SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MA v POLICE
[2020] SASCFC 99
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)
23 October 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES
The appellant, Mr Zhining Ma (Ma), has a genuine interest in police and police forces and is an avid collector of police paraphernalia. Since 2013, he has been employed as a Protective Security Officer (PSO). He is not a police officer.
On 27 July 2017, Ma was charged on Complaint (in one count only) that he: on the 14th day of July 2017 at Bellevue Heights, South Australia, without lawful excuse, had possession of a police uniform and police property contrary to s 74(2) of the Police Act 1998 (the Police Act). The “police uniform” was a short sleeved black shirt with SAPOL markings (the shirt) and the “police property” was a card in the form of a Police Identification Card (the card).
Ma pleaded not guilty. The Magistrate found the charge proven as to both items and imposed a fine of $500 without recording a conviction. Ma appealed to a single Judge of this Court. The single Judge rejected all grounds of appeal and dismissed the appeal. He later granted the appellant permission to appeal to this Court on the following grounds:
A. His Honour had not addressed the appellant’s submission that he was not aware of the existence of the shirt and that the prosecution had not made any attempt to prove that he was aware of such existence;
B. His Honour had not addressed the appellant’s submission that the prosecution bares the onus of proving that the appellant had acted without lawful excuse;
C. His Honour had not addressed the appellant’s submission that the term “lawful” and “lawful excuse” in the Police Act shall follow the general rule of being “not forbidden” rather than a narrow meaning of “positively authorised”; and
D. His Honour erred in ruling that there is no duplicity issue with the original charge.
The appellant was given permission to rely on a further two grounds of appeal that had been put before the single Judge, but had not been replicated in his present Notice of Appeal:
3. It is raised as a question of law whether the card can be deemed a “police property” so defined by law; and
4. It is raised as a question of law whether the shirt can be deemed a “police uniform” so defined by law.
Held per Peek J (Kourakis CJ and Stanley J agreeing) allowing the appeal; setting aside the finding of guilt; and dismissing the Complaint without re-trial:
1. The card was not “police property” within s 74 of the Act and the Magistrate’s finding concerning the card must be quashed. Police Act 1863 (SA) ss 26, 28; Police Act 1869-70 (SA) ss…
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- MA v Police [2020] SASCFC 99
- Case
- [2020] SASCFC 99
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court were whether the Magistrate had erred in finding that the identification card and shirt were "police property" under the *Police Act* and whether the appellant had a lawful excuse for possessing these items. The appellant contended that the Magistrate had mistakenly applied case law, leading to an erroneous ruling on both the definition of police property and the existence of a lawful excuse.
The Full Court considered the definition of "police property" in section 74(4) of the *Police Act*, which defines it as property supplied, or to be supplied, to a police officer for official purposes. The Magistrate had interpreted this broadly, finding that a police identification card, even though issued to the appellant and not an actual police officer, was still "police property" as it was of a kind uniquely supplied to police officers for official purposes. However, the Full Court disagreed, finding that the literal meaning of the definition, which focused on property actually supplied to a police officer, was the correct interpretation. The Court examined the historical context of the provision, noting that earlier iterations of the *Police Act* clearly focused on items issued to police officers. The Court also considered the appellant's explanation regarding his understanding of possession, noting that English was not his first language and he was unrepresented.
The Full Court allowed the appeal, finding that the Magistrate had erred in his interpretation of "police property". Consequently, the convictions for possessing the identification card and the shirt were quashed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As noted above, the relevant definition of “police property” appears in s 74(4) of the Police Act as follows: “police property means property supplied, or to be supplied, to a police officer for official purposes”. The Magistrate found that the card, Exhibit P8, was “police property” within the meaning of s 74(2) and (4) of the Police Act. He held as follows: [14] On a literal interpretation of the definition of police property the Card P8 was not police property. It was not property that had been supplied to an actual police officer nor was it to bc supplied to an actual police officer. It could not have been supplied to a police officer because it referred to the defendant by name and photograph and the defendant is not a police officer. However the nature of the property is that it is of a kind uniquely supplied to a police officer; no one other than a police officer is supplied with a Police Identification Card. lt would be an unduly narrow interpretation of police property to exclude the Card P8 from that definition on the basis that it was not supplied, or to be supplied, to an actual police officer. That would not be a construction that would promote the purpose of the legislation in my view. The purpose of that legislation is to ensure only the official use of police property supplied for official purposes.[15] In my view a Police Identification Card is properly supplied “for official purposes”. There is no definition of “official purposes” in the Act. The Australian Concise Oxford Dictionary defines ‘official’ as “of or relating to an office (a position with duties attached to it) or its tenure or duties ... emanating frour or attributable to a person in office; properly authorised”. I accept prosecution evidence that a Police Identification Card is supplied to police officers for the purpose of identifying the holder of the card as a member of SA Police. I am satisfied that a Police Identification Card is attributable to a person holding the office of a member of SA Police and is supplied “for official purposes”.[16] I find that P8 is police property as defined.Consideration I consider that the Magistrate here erred and that the literal meaning of “police property” (which his Honour rejected) is in fact the correct meaning. This conclusion is borne out by at least two considerations. First, an examination of the history of the provision now appearing as s 74 of the Police Act. And secondly, an examination of the difficulties and unreasonable results that would result if one were to adopt the interpretation chosen by the Magistrate.The history of the provision now appearing as s 74 of the Police Act The early iterations of the Police Act make clear that the concern of the legislature was focussed on items of property which had in fact been issued to police officers. Two aspects of this matter were dealt with in close juxtaposition in a pair of provisions. Thus, in the Police Act 1863 (SA) appears a pair of sections, 26 and 28, as follows: 26. Every constable who is dismissed from or ceases to hold his office shall forthwith deliver over to the said Commissioner of Police, or to such person, and at such time and place as the said Commissioner of Police directs, all the clothing and accoutrements, appointments, and other property which have been supplied to him for the execution of his duty, under pain of imprisonment, with or without hard labour, for any time not exceeding two months; and any Justice of the Peace may issue his warrant to search for and seize all the clothing, accoutrements, appointments, and property not so delivered over, where the same are found.…28. Every person, not being at the time a constable who shall have in his possession any article being part of the clothing, accoutrements, or appointments, supplied to a constable, and who shall not be able satisfactorily to account for his possession thereof, or who shall put on the dress, or take the name, designation, or character of any person appointed a constable, or shall give, or offer, or promise to give, any bribe, recompense, or reward, or shall make any collusive agreement with any member of the police force, to induce him to neglect his duty, or conceal or connive at any act whereby any rule, order, or regulation in force in the said Province may be evaded, and every person so offending, and whether such offer be accepted or performed or not, shall in addition to any punishment to which he may be liable for such offence, forfeit for any such offence, on summary conviction before any Special Magistrate or Local Court, any sum not exceeding Ten Pounds. [Emphasis added]