for costs set aside
Convictions recorded
Respondents to pay appellant's costs of appeal and in court below
Complaints remitted to Court of Petty Sessions for sentence according to law
Order for destruction of the Oleoresin spray

Representation:

SJA 1158 of 2000

Counsel:

Appellant (Complainant) : Ms M Garnett
Respondent (Defendant) : In person

Solicitors:

Appellant (Complainant) : State Crown Solicitor
Respondent (Defendant) : In person

SJA 1159 of 2000

Counsel:

Appellant (Complainant) : Ms M Garnett
Respondent (Defendant) : Mr D J A Hockton

Solicitors:

Appellant (Complainant) : State Crown Solicitor
Respondent (Defendant) : Cannon Bowden & Co

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

Brooks v Roberts, unreported; SCt of WA; Library No 970072; 17 February 1997
Ferrari v Neenan [2000] WASCA 191
Ilich v Young [2000] WASCA 383
Taikato v R (1996) 186 CLR 454

Case(s) also cited:

Bergin v Stack (1953) 88 CLR 248
Olsen v Grain Sorghum Marketing Board; Ex Parte Olsen [1962] QD R 580
Proudman v Dayman (1941) 67 CLR 536

ROBERTS-SMITH J: These appeals concern the carrying of oleoresin spray by licensed security officers. At the outset I should say that Ms Garnett is entirely correct in her submission to me that the issue of who is to carry these weapons is not for this Court to decide.
The issues before me are quite short and simple and are essentially whether or not in carrying oleoresin spray at the relevant times these two security officers were in breach of the conditions of their security licences and consequently were guilty of an offence under the legislation. That in turn depends upon whether or not the belief each of them is said to have had at the time that their licence conditions did not prohibit them carrying oleoresin spray was a mistake of fact which entitled them to a verdict of not guilty by virtue of s 24 of the Criminal Code (WA). There is an alternative basis upon which the charges were dismissed in the court below and that was under s 31(3) of the Criminal Code. I shall return to the details shortly.
Leave to appeal in each case was granted by Miller J on 15 September 2000 and his Honour ordered that there be one appeal book and that the appeals be heard together.
Each respondent is a private licensed security officer. Each was charged with being in possession of a weapon, namely oleoresin spray (capsicum spray), while performing a licensed activity and thereby failing to comply with a condition or restriction attached to his security officer's licence, contrary to s 64 of the Security and Related Activities Control Act 1996 ("the Act").
When the charges were heard in the Perth Court of Petty Sessions on 16 August last, the learned Magistrate dismissed them under s 24 of the Criminal Code on the basis that the prosecution had not negatived an honest and reasonable mistake of fact held by the defendants to the effect that the conditions on their licences only prohibited them carrying a firearm or baton.
There was also a further ground of dismissal, as I have said, under s 31(3) of the Criminal Code, namely, that the act was reasonably necessary to resist actual and unlawful violence threatened to the respondents.
The grounds of appeal are, in short, that the learned Magistrate erred in dismissing the charge, in holding that the respondents were excused from liability under s 24 of the Criminal Code, in failing to hold that the respondents' mistake was a mistake of law to which s 22 of the Criminal Code applied in law and in fact in holding that the respondents were excused from liability under s 31(3) of the Criminal Code, and in law in failing to find the charge against the respondents had been proven.
In neither of these cases was there any dispute about the facts. It was admitted that at the relevant time each respondent was on duty, in possession of capsicum spray and that such possession was a breach of the conditions of his licence.
It is convenient to begin with the complaint in relation to Andrew Christopher Hickey. His own statement to police, which he confirmed in evidence before the learned Magistrate, was to the effect that about 9.40 pm on Sunday, 23 April 2000 he was on patrol in the Belmont area with another officer but in separate vehicles.
As a result of the sound of breaking glass he received a call to attend at the corner of two roads where there was a newly-built house. He arrived about 9.46 pm and parked his vehicle in a cul-de-sac. He directed the other officer to drive around to the other road so that there would be a vehicle on both sides of the cul-de-sac. Whilst the other officer was doing that, the respondent approached the house and was able to hear voices. They apparently turned out to be from a stereo sound system.
He looked across a wall and could see a closed sliding door. He saw several windows, one of which was smashed. The majority of the broken glass was on the ground on the outside, which indicated to him that the window had been broken from the inside. He advised his partner of this, his partner now having arrived on site, and told him to watch the door of the house, at which time he heard the sliding door open.
He looked across the fence again and could see the door was open; someone was inside the house, but he was still unsure of what the situation was. He decided to go to the front door, which he found ajar. He then heard movement in the front and rear of the house, and then footsteps running down the hallway, and the sliding door crash. He heard someone yell out, "Run."
He then ran towards his partner, yelling to him, "They're running, they're running. It's a break." He and his partner then went down the fence line to the road on the other side. As he went down his side of the house he could see two offenders running to the corner of the fences, and then later on to a neighbour's yard. He ran back up the road and into the front yard of the other house.
On entering the yard, he saw in his partner's torchlight a male falling down the side of a parked four-wheel drive vehicle in the carport. The male then hid behind the vehicle. His partner went to the driver's side of the vehicle and he went to the other side. In the torchlight he could clearly see that the male was holding a beer stubby in his right hand. He drew out his capsicum spray, told the offender (as he referred to the person) what it was and told him to look at it, which he did.
He then told the offender to put the bottle down, which he appeared to do although the respondent could not see where it was. He then told the offender to put his hands behind his head, which he did. However, the offender repeatedly moved his right hand from his head to his belt or pocket area. The respondent told him to turn around and move back towards him.
The offender moved as if to do so but then turned and, putting his right hand in front of his face to block the path of the capsicum spray, reached across his body with the left hand and produced a screwdriver. From a distance of about 2.5 metres from the respondent, he lunged at the respondent. The respondent told him to drop the screwdriver but the offender did not and continued his charge.
The respondent put his foot out in an attempt to stop him but only connected with the offender's left arm. The offender continued so the respondent sprayed three bursts of spray, hitting the offender in the hand and forehead area. The spray did not take effect so he was forced to punch the offender once to the right side of the face as the latter still had the screwdriver. This caused him to drop the screwdriver and fall to the ground. The spray then started to take effect.
The respondent grabbed the offender and dragged him to the front of the yard into the light. He instructed his partner to grab a hose, which he did. The respondent then stood with the offender as he was hosed down. His partner then went to have another look at the side of the car and he heard his partner tell someone else under the car not to move. He then left the offender on the front lawn and moved to the driver's side of the vehicle as the second male offender was getting out from under it with what looked like a length of wood.
He again took out his capsicum spray and instructed the offender to drop the wood, which that person did. He subsequently walked this second offender to the front of the vehicle and sat him down. After a few minutes the police arrived.
Constable Brock Lucev gave evidence that he was on duty with another officer when they received a call at about 10.25 pm on 23 April 2000 to attend premises at Rivervale, which they then did. On arrival they saw two security officers and two other adult males. They recognised the security officers as Secureforce International security officers. One of them was the respondent. He was standing over a male who was kneeling on the front lawn screaming and crying in pain.
The respondent had a garden hose and was washing the man's face. The respondent was telling the kneeling male to keep the water running into his eyes. He overheard the respondent tell the other constable that he had sprayed the male with pepper spray because the male had come at him with a screwdriver. Some time later they all returned to the Belmont police station.
In his evidence before the Court the respondent, having confirmed what was in his statement to the police, also gave further details. He mentioned that although it was not stated in his statement he had in fact been injured that night by the offender before actually being able to use his pepper spray. He was asked about the conditions on his security officer's licence and in particular whether that had any endorsement on it that he was not to carry a weapon. He answered that there was no mention of a weapon other than firearm and baton and that is, indeed, the way the licence reads.
He was asked whether, after he was charged and subsequent licences were issued, there was any change to the conditions endorsed on them and he explained that there was: when the licence was renewed it contained a condition that the security officer was not to carry a firearm and/or baton and/or weapon.
He told the learned Magistrate that in the five years he had been employed doing security work he had personally been attacked well over 30 times from "standard physical violence" involving hands, feet, kicks and punches to assaults, including weapons such as broken bottles, syringes, knives, steel bars, and on one occasion a machete.
When asked why he had the capsicum spray with him he replied it was because on his licence the only conditions were that he could not carry a baton or firearm without endorsement; there was no mention of anything else - specifically, there was no mention of capsicum spray.
When asked why he carried the spray he said it was for his own safety; his own safety was in jeopardy on each occasion that he went out. He had an apprehension because, as he put it, "You never know what you're going to walk into."
In relation to this particular incident he said that en route to the house he had actually contacted the Belmont police station and spoke to police there, advising them that the security officers were going to attend a call-out for broken glass, although they did not expect the police officers to attend at that time. He was finally asked in his evidence-in-chief in a rather leading way (AB 69): "Do you believe that it's necessary as far as your personal safety is concerned, to carry a capsicum spray?" to which he responded, "By all means."
The respondent's principal Mr John Ryan was called. He testified that he started in the security and inquiry industry in 1964 and has been in it in Western Australia since 1987. He is the principal of Secureforce International. At the time the company had a contract with the Belmont Council which it had had since 1997.
From daily occurrence reports maintained by security staff he was able to say that in the 12-month period from July 1999 to June 2000 there were 193 physically violent attacks on security officers. In addition, there were 407 disorderly conduct incidents which are incidents short of actual physical violence or actual touching and appear to be generally swearing or the making of threats.
He indicated that on occasion his security officers also respond to police requests for assistance. There are times when police are already occupied and they sometimes make a request for the security officers to attend if the incident is apparently minor. There were apparently 31 occasions on which that occurred during the period. Mr Ryan gave other details in a similar vein in relation to other aspects of the work of the security officers.
The substance of the contentions advanced on behalf of the respondent before the magistrate was that the respondent had actually been given a licence prohibiting the carriage of a firearm or baton but which was silent on the question of any other weapon and accordingly it could not be proved beyond reasonable doubt that the respondent did not have an honest and reasonable but mistaken belief that he was entitled to carry the capsicum spray.
In relation to s 31(3) of the Criminal Code counsel further argued that the issue of an apprehension of injury having been raised it was up to the prosecution to establish beyond reasonable doubt that it was not reasonably necessary in order to resist actual and unlawful violence threatened to him for the respondent to carry the capsicum spray.
Mr Bowden, who appeared for Mr Hickey before the Magistrate, submitted that in this particular case the factual scenario was that he was in fact at the time of carrying the spray in the process of being attacked by a person who was armed with a screwdriver and that the respondent in fact sustained injury. As he put it, the Magistrate could not be satisfied beyond reasonable doubt that it was not reasonably necessary in order for him to resist actual and unlawful violence threatened to him for the respondent to carry the spray.
The police prosecutor on the other hand submitted that irrespective of what was written on the licence, the conditions were imposed by operation of the Act and Regulations. One of those was that security officers were not to carry any weapon unless so authorised and their licence was so endorsed. Any mistake about the condition was therefore, it was submitted, a mistake of law.
His Worship gave very short reasons for decision at p 84 of the appeal book:
"It's admitted that he, on 23 April he had a capsicum spray, I think. He'd been called to a place where there'd been broken glass. He's a security agent of some experience. I've come to the conclusion it's dangerous being a security agent, or can be dangerous. He had to - - had that weapon. He was performing the licensed activity. And the question is whether - - and that licence says that he can - - he's not permitted to carry a firearm or baton.
Since that time, they've added the words 'or other weapon.' It's conceded that a capsicum spray is a weapon. The defendant says that he raises an honest and reasonable mistaken belief, because the words 'or other weapon' don't appear on the licence. That he could have an honest and reasonable mistaken belief as to whether he can carry that capsicum spray by way of defence.
The - - I've got to decide if he comes within the - - he's raised the issue honest (sic) and reasonable mistake. The burden is on the prosecution to negative that, at the end of the day. The licences have since been changed. I've come to the conclusion that - - and I've come to the conclusion that it's a mistake of fact, not of law. And I've come to the conclusion he does have an honest and a reasonable mistake. And I dismiss the charge."
Although there was then some subsequent discussion, his Worship shortly thereafter indicated that he had forgotten to make any remarks about s 31 of the Criminal Code and so he did so then. They appear at p 88 of the appeal book. His Worship said:
"In relation to 31, it was - - the argument was under 31:
'Justification, excuse, compulsion.'
Subsection (3):
'Where an act is reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence a person is not criminally responsible if he does or omits to do an act under those circumstances.'
And I came to the conclusion that the defendant came within that category. I don't think he comes within 4?, because he can't contemplate - - well he may contemplate, but it might be unreal to contemplate that it's grievous bodily harm."
Dealing first with s 24, there are two questions which arise when a defendant relies on s 24 of the Criminal Code. The first is whether it is available as a matter of law. If it is, the second is whether it is available as a matter of fact: Ferrari v Neenan [2000] WASCA 191, 28 July 2000 per Wheeler J at [4].
In argument before his Worship Mr Bowden referred to a number of cases in which s 24 had been raised in the context of charges of driving under disqualification in which defendants had argued that they had had an honest and reasonable but mistaken belief that they were not under disqualification. A number of these are discussed in a decision I gave recently in the matter of Ilich v Young [2000] WASCA 383, delivered 28 November 2000, and I will not repeat them here.
The salient point which may be derived from those authorities is that where a license disqualification is discretionary and it depends upon a court or an administrative decision whether or not a disqualification is made and if so, the duration of it, those are matters of fact. On the other hand where the disqualification is effectively automatic by operation of law, then any mistake by a defendant about it is a mistake of law with the consequence that s 22 of the Criminal Code applies and s 24 does not.
The appellant here relied upon Brooks v Roberts, unreported; SCt of WA; Library No 970072; 17 February 1997, in which Templeman J dismissed an appeal from the decision of a Magistrate who had imposed on the appellant a fine of $500 for driving without a valid driver's licence.
Before the Magistrate the appellant said that he had made a mistake about the validity of his driver's licence and that in all the circumstances, the mistake was one of fact which ought to have excused him from liability. The Magistrate, however, held that the mistake was one of law which afforded no defence to the appellant.
What had happened was that in August 1995 the appellant's driver's licence was suspended for 3 months on the basis of demerit points which had then accrued. On 22 September 1995 he drove his motor vehicle and was apprehended by the police while so doing. That was within the 3‑month period of suspension.
On 20 March 1996 he was convicted of driving while under suspension and his licence was suspended for 1 month. That was an error by the Magistrate who dealt with the case. There was no dispute ultimately that under s 49(3) of the Road Traffic Act 1974 (WA) a suspension of at least 9 months ought to have been imposed on him, that being the statutory minimum period of disqualification.

Following the 1-month suspension the appellant was advised by his solicitor that that period of suspension had been imposed. Subsequently the Crown realised an error had been made and in April 1996 an application under s 166B of the Justices Act 1902 (WA) was served on the appellant by leaving it at his estranged wife's address. It was common ground that in fact he did not learn of it.
That application was heard in May 1996 when the period of disqualification was increased to 9 months, that is, to the statutory minimum period provided for under s 49(3) of the Road Traffic Act. On 1 June 1996 the appellant again drove his motor vehicle and was apprehended by the police. That incident occurred outside the 1-month period which he had believed had been imposed earlier. It was of course within the 9-month period subsequently imposed pursuant to s 166B of which he had no actual knowledge.
As I have indicated, the Magistrate took the view that the mandatory disqualification being one which had to be imposed as a matter of law, the error was one of law, not fact, and did not avail the defendant. Templeman J agreed with that view of the matter. As his Honour put it at 4 of his reasons:
"In the present case, despite the information given to the appellant, his belief in the validity of his licence could have been based only on his ignorance of the law."
Brooks v Roberts is in my opinion consistent with the approach I have identified above in that although the actual period of disqualification was ultimately a matter of discretion for the Magistrate, as a matter of law it had to be at least 9 months and so to that extent at least the mistaken belief of that defendant amounted to ignorance of the law.
Against that background of authority I come now to the situation in this case. Section 16 of the Act stipulates that a person must not act as a security officer except under authority of a security officer's licence. Section 23 prohibits a licensed security officer being in possession of a firearm while engaged in activities authorised by the licence unless his or her licence is endorsed to authorise such possession. Section 26 imposes a similar restriction on the possession of a baton. Section 62 deals specifically with conditions and restrictions applicable to licences. This was a provision upon which Mr Hockton, who appears for Mr Hickey, relies.
Section 62 authorises a licensing officer to issue or renew a licence subject to conditions and restrictions set out in or provided with the licence. Subsection (2) provides that a licensing officer may decide to make an existing licence subject to a new condition or restriction, or to change or remove a condition or restriction, but must give notice within 14 days of the change to the licensee, and in any event the decision does not take effect until 28 days after that decision is made.
Relevantly, s 63 is headed, "Regulations may prescribe conditions and restrictions," and provides that:
"(1)regulations made under s 94(1) may prescribe conditions and restrictions that are to be taken to be attached to
(a)all licences;
(b)all licences of a particular class; or
(c)all endorsements under s 24 or s 26
unless otherwise provided by the licence or endorsement."
Section 64 is the section under which the respondent was charged. That makes it an offence for a person to fail to comply with a condition or restriction attached to a licence. Pursuant to the power granted by s 63 and s 64 of the Act, reg 21 of the Security and Related Activities Control Regulations provides:
"For the purposes of s 63, the conditions and restrictions set out in sch 1 are to be taken to be attached to licences -"
and then follows a sequence which includes those in Division 2, to all security officer licences.
Division 2 contains reg 9 which provides in subregulation (1) that a security officer must not be in possession of a firearm whilst performing any licensed activity unless effectively authorised to do so and that authorisation is endorsed on his or her licence. Subregulation (2) makes the same provision in relation to a baton and subregulation (3) stipulates the same thing in relation to possession of "any other weapon."
The effect of these provisions is that the regulations themselves impose conditions on all security officer licences that (inter alia) the holder must not be in possession of any other weapon whilst engaged in security duties unless authorised to do so and the authorisation is endorsed on the licence.
At the relevant time capsicum spray was a weapon as defined in s 3 of the Weapons Act 1999 (WA). That the canister of capsicum spray was a weapon was common ground at the hearing before the magistrate and as I am of the view that it was of that character at common law quite apart from the Weapons Act 1999 it is unnecessary for me to consider the question whether the definition in the Weapons Act was relevant to the term "weapon" in the Security and Related Activities Control Act 1996.
Thus it can be seen that the respondent was in possession of something which the conditions of his licence prohibited. The relevant condition was imposed not by any discretionary decision of a court, nor of a licensing authority, but by direct operation of the Act and the regulations.
The respondent's proposition is that he relied on the wording of the licence. In his appeal Mr Bodycoat reiterated that to me. He referred to his previous licence at p 42 of the appeal book and the endorsement which states: "Your security officer's licence authorises you to guard, watch and protect any property. You are not to possess or carry a firearm and/or baton unless you have the appropriate endorsement on your licence." That licence expired on 20 October 2000.
He has been issued with another licence in which the relevant endorsement now reads: "You are not to possess or carry a firearm, baton or other weapon unless you have the appropriate endorsement on your licence" (emphasis added). The evidence in relation to Mr Hickey was to much the same effect but, as Ms Garnett submitted, that is simply an explanation of the reason the respondents were not aware of the law. The respondent's belief or mistake was no more and no less than ignorance of the operation of the legislation and so fell squarely within s 22 of the Criminal Code and outside s 24. His Worship was accordingly wrong in concluding otherwise.
I turn now to s31(3) of the Criminal Code. Mr Bowden submitted to the Magistrate that in this case, as I have observed, at the time of carrying the spray the respondent was actually in the process of being attacked by a person armed with a screwdriver. He argued that on this basis the Magistrate could not be satisfied beyond reasonable doubt that it was not reasonably necessary, in order for him to resist actual and unlawful violence threatened to him, to carry the capsicum spray.
These submissions I think confused two issues. The respondent was not charged with assault. Self-defence would clearly have been a live issue if he had been. The charge before the court was the carrying of the spray in the first place, contrary to the conditions of his licence. It would be unrealistic in the extreme to regard the act of possessing the capsicum spray here to be confined only to that brief period during which the respondent used it to subdue the suspect. The conduct the subject of the charge was him having it in his possession whilst on duty that night. That this was so was recognised by all concerned in the court below.
The respondent's own explanation for possessing the article was directed to the apprehension he had in a general way when performing his security officer duties. On the evidence there was obviously good reason for such apprehension but the question is whether that was such as to bring him within s 31(3).
In Taikato v R (1996) 186 CLR 454, 70 ALJR 960, 90 A Crim R 232, the issue was whether on the facts of that case it was open to the District Court of New South Wales to find that the appellant, who was carrying a pressurised canister of formaldehyde to defend herself if she happened to be attacked "had a reasonable excuse for possessing it or possessed it for a lawful purpose" within the meaning of s 545E(2) of the Crimes Act 1900 (NSW).
Their Honours Brennan CJ and Toohey, McHugh and Gummow JJ in a joint judgment held that as a matter of law she had neither a reasonable excuse nor a lawful purpose for her possession of the canister.
Referring to the decision of the Court of Criminal Appeal in New South Wales, their Honours quoted Meagher JA (with whose judgment Abadee and Ireland JJ had agreed):
"That no possession can be justified by a reasonable excuse unless it is a possession motivated by a reasonable apprehension of imminent attack or imminent danger. In other words, there must be a temporal nexus between the excuse and the possession."
Referring to lawful purpose, their Honours said (at 460):
"As a general rule, interpreting "lawful purpose" in a legislative provision to mean a purpose that is not forbidden rather than positively authorised by law is the interpretation that best gives effect to the legislative purpose of the enactment'
and then added:
"Nevertheless, the purpose, context or subject matter of a legislative provision may indicate that Parliament has used the term "lawful purpose" to mean a purpose that is positively authorised by law. That seems to be the best interpretation of the term in the present case.'
Commenting on whether or not self-defence was a lawful purpose for the purpose of s 545E, their Honours said at 463:
"Counsel for Mrs Taikato contended that the 'law recognises self-defence as the lawful right of any citizen where it is exercised in circumstances that that citizen believes on reasonable grounds that it is necessary in self defence to do a particular act'. It followed, he argued, that she was carrying the canister of formaldehyde for a lawful purpose. However, it is more accurate to say that she was carrying the canister to spray any person who attacked or threatened to attack her and that whether she had a legal right to do so would depend on whether the circumstances of the attack gave rise to a right of self-defence at law. When her purpose is formulated in that way, it is obvious that, when she was searched, she did not possess the canister for a lawful purpose.
The law authorises a person to assault another person in self-defence only when certain conditions are fulfilled. No legal right of self-defence arises until there is a reasonable apprehension of attack by the person who is assaulted."
Of course what the High Court was there saying about self-defence has no immediate relevance to the particular cases. Nonetheless the critical aspect, it seems to me, has to do with the apprehension of imminent danger or threat in the context of the reason for a person possessing a particular item.
Their Honours went on in Taikato to consider whether in the circumstances the appellant had a reasonable excuse. What was said about that is pertinent to the present case to the extent that once again the emphasis was on the temporal nexus between the excuse and the possession. The terms of s 31(3) of the Criminal Code are more specific in this regard than the terms of s 545E of the Crimes Act 1900 (NSW).
The relevant Act with which we are here concerned is that of being in possession of capsicum spray. By s 31(3) the respondent would not be criminally responsible for the act of carrying the spray if the act of carrying was reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence. This connotes a sense of immediacy, or to paraphrase Meagher JA in Taikato, a reasonable apprehension of imminent attack or imminent danger, a temporal nexus between the excuse and the possession.
This also accords with the Oxford Dictionary definition, as Ms Garnett points out, namely, "in action or existence at the time, present or current." This is further reinforced by reference to the remaining words of s 31(3), "Or to another person in his presence," that being a reference to the threat of violence.
When the respondent chose to possess the capsicum spray on his security duty that night there was no actual violence threatened to him. He had an apprehension that it might be but at that time there was no actual threat. There may well not have been. There was no immediacy about the situation at all and no actual immediate threat of violence. Section 31(3) of the Criminal Code accordingly had no application in these circumstances and his Worship erred in holding that it did. It follows that the appellant's grounds of appeal have been made out. The facts admitted were sufficient to establish each element of the offence charged and accordingly his Worship erred in law in failing to find the charge against the respondent proved.
I turn now to appeal SJA1158 of 2000, Denton v Bodycoat. The grounds of appeal here were the same as in the previous appeal. This respondent's case was heard by his Worship immediately after that of the respondent Hickey. Only one witness was called by the prosecution. That was Senior Constable Jeffrey Denton.
His evidence was that on the afternoon of Wednesday, 3 May 2000, he was on duty in the Belmont area in company with Senior Constable Wood. At approximately 2 pm they were conducting a patrol of Belmont Avenue when they saw a Secureforce security vehicle conducting patrols in the area. They stopped the vehicle and interviewed the driver who was the respondent. He was wearing a Secureforce security uniform including a belt on his hip on which was a pouch containing an extendable baton, a torch and an empty pouch which the constable believed was to carry a capsicum spray.
The police officers identified themselves and obtained the respondent's details. They asked whether he was on duty to which he replied in the affirmative. They asked what his duties were and he said, "To patrol council areas, schools and report suspicious acts."
He was asked whether that was his OC spray, indicating the empty pouch on his belt, and he was asked where it was and he told them it was in the centre console. He then retrieved it from within the vehicle and it was seized by the police officer. He was asked whether it was his; he said yes. When asked when he had purchased it, he said a week after he started, at the end of February.
It was then put to him that when the police officers had first stopped him, he had told them that he carried it with him because he was on his own and he said, "Well, yes, it's in there just in case I get in a situation by myself. I will carry it after the situation with one of our guys." He was asked whether he had put it on his belt when responding to a job and he said if it was a serious job he would but if it was just a couple of kids he would not.
He said he carried it with him at all times on duty but not actually on his belt; it was readily accessible in the vehicle console. He was asked, "You said you knew about some new legislation about OC sprays. What do you know about it?" He said, "As far as I know, it came out a week before our guy was attacked. I didn't know until I read it in a paper. I thought it meant on your belt."
The constable said, "So you acknowledge that you are not permitted to carry the OC spray?", to which the respondent answered, "Yes, I do but with that I mean on my person." He subsequently admitted carrying it for certain jobs, that is serious ones, and when asked "If you know you are not permitted to carry it, why do you do it?" He said, "Certain jobs I do for my protection. I'd rather spray someone than end up in hospital. My life is worth more than that."
The respondent gave evidence before the magistrate and said that generally he was not aware of the conditions attached to his licence. He was aware that he was not meant to carry a firearm or baton. He thought he was entitled to carry a capsicum spray because it was not endorsed on the licence. Cross-examined by the prosecutor (at p 22 of the appeal book) he said that he had a licence for some three and a half years; he had done some approved courses to obtain it. He could not recall studying the Act or the regulations. There then occurred the following sequence of questions and answers (at p 22):
"During the three and a half years that you've been in the industry, have you read the relevant Act?---No.
You've never read the Act?---No.
Never read part of it?---No.
Never read any of the Regulations?---No. Besides what was on the licence.
Right; and just help me because that is the profession that you're in - why haven't you read the Act or the Regulations?---Well, I haven't known how to get - - go about getting it. Getting hold of it, or who I can see to read it.
All right. Did you ever make some inquiries to ascertain?---No.
No. Right. You would've been aware - I presume, as a result of your occupation - that there was an Act that controlled your activities?---Yes.
Right; and you would've been aware then, that there are Regulations that control those actions?---Yes.
But you never read either and you never made inquiries in relation to how to obtain them?---No.
When the police spoke to you - as I understand it - one of the questions asked was - - so you acknowledge that you're not permitted to carry OC spray. 'Yes; I do. But with that, I mean on my person?' Where did you get that information from, to answer that?---Well, after the incident with Mr Hickey, I read the brief article in the paper and it just stated that the new legislation stating that we weren't permitted to carry it whilst on duty. And with that, what I got from that article was - actually on your person.
PROSECUTOR: Right. But you hadn't read the Act or the Regulations?---No.
Mm. So you would say that you were not - - you were aware that you couldn't carry it on the person?---Yes.
But your answers would indicate that subject to the job you attend, you would carry it on your person? Yes; if I got called to a job where I believed my life or a citizen's life could be put in danger."
In this case the learned Magistrate gave the following reasons for decision (at AB32):
"It's different from the previous case. The defendant was in a car. He doesn't have the pepper spray on him, it's in the console of the car. I don't think there's any question about being in possession. I think that he is in possession of it, being in the console of the car. He says that he's a security agent, he's licensed and he has a licence which is endorsed "no firearms or batons".
He said that it can be a dangerous job that he does. He said that he knew he was not allowed to have it on his person, but thought he could have it in his car. That arose out of the previous incident I dealt with. He said that he could be caused serious injury in the course of his duties. He gave evidence that on some occasions he had to be - - he had been injured or attacked with things that could certainly injure in a fairly substantial way.
He said he hadn't read the Act, or Regulations. And he says that on the licence it says, "refer to licence for conditions and endorsements" and the licence says, "firearms and batons", which are precluded.
There's the 1996 Security and Related Activities Act. In 1999 along comes the Weapons Act. From my recollection there have been a number of cases where there's been a difference in view, as to whether pepper spray was a weapon. The sergeant also argues it's mistake at law. Mr Bowden says that it's a mistake of fact, in that it's what's endorsed on the licence.
The - - I recited that. I've got to decide whether - - he certainly raised the issue of an honest and reasonable mistaken belief. And he relies upon the fact that his card or licence - - or the card he wears says, 'refer to the licence for conditions and endorsements'. I have come to the conclusion he's raised the matter on the balance of probabilities and that I acquit him.
I also make the same comment about - - I think he's - - as a security officer he's entitled to carry that in order to resist unlawful violence. It was a limbo time where the - - we didn't know whether it was a weapon or not. And so I dismiss that."

In this case Mr Bowden had made the further submission before the Magistrate that "When the security regulations were promulgated in 1997, capsicum spray was not a weapon" and that it was only when the Weapons Act came into force on 1 September 1999 that it became such. This argument seems to have been urged in support of the proposition that as capsicum spray was not a weapon when the respondent was first granted his security operator's licence and was only classified as such by the effect of the Weapons Act when that came into force, therefore the respondent's belief that he was entitled to carry capsicum spray because there was no express condition printed on his licence forbidding him to do so was reasonable.
In my view the analysis demonstrates the very opposite conclusion than that it was advanced to support. The very contention that the coming into operation of the Weapons Act on 1 September 1999 had the effect of prohibiting the respondent from carrying capsicum spray whilst on duty as a security officer shows quite clearly that the condition was imposed by operation of law, ignorance of which, by virtue of s 22 of the Criminal Code, was no excuse.
In any event the same situation would have obtained even prior to the Weapons Act or if the provisions of the Weapons Act had no application here given the view I have already expressed that a can of capsicum spray would necessarily be a weapon even at common law since its only possible purpose is to temporarily disable a person.
Otherwise, the reasons I have given above in respect of the complaint against the respondent Hickey apply equally here with the consequence that this appeal too must be allowed.