MA v Police

Case [2020] SASCFC 99

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

This matter concerned an appeal to the Full Court of the Supreme Court of South Australia by the appellant, Ma, against a decision of a single judge who had dismissed his appeal from a Magistrate’s finding of guilt. The appellant was charged with possessing police property, specifically an identification card and a shirt, contrary to section 74(2) of the *Police Act 1998* (SA). The central dispute revolved around whether the items constituted "police property" as defined by the Act and whether the appellant had a lawful excuse for their possession.

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ma explained before this Court that his true position concerning that asserted lack of knowledge did not change from that asserted in the interview; and that any apparent admission that he was “in possession” of the shirt, as well as the card, was due to his then incorrect understanding of the law concerning “possession”; he was then unaware that the legal concept of possession included a required element that the person have knowledge of the subject article’s presence and was simply intending to admit that the items were both in his house as alleged by the prosecution.Reliance by the respondent upon two answers in Ma’s trial evidence In this Court, the respondent seeks to rely upon the following two questions and answers in emphasis in the following passage of cross-examination of Ma. Q. I just want to quickly move to the police shirt. Why did you have that.A. As I said, for personal collection as a proud member of S.A. Police.Q. You knew it was part of a current police uniform when you took it.A. Yes.Q. how did you think that was ok when you’re not a police officer.A.As I have said, I have asked the permission or consent from various people and I reasonably believed in what they have said. Constitute a lawful excuse for me to possess and in particular, as I said, as a member of S.A. Police I would be having this lawful excuse to possess such a uniform. Two initial comments may be made. First, the cross-examination concerning the shirt was very short, and followed a longer cross-examination concerning the card (as to which Ma agreed that he had knowing possession at all times). Secondly, the cross-examination concerning the shirt simply does not address Ma’s assertions during the interview that the shirt was amongst other material and that he did not know that it was there prior to the search. As to the first of the two questions: “I just want to quickly move to the police shirt. Why did you have that?”, it predicates that Ma did “have the shirt”. Importantly, it did not address how he came to have it, but only addressed why he would have an item of that kind. Ma was obviously predisposed to answer such a question by giving the same reason he had already given for his possession of the other many items of police paraphernalia that were found (and for none of which he was prosecuted as it happens) – “As I said, for personal collection as a proud member of SA Police”. As to the second of the two questions: “You knew it was part of a current police uniform when you took it”, Ma’s monosyllabic answer “Yes” might appear to be damaging if taken by itself on the printed page. However, the following contextual matters must be remembered. First, English is not Ma’s first language and he had no interpreter at trial. Secondly, Ma has at all time been unrepresented. Thirdly, (as Ma explained at quite some length both before the single Judge and also in this Court), when he made his No Case To Answer submission at trial, and when giving his evidence shortly thereafter, he had been under the mistaken understanding that the element of possession was satisfied by proof that the item was in his home (a fact which he never disputed). Accordingly, while he had told the police officers in normal conversation during the search that he had not previously known of the presence of the shirt due to it being inside other shirts, the manner of cross-examination was not such as to alert him to the fact that he should have reiterated those matters in his testimony.

Decision

Reasons for decision

It is therefore the task of this Court to review the Magistrate’s decision as to which Ma’s grounds of appeal to the single Judge were:6. Magistrate Fisher mistakenly applied case law Taikato v R (1996) to this matter; as a result, Magistrate Fisher has erred in ruling that the appellant had no lawful excuse for being in possession of the Card P8.7. For the same reason as listed in the last submission, Magistrate Fisher has erred in ruling that the appellant had no lawful excuse for being in possession of the shirt P13. The High Court decision in Taikato v The Queen In Taikato, the appellant was charged with carrying in her handbag a pressurised canister of formaldehyde which was “known to be an irritant substance”. She told police officers that she carried it so that she could defend herself if someone attacked her. She was charged with an offence under s 545E(1) of the Crimes Act 1900 (NSW) (the NSW Act) which provided:(1) A person who, in a public place, possesses:(a) anything (not being a firearm within the meaning of the Firearms Act 1989) capable of discharging by any means:(i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke; or(ii) any substance capable of causing bodily harm; or(b) a fuse capable of use with an explosive or a detonator; or(c) a detonator,is liable, on conviction before a Magistrate, to imprisonment for 2 years, or a fine of 50 penalty units, or both.… Section 545E of the NSW Act provided two separate defences thus:(2) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose. [Emphasis added] The appellant was convicted and eventually appealed to the High Court. The Justices were divided on the correct construction of the term “lawful purpose” in s 545E(2). The majority held that it did not extend to a purpose of self-defence and accordingly the appellant did not come within that provision. However, the majority came to this conclusion only after determining that, as a general rule, “lawful purpose” would be interpreted as meaning “a purpose that is not forbidden”, but that the legislation in Taikato was exceptional in that it positively evinced an intention that it was to have the different meaning “a purpose that is positively authorised by law”. Thus, their Honours stated:[14]As a general rule, interpreting “lawful purpose” in a legislative provision to mean a purpose that is not forbidden, rather than positively authorised, by law is the interpretation that best gives effect to the legislative purpose of the enactment. This is because statutes are interpreted in accordance with the presumption that Parliament does not take away existing rights unless it does so expressly or by necessary implication. Nevertheless, the purpose, context or subject matter of a legislative provision may indicate that Parliament has used the term “lawful purpose” to mean a purpose that is positively authorised by law. That seems to be the best interpretation of the term in the present case. Four matters support this conclusion. [Citations omitted; Emphasis added][14] Taikato (1996) 186 CLR 454, 460 (Brennan CJ, Toohey, McHugh and Gummow JJ).

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]