Rankine v Police - [2005] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RANKINE v POLICE
Judgment of The Honourable Justice Anderson
4 April 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF FACT - HONEST AND REASONABLE BELIEF
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - POWER TO DISMISS APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
Appellant convicted for carrying an offensive weapon without lawful excuse contrary to s15(1)(a) of the Summary Offences Act 1953 - carrying the weapon was a breach of the conditions of his parole - appellant stopped by police while walking down the street - police had received a call that an armed hold up had occurred nearby about five minutes eariler - appellant produced the knife when stopped - appellant was not involved in the armed hold up, but was charged with unlawful possession of the knife - appellant argued that the police stopping him was unlawful because the police could not have formed the requisite 'suspicion' as the full description of the armed hold up suspect was so inconsistent with the appellant - Magistrate believed the police evidence that they had only received part of the description, with which the appellant's appearance was consistent - appellant also argued that his parole officer had encouraged him to go fishing, and as a result he believed that he was entitled to carry a fishing knife - appellant also argued that the Magistrate made a serious error of fact in concluding that the appellant was an articulate and competant person, who was well aware that he was not entitled to carry a knife - appellant contended that he was in fact in a fragile mental state and suffering from depression - held: no error on the part of the Magistrate demonstrated - appeal dismissed.
Summary Offences Act 1953 s15(1)(a); Correctional Services Act 1982 s68(1)(a), referred to.
R v Smith [1934] 1 All ER 632; Crafter v O'Reilly [1974] SASR 20; Devries v Australian National Railways Commission (1993) 177 CLR 472, considered.

RANKINE v POLICE
[2005] SASC 114
Magistrates Appeal

ANDERSON J This is an appeal from a Magistrate who, on 13 December 2004, convicted the appellant for carrying an offensive weapon without lawful excuse contrary to section 15(1)(a) of the Summary Offences Act 1953 (“the Act”).
I will set out the circumstances of the incident as described by the Magistrate in his reasons:
“3     Briefly the events that unfolded were that during the early evening of Thursday 16 May 2002 there had been a confirmed armed hold up at the Parkholme newsagency. At about 7.10 pm that day uniform police officers Constables Christopher Glenn McInerney and Martin James French in response to a call resultant from the hold up were travelling in a police motor vehicle in a southerly direction along Hendrie Street Morphettville going towards Parkholme newsagency.
4      In his evidence Constable McInerney stated that information had been received over police radio about the armed hold up and that the offender was wearing dark clothing and a white baseball cap and that the offender had held up the newsagency with a knife. He stated that they were not given any other description.
5      Constable McInerney stated that as they travelled along Hendrie Street his attention was drawn to a male walking on the footpath in a southerly direction along the western side of Hendrie Street. He stated at the time the male person was walking near the corner of Hendrie Street and Houston Street. The male person who was the defendant was stopped. He stated that the defendant was stoped about five minutes or so from the time of the newsagency hold up and about 1 kilometre approximately from the newsagency. He also stated that he knew the area fairly well.
6      When asked why his attention was drawn to the defendant he stated that it was because of the clothing being worn and which was matching the description of the offender for the armed hold up. He stated that the defendant was wearing a white baseball cap, black jumper and army camouflage pants. He formed the suspicion that the defendant may have been involved in the armed hold up because of the description of the offender as wearing dark clothing and a white baseball cap and that the defendant was wearing dark clothing and a white baseball cap. Mr McInerney stated that it was as a result of his suspicions that the defendant was stopped and he identified the defendant as being the person stopped in Hendrie Street.
7      It is not disputed that Mr Rankine was the person stopped and spoken to by Constables McInerney and French. The conversation with the defendant took place in the presence of Constable French on the street and not in the police vehicle at about 7.12 pm.
8      Constable McInerney stated that after stopping Mr Rankine he said to him that his clothing matches the description of a male who had just held up the Parkholme newsagency with a knife to which he states the defendant responded by saying “You’re joking, I’ve got a knife”. Having said this he alleged that Mr Rankine then pulled a knife out from the front of his pants. He stated that prior to the defendant producing the knife he had no idea of its being inside his pants. On production of the knife he observed that the knife’s blade was wrapped in white paper and sticky taped. On Mr Rankine taking the knife from the front of his pants it is alleged that he placed it on the bonnet of the police vehicle, it was a double edged blade (exhibit P2). On production of the knife by Mr Rankine Constable McInerney stated that he conducted a further search of Mr Rankine’s person and determined the identity of Mr Rankine at the time. He further stated that he also, in addition, made further enquiries over the radio in relation to the armed robbery as he considered Mr Rankine to be a potential suspect.”
The Magistrate found that the appellant carried a knife without lawful excuse and recorded a conviction. A bond in the amount of $300 was imposed requiring the defendant to be of good behaviour for a period of twelve months. A condition of the bond was that, if during the period of the bond there was a breach of it, the appellant would have to appear to be re-sentenced in this matter.
The appellant required an extension of time in which to appeal to this court. This was not ultimately opposed by the respondent, and I granted leave to the appellant to proceed with the appeal by granting an extension of time.
Initially there were several grounds of appeal but not all were proceeded with. One of the main grounds which was argued before me was that the Magistrate made a serious error in a finding of fact, and it was submitted that the error affected the rest of his reasons. The appellant referred to paragraph [64] of the Magistrate’s reasons where he summarised the evidence of a parole officer, Ms Testa, as follows:
“She described the defendant as being an articulate and confident person. The court is certainly agreeable with this description and so finds having had the opportunity to observe and hear the defendant.”
I was taken to various passages of Ms Testa’s evidence to show that this was not necessarily an accurate description at all relevant times. Whilst Ms Testa did say that the appellant was articulate and competent, she also said that he was suffering from depression and anxiety, and was prone to histrionics and emotional and irrational behaviour. She had considerable experience with the appellant in her role as his parole officer.
There was one incident during the hearing when the appellant apologised to the court for his behaviour. The transcript reveals that prior to his counsel seeking an adjournment, because of the apparent effect the proceedings were having on the appellant, his general responses indicate fairly clearly that he was not coping at that stage, that is during the hearing.
It was submitted that the learned Magistrate should have made a positive finding that the appellant was in a very frail mental state. This mental state would have to relate to the time of the offence and would be a basis for providing the appellant with a lawful excuse for carrying a knife.
It is suggested that the statement by the Magistrate set out above was relevant in the finding which the Magistrate ultimately made, namely, that the appellant did not hold a mistaken belief that he had permission to carry a fishing knife at the time he was apprehended. The respondent argued that even if the Magistrate had found that the appellant carried the knife under a mistaken belief that he was permitted to do so, that belief would not have constituted a lawful excuse within the meaning of s15(1) of the Act.
At the time of this incident, the appellant was on parole, and pursuant to s68(1)(a)(i) and (ii) of the Correctional Services Act 1982, he was at all times subject to the condition that he must not commit any offence and that he must not possess an offensive weapon unless he had first obtained the permission of the Parole Board. I deal with this aspect later in these reasons.
As part of his general rehabilitation, the appellant had been encouraged by his parole officer to go fishing. It is said that fishing, of necessity, involves a knife. Therefore, it is said, the appellant mistakenly believed that he was entitled to carry the knife with him because he was in fact on the way to meet someone to go fishing when he was stopped.
The learned Magistrate found at [66]:
“The court however is not prepared to accept that the defendant was under any mistaken belief that he was able to carry such a knife. The court is satisfied and finds that the defendant was fully aware of his actions and that he risked breaching his parole conditions.”
The knife in question was described as a double-edged bladed fishing knife, and one of the police officers who gave evidence agreed that it was a fishing knife. The learned Magistrate, at [15], seemed to assume that there was a dispute between the prosecution evidence and that of the appellant in relation to a conversation between the police officers and the appellant which occurred as to what the knife was to be used for. However, as counsel for the appellant has pointed out, it appears that the police officers and the appellant were on the same tack, and that there was really no dispute or conflict in the evidence.
Having re-read the evidence, I think that this criticism of the Magistrate’s reasons is justified, but I am not convinced that in the end result it makes any difference. Whatever was said and whatever the Magistrate’s finding on credibility cannot detract from the main thrust of the prosecution case, that is, that the fishing knife was carried without lawful excuse.
In summary, the appellant says he had an honest and reasonable belief that it was not contrary to the conditions of his parole for him to carry a fishing knife for the purposes of fishing because he was encouraged to go fishing as part of his rehabilitation.
The appellant relies on the decisions in R v Smith [1934] 1 All ER 632 and Crafter v O’Reilly [1974] SASR 20 at 24 to support the proposition that he was under an honest mistake of fact. Smith was charged under the Criminal Damages Act 1971 (UK) which provided:
“A person who without lawful excuse destroys or damages any property belonging to another…”
The Court of Appeal said at 636:
“It follows that in our judgment no offence is committed under this section if a person destroys or causes damage to property belonging to another if he does so in the honest though mistaken belief that the property is his own, and provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief.”
In Crafter, Murray CJ said at page 23:
“What then, will constitute a “lawful excuse?” An exhaustive definition is impossible, but some illustrations may be given. First, there will be a lawful excuse if the defendant had the leave and licence, express or implied, of the occupier, or, if there is no occupier, of the owner, to be in the house. Secondly, there will be a lawful excuse if the defendant entered under superior authority, as, for instance, under a lawfully issued search warrant, or a warrant of execution, or a warrant to distrain. Thirdly, in my opinion, there will be a lawful excuse if the defendant is able to prove, or if it can be proved on his behalf, that he had no mens rea. Thus, if it can be shewn that he was in such a mental state from disease or otherwise that he was not responsible for his actions, or that he was forcibly taken to the house by some other person and left there in a helpless condition, or that he entered the house in the honest and reasonable belief that the house was his own dwelling, and that he was discovered before he found out his mistake, there would, in my judgment, be an answer to the charge. Mistake of law can never be pleaded, but an honest and reasonable belief in the existence of a state of facts which, if true, would make the act charged against the accused innocent would, I think, be a sufficient defence …”
Aside from the question of any psychiatric condition or mental impairment, it is my view that the learned Magistrate was quite correct in his finding that there was no lawful excuse. Dealing then with any psychiatric or mental impairment, there is simply a lack of evidence of any condition seriously affecting the appellant’s mental state at the time of the offence.
The appellant’s parole officer, Ms Testa, was asked whether about the time of the offence it was possible the appellant believed he was entitled to carry knives to and from fishing. She answered, “Yes I can imagine him being at home and there being some drama thinking ‘I’ve got to get out of here. I’m going fishing’ and just organising to go fishing and taking whatever he needed to take…”. That might go some way towards establishing a lawful excuse, but it clearly is not sufficient to satisfy the test of Murray CJ set out above.
In cross-examination Ms Testa confirmed that the appellant signed four copies of his parole conditions and kept one copy himself and would have been aware that he was not to carry knives on his person at any time.
The learned Magistrate then dealt with the appellant’s own evidence. He had told the court that he had suffered from depression but that was after he had been shot in the stomach in around March 2003. He told the court that on the night of the offence he had not been suffering from depression and was in a pretty good mood because he was going fishing.
The appellant was on parole at the time for causing grievous bodily harm and the weapon involved in that offence was a single bladed fishing or hunting knife.
The appellant’s belief as to his permission to carry a knife for fishing was supposedly based on a letter written by Ms Testa which was tendered. He agreed when cross-examined about the contents of the letter that it contained no such permission and said that it must have been an impression he gained from talking with Ms Testa. She however stated that there had been no conversation about carrying the knife.
The Magistrate then concluded, quite correctly in my view, that the appellant had no lawful excuse to carry the knife. The mistake of fact related to what he thought was contained in the letter together with his suggested conversation with Ms Testa. The learned Magistrate correctly rejected both of those suggestions.
The Magistrate found at [65] and [66]:
“The court is of the view and so finds that the defendant was aware of his actions and that he is an articulated (sic) confident and intelligent person fully understanding of the risk of carrying a knife, and in this instance its been (sic) an offensive weapon whilst on parole.
The court accepts that the defendant is a keen fisherman and that a scaling knife is an integral part of a fisherman’s kit. It also accepts that on the night in issue he may well have been going to the Marion train station to go to Noarlunga to meet up with a friend to go fishing. The court is further prepared to accept that the knife was carried for this purpose. The court however is not prepared to accept that the defendant was under any mistaken belief that he was able to carry such a knife. The court is satisfied and finds that the defendant was fully aware of his actions and that he risked breaching his parole conditions. The court is further satisfied and finds beyond reasonable doubt that as a result he carried on 16 May 2002 without lawful excuse an offensive weapon namely a knife contrary to Section 15(1) of the Summary Offences Act 1953.”
On the evidence before the learned Magistrate I believe he came to the correct conclusion.
Despite the evidence that the appellant had suffered from various conditions, and despite the evidence of his parole officer, the fact is that the Magistrate had an ideal opportunity to observe the appellant whist giving evidence, and overall was in the best position to form a view as to the appellant’s ability to understand, and therefore whether it was relevant in relation to the suggestion that he had a reasonable belief that he could carry the knife for the purposes of going fishing. The Magistrate formed the view that the appellant was articulate and confident which he was entitled to do. Even though the parole officer was talking about a different point in time, the learned Magistrate was entitled to make that finding at the time he did based on his observations of the appellant.
Having regard to the principles of interference by an appeal court and the Magistrate’s findings on these aspects, I am not prepared to interfere.
The next main ground of appeal relates to the complaint that the learned Magistrate should have excluded the evidence of the police officers. The appellant did not pursue in the appeal whether or not it was a proper matter for review by this court to consider if a voir dire hearing should have been held prior to the receipt of any evidence. It is conceded that this decision was within the discretion of the learned Magistrate.
The ultimate ruling by the learned Magistrate as to the admissibility of the evidence of both police officers was essentially based upon his findings of credit, and once again, the principles of interference by appeal courts are relevant.
It is said by the respondent that the findings of the learned Magistrate are not “glaringly improbable” in the terms of Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479.
The main complaint concerning the admissibility of the evidence relates to the identification and description of the appellant by reference to a description given over the police radio. As previously indicated, the information received was that there had been an armed hold up nearby, that the offender was wearing dark clothing and a white baseball cap, and furthermore that the offender had held up a newsagency with a knife. The police officers gave evidence, and that evidence was accepted by the Magistrate, namely, that the description just referred to was the only description they got, and on that description it was reasonable for them to apprehend the appellant.
An incident history report was tendered which report emanated from the police communications section. There was evidence that such a report does not necessarily contain the identical information which is relayed via police radio. In the incident history report, the offender was described as wearing dark clothing and a white baseball cap, but as being a male Caucasian with short hair, thin and of about 180 centimetres height. It was agreed that the defendant was not white and Caucasian. Likewise, he was not thin nor was he 180 centimetres tall. Had that description been the description obtained by the constables, then there seems to be no doubt that they could not reasonably have suspected that the appellant was the likely offender in relation to the armed robbery.

The learned Magistrate believed the police officers in relation to the description they said they had received, and on that basis he found that the police officers did have lawful authority to stop the appellant. The learned Magistrate believed the police officers’ evidence that at the time of the apprehension of the appellant, they had no idea of the existence of the police incident report nor the information conveyed in it. As far as the police officers were concerned, the appellant fitted the description of the alleged offender, which the police officers said they received. Although he did wear dark clothing and a baseball cap and had a knife in his possession, the fact is that he was of Aboriginal background, stocky in build and considerably less than 180 centimetres in height.
The respondent submitted that the suspicion the police officers formed was quite reasonable in relation to their routine patrol when they were responding to information received about five minutes earlier concerning an armed robbery less than a kilometre from their location. It was submitted, quite correctly in my view, that the power to stop and search created by s68 of the Summary Offences Act 1953 was vested in individual police officers and not the South Australian Police Department as a whole. Therefore it was relevant to look at the individual conduct and motives of the police officers rather than the whole of the information which was available by way of the incident report.
The learned Magistrate, in my view, was entitled to make the finding he did, namely, that he believed the officers gave truthful evidence and therefore was correct in not exercising his discretion to exclude the evidence. I consider that this ground of appeal should also fail.
As I have indicated, there were several other grounds in the amended notice of appeal which was allowed to be substituted for the original grounds of appeal, but in essence the argument proceeded before me by advancing only the two grounds which I have dealt with.
For the reasons which I have set out I dismiss the appeal.