DPP v Starr

[2012] NSWSC 315

Supreme Court

New South Wales

Medium Neutral Citation:

DPP v Starr [2012] NSWSC 315

Hearing dates:

4 April 2012

Decision date:

05 April 2012

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Appeal allowed.

(2) Set aside the order of Atkinson LCM made on 5 July 2011 dismissing the proceedings against the Defendant for the offence of "possess prohibited weapon" in breach of s 7 of the Weapons Prohibition Act 1998.

(3) An order that the matter be remitted to the Downing Centre Local Court to be determined according to law.

(4) Make no order as to costs.

Catchwords:

CRIMINAL LAW - appeal from decision of the Local Court - weapons prohibition offence - mens rea for possession
- meaning of "the user" of knuckle-dusters

Legislation Cited:

- Crimes (Appeal and Review) Act 2001
- Weapons Prohibition Act 1998
- Weapons and Firearms Legislation Amendment Act 2010

Cases Cited:

- Commissioner of Police v Kennedy [2007] NSWCA 328
- Federal Firefighters' Union v Minister of State for the Capital Territory (1982) 62 FLR 341; 44 ALR 311
- Kelly v The Queen [2004] HCA 12; 218 CLR 216
- Mullaney v Taylor [2006] WASC 149
- Pascoe v Nicholson [1981] 1 WLR 1061
- Timbar Pty Ltd v ME Petrie Pty Ltd (in liq) (1982) 7 ACLR 111
- Waugh v Kippen [1986] HCA 12; 160 CLR 156

Texts Cited:

- Pearce and Geddes, Statutory Interpretation in Australia (7th ed., 2011)

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Plaintiff)
Dylan Starr (Defendant)

Representation:

Counsel:
N Adams/J Davidson (Plaintiff)
Submitting appearance for Defendant
Solicitors:
Solicitor for Public Prosecutions (Plaintiff)
Watsons (Defendant)

File Number(s):

2011/00334695

Judgment

Introduction

1. The plaintiff appeals, pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001, against the dismissal by Atkinson LCM (the Court below) of an information pursuant to which the first defendant was charged with one count of possessing a prohibited weapon, namely, a knuckleduster, in contravention of s 7 of the Weapons Prohibition Act 1998 (WP Act). The plaintiff seeks orders that the dismissal be set aside and the proceedings be remitted to the Local Court to be dealt with according to law.

1. The plaintiff submitted that the information was dismissed because of an erroneous interpretation of the definition of "knuckleduster" which resulted in the Court below misdirecting itself of the matters of which it needed to be satisfied beyond reasonable doubt and that this involves a question of law alone.

1. The defendant filed a submitting appearance in this Court.

Relevant statutory provisions

1. Section 7 of the WP Act provides:

"7 Offence of unauthorised possession or use of prohibited weapon

(1) A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit.

Maximum penalty: imprisonment for 14 years.

(2) Without limiting the operation of subsection (1), a person who is the holder of a permit to possess or use a prohibited weapon is guilty of an offence under this section if the person:

(a) possesses or uses the prohibited weapon for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the weapon, or

(b) contravenes any condition of the permit."

1. A "prohibited weapon" is defined in s 4(1) as "anything described in Schedule 1". Schedule 1 to the WP Act, headed "prohibited weapons", contains a list of items that are prohibited weapons for the purposes of the Act.

1. Clause 2(19) of Schedule 1 provides:

"Knuckle-dusters or any other similar article that is made of any hard substance and that can be fitted over 2 or more knuckles of the hand of the user to protect the knuckles and increase the effect of a punch or other blow or that is adapted for use as such."

The hearing in the Court below

The relevant evidence and submissions

1. The prosecution case was that on 14 October 2010 the defendant went to Sydney Airport. His luggage was screened by security in Terminal 3 and as a result of seeing something irregular his bag was searched. A Protective Services Officer located a belt with a buckle in the shape of a knuckle-duster. Sydney Airport Uniform Police officers (of the Australian Federal Police) were called to the screening point. They placed the defendant under arrest and cautioned him.

1. The prosecution called Senior Constable Ken Condie, who was attached to the forensics ballistics investigation section of NSW Police, to give evidence. A challenge was made to his expertise but the Court below ruled that the witness was qualified as an expert to give evidence of his opinion. The following exchange took place in the course of the cross-examination:

"Q: So in determining that it was protective of the knuckles, how did you make that conclusion?

A: I've got numerous photographs of the exhibit as received in the packing, by itself and over my fist. I always ensure that I can put it over my hand. I don't know how big the whoever was in possession of this. I can't say their hands are. But I know it fits over mine.

Q: So you don't know whether it would fit over the hand of the accused as the user of it?

A: No, I have to look at it as it is, the physical item I have, I examine that and make sure that its capable of fitting over at least my hand, and I make sure it fulfils everything in the Act.

Q: It might very well fit the hand of a person with slim fingers or a child or some other person. But in order to determine whether or not it would satisfy the requirements being the user, being the person in possession of it, you would need to know, would you not, whether or not it could fit over his hand?

A: Well, that's not part of my duties. That's not my role, It's a knuckleduster designed to fit over -

Q: The hand of the user.

A: - whoever the user is, whoever intends to use it.

Q: That's a question that you would need to know the answer to, isn't it, in order to determine whether it would fit over the hand of the user?

A: It would depend who intends to use it."

1. The prosecution also called Senior Constable Fatih Oncu, the Sydney Airport Uniform Police officer who was approached by Protective Service Officer Cole and informed that a knuckleduster had been located in the defendant's bag. Senior Constable Oncu deposed that he had put the belt buckle through his fingers. It fit his four fingers and "was positioned comfortably once I clenched my hands forming a fist". This is where he "formed the opinion the item can be used as a knuckleduster". In cross-examination Senior Constable Oncu was shown a photograph of the item, which was tendered. He demonstrated how he had positioned the item over his fingers. The transcript recorded what was said as this occurred:

"Q: The item is now in a position midway between your second and your third knuckles.

A: That's correct. Well, yes, all the way down to the end, to the edge of, down to where my fingers -

Q: Hold it up for her Honour to see. Just turn your hand around so I can see, please. Thank you. At no stage did the accused in your presence place that item over his hand.

A: No."

1. The prosecution also called Constable Kylie Pellizzaro and Constable Scott Cole in its case. After the prosecution had closed its case the defendant conceded that there was a prima facie case. The defendant was not called to give evidence.

1. In the Court below the defendant relevantly submitted that the Magistrate could not be satisfied that the knuckle-duster would fit over the defendant's knuckles or that he ever had any intention of using it for that purpose. In those circumstances, the defendant submitted that the Court below could not be satisfied beyond reasonable doubt that the defendant had both the requisite mens rea and the actus reus to possess a prohibited weapon.

1. The Prosecutor submitted that it was relevant that the item was attached to a belt, that the definition specified protection of the knuckles not covering of the knuckles and if the item was between the middle knuckles and the top part of the knuckles this would protect the upper knuckles in relation to a punch.

1. The defendant submitted in reply that a device could not be "fitted over two or more knuckles to protect the knuckles" unless it fitted "over the knuckles covering the knuckles when the blow or punch is delivered".

1. The Court below found the offence not proven and dismissed the charge on the basis that she had a reasonable doubt as to whether the item fell within the definition of "a knuckleduster".

The reasons of the Court below

1. The Court below identified the principal issue as being whether the item "can be said to protect the knuckles and increase the effect of a blow or punch".

1. The Court below concluded:

"I find, having examined the item and listened to the evidence, that it is highly likely that this item would protect the knuckles in the sense that the device is raised above the knuckles. But there is no evidence before me that the item would indeed fit the hand of the user, and in this particular case we are looking at possessing the item by a particular person.

In conclusion, having considered all of the material before me, whilst I consider that it is highly likely that the item does fall within the definition of a knuckleduster, there is a small doubt in my mind. The doubt is reasonable and therefore I am finding the offence not proven."

[Emphasis added.]

The grounds of appeal

1. The plaintiff relies on the following two grounds of appeal which are in substance one ground:

(1) Her Honour misdirected herself as to the interpretation of the description of "knuckle-dusters" in cl 2(19) of Sch 1 to the WP Act, erroneously holding that the term "user" therein means the person in whose possession the item is found.

(2)   Her Honour erred in dismissing the matter.

1. The plaintiff contended that the Court below was in error in requiring proof that the item fitted the hand of a defendant charged with possession, as distinct from use, of a knuckle-duster. The plaintiff contended that this was a question of law alone because it concerned the correct interpretation of a statute, as distinct from its application.

1. I accept the plaintiff's submission that this amounts to a question of law alone since it raises solely a question of statutory construction.

Construction of s 7 of the WP Act

Principles: a construction that promotes the purpose of the Act is to be preferred

1. I am required to prefer a construction which promotes the purpose or object of the WP Act to one that would not advance its purpose or object: Interpretation Act 1987, s 33.

The objects and purpose of the WP Act

1. The object and purpose of the WP Act can be discerned from its long title, the Second Reading Speech, any express objects provisions and a reading of the Act as a whole.

1. The long title of the Act is "An Act to prohibit and control the possession and use of certain weapons ..."

1. Section 3 of the WP Act relevantly provides:

"Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons.

(2) The specific objects of this Act are as follows: ...

(b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons ..."

1. In the Second Reading Speech, the Attorney General told Parliament that the new statute would:

"improve public safety by imposing stricter controls on the possession and use of prohibited weapons" (Legislative Council, Hansard, 11 November 1998, p. 9620).

1. The capacity of knuckle-dusters to inflict harm on a victim and protect the hand of the perpetrator was explained by Jenkins J in Mullaney v Taylor [2006] WASC 149 in the following terms, at [29]:

"Commonsense tells me that a blow with a solid, hard object, such as this item, held in the hand by a handle would have a greater force of impact than a blow with a clenched fist alone."

1. The plaintiff relied on this material to submit that the mischief which s 7 and Sch 1 sought to remedy was to prevent any and all unauthorised use or possession of a wide variety of prohibited weapons, including knuckle-dusters, in view of the underlying need to protect public safety. I accept this submission.

Legislative history

1. The predecessor to the WP Act was the Prohibited Weapons Act 1989. Section 5 of the former Act relevantly provided:

"(1) A person shall not -

(a) possess a prohibited weapon; or

(b) use a prohibited weapon,

unless authorised to do so by the permit or the regulations..."

1. "Prohibited weapon" was defined in s 3 as "anything described in Schedule 1".

1. Until the Prohibited Weapons Further Amendment Regulation 1997 came into force in 1997, knuckle-dusters were defined in cl 28 of Sch 1 as:

"[a]ny article or device of a type commonly known as a knuckle-duster or metal knuckles or any article or device made or adapted for use as such."

1. As a result of the Prohibited Weapons Further Amendment Regulation 1997, the definition of knuckle-dusters in Sch 1 was amended to read:

"[a]ny article or device of a type commonly known as a knuckle-duster or metal knuckles or any article or device that is made of any hard substance and which can be fitted over the knuckles of the hand of the user to protect the knuckles and increase the effect of a punch or other blow, or that is adapted for use as such."

1. The Explanatory Note to the 1997 Regulation identified one of the objects as being to:

"...more accurately describe a number of weapons that are already listed as prohibited weapons in the Act."

1. There is otherwise no explanation of the inclusion of the term "the hand of the user" which was first introduced into the definition by that amendment, and nothing to indicate a legislative intention to limit the scope of persons who were prohibited from possessing such items to those whose knuckles could be shown to fit into the apertures of such items.

1. When the WP Act was enacted in 1998, Sch 2(19) included a definition of knuckle-dusters that was substantially equivalent to that found in its statutory predecessor and provided as follows:

"Knuckle-dusters or any other similar article that is made of any hard substance and that can be fitted over the knuckles of the hand of the user to protect the knuckles and increase the effect of a punch or other blow or that is adapted for use as such."

1. The reference to "two or more" in the present definition was inserted by the Weapons and Firearms Legislation Amendment Act 2010.

Legislative context

1. The relevant statutory context includes the definition of "possession" in s 4:

"possession of a prohibited weapon includes any case in which a person knowingly:

(a) has custody of the weapon, or

(b) has the weapon in the custody of another person, or

(c) has the weapon in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person."

1. Section 4(2), which also forms part of the statutory context, provides that:

"For the purposes of this Act:

(a) anything that would be a prohibited weapon if it did not have something missing from it, or a defect or obstruction in it, is taken to be a prohibited weapon, and

(b) a person in or on (or in or on any part of) any premises, vehicle, vessel or aircraft in which there is a prohibited weapon is to be regarded as having possession of the weapon unless the person proves otherwise, and

(c) if parts of a prohibited weapon are in the possession of, or are being carried by, 2 or more persons, each of those persons is to be regarded as possessing the weapon."

The construction of statutory definitions

1. The plaintiff also relies on the circumstance that cl 2(19) of Sch 1 to the WP Act is part of the definition of "prohibited weapon" in s 4. The function of definitions in legislative instruments was considered by McHugh J in a dissenting judgment in Kelly v The Queen [2004] HCA 12; 218 CLR 216 in the following passage at 253:

"... the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was intended to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment."

1. In Commissioner of Police v Kennedy [2007] NSWCA 328, Basten JA (Hislop J agreeing) referred to McHugh J's approach in Kelly and said further, at [44]:

"No doubt, as suggested by Pearce and Geddes [Statutory Interpretation in Australia], it is an excellent test of good drafting to read a definition into an operative provision to see if it fits comfortably in the text ... However, if the definition as enacted does not fit comfortably into the text, the exercise of construction will need to address any logical or grammatical infelicities that arise."

1. The definition of knuckle-duster in the Schedule is imported into the offences of possession and of use in s 7. However, its wording fits more easily into the offence of use than it does into the offence of possession because of the reference to "user" in the definition. When the definition of knuckle-dusters is incorporated into s 7(1), it reads as follows:

"A person must not possess or use a knuckle-duster or any other similar article that is made of any hard substance and that can be fitted over 2 or more knuckles of the hand of the user to protect the knuckles and increase the effect of a punch or other blow or that is adapted for use as such unless the person is authorised to do so by a permit."

1. The definition must relate to both the "use" and "possession" limbs of the operative provision, s 7(1). However, when a person is charged with possessing a prohibited weapon, the prosecution need not establish beyond reasonable doubt that the person "used" the item in question. Mere possession is sufficient. The mens rea for the offence of possession of a prohibited weapon does not require any intention to use the weapon at all. Accordingly, there would appear to be no contextual reason why the defendant and "user" must be the same person when the defendant is charged with possession rather than use.

1. However that is precisely what the Court below decided in the instant case. The plaintiff submitted that the result of giving the definition a narrow reading was what McHugh J cautioned against in Kelly: negation of the evident purpose of the prohibition on possession of knuckle-dusters.

1. In its reasons for decision, the Court below said:

"...we are looking at possessing the item by a particular person."

1. The plaintiff submitted that this extract provides some indication that the Court below relied on the use of the word "the" before the word "user" to support its preferred construction. The plaintiff submitted that the construction adopted by the Court below is premised on the assumption that "the user" must refer to a specific user in a possession case.

Legislative context: the meaning to be given to "the" in the phrase "the user"

1. The plaintiff submitted there are powerful textual reasons for rejecting the construction preferred by the Court below. The plaintiff submitted that the word "the" can serve a number of different functions, depending on its context: Timbar Pty Ltd v ME Petrie Pty Ltd (in liq) (1982) 7 ACLR 111.

1. In Timbar, Mahoney JA explained various functions of "the" in particular contexts including, relevantly, at 114:

"...'the' may have the function of denoting a thing or place which has previously been identified: thus in Pascoe v Nicholson [1981] 1 WLR 1061 Lord Roskill saw 'the police station', according to its ordinary meaning as being capable of denoting one particular police station rather than another, but thought that the context indicated a contrary meaning. And 'the' also has the function, and perhaps this is its primary function, of the definite article. When so used, its purpose is no more than that of the definite, as contrasted with the indefinite, article... When 'the' has the function merely of the definite article, what it does is simply to indicate a particular thing or class of thing..."

1. The plaintiff submitted that the definite article "the" in cl 2(19) of Sch 1 to the WP Act, indicates a particular thing or class of thing: the user of the item. This construction is consistent with Mahoney JA's discussion in Timbar of the "primary function" of the word "the", being its use as the definite article and his Honour's view that "'the' as the definite article, may be used to indicate a particular thing or class of thing". It is also consistent with s 8(b) of the Interpretation Act 1987, which provides that, subject to any contrary intention, "a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form". The effect of s 8(b) in the instant case is that the singular expression "the user" includes a class or category of "users".

1. Thus, where the definition of knuckle-dusters is applied to a case where a person is charged with use of a prohibited weapon, the words "the user" refer back to the specific user of the weapon. However, where the definition is applied in a possession case, the word "the user" must, as a matter of construction, refer to a notional user or members of a class of notional users rather than to a specific user, there being no actual user who is the subject of the operative provision in s 7. The word "the" cannot operate as a cohesive device to ensure continuity of reference to a known "user" in the possession context, given that neither use nor an intent to use is an element of the offence of possession.

1. In the alternative, the plaintiff submitted that the words "the user" in cl 2(19) should be read as "a user" when the definition is being applied in relation to a possession charge. This construction is consistent with "the" being employed to mark the singular noun "user" as being used generically in this context, so is consistent with one of the ordinary senses of "the" set out above. In Federal Firefighters' Union v Minister of State for the Capital Territory (1982) 62 FLR 341; 44 ALR 311, Fitzgerald J said, at 326:

"it is well established that 'the' may be read as 'a' when required, particularly where a provision is not skilfully drafted."

1. The WP Act does not reflect a consistent drafting choice between the definite and indefinite article, depending on whether or not one specific user is pointed to. The only references to the word "user" in the whole Act are found in Sch 1, where cl 1(5) (description of "trench knife"), cl 2(7) ("Saunders 'Falcon' Hunting Sling"), cl 2(8) ("blow-gun" or "blow-pipe") and cl 2(19) ("knuckle-dusters") each refer to a part of the body (or, in the case of cl 2(8), the breath) of "the user".

The consequences if the construction preferred by the Court below were correct

1. The plaintiff submitted, and I accept, that the construction by the Court below would have various anomalous consequences. For example:

(1)   A person with large fingers could possess any number of articles that would otherwise satisfy all the elements of the definition of knuckle-dusters if in the possession of a person with smaller hands, with impunity, simply because the person with large fingers could not fit any of the articles over two or more knuckles of his or her hand.

(2) If five people lived in the same house in which a stash of knuckle-dusters was secreted, thereby attracting the deeming provision in s 4(2)(b) of the WP Act, the criminality of its occupants would depend in part on the size of their hands.

(3)   A large-fingered person could not be convicted of:

(a) buying knuckle-dusters (an offence under s 23 of the WP Act), if the item did not fit over two or more of the person's knuckles;

(b)   sending knuckle-dusters to another person (an offence under s 24(1)) if the item did not fit over the sender's (or, possibly, the receiver's) knuckles;

(c) manufacturing knuckle-dusters (an offence under s 25A of the WP Act) if it did not fit over his or her knuckles.

1. In each of these instances, the size of the person's fingers would mean that the article in question would not satisfy the definition of knuckle-dusters and would accordingly not be a prohibited weapon. The construction found by the Court below would have the effect of substantially narrowing the ambit of the definition of knuckle-dusters. In circumstances where Parliament has seen fit to criminalise the possession of prohibited weapons in the absence of a permit, consistent with the statutory "underlying principle" of ensuring and improving public safety and the purpose of strictly controlling possession of such weapons (s 3 of the WP Act), it makes little sense to prohibit a person with small fingers from possessing any article made of a hard substance that could be fitted over two or more of the person's knuckles and increase the effect of a punch or other blow, while at the same time permitting a person with larger fingers to possess the same article merely because the second person could not fit their fingers into it.

1. Such an article has the same potential to increase injury to members of the public if worn when delivering a blow. The construction preferred by the Court below would not promote the purpose of strictly controlling possession and use of prohibited weapons, whereas the construction for which the plaintiff contended does promote such a purpose.

The relevance of the circumstance that s 7 is a penal provision

1. The circumstance that the WP Act contains penal provisions does not attract different rules of construction. The present approach to the interpretation of penal statutes treats the rule that they should be strictly construed as one of last resort to be applied only where any ambiguity in a penal provision cannot be resolved by the application of ordinary aids to statutory interpretation: see Pearce and Geddes, Statutory Interpretation in Australia (7th ed., 2011) at [9.9]; and Waugh v Kippen [1986] HCA 12; 160 CLR 156 at 164. That the provision to be construed is a penal provision is merely part of the context which is relevant to the task of construction: Alcan (NT) v Territory Revenue [2009] HCA 41; 239 CLR 27 at 49.

1. I accept the plaintiff's submissions that the ambiguity arising as to the construction of "the user" in cl 2(19) of Sch 1 can be resolved by application of the ordinary principles of statutory construction, having regard to both contextual and textual considerations as well as the purposive approach required by the Interpretation Act 1987. I agree that it is not necessary to have regard to the strict construction rule as a matter of last resort.

Conclusion

1. It follows from the reasons given above, that the Court below misconstrued s 7 of the WP Act. It is not necessary, on a charge of possession, for the prosecution to prove that the knuckle-duster said to be in the possession of the defendant could actually fit on the defendant's hand. The defendant and the "user" referred to in the definition of knuckle-duster need not be the same person when the relevant charge is possession.

1. For the reasons set out above, I make the following orders:

1. Appeal allowed.

(1) Set aside the order of Atkinson LCM made on 5 July 2011 dismissing the proceedings against the Defendant for the offence of "possess prohibited weapon" in breach of s 7 of the Weapons Prohibition Act 1998.

(2)   An order that the matter be remitted to the Downing Centre Local Court to be determined according to law.

(3)   Make no order as to costs.

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Decision last updated: 11 April 2012