John v Police No. Scciv-02-210

[2002] SASC 112
JOHN V POLICE
Magistrates Appeal (Criminal)

LANDER J. The appellant was charged on complaint that on 18 June 2001 at Inman Valley in South Australia, without reasonable cause, he discharged a firearm so as to frighten a person contrary to s 51(1) of the Summary Offences Act 1953 (SA) (the Act). Section 51(1) of the Act provides:
“(1)A person who discharges a firearm or throws a stone or other missile, without reasonable cause and so as to injure, annoy or frighten, or likely to injure, annoy or frighten, any person, or so as to damage, or be likely to damage, any property, is guilty of an offence.
Maximum Penalty: $10,000 or imprisonment for 2 years.”
The appellant, who was unrepresented, pleaded not guilty but after a trial before a Magistrate he was convicted. A fine of $350 together with court fees in excess of $500 was imposed and an order was made that the appellant be disqualified from holding or obtaining a firearms licence for a period of three years.
The appellant has appealed against both the entry of the conviction and against the sentence which was imposed.
The Magistrate who heard this matter at the outset directed himself as to the elements of the offence. He said:
“In order to prove the offence, the prosecution must prove beyond reasonable doubt that the defendant discharged a firearm, that he did so with a specific intention of frightening any person, or that he did so persons were frightened by the discharge of the firearm. In addition they must prove that he had no reasonable cause for that conduct.”
Regrettably the Magistrate, in so directing himself, fell into error. The prosecution did not have to prove that the appellant discharged this firearm with the specific intention of frightening the victim, nor did the prosecution have to prove that he did so with reckless indifference as to whether any person or persons were frightened by the discharge of the firearm.
Moreover, it was wrong of the Magistrate to direct himself that the prosecution had to prove that the appellant had no reasonable cause for that conduct.
The elements of this offence were discussed in the judgment of the Full Court in Rowe v Manevski & Another (1994) 62 SASR 468. In that case Perry J said in discussing a similar charge, that the onus is upon the prosecution to establish first that the appellant discharged the firearm and secondly, that he did so to injure the victim. He said that if the prosecution proved those two elements, the onus fell upon the appellant in that case to establish, on the balance of probabilities, that the discharge of the firearm was done with reasonable cause. Perry J reached that conclusion by having regard to s 51(1) and s 5 of the Act. Section 5 of the Act provides:
“5Subject to any provision to the contrary, where this Act provides that an act done without lawful authority, without reasonable cause, without reasonable excuse, without lawful excuse or without consent constitutes an offence, the prosecution need not prove the absence of lawful authority, reasonable cause, reasonable excuse, lawful excuse or consent, and the onus is upon the defendant to prove any such authority, cause, excuse or consent upon which he or she relies.”
The prosecution does not have to prove the absence of lawful authority, reasonable cause, reasonable excuse, lawful excuse or consent and the onus is upon the defendant to prove any such authority, cause, excuse or consent upon which he or she relies.
Clearly enough, the interaction of those two sections leads to the conclusion reached by Perry J.
It is apparent from the Magistrate’s reasons that he was not referred to the decision of the Full Court or to s 5 of the Act. The Magistrate therefore fell into error in determining what onus lay upon which of the parties to establish the elements of the offence.
Ms Lee-Justine, who appeared for the respondent, accepted that the Magistrate had fallen into error.
Mr Tothill, who appeared for the appellant, argued that not only had the Magistrate misdirected himself as to the elements of the offence and the onus upon the parties, but the Magistrate had failed to conclude, as he should have, that one of the elements was not established.
There is no doubt that the appellant had discharged his firearm on two occasions on that day. However, Mr Tothill argued that there was no evidence to establish that the discharge of the firearm frightened the alleged victim.
The prosecution case revolved around three witnesses. A Ms Evans, who is a neighbour of the appellant and who lives with the second witness Mr Brock. Ms Evans was put forward as the victim. Ms Evans is well known to the appellant as they had previously enjoyed a relationship, but now there is considerable acrimony between them. Ms Evans said that while she and Mr Brock were out on their property which is on the opposite side of the road to the appellant’s property and whilst haltering horses, she heard the appellant discharge a shotgun twice. She said on the second occasion the discharge caused the horse which she was holding to become frightened and to run. She was obliged to run with the horse to restrain it and to prevent it getting away from her. She was asked in her evidence:
“Q You say the horse took off. What actually happened then?
AWell, he just took off, got a fright, of course, because he is young and when a young horse gets away you don’t keep them up really short, he just got the length of rope and went. I tried to hang on to him but let him go eventually after being dragged quite a while.
QHow far were you dragged?
AProbably 50 feet. I sort of ran with him, trying to pull him up and then I sort of let the rope go and he just ran into the corner that’s corralled off. Had that not been there he would have taken off with the rope flying and anything could have happened.
QAs a result of the horse reacting as it did, were you injured at all?
ANo, just pulled me around a bit. My back and shoulders and arms were nothing.
HIS HONOUR
QSo this colt really had a halter on, did he?
AYes, we were bringing him in, he had a halter on and a fairly thick lead rope.
QAs a result of that, were you given a fright or scared?
AYes, of course, but it is just the fact that I am dealing with other people’s horses and I was angry because I mean these horses are worth a lot of money, yes, I was angry.
QThe horse itself obviously reacted because of the shotgun blast.
ADefinitely, yes.
QDid you speak to Mr John at all?
AYes, I turned around and I abused him. I mean, it just wasn’t necessary to do what he did.
QDid you have any belief about his intentions as far as discharging that shot?
AYes, it was a deliberate act to upset the horse and Gary and I - ”
The last question and answer of course are clearly inadmissible.
Mr Tothill, however, said that there was no other evidence apart from that, which could have satisfied proof of fright on the part of the victim. He said that the evidence to which I have referred did not of itself satisfy proof of fright.
The prosecution did ask the victim if she was given a fright or scare but he, in asking that question, related that to the behaviour of the horse. The question read:
“As a result of that, were you given a fright or scare?”
In my opinion, there was no evidence sought to be led from the victim that she was frightened as a result of the discharge of the firearm. The only evidence sought to be led was that she was frightened as a result of the behaviour of the horse. In any event I am not satisfied that her answer to that question is evidence of any fright at all. Whilst she answered the question:
“Yes, of course.”
She then went on to say:
“Yes, I was angry.”
I accept the submission made by Mr Tothill that the prosecution did not prove, beyond reasonable doubt, the second element of the offence.
The appellant also complained that on the finding made by the Magistrate that he should have found, on the balance of probabilities, that there was a reasonable cause for the discharging of the firearm. Having regard to my finding in relation to the failure by the prosecutor to prove the second element of the offence, I need not consider that further ground of appeal.
It was accepted by the respondent on this appeal and rightly in my opinion, that if I concluded there was insufficient evidence for proof of the second element of the offence, the proper order was to allow the appeal and to enter a verdict of not guilty on the complaint.
The orders of the Court will be:
1 Appeal allowed.
2The conviction is set aside; the sentence imposed on the conviction is set aside; the order disqualifying the appellant from holding or obtaining a firearms licence for a period of three years is also set aside.
3A verdict of not guilty will be entered on the complaint.
4The respondent to pay the appellant’s costs of the trial which I fix at $100 and of the appeal which I fix at $1,100.

[2002] SASC 112

2 April 2002