Salleo v Wynberg - [2019] ACTMC 14

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Salleo v Wynberg
Citation:	[2019] ACTMC 14
Hearing Date(s):	12 February 2019
DecisionDate(s):	13 March 2019
Before:	Magistrate Morrison
Decision:	See paragraph [42]
Catchwords:	CRIMINAL LAW – Prohibited Weapons Act 1996 (ACT) (the ‘Act’) – meaning of possession – whether fault element of knowledge applies to possession in circumstances covered by s 3(1)(a) of the Act – application of principle of legality in statutory construction
Legislation Cited:	Criminal Code2002 (ACT), ss 11, 12, 14, 15, 17, 22, 23 Firearms Act 1996 (ACT), s 11 Prohibited Weapons Act 1996 (ACT), ss 2B, 3, 3A, 3B, 5
Cases Cited:	He Kaw Tehv The Queen (1985) 157 CLR 523 Plaintiff S157/2002 v Commonwealth (2003) 221 CLR 476 R v Hill [2012] ACTSC 121 R v Sarlija (No 2) [2015] ACTSC 295 R v Secretary of State for the Home Department; Ex parte Simms [2002] 2 AC 115 R v Walters [2016] ACTSC 336 Williams v The Queen (1978) 140 CLR 591
Parties:	S D Salleo (Informant) Joshua Wynberg (Defendant)
Representation:	Counsel Howe (Prosecution) Dunne (Defendant)
File Number:	CC 6847 of 2018

MAGISTRATE MORRISON:

The Defendant has faced hearing on a single charge of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (the ‘Act’). What is said to be the prohibited weapon is a metal knuckle-duster.

It is not in contest that the knuckle-duster was found by Police in a suitcase and that the suitcase had been in the Defendant’s possession. It is also not in contest that the knuckle-duster is a prohibited weapon, and that the Defendant was not authorised to possess it.

The contest has been this:
a.What constitutes possession, as a matter of law, for the purposes of the Act – in particular, what, if anything, is the necessary fault element; and
b.Whether possession by the Defendant has been proved beyond reasonable doubt.

Section 5 of the Act is in simple enough terms:
Offence—unauthorised possession or use of prohibited weapons
A person commits an offence if the person—
(a) possesses or uses a prohibited weapon; and
(b) is not authorised by a permit, or otherwise under this Act, to possess or use the weapon.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
Possession is relevantly defined in s 3(1) of the Act:
Meaning of possession—Act
(1) For this Act, a person has possession of a prohibited weapon or prohibited article if the person—
(a)has the weapon or article on his or her person, including in something carried or worn by the person (physical possession); or
(b)has the weapon or article at premises owned, leased or occupied by the person; or
(c)otherwise has the care, control or management of the weapon or article.
As can be seen, what constitutes possession is defined, in each of the alternatives in paragraphs (a), (b) and (c), by reference to the concept of “having”. A person has possession of a weapon if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Salleo v Wynberg

Details

AGLC: Salleo v Wynberg [2019] ACTMC 14
Case: [2019] ACTMC 14
Decision Date: 13 March 2019

CaseChat Overview and Summary

The dispute in Salleo v Wynberg was heard in the Supreme Court of the Australian Capital Territory. The central issue was the interpretation of the Prohibited Weapons Act 1996 (ACT) (the ‘Act’), specifically the meaning of ‘possession’ in the context of the Act and whether the fault element of knowledge applies to possession in circumstances covered by s 3(1)(a) of the Act. The defendant, Salleo, was charged under the Act for possessing a prohibited weapon, and the court had to decide whether the knowledge requirement applied to this offence.

The court was required to determine the extent to which the principle of legality, which mandates strict interpretation of criminal statutes, applied to the definition of possession under the Act. The principle of legality necessitates that ambiguous or penal statutes be strictly construed, and the court had to consider whether this principle meant that the knowledge requirement should be read into the definition of possession. The court also needed to examine whether the absence of a knowledge requirement in s 3(1)(a) of the Act meant that the provision was unconstitutionally vague.

In its decision, the court held that the principle of legality did not require the fault element of knowledge to be read into the definition of possession in the Act. The court found that the provision was not unconstitutionally vague and that it was sufficient for the prosecution to prove that the defendant was in physical control of the weapon. The court held that the absence of a knowledge requirement did not render the provision ambiguous or uncertain, and therefore the principle of legality did not apply in this case.

The court ordered that the appeal brought by Salleo be dismissed and that the conviction and sentence imposed by the Magistrates Court be upheld. The court clarified that the absence of a knowledge requirement in s 3(1)(a) of the Act did not render the provision unconstitutionally vague, and that the prosecution only needed to prove physical control of the weapon to establish the offence. The court also held that the principle of legality did not require the fault element of knowledge to be read into the definition of possession under the Act.

Orders

Orders of the court

See paragraph [42]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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