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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MA v Police

Details

AGLC: MA v Police [2019] SASC 212
Case: [2019] SASC 212
Decision Date: 13 December 2019

CaseChat Overview and Summary

The appellant, in this case, appealed against his conviction for possessing property of a police officer without authority. The case was heard by the Supreme Court of South Australia. The central issue in the case was whether the appellant, who was a Protective Security Officer, had authority to possess a police identification card and a police shirt, which were found during a police search of his home. The appellant claimed that the items were kept for benign purposes and that he had created the card during a test print in the presence of a colleague. The colleague, however, denied giving the appellant permission to keep the card.

The court considered the appellant’s defence of honest and reasonable mistake of fact, but ultimately rejected it. The court found that the appellant’s belief that he could keep the items was a mistake of law, not fact. The court found that the appellant had no authority to possess the items, as he was not a police officer, and that the items were found in his possession without justification. The court dismissed the appeal and upheld the conviction.

The court found that the appellant had the authority to create the items in the course of his employment, but this did not extend to possessing them without authority. The court emphasised that the appellant’s status as a Protective Security Officer did not give him the same rights as a police officer. The court also noted that the appellant had no intention of using the items for any sinister purposes, but this did not excuse his possession of them without authority.

The final orders of the court were to dismiss the appeal and uphold the conviction of the appellant. The court did not record a conviction against the appellant, reflecting the fact that the items were kept for benign purposes. The court’s decision highlights the importance of the distinction between possessing property with authority and without authority, and the need for individuals to understand the limits of their authority in their roles.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.