Mullaney v Taylor
[2006] WASC 149
•27 JULY 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MULLANEY -v- TAYLOR [2006] WASC 149
CORAM: JENKINS J
HEARD: 7 JUNE 2006
DELIVERED : 27 JULY 2006
FILE NO/S: SJA 1022 of 2006
MATTER :Criminal Appeals Act 2004, Pt 2
BETWEEN: MICHAEL SEAN MULLANEY
Appellant
AND
ISAAC PETER TAYLOR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P S MICHELIDES
File No :FR 3886 of 2005
Catchwords:
Criminal law - Appeal from decision that respondent had no case to answer - Weapons Act offence - Knuckleduster - Proof that item found in possession of respondent was a knuckleduster
Legislation:
Control of Weapons Act 1990 (Vic)
Control of Weapons Regulations 2000 (Vic)
Criminal Appeals Act 2004 (WA), s 6, s 27
Criminal Procedure Act 2004 (WA), s 3(2)(b), s 65(4), s 108(1), s 147(3)
Justices Act 1902, s 139, s 142
Official Prosecutions (Accuseds Costs) Act 1973
Weapons Act 1999 (WA), s 6(1)(b)
Weapons Regulations 1999 (WA), r 4
Result:
Appeal allowed
Decision by Magistrate set aside
The case be heard afresh by the Magistrates Court
Category: B
Representation:
Counsel:
Appellant: Ms D E Quinlan
Respondent: Ms V Amidzic
Solicitors:
Appellant: State Solicitor for the State of Western Australia
Respondent: Amidzic & Associates
Case(s) referred to in judgment(s):
Doney v The Queen (1990) 171 CLR 207
Knight v Pipersberg, unreported; SCt of Vic; Library No 9038; 6 June 1991
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Bilick (1984) 36 SASR 321
Case(s) also cited:
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Deing v Tarola [1993] 2 VR 163
Director of Public Prosecutions v Kindred (1996) 15 WAR 133
Douglas v Withey, unreported; SCt of Vic (O'Bryan J); Library No O/R 30/1989; 22 January 1990
Miller v Hrvojevic [1972] VR 305
JENKINS J:
The decision under appeal
The prosecution appeals a decision of a Magistrate sitting in the Magistrates Court at Fremantle on 28 February 2006. The decision under appeal is a Magistrate's dismissal of Fremantle Complaint (now, Prosecution Notice) No 3886/05 being one count of possessing a prohibited weapon, namely a knuckleduster contrary to the Weapons Act 1999 (WA) ("the Weapons Act"), s 6(1)(b).
Grounds of appeal
Leave to appeal has been granted on the grounds that the Magistrate erred in dismissing the complaint in that he erred in law in:
"(a)finding that the evidence, including exhibit 1, was not capable of establishing proof of the criteria in item 12 of the Schedule to the Weapons Regulations 1999;
(b)failing to find that he could determine whether or not exhibit 1 was a knuckle duster for the purpose of Item 12 of the Schedule to the Weapons Regulations 1999 by examining item 1; or alternatively by examining item 1 in combination with the evidence of Senior Constable Maloney; and
(c)finding that the Accused had no case to answer."
Details of charges and proceedings
The appellant pleaded not guilty to the charge. A trial ensued. At the conclusion of the prosecution case the respondent's counsel submitted that the respondent had no case to answer. The Magistrate upheld that submission and purported to "dismiss" the complaint.
The respondent submits that the Magistrate's dismissal of the charge did not amount to an acquittal of the respondent from which the prosecution has a right of appeal. I disagree.
The Magistrate used terminology that was consistent with the now repealed Justices Act 1902 (WA), s 139. A dismissal of a complaint under that Act was equivalent to finding a defendant not guilty of the charge in it. Under the Criminal Procedure Act 2004 (WA), s 65(4) and s 108(1), which Act was in force at the time of the hearing, his Honour's only power upon upholding a submission of no case to answer was to find the respondent not guilty of the charge. He effectively did this by the order of dismissal.
The Criminal Appeals Act 2004 (WA), s 6 and s 27 provide that an aggrieved person may appeal from a decision to acquit an accused of a charge. "Acquit" is not defined in that Act. However, s 4(1) provides that words used in the Criminal Appeals Act 2004 (WA) have the same definitions as in the Criminal Procedure Act 2004 (WA) unless the contrary intention appears. The Criminal Procedure Act 2004 (WA), s 3(2)(b) provides that a person is acquitted of a charge if the court enters a judgment of acquittal under s 147(3). Section 147(3) provides that if a person is found not guilty of a charge the court may enter a judgment of acquittal of the offence charged. As I have said the dismissal of the charge was equivalent to a not guilty finding. Such a finding can now only lead to an acquittal of the accused of the charge. Thus, I am of the opinion that the Magistrate's dismissal of the charge amounted to an acquittal of the respondent from which the prosecution has a right of appeal.
Factual background
The respondent admitted that he was in possession of the item alleged to be a prohibited weapon.
The only witness for the prosecution was Senior Constable Michael Sean Maloney. Senior Constable Maloney gave undisputed evidence that on 24 April 2005 he searched the respondent's car and found the alleged prohibited weapon in a bag on the seat beside the respondent who was then sitting in the driver's seat of the car. The respondent was the sole occupant of the vehicle. The witness asked the respondent who owned the item and what the item was "for"? The respondent told the officer it was his and that it was "for breaking ice".
The alleged prohibited weapon was seized and admitted into evidence as exhibit 1. I have viewed the item. It is a piece of clear and hard material, presumably a synthetic resin, of uniform thickness. It is approximately 1.4 cm thick. It is an irregular shape. The edges of the item have been slightly and uniformly rounded off. It is approximately 7.5 cm at its widest. Its longest side is approximately 11 cm long. Approximately 1.5 cm in from the edge of the longest side and approximately 3 cm in from the edge of the opposite side, there are two holes in the slab. One hole is a circle approx 2.5 cm in diameter. The other is in the shape of three intersecting circles and each circle is approximately 2.5 cm in diameter. The total length of this larger hole is approximately 6.5 cm. A tracing of the item is attached to these reasons.
The Magistrate found that a court could find beyond reasonable doubt that the holes were for fingers to be inserted through so as to grip the item in the palm with a ridge of hard, resinous slab protruding beyond the knuckles of a hand that would be holding such an item. The Magistrate's finding in this regard is not disputed by either party. When I insert my fingers through the holes the item fits comfortably in the palm of my hand. A continuous layer of hard resinous material runs along the outside of the fingers and knuckles of the hand. Another layer runs along the inside of the fingers and provides a handle for the fingers to grip onto. The item may be held from either side. I uphold the Magistrate's finding in this regard.
In examination‑in‑chief Senior Constable Maloney described the item as a "knuckleduster". No objection was taken to him describing it as such. In cross‑examination he said that he knew what the item was used for. He was asked how he knew that and he replied "I know what a knuckleduster is used for". He was then asked:
"What is a knuckleduster?---A Knuckleduster is something that's placed in the actual hand - -
Yes?--- - - for striking people. It's a weapon and I've seen them, we've seized exactly the same, clear Perspex knuckledusters before."
He agreed that the item was clearly homemade. There were some other questions about the item but at no stage did the respondent's counsel put to the witness that the item was not a knuckleduster.
At the conclusion of the police officer's evidence the respondent's counsel made a submission of no case to answer. She submitted that the definition of a knuckleduster in the relevant regulations required the prosecution to prove that the item was made for the purpose of being used as a knuckleduster. She submitted that the evidence adduced by the prosecution was incapable of proving this. She submitted that it was insufficient for the prosecution to prove that the item could be used as a knuckleduster. She said that as it was reasonably possible for the item to have been made as, for example, an ice breaker, the prosecution had not proved its case.
The prosecutor submitted that the statutory definition of a knuckleduster could be satisfied by the Magistrate examining the item for himself and taking into account the evidence of the police officer.
After considering the issues during a short adjournment the Magistrate ruled that there was no case for the respondent to answer. He found that the item could be used as a knuckleduster but it also could be used for other purposes. He found that the mere capacity to use the item as a knuckleduster did not satisfy the statutory definition which required the item to have been made or modified not only to be worn across the knuckles but also so as to be used as a knuckleduster. Mere capacity to be worn as knuckleduster was insufficient. The Magistrate appears not to have put any weight upon the police officer's evidence because, as he said, "since it is not qualified, [it] is no better than anyone else's opinion". Thus, he held that the evidence before him was incapable of proving the statutory criteria. He dismissed the charge.
General legal principle relating to appeals
An appeal from a decision of a Magistrate may be allowed if an error of fact and/or law has been made by the Magistrate: Criminal Appeals Act 2004 (WA), s 8(1).
Legal Principles relating to no case submission
In Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 at 489 Malcolm CJ (Kennedy and Ipp JJ agreeing) said:
"… where a no case to answer submission is made by an accused in reply to a prosecution case, the trial judge is required to ask whether evidence of the Crown taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused."
In Doney v The Queen (1990) 171 CLR 207, Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 214 - 215:
"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
In Morrison v Kiwi Electrix Pty Ltd (supra) at 491, Malcolm CJ agreed with King CJ in the South Australian case of R v Bilick (1984) 36 SASR 321 at 337 where King CJ said:
"Where the case is a circumstantial or partly circumstantial case and therefore depends upon inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the Prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?"
Legal principles relating to proof that the item was a prohibited weapon, namely a knuckleduster
The Act, s 6(1)(b) relevantly states:
"6. Prohibited weapons
(1)Except as provided in subsections (2) and (3) and section 10, a person who –
…
(b)… possesses a prohibited weapon;
… commits an offence."
There is no dispute that a knuckleduster, as defined by the Weapons Regulations 1999 (WA) ("the Weapons Regulations"), is a prohibited weapon for the purpose of the Weapons Act. If the respondent was in possession of a prohibited weapon there are no relevant exceptions that would render him not guilty of the offence charged. Thus the practical issue at trial was, and on appeal is, whether there was sufficient evidence before the Magistrate to establish to the standard required for a no case submission that the item possessed by the respondent was a knuckleduster, as defined.
The Weapons Regulations, r 4 provides that an article described in Schedule 1 to the regulations is prescribed to be a prohibited weapon. Schedule 1 to the regulations includes knuckledusters and describes them as being;
"An article made or modified to be worn across the knuckles of a hand so as –
(a)to increase the force at the point of impact of a punch or blow when striking another with those knuckles; or
(b)to protect the knuckles from injury when striking another with those knuckles."
As the Weapons Act is based on the Control of Weapons Act 1990 (Vic), I assume that this description, which is very similar to that contained in the Control of Weapons Regulations 2000 (Vic), is also based on the Victorian provisions: Weapons Bill Second Reading Speech, Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 22 April 1999, at 7604‑5. The Victorian regulations state:
"'Knuckle‑duster', being a device or instrument designed or adapted to be worn across a knuckle or knuckles of the hand, finger, fingers, or thumb so as to –
(a)increase the force or impact of a punch or blow when striking another person with that hand, finger, fingers or thumb; or
(b)protect the knuckle or knuckles from injury when striking another person with that hand, finger, fingers or thumb."
When Smith J considered the Victorian regulations in Knight v Pipersberg, unreported; SCt of Vic; Library No 9038; 6 June 1991 the only difference in the Victorian regulations was that "and" separated (a) and (b) rather than "or". Smith J said at 3:
"The definition requires a conclusion to be drawn as to the purpose of the design of the object, and that purpose of design must encompass three things;
(a)to be worn across the knuckles;
(b)to increase the force of impact of a punch or below [sic] with the hand, and
(c)to protect the knuckles from injury when striking another with those knuckles."
Adapting that test to the description of a knuckleduster in the Weapons Regulations, I say that the description of a knuckleduster requires conclusions to be drawn as to purpose of making or modifying the item, and the purpose of making or modifying the item must encompass two requirements, with the second requirement able to be satisfied in one of two ways. The two requirements are:
(a)that the item was made or modified to be worn across the knuckles; and
(b)that the item was made or modified to increase the force of impact of a punch or blow with the hand or to protect the knuckle from injury.
Whilst it may be suggested that a different meaning of the description is open so that the words "made or modified" only qualify (a) and not (b), such a meaning is dispelled by the words of the Minister in the Weapons Bill Second Reading Speech (supra) at 7605 where he said that prohibited weapons "are weapons that have no other purpose than to cause injury … ".
Application of the law to the facts
The appellant's primary submission is that the Magistrate should have inferred from an examination of the item, alone, that it was made or modified for the purpose of being worn across the knuckles in order to increase the force of impact of a punch or blow with the hand, or to protect the knuckles from injury.
I do not agree with this submission in respect to this particular item. In my view this item is not so common or its use so obvious that a mere examination of it by the Magistrate was sufficient to prove to the standard required to defeat a no case submission that the item is a knuckleduster, as defined. Its appearance could easily give rise to a suspicion that it is, or a belief that it is more likely than not, a knuckleduster, as defined. These views, of course, do not satisfy the relevant test.
I emphasise that this is the view I have come to with respect to this particular item. I accept that there may be other objects that are the subject of this type of charge an examination of which by a Magistrate would be sufficient to enable the Magistrate to be satisfied to the required standard that the item met the appropriate statutory description. This would be because they are common items or commonsense dictates that they meet the statutory description of a particular weapon.
In this case an examination of the item can only prove beyond reasonable doubt that the item could be worn across the knuckles in order to increase the force of impact of a punch or blow with the hand or to protect the knuckle from injury. Counsel for the respondent submitted that expert evidence was required to prove that the item, if worn across the knuckles, would increase the force of impact of a punch or blow with the hand. I do not agree with this submission. Commonsense tells me that a blow with a solid, hard object, such as this item, held in the hand by a handle would have a greater force of impact than a blow with a clenched fist alone. Further, commonsense tells me that having a rim of hard solid material surrounding the knuckles when an offender punched another would protect the knuckles from injury, at least so long as the offender kept a firm hold on the item.
The appellant's secondary submission is that a combination of an examination of the item together with the evidence of the police officer was sufficient to defeat the no case submission. I agree with this submission. The police officer gave evidence that the item was a knuckleduster. Other than the self‑serving hearsay evidence of what the respondent said to the police officer, there was no evidence to the contrary. Whilst the police officer, when asked, did not provide the exact statutory definition of a knuckleduster, the definition that he gave was sufficient. Taken at its highest the evidence was that when the officer referred to the item as a knuckleduster he was referring to an item that was a weapon held in the hand and used for striking people; not just an object that could be used as a weapon for striking people. Indeed, this was more clearly shown by the officer's answers to questions about whether such an item as this was available for sale in shops. He made the point that it was not so available because it is a prohibited weapon, whereas controlled weapons, such as knives were so available. Thus, there was unchallenged evidence that the item was a knuckleduster, as defined by the Weapons Regulations. If the Magistrate had taken this evidence into account, as well as his findings from an examination of the item, he would have found that the respondent had a case to answer.
However, before I decide that the Magistrate should have found that the respondent had a case to answer I need to consider whether the Magistrate was correct in not placing any weight on the police officer's evidence.
As I have found above, the identification of this item as a knuckleduster, as defined, is not a matter of common knowledge. Thus, in order to prove that the item was a knuckleduster the prosecution was required to call further evidence. This was done by adducing evidence from the police officer that the item he located was a knuckleduster. That was, in essence, his opinion.
The respondent did not object to the officer giving his opinion at the time he gave it. Neither did the respondent's counsel directly challenge the correctness of the opinion. The respondent's counsel submitted to me that it was unnecessary for her to do so because when the officer was asked what a knuckleduster was he did not give the statutory description but rather gave what was, in a "very general lay sense, a paraphrasing of the statutory description". She submitted that by asking the officer what a knuckleduster was she sufficiently explored the issue between the parties and further it was open to the Magistrate to decide that the description of a knuckleduster given by the police officer did not sufficiently match the statutory description.
Thus, the respondent's case on appeal is not that the Magistrate was entitled to disregard the police officer's opinion because it was inadmissible but rather that as the police officer's description of a knuckleduster did not repeat word for word the statutory description the Magistrate was entitled not to put weight upon that opinion. As the respondent is content to argue this appeal on the basis that the evidence was admissible, I will assume that it was. I acknowledge that there may well be good arguments to the contrary. However, it is not appropriate for me to determine the issue when at trial a challenge was not made at the appropriate time to the officer's qualifications to give the evidence and I have not heard submissions on the point.
Two things may be said in response to the respondent's submission to me. The first is that, in my view, at the no case to answer stage the Magistrate was not entitled to decide not to put any weight on the opinion of the police officer. The police officer's qualification to give the evidence was not challenged. Neither was the opinion itself discredited. This meant that for the no case submission the Magistrate had to accept that the police officer was qualified to give the evidence and to give weight to it. The Magistrate was required to take the prosecution case at its highest, including any evidence that he may have regarded as "inherently weak".
Secondly, I do not accept that the respondent's counsel sufficiently identified the issue of the correctness of the police officer's opinion merely by asking the police officer what a knuckleduster was. In her submissions to the Magistrate the respondent's counsel said that the police officer's opinion was inadmissible because he was not an expert. If that was the respondent's position then counsel should have objected to the evidence at the time that the prosecution sought to adduce it. In any event it was not a submission that the Magistrate relied upon and neither did the respondent's counsel repeat it on appeal.
Counsel for the respondent also submitted to the Magistrate that the officer's evidence did not assist because "that's the very basis of the ambiguity. That is this thing could be worn across the fingers, just as a bricklayer's tool could be". Counsel's reference to a bricklayer's tool related to some material she had led from the Bar table about a hardware store selling a similar item as a bricklayer's tool. If the material was credible counsel should have cross‑examined Senior Constable Maloney about the possibility of the item being a bricklayer's tool rather than raise it for the first time in her submissions. Putting that issue to one side, the respondent's counsel’s submission to the Magistrate appears to have been that the police officer's evidence taken at its highest could only go to prove that the item could be used as a knuckleduster because it could be worn across the knuckles, not that it was a knuckleduster. As I have indicated earlier in this judgment, I do not accept this submission. The police officer said it was a knuckleduster. He also testified that a knuckleduster was something placed in the hand for striking people and that it was a weapon. At no time during his evidence did the police officer suggest that either this item was a knuckleduster only because it could be used as one or that a knuckleduster was an item that could be used as a weapon rather than an item that was made as a weapon.
The respondent submitted to me that in assessing the no case submission the Magistrate was obliged to take into account the respondent's answer to the police officer to the effect that the item was an ice breaker. It was submitted that as this answer was part of the prosecution case it had to be taken into account. She submitted that if it was taken into account it inevitably led to a finding that there was no case to answer as the evidence proved that the item had an alternative purpose to that of a weapon. I disagree.
The Magistrate was required to take into account the prosecution case taken at its highest. That is, his Honour was required to determine whether there was evidence that could support a conviction. In this process he was obliged to disregard evidence if it did not favour the prosecution and a jury or other finder of fact would have been entitled to disregard it. The self‑serving, hearsay statement of the respondent was not part of the prosecution case taken at its highest. It was not the role of the Magistrate at the no case to answer stage to weigh the evidence of the police officer against the statement of the respondent. To be fair to the Magistrate he did not make this error. Although he referred to the possibility of the item being an ice breaker, his view was not that that evidence ought to be preferred to that of the police officer. Rather, he took the view, erroneously in my judgment, that the police officer's evidence carried no weight.
In my opinion the evidence of the police officer, given without objection, was evidence ("even if tenuous or inherently weak or vague") which should have been taken into account by the Magistrate in his deliberations. That evidence together with an examination of the item itself was capable of establishing beyond reasonable doubt the guilt of the respondent. Consequently the Magistrate erred when he upheld the "no case" submission.
This finding does not mean that the respondent should have been found guilty of the charge. That decision would have depended upon the Magistrate's proper consideration of all the evidence at the end of the trial.
Conclusion
For these reasons I would allow the appeal, set aside the decision of the Magistrate's Court and order the case be heard afresh by the Magistrate's Court. Whilst an order for a new hearing gives the prosecution the opportunity to call different evidence it also enables the respondent to take a different approach to the evidence of Senior Constable Maloney. It seems to me to be in the interests of justice for a new hearing to take place.
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