MA v Police - [2019] SASC 212

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MA v POLICE
[2019] SASC 212
Judgment of The Honourable Auxiliary Justice David
13 December 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES
Appeal against a decision of a Magistrate.
The appellant is a Protective Security Officer (PSO). He is not a police officer. Pursuant to a warrant, the police searched his home address where they located a police identification card, which falsely identified the appellant as a member of the South Australian Police, and a police shirt. The appellant was charged with the offence of, without lawful excuse, possessing of a police uniform or police property contrary to s 74(2) of the Police Act 1998 (SA) (the Act). The appellant gave evidence at trial that he had obtained the permission of two PSO colleagues to take possession of the card and the police shirt.
Following a trial in the Magistrates Court, the appellant was found guilty of the offence and without recording a conviction, the Magistrate imposed a fine of $500. The Magistrate considered the offence to be one of strict liability. The Magistrate found that both the card and police shirt, which he treated as mere particulars of the one charge, fell within the definition “police property” within the meaning of s 74 of the Act. The appellant’s evidence that he had been given permission by fellow PSOs to be in possession of the card and the police shirt fell far short of reasonable excuse. The defence of honest and reasonable mistake of fact was also found to not be made out.
In this Court, the appellant appeals against the Magistrate’s finding of guilt. He submits that the Magistrate erred in proceeding to deal with the section on the basis of strict liability, that the charge was duplicitous and that the police shirt did not satisfy the definition of “police uniform” within the meaning of s 74. He further contends that the prosecution did not prove beyond reasonable doubt that he had possession of the card and police shirt without lawful excuse, in the light of his evidence of having obtained permission from his colleagues to take possession of the items, and that the defence of honest and reasonable mistake of fact was available to him.
Held, dismissing the appeal:
1.      The Magistrate did not err in his finding of guilt.
2.      As the matter was one of possession, the question of strict liability did not arise.
3.      The Magistrate was correct in finding that there was no lawful excuse for possession of the items, and the defence of honest and reasonable mistake did not arise.
Police Act 1998 (SA) s 74, referred to.
Proudman v Dayman (1941) 67 CLR 536, considered.

MA v POLICE
[2019] SASC 212
David AJ:

The appellant was charged with the offence of without lawful excuse having possession of a police uniform and police property. The particulars of the offence were:
OFFENCE DETAILS
On the 14^th day of July 2017 at BELLEVUE HEIGHTS in the said State, without lawful excuse had possession of a police uniform and police property. Section 74(2) of the Police Act 1998 (SA)
I set out the whole of the above section:[1]
[1]    Police Act 1998 (SA), s 74.
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 appellant pleaded not guilty to the charge and following a trial, a Magistrate found the charge proved and without recording a conviction imposed a fine of $500.
The appellant now appeals against that finding of guilt. Both at the trial and on appeal the appellant represented himself without the benefit of counsel.
Background facts and the trial
There is no dispute that on 14 July 2017 police, pursuant to a warrant, searched the home address of the appellant. In his bedroom, a police identification card (the card) was located in the appellant’s wallet. A current police shirt (the shirt) was also found in the same room.
At all relevant times the appellant was employed as a Protective Security Officer (PSO). He was not a police officer. He commenced employment as a PSO in 2013. The duties of a PSO are, in general, to maintain the security of public buildings, places and officials, and, in particular, at Police Headquarters he had the responsibility of creating police identification cards which are used by police to control access to police property. There are two types of cards for police officers which are created by the Gallagher Access Control System. One is an access card which is a swipe card and is used to open secure entrances to police property. The other is an identification card which is used to identify the holder as a police officer. An identification card is smaller than a swipe card and designed to fit into a wallet for identification purposes. The card that is the subject of the present charge is an identification card and the information on the face of the card falsely identified the appellant as a member of the South Australian Police and included his photograph.
There is no dispute that the appellant in his capacity as a PSO had authority, and was required, to use the Gallagher Access Control System to create swipe cards and identification cards for members of the South Australian Police. There is also no doubt that the card was found in his possession during the police search, but the appellant explained in both an interview he gave to the police and in his evidence at the trial that the card, which as mentioned earlier was found in his wallet, was created in the process of doing a test print whilst in the company of a colleague PSO, namely Stephen Michael Petrie. The appellant gave evidence that PSO Petrie informed him that he could keep the test card with the appellant’s identification on it “for fun”. There was no suggestion that that card was a genuine identification card because, of course, the appellant was not a police officer and those identification cards only applied to police officers.
PSO Petrie was called by the prosecution to give evidence. He said that occasionally PSOs did create police identification cards in their own names, but this was for the purpose of testing the operation of the system and once it had been tested the card would be destroyed. He denied in his evidence telling the appellant that he could keep the card for fun or for anything else. By looking at the Gallagher Access Control System’s records it was established that the identification card was made on 18 August 2015.
In relation to the police shirt, which was part of the police uniform and was identified as part of the current uniform, the appellant explained in his evidence that he retrieved the shirt from a bin which was located either on the ground floor or the first floor of police headquarters where discarded uniforms were disposed. He said that at the time he took the shirt from the bin, along with a number of older uniforms, another PSO, namely Leslie Ray Arnold, had said that he could take the uniforms. He considered that as PSO Arnold was senior to him, he had permission to do so. PSO Arnold was called by the prosecution at the trial, and gave evidence that he was a PSO and that he denied ever having given the appellant permission to take anything from the disposable bins containing a police uniform. It appears as though the taking of the uniforms by the appellant happened on the same day as the creation of the card.
There was some debate at trial as to whether the shirt was part of the current uniform and whether the appellant knew that to be so. He gave clear evidence in cross-examination that it was part of the current uniform and he knew that to be so. At trial, as on appeal, the appellant raised a number of arguments. I will deal with them in dealing with the appellant’s argument on appeal.
The Magistrate’s findings
In his reasons for decision, the Magistrate said he would proceed on the basis that the offence was one of “strict liability”. He also found that there was no question of duplicity in the charge, even though there were two items that were alleged to have been in the appellant’s possession. He treated those items as mere particulars of the one charge. He found that the card fell within the definition of police property under s 74 of the Police Act 1998 (SA) and rejected the submission that because it could not, in fact, be used (as the appellant was not a police officer), the basic card itself was nevertheless used for official purposes, namely to supply cards to police officers. 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”.
The Magistrate also rejected the submission put by the appellant that he had an honest and reasonable mistake of fact when possessing those items, in that he thought that having the card “for fun” and having the uniform just to keep as part of a collection item would not be an offence was a mistake of law not facts.
The appeal
The appellant repeats those submissions on appeal and I deal with them in turn. First, the appellant complains that the Magistrate erred in stating that he proceeded to deal with the section on the basis of strict liability. I find it difficult to know exactly what the Magistrate meant by that description because the essence of the offending is one of possession. That of itself means there must be knowledge by the appellant that he had the items. That knowledge was clearly proved and was in fact admitted. He knew about the card and he knew about the shirt, and the element of possession has been clearly made out.
The appellant also submitted that the charge was duplicitous. In my view, there is no merit in the argument as both the shirt and the card were particulars of the one charge, in the same way that a number of items might be set out in relation to a charge of theft. It need not be proved that all of the items have been taken for the charge of theft to be made out, and similarly in this case only one of the particulars need be proved to be in the possession of the appellant.
The appellant then submitted that to satisfy the definition of police uniform, the shirt must be part of the uniform of a specific police officer. In my view, to give such restricted interpretation of the section would defeat its purpose. The words “police uniform means all or part of the uniform of a police officer” clearly do not apply to a particular police officer.
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.
The appellant also submitted that the card did not fall within the definition of police property because, as it was in fact a test card with his details upon the card, it could not be described as being supplied to a police officer for official purposes. However, I am in agreement with the Magistrate that looking at the purposes of the section, that definition must be given a broad interpretation. The card itself and the mechanism for creating the card are, of course, police property. The use of the card is meant for police officers for official purposes. The fact that the details on the card were not allowed to be used for official purposes does not take it outside the definition of police property. The purpose of the creation of the card is for the official purpose of identifying the holder as a member of the South Australian Police. The fact that this card had bogus information attached to it does not take it outside the definition of police property.
The final submission the appellant presented was that there is the defence of honest and reasonable mistake of facts, pursuant to the principles set out in Proudman v Dayman.[2] For the reasons already set out above, the appellant claimed he believed that he could keep both the shirt and the card. That belief was clearly not a mistake of fact but a mistake of law. I find that submission has no merit.
[2] (1941) 67 CLR 536.
Conclusion
On the evidence, the Magistrate clearly found that the offence was made out, but inherent in his decision is the fact that the shirt and the card were kept for benign purposes. There is no suggestion on the evidence presented that the appellant was going to use those items for sinister purposes. The Magistrate reflected that by virtue of the fact that he did not record a conviction. As to his finding of guilt and his reasons I find there is no error.
I dismiss the appeal.