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 |
Cases Cited: | He Kaw Tehv The Queen (1985) 157 CLR 523 |
| Parties: | S D Salleo (Informant) |
| Representation: | Counsel |
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…
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- AGLC
- Salleo v Wynberg [2019] ACTMC 14
- Case
- [2019] ACTMC 14
- Decision Date
CaseChat Overview and Summary
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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