Police v Hailemariam No. Scgrg-98-1510 Judgment No. S96

POLICE v HAILEMARIAM
[1998] SASC 96

Magistrates Appeal: Criminal

MULLIGHAN J The respondent was charged on complaint with carrying an offensive weapon contrary to s15(1)(a) of the Summary Offences Act 1953. He pleaded not guilty. The facts were agreed by the prosecutor and the respondent. The learned Magistrate found that the charge was not proved beyond reasonable doubt and found the respondent not guilty. The complainant was ordered to pay the costs of the respondent which were fixed at $1,000. The appellant appeals against the decision and order of the learned Magistrate.
S15(1)(a) of the Act provides that a person who, without lawful excuse, carries an offensive weapon is guilty of an offence. Pursuant to s15(3), “carry” is defined as to include “to have on or about one’s person” and “offensive weapon” as to include “a rifle, gun, pistol, sword, dagger, knife, club, bludgeon, truncheon or other offensive or lethal weapon or instrument”.
The agreed facts are as follows and are set out in the reasons for decision of the learned Magistrate. The respondent was walking from his home at Torrensville to a local hotel at about 9.00 pm on Saturday, 21st February 1998. It was about 9.30 pm as he neared his destination and was walking along Henley Beach Road. He was approached by a young woman who asked him for a cigarette. He said that he did not have cigarettes. She asked him to light a cigarette for her and he produced a cigarette lighter for her to use. As he did so he was hit on the head from behind by a man. The respondent ran to a side street and called for help. As he did so, he could hear other persons shouting “smash him, smash him”. He ran away and could see four young people, including the young woman who had asked him for a cigarette, whom I shall call “A”, and the young man who hit him, whom I shall call “B”, and two other young women. They were not known to him and they were all chasing him.
The respondent made his escape through private property in the course of which he lost his watch and eventually returned to Henley Beach Road. The four young persons had gone. He went to a stationary taxi cab and asked the driver to call the police but he declined. He then went to the hotel and met up with two friends who accompanied him whilst he recovered the watch. The respondent then returned to his home. He was shaken and angered by the attack. He formed the view that if he could get the people who had followed him, he could call the police to deal with them. He changed his clothes. He put a toy gun in his pocket and collected two knives from the kitchen. It was his intention not to use them unless he was attacked by the young persons again.
Upon returning to Henley Beach Road at about 10.20 am, A approached him again. The respondent recognised her. He pushed her to one side and looked for B. He saw him nearby and B ran away. He could see that the respondent had a knife in his pocket. B ran into a video store and the respondent followed. He told B to stay where he was and wait for the police. He asked the owner of the store to ring the police. The knives remained in the appellant’s pocket at all times. A was outside the store. She flagged down a passing police car and told the police officers that there was a man inside the store with a knife. The two police officers went inside the store and saw the respondent near the front door. B was at the back of the store and was running around calling for help saying that the respondent was carrying a knife. One police officer spoke to the respondent and took possession of the knives and the toy gun. He noted that the respondent was calm but was perspiring. As he spoke to the respondent, other police arrived and there were allegations and counter allegations by the respondent and B. The respondent made a statement to the police subsequently but A and B declined to do so.
At the trial, the respondent did not give or call evidence. The factual basis which I have recounted was accepted by the prosecutor even though it contained attitudes and various states of mind of the respondent which could not therefore be tested.
The prosecutor did not proceed with the allegation that the toy gun was an offensive weapon. It was conceded by the respondent that the two knives were offensive weapons and that he was carrying them. The issue at the trial was whether the respondent had a lawful excuse for carrying them.
The learned Magistrate concluded that the respondent did have a lawful excuse. In her reasons for decision, she said:
“There is a lawful excuse for carrying a weapon if the defendant has a genuine belief in a particular (as opposed to a general) threat of physical harm and he believes in circumstances which render the carrying of the weapon proportionate.
Mr Hailemariam ran through backyards, and then to a street as he tried to avoid his pursuers. Had any householder been disturbed, and gone outside and then into the street following the fleeing Mr. Hailemariam, carrying a broom or a kitchen knife or some other weapon, that householder would not have committed an offence, for their conduct would have been proportionate to the circumstances they believed in, namely that a trespassing intruder had just run out of their property.”
The grounds of appeal are simply that the learned Magistrate erred in law in finding the respondent not guilty of the charge and in dismissing the charge and that the quantum of the costs awarded is excessive.
The onus of proving that the respondent carried the knives without lawful excuse was not upon the prosecution. S5 of the Act provides, inter alia, that where an act done without lawful excuse constitutes an offence, the prosecution need not prove the absence of lawful excuse. The onus is upon the person charged to prove such lawful excuse upon which he relies. The standard of proof is on the balance of probability: Holmes v Hatton (1978) 18 SASR 412.
At the trial, the respondent contended that the facts disclosed that he had lawful excuse for carrying the knives for two reasons; first, as he intended to approach A and B and arrest and detain them for the police and, secondly, in self defence. The learned Magistrate did not regard it as necessary to consider the first contention as she accepted the argument in relation to self defence. Upon this appeal the respondent sought to justify the carrying of the knives on both grounds.
In my view, there was no lawful excuse in carrying the knives for the purpose of the respondent arresting A and B or either of them. The attack upon the respondent occurred at Henley Beach Road at about 9.30 pm. The purpose of the attack is not known. It may have been carried out in the course of attempting to rob the respondent or the lesser crime of simple larceny both of which are felonies at common law. If not, and the conduct constituted an assault, even an aggravated assault at common law, no felony would have been committed, only a misdemeanour. At common law a private citizen, as is the respondent, could lawfully arrest without warrant a person whom he or she reasonably suspected of having committed a felony provided that the felony had in fact been committed. There is no power in a citizen to arrest for a misdemeanour: see The Laws of Australia, Title 11.1: Criminal Investigation paras22-23. There is authority to support the proposition that such a power of arrest exists for attempted felony: see the discussion by Professor Glanville Williams in his article Arrest for Felony at Common Law [1954] CrimLR 408 at pp421ff. However, the agreed facts do not establish that the respondent did entertain the suspicion that A and B had committed a crime which was a felony or an attempted felony or, indeed, that he proposed to carry out a citizen’s arrest. As has been seen, the learned Magistrate recorded his state of mind as being “that if he could get the people who had followed him, he would call the police to deal with them”. The agreed facts included what the respondent said to the police at the video shop when asked why he was carrying the knives. He said:
“A....... I got the knife and came back looking for those people. It’s not right what he did. I wanted the police.
QBut why did you bring the knives and gun?
A........ I wanted to keep them here. He ran away from me and into here. I asked for the police to be called.
QDid you threaten anyone with the knife?
A........ No.”
It seems clear that the appellant wanted to find his assailants for the purpose of their being dealt with by the police which could, presumably, include their being arrested by the police. His purpose was not to make a citizen’s arrest. At the least it is not established by the agreed facts that he had such a purpose. It is not clear what he meant when he told the police that he wanted to “keep them there”. It seems that he did not propose to arrest them and deliver them to a police officer but, upon locating them, to ensure that they stayed where they were until police arrived.
Another legitimate purpose of an arrest by a private citizen is to prevent or bring to an end a breach of the peace. This power of arrest is limited by the requirements of presence of the arresting citizen and promptitude: see The Laws of Australia, Vol 79 Criminal Investigation at p23 and Professor Glanville Williams in his article Arrest for Breach of the Peace [1954] CrimLR 578. The requirement of promptitude is that the arrest must be made at the time of the breach of the peace or immediately thereafter unless there is a reasonable apprehension of a renewal of the breach of the peace. Any purported arrest of A and B for this reason could not pass this test as the attack upon him occurred nearly an hour before he was carrying the knives.
It follows that the appellant was not justified in arresting A and B at common law and, in my view, the agreed facts do not permit the inference that such an arrest was his purpose. Consequently, it could not be established that he was carrying the knives with a lawful purpose for that reason.
The respondent contended, in argument, that he was entitled to arrest and detain A and B pursuant to s271 of the Criminal Law Consolidation Act 1935 which provides:
“271(1).... A person may, without warrant, arrest and detain a person liable to arrest and detention under this section.
(2)A person who arrests and detains another under this section must take the necessary action to have the other person delivered into the custody of a member of the police force forthwith.
(3)A person is liable to arrest and detention under this section if the person is in the act of committing, or has just committed -
(a).... an indictable offence; or
(b)larceny (whether the larceny is a summary or indictable offence); or
(c).... an offence against the person (whether the offence is summary or indictable); or
(d)an offence involving interference with, damage to or destruction of property (whether the offence is summary or indictable).”
It may be seen that a lawful arrest under this section may only occur when the person making the arrest takes the necessary action to have the arrested person delivered into the custody of a member of the police force forthwith after the apprehension. The purpose of the respondent on the agreed facts was to hold A and B until he could call the police to deal with them. It is doubtful that such a course of action would amount to compliance with the section. However, the power to arrest under the section could not apply in the present circumstances because the respondent proposed to detain them well after the commission of the offence upon him. Given the lapse of time after the attack, nearly one hour, it cannot be said that any proposed arrest would have occurred whilst A and B were in the act of committing the offence or at a time when they had just committed it. There was no statutory right in the respondent to arrest A and B.
It may be accepted that in effecting an arrest a person, including a citizen, may use all reasonable force: see R v Turner [1962] VR 30. It is unnecessary to consider whether the use of weapons such as knives, by carrying or brandishing them, may be regarded as reasonable to effect an arrest as a citizen’s arrest situation did not exist in the present circumstances.
For those reasons the respondent could not establish that he was carrying the knives with lawful excuse for the purpose of arresting A and B.
It remains to consider the issue of self defence. The question is simply, on the agreed facts, whether the appellant had lawful excuse for carrying the knives for the purpose of self defence should the need have arisen.
Did he or she genuinely believe that the force is necessary and reasonable for a defensive purpose and the force used was used with the genuine belief that it is necessary and reasonable?
If the respondent did not have that state of mind, he did not have a lawful excuse for the carrying of the knives.
A similar, but not identical, situation was considered by the High Court in Taikato v The Queen (1996) 186 CLR 454. Mrs Taikato was found, in the early afternoon, to be walking on a public street in a suburb of Sydney carrying a pressurised canister of formaldehyde which, when discharged, would produce a clear liquid spray with a pungent odour. Formaldehyde is known to be an incinerate substance. She claimed to have had the canister for a few years and although she had never used it, she carried it so that she could defend herself if someone attacked her. She was charged with an offence under s545E(1) of the Crimes Act 1900 (NSW) which prohibits, inter alia, the possession of anything capable of discharging any irritant matter in liquid, powder, gas or chemical form or any substance capable of carrying bodily harm. S545(2) provides that it is a defence if the person charged had a reasonable excuse for possessing the substance or possessed it for a lawful purpose. It may be accepted that “lawful purpose” in that section and “lawful excuse” embrace the same considerations. At all events the only possible lawful excuse for the respondent to carry the knives was self defence. Brennan CJ, Toohey, McHugh and Gummow JJ held that the best interpretation of the term “lawful purpose” in the section is a purpose that is positively authorised by law. The same construction may be applied to “lawful excuse” in s15(1)(a).
Mrs Taikato contended that the law recognises self defence as the lawful right of any citizen where it is exercised in accordance with the law of self defence. She argued that she was carrying the canister for a lawful purpose. Their Honours said at pp463-4:
“However, it is more accurate to say that she was carrying the canister to spray any person who attacked or threatened to attack her and that whether she had a legal right to do so would depend on whether the circumstances of the attack gave rise to a right of self-defence at law. When her purpose is formulated in that way, it is obvious that, when she was searched, she did not possess the canister for a lawful purpose.
The law authorises a person to assault another person in self-defence only when certain conditions are fulfilled. No legal right of self-defence arises until there is a reasonable apprehension of attack by the person who is assaulted. To attempt to mould the right of self-defence into a ‘lawful purpose’ for the purposes of the section is fraught with practical and legal difficulties. If a person was charged with an offence under s545E after using the dangerous article in circumstances that did not give rise to the right of self-defence, it would seem odd that that person nevertheless had a defence under s545E(2) because he or she had the article for the purpose of ‘self-defence’. That would make the defence under s545E(2) entirely dependent on that person’s judgment as to when he or she could use the article in ‘self-defence’. Subjective factors play an important role in the doctrine of self-defence, but the availability of the defence also depends upon objective factors.
Because the existence of a right of self-defence cannot be determined until after the fact of a particular attack or threatened attack, it makes no sense, absent an actual or threatened attack, to talk of possession for self-defence as a ‘lawful purpose’. Self-defence in the colloquial sense is not a ‘lawful purpose’ within the meaning of s545E(2). Action in self-defence can only be taken for a ‘lawful purpose’ when there is a lawful right entitling the person in danger of attack to take certain limited steps to use force against another person. It is only after the circumstances of the attack and the defendant’s response are evaluated that a court can determine whether the person was exercising the right of self-defence. Only then can it be determined whether a particular weapon was used for a ‘lawful purpose’. Accordingly, possession of a dangerous article for the purpose of ‘self-defence’ is not possession for a ‘lawful purpose’ within the meaning of s545E(2) although, as will appear, it may be a ‘reasonable excuse’”.

It will be seen that there is no defence of “reasonable excuse” to a charge under s15(1)(a). Dawson J agreed with the majority on the defence of lawful purpose. The same reasoning must be applied in the present circumstances. They differ only in that the respondent had earlier been attacked. There was a possibility that he would be attacked again by the same person or persons. However, as in Taikato, the necessary conditions for self defence had not been fulfilled. When the respondent set off armed with the knives, there was no attack upon him in existence or imminent. An attack was possible if certain circumstances eventuated but even if they did whether use of the knives, or either of them, could be justified would depend upon various factors, including whether the respondent located A and B and how they would react if he did so. There being no actual or threatened attack, it cannot be determined whether the respondent was exercising the right of self defence in carrying the knives as recognised by law. The condition of existing attack or imminent danger has long been regarded as essential for self defence to afford lawful excuse for violence: Halsbury’s Laws of Australia, Vol 9, para 130-1100.

In reaching the conclusion that the respondent had a lawful excuse for carrying the knives, the learned Magistrate erred in her application of the decision in Taikato. She concluded that because the respondent had been attacked earlier and had found whom he believed to be the attackers when searching for them, there was a risk that they would injure him which risk could not be ignored because of what had happened earlier. Consequently he had a lawful excuse for carrying the knives. She said:
“In addition there are factors such as the degree of potential damage - bodily injury is [sic] stands on a footing quite different to property damage - and the likelihood that the potential risk will materialise.
In this case, when he went home after being attacked the defendant decided he had to try and find his assailants, so as to be able to identify them to police. There was nothing unlawful about Mr Hailemariam’s decision to try to find out whether the people were still on Henley Beach Road, so that he could identify them to police. It was dark. The assailants would only be visible to police if they remained in a place which was lit by artificial lighting. It is entirely possible that Mr Hailemariam believed he would have to find these people or he would not have been able to identify them to police because they would have disappeared into the dark.
It would undoubtedly have been more sensible to call police before going out to try to find these people. However people who have been attacked, and who have been hit on the head during the attack, do not always think very clearly. That they are not thinking clearly does not weaken the genuine nature of the beliefs that they may hold, quite legitimately.
Viewed objectively, it is quite clear that if Mr Hailemariam found these people there was a risk that they would injure him, and the risk could not be ignored because they had already injured him earlier in the evening.
In my view, this is one of those very rare cases where there is a lawful excuse of carrying a weapon for a defensive purpose.”

In my view, this approach is wrong in law. When the respondent armed himself with the knives and carried them, there was no attack in existence or imminent. Using a colloquial expression, there was no “self defence situation” and there was no relevant defensive purpose.
The learned Magistrate erred in her conclusion that the respondent had a lawful excuse for carrying the knives. All of the elements of the charge had been proved and the learned Magistrate should have found the respondent guilty as charged.
It is as well to remember the purpose of s15(1)(a). The section is enacted for the same purpose discussed in Taikato regarding s545E of the Crimes Act (NSW). That purpose proceeds upon the assumption that the public interest is best served by excluding offensive weapons from public places irrespective of the use to which the person carrying the weapon intends to make of it: pp459-460. As their Honours went on to say:
“As counsel for the respondent pointed out, when guns and other dangerous articles are available, they often come to be used for harmful purposes although they were initially possessed for innocent purposes. For that reason, possession in a public place of an article or thing answering the relevant description is sufficient to constitute the offence unless the person in possession of the article or thing is excused under s545E(2).”
The respondent had every opportunity to seek the assistance of the police. Upon receiving his complaint of the assault, the police would have been obliged to act upon it and investigate it. As the events revealed, locating A and B was not difficult. A complaint could then be dealt with by the police in the usual way. There was simply no justification in law for the action taken by the respondent, however aggrieved he may have been. This conclusion accords with the reasoning of Wells J in Holmes v Hatton (supra).
The appeal is allowed. The finding of not guilty is set aside. A finding of guilty as charged is made. I shall hear the parties as to what orders should now be made.

[1999] SASC 96

12 March 1999