Salleo v Wynberg
[2019] ACTMC 14
•13 March 2019
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 he or she has it on their person or in something worn or carried, if he or she has it at premises owned leased or occupied by them, or if he or she otherwise has the care control or management of it.
No guidance appears in the Act as to how that concept of “having” is to be construed.
The common law approach to the concept of possession is that:
[T]here is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly be drawn from surrounding circumstances: Williams v The Queen (1978) 140 CLR 591 (per Aickin J at 610).
The Defence submission is that the concept of a person “having” a prohibited weapon on their person or in something carried by the person also has a necessary mental element involving knowledge of the presence of the prohibited weapon. I think I can fairly observe that it is a submission which would be irresistible but for what appears in other parts of the Act – in particular ss 3A and 3B.
Neither section is directly relevant for the purposes of the charge against the Defendant. Section 3A is headed “Evidence of possession—prohibited weapons or articles at premises” and is what might be described as a reverse-deeming provision. It says that a person is not taken to have possession of a prohibited weapon or article only because the thing is at premises owned, leased or occupied by the person in certain specified circumstances, one of which is expressed as “if … the person does not know that the weapon or article is at the premises”.
Section 3B is headed “Evidence of possession—care, control or management of prohibited weapon or article”. It provides for certain things to be considered in working out whether a person has the care, control or management of a prohibited weapon or article. One of those things is “whether the person knows about the weapon or article”.
The Prosecution submission is that possession for the purposes of the charge against the Defendant does not involve any fault element of knowledge. The line of argument is as follows:
a.the concept of having the weapon forms part of each of the three alternatives in the definition of possession in s 3(1)(a), (b) and (c);
b.the meaning to be given to the concept of having in s 3(1)(b) and (c) is affected by ss 3A and 3B of the Act;
c.under s 3(1)(b) and (c), the concept of having cannot involve a mental element of knowledge because if it did then ss 3A(1)(a) and 3B(1)(a) would be otiose, because the reference in those sections to a defendant having knowledge of the weapon or article would have no work to do;
d.section 3 should be construed in such a way that the meaning given to the concept of having is consistent in each of paragraphs (a), (b) and (c), such that if there is no mental element of knowledge for the purposes of paragraphs (b) and (c) then there is no mental element of knowledge for the purposes of paragraph (a).
I have been referred to three authorities by the prosecutor.
In R v Hill [2012] ACTSC 121 the accused was in a motor vehicle in which a firearm was located. He was charged under the Firearms Act 1996 (ACT) (‘Firearms Act’). The provisions of that Act about possession are relevantly identical to what appears in the Prohibited Weapons Act 1996 (ACT). The defence case was that the accused did not know that the firearm was there. Acting Justice Nield decided that the accused had not discharged the evidential burden required to set up a defence of lack of knowledge: at [53]. There was no argument before his Honour that the relevant sections of the Firearms Act were to be construed other than in accordance with the language used in them.
In R v Sarlija (No 2) [2015] ACTSC 295 (‘Sarlija (No 2)’), her Honour Murrell CJ was dealing with a charge under s 5 of the Act. A knuckle-duster had been found in the side compartment of the driver’s side door of a vehicle.
In her reasons, her Honour referred to what she described as the “confusing provisions” of the Act in relation to the meaning of possession: at [31]. Early in her Honour’s reasons, under the heading of “Onus and Standard of Proof”, her Honour said, “I must be satisfied beyond reasonable doubt that the accused knew that there was a knuckle-duster in the driver’s side compartment of the vehicle that he was driving”: at [10]. When referring later to the confusing provisions of the Act, her Honour concluded by saying “I have decided that doubts concerning the content of element 1 should be resolved by adopting a narrow view of what is required to prove element 1, and that the content of element 1 should be as set out above”: at [31].
What is set out above as the content of “element 1” is in these terms (at [27]):
The accused voluntarily possessed the knuckle-duster in that he believed that he had it and he was capable of exercising control over it.
It is not obvious to me why her Honour expressed her conclusion with reference to voluntary possession, the belief of the accused, and the accused’s capability of exercising control. It may be that she did so to address particular arguments before her. (I note that s 15 of the Criminal Code2002 (ACT) (‘Code’) provides that for a physical element of conduct comprising a state of affairs, the state of affairs is voluntary only if it is a state of affairs over which the person is capable of exercising control.) In any event, I do not understand her Honour’s expression to mean anything different to what appears earlier in her reasons – that is, that she must be satisfied that the accused knew that there was a knuckle-duster in the vehicle.
Her Honour acquitted the accused of the weapon possession charge on the basis that she was not satisfied that the element referred to above had been proved: at [45]. In her reasons, her Honour does not make any reference to the accused being required to discharge any evidential burden, reinforcing the view that her Honour approached the matter on the basis that the prosecution was required to prove beyond reasonable doubt that the accused knew the knuckle-duster was in the vehicle.
In R v Walters [2016] ACTSC 336, his Honour Elkaim J dealt with a charge of possessing a prohibited firearm under the Firearms Act. The firearm was found in a vehicle driven but not owned by the accused.
The accused gave evidence that he was not aware of the presence of the gun in the vehicle. His Honour accepted that evidence, and accepted that it had discharged the accused’s evidential burden for the purposes of s 11 of the Firearms Act – that being relevantly the equivalent of s 3A of the Act: at [48]. There is no reference in his Honour’s reasons to the decision of the Chief Justice in Sarlija (No 2). As in the decision in Hill (to which his Honour referred), there appears to have been no argument before his Honour that the relevant sections of the Act were to be construed other than in accordance with the language used in them.
I add here that “premises” is defined in the Dictionary to the Act to include a vehicle.
Section 2B of the Act provides that Chapter 2 of the Code applies to offences against s 5 of the Act. The Code is intended to apply principles of criminal responsibility across all offences in the Territory to which it is applied.
Section 11 of the Code provides that an offence consists of physical elements and fault elements, but that the law creating an offence may provide that there is no fault element for some or all of the physical elements. By virtue of s 12, proof of guilt requires proof of each physical element and each fault element.
Under s 14, physical elements are conduct, a result or a circumstance. Fault elements are specified in s 17 as intention, knowledge, recklessness or negligence, but a law creating an offence may provide some other fault element.
Under s 22, if a law creating an offence does not provide a fault element for a physical element of conduct, intention is the fault element, and if no fault element is provided for a physical element of a circumstance or result, recklessness is the fault element.
Under s 23, if a law that creates an offence provides that strict liability applies to a particular physical element of the offence then there is no fault element for that physical element but a defence of mistake of fact is available in relation to that physical element.
Under s 24, if a law that creates an offence provides that absolute liability applies to a particular physical element of the offence then there is no fault element for that physical element and a defence of mistake of fact is not available in relation to that physical element.
The prosecution submission, as I understand it, is that by necessary implication (to be drawn from the argued-for effect of what appears in ss 3A and 3B above) the law creating the offence in s 5 of the Act is one of strict or absolute liability (because of the definition of “possession” in s 3) in circumstances where the physical element constitutes possession as defined in s 3(1)(a) of the Act.
I disagree.
In Sarlija (No 2), her Honour Murrell CJ referred to s 3A(2) of the Act as being “drafted in an unconventional way”. I respectfully agree and would extend that observation to include s 3A in its totality and s 3.
The usual approach (in Code jurisdictions) to the drafting of laws intended to impose strict or absolute liability in relation to some or all physical elements of an offence is that express language to that effect is used in the offence-creating law. Indeed, the presence in the Code of ss 23 and 24 relating to strict or absolute liability suggests that clear expression is what the legislature had in mind when the Code was passed. At the very least, an express indication that an offence is one of strict or absolute liability makes plain that the drafter has turned his or her mind to the application of Chapter 2 of the Code.
I have not been referred to any authority in which a conclusion has been reached that the legislature has by necessary implication created a strict or absolute liability offence without using one of those expressions. I do not, however, regard that as determinative. That is to say, on the basis of what is before me at the moment, I accept that it is possible for the legislature to create what is impliedly a strict or absolute liability offence.
Accepting that possibility does not, however, dispose of the construction question.
I have already referred to the common law approach to the concept of possession involving a necessary mental element of intention or knowledge. In He Kaw Tehv The Queen (1985) 157 CLR 523 (‘He Kaw Teh'), after a review of the relevant authorities on this topic, Gibbs CJ summarised the position, stating:
[W]here a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence (“in his possession”) themselves necessarily import a mental element”: at 539, see also Brennan J at 586.
In a criminal law context, it is therefore a fundamental right of an accused person that in order for the accused to be found guilty of an offence of having possession of particular goods, the prosecution must prove to the requisite standard that the accused knew the goods were in his or her custody.
The identification of this fundamental right invokes consideration of what has become known as the principle of legality. A useful statement of the principle appears in the decision of Lord Hoffman in the English Court of Appeal in R v Secretary of State for the Home Department; Ex parte Simms [2002] 2 AC 115, where – in a passage which has been quoted with approval by Gleeson CJ in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [30] – his Honour said (at 131):
The principle of legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.
Lord Hoffman’s comments refer to general or ambiguous words in legislation, but there is no logical basis for restricting the application of the principle to circumstances where the concern to which his Honour’s comments are directed arise only in that way. Indeed, the principle is directly applicable in the present context. As the High Court made clear in He Kaw Teh, “[i]t is now firmly established that mens rea is an essential element in every statutory offence unless, having regard to the language of the statute and to its subject matter, it is excluded expressly or by necessary implication”: per Brennan J at 566, see also Gibbs CJ at 528, 539, Wilson J at 549, and Dawson J at 594.
If the prosecution argument is accepted, the result would be that, in enacting ss 3, 3A, 3B and 5 of the Act, the Parliament of the Territory has overridden the fundamental right of an individual that an offence of possession of an item is committed only if the individual knows that he or she has possession of it. I do not doubt the ability of the Territory to make a law to that effect, but if the prosecution argument is accepted that result has been achieved, in the case of s 5 of the Act:
a.by the introduction of the ambiguous notion of a person “having” the article;
b.without the law creating the offence making any reference to strict or absolute liability in the conventional way; and
c.in circumstances where what would otherwise be the “default” fault element under the Code is displaced only impliedly and only because of provisions (i.e. ss 3A and 3B) which are directed towards proof of possession in particular circumstances not applying in all cases.
In those circumstances, to give the concept of possession the meaning pressed for by the Prosecution would, for the purposes of the offence before me, offend the principle of legality.
Whatever may be the proper meaning to be given to the concept of possession under ss 3A and 3B in the case of articles in premises and articles in the care, control or management of a person, I am not persuaded that no mental element attaches to an offence under s 5 of the Act where the question of possession falls to be considered under s 3(1)(a) of the definition.
My conclusion is that the proof of possession for the purposes of what is before me requires proof beyond reasonable doubt that the Defendant knew that the prohibited weapon was in his possession.
[His Honour went on to deal with the evidence in the Prosecution case and concluded that it did not establish beyond reasonable doubt that the Defendant knew that the knuckle-duster was in the suitcase. The Defendant was found not guilty and the information dismissed.]
I certify that the preceding forty-three [43] paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Angus Brown
Date: 18 April 2019
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