Morgan v Cramer
[2019] WASC 68
•7 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: MORGAN -v- CRAMER [2019] WASC 68
CORAM: HALL J
HEARD: 18 OCTOBER 2018
DELIVERED : 7 MARCH 2019
FILE NO/S: SJA 1020 of 2018
BETWEEN: CARMEL MORGAN
Appellant
AND
DAVID JAMES CRAMER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE A MAUGHAN
File Number : MI 5245/2016
Catchwords:
Criminal law - Appeal against acquittal - Being armed in circumstances likely to cause fear - Whether magistrate applied incorrect onus of proof - Whether the evidence could sustain a conviction - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 68
Result:
Leave to appeal on grounds 1, 2, 3 and 4 granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr L M Fox |
| Respondent | : | Mr R Williamson & Ms K Louden |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Ross Williamson |
Case(s) referred to in decision(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Ashcroft v R (1989) 38 A Crim R 327
Barritt v Baker [1948] VLR 491
Boxer v R (1995) 14 WAR 505
Dearnley v The King [1947] St R Qd 51
Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594
Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136
Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562
Mulhall v Barker [2010] WASC 359
R v Bennett [2000] 2 Qd R 174
R v Burnett (1983) 19 Qld Lawyer Reps 23
R v Edwards [1975] QB 27
R v Hunt [1987] AC 352
The State of Western Australia v Burke [2011] WASCA 190
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wills v Williams [1971] WAR 29
Woolmington v Director of Public Prosecutions [1935] AC 462
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494
HALL J:
This is a prosecution appeal against an acquittal.
On 24 May 2016 the respondent, David Cramer, appeared in the Perth Magistrates Court on a charge of being armed with a dangerous weapon in circumstances that were likely to cause fear to any person, contrary to s 68(1) of the Criminal Code (WA). Mr Cramer entered a plea of not guilty and the matter proceeded to trial.
The trial took place over four days in late 2017. At the conclusion of the trial the magistrate reserved his decision. On 20 February 2018 the magistrate delivered his decision, in which he acquitted the respondent and provided written reasons. The prosecution seeks leave to appeal against that acquittal. The grounds allege that the magistrate made errors of law.
The respondent submits that the alleged errors were not made, but even if they were the appeal should be dismissed as the errors did not result in a substantial miscarriage of justice. The respondent claims that, notwithstanding any errors, the evidence was insufficient to establish that the offence alleged was committed.
For the reasons that follow I am satisfied that the errors referred to in the grounds of appeal have been established. However, because the evidence was insufficient to prove the commission of the offence beyond reasonable doubt, an acquittal was the appropriate outcome notwithstanding the errors. Accordingly, there was no substantial miscarriage of justice and the appeal must be dismissed.
Facts
There were significant factual disputes at the trial but they are not material to the issues raised on this appeal. For the purposes of this appeal, it is convenient to rely upon the magistrate's findings of fact.[1] They can be summarised as follows.
[1] Magistrate's Reasons [74].
As at 27 April 2016 Mr Cramer was residing on a semi‑rural property in Stoneville. One of his neighbours, Ms Paige Prendigast, was the owner of a Staffordshire Bull Terrier dog by the name of Tyson. Tyson was, at all material times, a declared dangerous dog pursuant to s 33E of the Dog Act 1976 (WA).
On the day in question Tyson entered onto Mr Cramer's property and became involved in a fight with Mr Cramer's dog, which was being walked by his daughter. In response to hearing barking and what sounded like a dog fight, Mr Cramer loaded his shotgun and walked in the direction of the barking. He could also hear his daughter screaming. He believed that whatever was occurring involved Tyson, a dog he knew to be a declared dangerous dog.
As Mr Cramer walked towards the sound of the dog fight he saw Tyson and could hear the dog being called by Ms Prendigast. Ms Prendigast was standing at the boundary fence at the time. The dog was on Mr Cramer's property but was moving towards its owner. Mr Cramer saw Ms Prendigast trying, unsuccessfully, to get the dog through the dividing fence and back onto her property.
At this point Tyson moved towards Mr Cramer, but gave him what was described as 'a wide berth'. The magistrate accepted that Tyson may have been growling at Mr Cramer but did not accept that the dog was about to attack him. The dog then moved off in a direction away from Mr Cramer. At this point he discharged the shotgun.
The magistrate made a finding that Mr Cramer did not, at any stage, point the firearm at Ms Prendigast. Nor did he accept that Mr Cramer had discharged the firearm in the direction of the dog. At the time the gun was discharged, Mr Cramer was not 3 or 4 metres from Ms Prendigast (as she alleged) but 'more likely 25 metres away'. However, the magistrate was satisfied that the proximity was still such that the discharge of the gun could, and in fact did, cause fear to Ms Prendigast. This was established by her own testimony and evidence of her demeanour in the moments following the incident.
Magistrate's reasons
The magistrate made a number of references in his reasons to the onus and burden of proof. He commenced by setting out the charge and reminding himself of the fundamental principles that apply to prosecutions for criminal offences. In particular he said:[2]
Before proceeding further it is appropriate that I remind myself of the following:
…
(2) The burden of proving the charge is on the Prosecution.
(3)The Prosecution must prove the charge beyond a reasonable doubt. If there is a reasonable doubt as to whether the accused is guilty of the charge then it is my duty to acquit.
(4)The accused does not have to prove anything unless he relies upon the exculpatory provisions of s69(2)[3] of the Criminal Code Act (WA) 1913.
…
(10)Once a defence is properly raised by the accused on the evidence, the burden then shifts to the Prosecution to negate that defence beyond a reasonable doubt…
[2] Magistrate's Reasons [3].
[3] The reference to s 69(2) was clearly a typographical error and the reference should have been to s 68(2).
The magistrate then referred to the elements of the offence contained in s 68(1) of the Criminal Code. He said that these were:[4]
1.that the accused is the offender (identity);
2.that at the relevant time the accused was armed or pretended to be armed with a dangerous weapon; and
3.that the accused was armed in such circumstances as were likely to cause fear to any person.
[4] Magistrate's Reasons [4].
After summarising the evidence the magistrate quoted the terms of s 68 of the Criminal Code. It is convenient to set out that section here:
68.Being armed in a way that may cause fear
(1)A person who is or pretends to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person is guilty of a crime and is liable to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.
(2)It is a defence to a charge under subsection (1) to prove that the accused person had lawful authority to be so armed in such circumstances.
(3)A court that convicts a person of an offence under subsection (1) may make an order for the forfeiture to the Crown, or the destruction or disposal, of the thing in respect of which the offence was committed.
His Honour made the findings of fact that have been summarised earlier in these reasons. He then said:[5]
On the basis of the above findings of fact the Prosecution have prima facie established a case and it remains for the Defence to raise any lawful authority pursuant to s 68(2) of the Criminal Code.
[5] Magistrate's Reasons [75].
His Honour referred to a number of decisions which considered terms such as 'lawful excuse'. He referred to a defence submission that the appellant's conduct was authorised because he was acting in self‑defence. He said that Mr Cramer was unable to point to any imminent threat presented by the dog at the time he discharged his firearm.[6] He said that there was no evidence that the dog presented a threat to either Mr Cramer or his daughter at the time the shot was fired.[7]
[6] Self‑defence can arise where a threat of harm is not imminent - see s 248(4)(b). But it is difficult to see how self‑defence could be relied on here because the alleged act was not a harmful act as defined in that section.
[7] Magistrate's Reasons [78] - [79].
The magistrate then dealt with a defence submission that Ms Prendigast was unusually sensitive and that the fear experienced by her did not establish that the appellant was armed in such circumstances as were likely to cause fear to any person. His Honour referred to Boxer v R[8] and the test applied in respect to another section of the Criminal Code, being s 62, that the person who holds the fear must be a person of 'reasonable firmness and courage'.[9] His Honour said:[10]
In my view, there was nothing about the manner in which the Complainant gave her evidence to suggest that she was not such a person or that any reasonable person would not have been caused fear in circumstances where:-
i)There was a background of animosity between the parties;
ii)There was clearly some anger and/or frustration on the part of the accused, Mr Cramer, about Tyson's trespass upon his property; and
iii)Mr Cramer was armed with a shotgun and discharged that shotgun in close proximity to the Complainant.
[8] Boxer v R (1995) 14 WAR 505.
[9] Magistrate's Reasons [84] - [85].
[10] Magistrate's Reasons [86].
His Honour also dealt with a defence submission that discharge of a gun is not part of the relevant circumstances pertaining to a person being armed. Reference was made by the defence to a passage in the Queensland case of Dearnley v The King[11] in this regard. His Honour did not accept the defence submission and said that in his view the discharging of the firearm was a circumstance which could be relied upon in assessing whether an offence had occurred. His Honour referred to other cases, being R v Burnett[12] and Ashcroft v R[13] in this regard.[14]
[11] Dearnley v The King [1947] St R Qd 51.
[12] R v Burnett (1983) 19 Qld Lawyer Reps 23 (District Court of Queensland).
[13] Ashcroft v R (1989) 38 A Crim R 327.
[14] Magistrate's Reasons [87] - [91].
In regard to a defence submission that the accused was acting in a sudden or extraordinary emergency when he discharged the firearm, his Honour said that he did not accept that suggestion. He referred to the fact that Mr Cramer did not know the whereabouts of his daughter or his dog at the time he fired the gun. Nor did he know whether his daughter had been attacked. At the time the gun was fired Tyson presented no imminent threat.[15]
[15] Magistrate's Reasons [92].
His Honour then said:[16]
The case of [R v Bennett [2000] 2 Qd R 174], when read with the definition of 'lawful authority' cited in [Wills v Williams [1971] WAR 29], does however provide some assistance to the accused. It was lawful, in my view, for him to fire a 'warning shot' to scare Tyson from his property in circumstances where he reasonably believed, by reasons of Tyson's history, that he presented a potential future danger to himself, his daughter and/or his dog in the event he were to remain. Whilst that danger was not immediately present he was entitled, in my view, to prevent any risk in the near future by removing the dog. He then acted appropriately by calling the Ranger.
In my view, the Prosecution have not discharged their burden of proof by negating the lawful authority. There will be a judgment of acquittal (emphasis added).
[16] Magistrate's Reasons [93] ‑ [94].
Grounds of appeal
There are four grounds of appeal:
1.The magistrate erred in law by holding that, the prosecution having established a prima facie case, it remained for the respondent to 'raise' any lawful authority pursuant to s 68(2) of the Criminal Code when the respondent was, under that section, required to prove lawful authority;
2.The magistrate erred in law in holding that there was an onus on the prosecution to negative a defence of lawful authority;
3.The magistrate erred in law and in fact in holding that the respondent had not been shown to act without lawful authority in being armed with a dangerous weapon, namely a 12 gauge shotgun, in circumstances that the magistrate found did cause fear to a person; and
4.The magistrate erred in law and fact in acquitting the respondent of the charge of being armed in a manner likely to cause fear.
Grounds 1 and 2 - the onus of proving the defence in s 68(2)
It is convenient to deal with these grounds together. They focus on the critical statement made by the magistrate at the conclusion of his reasons that the prosecution had not discharged 'their burden of proof by negating the lawful authority'. This was plainly a reference to the defence referred to in s 68(2).
It is apparent from the magistrate's reasons that he proceeded on the basis that the issue of lawful authority having been raised at the hearing, the prosecution bore the onus of disproving that the appellant had lawful authority to be armed in the circumstances. He acquitted the appellant because he concluded that the prosecution had not discharged that onus.
There appears to be no authority dealing with the onus of proof imposed by s 68(2). However, I considered a similar issue in the context of another provision, s 80B of the Criminal Code, in Mulhall v Barker.[17] Section 80B provides that it is an offence to engage in conduct that is likely to harass a racial group. Section 80G(1) provides for a defence to a charge under s 80B where it is proved that the accused person's conduct was engaged in reasonably and in good faith in specified circumstances.
[17] Mulhall v Barker [2010] WASC 359.
In Mulhall I held that s 80G placed an onus on the accused to prove the defence on the balance of probabilities. I made the following observations:[18]
[18] Mulhall [16] ‑ [19].
The fact that the defence is contained in a separate and distinct provision suggests that absent proof of the matters referred to in s 80G(1) and assuming the elements of s 80B are otherwise proven, an offence would be established. The use of the words 'to prove' in s 80G(1) clearly imply that one party bears the onus of proving the matters that are referred to. This cannot logically be a reference to the prosecution as the matters in s 80G are exculpatory. Accordingly, on a plain reading of s 80G, the party that bears the onus of proving any of the defences is the defendant.
This interpretation is consistent with authority. In Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 Dixon CJ said:
The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification: see Barritt v Baker [1948] VLR 491, 495. The distinction has been criticised as unreal and illusory and as, at best, depending on nothing but the form in which the legislation may be cast and not upon its substantial meaning or effect. The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation, excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it (139 ‑ 140).
Where a statute creates a defence which is of the nature of an exception to be proven by the defendant, that burden may be discharged upon the balance of probabilities. In such instances, the imposing of a burden upon the accused to prove a defence is not limited to express statements to that effect; it may arise from necessary implication of the words used. In Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594 Brennan, Dawson and Gaudron JJ said:
The rule laid down in Woolmington v Director of Public Prosecutions [1935] AC 462, 481, that the burden of proving every element of an offence charged rests at all times upon the prosecution, was expressed to be 'subject to … the defence of insanity and subject also to any statutory exception'. It is made clear in Reg v Edwards [1975] QB 27 and Reg v Hunt [1987] AC 352 that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused (see eg Crimes Act 1900 (NSW) s 417), but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form. The Court of Appeal in Reg v Edwards [1975] QB 27, 40 viewed the statutory exceptions as limited to:
'Offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities.'
In Reg v Hunt [1987] AC 352 even this formulation was said by the House of Lords not to be exhaustive. Each case must turn upon the construction of the particular enactment (600 - 601).
In my view, it is clear from a reading of s 80G and its place within the context of ch XI of the Code that it is intended to contain defences, the burden of which falls upon the defendant to prove on the balance of probabilities. In coming to that conclusion I have had regard to the fact that s 80B is in its terms clearly a strict liability offence which does not burden the prosecution with any obligation to prove intent on the part of the defendant. The fact that s 80B and s 80G are contained in distinct and separate provisions supports the interpretation that s 80G is in the nature of an exception which the defence must prove. The wording of s 80G and in particular the use of the words 'it is a defence' and 'to prove' is also consistent with this interpretation. It is also relevant that the defence in s 80G(1) includes reference to the concept of good faith. This concept includes both subjective and objective elements. Insofar as it has a subjective quality it is more obviously amenable to proof by the defendant.
Those observations, and the cases there cited, apply equally to s 68 of the Criminal Code. While the defence to s 68(1) is contained in a subsection of s 68 rather than an entirely separate provision, it remains the case that the structure of the section clearly implies that, absent proof of the matters referred to in s 68(2) and assuming the elements of s 68(1) are otherwise proven, an offence would be established. The wording of s 68(2) is analogous to that of s 80B in that it states that 'it is a defence to a charge … to prove [certain matters]'. The only reasonable interpretation is that the party that bears the onus of proving this defence is the defendant.
Counsel for the respondent accepted that the magistrate's statement in the last paragraph of his reasons was in error. However, he relied upon the earlier reference in the magistrate's reasons to the accused not having to prove anything unless he relied upon the exculpatory provisions of s 68(2).[19] It was submitted that in light of this earlier reference there was ambiguity as to whether the magistrate had made the error alleged. I am unable to accept this submission. The earlier reference was one of general principle and, whilst it was correct, it stands in clear contrast to what the magistrate said at the end of his reasons. There is no ambiguity about the statement made in the final paragraphs. Whilst the magistrate appears to have properly understood the nature of the defence in s 68(2) at the commencement of his reasons, that understanding clearly did not carry through to when he came to apply the law to the facts of this case.
[19] See [12] above.
Grounds 1 and 2 have been established.
Grounds 3 and 4 - the meaning of 'lawful authority'
Grounds 1 and 2 assert that the magistrate erred by casting the onus of negativing lawful authority on the prosecution. By ground 3 the appellant submits that the magistrate made a further error by misapprehending the scope of the defence of lawful authority. The appellant submits that when the scope of that defence is properly understood it is plain that there was no evidence capable of establishing that the respondent acted with lawful authority. For this reason the appellant asserts in ground 4 that the magistrate erred in acquitting the respondent.
The expression 'lawful authority' occurs in a number of provisions of the Criminal Code. An example of a defence of lawful authority is found in s 338E(3) which provides that it is a defence to a charge of stalking for the accused person to prove that he or she acted with lawful authority. The appellant submits that the precise ambit of the expression will vary according to the context but that the essence of the defence is that the accused person is able to point to some positive legal authorisation for his or her conduct.
Section 68 in its current form came into effect on 21 May 2004. It formed part of the Criminal Code Amendment Act 2004 (WA) which was introduced in response to recommendations in the Murray Report.[20]
[20] Michael John Murray, The Criminal Code: a general review (Crown Law Department Western Australia, 1983) ('the Murray Report').
Prior to the amendment s 68 provided as follows:
68.Going armed in public so as to cause terror
Any person who goes armed in public without lawful occasion in such a manner as to cause terror to any person is guilty of a misdemeanour, and is liable to imprisonment for 2 years.
The recommendation of the Murray Report was:[21]
[21] The Murray Report 67 ‑ 69.
This provision, which makes it an offence to go armed in public so as to cause terror, is a provision used not infrequently where an individual discharges a firearm in a reckless or dangerous manner, but the Section is not wide enough and the penalty is not severe enough for the sort of situations which should be covered by its provisions.
In my view, the provision needs to be reframed to make it clear what sort of weapons it applies to and in my view it should apply to all firearms and offensive weapons. The Section should be apt to provide a less serious offence where the sort of intents which are referred to in Section 294 cannot be established. …
Recommendation -
1.In my view the thrust of the Section should be to penalise the having in possession of weapons, rather than continue the concept of going armed (See Appendix A). The concept of having a thing in one's possession as defined in a clear and extended way to include having the thing under one's control in Section 1 of the Code, and this change in emphasis would enable the Section to accord much more closely with the equivalent U.K. Prevention of Crime Act, 1953, Section 1, and would also bring the Section more into line with the provision in the Queensland Code, Section 56B, which creates the offence of being armed in Parliament House, and with respect to which the word "armed" is defined in terms of the possession or control of firearms, etc.
2.It is also, I think, necessary to delete the "in public" qualification upon the operation of the Section. It is illogical to penalise the possession of weapons, or conduct which causes fear, only in public and not in private. The concept of being in public is a slippery one at best, and has been productive of much litigation where it has been used in the definition of criminal offences. On occasions, acts of being armed so as to cause terror do occur in purely private situations and this necessitates a search for an alternative offence, which should not be necessary when one is trying to focus on the quality of the accused's conduct, rather than the place where it occurred.
3.The provision should be reframed to make it clear that it is not necessary before an offence can be committed under the Section that fear should be actually caused to any person. Again the reason for this recommendation is that the offence should focus on the particular type of conduct of the accused, and whether or not he commits an offence should not be made to depend upon whether or not he encounters strong minded individuals, brave persons who are not put in fear, or timid persons who are terrified.
4.As the above recommendations will widen the operation of the Section to an extent it seems as well to me to insert a defence, not present in the Section now, that the accused had lawful authority or a reasonable excuse for his possession of the weapon in the particular circumstances. This can do no harm to the effective operation of this Section. The onus would be on the accused, and it seems to me that such considerations should be a matter of defence rather than a matter to be covered by a sympathetic exercise of the discretion not to prosecute, as appears now to be the case. It is considered that placing the onus upon the accused to establish the defence (on the balance of probabilities) would also create no difficulty or injustice, because if the accused has a lawful authority or reasonable excuse he should readily be able to advance it.
5.It is further thought to be justified to incorporate into the Section an offence to possess weapons in circumstances likely to endanger the life, health or safety of any person or cause bodily harm to any person. These are related extensions of the type of conduct which would be likely to cause fear and the lack of these concepts within the offence at present is seen as a gap which ought to be remedied. Of course, the modification of the Section in this way makes it clear that the mischief it seeks to combat is the danger or fear likely to be caused to individuals by the type of conduct proscribed. It may be that consideration should be given to treating this as an offence related not so much to a breach of the peace within the subject matter covered by Chapter 9, as an offence related to the danger to life or health of individuals and therefore more appropriately to be included in Chapter 29, where such offences appear in the Code. That is however a matter on which I have no strong views.
6.I do however have strong views on the penalty. This offence is often utilized to deal with very serious fact situations which however, do not quite amount to the commission of an offence against Section 294, which would be punishable by life imprisonment. The offence can involve situations where individuals are terrorised and caused considerable distress. In those circumstances it seems to me that a maximum penalty of two years imprisonment is inadequate and I recommend that it be increased to five years imprisonment.
7.I also recommend that the weapon, in respect of which the crime is committed, should be forfeited in the discretion of the court to the Crown or be disposed of in accordance with the court's directions.
8.Finally it is to be noted that the recommendation is that the Section penalise the possession of any 'offensive weapon'. That phrase would need to be defined in Section 1 of the Code and I have included the definition accordingly which is designed to include not only offensive weapons in the manner in which they are defined in the U.K. Prevention of Crime Act, 1953, but also firearms and things which have the appearance of firearms, i.e.:- replicas. The definition, it is proposed, would also be relevant to the circumstances of aggravation proposed with respect to offences such as robbery and rape. A comprehensive definition as recommended would also enable the outdated distinction between dangerous and offensive weapons to be done away with. (See Appendix A)
The replacement of s 68 by a new provision in 2004 effected the following changes:
1.changed the offence from a misdemeanour to a crime;
2.increased the maximum penalty from 2 years' imprisonment to 7 years' imprisonment;
3.introduced a summary conviction penalty;
4.removed a requirement for the accused person to be 'in public';
5.adopted the broader expression of 'being armed' or pretending to be armed with any dangerous or offensive weapon or instrument instead of the expression 'goes armed'; and
6.inserted a defence of having lawful authority to be so armed and cast the onus of proof of that defence on the accused.
When Parliament enacted s 68 in its present form it gave effect to most of the recommendations contained in the Murray Report, but not to the entirety of the recommendations relating to the scope of the defence in s 68(2). The recommendations that the expression 'without lawful occasion' should be removed and that the onus of proving the defence should be on the accused were adopted. However, the scope of the defence which Parliament enacted was narrower than the proposal in the Murray Report.
In the Murray Report it was recommended that a defence in the form 'lawful authority or reasonable excuse' should be adopted. However, the words 'or reasonable excuse' were not included in the amending Act. There is no explanation for this in the explanatory notes or the second reading speech. The result is that the defence enacted in s 68(2) is apparently narrower than both the former s 68 and the recommendation of the Murray Report.
For these reasons, cases which dealt with the phrase 'without lawful occasion' as it appeared in the former s 68 and in similar provisions in other states must be treated with caution. The Queen v Bennett was such a case. Reliance on that case by the magistrate was misplaced.
In my view, s 68(2) provides for a defence to the charge under s 68(1) if the accused proves that he had lawful authority to be so armed in the circumstances that existed at the time. The lawful authority must extend to the manner and to the circumstances in which the respondent was armed, including the circumstances that are relevant to whether the conduct is likely to cause fear to other people. It is perhaps a statement of the obvious to say that authority to be armed in circumstances likely to cause fear would be expected to be granted only where strictly necessary and that there would be clarity about when such authority exists.
In the present case the magistrate correctly held that the scope of the word 'lawful' will depend on the context in which it is used. However, he did not ultimately express any conclusions about the meaning of the expression 'lawful authority' or its limitations.
In Molina v Zaknich,[22] the Full Court allowed an appeal against conviction relating to a charge under s 82B of the Police Act 1892 (WA). The appellant was convicted of remaining on premises 'without lawful authority' after having been warned to leave the premises by a person in charge. The court did not provide a comprehensive definition of the expression 'lawful authority' but accepted that the appellant was on the premises pursuant to a lawful authority which derived from statute and from an industrial award that was made pursuant to a statute.
[22] Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562.
The expression 'lawful authority' is not synonymous with 'lawful purpose' or 'lawful excuse'. Lawful purpose or excuse may be sufficiently proved though no lawful authority exists. The word 'authority' means, in this context, a 'derived or delegated power' or an 'authorisation'. An 'authorisation' is a 'formal approval or warrant'.[23] Accordingly, in my view, lawful authority means an authority to do a thing which is provided by a written law or by some body or person empowered by a written law to license, permit, or authorise the doing of the thing.
[23] Shorter Oxford English Dictionary.
In the present case the magistrate referred to R v Bennett and to Wills v Williams, cases which offered no real assistance in regard to the interpretation of the phrase 'lawful authority'.[24] His Honour then stated that it was lawful for the respondent to fire a warning shot to scare the dog from his property and that the respondent believed that the dog presented a potential future danger to himself, his daughter or his dog, and that although the danger was not immediately present the respondent was entitled to prevent any risk in the near future by removing the dog from his property. These findings sit uncomfortably with what the magistrate said about self-defence and emergency. But, in any event, none of these matters went to the question of whether the respondent had lawful authority to be armed in circumstances likely to cause fear. The matters referred to by the magistrate do not refer to any lawful authority deriving from statute or other public source which authorised the respondent to be armed in that manner. The magistrate's apparent view as to what could constitute lawful authority was in error.
[24] Wills v Williams concerned the meaning of the phrase 'without lawful excuse', not 'lawful authority' as the magistrate suggested.
In lengthy written submissions, counsel for the respondent sought to expand the scope of lawful authority by drawing in, by analogy, various principles from disparate areas of the law. These included, the circumstances in which the common law permits the shooting of a dog, the circumstances in which s 441 of the Criminal Code excuses injury to property and the circumstances in which s 34 of the Dog Act permits the shooting of a dog to protect livestock. I say 'by analogy' because counsel for the respondent accepted that none of these arguments had direct application to the facts of this case (not least because the dog was not shot and the magistrate found that the dog was not an imminent threat when the gun was discharged). These submissions were, in my view, unhelpful and no useful purpose would be served by analysing them in greater detail.
Proviso ‑ s 14(2) Criminal Appeals Act
The success of the grounds of appeal does not necessarily result in the setting aside of the acquittal and the substitution of a conviction. Section 14(2) of the Criminal Appeals Act 2004 (WA) provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
This form of the proviso needs to be understood as operating in a context where, unlike a jury, the magistrate provides detailed reasons for his or her decision. This enables an assessment to be made of whether any error was in fact material to the result, rather than merely having the potential to have such an effect.[25]
[25] WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [219] ‑ [242] (Mitchell J).
Whether the error is one of fact or law is relevant to the question of whether there has been no substantial miscarriage of justice. Where the error is one of law, there may be circumstances where the error has not affected the outcome, but there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.[26]
[26] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45]; AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438.
In The State of Western Australia v Burke,[27] the prosecution appealed against the decision of the judge to enter a judgment of acquittal after making a decision that the accused had no case to answer. The grounds of appeal were upheld and a question then arose as to whether the proviso applicable to such an appeal in s 33(2a) of the Criminal Appeals Act applied. That provision and the circumstances in which it arose have some similarities to s 14(2) and the present case, with one important qualification. Buss JA (with whom Martin CJ and Mazza J agreed) considered the proviso[28] and concluded that because the trial judge had erred in deciding that there was no case to answer the State's case against the accused had not been tried according to law. A final determination as to the facts to be found and the inferences to be drawn could only be made after the accused had made an election as to whether to call evidence and all such evidence and submissions on it were complete. His Honour noted that a fair trial involves fairness both to the accused and the State. In these circumstances, it was not open to conclude that no substantial miscarriage of justice had occurred.
[27] The State of Western Australia v Burke [2011] WASCA 190.
[28] The State of Western Australia v Burke [335] ‑ [343].
In the present case, unlike Burke, all of the evidence was called. There is no suggestion that the trial was unfair or that the prosecution was denied any opportunity to present its case fully. The errors only arose in the context of the magistrate referring to the relevant law and applying it to the facts in his final reasons. In my view, this is not a case where the proviso is excluded because the presuppositions of a fair trial have been breached.
A conclusion that there has been no substantial miscarriage of justice in this case could be reached in one of two ways. Firstly, by finding that the errors were not material to the decision to acquit. Secondly, if this court is satisfied on a review of the evidence that an acquittal was inevitable. The first approach is not open here; clearly, the errors were material to the magistrate's decision.
However, the second approach does not rely upon an analysis of the magistrate's reasoning; rather, it allows for a re‑appraisal of the evidence. Whilst this would generally require consideration of the evidence given by the witnesses, there were issues at the trial regarding the facts and the credibility of the witnesses. On this appeal, the prosecution did not contest any of the factual findings made by the magistrate. Accordingly, if guilt is not established on those findings together with any uncontested facts, it is unnecessary to undertake any more detailed review of the evidence.
The only matter which is relevant for present purposes is whether the evidence at the trial was sufficient to establish the third element of the offence, that is, whether the conduct of being armed was likely, in the circumstances, to cause fear to any person. The question is whether it was open to the magistrate to be satisfied as to this element, beyond reasonable doubt on the evidence at trial.
In my view it was not, for the following reasons. The magistrate treated the third element as proved if Ms Prendigast felt fear and that any reasonable person in the same circumstances would have felt fear. He specifically referred to the acrimonious relationship between Mr Cramer and Ms Prendigast. However, there were other relevant facts that were not referred to. Those circumstances include the following:
1.Ms Prendigast saw Mr Cramer as she was trying to get her dog back over the fence. According to her, Mr Cramer was holding the gun pointing down to the ground. There is no suggestion that he was holding, brandishing or displaying the gun in any manner that was likely to cause fear;
2.Mr Cramer was 25 m away from Ms Prendigast. The magistrate specifically said that he did not accept in this regard the claim made by Ms Prendigast that she was much closer, some 3 to 4 m away;
3.The magistrate made a finding that the gun was not pointed at Ms Prendigast when fired and was fired away from her;
4.The gun was also not fired in the direction of the dog, Tyson;
5.The context was that a dangerous dog was on Mr Cramer's property and had been fighting with his dog. This provided an obvious and reasonable explanation for the gun being fired, namely to ensure that the dog left and did not attack any person or other animal. A reasonable person in the circumstances would appreciate that the gun was likely to have been fired in order to scare off the dog;
6.The fact that the dog was a declared dangerous dog was known to Ms Prendigast and Mr Cramer;
7.This all occurred in a semi‑rural area where the carrying and firing of guns is likely to be more common than in built up, urban areas (and, indeed, there was evidence to this effect); and
8.The fact that there was a history of animosity between Ms Prendigast and Mr Cramer made it likely that she would (wrongly) assume that the gun was fired at her (and thereby cause her fear). Her fear was not indicative of the likely effect on 'any person'.
Taking all of those other circumstances into account, it was not open to conclude beyond reasonable doubt that Mr Cramer was armed in a way that was likely to cause fear to any person. The fear felt by Ms Prendigast was a relevant consideration, but it was not conclusive. It was apparent that her fear was caused not by the manner in which Mr Cramer carried the gun, but because it was fired. That fear was a product of knowing that her dog was on the neighbour's property and a belief that the gun may have been fired at her (which it was not). The offence is, however, only proven if the accused is armed in circumstances likely to cause fear to any person. This presupposes an objective standard of a reasonable person who is aware of all the circumstances. To emphasize the subjective experience of one person who was not aware of all the relevant circumstances (such as where Mr Cramer was, where the gun was pointed and how it was discharged) or was mistaken as to those circumstances (as Ms Prendigast admitted she was) was to substitute the wrong standard. For the offence to be proved there must be something, objectively, about the way the accused was armed that was likely to cause fear. That was not established here, for the reasons I have given.
This decision is not, and should not be interpreted as being, a licence to registered gun owners to use and discharge firearms whenever they consider they have a justification for doing so. The outcome here is entirely fact-specific. Whether the conduct of being armed is likely to cause fear to reasonable persons will always depend upon an assessment of all of the relevant circumstances.
Conclusion
The magistrate made the errors identified in the grounds of appeal. Each of the grounds has been made out. However, an acquittal was the correct outcome for reasons other than those given by the magistrate. In those circumstances the appropriate orders are as follows:
1.Leave to appeal on grounds 1, 2, 3 and 4 is granted.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honorable Justice Hall8 MARCH 2019
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