Hogan v Wright
[2010] WASC 305
•19 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HOGAN -v- WRIGHT [2010] WASC 305
CORAM: McKECHNIE J
HEARD: 19 OCTOBER 2010
DELIVERED : 19 OCTOBER 2010
FILE NO/S: SJA 1072 of 2010
BETWEEN: BRIAN ANTHONY HOGAN
Appellant
AND
RAYMOND PAUL WRIGHT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HEANEY
File No :PE 16960 of 2010
Catchwords:
Criminal law - Ready access simultaneously to weapons and drugs - Meaning of lien - Lawful excuse - What constitutes
Legislation:
Criminal Code (WA), s 68E
Result:
Appeal allowed
Conviction quashed
Category: B
Representation:
Counsel:
Appellant: Ms K J Farley
Respondent: Mr A M Dungey
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hancock v Birsa [1972] WAR 179
Wilson v McDonald [2009] WASCA 39; (2009) 193 A Crim R 80
McKECHNIE J:
How this appeal comes about
On 5 February 2010 police executed a search warrant on Mr Hogan's house in Embleton by hammering in the door. During the search, which was recorded on video, they seized quantities of cannabis, ammunition a .270 calibre rifle, a crossbow and crossbow bolts.
Mr Hogan was not at home when the police arrived but came home during the search. The rifles were in a firearms safe. The bolts for the rifles were not with the rifles, but under Mr Hogan's bed in his bedroom. The key to the firearms safe was on the kitchen table. The bow was hanging off the curtain rail in Mr Hogan's bedroom. The rifles were unloaded though there was ammunition near them. The crossbow bolts were in a postal package received from an archery park, and these bolts were in plastic containers.
There was no issue that Mr Hogan was in possession of cannabis, or that he had a firearms licence that covered the three rifles. He pleaded guilty to a series of offences relating to cannabis and unsafe storage of firearms.
The charge
Relevantly he was charged as a person who, without lawful excuse, has ready access simultaneously to both a dangerous or offensive weapon or instrument; and a prohibited drug: Criminal Code (WA) s 68E. Mr Hogan pleaded not guilty and was convicted after trial.
The issues raised
There are three issue raised on appeal, but I only need to deal with two of them. Did Mr Hogan have ready access simultaneously to both a dangerous weapon and a prohibited drug? No. Did the appellant have a lawful excuse for having simultaneous ready access to both a dangerous weapon and a prohibited drug? Yes.
Criminal Code s 68E
The Criminal Code was amended to add s 68E by the Acts Amendment (Weapons) Act 2009 (WA). The purpose was described in the second reading speech in this way:
In all these cases in which the Criminal Code is to be amended, the onus will be on the accused to prove that he had a lawful excuse. In the past, it has been too easy for people to explain away their reasons for being armed. This will no longer be the case.
Another issue that will be addressed is those people who arm themselves to further their illicit activities in the drug trade. Certain people in our community are taking advantage of attending places of public entertainment, including Northbridge, to sell and supply illicit drugs. To assist with this activity, they are arming themselves with weapons for protection and to intimidate and threaten others. We want to remove both these elements. The message is clear: if a person is caught carrying a prescribed amount of cash - $3,000 - and a dangerous or offensive weapon without a lawful excuse, that person will be liable to imprisonment for five years. Equally, if the person is carrying both weapons and illegal drugs, the same penalty will apply.
In the trial court a submission was made that Mr Hogan had a lawful excuse. This may have clouded rather than focused attention on the first issue which was whether the prosecution had proved the elements of the offence. If the prosecution proves the elements of the offence the onus shifts to an accused to prove that he or she had a lawful excuse: s 68A(1).
The elements of the offence are:
•a person;
•who has ready access;
•simultaneously;
•to both a dangerous or offensive weapon or instrument;
•and a prohibited drug, or prohibited plant.
The word 'ready' is defined in the Macquarie Dictionary as including, 'completely prepared for or in due condition for immediate action or use … immediately available for use … present or convenient (to hand …)' 'Access' means what it says. 'Simultaneous' means, 'existing, occurring, or operating at the same time'.
Did Mr Hogan have ready access to anything?
The prosecution notice alleged that the offence occurred on 5 February 2010. It is hard to accept that Mr Hogan had ready access to anything on that day. He was not at home when the police first arrived. When Mr Hogan did arrive, he could not be described as having ready access to his firearms or his drugs.
In this respect the position is immediately different from those for whom the legislation appears to have been chiefly directed, that is a person who was stopped by police and found to be in possession of drugs and a weapon on or close to them.
The use of the word 'simultaneous' is important. In colloquial terms it means that a person can put their hands readily on a weapon and drugs to intimidate or defend. Leaving this to one side, however, because the date is particular, I turn to the next question.
Did Mr Hogan have access to a dangerous weapon?
Mr Hogan did not have ready access to a dangerous weapon or offensive instrument. By themselves the rifles were not dangerous, at least until the insertion of the bolt and ammunition. The same applies to the crossbow. The crossbows bolts were still in a parcel, wrapped in plastic.
The immediacy required by s 68E, by the use of the words 'ready access' and 'simultaneously' is not eventual access, or access after a short time. It is, of course, a matter of fact and of degree in every case. A court cannot lay down a conclusive principle as to what constitutes 'ready access simultaneously', but can decide whether it exists in a particular case.
In this case, the evidence is insufficient to sustain proof beyond reasonable doubt that Mr Hogan had ready access to dangerous weapons. The most that could be said is that he would have had eventual access to them.
Did Mr Hogan have a lawful excuse?
The Criminal Code does not define 'lawful excuse' for the purpose s 68E. The expression 'lawful excuse' is, however, one well known to the law. In Wilson v McDonald[2009] WASCA 39; (2009) 193 A Crim R 80, it was held that it is impossible to define the phrase comprehensively. However, one useful definition can be found in Hancock v Birsa [1972] WAR 179. Hale J dealt with the meaning of 'lawful excuse' concluding:
In all the circumstances is the excuse offered adequate to free the defendant from liability to punishment? In my opinion, in the context of this section 'without lawful excuse' is a compendious method of saying 'without an excuse which would appear to a reasonable man to be adequate in the circumstances.
In Wilson v McDonald the Chief Justice conducted a comprehensive analysis of the authorities on the expression dealing, however, chiefly with lawful excuse in relation to trespass, that being the matter in subject. He also analysed the Criminal Code and said:
It follows that in five of the six provisions of the Criminal Code in which the expression 'without lawful excuse' is used, it is clear that the word 'lawful' means 'not forbidden' rather than 'expressly authorised'. There is no reason to think that the legislature intended the expression to bear any different meaning in s 70A. In the sixth provision of the Criminal Code using 'without lawful excuse', the legislature has expressly stipulated that the expression is to be equated with a defence to civil proceedings. No such stipulation has been included within s 70A [58].
The Criminal Code section 68E was added after Wilson v McDonald, but the logic of the Chief Justice's analysis, particularly [58], generally must nevertheless apply to it. The lawful excuse must be having ready access simultaneously to weapons and drugs. There is no basis on the evidence, nor would there generally be a lawful excuse for possession of a prohibited drug.
Weapons, however, are a different matter. For example, some weapons may be licensed. Mr Hogan's firearms were licensed, that is, he had a lawful excuse to possess them. The crossbow was unlicensed. However, in the circumstances of this case the magistrate accepted that Mr Hogan had possession of the crossbow for hunting and shooting at trees on a property.
The magistrate accepted that explanation because there was no cross‑examination on it and no other evidence, but in view of his interpretation of s 68E considered that the explanation did not provide a lawful excuse. However, in my opinion it does provide an explanation adequate to a reasonable person as to why Mr Hogan was in possession of the crossbow in the house, and an explanation unrelated to his possession of the drugs.
There being no other evidence, I find that Mr Hogan proffered an explanation which amounted, on the balance of probabilities, to a lawful excuse. As I say, the magistrate accepted the explanation but simply rejected it as an excuse because of his interpretation of the section.
A combination of a valid reason for possession of the crossbow, together with lawful possession of the firearms, in the circumstances of this case, meant that Mr Hogan had a lawful excuse for being in possession of weapons and drugs in close proximity to each other.
The magistrate's view: 'You cannot have two of them in the one house. So if you have got one you'd better get rid of the other', gives no scope to the operation of a lawful excuse where one might exist. The respondent's submissions mirror the finding of the magistrate, but I do not accept that finding. As an example, knives can be found in every kitchen. They may be dangerous weapons and are certainly offensive weapons, or capable of being offensive weapons, but surely the Criminal Code s 68E was not intended to catch every householder who has illegal drugs in the house. Such would be the reach of s 68E if a lawful excuse for both weapons and drugs was required.
In my opinion, criminal responsibility will be negated if ready access to either drugs or weapons is excused. This I hold to be consistent with an interpretation which should be strictly within the terms of a criminal statute.
In view of the answers to the first two issues I do not need to decide the amended ground.
Conclusion
I allow the appeal and quash the conviction.
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