Spatolisano v Hyde
[2009] ACTSC 161
•9 December 2009
HUMAN RIGHTS ACT
VINCE SPATOLISANO v GEOFFREY DAVID HYDE
[2009] ACTSC 161 (9 December 2009)
APPEAL – appeal against conviction after plea of guilty – whether accused aware of defence – onus on accused to satisfy court that he did not appreciate the nature of the charge – court so satisfied – remitted to Magistrates Court for further hearing.
PRACTICE AND PROCEDURE – whether fresh evidence admissible on appeal from a decision of the Magistrates Court – whether “necessary or expedient to do so in the interests of justice” – whether credible and admissible in court below – whether reasonable excuse for failure to adduce in court below – Magistrates Court Act 1930 (ACT), s 214 – admission mandatory if elements satisfied – section does not apply to events occurring after sentencing.
CRIMINAL LAW – “move on” offence – Crime Prevention Powers Act 1998 (ACT), s 4 – lack of particularity in police direction may go to question of “reasonable excuse” – whether return to proscribed area to defend vulnerable companion a “reasonable excuse” – return for a purpose inconsistent with continuation of violence may constitute a “reasonable excuse”.
CRIMINAL LAW – possession of offensive weapon – Crimes Act 1900 (ACT), s 380 – whether self-defence a “reasonable excuse” – question of circumstances and statutory interpretation.
Crime Prevention Powers Act 1998 (ACT), s 4
Crimes Act 1900 (ACT), s 380(1)
Crimes (Sentencing) Act 2005 (ACT), ss 6, 17
Magistrates Court Act 1930 (ACT), Pt 3.10, ss 207, 208, 214
Human Rights Act 2004 (ACT), s 13
Court Procedures Rules 2006 (ACT), r 5193
Temoannui v Ford [2009] ACTSC 69
Travini v Starczewski [2009] ACTSC 123
Campbell v Fortey (1987) 85 FLR 462
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Gallagher v The Queen (1986) 160 CLR 392
R v McIntee (1985) 38 SASR 432
Ratten v The Queen (1974) 131 CLR 510
Lawless v The Queen (1979) 142 CLR 659
R v Justices at Cloncurry; Ex parte Ryan [1978] Qd R 213
Meissner v The Queen (1995) 184 CLR 132
Bond v MacFarlane (1990) 102 FLR 38
R v Coffey (2003) 6 VR 543
R v Forde [1923] 2 KB 400
Liberti v The Queen (1991) 55 A Crim R 120
Gee v Hulbert and Ors [2002] ACTSC 118
Boag v The Queen (1994) 73 A Crim R 35
Taikato v The Queen (1996) 186 CLR 454
Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449
ON APPEAL FROM A DECISION OF THE MAGISTRATES COURT
No. SCA 19 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 9 December 2009
IN THE SUPREME COURT OF THE )
) No. SCA 19 of 2009
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM A DECISION OF THE MAGISTRATES COURT
BETWEEN:VINCE SPATOLISANO
Appellant
AND:GEOFFREY DAVID HYDE
Respondent
ORDER
Judge: Refshauge J
Date: 9 December 2009
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The convictions and sentences imposed by the ACT Magistrates Court be set aside.
The charges be remitted to the ACT Magistrates Court for hearing again.
Vince Spatolisano, the Appellant, was socialising in Kingston, ACT, on Saturday 7 February 2009 when he managed to get into a spot of bother. He and his cousin were apparently drinking at premises in Highgate Lane, called by the police “Bar 32” and by Mr Spatolisano “B Bar”. Nothing turns on the difference in name; it may just be a mistake by the police, though a curious one.
Police apparently saw four men being ejected from the premises. The men were said to be clearly agitated and aggressive towards the security staff of the business. The staff locked the rear door and denied the four men access, whereupon the men were alleged to have started abusing patrons (curiously called “patrols” in the transcript of proceedings) still on the premises, but then walked away.
The men returned a short time later and recommenced their abuse. Mr Spatolisano, one of these men, was seen by police shouting and waving his arms at the patrons of the business. He was said to be encouraging them to come out and fight him. One of his companions, later identified as his cousin who does not speak English, was also acting aggressively towards the patrons of the business.
Police then approached Mr Spatolisano and spoke to him. I set out what was said below (at [51]), though there may later be some dispute about that. In any event, it is alleged the police gave Mr Spatolisano a direction to move on. There may be a question about whether the description of the area from which Mr Spatolisano had to leave was adequate. See Temoannui v Ford [2009] ACTSC 69. In giving Mr Spatolisano the direction, police purported to exercise their powers under s 4 of the Crime Prevention Powers Act 1998 (ACT).
That section provides:
4 Move-on powers
(1)This section applies if there are reasonable grounds for a police officer to believe that a person in a public place has engaged, or is likely to engage, in violent conduct in that place.
(2)The police officer may direct the person to leave the vicinity of the public place.
(3)The direction may be made subject to either or both of the following conditions:
(a)if the police officer has reasonable grounds for believing that the person is likely to engage in violent conduct while, or immediately after, leaving the vicinity by a particular route – that the person leave the vicinity by a different route (whether the route is stated or unstated);
(b)that the person not return to the vicinity for a stated period of not longer than 6 hours.
(4)A person must not, without reasonable excuse, contravene a direction (including a condition of a direction) given to the person under subsection (2).
Maximum penalty: 2 penalty units.
(5)This section does not apply in relation to a person who, whether in the company of other people or not, is –
(a)picketing a place of employment; or
(b)demonstrating or protesting about a particular issue; or
(c)speaking, bearing or otherwise identifying with a banner, placard or sign or otherwise behaving in a way that is apparently intended to publicise the person’s view about a particular issue.
If accepted, the evidence of Mr Spatolisano urging the bar patrons to come out and fight would have been sufficient under s 4(1) to justify a direction being given under s 4(2) for him to move on.
As can be seen, contravention of such a direction is an offence (s 4(4)) unless there is a reasonable excuse for it. The direction, for whatever reason, does not seem to have been also given to Mr Spatolisano’s cousin. It is likely to have been ineffective, in any event, as he would not have understood it. That is likely at least to have provided a reasonable excuse for any contravention under s 4(4). The direction does not also seem to have been given to the other two men, perhaps suggesting the police considered Mr Spatolisano to be the most aggressive of the four.
The four males, including Mr Spatolisano, then left the area, walking west along Highgate Lane towards Eyre Street.
It thus appears that Mr Spatolisano did leave the area. Unfortunately, however, he seems to have lost contact with his cousin. He decided to return to look for him as, in the words of his counsel in the ACT Magistrates Court, his cousin “is a naïve young fellow … [who] does not speak English at all … [and who] would not have had the knowledge to be able to catch a taxi home”.
As a result, Mr Spatolisano returned to Highgate Lane to look for his cousin. He and his two friends arrived at the premises from which he had been ejected and the patrons with whom he had earlier been arguing were just leaving. Perhaps unsurprisingly an argument developed – or recommenced – and police were called.
When police arrived, they found Mr Spatolisano holding a metal bar in his hand. His explanation was given by his counsel in the ACT Magistrates Court as follows:
HIS HONOUR: So, what he took an iron bar back with him to assist in the location of his cousin?
MR BUTLER [Counsel for Mr Spatolisano]: No, your Honour, he did not. He instructs me in relation to it is a collapsible tyre iron which is collapsible to about that size.
HIS HONOUR: Yes, but it opens up, yes.
MR BUTLER: He instructs me that he actually found it on the street in Kingston near the car park. He presumes that somebody was changing a tyre or what have you and had left the iron there. So, he’s picked it up at that point. He instructs me that he was outnumbered in terms of the assailants of his cousin and himself.
HIS HONOUR: Yes.
MR BUTLER: And that the reason, in his mind, although faulty as it might seem, that he had the tyre iron was just to get these guys to back off while he got his cousin and left.
HIS HONOUR: It’s just fortuitous that he found that extendable tyre iron on the street of Kingston.
MR BUTLER: Well, they’re his instructions to me, your Honour.
When asked by police whether he had reasonable grounds for failing to comply with the police direction, Mr Spatolisano said “I came back to get my cousin who does not speak English”.
He was arrested and charged with contravening a direction to move on, contrary to s 4(4) of the Crimes Prevention Powers Act 1998 (ACT) (the move on charge) and another charge which was ultimately not pressed and, instead, replaced by a charge of possessing an offensive weapon in circumstances likely to cause alarm contrary to s 380(1) of the Crimes Act 1900 (ACT) (the offensive weapon charge).
The offensive weapon charge was, as noted, laid under s 380(1) of the Crimes Act 1900 (ACT), which provides:
380 Possession of offensive weapons and disabling substances
(1)A person who, without reasonable excuse, has in his or her possession, in a public place, in circumstances likely to cause alarm, an offensive weapon or a disabling substance is guilty of an offence punishable, on conviction, by a fine of $1000, imprisonment for 6 months or both.
(2)In subsection (1):
Disabling substance means any anaesthetising or other substance made for use for disabling a person, or intended for that use by the person who has it in his or her possession.
I also note that this charge also provides that a reasonable excuse would mean that a contravention of the section was not an offence.
Mr Spatolisano appeared before the ACT Magistrates Court. He retained lawyers to act for him and on 13 March 2009 entered pleas of guilty to both offences. The statement of facts which had been prepared by police was slightly amended by deleting some facts that arguably made the offences more serious. His counsel presented a plea in mitigation.
The Learned Magistrate convicted him and on the move on charge fined him $200 with court costs of $61 and Criminal Injuries Compensation levy of $50. His Honour also convicted him of the offensive weapons charge and fined him $500 with court costs of $61 and Criminal Injuries Compensation levy of $50.
Mr Spatolisano commenced an appeal against these orders on 9 April 2009. It was said to be an appeal from all (not a part) of the orders.
He clearly prepared and lodged the appeal himself. There is no reason why he should not. It can, however, lead to some uncertainties as to what is really meant by some of its contents. The grounds of appeal were:
1. This being a first time offence.
2. The severity of the penalty.
3.I work within the Australian Government having a criminal record will effect my protected security clearance, and future management roles, that I apply for.
The orders he sought were:
I ask forgiveness from the court to have my criminal conviction against my name be removed.
Although on its face, this would appear to be an appeal against sentence, it seems that, at least, Mr Spatolisano is seeking a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) instead of the convictions and fines. As I said in Travini v Starczewski [2009] ACTSC 123 (at [54]-[56]), where such an order is sought, the appeal is, in a relevant (though perhaps not colloquial or “category”) sense, an appeal against conviction.
At the hearing of the appeal, however, it became apparent that Mr Spatolisano also wished to challenge the finding of guilt, not just the penalty. It seemed to me, therefore, that the Notice of Appeal should be amended and I gave him leave to do so on or before 20 November 2009.
Appeal from the Magistrates Court
Part 3.10 of the Magistrates Court Act 1930 (ACT) regulates appeals to the Supreme Court from decisions of a magistrate being, of course, a decision of the Magistrates Court. Section 207 gives this court jurisdiction to entertain appeals to which, relevantly, Div 3.10.2 applies.
For the reasons set out above (at [21]), this is now an appeal under s 208(1)(b) of the Act, which occurs in Div 3.10.2. Section 214 then sets out the provisions relating to such appeals. It provides:
Appeals in cases other than civil cases
214(1) This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies).
(2)In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
(3)In an appeal to which this section applies, the Supreme Court must –
(a)if it considers it necessary or expedient to do so in the interests of justice –
(i)order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and
(ii)order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and
(iii)receive the evidence, if tendered, of any witness; and
(b)receive evidence with the consent of the parties to the appeal.
(4)If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if –
(a)it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the [sic] which the appeal arose on an issue relevant to the appeal; and
(b)the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
Such an appeal is by way of rehearing: Campbell v Fortey (1987) 85 FLR 462 (at 464-5). An appeal by way of rehearing, as I said in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (at [78]):
is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
Further evidence
Mr Spatolisano sought to rely on evidence further to that presented to the learned Magistrate. It was contained in an affidavit sworn by him on 12 November 2009, the date before the hearing of the appeal.
Though r 5193 of the Court Procedures Rules 2006 (ACT) requires such material to be filed 21 days before the day set for hearing the appeal, the Respondent did not take an objection to it on that ground.
The affidavit set out circumstances about how Mr Spatolisano came to plead guilty to the charges and how it was that he formed the view that he should now challenge the conviction (in the sense of the finding of guilt). Some of these matters related to events which occurred prior to the proceedings out of which the appeal arises and some after.
Counsel for Mr Spatolisano referred me to Gallagher v The Queen (1986) 160 CLR 392 and to passages in the judgment of Gibbs CJ where his Honour (at 395) referred with approval to a statement of King CJ in R v McIntee (1985) 38 SASR 432 (at 435), namely that:
appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.
In general terms, this is an appropriate test, though, as Gibbs J did formulate the proposition, it is a question as to whether there was a miscarriage of justice. This is the formulation of the test more usually now used. His Honour then went on to describe some of the relevant considerations as follows (at 395-396):
The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict.
See also Ratten v The Queen (1974) 131 CLR 510 and Lawless v The Queen (1979) 142 CLR 659.
Thus, it must be noted that a miscarriage of justice is not merely an assertion that a finding of guilt is challengeable. See R v Justices at Cloncurry; Ex parte Ryan [1978] Qd R 213 (at 221); Meissner v The Queen (1995) 184 CLR 132 (at 157). That term is probably given a different meaning in law than the meaning as used in, for example, the popular media. It does not mean, in law, simply a conviction which someone challenges or claims should not have been entered. There must be more than that as the High Court has shown. Nevertheless, once a miscarriage of justice is identified in legal terms, the courts have always been appropriately tender to see that it is properly addressed. This includes, where appropriate, the admission of further evidence.
While these considerations are important, a court must first consider the legislative regime.
In this Territory there are specific legislative provisions which regulate the admission of further evidence on appeal. In particular, s 214(3) and (4) of the Magistrates Court Act 1930 (ACT) provides for the admission of evidence on appeal which was not before the learned Magistrate. The terms of the sub-section are set out above (at [24]).
Both counsel did make submissions about this legislation, but not perhaps with the clarity that is required. Indeed, I may have inadvertently inadequately simplified the issues it raises. The section provides for two separate circumstances under which further evidence may be adduced, one in each of these sub-sections. They are different.
Under s 214(3), the further evidence is admissible if the court considers that its admission is “necessary or expedient … in the interests of justice”. As Miles CJ described it in Campbell v Fortey (at 465):
I come to the conclusion that the discretion to allow further evidence on an appeal under s 214(3) is unfettered and not circumscribed by any consideration that the appellant must show that the magistrate was in error on some question of law or fact or that special circumstances exist. Further, the [Act] does not distinguish between appeals against conviction and appeals against sentence, and a person appealing against penalty does not have to show, for the purpose of adducing further evidence, error or exceptional circumstances.
This approach was followed in Bond v MacFarlane (1990) 102 FLR 38 (at 42).
The determination of what is in the interests of justice would, of course, be heavily influenced by the notion of a miscarriage of justice as explained by the High Court.
Under s 214(4), however, the court is obliged to receive the evidence but only if the requirements of the sub-section are satisfied, namely that the evidence is likely to be credible and to have been admissible in the proceedings below and that it was not adduced in those proceedings but that there is a reasonable explanation for that. This is very close to a statutory enactment of the common law test, but makes admission of the evidence mandatory on fulfilment of the pre-conditions rather than a matter of discretion.
In Campbell v Fortey, however, Miles CJ held (at 466) that the sub-section does not apply to evidence of events which have occurred subsequent to the proceedings out of which the appeal arises.
Thus, in this case, the affidavit is only really admissible if it can be admitted under s 214(3), that is if I find it is necessary or expedient in the interests of justice to do so.
Mr D Sahu Khan, who appeared for the Respondent, the police officer informant, opposed the admission of the affidavit on the ground that the plea of guilty was an admission of the elements of the offence and that the consent to the statement of facts tendered to the learned Magistrate constituted an acceptance of facts which, to a limited extent, Mr Spatolisano was attempting now to controvert.
Mr S Gill, who appeared for Mr Spatolisano, submitted that the evidence showed why Mr Spatolisano wished now to challenge the conviction and that the evidence was credible in all the circumstances.
Having read the affidavit, I am satisfied that it is capable of raising a real question about whether Mr Spatolisano should be permitted to have the conviction overturned so that he can enter a plea of not guilty and, accordingly, the affidavit should be admitted.
Appeal against conviction where there has been a plea of guilty
A person who pleads guilty may appeal against the conviction (in the sense of a finding of guilt). I set out the authorities from the UK and each State and Territory in Australia in Travini v Starczewski (at [38]).
As was said in R v Coffey (2003) 6 VR 543 (at 545-6):
The ground of appeal against conviction reflects a line of cases beginning with R v Forde [[1923] 2 KB 400], in which the judgment of the English Court of Criminal Appeal was delivered by Avery J. His Lordship said [at 403]:
A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged.
Those alternatives have not, in this State, been regarded as exhaustive. The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice [(Crimes Act 1958, s 568(1)]. The same view has been expressed in New South Wales [R v KCH (2001) 124 A Crim R 233 at [32]]. The authorities are discussed in R v Tait [[1996] 1 VR 662 at 665-666], R v Parsons [[1998] 2 VR 478 at 482-483] and R v El-Kotob [(2002) 4 VR 546 at [78]-[89]]. There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty [R v Liberti (1991) 55 A Crim R 120 at 122].
The central principles quoted above from R v Forde [1923] 2 KB 400 have been widely adopted. They were cited with approval in Liberti v The Queen (1991) 55 A Crim R 120 (at 121-2) in a passage adopted in this Court on Gee v Hulbert and Ors [2002] ACTSC 118 (at [19]). There Higgins J (as his Honour then was) also endorsed a caveat expressed by Kirby P in Liberti v The Queen (at 122). Justice Higgins, referring to what had been said by Kirby P, as to the power to permit a change of plea, said (at [20]):
That power, his Honour said, at 122, should be exercised with caution:
This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence.
The facts
Mr Spatolisano sought legal advice about his arrest and charging for the offences referred to above (at [13]). He had a conference with his solicitor for about an hour, but by half-way through understood that he should plead guilty as the advice apparently was that he had committed the offences.
He was, it seems, not given to understand that having a reasonable excuse could provide a basis for defending the charges. He was also not told, as deposed in his affidavit, that the direction by police had to be in “a lawful form”. It was not entirely clear what this phrase meant.
Mr Gill, in his written submissions, noted that Mr Spatolisano did not contravene the order – for he left the area – but may have contravened a condition of it, i.e. not to return within six hours. As Higgins CJ said in Temoannui v Ford (at [32]-[34]) the condition is relevantly part of the direction and contravention of the condition is a contravention of the direction itself. I respectfully agree. It seems to me this is clear from the terms of the legislation.
It may be, however, that the reference to “a lawful form” of the direction refers to some challenge that may be able to be made to the terms in which the direction was given. In the Statement of Facts, the direction is set out as follows:
Constable Hyde said, ‘I have reasonable grounds to believe you have been involved in violent conduct and may be involved in violent conduct should you remain in the area. I am giving you a formal direction to leave the area of the Kingston shops for a period of 6 hours. You have 5 minutes to comply with this direction, do you understand?
The area was described as “the Kingston shops”. By returning to Highgate Lane, Mr Spatolisano clearly came back to “the Kingston shops” and would have breached the direction, but that description of the area leaves much room for argument about where the limits were. For example, does it include the car park opposite the block bounded by Kennedy, Giles, Jardine and Eyre Streets? Then there is the question of the south side of Kennedy Street where there are commercial offices and as to whether that area forms part of the “Kingston shops”.
I do not stop to consider whether the direction is unlawful if it does not describe the area to be vacated with precision and detailed particularity. There is nothing in the legislation itself to suggest that it is so required. An inadequate description of the area may instead go to the question of whether there is a reasonable excuse for contravention if the area where a defendant is found is arguably not comprehended within the direction or there is reasonable uncertainty about what is encompassed in the direction. This is a significant problem with the legislation, for persons should always know as clearly as possible what they must do to avoid committing a criminal offence and yet the direction here, which, of course, is a limitation of the right, protected under s 13 of the Human Rights Act 2004 (ACT), to move freely about the ACT, may not leave the person to whom it is given with any clarity about the limits of that right and how they may avoid committing a criminal offence.
If the legislation has a valid criminal justice purpose, then attention may need to be given to addressing these issues.
Subsequent to his conviction, Mr Spatolisano had a conversation with a Canberra barrister, who is well experienced in criminal matters. This occurred on 9 April 2009. He raised with Mr Spatolisano the possibility that he may have had a defence to the charges. That day Mr Spatolisano lodged his appeal.
That barrister was apparently not able to represent Mr Spatolisano and he briefed Mr Gill through his solicitor, Ms Sarah Avery. In a conference with Mr Gill and Ms Avery on 10 November 2009, he was also given to understand that there may be a question about whether the direction had been a proper direction.
In his affidavit, Mr Spatolisano set out his version of the direction, which was in par 18 as follows:
18.My recollection about the direction given by police is that Constable Geoffrey Hyde said to me on 7 February 2009, while I was standing in the alley way behind B Bar, in Kingston, ‘You better move on, otherwise I’m going to charge you with a move on offence. Move on from this area.’
I have to say that this would be a somewhat strange form of direction and a poor identification of “the vicinity of the public place” if it was said, but that is a matter for the tribunal of fact in due course.
Findings
In order for the appeal to succeed, I have to find that Mr Spatolisano did not appreciate the nature of the charge and did not intend to admit that he was guilty of it, or that on the admitted facts he could not have been convicted of it, or some other justifying basis for overturning the conviction, such as that Mr Spatolisano was under improper duress or fraudulently led to make his plea. He bears the onus of satisfying me of this: Boag v The Queen (1994) 73 A Crim R 35 (at 37).
There is no evidence of any other such justifying basis and the admitted facts did in law justify the conviction, subject, perhaps, to some argument about the form of the direction given by Constable Hyde. I have to say that while I do not make a finding about that issue, which may well be a live issue in any further proceedings in this matter, I would not have upheld the appeal on that ground alone.
The issue then is whether, in the light of the possible argument that Mr Spatolisano may have had a reasonable excuse for both offences, he did not appreciate the nature of the charge and did not intend to admit that he was guilty of it.
I was not addressed on the issue of whether the need to return to find his cousin and his fear of attack could at law constitute reasonable excuses and, on the facts, whether they did so. These are not easy questions to resolve.
As the High Court said in Taikato v The Queen (1996) 186 CLR 454 (at 464):
The term ‘reasonable excuse’ has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of ‘reasonable excuse’ is an exception. [footnotes omitted]
I consider the move on charge first. The Crime Prevention Powers Act 1998 (ACT) is very brief. It does not have, for example, a statutorily enacted purpose or object as is increasingly found in legislation now. See, for example, s 6 of the Crimes (Sentencing) Act 2005 (ACT). The Explanatory Statement is similarly unhelpful as it provides:
The purpose of this Bill is to provide for a police officer who, having reasonable grounds, would be able to direct a person to leave a public place. The Bill has no financial implications.
The presentation speech of Mr P Osborne MLA, whose private members bill it was, was made on 20 May 1998 and gives some clue to the primary purpose of the Bill. Mr Osborne said:
In essence, this Bill allows police officers to use their judgment to defuse potentially violent situations in public places before they get out of control. It is aimed at returning civil liberties to the bulk of Canberrans who want to enjoy their right to go about their business unhindered and without fear. The Bill empowers a police officer to direct a person to move on from a particular public place if the officer has reasonable grounds to believe that the person has engaged, or is likely to engage, in violent conduct in that place.
The notion of “defusing” the situation puts primacy on the direction to leave the area. Thus, the return of a person for a purpose that is inconsistent with the continuation of the violence that was occurring or threatened gives some support to the argument of Mr Spatolisano that he had a reasonable excuse.
On the other hand, an immediate return would in many cases simply cause the violence or threatened violence to be re-ignited. Thus, the condition not to return for six hours may be well seen to be part of the implementation of that purpose. Indeed, here the situation threatened to escalate into violence again when Mr Spatolisano arrived as the patrons with whom he had been earlier exchanging belligerent words were just leaving.
On the other hand, it was an understandable concern for his vulnerable cousin that led Mr Spatolisano to return. I raised with Mr Gill some other options available to him, such as seeking police permission or asking a police officer to accompany him in trying to find his cousin. I would hope that, in the circumstances, the police would have responded very positively to such approaches.
Nevertheless, this is just a factor to be taken into account in determining whether the excuse is reasonable and I cannot say that it could not, in law, amount to a reasonable excuse, though I have to emphasise that I have not heard the witnesses and full argument on the issue. Thus, I do not affirmatively find that it amounts to a reasonable excuse and I have some hesitation in finding on the facts that it is capable of being so, but, in the light of my decision, that is not ultimately a matter I have to decide on this appeal.
Mr Spatolisano was clearly relying, in his plea on mitigation, on the need to go to the aid of his cousin. If that amounts to a reasonable excuse, then he clearly did not intend to admit that he was guilty of the charge.
The same is less clear in relation to the offensive weapon charge. The relevant section is clearly intended to prevent the public being alarmed and put at risk by persons carrying offensive weapons which may then be used for an offensive purpose.
The High Court held in Taikato v The Queen that self-defence can be a reasonable excuse but is dependent upon the precise facts and circumstances of the case. Thus, for example, if a court held that Mr Spatolisano had a reasonable excuse for returning to Highgate Lane and reasonably feared that, though he appeared earlier to be the aggressor, that he was at risk for his safety, then arming himself with a weapon for self-defence may have been reasonable. I make no finding on that other than to say that it cannot be excluded at law.
The tribunal of fact will also have to be satisfied of the circumstances surrounding Mr Spatolisano obtaining and carrying the metal bar.
Conclusion
On the facts as set out in the Statement of Facts, it is by no means certain that Mr Spatolisano would satisfy a court that he had a reasonable excuse for returning to Highgate Lane or for carrying the metal bar. He never, however, eschewed the explanation for returning to Highgate Lane with a metal bar and, in my view, but not without considerable hesitation, he should have the opportunity of putting his explanation to argue that it was a reasonable excuse. Further findings would, however, have to be made which depend on which party bears the onus of proof as to the reasonable excuse. Thus, the other options available to Mr Spatolisano and the reasons for him returning would all have to be considered as to whether it was reasonable in all the circumstances.
The question of who bears the onus of proof as to the reasonable excuse was not argued before me. It is a matter of statutory construction in each case: Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 (at 455). That will need to be addressed, no doubt, before the learned Magistrate.
I find that Mr Spatolisano did not appreciate the nature of the charge and did not intend to admit that he was guilty of that charge, as properly understood.
As a result, the appeal must be upheld and the proceedings remitted to the Magistrates Court for a further hearing. I shall hear the parties as to any consequential orders.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 9 December 2009
Counsel for the Appellant: Mr S Gill
Solicitor for the Appellant: Ben Aulich & Associates
Counsel for the Respondent: Mr D Sahu-Khan
Solicitor for the Respondent: Director of Public Prosecutions (ACT)
Date of hearing: 13 November 2009
Date of judgment: 9 December 2009
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