Fury v WA Police - [2024] WASC 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   FURY -v- WA POLICE [2024] WASC 153
CORAM:   LEMONIS J
HEARD:   29 JANUARY 2024
DELIVERED          :   2 MAY 2024
PUBLISHED           :   2 MAY 2024
FILE NO/S:   SJA 1063 of 2023
BETWEEN:   JOHN GREGORY FURY
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1063 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MAUGHAN
File Number            :   PE 9174/2023

Catchwords:

Appellant convicted of one offence of displaying insignia of an identified organisation, contrary to s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) - Consideration of what constitutes insignia under the applicable statutory provisions - Consideration of whether it was open to the learned magistrate on the evidence at trial to convict the appellant of the charged offence

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA)

Interpretation Act 1984 (WA)

Result:

Leave to appeal granted in respect of grounds 1 and 3
Leave refused in respect of ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S F Rafferty SC
Respondent	:	J D Berson

Solicitors:

Appellant	:	Tudori Hager Grubb
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Greenway v Lavers [2023] WASC 311
Holland v Jones (1917) 23 CLR 149
Larussa v The State of Western Australia [2023] WASCA 62
Le v Feakes [2018] WASC 331
Marinovich v The Queen (1990) 46 A Crim R 282
Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Cluse [2014] SASFC 97; (2014) 120 SASR 268
R v Garner; R v Webb [2021] SASCA 68
The State of Western Australia v Olive [2011] WASCA 25
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

LEMONIS J:

The appellant, Mr Fury, was convicted by the learned magistrate after trial of one offence of displaying insignia of an identified organisation in a public place, contrary to s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (the Act).
Mr Fury has a tattoo on the back of his head and neck which states 'CCMC West Coast'. The circumstances giving rise to the offence were that Mr Fury was in a pub, being a public place, and the tattoo was uncovered.
Broadly speaking, the prosecution case against Mr Fury was that the tattoo comprised or included insignia of the Coffin Cheaters organisation, which is an identified organisation under sch 2 of the Act. The prosecution case principally relied on evidence from a police officer as to 'CCMC' being an abbreviation for the Coffin Cheaters organisation.
Mr Fury now appeals against his conviction. The focus of the appeal is on the correct construction of the word 'insignia' where it appears in the Act, and on whether there was sufficient evidence before the learned magistrate to sustain a finding that the tattoo comprised or included insignia under the Act.
I am grateful to both counsel for the concise and precise manner in which they conducted the appeal.
I will start by explaining the framework within which the appeal is brought.

Appeal

The appeal is brought pursuant to s 7(1) of the Criminal Appeals Act 2004 (CA Act), Mr Fury being a person aggrieved by the decision of the learned magistrate to convict him. An appeal may be made on grounds that include:
1.the learned magistrate made an error of law or fact, or of both law and fact: s 8(1)(a)(i); and
2.there has been a miscarriage of justice: s 8(1)(b).
Leave of this court is required for each ground of appeal: s 9(1). Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding: s 9(2).
Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include dismissing it or allowing it. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of Mr Fury, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.[1]

Grounds of appeal

[1] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] ‑ [45].

There are three grounds of appeal, set out in an amended appeal notice dated 18 October 2023. The grounds are:
1.The conviction is unsafe and unsatisfactory in that an essential element of the offence charged was not proven by the Prosecution, that being that the words 'CCMC West Coast' indicated membership of, or an association with, an identified organisation.
2.The learned magistrate erred in law in admitting evidence at trial of the opinion of the police officer as to the meaning of 'CCMC West Coast'.
3.The learned magistrate erred in law in taking judicial notice that the 'CCMC West Coast' tattoo was gang insignia.
The principal ground relied on by Mr Fury is ground 1, which asserts that Mr Fury's conviction was unsafe and unsatisfactory. In considering whether the conviction was unsafe and unsatisfactory, I need to decide whether it was open to the learned magistrate on the evidence to convict Mr Fury of the charged offence.[2]
[2] See Greenway v Lavers [2023] WASC 311[17] - [18], applying Larussa v The State of Western Australia [2023] WASCA 62 [50] and The State of Western Australia v Olive [2011] WASCA 25 [44].
Mr Fury does not press ground 2.
In relation to ground 3, the learned magistrate in effect took judicial notice that the tattoo comprised insignia of an outlaw motorcycle group. The respondent's counsel accepts the learned magistrate erred in law by doing so. However, Mr Fury's counsel on the appeal accepts this does not result in the appeal being allowed. This is because the taking of judicial notice was not the primary reason given by the learned magistrate for finding Mr Fury guilty. The learned magistrate's primary reason relied on the entirety of the evidence adduced at trial. If that evidence is capable of sustaining the conviction, Mr Fury's counsel accepts the appeal does not succeed, notwithstanding success on ground 3.
I will now turn to the applicable principles of statutory construction. I will then set out the relevant statutory provisions and their general effect, summarise the events at trial, and finally, address the grounds of appeal.

Principles of statutory construction

The principles of statutory construction were recently summarised in the joint reasons for decision of the Court of Appeal in Prichard v M 6:8 Legal Pty Ltd.[3] Their Honours observed:[4]
This court recently reiterated the importance of statutory text to the exercise of statutory construction in Chief Executive Officer, Department of Water and Environmental Regulation v Waroona Resources Pty Ltd. Consistently with that discussion, statutory construction is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context. As the High Court observed in Zheng v Cai:
'It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws … the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy.' (citations omitted)
[3] Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4.
[4] Prichard [41].
Their Honours also observed that:[5]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.
Legislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions. Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted. … Nor is it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. (footnotes omitted)
[5] Prichard [43] ‑ [44].
Further, in the joint judgment of the High Court in Project Blue Sky v Australian Broadcasting Authority,[6] their Honours observed:
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. (footnotes omitted)
[6] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70].
Section 18 of the Interpretation Act 1984 (WA) provides that in the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether or not expressly stated) shall be preferred to a construction that would not do so.
Further, pursuant to s 19 of the Interpretation Act, I can have regard to the explanatory memoranda to the Act and the second reading speech to confirm that the meaning of the provision is the ordinary meaning conveyed by the text, taking into account context and the legislation's purpose or object. I can also have regard to this material to determine the meaning of a provision when it is ambiguous or obscure.
I will now turn to the relevant provisions of the Act governing the offence the subject of this appeal.

Relevant provisions of the Act

Section 25(2) of the Act provides that a person commits an offence if the person displays insignia of an identified organisation in a public place.
In Greenway, I considered the provisions of the Act relating to an offence contrary to s 25(2). In respect of the foundational aspects of the offence, and the objects and purpose of the Act, I stated:[7]
[7] Greenway [34] - [39].
The relevant offence is created by s 25(2), which appears in pt 3 of the Act. Part 3 has its own interpretation provision, which is s 21.
The objects of pt 3 are set out in s 23(2):
(a)to ensure that members of the public may lawfully use and pass through public places without experiencing fear or intimidation because of organisation‑related activity that has the potential to cause public harm; and
(b)to reduce the likelihood of public disorder or acts of violence in public places; and
(c)to reduce the membership of identified organisations, members of which might engage in organisation-related activity that has the potential to cause public harm.
The concept of potential to cause public harm the subject of s 23(2)(a) and (c) is defined in s 23(1) to mean the potential to:
(a)cause members of the public to feel threatened, fearful or intimidated; or
(b)have an undue adverse effect on the health or safety of members of the public; or
(c)increase the likelihood of public disorder or acts of violence.
Broadly speaking, the objects of pt 3 are directed to the protection of the public.
An offence under s 25(2) is committed if a person displays insignia of an identified organisation in a public place.
Section 21 provides that an identified organisation means an organisation named in sch 2 of the Act …
I adopt this analysis from Greenway.
The meaning of the word 'insignia' under the Act is critical to the disposition of this appeal.
Section 21 provides that the phrase 'insignia, of an identified organisation, has the meaning given in s 22'. Section 22 states:
(1)The following are insignia of an identified organisation -
(a)the name of the organisation;
(b)the logo or patch of the organisation;
(c)another image, symbol, abbreviation, acronym or other form of writing or mark that indicates membership of, or an association with, the organisation.
(2)In addition, the following are taken to be insignia of every identified organisation -
(a) the symbol '1%';
(b) the symbol '1%er'.
(emphasis in original)
Section 24 is also of importance - it sets out circumstances which constitute a deemed display contrary to s 25(2). Section 24 states:
(1)A person is taken to display insignia of an identified organisation in a public place if the person -
(a)wears, carries or otherwise possesses or controls a prohibited thing in a manner that insignia of an identified organisation would be visible to another person in the public place; or
(b)has a tattoo or other body marking that -
(i)comprises or includes insignia of an identified organisation; and
(ii)is left uncovered in a manner that insignia of an identified organisation would be visible to another person in the public place.
(2)Subsection (1) applies whether the thing or person marked with insignia of an identified organisation is physically -
(a)in the public place; or
(b)in some other place from where the insignia would be visible to another person in the public place.
(emphasis in original)
Section 21 defines the phrase 'prohibited thing' which appears in s 24(1)(a) to mean a thing marked with insignia of an identified organisation, not including a tattoo or other body marking.
As can be seen from s 24(2)(b), it is not necessary that the thing or person marked with insignia is physically in the relevant public place. It is sufficient if the thing or person is 'in some other place from where the insignia would be visible to another person in the public place'. It is however often the case that the person charged is in the relevant public place. That is the case here; Mr Fury was in the pub that is said to constitute the public place.
Sections 26(1) to (5) provide for certain defences to a charge under s 25(2). Each such provision starts with the words:
It is a defence to a charge of an offence under section 25(2) to prove that …
Such language conveys that the accused has an evidentiary and legal onus to prove the defence on the balance of probabilities. It is not for the prosecution to negative the defence.[8]
[8] See by analogy to s 417(2) of the Criminal Code (WA), Le v Feakes [2018] WASC 331 [31]. See also Western Australia, Parliamentary Debates, Legislative Assembly, 14 October 2021, 4512 (Mr JR Quiqley, Attorney General).
I will now briefly explain the nature of the case against Mr Fury, before turning to the trial and the learned magistrate's reasons.

The case against Mr Fury

The respondent does not contend that the tattoo constitutes the name, logo or patch of the Coffin Cheaters. Consequently, the tattoo does not constitute insignia within the meaning of s 22(1)(a) or (b) of the Act.
The case against Mr Fury relies on a combination of s 22(1)(c) and s 24(1)(b). Thus, the requisite elements of the offence which the prosecution needed to prove beyond reasonable doubt were as follows:
1.Mr Fury has a tattoo.
2.The tattoo comprises or includes an image, symbol, abbreviation, acronym or other form of writing or mark that indicates membership of, or an association with, the Coffin Cheaters (the relevant marks).
3.The Coffin Cheaters is an identified organisation under the Act.
4.The tattoo was left uncovered in a manner that the relevant marks would be visible to another person in the pub where Mr Fury was situated.
Mr Fury accepts that the entirety of his tattoo was left uncovered in a manner that the marks of the tattoo would be visible to another person in the pub. Mr Fury also accepts the pub is a public place and the Coffin Cheaters is an identified organisation under the Act. The sole issue is whether Mr Fury's tattoo 'comprises or includes an image, symbol, abbreviation, acronym or other form of writing or mark that indicates membership of, or an association with, the Coffin Cheaters'. This is the second element set out at [33(2)] above.
Mr Fury contends that to satisfy the second element it is necessary to prove that the tattoo comprised or included an abbreviation or acronym that indicated his membership of, or his association with, the Coffin Cheaters. As an alternative proposition, Mr Fury contends the evidence was not capable of demonstrating that the tattoo indicated membership of or an association with the Coffin Cheaters.

The trial and the learned magistrate's reasons

The trial was short. It started at 9.25 am and by 10.24 am, Mr Fury had been convicted, sentenced to a fine of $1,000 and ordered to pay the prosecution's costs.
The prosecutor's opening address was very brief. The prosecutor said 'It's a very simple case with one police witness'. He said the officer was off duty at the pub, sighted Mr Fury and took a photograph of him.
Mr Fury's trial counsel made an admission that identity was not in issue and otherwise did not give an opening address.
The prosecution called one witness, Acting Sergeant Waghorn.
In examination in chief, the Acting Sergeant said he was at the relevant pub at the time. He described Mr Fury's physical features, saying that Mr Fury had short-cropped dark hair and at the back of his head was a tattoo that said 'CCMC West Coast'. The Acting Sergeant was then asked 'And what do you know that tattoo to mean?'.[9]
[9] Trial, ts 5.
Mr Fury's trial counsel objected on the basis the prosecution had not demonstrated the Acting Sergeant's expertise such as to qualify him to give the evidence sought by the question. The learned magistrate ruled the prosecutor needed to establish the basis upon which the Acting Sergeant expressed his opinion.
The following exchange then occurred between the prosecutor and the Acting Sergeant:[10]
Acting Sergeant Waghorn, what are your policing experiences with outlaw motorcycle gangs?---Well, I've been WA Police for 27 years and probably the last 14 years, worked in specialist areas such as counterterrorism, internal affairs, state intelligence, and injury protection and now digital police.
Thank you. And have you come across abbreviations of different outlaw motorcycle gangs of their club abbreviations?---Yes.
Yes. Can you provide any examples to the court?---Well, obviously CCMC, the Coffin Cheaters.
[10] Trial, ts 6.

Mr Fury's trial counsel objected to this answer, submitting that:[11]
… to make the next leap that CCMC is Coffin Cheaters inherently, … would require an expert evidence of someone who has intimate knowledge of the outlaw motorcycle group as to what all the acronyms mean and what and how they're placed.
[11] Trial, ts 6.

The learned magistrate rejected the objection, saying that he disagreed the Acting Sergeant was 'not capable of giving that evidence'.[12]
[12] Trial, ts 7.
The Acting Sergeant was asked to 'tell [the court] more about' the tattoo. He explained that it was:[13]
… just on the back of his skull, head. Because of the short‑cropped hair and the time of day, sun, I could clearly see it was visible to me.
[13] Trial, ts 7.
The Acting Sergeant also said he took a photograph of the tattoo, which became exhibit 1 on the trial.
Mr Fury's trial counsel did not cross‑examine the Acting Sergeant. Mr Fury did not give evidence and did not call any witnesses.
The prosecutor did not give a closing address.
Mr Fury's trial counsel did give a closing address. He submitted that CCMC could have any number of connotations and there is no evidence that Mr Fury was actually a member of the Coffin Cheaters organisation. He referred the learned magistrate to s 22(1)(c) of the Act and said 'another image, symbol, abbreviation, or acronym needs to be classed as insignia'. He submitted that the learned magistrate could not be satisfied beyond reasonable doubt that CCMC is an acronym for the Coffin Cheaters.[14]
[14] Trial, ts 9.
The closing address by Mr Fury's trial counsel accepts that the prosecution case against Mr Fury relied on s 22(1)(c).
After a short adjournment, the learned magistrate delivered brief oral reasons as follows:[15]
Gregory John Fury comes to me before the court, charged that on 2 December 2022 at Perth, he displayed the insignia of an identified organisation, namely a CCMC tattoo on the back of his head in a public place. To the charge, he pleaded not guilty. The burden of proof is on the prosecution and prosecution have to prove the charge against Mr Fury beyond a reasonable doubt. Mr Fury doesn't have to prove anything in this proceeding. The only evidence in this proceeding is from Officer Waghorn who is a police officer of some 27 years experience.
He says that on 2 December 2022 at the … Pub which I find to be a public place, he saw the accused, the accused's identity having been conceded as part of the defence opening, and on the rear of the accused's head was a tattoo clearly depicting CCMC. Officer Waghorn, a police officer of 27 years experience, offered the opinion that that was the insignia of an outlaw motorcycle gang, a prescribed outlaw gang for the purpose of the legislation, namely the Coffin Cheaters. In my view, Officer Waghorn is entitled to give that evidence.
Opinion evidence can be called on matters which are the subject of a witness's study or knowledge. He's a police officer of 20 years experience who has been dealing with - and I will use the expression - 'outlaws' for 27 years and did protective [crime] for a period of 27 years. In my view, as I said, he has the capacity to give the evidence which he gave. In any event, even if that's not the case, in my view, I'm entitled to take judicial notice of notorious facts. The State of Western Australia - so WAPD - The State of Western Australia [1998], a decision of the Court of Appeal which said that the court can have regard to its own knowledge and research.
As a magistrate who has been presiding in this court for approximately 12 years, a criminal defence lawyer for 15 years prior to that, in my view I am entitled to take judicial notice from my own knowledge and research. And in my view, the insignia is an insignia of an outlaw motorcycle gang. There will be a judgment of conviction entered.
[15] Trial, ts 9 - ts 10.
There are some difficulties with these reasons. As I have already explained, the learned magistrate erred in taking judicial notice that the 'insignia is an insignia of an outlaw motorcycle gang'. While there is a little uncertainty regarding the precise formulation of the applicable criteria for taking judicial notice of a notorious fact,[16] one thing is clear: it does not arise from the knowledge of one person. A generally accepted formulation is that 'wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court "notices" it …'.[17] The learned magistrate's finding was based on his Honour's own personal knowledge, not that of the broader community. The respondent's counsel quite properly conceded this was an error of law.
[16] See Heydon J, Cross on Evidence (14^th ed, 2024) [3015].
[17] Holland v Jones (1917) 23 CLR 149, 153.
Also, the learned magistrate described the Acting Sergeant's evidence as constituting an opinion that CCMC was the insignia of the Coffin Cheaters. However, the Acting Sergeant's evidence was not opinion evidence. Rather, it was directed to what he had observed in his experience as a police officer regarding abbreviations of outlaw motorcycle gangs.
Evidence given by a police officer based on their professional experience may constitute expert or opinion evidence, or it may also involve factual evidence of personal experience and observation.[18] In this case, as Mr Fury's counsel accepted, the Acting Sergeant's evidence was factual evidence of his observations as a police officer regarding abbreviations of outlaw motorcycle clubs. It was not expert or opinion evidence. [19]
[18] Marinovich v The Queen (1990) 46 A Crim R 282, 301; R v Cluse [2014] SASFC 97; (2014) 120 SASR 268 [2] - [15] (Kourakis CJ), [113] (Kelly J agreeing); R v Garner; R v Webb [2021] SASCA 68 [36].
[19] Appeal, ts 12 - ts 14.
Notwithstanding these difficulties with the learned magistrate's reasons, the appeal turns on ground 1. In this respect, counsel for each of Mr Fury and the respondent accepted that the appeal would only succeed if I found the evidence was not capable of sustaining the conviction. If I came to that view, the respondent accepts that the conviction should be set aside and an acquittal entered.[20]
[20] Appeal, ts 25.
I turn now to ground 1.

Ground 1

Mr Fury's primary point in respect of ground 1 concerns the proper construction of s 22(1)(c) of the Act.
Given its significance to this appeal, I will again set out s 22(1):
The following are insignia of an identified organisation -
(a)the name of the organisation;
(b)the logo or patch of the organisation;
(c)another image, symbol, abbreviation, acronym or other form of writing or mark that indicates membership of, or an association with, the organisation.
Consistently with how I have defined the elements at [33] above, for simplicity sake I will use the phrase 'relevant mark' or 'relevant marks' as shorthand for the phrase 'another image, symbol, abbreviation, acronym or other form of writing or mark' that appears in s 22(1)(c).
The issue of construction is whether the definition of insignia in s 22(1)(c) requires that the relevant mark indicates the accused's membership of, or association with, the organisation, or whether it is sufficient for the relevant mark to indicate membership of, or an association with, the organisation in a general sense.
So, transposing the issue to this case, does the prosecution need to prove that the relevant marks of the tattoo indicate Mr Fury's membership of, or association with, the Coffin Cheaters, or is it sufficient for the prosecution to prove that the relevant marks of the tattoo indicate membership of, or association with, the Coffin Cheaters in a general sense?
Mr Fury's counsel suggests the other types of insignia defined by s 22 support his argument. He points out that s 22(1)(a) and (b) do not include the phrase 'indicates membership of, or an association with, the organisation' which appears in s 22(1)(c).
Mr Fury's counsel submits that s 22(1) is organised in such a way that where the relevant insignia is constituted by the name, logo or patch of the organisation, then that is sufficient to constitute insignia irrespective of whether it connotes the relevant person's membership or association. This is because the display is of features that are definitively associated with the organisation.
Mr Fury's counsel submits that where there is not that definitive association, the relevant marks must indicate the person's membership of, or association with, the identified organisation. As I understand it, the submission is that the concepts of membership or association are personal in nature and therefore the section requires a personal connection between the accused and the relevant mark.
Thus, on Mr Fury's argument the phrase at the end of s 22(1)(c) would be construed to mean the person's membership of, or the person's association with, the organisation.
The respondent submits that s 22(1)(c) is directed to the relevant mark itself, not to the person displaying it. The respondent submits that the objects of pt 3 are directed to the potential impact of the insignia being displayed, which does not necessitate a connection between the insignia and the person displaying it. The respondent also says that the word 'indicates' conveys that the relevant marks 'point to' such membership or association and does not require that any such membership or association is proven.

Disposition

Section 22 is found in pt 3 of the Act. Section 23(2) sets out separate objects for that part of the Act.
As I observed in Greenway, broadly speaking the objects of pt 3 are directed to the protection of the public.
In my view, a particular focus of s 25(2) is to remove, or minimise, the potential effect that the display of insignia may have on persons in a public place. The display of insignia may cause fear to members of the public. It may also bring about reactions by people who are aligned with, or against, the relevant organisation. For example, those aligned against a particular organisation may take umbrage at the display of a rival's insignia. Those aligned with the organisation whose insignia are displayed may take umbrage because they believe the person conducting the display is falsely representing an association with, or is denigrating, that organisation. Understood in that way, s 25(2) is directed to the effect of the insignia being displayed.
The defences provided by s 26 assist in the proper interpretation of s 25(2) and the defined phrases used in it. Before turning to the pertinent defences, it needs to be remembered that a defence only arises for consideration if the conduct in question would, but for the defence, constitute an offence under s 25(2). And, the onus is on an accused to make out the defence on the balance of probabilities.
The defence provided by s 26(1) makes clear that an offence against s 25(2) can be committed by someone who does not have, or does not present as having, a possible connection to an identified organisation.
Section 26(1) states:
It is a defence to a charge of an offence under section 25(2) to prove that the display was -
(a)for any of the following purposes -
(i)a genuine artistic or educational purpose;
(ii) law enforcement;
(iii) the performance of a legal practitioner's functions or the receipt of legal advice;
and
(b) in the circumstances, reasonable for that purpose.
As can be seen, the defence requires that the display was for one of the legitimate purposes identified in paragraph (a) and in the circumstances, was reasonable for that purpose. Accordingly, s 26(1) recognises that a person who is engaging in a legitimate activity, such as a genuine artistic or educational purpose, can still commit an offence if they do not prove that in the circumstances their display of the insignia was reasonable for that purpose. It follows that a person who does not have, or does not present as having, a possible connection to an identified organisation can commit an offence under s 25(2).
The second reading speech confirms that s 25(2) operates in the way I have just described. The Attorney General said:[21]
… a number of defences contained at clause 26 will ensure the operation of the offence is consistent with the objects of this part and members of the public do not face the risk of significant criminal penalty for reasonable conduct. All the statutory defences to the prohibited insignia offence place an onus on the accused to prove, on the balance of probabilities, that a defence exists. The defences will afford appropriate protection to police and other investigators, prosecutors and other lawyers, the media and any genuine artistic or educational use of insignia. Defences will also be available to protect members of the community who can prove that they unwittingly displayed insignia of an identified organisation, either by not knowing it was displayed or not knowing that it was the insignia of an identified organisation. (emphasis added)
[21] Western Australia, Parliamentary Debates, Legislative Assembly, 14 October 2021, 4512 (Mr Quigley, Attorney General).
The persons described in the underlined text would not ordinarily have, or present as having, a possible connection to an identified organisation.
The defence provided for by s 26(4) is also of relevance. It provides that it is a defence for an accused to prove that the insignia was being displayed only:
(a)to indicate membership of, or an association with, an organisation other than an identified organisation; or
(b)for a purpose or meaning other than as insignia of an identified organisation.
The phrases 'to indicate' and 'for a purpose' are directed to the accused's motivation for engaging in the relevant display. Section 26(4) expressly directs attention to an accused's affiliations, requiring the accused to prove that the display was for a purpose unrelated to an identified organisation. This is to be contrasted with the language of s 25(2), which does not expressly direct attention to such matters.
Moving then to the definition of insignia in s 22.
The language used in s 22(1)(c) is not directed to the relevant marks indicating a connection between the person displaying them and the identified organisation. Rather, it is directed to a connection between the relevant marks and the identified organisation. This is consistent with the purposes of the legislation as I have outlined. Thus, the text does not favour Mr Fury's interpretation.
Further, I do not agree that the structure of s 22(1) supports Mr Fury's construction. Section 22(1)(a) and (b) reflect that certain markings are of such an obvious nature they are deemed to indicate a connection with the organisation and thus be insignia. Those markings are the name, logo or patch of the organisation. Section 22(1)(c) is then a 'catch all' type provision, that catches other markings which also convey a relevant connection with the organisation.
Section 22(1)(c) also picks up potential changes over time as to how an identified organisation might present itself, such changes being picked up without the need for any legislative amendment. This was recognised in the second reading speech, where the Attorney General said:[22]
… the definition of insignia in clause 22 will ensure all insignia of identified organisations are captured now and into the future.
…
The definition will capture insignia even if an identified organisation changes or adopts additional insignia after the bill is passed.
[22] Western Australia, Parliamentary Debates, Legislative Assembly, 14 October 2021, 4512 (Mr Quigley, Attorney General).
The purpose of s 22(1)(c) is to ensure that all insignia, both current and future, are captured. That purpose is not conditional upon the relevant marks indicating the accused's connection to an identified organisation.
Bringing these matters together, in my view the following four factors in combination point strongly against Mr Fury's construction:
1.The purpose of the legislation is to ameliorate the impact on the public from the display of insignia, irrespective of whether there is any apparent connection between the insignia and the person displaying it.
2.The legislation recognises that an offence under s 25(2) can be committed by a person who does not have any apparent connection to an identified organisation.
3.The text of the legislative provisions creating the offence are directed to a connection between the relevant marks and the identified organisation. The language of the offence provisions does not refer to the need to establish any apparent connection between the accused and the identified organisation. It is the defence provided by s 26(4) that introduces the topic of the accused's motivation for the display, requiring the accused to prove their motivation for the display was for a purpose unrelated to an identified organisation.
4.The intended purpose of s 22(1)(c) is not conditional upon the relevant marks indicating the accused's connection to an identified organisation.
For these reasons, I do not accept Mr Fury's construction that s 22(1)(c) requires the prosecution to prove that the markings of the tattoo indicated Mr Fury's membership of, or association, with the Coffin Cheaters.
However, this does not mean that the relevant mark constitutes insignia simply because it is an abbreviation of the first letters of the name of an identified organisation. Section 22(1)(c) not only requires that there be an abbreviation, but also that the abbreviation indicates membership of, or an association with, the organisation. Ordinarily, an abbreviation per se would not be sufficient to satisfy that requirement and it would be necessary to lead evidence that such an abbreviation is used by those who are members of, or associated with, the organisation.
Further, in my view, other features of the relevant mark may assist in assessing whether or not it indicates a membership or association with the organisation. In particular, the characteristics of the mark may assist in assessing whether it is indicating a subject matter of significance, which may then point to it indicating a membership or association.
I turn now to the second proposition Mr Fury put forward. Mr Fury contends that irrespective of his success on the construction point, the evidence was not capable of demonstrating that the tattoo indicated membership of or an association with the Coffin Cheaters.
Mr Fury's proposition is that to prove the charge it was necessary to adduce expert evidence as to how it was that a tattoo with the abbreviation CCMC indicated the requisite membership or association. Mr Fury's counsel suggested that the expert evidence would need to be along the lines of:[23]
… people who join these particular organisations will ordinarily get tattoos that mark their - or that identify themselves as either members or associates of the organisation.
[23] Appeal, ts 27; see also ts 12 - ts 13.
However, with respect, I think the submission conflates tattoo with insignia. The definition of insignia does not use the word tattoo. Rather, tattoo is used in the deemed display provision at s 24(1)(b), namely the person 'has a tattoo … that comprises or includes insignia'. It is not necessary that the tattoo be the insignia. The section is directed to whether the relevant marks of the tattoo constitute insignia. The same rationale applies to a 'prohibited thing' used in the deemed display provision at s 24(1)(a) - see [27] above. It is not necessary that the 'thing' constitutes insignia. Rather, the 'thing' is a 'prohibited thing' because it is marked with insignia.
It was therefore not necessary for the prosecution to adduce expert evidence that tattoos are a form by which people will mark their membership or association with the Coffin Cheaters organisation.
As to the evidence that was before the learned magistrate, it comprised the Acting Sergeant's evidence and the photograph of the tattoo which became exhibit 1.
For ease of reference, I will set out again the relevant parts of the Acting Sergeant's evidence:
Acting Sergeant Waghorn, what are your policing experiences with outlaw motorcycle gangs?---Well, I've been WA Police for 27 years and probably the last 14 years, worked in specialist areas such as counterterrorism, internal affairs, state intelligence, and injury protection and now digital police.
Thank you. And have you come across abbreviations of different outlaw motorcycle gangs of their club abbreviations?---Yes.
Yes. Can you provide any examples to the court?---Well, obviously CCMC, the Coffin Cheaters.

The Acting Sergeant's evidence starts by describing his policing experience with outlaw motorcycle gangs. He is then asked whether he had 'come across abbreviations of different outlaw motorcycle gangs of their club abbreviations'. The effect of the question is the Acting Sergeant was being asked whether he had come across abbreviations used by outlaw motorcycle gangs for their club. The question was not directed to abbreviations that other people might have used for the club.
Against that lead up, in my view, the Acting Sergeant's final answer 'CCMC, the Coffin Cheaters' conveys that CCMC is an abbreviation used by the Coffin Cheaters for their club. As I have explained earlier, this is not expert evidence, but is factual evidence based on the Acting Sergeant's experience. This evidence was not challenged in cross-examination.
Further, I have viewed the photograph of the tattoo. The markings of the tattoo are large in size and are placed in a prominent position on the back of Mr Fury's head and neck. These characteristics convey that the subject matter of the marks is of significance.
In my view, the Acting Sergeant's evidence that CCMC is an abbreviation used by the Coffin Cheaters for their club, taken together with the markings of the tattoo conveying a subject matter of significance, is such that the tattoo clearly comprises or includes an abbreviation that indicates an association with the Coffin Cheaters.
That is sufficient to make out the charge. The prosecution also relied on the text 'West Coast' appearing below 'CCMC' as indicating an association with the Western Australian chapter of the Coffin Cheaters. However, it is unnecessary to decide whether that is the case.
At trial, Mr Fury did not seek to rely on any of the available defences. Specifically, he did not seek to prove on the balance of probabilities that the relevant marks of the tattoo were being displayed only:
1.to indicate membership of, or an association with, an organisation which is not an identified organisation; or
2.for a purpose or meaning other than as insignia of an identified organisation.
Ultimately, in my view, not only was the evidence capable of sustaining the learned magistrate's finding of guilt, but the evidence established Mr Fury's guilt beyond reasonable doubt. Ground 1 is therefore not made out. I will grant leave to appeal in respect of ground 1, because I think the question of construction raised by Mr Fury's counsel was arguable.
I do not grant leave to appeal in respect of ground 2. I grant leave to appeal in respect of ground 3 as the complaint made by that ground is made out, although it does not result in success on the appeal.
I will make one last comment. In a prosecution that relies on s 22(1)(c) of the Act, I think there is much benefit in the prosecutor outlining how it is that the relevant mark constitutes insignia. Preferably, this should be done in opening. Doing so will assist the magistrate hearing the trial and will provide clarity to the accused and their counsel (if any). It may also assist in determining the relevance of evidence adduced in the trial.
The final result is as follows:
1.Leave to appeal is granted in respect of grounds 1 and 3.
2.Leave to appeal is refused in respect of ground 2.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Lemonis
2 MAY 2024