Police v Majchrak

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v MAJCHRAK
[2014] SASCFC 81
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
25 July 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - OTHER OFFENSIVE WEAPONS - ARTICLES MADE OR ADAPTED FOR CAUSING INJURY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - OTHER OFFENSIVE WEAPONS - ARTICLES HAVING ORDINARY OTHER USE
The defendant and respondent, Andrew Lester Jozef Majchrak, was charged with being in possession of a prohibited weapon, namely a knuckle duster, on 12 September 2012, contrary to section 15(1c)(b) of the Summary Offences Act 1953 (SA). The Chief Magistrate found the defendant not guilty. The object in question was a solid 9 carat gold two-fingered ring and featured the letters “F” “I” “N” “K” on its top side.
Whether the object is a device or instrument designed or adapted to be worn across the knuckles. Whether the object has been designed or adapted so as to increase the force or impact of a blow. Whether the object has been designed or adapted so as to protect the knuckles from injury.
Held per Gray J dismissing the appeal:
1. The test for whether the object is a knuckleduster is objective.
2. The object is a device designed to be worn across the knuckles.
3. The object has been designed so as to increase the impact of a blow.
4. The object has not been designed so as to protect the knuckles from injury.
5. In the circumstances, the object does not fall within the legislation definition of a knuckleduster.
Held per Peek J dismissing the appeal:
1. The definition of “knuckle duster” requires the object to be an “instrument or device” designed with the purposes of (1) being worn across the knuckles; (2) increasing the force or impact of a punch or blow when striking another with that hand; and (3), protecting the knuckles of that hand from injury.
2. The test is objective. It is not necessary to prove that a particular person intentionally designed or adapted the object for these purposes; but only that each design purpose has been successfully implemented.
3. The serendipitous occurrence of the object being made from gold with detailed inscribing did not allow the meaning of the word “device” in the artistic sense to be adopted; the meaning of the regulatory words must remain constant whenever the definition of “knuckle duster” is considered. However, if the design purposes were established, the object would be an “instrument”.
4. There was no evidence that the object achieved the design purpose of protecting the knuckles from injury, and therefore it is not within the definition of “knuckle duster”.
Held per Nicholson J dismissing the appeal essentially for the reasons given by Gray J and Peek J but subject to:
1. The words “device” and “instrument” in the definition of “knuckle duster” are to be given their ordinary English meaning and do not constitute a fourth requirement to the three design purposes of (1) being worn across the knuckles; (2) increasing the force or impact of a punch or blow when striking with the hand; and (3) protecting the knuckles of the hand from injury.
2. When determining whether a device or instrument is “designed or adapted...so as to increase the force or impact of a punch or blow when striking another with that hand...” a common sense approach is to be employed. When approached in that light, it is a question that will usually (although not necessarily always) be readily determined by the trier of fact exercising a practical common sense judgment.
3. A court should be slow to require expert evidence when considering whether this offence is made out.
Summary Offences Act 1953 (SA) s 15 and s 21F; Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 (SA) s 10; Summary Offences (Weapons) Amendment Act 2012 (SA); Summary Offences (Weapons) Regulations 2012 (SA) s 5(a), referred to.
Knight v Pipersberg [1991] VSC 261, considered.

POLICE v MAJCHRAK
[2014] SASCFC 81
Full Court: Gray, Peek and Nicholson JJ
GRAY J.

This is an appeal against a finding of not guilty made by a Magistrate on the hearing of a complaint. On 25 March 2014, an order was made that the appeal proceed directly to the Full Court.
Background
The defendant and respondent, Andrew Lester Jozef Majchrak, was charged with being in possession of a prohibited weapon, namely a knuckle duster, on 12 September 2012, contrary to section 15(1c)(b) of the Summary Offences Act 1953 (SA). On 21 January 2014, following a trial, the Chief Magistrate found the defendant not guilty. The proceeding has been adjourned to enable the question of costs to be pursued.
The object in question is made from solid 9 carat gold and is valued at approximately $10,000.00 to $15,000.00. The object is approximately 70mm long and 40mm wide, with openings for two fingers. The letters “F”, “I”, “N” and “K”, all in capitals, are embossed on top of the ring and cover almost the entire face of the ring. Those letters spell out the name “Fink”, which I take to be a reference to the Finks motorcycle club. The prosecution contended that the object is a knuckle duster. The defence argued that it is a jewellery ring. The object has been subject to many descriptions. In these reasons I will use the term “object” as a neutral term.
The Trial
At trial, the prosecution led evidence from Senior Constable Richard James Miller and tendered five photographs of the object, as well as the object itself. Constable Miller recounted approaching the defendant on 12 September 2012. According to his evidence, which was given over objection, he formed the opinion that the object was either a knuckle duster or “met the criteria of being a knuckle duster” and on that basis confiscated it. Constable Miller’s opinion that the object was within the legislative definition of a knuckle duster was based on his view that the object was designed to protect the knuckles of a person wearing it in the event that the wearer lands a blow on somebody and that it was also designed to increase the force or impact of that blow. He observed that the object was “joined at the knuckles or joins two fingers”. He said that he had seen similar objects on other occasions.
In cross-examination, Constable Miller agreed that one of the key features of the object is that it joins two fingers and he further made reference to its “sheer size”, which he described as “a very, very large piece of metal which, if it was used to punch somebody, would inflict quite a large deal of harm on someone”. He was questioned further in cross-examination as to whether he had seen such objects in the community and responded:
I’ve seen two fingered rings worn by other motorcycle gang members. I’ve seen two fingered rings that have been seized from other motorcycle gang members. I’ve certainly seen two fingered rings which are quite delicate, for want of a better term, that are worn by females but certainly nothing of the quite obvious size and, for want of a better term, brutality of [the object].
...
It’s a ring inasmuch as it’s, I believe, been manufactured to skirt around the legislation or in an attempt to skirt around the legislation.
Following the rejection of a no case to answer submission, the defence led evidence from Michael Andrew Brinkley, a jewellery buyer with Shiels Jewellers and Grahams Jewellers. He gave evidence that this kind of object would need to be specially ordered to accommodate the size of the defendant’s fingers. He also gave evidence of his awareness of two fingered and three fingered rings:
[The fashion of two and three fingered rings is] essentially out of Hollywood. A lot of superstars these days are getting these made professionally and then encrusting them with diamonds or gems or something – wearing them as a brand essentially.
...
[The fashion is] still in its infancy but it’s something that is growing and you see it a lot in sort of fashion, fashion jewellers.
...
Obviously I’ve only been in the industry for two years but during that time I’ve seen [multiple hole rings] and also on handbags as well, on clutches, seeing the finger holes as well.
The defence tendered a sheet of photographs depicting, inter alia, the use of what Mr Brinkley had described as items of fashion jewellery by performers Katy Perry and Calvin Cordozar Broadus Jr, better known as “Snoop Dogg” and more recently known as “Snoop Lion” and “Snoopzilla”.
The Chief Magistrate reviewed the evidence and the parties’ submissions before concluding:
The case before me boils down to this. There is no dispute about possession. The defendant was wearing the item when it was seized. The prosecution case is that the item is a knuckle duster because it is worn across the knuckles. It can protect them and also increase the force of a blow. Any suggestion that it is a ring is merely designed to skirt around the legislation.
The defence case is that I must be satisfied beyond reasonable doubt that the item is a knuckle duster. Their case is that it is a ring, consistent with some of the items depicted in [the photographs of various celebrities with similar rings]. It could be described as a brand item. The defence submit that the item is not designed to be worn across the knuckles. They further submit that if it had not been actually worn, then the defendant would not have been charged.
I indicate that I found the witnesses on both sides to be honest and believable. Senior Constable Miller gave evidence that [the defendant] was wearing other rings that day which were not seized.
Given that evidence, together with the evidence about the value of the item and the [the photographs of various celebrities with similar rings], I conclude that it is a reasonable possibility that the item was being worn as a ring, a brand item where the brand is described by the ring itself ‘Fink’.
The practical effect of wearing a ring of this type may be that it has similar undesirable qualities as a knuckle duster. Nevertheless, I cannot be satisfied beyond reasonable doubt that the item was a knuckle duster.
I have considered whether, by analogy with a kitchen knife possession of which could be innocent in the context of a kitchen drawer but not if it were in the trouser pocket of an accused whilst in public, this item could be innocently worn as a ring in some contexts, or worn as, in effect a knuckle duster, in others. In other words, could the item be a knuckle duster in some situations and a ring in others. Once again, given the value of this item together with the presence of other rings on his fingers, I cannot be satisfied beyond reasonable doubt that the item was worn in this case as a knuckle duster.
It may be that consideration needs to be given by Parliament to amending reg 5(n)[1] to include items such as these where appropriate.
[Footnote added.]
The Appeal
[1] The regulation in force at the time of the alleged offending was regulation 10 of schedule 2 of the SummaryOffences (Dangerous Articles and Prohibited Weapons) Regulations 2000 (SA), as extracted below. Regulation 5(n) was the equivalent regulation at the time of the hearing in the Magistrates Court.
Submissions
On the appeal, counsel for the police submitted that the Chief Magistrate erred in founding her conclusion on an analysis of the defendant’s purpose of wearing the ring and whether the item was an item of jewellery. It was argued that the correct approach was to undertake an analysis as to whether the object met each of the criteria specified in the definition of knuckle duster in clause 10 of schedule 2 of the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 (SA). It was not to the point whether the object was described as a ring, a two fingered ring, a fashion item, an accessory or a knuckleduster. What is important is whether the object, however described, met the terms of the definition in the regulation.
Counsel for the defendant supported the approach of the Chief Magistrate. It was contended that her reasoning accorded with the decision of the Victorian Supreme Court in Knight v Pipersberg,[2] where Smith J considered a statutory definition of knuckle duster in relevantly the same terms as the regulation applicable in the present proceeding.
[2] Knight v Pipersberg [1991] VSC 261.
Discussion
It is convenient at the outset to set out the terms of the relevant provisions of the Summary Offences Act:
15—Offensive weapons etc
(1c) A person who—
(a) manufactures, sells, distributes, supplies or otherwise deals in, prohibited weapons; or
(b) has possession of, or uses, a prohibited weapon,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(1d) It is a defence to prosecution for an offence against paragraph (b) of subsection (1c) to prove that the defendant is an exempt person under subsection (2a) in the circumstances of the alleged offence.
The definition of a knuckle duster is set out in clause 10 of schedule 2 of the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations:
Schedule 2—Prohibited weapons
Part 1—Prohibited weapons
10—Knuckle duster
A device or instrument (including a weighted or studded glove) designed or adapted to be worn across the knuckles of a hand so as to—
(a) increase the force or impact of a punch or blow when striking another with that hand; and
(b) protect the knuckles from injury,
but does not include a boxing glove.
The issue to be addressed is whether the ring being worn by the defendant met the criteria listed in clause 10 as extracted above. The first criterion to be addressed is whether the ring is a device or instrument designed or adapted to be worn across the knuckles of a hand. Counsel for the defendant submitted that the object did not fall within the meaning of the words “device or instrument”. The defence relied on a definition of “device” from the Oxford Dictionary, “A thing made or adapted for a particular purpose, especially a piece of mechanical or electrical equipment”. The Macquarie English Dictionary defines “device” to mean:
1.     an invention or contrivance.
2.     a plan or scheme for effecting a purpose.
3.     a crafty scheme; a trick.
4. an artistic figure or design used as a heraldic bearing (often accompanied by a motto), or as an emblem, badge, trademark, or the like.
5.     a motto.
6.     (plural) will; desire; ingenuity; inclination: left to his own devices.
7.     something artistically or fancifully designed.
8.     Computers → peripheral device.
[Emphasis added in bold.]
In my view, the object can be properly described as a “device”. It is a “thing made or adapted for a particular purpose”, whether that be a purely aesthetic purpose, to signify an affiliation with the Finks motorcycle club, or, on the prosecution case, to serve as a knuckle duster. It is “artistically or fancifully designed” and “an emblem, badge, trademark, or the like.” It is irrelevant that it could also be described as a ring or an item of jewellery, the relevant consideration is whether it is an “device or instrument”.
There was no dispute that the word “knuckles” is a term that includes the joints where the fingers join the hand as well as the joints in the fingers themselves. A reference to standard dictionaries confirms this to be correct. According to the statutory definition, a conclusion needs to be drawn that the device or instrument is designed or adapted to be worn across the knuckles. When worn, the object could be described as being between the knuckles, as it sits on the part of the wearer’s fingers between the major knuckles and first minor knuckles. However, this does not preclude a conclusion that the object is designed to be worn across the knuckles in the sense that the object when worn is placed from one side of one knuckle to the other side of another knuckle. Smith J in the earlier referred to decision of Knight v Pipersberg reached a similar conclusion when he observed:[3]
[3]    Knight v Pipersberg [1991] VSC 261, 3-4.
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 or impact of a punch or below [sic] with the hand, and
(c)    to protect the knuckle from injury.
Reference to the Oxford English Dictionary, Second Edition, gives a meaning for the preposition “across” when used in a distributive way as meaning “from one side, (a country, et cetera) to the other; throughout”. I was referred to definitions from the Collins Dictionary, “from one side to the other side”, and from the Macquarie Dictionary, “from side to side”.
...
On further reflection, I have come to the conclusion that as long as it can be said that the object is placed from one side of a knuckle to the other side of another knuckle, it can be said to be across those knuckles. It would not matter whether it was placed above the knuckles on the back of the hand or under the knuckles underneath the hand or in front of the knuckles, where the fingers join the hand, or on either side of the finger knuckles themselves. It does not depend upon the position from which one looks at the object. Thus, a team banner erected in front of the team entrance would be said to be both across the entrance and across the portion of the ground on which it stood.
I agree with this analysis of Smith J.
The second criterion is whether the device has been designed or adapted so as to increase the force or impact of a blow. In my view, the words “so as to” give rise to an entirely objective enquiry, namely whether the specified consequences in the definition follow from the object’s design. In my view, it is self evident and a matter of commonsense that the object as worn would increase the impact of a punch or blow when striking another with that hand insofar that it is a substantial block of solid metal. I do not consider that it necessarily follows that the force of a punch or blow would be increased. I suspect that it would not. The force may remain the same, but the impact would be increased.
The remaining criterion that needs to be satisfied to meet the definition is that the object as worn would protect the knuckles from injury. The size of the object is such that if a blow was struck while wearing it the wearer’s knuckles would not come into contact with the target of the blow. However, the finger holes, like the rest of the ring, are solid gold and contain no padding or design feature that would suggest that they offer any protection to the wearer’s knuckles. Isaac Newton’s third law of physics provides that:[4]
Forces always occur in pairs. If object A exerts a force on object B, an equal but opposite force is exerted by object B on object A.
This would suggest that, following striking, there would be an equal and opposite force on the wearer’s knuckles. The knuckles would therefore not be protected.
[4] Paul A Tipler, Physics For Scientists and Engineers (Worth Publishers, 3^rd ed, 1995), 78.
On the appeal, it was accepted that a conventional knuckle duster generally has an attachment that allows the object to come into contact with and nestle into the palm of the hand. When such a device is used to strike another, the return force and impact is transmitted through the palm and arm and shoulder to the body of the wearer and in these circumstances the knuckles are protected. In the present case, as noted above, the object as worn would not protect the knuckle from injury, or perhaps more correctly, there was no evidence before the Court from which a conclusion could be drawn that the object would protect the wearer’s knuckles from injury.

Smith J in Knight v Pipersberg adopted a similar approach to the resolution of the Victorian proceeding:[5]
No evidence was led before the learned Magistrate as to the purpose of the design, or its effect. She did, however, accept that it was worn by the defendant to enable the defendant to be dressed in accordance with the Hip-Hop-Rap theme of the nightclub where the alleged offence took place; in other words, part of his dress for the night. The object itself is made to look like three rings joined together, like a piece of jewellery. This is not to say that it could not cause considerable damage if a punch was thrown using a hand which wore the object. It is, therefore, unclear whether it was “designed... to increase the force or impact of a punch...”
One thing, however, does seem to be clear from an examination of it, and that is that it would offer minimal, if any, protection to any of the knuckles of the hand and could result in damage to the bones, including the knuckles. In the absence of direct evidence, therefore, I have come to the conclusion that it was reasonably open to the learned Magistrate to decline to infer that a purpose of the design of the object was to protect the knuckles or any knuckle. Thus, the learned Magistrate’s decision may be upheld, in my view, on the basis that it was reasonably open to her to find that she was not satisfied that the object was designed to be worn so as to protect the knuckle from injury.
[5] Knight v Pipersberg [1991] VSC 261, 5-6.
In my view, the evidence led at trial as to the police officer’s subjective views are of no weight and irrelevant. I also consider the evidence of the defendant’s jeweller of no weight and irrelevant. The question is simply whether the object as worn met the statutory definition. Expert evidence as to the consequences flowing from a wearer striking another may assist a tribunal of fact. No such evidence was led in the present proceeding.
Conclusion
The Chief Magistrate was correct to conclude that the prosecution had not proved beyond reasonable doubt each element of the offence. It is to be understood that my reasons for reaching the conclusion that the verdict of not guilty was properly entered differ from those of the Chief Magistrate and from the submissions advanced by the parties. However, this Court, in conducting an appeal from a Magistrate, engages in a rehearing and it is open to this Court to uphold the conclusion reached by the Magistrate although for different reasons.
I would dismiss the appeal.
PEEK J. I have read the judgment of Gray J in draft and gratefully adopt his statement of the facts. I too would dismiss the appeal, but I arrive at that conclusion by a somewhat different route to that taken by his Honour.
The legislation and regulations
As at 12 September 2012, the date of the alleged offence,[6] s 15, Summary Offences Act 1953 provided:
[6]    Section 15, Summary Offences Act 1953 was repealed by s 4, Summary Offences (Weapons) Amendment Act 2012; now see s 21F. The Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations were revoked by Sch 2, Summary Offences (Weapons) Regulations 2012; now see reg 5(a).
15─Offensive weapons etc
(1c)    A person who─
(a)manufactures, sells, distributes, supplies or otherwise deals in, prohibited weapons; or
(b)     has possession of, or uses, a prohibited weapon,
is guilty of an offence.
Maximum penalty: $10,000 or imprisonment for 2 years.
(1d)   It is a defence to prosecution for an offence against paragraph (b) of subsection (1c) to prove that the defendant is an exempt person under subsection (2a) in the circumstances of the alleged offence.
The Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 (then in force) declared a knuckle duster to be a prohibited weapon. The definition of “knuckle duster” appeared in schedule 2 thus:
Schedule 2─Prohibited weapons
Part 1─Prohibited weapons
10─Knuckle duster
A device or instrument (including a weighted or studded glove) designed or adapted to be worn across the knuckles of a hand so as to─
(a)increase the force or impact of a punch or blow when striking another with that hand; and
(b) protect the knuckles from injury,
but does not include a boxing glove.
Thus the effect of the combination of the legislation and regulations was to proscribe and punish the act of possession of an object which is found to be a “knuckle duster” within the definition. The definition requires that the object be a “device or instrument” with three “design purposes” which are:
·First, the object must be a device or instrument designed or adapted to be worn across the knuckles of a hand.
·Second, the object must be a device or instrument designed or adapted to be worn across the knuckles of a hand so as to increase the force or impact of a punch or blow when striking another with that hand.
·Third, the object must be a device or instrument designed or adapted to be worn across the knuckles of a hand so as to protect the knuckles from injury.
What is the correct meaning of the phrase “a device or instrument”?
I will first consider the correct meaning of the phrase “a device or instrument”. The Oxford Dictionary meanings for the word “instrument” are:
Instrument 1. A thing with or through which something is done or effected; a means. b. A person made use of by another person or being, for the accomplishment of a purpose (cf. tool) ME. 2. A tool, implement, weapon. (Now usu. dist from a tool, as being used for more delicate work or for artistic or scientific purposes.) ME. b. collect. Apparatus. (A Latinism.) MILT. 3. Spec. A contrivance for producing musical sounds ME. (in early 19^th c. spec. the pianoforte). 4. A part of the body having a special function; an organ -1718. 5. Law. A formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form 1483. (Emphasis added)
The Macquarie Dictionary meanings for the word “instrument” are:
instrument / n. 1. a mechanical device or contrivance; a tool; an implement: a surgeon’s instruments. 2. a contrivance for producing musical sounds: a stringed instrument. 3. a thing with or by which something is effected; a means; an agency: an instrument of government. 4. a formal legal document, as a contract, promissory note, deed, grant, etc. 5. one who is used by another. 6. a device for measuring the present value of a quantity under observation. 7. Elect. an electrical device which displays information about the state of some part of a mechanical or electrical machine, device, etc.
The Oxford Dictionary meanings for the word “device” are:
Device 1. The action, or faculty, of devising; invention, ingenuity. Now arch. and rare. (orig. devis). ME. b. Design (arch.) ME. 2. Purpose (orig. devis) -1548. 3. Will, pleasure, inclination, desire (orig. devis) ME. 4. Opinion, notion; occas. advice -1594. 5. Talk, chat. [Fr. devise.] -1610. 6. Something devised; an arrangement, plan, contrivance; often an underhand contrivance; a plot, stratagem, trick ME. 7. concr. The result of contriving; an invention, contrivance ME. 8. Something fancifully devised ME. 9. spec. An emblematic figure or design, esp. one borne by a particular person, etc., as a heraldic bearing, etc.: usually accompanied by a motto Me.; also, a motto or legend borne with or in place of such a design 1724.
The Macquarie Dictionary meanings for the word “device” are:
Device / n. 1. an invention or contrivance 2. a plan or scheme for effecting a purpose 3. a crafty scheme; a trick 4. an artistic figure or design used as a heraldic bearing (often accompanied by a motto), or as an emblem, badge, trademark, or the like 5. a motto 6. (plural) will; desire; ingenuity; inclination: left to his own devices 7. something artistically or fancifully designed 8. computers → peripheral device [b. ME devis division, discourse and devise heraldic device, will, both from OF, from L divisus, -a, pp., divided]
The meaning of the word “instrument”
It would be a correct use of the term “instrument” to say that a person who picked up a piece of discarded scrap metal and beat another person with it has used the piece of metal as an “instrument”. Of course, this would not constitute the possession or use of a knuckle duster. However, if that person picked up the same piece of scrap metal and filed and drilled it into an object caught by the definition of a knuckle duster, he would then plainly be in possession of a knuckle duster.[7] Such an object can aptly be described as an instrument because it is capable of being used as a tool, implement or weapon and this is so quite irrespective of whether the person does, or does not, intend to use it as a knuckle duster.
[7] There are many reported cases involving the use of home-made items that undoubtedly would come within the present definition of a knuckle duster.
As the above reasoning would suggest, the word “instrument” in the relevant regulation largely takes its meaning from the design requirements; if the design requirements of an object under consideration are satisfied, it is very difficult to postulate a situation where the object would not be an “instrument”. Obviously, if the design requirements are not satisfied, it is irrelevant whether the object is, or is not, an “instrument”.
The meaning of the word “device”
I have no doubt that the word “instrument” has a much broader meaning than the word “device” in the present context. Indeed, it is very difficult to conceive of an object that would qualify as a knuckle duster by virtue of being a device that would not also be an “instrument”.
That being so, it is strictly unnecessary to consider the meaning of the word “device” further. However, I must say that I cannot agree that either the fourth or seventh meanings given by the Macquarie Dictionary to the word “device” (reproduced above) may be adopted in the present context. (I will use the shorthand term “artistic figure or design etc” to refer to those meanings.)
The meaning and requirements of the word “device” must remain constant whenever the definition of “knuckle duster” is applied to any factual situation. Further, one must be able notionally to substitute the respective meanings of both “instrument” and “device” into the words of the regulation so that the regulation may be read and understood in full; such substitution of either the fourth or seventh meanings given by the Macquarie Dictionary ─ “artistic figure or design etc” ─ for the word “design” in the regulation produces the very incongruous reading: “artistic figure or design etc designed to be worn across the knuckles of a hand … [and following]”.
It is obvious that in the vast majority of cases, a true knuckle duster will be a rather nasty looking object with no pretentions to having any artistic design whatsoever. One cannot seize on the serendipitous occurrence in the present case of the object being made of gold with some inscribing and use that as a basis for deriving the meaning of the word “device” in the regulation. The meaning of a statutory or regulatory term must remain constant from case to case.
The same remarks would apply if it were to be suggested that one should adopt a more obscure meaning of the word “instrument” because that happened to suit the facts of a particular case. As an example, if an object alleged to be a knuckle duster were to be disguised as a working mouth organ, any finding that the object is a knuckle duster will be made notwithstanding the presence of the working mouth organ and not because of such presence. In other words, one could not reason that such an object is an instrument within the meaning of the regulation simply because it is also a “musical instrument” (which happens to be an alternative meaning of the word “instrument”). A coincidence of a musical instrument being associated with the knuckle duster and the fact that the word “instrument” has an alternative meaning of “a musical instrument” is just that: an irrelevant coincidence. The true position is that the regulation manifests an intention that the word “instrument” is to have a relatively broad meaning and it is that broad meaning that is to be uniformly applied to any object to determine whether it is, or is not, a knuckle duster.
The three design purposes of a knuckle duster under the regulations
I will first consider what the prosecution must prove in relation to the three design purposes of a knuckle duster, and will then consider the content of each of those three design purposes.
The required proof by the prosecution in relation to the three design purposes of a knuckle duster
It would appear that there are two alternative interpretations of what the prosecution is required to prove in relation to each of the three design purposes of a “knuckle duster”. The first alternative is that the prosecution must prove that some person did in fact intentionally design, or adapt, the object in question for each of the three stated purposes. The second alternative is that the prosecution need only prove that each of the three design requirements have in fact been successfully implemented.
It is highly improbable that the first alternative was intended in view of the fact that in the vast majority of cases it would be very difficult, if not impossible, to determine, let alone locate, the person(s) who designed or adapted any given object. At the same time, it is highly probable that the second alternative was intended in view of the fact that once it is proven that each of the three design requirements have been successfully implemented on the object, that object is simultaneously established to be both a dangerous weapon as a matter of fact and a prohibited weapon of the type designated as a knuckle duster as a matter of law; it is, of course, the possession of such an object, rather than an intention to use it (or not to use it) in any particular way, that is critical.
I therefore conclude that the prosecution is only required to prove that each of the three design purposes have in fact been successfully implemented. I do however stress “successfully implemented”. It is not sufficient to establish that the design purposes may (or may not) have been effectual. It is necessary for the prosecution to prove that:
·the device or instrument is able to be worn across the knuckles of a hand; and
·the force or impact of a punch or blow when striking another with that hand (wearing the device or instrument) is increased to a significant degree, and
·the knuckles are protected from injury to a significant degree when striking another with that hand (wearing the device or instrument).
I now turn to consider the content of the three design purposes and their application to the object here under consideration.
The object must be a device or instrument designed or adapted to be worn across the knuckles of a hand
The first design purpose is that the object must be a device or instrument designed or adapted to be worn across the knuckles of a hand. The word “knuckles” includes both the joints at the joining of the hand and those within the fingers and the present object may be properly described as being designed to be worn across the knuckles in the sense that it spans one side of one knuckle to the other side of another knuckle.[8]
The object must be a device or instrument designed or adapted so as to protect the knuckles from injury
[8] I agree with the analysis of Smith J of similar facts in Pipersberg v Knight [1991] VSC 261, 4.
It is convenient to next consider the third design purpose which is that the object has been designed or adapted so as to protect the knuckles from injury.
It was accepted by the appellant on the hearing of the appeal that a critical physical component of a conventional knuckle duster is a rear portion resting against the palm of the hand so that when a blow is struck, force is transmitted from the shoulder, arm and palm through the knuckle duster with the front of the knuckle duster contacting the victim. The knuckles of the aggressor are thus protected from the force exerted by the aggressor and also from the equal and opposite reaction from the body of the victim. [9]
[9] Sir Isaac Newton’s third law of physics is usually referred to in the pithy terms: “For every action there is an equal and opposite reaction”. The original latin was: “Lex III: Actioni contrariam semper et æqualem esse reactionem: sive corporum duorum actiones in se mutuo semper esse æquales et in partes contrarias dirigi.” An English translation is: “Law III: To every action there is always opposed an equal reaction: or the mutual actions of two bodies upon each other are always equal, and directed to contrary parts.”
However, the present object is not designed in the above fashion. It is simply in the form of two large metal rings joined together with no protrusion making contact with the palm. There is no reason to believe that the object could in any way protect the wearer’s knuckles from injury; certainly the prosecution have not proven that the object is a device or instrument designed or adapted so as to protect the knuckles from injury.[10]
The object must be a device or instrument designed or adapted so as to increase the force or impact of a blow
[10] This was also the view taken by Smith J in Pipersberg v Knight [1991] VSC 261, 6.
Since the third requirement is clearly not proven, it is unnecessary to finally determine whether the second requirement is proven.
Obviously in the case of knuckle dusters of the traditional type and design, no expert evidence will be needed as to the required increase of force and protection of the knuckles as referred to above.
However, in the case of the present object, there was no sufficient evidence before the Court that the object is a device or instrument designed or adapted so as to increase the force of a blow; expert evidence would be required before such a conclusion could be established. As to whether the object is a device or instrument designed or adapted so as to increase the impact of a blow, again the position is unclear.
I mention that it may possibly be that the impact of a blow should be interpreted so as to include “the effect of the impact of a blow”; if so, it may be that the effect of the impact of solid metal on, say, the face of a victim may be greater than the effect of the impact of an uncovered fist on the same location. However, it is unnecessary to come to a final view as to these matters.
Conclusion
The regulation prescribes an objective inquiry concerning the nature and characteristics of an object without reference either to the actual intent of the maker/adapter or to the intent of a defendant at the time of possession. It is therefore critical that “the design purposes” are stringently insisted upon so as to avoid the risk of unfairly characterising as sinister “knuckle dusters” objects which are correctly to be viewed as no more than, say, jewellery (albeit somewhat tasteless).
Since, as explained above, what may be regarded as the most important design feature of a knuckle duster (protection of the knuckles) is missing here, it is obvious that it could not be established at trial that the object is a knuckle duster within the meaning of the regulation.
Accordingly, the order of dismissal made by the Chief Magistrate was correct. The appeal could only ever be against the order of the Chief Magistrate and not against her Honour’s reasons per se. The appeal must be dismissed.
NICHOLSON J. I have had the advantage of reading the reasons given by both Gray J and Peek J. I would dismiss the appeal essentially for the reasons given by each but subject to the following observations.
Both Gray J and Peek J have considered at some length the meaning to be given to the words “device” and “instrument”. I am less troubled by this aspect of the definition of knuckle duster. These are ordinary English words of wide and non-specific import, as the various dictionary definitions suggest. A common sense, practical approach is called for. In the present context, one need look no further than to “a thing with or through which something is done or effected; a means” (the first of the Oxford Dictionary meanings of “instrument” extracted by Peek J[11]) and “an invention or contrivance” (the first of the Macquarie Dictionary meanings of “device” extracted by both Gray J and Peek J).
[11] Gray J has referred to a slightly different form of Oxford Dictionary words for this meaning “a thing made or adapted for a particular purpose, especially a piece of mechanical or electrical equipment”. This wording will also suffice as support for my remarks on this topic.

In practical terms, these opening words, “device or instrument”, are to be regarded as introductory or scene setting rather than as a separate or fourth definitional requirement. These opening words identify the subject matter of the statutory definition; the thing or object that must have each of the three “design purposes”[12] thereafter set out[13] before the thing or object, in question, will be characterised as a knuckle duster. Where all three of these design purposes are satisfied, the object in question will, ipso facto, be a thing with which or through which or by means of which something is done or effected and, necessarily, also will be a “device or instrument”.
[12] “Design purpose” is the shorthand term employed by Peek J.
[13] Designed or adapted... [1] to be worn across the knuckles of a hand so as to [2] increase the force or impact of a punch or blow... and [3] protect the knuckles from injury.
Peek J in his description[14] of the three necessary characteristics or design purposes has used, with reference to each of the second and third ones, the qualifying phrase “to a significant degree”. These words do not form part of the definition of knuckle duster set out in clause 10 of Schedule 2 to the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000. If his Honour is using “significant” degree in the sense of an appreciable or identifiable (not necessarily measurable) degree and not in the sense of remarkable, outstanding or important, then I do not disagree. There is no warrant in the statutory language for a requirement as to any particular degree or extent by which the force or impact of a punch or blow has to have been increased or by which the knuckles have to have been protected.[15]
[14] The device or instrument is able to be worn across the knuckles of a hand; the force or impact of a punch or blow when striking another with that hand (wearing the device or instrument) is increased to a significant degree; and the knuckles are protected from injury to a significant degree when striking another with that hand (wearing the device or instrument).
[15] Subject to any application of the principle de minimis non curat lex.
Gray J and Peek J differ in their approaches with respect to the second design purpose, that is, that the device or instrument is “designed or adapted... so as to increase the force or impact of a punch or blow when striking another with that hand...”. Neither is prepared to find that the object in question would serve to increase the “force” of a punch or blow in the circumstances of this case. However, Gray J has taken the view that it is self-evident and a matter of common sense that the “impact” of a punch or blow would be increased by use of the object in question, whereas Peek J is unwilling to express a view on this issue in the absence of expert evidence on the topic.
Again, in my view, it is appropriate to take a practical common sense approach to this question of statutory construction. There are many dictionary meanings that can be found for the terms “force” and “impact”. At least insofar as the word “force” is concerned, there are various versions of its technical meaning as employed in scientific (principally physics) discourse. On any approach, each word, taken separately (that is, not as part of a single composite phrase) has a different focus. Force refers to the nature of the external application of any punch or blow and impact looks to its effect. Nevertheless, it is difficult to see why the drafter would have any interest in the force of a punch or blow, considered independently from its effect on the recipient.
In my view, it can be distracting to focus unduly on their separate meanings. The drafter has used this composite phrase to do no more than refer to the negative effects on the recipient of a punch or a blow. The phrase “force or impact” is to be construed in the context of the definition of knuckle duster read as a whole. The purpose of the definition is to target particular types of device or instrument one purpose of which, if the device or instrument were to be deployed, is to increase the force or impact of a punch or blow. If the use of the device or instrument in question is more likely than not to contribute to an additional physical injury or the exacerbation of any physical injury or pain caused by a punch or blow, this will be because there has been an increase in the “force or impact” of that punch or blow.
When viewed in this way, this second design purpose will usually (although not necessarily always) be a matter that can readily be determined by the trier of fact exercising a practical and common sense judgment. Factors that will need to be taken into account will include the object’s size, shape (design) and weight (or mass) and the materials of which it is comprised. In this respect, I agree, in part,[16] with Gray J. I am satisfied that the object in question, in this case, would serve to increase the “force or impact” of a punch or blow, in the sense that I would construe the language of that requirement.
[16] Gray J is prepared to find only that there would be an increase in the “impact” of a punch or blow delivered with the assistance of the object in question.
The Court should be slow to find that the decision of a member of the police to arrest and charge someone with this offence should turn on questions of expert evidence rather than the police officer’s common sense application of the words of the definition to the object in question. A Court should also be slow to find that this type of offence, to be dealt with summarily, would in the ordinary case need to be the subject of expert, perhaps competing expert, evidence concerning the mechanics of the throwing of a punch or a blow, the physiology of the recipient and the physical forces involved where an object is worn across the knuckles of the hand that delivers the punch or blow.
It seems likely that there will be many objects including items of jewellery that could be said to satisfy the first two design purposes. As such, a careful assessment of whether or not the third design purpose is present will often be critical to the determination of whether or not an object is a knuckle duster.
In these reasons, I have, for convenience, adopted Peek J’s shorthand term “design purpose”. However, I agree with Gray J and Peek J that it is not necessary to establish the subjective “purpose(s)” of the designer or adaptor of an object in issue, whomever that person might have been.

[2014] SASCFC 81

25 July 2014

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