Roebuck v Beadle - [2009] WASC 236

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ROEBUCK -v- BEADLE [2009] WASC 236

CORAM: HALL J

HEARD: 17 AUGUST 2009

DELIVERED : 28 AUGUST 2009

FILE NO/S: SJA 1051 of 2009

BETWEEN: BRADLEY JAMES WILLIAM ROEBUCK
Appellant
AND
GAVIN BEADLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D N JONES
Citation  :PE 8226 of 2009

Catchwords:

Carrying article with intent to cause fear - Statutory presumption of intent - Reasonable grounds for suspecting - Whether contrary proved

Legislation:

Weapons Act 1999 (WA), s 8(2)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Ms K A Gorski
Respondent: Ms L White

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Abbott v State of Western Australia (2005) 152 A Crim R 186
Bentink v Nguyen [2004] WASCA 211
Gaunt v Hooft [2009] WASC 36
George v Rockett (1990) 170 CLR 104

HALL J: On 12 May 2009, after a hearing in the Magistrates Court, the appellant was convicted of carrying an article with intent to cause fear that a person would be injured or disabled by its use contrary to s 8(1)(b) of the Weapons Act 1999 (WA). He has appealed against that conviction.
At the hearing the prosecution relied upon a statutory presumption that intent to cause fear is established where the circumstances give reasonable grounds for suspecting that the person had such an intention and the contrary is not proved.
On 29 June 2009 McKechnie J granted leave to appeal on grounds 1 and 3 in the appeal notice. Those grounds are as follows:
1.The learned Magistrate erred at law in finding that the evidence was sufficient to give rise to reasonable grounds for suspecting that the appellant had an intention to cause fear.
…
3.The learned Magistrate erred at law by finding that the presumption was not rebutted by the evidence given by the appellant.

The evidence before the magistrate

On the evening of New Years Day, 1 January 2009, two police officers were patrolling in a police vehicle along Walcott Street in Coolbinia. At about 8.30 pm they saw the appellant, in company with another person, walking along the street. As there had been some complaints of graffiti in the area the police decided to stop and talk to the appellant and his companion.
The police car had passed the appellant and, accordingly, was turned around. The appellant and his friend were seen turning into a connecting street. The police pulled up the car and spoke to the appellant. The evidence of one of the police officer's in that regard was as follows:
I spoke to the accused and asked him if he had anything on him that he shouldn't have had on him.
And what was his response to that?---His response to that was that he had a knife rolled in the waist band of his tracksuit bottoms (ts 3).
At that point the police officer searched the appellant and found a knife in the elastic on the right‑hand side of the appellant's tracksuit pants. The knife was tendered at the hearing and is approximately 20 cm long with a red handle and a sharp tapering blade.
The police officer then asked the appellant what reason he had for having the knife. The appellant said that he had found the knife on the corner of the street he had turned into a few moments before. The police officer stated that he had had the appellant under observation as he was walking along Walcott Street and turning the corner and had not seen him bend down to pick anything up. The police officer then asked the appellant why the knife was in his waistband and not in his pocket if, as he claimed, he had just found it. There was no response to this question.
In cross‑examination the police officer confirmed that there was nothing about the appellant's manner or behaviour when he first saw him that caused any concern. The police officer confirmed that it was the appellant who volunteered that he had a knife on him and that he was fully cooperative.
The appellant gave evidence that he had found the knife on the corner of Walcott Street and Adair Parade, less than a minute before the police pulled over. He said that he tucked the knife into his pants. He said he did not put the knife in his pocket because the pocket lining was silk. In cross‑examination he explained that the knife was a sharp one and it would have cut through his pocket lining. He also said that it was not placed in a plastic bag that he was carrying because it would have cut through the bag. He agreed the knife was 'tucked up safely' but denied that it was rolled three times into his tracksuit pants.

The decision of the magistrate

After reviewing the evidence, the learned magistrate said:
The circumstances in relation to which the knife was possessed by the accused, in my view, give reasonable grounds for suspecting the accused had the necessary intention. He is walking along a suburban street at 8.45 pm. He was carrying a sharp knife which was concealed in the waistband of his tracksuit, rolled three times into that waistband. Although the accused said he had just found the knife he offered no response to Constable Beadle when he said he had seen him walking along the street and not seen him bend over to pick up anything.
The accused also offered no explanation when asked why he had the knife in his waistband and not his pocket. The accused gave evidence and said that he had the knife in his waistband because the tracksuit had silk pockets and would be cut by the knife. As previously stated, no such explanation was given at the time and the knife was concealed in a manner which was potentially dangerous to the accused.
I find the knife was carried in circumstances that gave reasonable grounds for suspecting the accused had the relevant intention and that the accused has not proved on the balance of probabilities he did not have that intention. I find the charge is proved (ts 20 ‑ 21).

The law

Section 8 of the Weapons Act relevantly provides as follows:
8.Other articles carried or possessed as weapons
(1)Except as provided in subsections (3) and (5) and section 10, a person who carries or possesses an article, not being a firearm, a prohibited weapon or a controlled weapon, with the intention of using it, whether or not for defence -
(a)to injure or disable any person; or
(b)to cause any person to fear that someone will be injured or disabled by that use,
commits an offence.
Penalty: $4 000 or imprisonment for one year.
(2)A person is presumed to have had the intention referred to in subsection (1) if -
(a)the article was carried or possessed in circumstances that give reasonable grounds for suspecting that the person had the intention; and
(b)the contrary is not proved.
…
Weapons which are firearms, controlled weapons or prohibited weapons are covered by other offence provisions. Section 6 provides that it is an offence to carry or possess a prohibited weapon, and s 7 provides that it is an offence to carry or possess a controlled weapon. Though some types of knives are listed in the Weapons Regulations 1999 (WA), the knife in this case was neither a prohibited nor a controlled weapon. Section 8 extends to other articles but only where the article is possessed or carried with a specific intention.
The concept of an 'article' is a very broad one. As Barker J noted in Bentink v Nguyen [2004] WASCA 211:
An 'article' is very generally defined by s 3 of the Act to include 'liquid or gas'. Otherwise, an 'article' has the same meaning in s 8(1) as it has in ordinary usage, namely, in this context, a particular material thing (of a specified class); a commodity; a piece of goods or property: Shorter Oxford English Dictionary, 5th ed [38].
Clearly knives other than those that are controlled or prohibited weapons can be articles for the purposes of s 8. However, it is not an offence to merely carry a knife of such a type, even in a public place. An offence under s 8 is only committed if an article is carried with the intention of using it, either to injure or disable a person or to cause anyone to fear that someone will be injured or disabled. The evident purpose of s 8 is to extend the prohibitions contained in the Act to items that are not necessarily designed for the purpose of causing injury to people (such as controlled or prohibited weapons) but are capable of being used for that purpose. No doubt because such items could conceivably be possessed for innocent reasons, it is only an offence to carry or possess them with an intent to harm or cause fear.
The wording of s 8 indicates that an offence can be committed at a point in time prior to any fear being caused. A person will commit an offence who carries an article with an intention of using it to cause fear at some point in the future. It is not necessary for the manner of carrying the article to be such that in itself it is likely to cause fear. In this way, the offence in s 8 can be distinguished from that in s 68 of the Criminal Code (WA) of being armed in circumstances that are likely to cause fear.
Bearing in mind that s 8 is intended to operate at a point in time prior to the use of the weapon either to injure or to cause fear, proof of intention is likely to be more difficult. The intention of a person who has used a weapon or is brandishing it and making threats to those who are present can be readily inferred. The intention of a person who is carrying an article but has yet to use it is not necessarily as apparent. No doubt for these reasons the legislature included s 8(2).
The effect of s 8(2) is that if the prosecution proves that the circumstances in which the article was carried or possessed are such that there would be reasonable grounds for suspecting that the person carrying the article has the intention of using it to injure or to cause fear then the person is presumed to have that intention unless the contrary is proved. Whilst the prosecution bears the onus of proving the circumstances which give rise to reasonable grounds for suspicion, once those circumstances have been established to the requisite standard the onus effectively shifts to the defendant.
For the 'contrary' to be proved in terms of s 8(2)(b) would usually necessitate that there be some evidence adduced by the defendant that no intention to injure or cause fear was held. Whilst it is conceivable that there may be evidence in the prosecution case which the defence could seek to rely on as negating an intention, this would also be taken into account in assessing the 'circumstances' and whether they give rise to a reasonable suspicion that such an intent is held. In my view, s 8(2)(b) requires a consideration of all of the proven circumstances; the prosecution could not rely on only some of the circumstances and ignore others which may qualify or negate suspicions as to the intent of the person.
Similar words to those used in s 8(2)(b) are used in s 11 of the Misuse of Drugs Act 1981 (WA). That section provides that a person who possesses a prescribed quantity of a drug is deemed to have an intent to sell or supply the drug 'unless the contrary is proved'. In Abbott v State of Western Australia (2005) 152 A Crim R 186, Roberts‑Smith JA said:
There is no doubt that s 11 reverses the onus of proof in relation to the element of intent; it is therefore for the accused to prove, in circumstances which give rise to the presumption, that it is more probable than not that he did not have an intent to sell or supply [41].
In the same case Steytler P said:
The very purpose of s 11(a) of the Act is that of putting upon the accused, in such a case, the onus of establishing on the balance of probabilities that, on the whole of the evidence at the trial, he or she did not intend to sell or supply the drug to another [4].
As is evident from what was said in Abbott, in proving the contrary the defendant is not limited to their own evidence as to intention. In Abbott, Roberts‑Smith JA suggested that it was more appropriate to describe such provisions as being an aid to proof rather than as shifting the onus, though in practical terms they impose a burden on the defence. In a case in which the circumstances have been established and the presumption applies, the finder of fact is entitled to be satisfied beyond reasonable doubt of the existence of the relevant intent, unless it is displaced by satisfaction that on the evidence as a whole it is more likely than not that the defendant did not have such an intent.
Accordingly, in respect of s 8(2) the finder of fact would need to ask two questions. Firstly, whether circumstances have been proven that give reasonable grounds for suspecting that the defendant had an intention to use the article to injure or to cause fear and, secondly, whether there is evidence that would establish that it is more likely that the defendant did not have such an intention. In simple terms, where the circumstances are sufficiently suspicious, the intention will be presumed unless some explanation will satisfactorily negate that an intention of the requisite type was held. That explanation may be bolstered or supported by some of the circumstances.
It is important to note that the circumstances have to be assessed on an objective basis and that it is not necessary for the finder of fact to personally hold a suspicion as to the necessary intent. In George v Rockett (1990) 170 CLR 104 the High Court said:
When a statute prescribes that there must be 'reasonable grounds' for a state of mind -- including suspicion and belief -- it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person (112).
The High Court also went on to consider what is necessary in order to establish a state of suspicion:
Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove."' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay [its] debts as they became due' as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said:
'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which "reason to suspect" expresses in sub‑s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes -- a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors' (115 ‑ 116). (footnotes omitted)
When applied to s 8 of the Weapons Act, this means that the proven circumstances do not need to establish, either directly or by inference, that an intention was held. There need only be a basis for a reasonable person to have a 'positive feeling of actual apprehension or mistrust' that the person was carrying the article with the intention of using it to injure or cause fear. Whilst this is a very low threshold, it does not obviate the need for the prosecution to establish the circumstances upon which it relies beyond reasonable doubt and for those circumstances to then be clearly identified by the magistrate. The circumstances must be of such a quality as to be capable of raising an apprehension in the mind of a reasonable person that the defendant had the relevant intent.

Ground 1

In essence, this ground is that the evidentiary basis for s 8(2)(a) to operate was not established. The appellant asserts that the proven circumstances were not such as could give rise to reasonable grounds to suspect that the appellant had an intention to cause fear. In order to make good this ground, the appellant must show that the circumstances found proved by the learned magistrate could not reasonably give rise to a suspicion that the appellant had the relevant intention. It would not be sufficient to establish that other people could reach a different conclusion on the evidence.
Without limiting the range of relevant circumstances, the possible factors which could be taken into account include the type of item possessed; the location in which it was being carried; the manner in which it was being carried; the time of day; and whether there was any evident or credible explanation. The learned magistrate referred to each of these circumstances. He referred to the knife as being sharp and concealed in the waistband of the appellant's tracksuit. He referred to the appellant as walking along a suburban street and the time being 8.45 pm. He referred to there being no explanation proffered by the appellant other than that he had found the knife and that this was inconsistent with police observations.
At the hearing of the appeal, counsel for the appellant submitted that the knife was not in clear view and that this was a factor that tended to negate any intention to cause fear. That, however, confuses carrying an item intending to use it to cause fear at some later point with an intention to cause fear at the time of apprehension. The concealment of a weapon of this type does not necessarily suggest an absence of intention to use it to cause fear. To the contrary, it may be an indication that the person wishes to draw upon it quickly and without alerting those around to the fact that it is possessed.
The learned magistrate did not make any specific finding in respect to whether he rejected the appellant's evidence that he had recently found the knife. He did, however, refer to the fact that the police officer had told the appellant that he had been observed and had not been seen to pick anything up, and that no response was made when this was put. The implication is that the explanation was not a credible one. The lack of a credible explanation for carrying a knife of this type in the manner it was carried on a suburban street at night was part of the circumstances that the magistrate could take into account.
Counsel for the appellant submitted that there were other circumstances that were relevant. These included the fact that there was nothing in the appellant's behaviour that had caused the police any concern, either before or after he was stopped; that there were no other people in the vicinity; and that the appellant volunteered that he had a knife. These factors do not necessarily deprive the other circumstances of the power to raise a reasonable suspicion. In particular, it is noteworthy that the volunteering of the presence of the knife arose after the police officer asked the appellant whether he had anything on him that he should not have. This is consistent with a realisation on the part of the appellant that he was carrying the knife for other than innocent purposes. The hearing before the learned magistrate was short and there is nothing to suggest that he failed to take into account all of the relevant circumstances.
Counsel for the appellant relied upon the decision of Barker J in Bentink. In that case the respondent was found by a police officer sitting on some steps in Northbridge at 10.30 pm on a Friday night with a red bag. Having obtained the respondent's permission to look inside the bag, the police officer discovered a machete wrapped in paper. The respondent said it was for home decoration and that he intended to go out that night nightclubbing. He conceded that he had been home since purchasing the item. Barker J noted that there was no evidence that the respondent acted in a particularly animated fashion, nor that he had been brandishing the machete. His Honour noted that all the evidence suggested that the respondent was in an extremely passive state and had allowed the police officer to inspect his bag. His Honour said that he found it extremely difficult on those bare facts to identify any circumstances that give reasonable grounds for suspecting that the respondent had the intention of using the machete to cause fear.

There are a number of points of distinction between Bentink and this case. Firstly, in Bentink the fact that the machete was found in a bag and wrapped in paper was at least consistent with it having been purchased that day as claimed by the respondent. The fact that it was located in a bag and wrapped also suggested that it was not intended to be available for immediate use. In contrast, in this case the knife was being carried in a way that indicated that it was deliberately concealed, yet able to be drawn quickly for offensive purposes. Furthermore, in contrast to Bentink, in this case the appellant advanced an explanation for his possession of the knife, namely having found it moments before, that was inconsistent with other evidence. Absent that explanation there was no evident reason for a knife of this type to be carried by the appellant on a suburban street on the evening of a public holiday. It should also be noted that in Bentink the respondent consistently advanced the explanation that he had purchased the machete as a wall decoration from the time he was first apprehended until trial. In the present case, whilst the appellant did claim to have found the knife when first apprehended, he did not advance reasons for why he had not placed it in his pocket or the bag until cross‑examined at the hearing.
Bearing in mind that the threshold for a suspicion is low, the question is whether the circumstances could give reasonable grounds for suspecting that the appellant had an intention of using the knife to cause fear. In my view, the circumstances were sufficient and, accordingly, this ground cannot succeed.

Ground 2

In essence, this ground is that the learned magistrate erred by failing to find that 'the contrary' was not proved pursuant to s 8(2)(b) of the Weapons Act. In particular, it is submitted that the evidence given by the appellant had the effect of proving that the appellant did not have the intention to cause fear and that this evidence should have been accepted by the magistrate.
The mere fact that a defendant gives evidence and denies an intention does not necessarily prove that such an intention was not held. The appellant's counsel relied upon the decision of Johnson J in Gaunt v Hooft [2009] WASC 36. In that case, Johnson J said:
For myself, providing the factual circumstances as found by the magistrate are not inconsistent with the respondent's evidence of his intention, or providing the evidence of intention is not inherently implausible, then I consider that acceptance of the respondent's evidence would constitute proof to the contrary [21].
However, it would be wrong to conclude that her Honour was suggesting that evidence from a defendant specifically denying an intention should invariably be accepted. Her Honour went on to say:
[T]he only circumstances where the magistrate would not be entitled to accept the evidence of a witness considered to be a credible and reliable witness is where the factual circumstances as found by the magistrate are inconsistent with the respondent's evidence of his intention or the evidence of the witness on the relevant issue is inherently implausible [26].
It should be noted that in Gaunt v Hooft the defendant was not cross‑examined by the prosecution. That is not the case here. The appellant was cross‑examined as to the circumstances in which he said he had found the knife and as to how it was being carried.
Counsel for the appellant submitted that it was significant that it was not plainly put to the appellant in cross‑examination that he had an intention of using the knife to cause fear. Whilst that is true, in my view the cross‑examination was sufficient to make it apparent that the appellant's explanation for his possession of the knife was not accepted by the prosecution. Since the evidence of having found the knife was integral to the appellant's claim of a lack of intention, that claim was plainly challenged. This was, therefore, a case where the learned magistrate was entitled to reject the evidence of the appellant either because he considered it lacked credibility or because it was inherently implausible having regard to the proven factual circumstances.
Whilst the learned magistrate did not specifically refer to s 8(2)(b), it is apparent from his reasons that he was not satisfied that the contrary had been proved. It was open to him to reject the evidence of the appellant and he clearly did so. In these circumstances this ground fails.

Conclusion

It was open to the magistrate to find that on the available evidence the circumstances gave reasonable grounds for suspecting that the appellant, in carrying the knife, had an intention to use it to cause fear. It was also open for the magistrate to find, as he did, that it had not been proved on the balance of probabilities that the appellant did not have that intention. In those circumstances the presumption was available to prove intent and, there being no other issues, the charge was proved.
The appeal must, therefore, be dismissed.