MA v Police
[2020] SASCFC 99
•23 October 2020
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 12, 15; Police Act 1916 (SA) ss 13, 18; Police Act 1936 (SA) ss 14, 19; Police Act 1998 (SA) ss 68, 74; Police Regulation Act 1952 (SA) ss 20, 27 referred.
2. It was necessary for the Magistrate to address and resolve the important outstanding matter of knowing possession of the shirt, particularly having regard to Ma’s statements during the record of interview. In failing to do so, his Honour erred. DL v The Queen (2018) 266 CLR 1 discussed; Mule v The Queen (2005) 156 A Crim R 203; Nguyen v The Queen (2020) 94 ALJR 686; R v Newman [2011] SASCFC 36; R v Weetra (2010) 108 SASR 232; Spence v Demasi (1988) 48 SASR 536 considered.
3. Contrary to the holdings of the Magistrate and the single Judge, the correct construction of “without lawful excuse” in s 74 of the Police Act is “not forbidden” (rather than “positively authorised by law”) in accordance with the “general rule” enunciated in Taikato v The Queen (1996) 186 CLR 454. Crimes Act 1900 (NSW) ss 93G, 353B, 545E; Criminal Code Act Compilation Act 1913 (WA) s 70A; Police Act 1892 (WA) s 66; Police Act 1998 (SA) s 74; Police Regulation Act 1952 (SA); Summary Offences Act 1953 (SA) ss 15,17 referred. Bell v Atwell (1988) 32 A Crim R 181; Carr v Western Australia (2007) 232 CLR 138; Coco v The Queen (1994) 179 CLR 427; Lee v NSW Crime Commission (2013) 251 CLR 196; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; Police v Rudloff [2018] SASC 101; Potter v Minahan (1908) 7 CLR 277; Roddan v Walker (1997) 94 A Crim R 170; Samuels v Nicholson (1973) 6 SASR 479; Taikato v The Queen (1996) 186 CLR 454; Wilkins v Condell [1940] SASR 139; Wilson v McDonald (2009) 193 A Crim R 63; Yuen v Police (2012) 222 A Crim R 264; Zheng v Cai (2009) 239 CLR 446 discussed. Abbott v Pulbrook [1947] SASR 57; Bropho v Western Australia (1990) 171 CLR 1; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; Hancock v Birsa [1972] WAR 177; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Miller v Harradine (1947-1948) LSJS Vol 1; O’Malley v Wagenknecht (Unreported, Supreme Court of South Australia, 11 September 1945); South Australia v Totani (2010) 242 CLR 1 considered.
4. Contrary to the holdings of the Magistrate and the single Judge, the correct construction of s 74(2) of the Police Act is that it creates two different offences, and therefore both the Complaint and the record of findings are bad for duplicity. Betting and Gaming Act 1960 (UK) s 5; Landlord and Tenant (Control of Rents) Act 1942 (SA) s 56a; Police Act 1998 (SA) s 74; Post and Telegraph Act 1901-1970 (Cth) s 107 referred. Iannella v French (1968) 119 CLR 84; Mallon v Allon [1964] 1 QB 385; McDonald v Higgins (2013) 227 A Crim R 130; Miller v Quinn [1977] 2 NSWLR 198; Parker v Sutherland (1917) 86 LJKB 1052; R v Liddy (2014) 119 SASR 555; R v Manwaring [1983] 2 NSWLR 82; R v McCarthy (2015) 124 SASR 190; Romeyko v Samuels (1972) 2 SASR 529; Walsh v Tattersall (1996) 188 CLR 77 discussed. Johnson v Miller (1937) 59 CLR 467; Jones v The Queen [1980] WAR 203; KBT v The Queen (1997) 191 CLR 417; Lapthorne v The Queen [1990] WAR 207; Mallon v Allon [1964] 1 QB 385; R v Kerin (2013) 116 SASR 316; R v Suckling (1998) 104 A Crim R 59; R v Trotter (1982) 7 A Crim R 8; S v The Queen (1989) 168 CLR 266; Willers v The Queen (1995) 125 FLR 221 considered.
Betting and Gaming Act 1960 (UK) s 5; Crimes Act 1900 (NSW) ss 93G, 353B 545E; Criminal Code Act Compilation Act 1913 (WA) s 70A; Landlord and Tenant (Control of Rents) Act 1942 (SA) s 56a; Police Act 1863 (SA) ss 26, 28; Police Act 1869-70 (SA) ss 12, 15; Police Act 1892 (WA) s 66; Police Act 1916 (SA) ss 13, 18; Police Act 1936 (SA) ss 14, 19; Police Regulation Act 1952 (SA) ss 20, 27; Police Act 1998 (SA) ss 68, 74; Post and Telegraph Act 1901-1970 (Cth) s 107; Summary Offences Act 1953 (SA) ss 15, 17, referred to.
Bell v Atwell (1988) 32 A Crim R 181; Carr v Western Australia (2007) 232 CLR 138; Coco v The Queen (1994) 179 CLR 427; DL v The Queen (2018) 266 CLR 1; Iannella v French (1968) 119 CLR 84; Lee v NSW Crime Commission (2013) 251 CLR 196; Mallon v Allon [1964] 1 QB 385; McDonald v Higgins (2013) 227 A Crim R 130; Miller v Quinn [1977] 2 NSWLR 198; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; Parker v Sutherland (1917) 86 LJKB 1052; Police v Rudloff [2018] SASC 101; Potter v Minahan (1908) 7 CLR 277; R v Liddy (2014) 119 SASR 555; R v Manwaring [1983] 2 NSWLR 82; R v McCarthy (2015) 124 SASR 190; Roddan v Walker (1997) 94 A Crim R 170; Romeyko v Samuels (1972) 2 SASR 529; Samuels v Nicholson (1973) 6 SASR 479; Taikato v The Queen (1996) 186 CLR 454; Walsh v Tattersall (1996) 188 CLR 77; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Wilkins v Condell [1940] SASR 139; Wilson v McDonald (2009) 193 A Crim R 63; Yuen v Police (2012) 222 A Crim R 264; Zheng v Cai (2009) 239 CLR 446, discussed.
Abbott v Pulbrook [1947] SASR 57; Bropho v Western Australia (1990) 171 CLR 1; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; Hancock v Birsa [1972] WAR 177; Johnson v Miller (1937) 59 CLR 467; Jones v The Queen [1980] WAR 203; KBT v The Queen (1997) 191 CLR 417; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Lapthorne v The Queen [1990] WAR 207; Mule v The Queen (2005) 156 A Crim R 203; Miller v Harradine (1947-1948) LSJS Vol 1; Nguyen v The Queen (2020) 94 ALJR 686; O’Malley v Wagenknecht (Unreported, Supreme Court of South Australia, 11 September 1945); R v Kerin (2013) 116 SASR 316; R v Newman [2011] SASCFC 36; R v Suckling (1998) 104 A Crim R 59; R v Trotter (1982) 7 A Crim R 8; R v Weetra (2010) 108 SASR 232; S v The Queen (1989) 168 CLR 266; South Australia v Totani (2010) 242 CLR 1; Spence v Demasi (1988) 48 SASR 536; Willers v The Queen (1995) 125 FLR 221, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"police property" - "without lawful excuse"
MA v POLICE
[2020] SASCFC 99Full Court: Kourakis CJ, Peek and Stanley JJ
KOURAKIS CJ: I would allow the appeal and join in the orders proposed by Peek J for the reasons given by his Honour.
PEEK J: Appeal against findings of possession without lawful excuse of an item of police uniform (a shirt) and an item of police property (a card).
The structure of this Judgment is as follows:
Part 1: Introduction
Part 2: Was the card “police property” within section 74 of the Police Act 1998?
Part 3: Did Ma “knowingly possess” the shirt?
Part 4: Did Ma possess the shirt “without lawful excuse”?
Part 5: Duplicity
Part 6: Disposition
PART 1: INTRODUCTION
The appellant, Mr Zhining Ma (Ma), is a man of good character with no previous criminal finding or conviction. He 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, but the Commissioner of Police is responsible for the control and management of PSOs under the Protective Security Act 2007 (SA). The duties of a PSO are various, but include the maintenance of the security of public buildings, places and officials.
Ma has not been represented by counsel at any stage of these proceedings. Throughout them, he has behaved respectfully and courteously. Despite his lack of legal training, and the fact that English is not his first language, he has made pertinent submissions as to the law. Some of these, it seems to me, have not been given the depth of consideration that they merited.
On 27 July 2017, Ma was charged on Complaint (in one count only) thus:[1]
On the 14th day of July 2017 at BELLEVUE HEIGHTS in the said State, without lawful excuse had possession of a police uniform and police property (contrary to) section 74(2) Police Act 1998
[1] The validity of such a count is considered below.
The particulars given at trial were that the “police uniform” was one used short sleeved black shirt with SAPOL markings (the shirt) and the “police property” was one card in the form of a Police Identification Card (the card).
Section 74 of the Police Act 1998 (the Police Act) provides as follows:
74—Impersonating police and unlawful possession of police property
(1) A person who, without lawful excuse—
(a) wears what is or appears to be a police uniform; or
(b) represents himself or herself by word or conduct to be a police officer,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for six months.
(2) A person who, without lawful excuse, has possession of a police uniform or police property is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for six months.
(3)This section does not prevent a person engaged in a theatrical performance or social entertainment from wearing what appears to be a police uniform in the course of, and for the purpose of, the performance or entertainment.
(4) In this section—
police officer means a member of SA Police or any other police service or force in Australia or any other country, and includes a police cadet;
police property means property supplied, or to be supplied, to a police officer for official purposes;
police uniform means all or part of the uniform of a police officer.
Ma pleaded not guilty. At the conclusion of the trial on 4 June 2019, the Magistrate reserved judgment. On 4 July 2019, his Honour delivered judgment with reasons and found the charge proven as to both items.[2]
[2] The Magistrate imposed a fine of $500 without recording a conviction. The appeal is therefore against findings rather than “conviction” in one sense, but this has no effect on what follows.
The course of the appeal process
Ma appealed against the findings of guilt to a single Judge of this Court. The grounds of appeal were as follows:
1. Magistrate Fisher has erred in proceeding the case on the basis that this is a strict liability, rather than a mens rea offence, and thereby not requesting the prosecution to prove beyond reasonable doubts that the appellant had a guilty knowledge or intention in the matter.
2. Magistrate Fisher has erred in ruling that there is no issue that at the relevant time the appellant was in possession of both items in dispute. In fact, there is an issue of the appellant not having knowledge of the existence of the shirt P13 until it was pulled out among other items during the search; therefore, it remained a question of law to be answered whether the shirt P13 can be considered as in the possession of the appellant without his mental knowledge.
3. Magistrate Fisher has ruled that the Card P8 is a police property as defined by law. It is raised to the appellate court Judge as a question of law whether the Card P8 can be deemed as a police property so defined by law.
4. Magistrate Fisher has ruled that the shirt P13 falls within the definition of a police uniform. It is raised to the appellate court Judge as a question of law whether the shirt P13 can be deemed as a police uniform so defined by law.
5. In the previous no-case submission, the appellant had raised the point of law that there is no provision in the relevant Police Act 1998 that places the burden on the appellant to prove that he acted with lawful excuse, Magistrate Fisher has erred in ruling that the appellant still had an evidential onus to raise lawful excuse and it was for the prosecution, in the absence of the reverse onus, to disprove that excuse beyond reasonable doubt. Such a misjudgement had been reiterated in the final judgment, and it had impacted the later relevant discussion of defence and ruling.
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.
8. Magistrate Fisher has erred in ruling that the appellant’s evidence of an unnamed officer giving him permission is too vague to have discharged the evidential burden raising lawful excuse.
9. On the basis that this is a strict liability offence, Magistrate Fisher has ruled that the appellant’s belief he had a lawful excuse to possess the Card P8 is a mistake of law not fact. It is raised to the appellate court Judge as a question of law whether such a belief, if proven to be mistaken, is a mistake of law or a mistake of fact.
10. Magistrate Fisher has misunderstood the appellant’s defence in regards to the shirt P13. The appellant’s defence is that he was honestly not aware of the existence of the shirt P13 at all, and therefore, even if P13 were to be treated as in the possession of the appellant, it would be a reasonable and honest mistake of facts. Magistrate Fisher has misunderstood the appellant’s defence to be that he did not know the shirt P13 to be a current issue uniform. As a result, Magistrate Fisher has erred in rejecting the appellant’s defence.
11. Magistrate Fisher has erred in ruling that there is no duplicity issue of the charge.
The single Judge rejected all grounds of appeal and dismissed the appeal. He later granted Ma permission to appeal to this Court on the following grounds:[3]
A. In his Honour’s judgment, Justice David had not addressed the appellant’s raised argument and submission that he was not aware of the existence of the shirt P13 and that the prosecution had not made any attempt to prove that he was aware of such existence; therefore, the shirt P13 can NOT be considered as in the possession of the appellant without his mental knowledge of its existence.
B. In his Honour’s judgment, Justice David had not addressed the appellant’s raised argument and submission that in the context of the Police Act 1998, the prosecution shall bare full onus of proving that the appellant had acted without lawful excuse; therefore, if the appellant’s fundamental common law right to the presumption of innocence were to be upheld, the appellant would have no burden whatsoever to raise any excuse at all for the prosecution to disprove.
C. In his Honour’s judgment, Justice David had not addressed the appellant’s raised argument and submission that in the context of the Police Act 1998, the term “lawful” and “lawful excuse” shall follow the general rule of being “not forbidden” rather than a narrow meaning of being “positively authorized”.
D. In his Honour’s judgment, Justice David had erred in ruling that there is no duplicity issue with the original charge.
[3] These grounds originally numbered 1 to 4 have been re-numbered A to D for ease of reference.
Prior to the scheduled hearing of the Full Court appeal, the parties were notified that the Court wished to hear from counsel for the respondent as to whether either or both of Grounds 3 and 4 before the single Judge (which were not replicated in the Notice of Appeal to this Court), could be made out. On 4 June 2020, this Court heard full argument from the parties on all grounds of appeal, granted Ma permission to rely on both sets of grounds of appeal and reserved judgment.
Although the present appeal is in form against the judgment of the single Judge, the Judge’s reasons were quite short and essentially went no further than agreeing with the reasoning and orders of the Magistrate. Accordingly, it is the judgment of the Magistrate to which primary reference will be made.
PART 2: WAS THE CARD “POLICE PROPERTY” WITHIN SECTION 74 OF THE POLICE ACT 1998?
The card was received in evidence as Exhibit P8 and was in the form of what is referred to as a “Police Identification Card”.
It is to be noted that Ma agrees that he was at relevant times in possession of the card and there is no issue as to knowing possession (unlike the different position concerning the shirt to be considered below). Therefore, two main issues arose concerning the card. First, was the card “police property” within the meaning of s 74(2) and (4) of the Police Act? Secondly, if it was “police property”, was it proven that Ma possessed that card without lawful excuse? As will be seen, I consider that the first issue is to be decided in favour of Ma and that it is therefore not necessary to consider the second.
As to whether the card was “police property”, the evidence was that there are two types of Police Identification Cards. Exhibit P8 was of the first type, namely an identification card simply used to identify the holder as a police officer. It includes a photograph of the holder identifying the holder as a “member of South Australia Police” and is designed to fit into a wallet (and is often referred to as a wallet card). For completeness, the second type is larger than a wallet card and incorporates a swipe card feature, which permits access to secure areas (and may be referred to as an access card). Finally, both types of cards are issued to both police officers and PSOs (the cards for PSOs being different in appearance and identifying the holder as a PSO rather than a police officer).
Both types of card are created by use of the Gallagher Access Control System (the Gallagher System). Ma, in his capacity as a PSO, was required to learn how to use that system to create both types of cards for both police officers and PSOs. The system keeps a record of the creation of identification cards and indicated that on l8 August 2015, Ma created a Police Identification Card in his own name and in the form appropriate to a police officer rather than a PSO.
On Friday, 14 July 2017 at 2.34 pm, Detective Brevet Sergeant Cox (Cox) with officers Murrie and Brown attended at Ma’s home concerning his possible possession of the card. Cox cautioned Ma and told him the reason for his attendance. Ma promptly produced the card and, in the course of a long interview, gave a full account of how he had come to be in possession of it. That process was recorded aurally and visually, occupying about 23 pages of transcript (the first part of the transcript). It took almost an hour, until shortly before 3.23 pm when the recording equipment was first deactivated.
In short, Ma readily agreed that he had made that card, but explained that it was a test card made for the purpose of learning to use the Gallagher System under the tuition of PSO Petrie; and that at the end of the teaching session, PSO Petrie had told him that he could keep it ‘for fun’. At trial, Ma gave evidence and reiterated his explanation as given at the interview.
The Magistrate made the following findings of fact:
[24] The defendant took part in a recorded interview and explained in relation to the Card (P8) “that was when we were testing the printer. I was post at PHQ at that time when I print that out and we are testing the printer”. He explained that PSO Petrie was present and that it was complicated to print a PSO test card because it would replace his current ID card on the system and he would have to print out both a new ID card and swipe card. When asked why it was still in his wallet he explained “its probably in my wallet because Steve Petrie says just put it somewhere for fun whatever”, “Steve Petrie was the senior member there so I just put it in my wallet and I forget about it. I never use it.”
[25] It was put to the defendant in the interview “this card, according to our audits, belonged to Stephen Petrie before it belonged to you.” The defendant replied “l don’t know cos he was the one operate the printer to be honest as I said I was just a temporary fill in. I have very limited knowledge about the system and printer so I to be honest I don’t know what, I mean cos I just stand aside with Steve Petrie basically, Steve Petrie who um operate the system and the printer. He said ‘oh use your name to print out one for testing.’ I said ‘okay’.” The defendant was advised by Detective Cox that he would be reported. The defendant replied “I would like to say that this a complete waste of police resource. That is, that was part of my job and I didn’t do it myself. It was a senior member who was doing that and it you say that … if you put it was my fault is that I didn’t destroy that straight away so that was probably the only fault”.
[26] The defendant repeated the explanation he gave in his recorded interview in evidence.
[27] I accept, at least as a reasonable possibility, that the Card (P8) was generated in the process of testing the operation of the Gallagher System. The defendant says that PSO Petrie told him he could keep the Card for fun or as a souvenir. PSO Petrie denied that. The defendant was adamant that PSO Petrie did tell him that and submits this provides a lawful excuse because Mr Petrie was a more experienced PSO at Police HQ.
[28] PSO Petrie was a good witness but his recollection of the incident, unsurprisingly after the lapse of time, was not clear. Each operation of the Gallagher System by a card holder is logged. It is common ground that the defendant’s creation of the Card P8 was recorded in the system and reproduced in P4. It is also common ground that PSO Petrie is recorded (Pl5) as having created another Police ID card in his name shortly before the defendant created P8. Prosecution submitted that PSO Petrie had finished his shift and left minutes before the defendant printed P8. The defendant explained that PSO Petrie’s recorded movements were not inconsistent with Mr Petrie being present at the time P8 was printed.
[29] After evaluating the evidence of the defendant and Mr Petrie I find that it is a reasonable possibility that Mr Petrie told the defendant he could keep P8 “for fun” after having printed P8 to test the operation of the printer. The defendant was not shaken in cross examination on this question and gave the explanation at the earliest opportunity in his recorded interview. That explanation is consistent with the objective evidence and is not implausible.
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]
Thus, the first in the pair of provisions (s 26) required that any person who had been a police constable, but was no longer, must forthwith return the equipment with which he had been supplied. The second provision (s 28) dealt with all persons found in possession of such property “supplied to a constable”. This, of course, would include ex-constables who had not obeyed the command in s 26 and also persons who had stolen such property or had received it from ex-constables who had not returned it.
Section 28 went on to deal with impersonating a constable or dishonest conduct such as bribing a constable.
That same pair of provisions, with various changes of no present relevance, can be seen in succeeding iterations of the Police Act. Thus, in the Police Act 1869-70 (SA), the pair appear as ss 12 and 15; in the Police Act 1916 (SA), the pair appear as ss 13 and 18; and in the Police Act 1936 (SA), the pair appear as ss 14 and 19.
In the Police Regulation Act 1952 (SA), the pair again appear as ss 20 and 27. In this iteration, the matters of bribery etc. were removed to be dealt with in separate sections so that “the pair” by 1952 had become thus:
20.(1) A person who for any reason ceases to be a member of the police force shall, forthwith upon so ceasing, deliver up to the Commissioner, or to a person appointed by the Commissioner to receive property under this section, all property of every kind which belongs to the Crown and was supplied to that person for the execution of his duty as a member of the force.
Penalty: One hundred pounds.
(2) Any justice may issue a warrant authorizing the persons named or indicated in the warrant to search any place and seize any property therein which has not been delivered up as required by this section.
…
27. (1) Any person who, not being a member of the police force—
(a)wears the uniform of a member of the police force or any dress having the appearance of such a uniform; or
(b) by word or conduct represents himself to be a member of the police force.
shall be guilty of an offence.
Penalty: Twenty-five pounds.
(2) Any person who, without lawful excuse, has in his possession any arms, ammunition, article of clothing, accoutrements or appointments supplied to any member of the police force shall be guilty of an offence.
Penalty: One hundred pounds or imprisonment for twelve months.
(3) Subsection (1) of this section shall not prevent any person taking part in a stage play or other entertainment from wearing any dress in the course of that play or entertainment.
There were later some minor amendments not affecting the present point under consideration. In the final and current iteration, the Police Act 1998 (SA) the pair appear at ss 68 and 74 as follows:
68—Duty to deliver up equipment etc
(1)If a person’s appointment is terminated or suspended under this Act, the person must immediately deliver up to the Commissioner, or to a person appointed by the Commissioner to receive property under this section, all property that belongs to the Crown and was supplied to the person for official purposes.
Maximum penalty: $2 500 or six months imprisonment.
(2)A justice may issue a warrant authorising the persons named or indicated in the warrant to search any place and seize any property which has not been delivered up as required by this section.
…
74—Impersonating police and unlawful possession of police property
(1) A person who, without lawful excuse—
(a) wears what is or appears to be a police uniform; or
(b) represents himself or herself by word or conduct to be a police officer,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for six months.
(2)A person who, without lawful excuse, has possession of a police uniform or police property is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for six months.
(3) This section does not prevent a person engaged in a theatrical performance or social entertainment from wearing what appears to be a police uniform in the course of, and for the purpose of, the performance or entertainment.
(4) In this section—
police officer means a member of SA Police or any other police service or force in Australia or any other country, and includes a police cadet;
police property means property supplied, or to be supplied, to a police officer for official purposes;
police uniform means all or part of the uniform of a police officer.
The above historical analysis makes very plain that the legislature was concerned with items of property that had actually been issued to members of the police force. The broadening of the definition of police property in the 1998 iteration by adding the words “or to be supplied” in no way indicates that a different meaning was to be given to the original words “property supplied”; rather, its obvious purpose was to address a perceived lacuna of property being stored for the purpose of being supplied to police officers for official purposes, but not yet so supplied.
On the appeal to this Court, counsel for the respondent accepted (correctly) that if that is indeed the correct construction of the legislation, then the card here had clearly not been supplied to a member of the police force for official purposes.
However, counsel sought to submit that while the word “supplied” in the definition section referred to a specific item, the words “to be supplied to a police officer for official purposes” had a very different meaning in that they did not refer to specific items of property but rather to “property of a kind”. Thus, the argument ran, Exhibit P8 was property of a kind which is supplied to police officers for official purposes.
Of course, the essential problem with the respondent’s interpretation of “property … to be supplied to a police officer for official purposes” is, as pointed out by the Court arguendo, that the word “property” would have to be interpreted in two quite different ways within the space of six words in the definition reproduced above. Counsel frankly admitted that difficulty.
A further problem is that the respondent’s interpretation necessitates marked changes of the present definition by reading in and deleting words along the following lines: “property … of a kind
to besupplied toapolice officers for official purposes”.But perhaps the most intractable problem with the respondent’s interpretation is that it simply cannot work on a practical level. All sorts of equipment may be supplied to police officers for official purposes. Some items may be manufactured solely for supply to police officers, but many are items that are available to the public. An example considered arguendo was that SAPOL may determine to purchase a large number of a particular make and model of torches from a particular manufacturer (say “X” brand, model 2) for supply to police officers. But consistently with SAPOL deciding that “X” brand, model 2 torches are good torches, many will already be owned by members of the public and more will be bought in future. Clearly, a member of the public found in possession of such a torch which he had bought from the manufacturer cannot be said to be in possession of “police property” on the basis that that same kind of torch is, or may be, issued to police officers. Examples of such problems facing the interpretation contended for by the respondent may be multiplied. Once again, learned counsel for the respondent frankly accepted the gravity of the problem his contention faces.
Therefore, while recognising the ingenuity of the respondent’s argument, I must reject it. I conclude that the card, Exhibit P8, was not “police property” within s 74 of the Police Act and that the Magistrate’s finding concerning the card must be quashed.
That being so, it is unnecessary to consider whether Ma possessed that card “without lawful excuse”.
PART 3: DID MA “KNOWINGLY POSSESS” THE SHIRT?
I now turn to the matter of the shirt, Exhibit P13. It is black in colour with the word “Police” in white on the front and back with a SAPOL badge insignia on the top of each shoulder.
After the first de-activation of recording equipment at 3.23 pm on Friday, 14 July 2017, the recording equipment was reactivated at 3.28 pm when Cox informed Ma that his house was to be searched for police property. This process was again recorded aurally and visually, occupying a further 13½ pages of transcript (the second part of the transcript). It included a process of searching and questions being asked and answered as the search progressed.
In such circumstances, it is necessary to bear in mind several matters. First, that the police were searching for police property in general and not in particular for this one short sleeved shirt which, as events transpired, now forms the lonely corpus of the police uniform allegation. Secondly, the aural and video components of the recording (rather than the transcript made by an unknown person) are the primary evidence; indeed, in the present case, a reading of the transcript alone is potentially misleading. A good example of this is to be found at pages 6 to 7 of the second part of the transcript which (as corrected) reads as follows:
Q/A Questions/Answers[4] Actions/Comments
The video shows Cox and Murrie searching Ma’s wardrobe. Prior to, and during, the remark at Q61, the officers can be heard moving around plastic, likely to be plastic covering the clothes.
Q61 Now Andthis one’s pantsMurrie comments to Cox (not a question to Ma).
Almost 20 seconds later, Murrie crosses the view of the camera to place an unseen item down next to Ma. When Ma looks at the item he remarks: “This one just some souvenir”. The video does not show to what item(s) Ma is referring.
A61 This one arejust some souvenir.Murrie proceeds to examine further items in the wardrobe, and more plastic rustling sounds can be heard. Murrie then crosses behind Ma carrying a clear plastic zip lock storage bag (the zip lock bag), which he then places down next to Ma and unzips. From it he removes a black and white plastic shopping bag. From the shopping bag he takes out a bundle of folded shirts, which prompts Murrie to state at Q62: “Here they are”.
Q62 (Murrie) Here they are. As Murrie pulls the shirts apart and holds one up to inspect it, Ma responds “Oh that’s the current one”.
A62 Oh, that’s the current one. Q63 Where did you get that one from. Murrie appears to be separating and laying out the shirts to the left of camera.
A63 Oh, from the donation bin. I mean I, I can’t remember. Murrie sorts through the other items in the zip lock bag.
Q64 Why would someone throw away a current shirt.
A64 Yeah, yeah. Because apparently this one isnineteen seventies. So I said, I mean–During A64, Ma initially responds “Yeah, yeah” to Q64, but then refers to the leather jacket – indicated by his gesture towards it and briefly placing his hand on it – (and not the shirt) “this one nineteen seventies”.
(Cox) Yeah, that’s Referring to the leather jacket.
Q65 Yeah. Well, you’re right it’s a shame to throw ‘em out, I guess. Murrie here picks out and holds up the leather jacket in front of him.
A65 Because it looks very nice, I said oh it’s a shame to throw it into the bin I mean. Ma also here referring to the leather jacket.
(Cox) Just grab everything out and I will sift through it.
Q66 A couple of leather jackets. Murrie sorts through the other items in the zip lock bag and leaves them for Cox to later itemise.
A66 Are these the seventies or.
Q67 Well, it’s not that old.
Q68 (Cox) No, these are not that old. They are circa 2005, 6.
A68 Really.
[4] Corrections appear as strike through deletions and emboldened additions.
Thus, it can be seen that the video corresponding to Q61 to Q68 shows various items of clothing being found and examined by the police officers. At Q64, the police question is directed to the shirt, but from the middle of A64 to Q65 attention has turned a quite different item, namely a rather stylish leather jacket; and it is this that is the subject of the comment at Q65 “it’s a shame to throw ‘em out”.
The conversation proceeded on topics not pertaining to the shirt and only returned to that shirt some pages later at the bottom of page 9 (as corrected) thus:
Q82.Victor, what’s going to happen is I’m going to seize the current police uniforms.
A. Okay.
Q83.Because I don’t believe that you should be able to have those. The old archive ones from the eighties and things like that –
A. Yeah, yeah.
Q84.I’ll leave.
A. Yeah, okay.
Q85.Hm ah um …
A.I don’t know why I can’t remember why there’s a current one. I mean –
Q86.Okay.
A.
I mean,Because it’s, it’s in a bag. I mean –Q87.Yeah, sure.
A.And on the top is a, a antique … one and there’s, there’s … so I take.
Q88.Okay. So, I’ll take the leather jackets and the black –
A. The leather jacket is not a current though
one.… [Underlining emphasis added]
The “bag” referred to at A86 is obviously the black and white shopping bag containing the shirts described above in the chart in the comment pertaining to Q62.
The conversation then again proceeded to other topics not pertaining to the shirt. The shirt was only returned to again some pages later (commencing at the top of page 12) when police leather jackets were being discussed, but Ma reverted to the topic of the shirt (to which he refers as “this one”) thus:
MurrieThese are the seventies ones, they have a different badge and everything, they are the older ones. But these ones were used very recently. Ah.
CoxThe badge is the same. Okay.
MaI have no idea why these are in there – this is, is these are –
MurrieStill used I think. Still current these ones.
MaI know this one is current but I don’t know why it’s there because it’s all under, I never opened it actually. [Underlining emphasis added]
During the above conversation, Murrie is sorting through the items found, including the leather jackets and the shirts. Murrie first looks through and addresses the “seventies” shirts, before picking out and holding up the shirt the subject of the charge. It is when Murrie is holding up the shirt in front of him that Ma makes the remark underlined in the last two lines of the above passage. Again, “I never opened it actually” is obviously the black and white shopping bag described above in the chart in comment to Q62.
The Magistrate’s reasons for verdict as to the shirt
As to the shirt (Exhibit P13 at trial), Ma’s position during the search, at trial, and on appeal was that he had gathered up several shirts in one bundle from the bin; and that the shirt (which was the only short sleeve shirt) was bundled up inside the others; and that he did not see it at the time; and that he was not aware of its presence until Murrie found it amongst the bundle of other shirts in the black and white plastic bag.
The Magistrate did correctly perceive that Ma had stated during the course of the search that he had not known of the presence of the shirt prior to the search. Thus, he stated in the course of his judgment:
[36] Other items of old uniforms that were located in the defendant’s possession were left with the defendant by Detective Cox. There were some other items that were seized where Detective Cox was not sure if they were current. After some discussion about the other items of uniform the defendant stated in relation to P13 “I know that this one is current but I don’t know why it’s there because it’s all under, I never opened it actually”. … [Emphasis added]
And later his Honour stated:
[43] With respect to the shirt, the defendant explained in his interview that he took the clothes from the donation bin and believed that only old, not current, uniforms were disposed of. While he acknowledged that the shirt, P13, was current during his interview, he claimed he was not aware of that until all of the clothes were pulled out during the search. All of the other items of uniform in the defendant’s possession, it was accepted, were not current and the defendant was not charged in relation to those other items of uniform.
[44] However, when it came to giving evidence, the defendant did not raise a belief that P13 was not a current issue shirt, nor did he claim that he was labouring under the honest but mistaken belief it was not current. Indeed, when asked if he knew P13 was current he said he did. He said that he had been told he could take current and non-current uniforms that were in the bin for disposal. [Emphasis added]
On appeal, Ma contends that the Magistrate at paragraphs [36] and [43] correctly perceived the purport of his statements in his police interview, but that at paragraph [44] he misapprehended Ma’s position at trial. Ground 10 of appeal to the single Judge asserts:
10. Magistrate Fisher has misunderstood the appellant’s defence in regards to the shirt P13. The appellant’s defence is that he was honestly not aware of the existence of the shirt P13 at all, and therefore, even if P13 were to be treated as in the possession of the appellant, it would be a reasonable and honest mistake of facts. Magistrate Fisher has misunderstood the appellant’s defence to be that he did not know the shirt P13 to be a current issue uniform. As a result, Magistrate Fisher has erred in rejecting the appellant’s defence.
The fact is that in his interview Ma stated that he had not been aware of the presence of this particular shirt prior to the search. That interview was tendered by the prosecution and the defendant’s exculpatory statements became evidence in the case by the prosecution’s very tender of the interview into evidence.[5]
[5] See expositions such as in: Spence v Demasi (1988) 48 SASR 536; Mule v The Queen (2005) 156 A Crim R 203; R v Weetra (2010) 108 SASR 232; R v Newman [2011] SASCFC 36 and Nguyen v The Queen (2020) 94 ALJR 686.
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.
On the basis of a very careful reading of (and listening to in the case of the interview) all of the material, I am inclined to accept that Ma answered this second cross-examination question against a mental background that he had been shown the shirt at trial; that earlier he had been shown it by Detective Murrie when he found it during the search; and that it was clear to him from those observations that the shirt was indeed “part of a current police uniform”. In other words, in answering “yes”, he was simply agreeing that the shirt possessed the status of police uniform at all relevant times.
The fact is that if this second cross-examination question is changed by just one letter (from knew to know) it would lose all potential significance. Thus, if the question was “You know it was part of a current police uniform when you took it”, Ma’s answer “yes” would be entirely consistent with his position that he did not realise that it was present within the other shirts.
If Ma had been represented, counsel would have appreciated from the video and transcript of the search that Ma’s position was that he had taken possession of the shirt unknowingly and would have led his evidence in chief accordingly. Counsel would (hopefully) also have picked up that the use of the past tense in the second cross-examination question was potentially confusing, and would have dealt with that by an objection to the form of the question and/or in re-examination if necessary. But, unfortunately, Ma was not represented.
The Magistrate and the single Judge failed to give sufficient reasons concerning this matter
I consider that the Magistrate did not sufficiently consider and resolve this issue. Indeed, his Honour stated that “I proceed on the basis that this is a strict liability offence” (which was incorrect as a matter of law) and that “There is no issue that at the relevant time the defendant was in possession of both items” (which was incorrect as a matter of fact, particularly having regard to the record of interview). The reasons for judgment of the single Judge were short, in effect adopting the decision of the Magistrate.
In the decision of the High Court in DL v The Queen,[6] the majority stated:[7]
[33] The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.[8] At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[9] In particular:[10]
“Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
[6] (2018) 266 CLR 1.
[7] Ibid 12-13 (Kiefel CJ, Keane and Edelman JJ).
[8] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
[9] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443.
[10] AK v Western Australia (2008) 232 CLR 438 at 468 [85] (footnote omitted).
In circumstances where Ma was not represented (and the prosecutor was not a legal practitioner), there was a significant burden on the Magistrate to ensure a fair trial according to law, which included resolving important relevant disputes. As noted above, his Honour did in fact glean that Ma’s position, as stated in the interview, was that he had taken possession unknowingly. It is notable that his Honour did not comment in his judgment on the cross-examination now under consideration; if he had thought it important, one would have thought that he would have done so (and indeed would have raised the matter in re-examination of Ma to give him the opportunity of clarifying it). But in any event, it was necessary for his Honour to address and resolve this important outstanding matter of knowing possession of the shirt, particularly having regard to the record of interview. In failing to do so, his Honour erred.
PART 4: DID MA POSSESS THE SHIRT “WITHOUT LAWFUL EXCUSE”?
If it were decided that Ma did knowingly possess the shirt, a further question arises as to whether he possessed the shirt “without lawful excuse”.
The Magistrate considered the interpretation of “lawful excuse” in s 74 of the Police Act primarily in the context of the card, but of course applied that same interpretation to both the card and the shirt. His Honour held:
[23] ‘Lawful excuse’ means a reason or excuse recognised by law as sufficient justification. The meaning of ‘lawful excuse’ depends on its context. Lawful purpose is a purpose that is authorised, as opposed to not forbidden or not unlawful or it can mean a purpose that is supported by a positive rule of law.[11]
…
[31] The defendant submitted that lawful excuse in this context meant a purpose which is not forbidden by law. He further submitted that as keeping the card (P8) which would otherwise have been discarded as a souvenir was not forbidden by any law the prosecution could point to, prosecution had not proved beyond doubt he had no larvful excuse.
[32] Given the gamut of “without lawful excuse”, depending on context, the court will have regard to the purpose of the legislation in applying that term. The High Court on Taikato v R held “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.” Kirby J held “the better view is that [lawful purpose] refers to a purpose expressly or impliedly authorised by law”.
[33] Applying the test in Taikato, I find beyond doubt that the defendant had no lawful excuse for being in possession of the Card P8, that is, keeping that card after it was cleated. I accept the submission of prosecution with respect to lawful excuse. Just as White J found in Yuen, it would defeat the purpose of this legislation if possessing police property as a souvenir was a lawful excuse. It would defeat the control that police must have over possession of property that is issued for official purposes. The claimed suggestion made by PSO Petrie, a work colleague, does not confer any lawful authority. This is not the case of following a direction of a senior officer acting in an official capacity but rather following a casual suggestion by a colleague. Furthermore, if that suggestion was made, not only was it without lawful authority, it was quite an improper suggestion given the sensitive nature of the identification card P8. That it would have been improper seems to be recognised by the defendant who submitted a reason for PSO Petrie denying that he told the defendant he could keep P8 was because PSO Petrie knew he would be in trouble if he admitted it. While a lawful authority may perhaps be implied for creating P8 in the course of the defendant’s official duty, if that was required to test the operation of the printer, I find that there was no lawful excuse to retain P8 thereafter.
[11] Australian Trial Directions [3-3100-30].
The last sentence in the passage at paragraph [23] appears to postulate two alternative meanings. First, “a purpose that is authorised, as opposed to not forbidden or not unlawful”; and second, “a purpose that is supported by a positive rule of law”.[12] I assume that what his Honour really wished to say (although he did not) was that there are at least two possible meanings. First, a purpose that is lawful in the sense that it is positively authorised by a particular law or rule of law; and second a purpose that is lawful in the sense that it is not forbidden or not positively unlawful.
[12] The reference to Australian Trial Directions [3-3100-30] and particularly [3-3100-1] appears to refer to Taikato v The Queen (1996) 186 CLR 454.
However, it is the longer passage at paragraphs [30] to [33] that is most important. The Magistrate here holds that the term “without lawful excuse” in s 74 of the Police Act means “without positive authorisation by law”. I consider that to be an incorrect construction of the provision and that the term “without lawful excuse” in the present context means lawful in the sense that it is not forbidden or not positively unlawful. My reasons follow.
The correct ambit of “lawful excuse” in s 74 of the Police Act
The appellant submits that both the Magistrate and the single Judge misinterpreted and/or misapplied the decision of the High Court in Taikato v The Queen (Taikato).[13] In his appeal to this Court, Ma complains in Ground C:
C. In his Honour’s judgment, Justice David had not addressed the appellant’s raised argument and submission that in the context of the Police Act 1998, the term “lawful” and “lawful excuse” shall follow the general rule of being “not forbidden” rather than a narrow meaning of being “positively authorized”.
[13] (1996) 186 CLR 454.
This complaint is valid. During the course of his 4½ page judgment, the single Judge did not refer to the decision of the High Court in Taikato. The nearest his Honour came to discussing the issues there considered was the following passage:
[11] … A broad interpretation of that section was required since the purpose of the Act was clearly to prevent impermissible use of police material. The Magistrate also found that it had been proved that the shirt was part of the current uniform and fell within the definition of a police uniform. He also found that on the appellant’s evidence permission had been given by colleagues that he could have possession of both the uniform and the card. He found that it did not amount to “reasonable excuse”.
…
[16] The appellant then submitted that the prosecution did not prove beyond reasonable doubt that he had possession of the shirt and the card without lawful excuse. He contended that having obtained the permission of his colleagues that amounted to evidence of lawful excuse which had not been negated by the prosecution. I agree with the Magistrate that the permission of two colleagues cannot confer any lawful excuse or any lawful authority. At the very best the appellant was following what could only be described, on his own version, a casual suggestion by a colleague. [Emphasis added]
At paragraph [11], his Honour incorrectly referred to a test of “reasonable excuse” in circumstances where the contrast between that test and the quite different test adopted in the Police Act (“without lawful excuse”) was critical; this distinction played a large part in the discussion in Taikato and other cases. Later, at paragraph [16], his Honour did correctly refer to the test of “without lawful excuse” but did not in any way advert to the competing meanings of that test as discussed in Taikato and other cases.
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).
Their Honours then specified four matters militating in favour of the construction adopted in Taikato (and which will each be addressed below):[15]
First, the term “lawful purpose” appears in sub-s (2) of s 545E as an exception to sub-s (1) which makes conduct that was otherwise lawful, unlawful. It is unlikely, therefore, that “lawful purpose” merely means a purpose that is not forbidden by law; sub-s (1) makes possession of the relevant article or thing unlawful unless it falls within sub-s (2).
Second, unless “lawful purpose” in sub-s (2) means a purpose positively authorised by law, the general prohibition in sub-s (1) would apply only to situations where the purpose of the possession was otherwise prohibited by law. That is not an impossible interpretation. But it would mean that all that s 545E(1) added to the law was the offence of possessing a dangerous article in a public place for the purpose of doing something that was prohibited by law. That interpretation would not promote what we perceive to be one of the purposes of the section which is to ensure that dangerous articles and weapons are kept out of public places so that they are not at hand for use — whether that use was or was not anticipated when they were brought there. It is possession in a public place, not possession for a purpose that is prohibited by law, which constitutes the essence of the offence.
Third, if “lawful purpose” means any purpose that is not prohibited by law, the alternative defence of “reasonable excuse” will have little scope. Indeed, we doubt that it will have any scope at all. It is difficult to conceive of a situation where it could be a reasonable excuse to possess the weapon where the law forbade its possession for that purpose. Yet if “lawful purpose” means any purpose not prohibited by law, that class of case can be the only one where the defence of “reasonable excuse” could be needed.
Fourth, s 93G(1) of the Act which makes it an offence to possess a loaded firearm or speargun in a public place also provides that no offence under the section is committed “if the person satisfies the court that he or she had a reasonable excuse for possessing it or doing it or possessed or did it for a lawful purpose.” Any loaded firearm or speargun in a public place is a serious source of danger to members of the public. In the face of the prohibition in s 93G(1), it is difficult to conclude that Parliament intended that a person could carry a loaded firearm or speargun in a public place as long as that person was not carrying the weapon for a purpose prohibited by law. The evident purpose of s 93G would be largely nullified if people could carry loaded guns and spearguns in public places except where the purpose of the possession was prohibited by law. If the term “lawful purpose” in s 93G means, as we believe it does, a purpose positively authorised by law, then, prima facie, it should be given the same meaning in s 545E(2). It is a general rule for the construction of statutes that, where a word is used more than once in a statute, it is presumed to have the same meaning “unless there is reason to do otherwise”. Both s 93G and s 545E derive from the Firearms and Dangerous Weapons Act 1973 (NSW) and both were inserted in the Act in 1989. That being so, the terms “reasonable excuse” and “lawful purpose” in s 93G and s 545E should be given the same meaning. [Citations omitted; Bold emphasis added]
[15] Taikato (1996) 186 CLR 454, 460-462 (Brennan CJ, Toohey, McHugh and Gummow JJ).
The majority then referred to a matter militating against the construction adopted in Taikato (and which will also be addressed below). It was that a different section of the NSW Act created a different offence which arose where “a person is in lawful custody upon a charge of committing any crime or offence and is found to have been carrying ... any razor, razor blade or other cutting weapon ... unless the justice before whom he is brought is satisfied that he was carrying the same for a lawful purpose”. The majority noted that in the context of that offence provision it had been (correctly) held that “a lawful purpose” had there been interpreted as a purpose that was not forbidden:[16]
One factor that points against the conclusion that “lawful purpose” in s 545E means a purpose positively authorised by law is that s 353B of the Act also contains the term “lawful purpose” and that term has been interpreted in a manner that does not require the purpose to be positively authorised by law. Section 353B was introduced into the law of New South Wales in 1929 for the purpose of dealing with the “razor gangs” which were a source of much crime and concern at the time. The section makes it an offence where “a person is in lawful custody upon a charge of committing any crime or offence and is found to have been carrying ... any razor, razor blade or other cutting weapon ... unless the justice before whom he is brought is satisfied that he was carrying the same for a lawful purpose”. In Bell, Campbell J held, correctly in our opinion, that it was open to a justice to find that the accused had a “lawful purpose” within the meaning of the section when he was found with a pocket knife that he used in the course of his work on a horse stud.
But the fact that “lawful purpose” in s 353B does not require a purpose that is positively authorised by law does not throw much light on the meaning of s 545E(2). It has a different history, a different social purpose, and does not have the alternative defence of “reasonable excuse”. If “lawful purpose” in s 353B required the purpose to be authorised by law, any person who innocently had a packet of razor blades on him or her when arrested would be guilty of an offence against the section unless that person could point to a law that positively authorised the carrying of the razor blades. Such an interpretation of s 353B does not advance the purpose of the section and is so harsh and unreasonable that it must be rejected. [Citations omitted]
[16] Taikato (1996) 186 CLR 454, 462 (Brennan CJ, Toohey, McHugh and Gummow JJ).
As to other defences, such as “reasonable excuse”, the majority stated:[17]
… the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of Parliament and give effect to their own ideas of what is a “reasonable excuse” in cases coming within s 545E even when it requires the courts to make judgments that are probably better left to the representatives of the people in Parliament to make. It is therefore impossible to say that “self-defence” could never be a “reasonable excuse” for the purpose of s 545E(2) and perhaps even s 93G.
Accordingly in some circumstances, even before the recent amendments to s 545E, a person, who possessed a prohibited article or thing in a public place because he or she feared an attack, might have had a “reasonable excuse” within the meaning of that section. Nevertheless, given the purpose of the section and the requirement of reasonableness in sub-s (2), a plea of reasonable excuse could not succeed by relying on a mere belief that the person needed the prohibited object for self-defence. Whatever else was needed to make a plea of self-defence a “reasonable excuse” for possession of the dangerous item, a well-founded fear of attack in the public place in question would have to be a minimum requirement. Otherwise, the purpose of the section would be too easily defeated.
Upon the facts found by Judge Rummery, no ground exists for concluding that Mrs Taikato had a reasonable excuse for the possession of the canister of formaldehyde. The canister was found in her possession at about 12.15 pm in a public street in a suburb of Sydney. There is nothing in the findings of the learned judge that supports a conclusion that she was likely to be attacked or had a well-founded fear of attack while walking in the street where she was found in possession of the canister.
[17] Ibid 466 (Brennan CJ, Toohey, McHugh and Gummow JJ).
The minority (Dawson, Kirby and Gaudron JJ) would have allowed the appeal on the basis that the defence of “reasonable excuse” could be relied upon. Gaudron J was the only Justice who would also have allowed it on the basis of “lawful purpose”.
As noted above, there were four matters militating in favour of the construction for the NSW Act adopted by the majority (the Taikato construction) and one other matter militating against that construction. I turn to compare each of those matters with the different circumstances pertaining to the present case.
The first of the four matters militating in favour of the Taikato construction
The first matter was that s 545E(1) expressly outlawed the very conduct of possessing the spray in a public place in any circumstances and for any purpose. Section 545E(2) was a separate defence provision which enacted two separate defences: first, “had a reasonable excuse for possessing it” and secondly, “possessed it for a lawful purpose”.
As the majority noted, it is unlikely that “lawful purpose” in s 545E(2) merely means a purpose that is not forbidden by law because, ex hypothesi, s 545E(1) forbad possession of the spray in a public place for any purpose. Lawful purpose in s 545E(2) could therefore only mean a specific positive lawful authorisation which would in effect, “trump” the general unlawfulness imposed by s 545E(1). That this must be so is confirmed by the presence of the additional defence of “reasonable excuse for possessing the article” which would have a broader ambit.
It is therefore of critical importance in the present case to note that the Police Act 1998 (SA) is quite different to the NSW Act in (at least) three important respects.
First, s 74 of the Police Act does not (as did the NSW Act) first forbid conduct and then provide a separate defence provision. Rather, s 74(2) simply enacts: “(2) A person who, without lawful excuse, has possession of a police uniform or police property is guilty of an offence”. The problem for the defendant under the NSW Act (correctly recognised by the High Court as “the first matter”) referred to above simply does not exist under the Police Act.
Secondly, the Police Act does not enact an additional defence of “reasonable excuse for possessing the article”, which omission is indicative of a quite different approach to the defence of “lawful excuse”.[18]
[18] The approach of the South Australian Courts to the offence of being on premises “without lawful excuse” is considered below at paragraph [103].
Thirdly, the NSW defence provision, s 545E(2), bestowed two defences, being lawful purpose and reasonable excuse (the proof of either of which lies upon the defendant) whereas the Police Act incorporated a proviso of “without lawful excuse” which had to be averred and negatived by the prosecution.
In my view, the defence of “lawful purpose” (coupled with a reverse onus on the defendant) in the NSW Act tended to indicate that the defendant was required to establish that that there was a positive purpose for the subject possession; and that such purpose was positively authorised by the law. However, the situation under the Police Act where the onus is upon the prosecution to negate any “lawful excuse” is quite different. Here, the prosecution has to prove not only knowing possession, but also that the defendant in all of the circumstances had no lawful excuse for such possession, in the sense of a reason which did not contravene the law. Although similar, “lawful purpose” and “lawful excuse” cannot be characterised as one and the same.
The second of the four matters militating in favour of the Taikato construction
The second matter was that the subject matter of the prohibition in s 545E(1) was “anything … capable of discharging by any means” followed by various specified things. Those things included both specific items (eg detonators and fuses capable of use with an explosive or a detonator) and also classes of items more generally described (eg “any substance capable of causing bodily harm”).
It is important to note that the things caught by the legislation as being capable of being discharged included not only specific dangerous items such as detonators, but also classes of items which would include the most deadly and toxic substances that might be used to kill or severely injure (be it anthrax or cyanide powder, nerve gases or whatever). Given, the two defences available, it was appropriate that the meaning of “lawful purpose” should be the same no matter what substance was involved in a particular case, whereas “reasonable excuse” would be considered by reference to the particular substance involved in the particular case.[19]
[19] Thus, two of the three minority Justices in Taikato considered that the defence of lawful purpose was not made out, but that the “reasonable excuse” defence had been made out.
Once again, the content and form of the present legislation is very different to that in Taikato. First, and most obviously, the legislation does not address inherently dangerous items as was the case in Taikato. Secondly, under the Police Act there is no “reasonable excuse” defence and nor is there a general defence provision elsewhere in the Act; the words “without lawful excuse” have a quite different raison d’etre than “lawful purpose” had in Taikato.
Remembering that “without lawful excuse” will have the same meaning in both s 74(1)(a) and s 74(1)(b), take an example by reference to s 74(1)(b) (represents himself or herself by word or conduct to be a police officer). Say a member of the public (who is not a police officer) is out walking and unexpectedly comes upon a male person who is in the course of beating a female with an object. As a stratagem, he calls out: “Stop. I am a police officer. Put that object down!” Such a gambit may possibly work since an offender may be loathe to take on a male who proclaims himself to be a police officer and may quickly summon other police officers. But whether it works or not, I cannot accept that the Good Samaritan in this example who has the presence of mind to falsely claim to be a police officer is to be deprived of a defence on the basis that “lawful excuse” is to be construed as meaning only an excuse that is specifically authorised by other legislation.
Or take s 74(2) (A person who, without lawful excuse, has possession of a police uniform or police property is guilty of an offence). There are many obvious situations in which a person who is not a police officer may have possession of a police uniform or police property. Say a police officer while on duty at a police station accidentally soils his uniform or realises that he has forgotten to bring with him an item of police property he had left at home; if he telephones a partner, friend or relative who has a key to his house requesting that they bring him a fresh item of uniform or the forgotten police property, then such person will be undoubtedly in possession of that item of uniform or police property while transporting it to the police officer. Or to take an even more prosaic example, say a police officer leaves items of uniform at the drycleaners; again, the dry cleaner will undoubtedly be in possession of that item of uniform.[20]
[20] It should be noted that on the hearing of the appeal to this Court, counsel for the respondent conceded (correctly) that individual police officers could not “authorise” other persons, including trade persons, to deal with items of “police property” or “police uniform” and that any such authorisation would have to come from the Commissioner of Police.
Because Iannella was a case in which there were obviously two offences rather than one, little was there said by the High Court as to how the question of “how many offences?” is to be approached in more contentious situations. However, shortly thereafter, in 1972, this Court decided Romeyko v Samuels (Romeyko)[75] and discussion of this question now often starts with a consideration of the judgment of Bray CJ (with whom Bright J concurred) in Romeyko. His Honour stated:[76]
The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow.
[75] (1972) 2 SASR 529.
[76] Ibid 552.
In Romeyko, s 107 of the Post and Telegraph Act 1901-1970 (Cth) provided:
Any person who knowingly sends or attempts to send by post any postal article which—
(a)encloses an explosive or a dangerous filthy noxious or deleterious substance or a sharp instrument not properly protected or a living noxious creature or any other thing likely to injure other postal articles in course of conveyance or to injure an officer of the department or other person; or
(b)encloses an indecent or obscene print painting photograph lithograph engraving book card or article; or
(c)has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character,
shall be liable to a penalty not exceeding two hundred dollars or to imprisonment with or without hard labour for a term not exceeding two years.
Bray CJ held that only two offences were created and stated: [77]
The first question to be decided is whether s 107(c) creates for the present purpose one or several offences. Here, with respect, I find myself in disagreement with the learned Judge. It seems to me that the opening words of s 107, read with the specific words of sub-section (c), create two offences only, one of knowingly sending and one of knowingly attempting to send a postal article possessing any one or more of certain characteristics. The complaint only charges the defendant with knowingly sending, not with knowingly attempting to send. If the postal article in question has more than one objectionable word, mark or design, if it has some of such words, marks or designs thereon and some therein and some on its envelope and some on its cover, nevertheless only one offence, in my view, is created. If there are words to which all the five adjectives can be applied, or a collection of words to some of which each of the five adjectives can be applied separately, still, in my view, only one offence is created.
[77] Ibid 551.
Bray CJ’s approach was followed by the NSW Court of Appeal in R v Manwaring,[78] in which their Honours held that a statutory provision penalising abduction “with intent to marry or carnally know” created two offences: first, abduction with intent to marry or carnally know a woman and second, abduction with intent to cause a woman to marry or carnally know someone else. Miles J (with whom Street CJ concurred) stated:[79]
If different types of forcible abduction had been provided for in separate sections, then it would not be difficult to conclude that Parliament intended that an offence provided for in one section should be regarded as separate and distinct from that provided for in another section. It does not necessarily follow, however, that, by bringing all forms of forcible abduction into one section, Parliament intended that one offence only was thereby to be created. There are numerous examples in the Crimes Act of single sections which penalize more than one distinct type of behaviour and thereby create multiple offences, for instance the various types of attempt to murder provided for in ss 27 to 29. …
In my view there is no great difficulty in regarding an overt act combined with a particular intent as constituting a different offence from the same act done with a different intent. A wounding with intent to kill under s 27 is clearly a different offence from a wounding with intent to do grievous bodily harm under s 33. Further, there are examples in the Crimes Act of different offences created within the same section according to the intent accompanying the overt act. For instance s 33 penalizes not only malicious wounding done with intent to cause grievous bodily harm but also malicious wounding done with intent to resist lawful apprehension, and although it may be said that on the face of it the malicious wounding is in either case the same overt act, it is the specific intent which accompanies the act which characterizes that act for the purposes of the criminal law. Accordingly in my view a count alleging malicious wounding with intent to cause grievous bodily harm or with intent to resist lawful apprehension in the alternative would be bad for uncertainty.
[78] [1983] 2 NSWLR 82.
[79] Ibid 88-89.
In Mallon v Allon,[80] the English Queen’s Bench Division considered the Betting and Gaming Act 1960 which provided by s 5(1) that: “A licensed betting office shall be managed in accordance with the rules set out in the Second Schedule to this Act …”. Schedule 2, Rule 2 materially provided that “No person who is apparently under the age of 18 years … shall be admitted to or allowed to remain on those premises …”. Informations were preferred against the manager and the director alleging that each did unlawfully admit and allow to remain in the licensed betting office a person apparently under the age of 18. The Justices convicted both defendants. On appeal (by stated case), Parker LCJ stated:[81]
It is to be observed that the rule there is a rule applying to a person apparently under the age of 18 years, and providing that he shall not be admitted or allowed to remain. Prima facie, therefore, an allegation that he was admitted to or allowed to remain would be two separate offences. It has been argued by Mr. Rawden-Smith, for the prosecutor, that there is only one offence, the offence being a failure to prevent a person apparently under the age of 18 from being on the premises. He referred to a number of cases, including the well known case of Thomson v. Knights, where the expression “drink or drugs” was dealt with, and also to G. Newton Ltd. v. Smith, where an information charging the defendants with wilfully or negligently failing to comply with the conditions of a road service licence was held to be a single offence.
In both those cases, however, it is quite clear that what was being considered was a single act, in the one case driving, in the other case failing to comply with conditions. The expressions “wilfully or negligently” or “drink or drugs” were merely descriptive of the particular act complained of.
This is a case, as it seems to this court, which is quite different. There are two separate acts, first of all admitting a person, and secondly allowing him to remain after he has got onto the premises, and in those circumstances it seems to me perfectly clear that these are two separate offences.
It is then contended in the alternative that granted that that is so, the informations here took the form not of disjunctive but of conjunctive expressions. The informations read: “Unlawfully “admit and allow”, and in that connection reference was made to Reg. v. Clow, where it was held that an information charging the driving of a motor vehicle on a road at a speed and in a manner which was dangerous was not bad for duplicity. That, however, again was a case in which the charge related to a single incident, a single piece of driving. Here there are two incidents involved, one the admission of the person and the other the allowing the person to remain.
In those circumstances it seems to me that the informations here were bad for duplicity. … [Citations omitted]
[80] [1964] 1 QB 385.
[81] Ibid 391-392.
Mallon v Allonwas followed by the NSW Court of Appeal in Miller v Quinn,[82] a case with even more prosaic facts. The relevant part of the provision creating a charge of failing to wear a seat belt stated: “No person shall … drive or travel … in that motor car unless he is wearing that belt …”. The defendant drove a motor vehicle without wearing a seat belt, but was charged with “being a passenger travelling upon a motor vehicle … did not wear such belt”. Street CJ (with whom Moffitt P and Hope JA agreed) stated:[83]
It is clear enough, on the facts, that the present respondent was, on 14th December, 1974, the date of the offence, a person who drove in a motor car and was not wearing a seat belt. The charge as propounded, however, was that he was a passenger travelling upon (sic) a motor vehicle. This necessitates examination of whether reg. 110F (2) creates one offence, or whether it creates two offences. The answer to this question involves essentially an examination of the form in which par. (2) is cast. It is to the form that importance attaches in deciding whether there is one offence created (so that it could be expressed, albeit with some laxity, but nevertheless validly, in the terms that were used in this case), on the one hand, or whether, on the other hand, there are two offences, so as to result in the respondent not having been charged with the offence which would have matched the facts, as those were found against him.
In determining whether or not there is one offence or two, it is significant to emphasise that the form of this paragraph is that: “No person shall … drive or travel. …”
[82] [1977] 2 NSWLR 198. The parties were not inadequately represented, with R J Marr QC and J G Smyth for the appellant and J R Clarke QC and J N Gleeson, for the second respondent. The coram was Street CJ, Moffitt P and Hope JA.
[83] [1977] 2 NSWLR 198, 202.
His Honour then referred to Mallon v Allon with approval and continued:[84]
In examining reg. 110F (2) for the purpose of deciding whether this postulates two separate acts, which will each amount to an offence, or whether on the other hand it postulates merely one act with alternatively expressed descriptive qualifications appended to it, it seems to me that the answer must clearly be that the section is postulating two separate acts, either of which will amount to an offence. The first is encompassed within the words: “No person shall drive”; the second is encompassed within the words: “No person shall travel”; in each alternative instance there is a common descriptive qualification — “unless he is wearing that belt”.
[84] [1977] 2 NSWLR 198, 203.
Turning then to the application of Bray CJ’s words in Romeyko to the present case, the distinction here is between two classes of statutes. The first class is “a statute which penalises one or more acts, in which case two or more offences are created” and the second class is “a statute which penalises one act if it possesses one or more forbidden characteristics”. It is very difficult to see how the present statute could fall into the second class. For that to be so, the act to be penalised would have to be “possession” and the postulated forbidden characteristics would have to be “police uniform” or “police property”. However, “possession” taken by itself is amorphous and for it to be sensibly said that possession is to be penalised, one has to couple possession with something; and that something here is either police uniform or police property. That suggests this statute falls into the first class, “a statute which penalises one or more acts, in which case two or more offences are created”.
This conclusion is strongly reinforced by the consideration that in cases in the second classes, the “forbidden characteristics” are usually simple English words (often with a pejorative tinge). The epithets in s 107(a), (b) and (c) of the Post and Telegraph Act 1901-1970 (Cth) considered in Romeyko (reproduced above at paragraph [135]) provide a good example. By contrast, here the words “police uniform” or “police property” are not descriptive of different forms of one constant; rather, they each separately delineate a separate corpus of two different offences. That distinction becomes even clearer when one adds the cumulative consideration that the terms the words “police uniform” or “police property” are each separately defined at s 74(4); and therefore to correctly appreciate s 74(2) one should expand it to read as follows:
(2) A person who, without lawful excuse, has possession of all or part of the uniform of a police officer or property supplied, or to be supplied, to a police officer for official purposes is guilty of an offence.
Looked at in that way, it is very plain that this statute falls within Bray CJ’s first class and creates two different offences. Therefore, in the present case, both the Complaint and the record of findings are bad for duplicity.
A requirement for the prosecutor to elect
The above conclusion by an appellate Court may, according to all of the precise circumstances, lead to various dispositions. These include a quashing of the conviction without further order; or a remitter to the lower Court on various bases (including that the lower Court require the prosecution to elect); or the appeal Court itself may in some circumstances require the prosecution to elect as to which conviction (or finding as here) it will seek to support on appeal.
The decision of this Court in R v Liddy (Liddy)[85] affords an example of an appellate Court so requiring the prosecution to elect. There, the appellant, in an intoxicated and lonely state in the very early hours of New Year’s Day 2013, went out walking; and unfortunately took his shotgun with him.[86] At one location (when other persons were visibly present in the street), he fired one shot into the air (the first discharge). Later, at a different location (when no other person was visibly present), he fired another shot into a porch ceiling at the home of an acquaintance who was not home (the second discharge). A District Court Judge drew the prosecutor’s attention to the fact that there was only one count of discharging a firearm on the Information and stated: “They [the two discharges] are separated in point of time and you couldn’t, I don’t think, have one charge that deals necessarily with both …”. The case was then adjourned. However, despite those wise words, the prosecution made no attempt to add a further count of discharging a firearm and when the appellant later pleaded guilty to the count before a different District Court Judge, he was sentenced on the basis of having committed the offence twice by reference to both discharges. On the subsequent appeal, this Court confirmed that the view of the first of the two District Court Judges had been correct. It was said:[87]
[24] To be clear, the form of the count charging the s 32AA(3) offence was not patently duplicitous on its face, since the charge did not explicitly refer to more than one offence. However, if the charge had gone to trial on that one count, and the prosecution adduced evidence of the two discharges, the latent duplicity would have become apparent and it would have been necessary for the prosecution to elect as to which discharge was relied upon. In R v Staker, I stated (Sulan J and Kourakis J, as he then was, agreeing):
[13] I do not think it is presently necessary to consider at any depth the origin, nature or present content of the rule against duplicity. It is sufficient to observe that, in relation to some offences, one major effect of the rule is to prevent the charging of multiple offences even if the same victim and a relatively short period of time are involved. To give an obvious example, if it is alleged that the accused, A, punches the victim, B, at 11 am, causing him harm, and then departs but is alleged to return at 1 pm and kick B, again causing him harm, the defendant must be charged with two separate counts of assault causing harmrather than with one count into which both incidents are lumped. Various good reasons exist for the rule. Such reasons may or may not be manifested on each occasion of the application of the rule, but in the example just given, it can easily be seen that potentially there may be differences in the two instances of alleged assault in areas such as identity, requisite intention, accident, self-defence and causation of the alleged harm.
[14] There will, of course, be difficulties at the borders. Thus, if it be suggested that A administered a series of punches and kicks in succession to B, there will come a time when the interval between the inflictions of force may be so short that those various inflictions of force may be treated as “one” assault. This is a matter of fact and degree which is not necessary to pursue its precise limits for the purposes of the present case.
[25] It is not necessary here to pursue the precise limits of what is sometimes called the Merriman principle because the situation in the present case is clear. If the appellant had quickly fired one barrel after the other at the first location, the Merriman principle would have applied and only one offence would have been committed. However, the appellant fired only one shot at the first location and then walked a significant distance before he later fired a second shot in a different street, separated in time, location and circumstances from the first shot. In firing that second shot, the appellant deliberately committed a second and separate offence.
In the present case, there was to be a plea of guilty, but it was still necessary to delineate the offence for which a conviction was recorded and for which a penalty was imposed. The correct procedure was for the judge to have required the prosecution to elect as between the two discharges and then to proceed to sentence on the basis of that particular discharge. [Citations omitted]
[85] (2014) 119 SASR 555.
[86] He told Dr Raeside that he had heard celebratory fireworks going off and went outside to let off a couple of rounds from his shotgun. Whatever the reason, his conduct was entirely unacceptable.
[87] R v Liddy (2014) 119 SASR 555, 560-561 (Peek J, Stanley and Nicholson JJ concurring).
This Court in Liddy required the prosecutor to elect as to which discharge should be treated as the subject of the count and the prosecutor elected for the second discharge. This Court then re-sentenced accordingly.
In the present case, the Magistrate rejected Ma’s objection concerning duplicity and found that both limbs of the charge were made out. During the hearing of the present appeal, this Court upheld the objection and required counsel for the respondent to elect as to which finding he would attempt to support. Counsel formally elected to attempt to support the finding in relation to the shirt.[88] However, as the Court has now concluded that the findings as to each of the card and the shirt should in any event be set aside on the substantive grounds discussed above, nothing further need be said concerning the duplicity aspect.
[88] Liddy involved the situation of only one offence being charged, but evidence revealing two potential commissions of that same offence. The present case is somewhat different in that here there is patent duplicity caused by the inclusion of two different offences within one count. This Court did not hear submissions as to whether that might alter the election procedure on appeal.
PART 6: DISPOSITION
I have found that the Magistrate (and in turn the single Judge) erred in a number of important respects in their approach to, and analysis of, the Police Act and its present application. Those errors require that the whole of the finding(s) of guilt be set aside.
The finding of this Court that the card was not “police property” as a matter of law necessitates that the finding of guilt concerning that aspect of the Complaint should be dismissed without re-trial.
As to the shirt, the finding of guilt must also be set aside for the reasons given above, but it may be arguable that the errors made by the Magistrate could lead to a re-trial rather than a dismissal. However, I need not dwell on such fine points because it is plain that it would be unduly oppressive to order a re-trial concerning the shirt alone, having regard to all of the facts and circumstances, including the following:
-The appellant has no previous offending alleged against him and is of good character.
-The case at trial very largely concentrated upon the card, with comparatively little time and importance devoted to the shirt item. The card has now been demonstrated not to have been “police property” within the meaning of Police Act s 74(2) and accordingly a re-trial would not be ordered concerning that item.
-The Magistrate’s ultimate rejection of the appellant’s defence at trial concerning the shirt was based upon an incorrect construction of “lawful excuse” within the meaning of Police Act s 74(2) and an incorrect view that the offence was one of “strict liability”.
-The appellant is clearly an avid collector of police paraphernalia and the Magistrate specifically found on sentencing that he “retained both of these items effectively as a souvenir, a keepsake and that there was no other more nefarious purpose for keeping those items and I accept that you are unlikely to commit the offence again”.
-I consider that it is highly unlikely that the appellant would be found guilty at a re-trial concerning the shirt alone in which the law and evidence as to both “knowing possession” and “lawful excuse” were to be correctly analysed.
-The Magistrate on sentencing abstained from recording a conviction in circumstances where he had found that the charge was made out in relation to both items. If, as here decided, only the shirt item were to be under consideration, the matter would be substantially the less serious, as would be the extent of any fine to be imposed.
-The charge even now is very stale, the alleged offence date being more than three years ago; by the time of a re-trial, the charges would by then have hung over the appellant for about four years, an inordinate period of time with associated features of worry, inconvenience and an interference with his personal and business affairs.[89]
[89] Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, [51].
The appropriate disposition is that the Complaint be dismissed with no order for a re-trial. Accordingly, I would allow the appeal and make the following orders:
1. The appeal is allowed.
2. The finding of guilt is set aside.
3. The Complaint is dismissed without re-trial.
I would hear the parties as to costs of the trial and both appeals.
STANLEY J: I would allow the appeal. I would set aside the verdict of guilty and dismiss the complaint. I agree with the reasons of Peek J.
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