Taikato v The Queen
[1996] HCATrans 144
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S115 of 1995
B e t w e e n -
JO-ANNE TERUIA TAIKATO
Appellant
and
THE QUEEN
Respondent
BRENNAN CJ
GAUDRON J
McHUGH J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 24 APRIL 1996, AT 10.08 AM
Copyright in the High Court of Australia
MR P. KINTOMINAS: May it please the Court, I appear with my learned friend, MR R.K.M. RASMUSSEN, for the appellant. (instructed by J. Giles, Women’s Legal Resources Centre)
MR R.N. HOWIE, QC: May it please the Court, I appear with my learned friend, MR P.G. BERMAN, for the respondent Crown. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))
BRENNAN CJ: Yes, Mr Kintominas.
MR KINTOMINAS: May it please the Court, this is an appeal from the Court of Criminal Appeal in New South Wales against the ‑ ‑ ‑
BRENNAN CJ: Perhaps you should give us a moment to read your outline of argument.
MR KINTOMINAS: If it please the Court.
BRENNAN CJ: Yes, Mr Kintominas.
MR KINTOMINAS: May it please, your Honours. This is an appeal from the Court of Criminal Appeal in New South Wales, which gave judgment upon a stated case which was stated at the appellant’s request by Judge Rummery, QC of the District Court. The facts leading up to this matter very briefly are as follows: on 26 March 1992 my client was walking along a public street in Liverpool in the State of New South Wales when she blundered into the scene of some police operation involving drug surveillance at a hotel called the Railway Hotel, I think it was. For reasons which are not particularly material, it appeared that a description of a possible offender matched my client and the police detained her and requested to search her. She was taken into a nearby shop and she was searched. The extent of that search was later of some dispute, but that is not a matter that really concerns us today or concerns the Court, suffice to say that the police conceded that it was an intimate search and suffice to say that the police found nothing upon her which would suggest that any of those suspicions that they may have had had been justified and nothing was found to suggest that she was at all involved in this activity.
However, during the search of her person a canister was found in her handbag and she was asked some questions about that and she admitted to the police that she had been carrying it for some years, that she had purchased it and that she had it in her handbag in case she was ever attacked, and that what she intended to do with it, if she was attacked, was to spray it at the attacker to give her time to get away.
That version was never really challenged and it was accepted more or less all along the way by the magistrate in the first instance, but more particularly it was accepted by Judge Rummery, QC that that was her purpose in possessing that canister in a public place.
KIRBY J: It came before his Honour on an appeal from the magistrate’s conviction?
MR KINTOMINAS: It came before his Honour on an appeal. The magistrate convicted the appellant and fined her $400. An all‑grounds appeal was lodged to the District Court, that being of course an appeal de novo, a rehearing. That was done substantially on the depositions, or I think wholly on the depositions, and his Honour took the view that he would accept the appellant as to why she had possessed the item.
KIRBY J: That was not in dispute in the District Court appeal?
MR KINTOMINAS: No. The appellant, some time after being detained by the police to be searched and after, as I understand it, the contents of the canister were analysed by a chemist - it was found that the canister contained formaldehyde. The authorities got a chemist’s certificate to the effect that it was an irritant and, accordingly, the appellant was charged under section 545E of the Crimes Act of New South Wales, as it then stood.
KIRBY J: Was the canister hair spray or some other object or was it particularly for the purpose of fending off? Was it on sale particularly for the purpose of fending off attackers? Was that revealed?
MR KINTOMINAS: Your Honour, I do not think it was on for commercial sale for any particular purpose. My client gave evidence that she had bought it off somebody in a hotel and she had been told that it would be effective in such a situation. I might add, your Honours, that at no stage was any evidence ever introduced to precisely identify how dangerous, or otherwise, formaldehyde is or what it would do if it was sprayed in somebody’s face. I have made some inquiries but there is no evidence and, unless your Honours particularly wish to embark upon ‑ ‑ ‑
BRENNAN CJ: All elements of the offence are accepted, except the question of whether or not subsection (2) applies. Is that right?
MR KINTOMINAS: That is correct. Your Honour, undoubtedly the appellant did possess an item which was capable of discharging an irritant matter in either liquid or gas, or chemical form, and she did possess it in a public place. Subsection (2) provided a defence in these terms:
A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose.
The argument for the appellant simply put, is this. As it has been accepted that she had it in her purse for the purposes of self-defence, she has demonstrated that she had it for a lawful purpose, and it cannot really be put any simpler that, that self-defence is a lawful purpose. Her version having been accepted, she ought to be acquitted. The problem that arises is that there is a body of authority which suggests that if one is going to possess, in public, an item which the legislature has seen fit to either stop or restrict being possessed in public, if one is going to possess such an item for the purposes of self-defence, then there is a body of authority which says that it is legitimate to do so, only if there is a reasonable apprehension of imminent attack.
Your Honours, that has in it some absurdities, if I may be permitted to make that submission. A woman who fears, for example, that she may be subject to an attack at some particular time, is unlikely to get a telephone call, or a fax or a message from an attacker who may be lurking, to warn her that on the way home this afternoon when she is passing by some quiet lonely place, he will spring out of the shadows and attack. On the other hand, if obeying this other body of authority the woman is going home and a would-be rapist, for example, springs out of the shadows, she can hardly say, “Look, can you wait a moment until I go home and get something to defend myself with?”
Except for two particular cases, the body of authority which reflected this proposition generally dealt with sections, legislative statutes, which in effect said that it was illegal to possess particular items unless one had a reasonable excuse or in some other cases a lawful excuse. Subject to a qualification that I intend to make to the Court later, my primary submission in this regard is this, that a lawful excuse or a reasonable excuse raises completely different considerations to an enactment which declares it to be legitimate possession if it is possessed for a lawful purpose. A lawful purpose raises totally different considerations to questions as to whether or not there is a lawful excuse. It raises totally different questions as to whether or not there is a reasonable excuse.
McHUGH J: But your argument and all the criticism of the section concentrates on the words “reasonable excuse” or “lawful purpose” in the abstract without regard to the evident policy of the section, the mischief it is designed to protect, and its context in the Act. It is a context of sections dealing with unlawful assemblies, persons being in public places possessing explosives and matters of that nature and in that context it may be that matters such as the lawful purpose really is not concerned with such matters as self‑defence and matters of that nature at all. The policy is to prevent people going around in public places with weapons - instruments that can cause harm and if that is its primary purpose then perhaps it throws some light on what is meant by “reasonable excuse” or “lawful purpose”.
It might be a lawful purpose, for example, for a riot squad to have these types of weapons or instruments in their possession, dangerous articles, because they may have to break up a riot, but it may not be a lawful purpose for anybody else simply because they say, “I have it just in case I am attacked.” Perhaps that is not the policy of the section at all. What do you have to say about that?
MR KINTOMINAS: Well, your Honour, it may well be that when one comes to look at what is a reasonable excuse, that may be a weighty argument, and as I would concede at the outset, and it would become apparent, the appeal would either have to succeed on the question as to whether or not it is a lawful purpose or it will not succeed. But, in respect of the issue that your Honour Justice McHugh has raised, the difficulty is the words “lawful purpose”.
KIRBY J: Another difficulty may be trying to find some common thread between issuing bogus advertisements, intimidation, and unlawful assembly, unlawful making of explosives. It is not easy to see that there is some common genus here of which the carrying of irritant sprays is just one manifestation unless it be that the public should be allowed to go about its ordinary activities without this sort of conduct. And the problem, it seems to me, from your case’s point of view is that the prima facie position is that carrying these particular objects as defined by 545E(1) is specifically declared to be unlawful, and you have got to get yourself within the lawful excuse exception.
MR KINTOMINAS: Yes. Your Honour, I accept that, but, in my submission, what the section does is to declare possession unlawful. There is nothing in the section at all anywhere which says that any purpose which was previously lawful is now unlawful. In my submission, what the section does is it makes possession illegal where the intention is to use it unlawfully so that if prior to the enactment of the section and, indeed, I should point out ‑ ‑ ‑
McHUGH J: That would mean that unless one had it for a deliberately - for some purpose prevented by law, there would be no offence against the section at all because any purpose is lawful unless it is prevented by law.
MR KINTOMINAS: Yes, your Honour.
McHUGH J: So you could have it for any purpose whatever as long as it was not a purpose prohibited by law?
MR KINTOMINAS: Yes, your Honour.
McHUGH J: Well, it would not give 545E(1) much scope, would it?
MR KINTOMINAS: Your Honour, it does have scope, because it is a section which reverses the onus of proof. So that the onus is on the person who has it in his possession to satisfy a magistrate that he has it for a lawful purpose. If he cannot do it, then he would be convicted. One has to bear in mind that it is a section that reverses the onus of proof and there is not a problem in terms of opening the flood gates or anything of the kind. Magistrates and judges no doubt would use their usual resolution skills in terms of determining questions of fact. It would not be correct to say that this would be a defence that would be able to be exploited by anybody who wanted to say it.
BRENNAN CJ: Why not? Take the hoodlum gangs. One of them has one of these offensive objects in his possession. The other side has such a similar object in his possession. Neither of them intends to use it except for the purpose of self-defence. Take the vendor of these types of equipment. He has got them in possession simply for the purposes of sale, even though he is peddling stuff which is likely to produce riots on the streets. Why is it that the possession does not have to be looked at in relation to the purpose for which it is possessed at the moment in question?
MR KINTOMINAS: The first thing, your Honour, is this. The section is extremely wide in its scope. In my submission, it would encompass practically everything in a spray can because practically everything in a spray can, if aimed at the eyes, would irritate the eyes.
McHUGH J: Well, that may be, but a woman says, “Well, I’ve got it to do my hair.” It is a lawful purpose within the meaning of the section, but if you say, “I’m carrying it around because somebody may attack me some day or another”, it is not that same imminence.
MR KINTOMINAS: Your Honour, it would be a pity if the processes of the law were going to be circumvented simply by people who were smart enough to say, “I have this oven cleaner in my bag because I’m going to go home and clean the oven” or “I have this hair spray in my bag because I am going to go and spray my hair”.
McHUGH J: I do not think any magistrate would be accepting that you had it in your bag because you were going to use it to clean the oven. If you have it in a shopping bag or something and you have just bought it, maybe yes. But hair spray - I mean, one knows women have these cans in their handbags.
MR KINTOMINAS: But, your Honour, there is nothing in the section that says that you cannot have it for self‑defence.
GAUDRON J: Is not the question really: if you have it in your possession for that purpose, is it unlawful?
MR KINTOMINAS: Yes, that is the question. I am grateful to your Honour.
GAUDRON J: And the opposite of unlawful is lawful.
MR KINTOMINAS: Yes. In my submission, self‑defence is a lawful purpose. It may be or it may not be that the legislature did not give this particular aspect of the legislation a lot of thought when it was drafted.
KIRBY J: Is there any explanation of how it came into the Act or what purpose or reason was given by the minister when introducing it?
MR KINTOMINAS: Your Honour, copies of the second reading speeches were obtained prior to the hearing in the Court of Appeal. I have copies, although I do not think I have multiple copies. But there is nothing in those that assists at all. That was the position taken by myself and the learned Solicitor‑General who appeared against me in the Court of Appeal.
KIRBY J: I would be interested to have a look at the second reading speech. When did it come into the Act?
MR KINTOMINAS: It came in during the course of 1989. The second reading speech by the Premier in the Legislative Assembly was on 2 March 1989. I might hand those up to your Honours. The position, however, is - and it is a matter that I must confess I had overlooked in terms of just chasing the history down completely - I became aware that there really was a predecessor section which I mention in my notes and which I handed a copy of up to your Honours prior to your Honours taking the Bench. That is that section 57 of the Firearms and Dangerous Weapons Act of 1973 which was repealed at the time that section 545E was inserted into the Crimes Act. That is a section which is in substantially similar terms. The penalty is different.
KIRBY J: Is that because a specific and separate offence was included in the Crimes Act for firearm possession?
MR KINTOMINAS: As I understand the second reading speeches, your Honour, the Firearms and Dangerous Weapons Act was considered to be somewhat unwieldy and needed amendment, and so there was a holus‑bolus approach to redrafting its provisions and creating new Acts and putting its provisions elsewhere. I am unable to assist your Honours with whatever second reading speeches may have been made in 1973. I just do not know whether they throw any light on the subject at all. That copy of that section was photocopied from a volume of the 1973 statutes of New South Wales. I photocopied just the section.
KIRBY J: I suppose in practical terms a person found with an irritant, whether it was a woman with hair spray or a male with some cologne, or something like that, would not be ordinarily prosecuted because such possession would have an obvious excuse and a lawful excuse, but the circumstances of this case, as explained by you to the Court, cause some anxiety about the way in which your client came to be prosecuted, but she was prosecuted, and the issue that is presented is really whether or not, by the construction that you urge, the Court would be condoning the carrying of these objects in a sort of self-help approach to protection rather than otherwise.
MR KINTOMINAS: Yes. Your Honours, there are a number of members of our community who feel that they are in danger when they walk in public places, particularly if they walk in public streets at night or in places where they are deserted. I appreciate that the circumstances of this offence was in a busy suburb of Liverpool during the day but that, in my submission, does not really matter. If a woman is going to carry something in her handbag for self-defence, then it has to be there in place for whenever she happened to be somewhere where she may need it. One cannot expect ‑ ‑ ‑
KIRBY J: I think we are making a mistake by talking only of women; males are also at risk in some places in Australia.
MR KINTOMINAS: Your Honour, I was going to make that point clear in my next submission, that it is not just women who are attacked. It is the elderly and, indeed, your Honour, in Sydney, we have had the unfortunate situation where members of the judiciary and senior barristers have been attacked in going to and from either chambers or the Supreme Court in the early hours of the morning, when there has been no one around.
McHUGH J: Well, in certain parts of Sydney, gay men are subject of almost continual bashing.
MR KINTOMINAS: Yes, your Honour. That is particularly so, your Honour. So it applies not just to women, but to the elderly, to homosexuals and, indeed, one would have thought there may well be young heterosexual men who, for whatever reason, may be afraid.
BRENNAN CJ: This is not a Court of policy, it is a Court of law. We understand the relevant background to it. Our problem is to construe the language of the section.
MR KINTOMINAS: Yes, your Honour.
BRENNAN CJ: There are two constructions that are open, are there not? One is that lawful purpose is relevantly to be confined to imminent apprehended danger; the other is that it can extend to the carrying, for no immediate purpose, but for contingently, if an immediate apprehended danger should arise.
MR KINTOMINAS: Yes, your Honour.
BRENNAN CJ: Now, the question is whether or not “lawful purpose” in subsection (2) is related or extends to the latter case.
MR KINTOMINAS: Yes, your Honour.
BRENNAN CJ: Now, is there anything more to be said?
KIRBY J: Speaking for myself, the issues of policy are relevant to the resolution of the construction problem because we have to construe what Parliament is taken to have intended.
BRENNAN CJ: And can you assist us by showing us whether there is some source of apprehension of the policy outside the language of the section.
MR KINTOMINAS: I am sorry, your Honour, I am not sure what your Honour is getting ‑ ‑ ‑
BRENNAN CJ: If we are endeavouring to construe the section by reference to parliamentary intention, are we to apprehend it from sources other than the language of the section and, if so, what are those sources?
MR KINTOMINAS: Your Honours, unless there is something in the second reading speeches back in 1973 - and I apologise, your Honour, I just do not have those - there is nothing that I wish to put to your Honours about the legislative policy outside of the language of the section. My submission to the Court is that the section should be construed and it should be construed strictly on this issue of lawful purpose.
McHUGH J: Does not your submissions create some difficulty for the construction of the amended legislation because a new subsection (3) and subsection (4) has been added to the defence and those amendments go into some detail concerning the conditions which must exist before a purpose of self‑defence is lawful for the purpose of subsection (3)? If we adopt your construction of “lawful purpose” then (3) and (4) are redundant, notwithstanding the fact that Parliament was not content to have persons simply assert that they had it to protect themselves.
MR KINTOMINAS: One of the difficulties, your Honour, is this, that if a case was to come before the Court under the new section, there would be a question in (4)(a), that is:
the immediacy of the perceived threat to the person charged;
Now, let us assume there was a case where there was no immediacy, if this Court was to rule in favour of the Crown in this case, how does that then affect the interpretation of the section in a situation where there was no immediacy?
McHUGH J: One would simply construe (3) and (4) as overruling the decision in this case, but if your view is right and somebody was charged in identical circumstances with your client, then he or she could rely on subsection (2) and (3) and (4) is irrelevant.
MR KINTOMINAS: My answer to that, your Honour, would be that the policy in inserting (3) and (4) would have to be taken into account and that (3) and (4) were inserted on the mistaken premise that this case was correctly decided in the Court of Appeal and the section would have to be construed accordingly.
KIRBY J: I think in terms of legal principle, we have to take the case in terms of the law that it stood at the time your client was convicted.
MR KINTOMINAS: Yes, your Honour.
KIRBY J: And decide it within those four walls, and if it turns out that the proper construction is that (3) and (4) was an excessive enthusiasm or uncertainty on the part of Parliament, well, so be it.
MR KINTOMINAS: Yes, your Honours. Can I make this point - and I am grateful to your Honour Justice Kirby for pointing that out - assuming the section had never been amended, should we be unsuccessful simply because the section was later amended before the hearing of the appeal, it would be a gross injustice, in my submission, if we were to fail only because the section was amended, perhaps in an excessive enthusiasm or whatever, and the decision would now cause embarrassment for the amendment. That would be something that it would be extremely unfair, in my submission, to mete to the applicant, but that is a matter for your Honours.
McHUGH J: But what do you say as to the argument that the enactment of sections (3) and (4) indicate that (2), as interpreted by the Court of Criminal Appeal, was correctly interpreted. Subsection (2) was correctly interpreted in accordance with Parliament’s intention?
MR KINTOMINAS: No, your Honours. My submission on that would be that Parliament may have taken the view in 1994 that that is what it meant, but that is not the same as what Parliament intended in 1989 or, indeed, in 1973.
KIRBY J: Are there any cases on this, that what one does when Parliament responds to a case in a court - this must have happened many times - and then the higher court overrules the earlier decision, because it just seems to me, in terms of principle, your client stands convicted. You are appealing. You have had special leave and, therefore, we have to determine it on the laws as it then stood. You agree with that and I think you have taken that. Could you go back to the Chief Justice’s question about the words of the section as it stood at the time your client was convicted? A matter that influenced the Court of Criminal Appeal was the decision on the Attorney‑General’s Reference in England. Is there something in that decision that assists in the meaning of subsection (2)?
MR KINTOMINAS: Your Honour, the Attorney‑General’s Reference in England was a case which involved the manufacture of a Molotov cocktail or a petrol bomb during the time of the Brixton riots, I think. The section there talked about whether one possessed it for a lawful object. Now, I must say that I cannot see any relevant difference between a lawful object and a lawful purpose. If I am wrong there, I am happy for any assistance, but I thought about it long and hard, and I could not come up with an argument which would distinguish lawful object and lawful purpose relevantly for the purposes of this appeal. That case, in turn, relied on the Northern Ireland case which is on my friend’s list, the case of Fegan. Now, they are the only two cases that I could see prior to Taikato where there had been a section of either lawful purpose or lawful object.
KIRBY J: The problem for you is that Parliament has thrown in with fuse capable of using an explosive device and a detonator, instruments capable of discharging irritants, and, therefore, it has put these things in with rather serious damage causing, harm causing, objects.
McHUGH J: It may be the case that your case was never really within subsection (1) in the first place, that the section has been read very literally without really having regard to its policy and purpose and the other matters such as detonators and so on, “substance capable of causing bodily harm”.
KIRBY J: You have not raised that, though, in your appeal, have you?
MR KINTOMINAS: No.
KIRBY J: You have confined yourself to subsection (2).
MR KINTOMINAS: No appeal really lies from the decision of a District Court judge. All one can do is to ask him to state a case. He does that before he makes a final decision under section 5B of the Criminal Appeal Act, and so the position is that after the determination of this Court, we will go back to Judge Rummery with your Honours’ decision and he will either confirm the conviction or whatever, accordingly.
KIRBY J: But the case stated is confined to the meaning and application of subsection (2), not (1).
MR KINTOMINAS: Yes.
KIRBY J: I have sympathy for what Justice McHugh said. I mean, in the context of fuse detonators, at least on the face of things, it is a little hard to see the little innocent spray being in the same boat.
MR KINTOMINAS: And, indeed, your Honours, the Court of Criminal Appeal indicated that they thought that it was a fairly trivial - these circumstances were somewhat trivial.
KIRBY J: It is a little surprising that your client was charged, but there we are, she was, so we have got the matter before us.
McHUGH J: One thing that troubles me about your interpretation of the section for which you contend is this: take the case of the gang and one of its members, it might be a male, it might be the girlfriend of the leader, is carrying one of these prohibited substances and when asked says, “Well, I’ve got it for a lawful purpose. I just wanted to give it to Fred whenever he asked for it.” Now, is that not a lawful purpose, I do not know? “I just carry it for him.”
MR KINTOMINAS: If he, or she, knows what Fred is going to do with it, and that is that he or she knows that Fred is going to use it to spray a bank-teller or a shop-keeper in the face so that he can get him to drop the money that he is delivering to the bank, then, in my submission, the person who is carrying it is not carrying it for a lawful purpose. He is infected by the purpose of the person that he ultimately gives it to.
BRENNAN CJ: That is because the purpose would be to aid or abet in the commission of an offence.
MR KINTOMINAS: Yes, your Honour.
BRENNAN CJ: One can easily imagine that a girlfriend might say, “But Fred is such a kind man, he loves animals.”
MR KINTOMINAS: Your Honour, again it may well be that people might tell lies, ingenuous lies, convincing lies but, in my submission, the interpretation of the section should not be finalised or determined with an eye open to the lies that people may tell to get around it. That is a matter for the legislature.
BRENNAN CJ: That is a matter of construction though. If one looks at the purpose for which it is being possessed at a particular time, and we are focussing on the self-defence notion, at any given moment before any imminent and reasonably apprehended danger arises, the possession is not for the purpose then of its immediate use in self-defence. It is being carried against the contingency of that. Now is the carrying of it, or the possession of it, against the contingency a lawful purpose?
MR KINTOMINAS: Yes, your Honours, because supposing after this Court case finishes I take a stroll around Canberra and I see that somebody is selling paint in a spray can at 90 percent off, and being an almost inveterate bargain hunter and I cannot resist myself when I see something cheap, I go into the store and I buy it, just on the off chance that sometime in the future I might decide to paint something in the backyard which weathers. Now I have no intention of using it now - I may use it next year or the year after or maybe never, because the demands of practice may never allow me to spend time doing things that are so unimportant, compared to what I do.
It would not be correct to say that when I walk out of the shop I do not have a lawful purpose in possessing it, simply because I may never use it or I know now that if I do use it, it will be years from now, or that I know now that it is only a possibility that I may use it. One cannot, in my submission, destroy the argument simply by saying that you may never use it, therefore you cannot have a lawful purpose.
McHUGH J: But “lawful purpose” means a purpose authorised by law as opposed to what might be regarded as negative rights or negative liberty. It is lawful to do anything at common law unless some statute prohibits you from doing it or there is some rule of the common law which prohibits you from doing it, so in that sense doing anything or most things is done for a lawful purpose at common law in that extended sense. But perhaps that is not what “lawful purpose” means in this section. In the context of “reasonable excuse” or “lawful purpose”, perhaps it means a purpose authorised by law.
MR KINTOMINAS: No, your Honour, I would certainly reject that proposition. If one was to adopt a test of “authorised by law” as opposed to “not prohibited by law”, what does one mean by “authorised by law”? In the absence of some legislative enactment or a subsection or a companion section or something of that kind setting out a list of what you could do, there would be nothing authorised by law.
KIRBY J: Why did the English court confine it to immediacy? What was the reasoning of either legal principle or policy that led them to say it has to be immediately cognisable self‑defence? Was it something peculiar to the Brixton situation or the Northern Ireland situation?
MR KINTOMINAS: No, your Honour. My submission is that what the English court did was that it was faced with a difficult policy decision that if they adopted a course that I was arguing - although I think the Attorney‑General’s Case was a situation where there was an equivalent under section 5F of the Criminal Appeal Act. I think there had been an acquittal or something of that kind and then there was a testing of the law afterwards. But the English court was basically faced with a difficult policy decision of: “Should we allow people to carry around petrol bombs on the off chance that they may need them in self‑defence?” They did not find that particularly appealing.
McHUGH J: But has not this legislation got a long history? Was not the source of this legislation back in the last century designed to overcome the attacks of the Fenians and the other Irish rebels? Have you traced it back at all?
MR KINTOMINAS: Your Honour, I took the view, in view of the likely composition of the Bench, that researching into troublesome Irishmen may get me into trouble. The difficulty is that it is a modern section in terms of its application now and there are all sorts of things - the aerosol can is really, as I understand it, an invention of the 20th century and its explosion in terms of the number of things that one puts in an aerosol can in the 20th century is really what one has to look at.
BRENNAN CJ: That is in relation to subparagraph (1), but I mean the general notion of going abroad with dangerous substances is a pretty ancient one, is it not?
MR KINTOMINAS: Yes. Obviously after gelignite and even things like chloroform and ether were used mischievously in the late last century.
BRENNAN CJ: Well you cannot help us anyhow with the history of it, that is what it comes to.
MR KINTOMINAS: I cannot, your Honour.
GAUDRON J: Come down to this situation: the appellant had a purpose, it clearly was not an unlawful purpose, in any relevant sense.
MR KINTOMINAS: Yes, your Honour.
GAUDRON J: Can it now be said to be lawful?
MR KINTOMINAS: Well I draw support on what Justice McHugh said earlier, that if it is not unlawful it is lawful. If, in my submission - I appreciate that the legislature has tried to do something afterwards, but I do not think that that question should really be considered now. But if construing a lawful purpose in the way that I asked the Court to construe is going to create a problem, then the legislature can omit “lawful purpose” and put in “without lawful excuse”.
GAUDRON J: And in any event, it does not really create problems, because the question whether it is possessed for that purpose or not is ultimately a question of fact and people may be believed if they have an object such as that which the appellant had, but are unlikely to be believed that they had it for a lawful purpose if they are carrying around more difficult things, more dangerous things.
MR KINTOMINAS: Your Honour has put it better than I have been attempting to. If it is only carried for that purpose as a contingency, it is hard to see, even if one looks at it from a policy point of view, what is wrong with that. I appreciate your Honour the Chief Justice said it is a Court of law, not a Court of policy. Your Honour Justice Kirby has indicated that policy may very well be important, but if one was to look at it, detached for a moment, and try and argue what would be good policy or bad policy, I ask, rhetorically, what is wrong with somebody carrying something if they are going to use it only for the purposes of lawful self‑defence, if and whenever that situation may arise and not otherwise. What is wrong with it?
KIRBY J: What might be in subsection (1) is the theory of Parliament that this is not to be encouraged, that people will say they have got it only for the purpose of hair spray or cologne or something else, but, in fact, they might be members of the gangs that the Chief Justice mentioned earlier or they might be using it for the purpose of oppressing other citizens and that this is not a desirable state of affairs, that we should forbid it by subsection (1) but permit people to prove that they had a reasonable excuse, lawful purpose. I think the best of your case is that you can say that the very sorts of things that are now mentioned in subsection (4) are the sorts of things that would be taken into account in determining whether the claim for self‑defence was a lawful purpose in the particular case and that would just be a matter of fact to be determined by the tribunal of fact.
MR KINTOMINAS: Yes, your Honours, but, with respect, I would certainly adopt what Justice Gaudron has just said and if it were to be a policy consideration that allowing that sort of defence has got huge problems in terms of the number of people who might circumvent the section by telling lies then that is really a matter for Parliament to say, “You cannot put that defence up” or, “You have to prove it beyond reasonable doubt,” or something of that kind.
KIRBY J: Parliament has signalled its purpose. It has put it in with fuses and detonators and said, “You cannot have them.” Then it said, “If you can show that you have had a reasonable excuse or lawful purpose then you have got a defence.”
MR KINTOMINAS: It is true that it is constructed in that way, that it says that you have a defence but, in my submission, what the section does is that it acknowledges that it is not illegal to carry these things around if you have a lawful purpose or a reasonable excuse but it is illegal if the situation is otherwise.
KIRBY J: I do not agree with that. It just says it is illegal if you possess them in a public place.
MR KINTOMINAS: But the net result, your Honour, is that it is not illegal if you possess it for a lawful purpose.
McHUGH J: What work do the words, “reasonable excuse” have to do on your argument? On your argument, they would only apply in a case where one had an unlawful purpose.
MR KINTOMINAS: That is why, your Honour, I conceded earlier that I either get up on lawful purpose or I do not. If the Court were to take the view that even for a lawful purpose you needed an immediate threat, then I would have to fail on the issue of lawful purpose and I would have to fail on the issue of reasonable excuse and, therefore, the consideration of the “reasonable excuse” question is probably unnecessary. My complaint about how the appellant’s position has been treated in respect of reasonable excuse is this. In my submission, ‘reasonable excuse” or “lawful excuse” are very much the same having regard to these sorts of questions, and the question to be asked there is, “Having regard to the fact that the legislature has seen fit to ban or restrict the use of these substances then, taking all the circumstances into account, is it reasonable to excuse the appellant’s conduct?”
Now, I can well understand a decision that it is not reasonable to excuse an appellant’s conduct if he is carrying around a petrol bomb on the off chance that he might be attacked to use it, because petrol bombs are unstable, volatile, can cause damage to other people without it being intended to, et cetera, but it cannot become a matter of law in what is the consideration essentially of a question of fact in each particular case, whether it is reasonable excused conduct to require as a matter of law a nexus between a purpose for self‑defence and an apprehension of imminent attack in every case.
There may be very good policy considerations for requiring it in respect of petrol bombs. Those policy considerations are not apparent where, for example, one is carrying fly spray or hair spray.
BRENNAN CJ: What is the relevance of this to the question of lawful purpose?
MR KINTOMINAS: Your Honour, I was answering Justice McHugh’s question who asked, “What about reasonable excuse?”
BRENNAN CJ: He is asking, “What is the role for reasonable excuse given your argument as to the scope of lawful purpose”, is that not right?
MR KINTOMINAS: Yes, your Honour. My submission is that the section really creates two defences, either a “lawful purpose”, or a “reasonable excuse”. It is, however, difficult to see if you have an unlawful purpose, where reasonable excuse would enter into it. That I concede.
GAUDRON J: But there may be cases where you have no particular purpose, but nonetheless have reasonable excuse. For example, you may be taking these materials to some safe place to dispose of them or to destroy them if that is a possibility, or you may be taking them to the police station to hand them in.
MR KINTOMINAS: I am indebted to your Honour. Indeed, there is the Privy Council case of ‑ ‑ ‑
McHUGH J: But would not that be a lawful purpose, on your argument - taking them to the police station, taking them to be destroyed? If you say no, your argument is in serious trouble, I think.
MR KINTOMINAS: No, your Honour. In the case of Wong Pooh Yin in the Privy Council, the appellant there, who had been sentenced to death, remarkably, for possessing a pistol, which he said he was going to hand in to the authorities, certainly that case was authority for the proposition that that was lawful excuse.
KIRBY J: You cite these cases as if you assume we are all familiar with them. Speaking for myself, I am not. I have not read the Attorney‑General’s Reference and I have not read the Privy Council decision. Are there any particular passages you want to take us to.
MR KINTOMINAS: Your Honour, no. There is not really a lot - one of the difficulties, as I indicated before - there are a number of sections that deal with “lawful excuse”. That “lawful excuse” is different to “lawful purpose” is best illustrated by the case of Hancock v Birsa (1972) WAR 177. That is a case, interestingly enough, argued by the then Solicitor‑General for Western Australia, who later sat on this Court. I pause here, your Honours. I appreciate that it may well be that there may be situations where “reasonable excuse” and “lawful excuse” are not the same thing, but whatever such situations may exist, my submission is that there is no practical difference in cases of this kind. So the analysis in Hancock v Birsa as to why a “lawful excuse” is different to a “lawful purpose”, in my submission, applies in this case as to the difference between a “lawful purpose” and a “reasonable excuse”, wherever that distinction needs to be drawn.
KIRBY J: Is this phrase “reasonable excuse” and “lawful purpose” a common one in the New South Wales Crimes Act? Does it appear anywhere else as defences to other sections?
MR KINTOMINAS: Your Honour, there are other sections.
KIRBY J: But in juxtaposition in common is there a defence of this kind elsewhere? “Reasonable excuse” seems a much wider concept. “Lawful purpose” is just focusing on what the purpose or object of the person was, whereas “reasonable excuse” is a much larger concept as it seems to me.
MR KINTOMINAS: Section 545D of the Crimes Act which deals with the “Unlawful Making or Possession of Explosives” requires that you have such substance in your possession or under your control “for a lawful purpose”, but it does not seem to mention “reasonable excuse”. Section 93G, I think, does have them both together. Section 93G relates to causing danger with a firearm or a spear gun, but that talks about possessing “a loaded firearm or a loaded spear gun”. So, in order to get under that section you have to either - in terms of possession they have to be loaded. So if you have a loaded firearm and a loaded spear gun, under subsection (3) you have got a to satisfy the court that you:
had a reasonable excuse for possessing it or doing it or possessed it or did it for a lawful purpose.
BRENNAN CJ: So you could have your Colt revolver in your purse?
MR KINTOMINAS: I am sorry, your Honour.
BRENNAN CJ: You can have your Colt revolver in your purse provided you intend to use it for self‑defence?
MR KINTOMINAS: Your Honour, guns come under different legislation.
BRENNAN CJ: They come under 93G.
MR KINTOMINAS: Yes, “a loaded firearm”.
BRENNAN CJ: And you could have your tear gas canister in your bag if you are a member of the gang provided that one of the purposes that you may have it there for is self‑defence.
KIRBY J: One day, sometime, possibly in the future.
MR KINTOMINAS: Your Honour, there may be very good policy reasons for changing 93G. It may be that as a result of the decision that your Honours hand down, whether today or in some future time, in respect of this case, the legislature might go back into a legislative huddle and rethink these sections out.
KIRBY J: No, but we have to look at the meaning of this phrase in the section under scrutiny, having regard to the fact that it also appears in 93G, and it would be curious, indeed, especially because I assume they may have come in at the same time, but they are both parts of the one Act, that a different meaning was intended in one subsection than the other and yet the argument you seek to press upon us would, if correct, as I presently think, apply equally to firearms and spear guns.
MR KINTOMINAS: Your Honour, it occurs to me - and I am mindful of the difficulty that I may perhaps be in if my argument pushes me into a corner - that there is no scope left for “reasonable excuse”, which perhaps Justice McHugh is trying to do - I am not sure. But there would be situations where you would not be possessing it for any purpose at all and there would be a reasonable excuse. That might be demonstrated in the situation where you may have possessed it for a lawful purpose and perhaps left it in your handbag and forgot it was there and then remembered afterwards that you had it, or you might have a situation where you were lumbered unwillingly with the possession of it. That occasionally happens of course in drug cases and what is known in the trade as a hospital pass.
McHUGH J: Well, “reasonable excuse” may have some meaning then if “lawful purpose” means a purpose supported by law. I note that in Crafter v Kelly, a well‑known decision of the South Australian Full Court in 1941, Sir Mellis Napier said that “lawful” depends on the context in which it is used. It means simply permitted as a lawful trade or purpose or it may mean supported by law, have some legal authority behind it. If you read 545E as meaning it is a purpose that has some lawful authority or some lawful support, then “reasonable excuse” may have quite a bit of work to do.
MR KINTOMINAS: Yes, your Honour. In respect of the question of unlawful purpose, I would refer the Court to Hare v Clarey (1951) 53 WALR 78, which is a decision again from Western Australia. That was a section which prescribed - to use the language of the section, it deemed any person a rogue and vagabond if he was found in “any place, stable or outhouse for any unlawful purpose”. Justice Wolff in that case, at the bottom of page 80 and the top of 81, said that an unlawful purpose was one which:
is related to an intention to do something which, if carried out, would be punishable as an offence under the criminal law.
Your Honours, I stick to my ground.
BRENNAN CJ: You have got good ground to stick to, Mr Kintominas, but is there anything that you wish to add to it to build on it?
MR KINTOMINAS: Yes, your Honours. It may well be - obviously no questions of judicial comity arise in this Court, but I cannot let the argument go without making this point, that the Court of Criminal Appeal erred in the approach that it took.
McHUGH J: But that does not arise here, does it?
MR KINTOMINAS: No, your Honour.
McHUGH J: They are either right or they are wrong.
MR KINTOMINAS: Yes, your Honour. If your Honours would just give me a moment, there may one or two further matters, but I am nearing the end of my submissions. I understand from my learned junior that the second reading speech for section 57 of the Prohibited Weapons and Firearms Act of 1973, that arrangements are being made, I think by the
library, to bring it here from Parliament House or something of that kind and may be available later in the morning.
If your Honours would see in the submissions there is a reference to the case of Ford v Lindholm (1987) 45 SASR 445. That was a case involving whether the person who was there charged had a knife in his possession for a lawful excuse. That case did refer to an Attorney‑General’s Reference and Justice Millhouse found himself constrained to follow Attorney‑General’s. I have noted in my outline of argument various quotations from that case to demonstrate that Justice Millhouse was not particularly pleased to have to follow the authorities.
BRENNAN CJ: We have read those.
MR KINTOMINAS: Yes, and I do not wish to belabour that, but I would need to just briefly point out that again, even if that case was correctly decided, that that is still not a case which is authority for the proposition that those principles are applicable to where the assessment is one of lawful purpose, because it was different. It appears that there is a little bit of a lack of intellectual rigour on occasions in the cases in distinguishing between lawful object and lawful excuse, as if the two were interchangeable. I submit that they are not and without taking the Court, unless the Court wishes me to, to the various expositions in Hancock v Birsa, in my submission, Hancock v Birsa, or a reading of the whole case, makes it fairly clear what the differences are.
If your Honours just give me a moment I just want to make sure that there is nothing that I have left. Those are my submissions, your Honours.
BRENNAN CJ: Thank you, Mr Kintominas. Mr Howie.
MR HOWIE: Thank you, your Honour. I hand up an outline of submissions to your Honours.
BRENNAN CJ: Yes, Mr Howie?
MR HOWIE: Thank you, your Honours. As to the Crimes Act provisions, 353B, which is an offence in relation to having a cutting implement in possession when arrested has a defence in terms of lawful purpose.
KIRBY J: What is the section, I am sorry?
MR HOWIE: 353B. It is a curious section, I suppose, because the prohibition is having - the offence arises if it is found upon you when you are in lawful custody. It is a very old provision. It was inserted into the Act, at least, in 1929. One of the reasons why it may be, in that regard is it is similar to the goods and custody provisions.
McHUGH J: No, I think it has a history. It was brought in for the purpose of striking down the Sydney razor gangs.
MR HOWIE: I was just about to say it was involved in the razor gangs, and it is in those terms, of course, probably to stop police having to go on searching people to find if they are a razor gang, but if you come into custody and you have it, you are carrying the razor, as it is, at your jeopardy, but if you come into custody, lawful custody, and you were found with it, you have committed an offence.
McHUGH J: With the consorting legislation.
MR HOWIE: The goods in custody, consorting legislation, all of those, and it is all designed as preventative, as getting in first, as it were, to prevent these sort of activities from arising. By the way, of course, they could arrest for consorting. That was the other thing, of course, and that is obviously how they were used in those terms. We talked about 93G. That is the most recent of all of these provisions. That came in in 1992. What happened in 1992 was that the old Firearms Act and Dangerous Weapons Act which was in New South Wales were amended substantially, and what the legislature decided to do was to bring offences which were more than merely the possession, the illegal possession of firearms, into the Crimes Act because they were seen as more serious and involved really offences against the person rather - or offences relatinag to firearms, but more than merely the control of firearms and the supervision of firearms and, so that provision was brought in in 1992, and used exactly the same wording as, we have seen, that has been used in relation to the present offence. Section 545D is also an old offence. It has, as the defence, only the lawful purpose and no reasonable excuse. Clearly, that was because at those stages there was thought there to be no reasonable excuse for having these objects in your possession.
GAUDRON J: Why not? I could think of dozens.
MR HOWIE: The legislature obviously did not think so, because they only provided for a lawful purpose.
GAUDRON J: But we all know that people used to blast out tree stumps in the bush with explosives, build dams with explosives.
MR HOWIE: I appreciate that, but it is interesting that in 545D and in the cutting weapon one, they did not provide the defence of reasonable excuse as provided in the later sections in the present section 93G. That is all I am pointing out. But in those earlier sections, they did not provide the reasonable excuse. They provided the lawful purpose defence.
GAUDRON J: Yes, but I thought you were saying ‑ ‑ ‑
MR HOWIE: No, sorry. I was simply commenting on the fact that the legislature did not seem to think to provide a defence of reasonable excuse.
GAUDRON J: But if you accept that the matters I have referred to are lawful purpose, we are not looking to something supported by law, are we?
MR HOWIE: Perhaps not in those sections, but that is the distinction I am drawing is that in those older sections, they did not have the two types of defence, the reasonable excuse and the lawful purpose, and it may be in those older provisions, both of those I think came in 1929, that it was seen as a different category of lawful purpose.
GAUDRON J: But one can also think of many things that come within 545E without going to the aerosol spray can that you would have had presumably for lawful purpose, for example, the film maker with his smoke machine.
MR HOWIE: Then he would have a reasonable excuse.
GAUDRON J: Yes.
MR HOWIE: But all I am trying to say is that it seems in those cases, because of the provision of reasonable excuse, that something perhaps was seen as different in lawful purpose than what might have been seen in the older provisions in 545D, because they did not provide the reasonable excuse in those cases. In the more modern provisions, they provided both the reasonable excuse and the lawful purpose. Just to finish it off - and I have not brought that section with me, I do not think - Summary Offences Act section 10 is a section relating to the use of offensive implements. It is a provision which does not talk about lawful purpose but only talks about reasonable excuse.
So that is, again, a different way of dealing with this provision. It is a provision dealing with people who have custody of objects either which are designed to cause injury to a person or which are carried with that intent. In those circumstances, that is said to be an offensive implement and offence is committed unless the person can show a reasonable excuse. There is no lawful purpose.
KIRBY J: What is your answer to Justice McHugh’s earlier question of the differential meaning between reasonable excuse and lawful purpose?
MR HOWIE: I think there can be. There can obviously be things which are - when you get the two in juxtaposition, it seems to indicate that there can be things which are not lawful purposes but are reasonable excuses and still be justified in having them. That must mean that the thing is - the “lawful purpose” is talking about a purpose authorised by law. So the hair spray, for example, you may not be able to show that it is authorised by law to have hair spray in your possession in a public street, but you do not need to because it would be a reasonable excuse to have hair spray in your purse if you are a woman with your cosmetics in a public street.
KIRBY J: Let us test that by section 545D, which is the immediate preceding section, and which presumably would be using the phrase “lawful purpose” in the same meaning. Does that mean, therefore, that because “lawful purpose” is not one authorised specifically by a law, that Justice Gaudron’s example of carrying an explosive for the purpose of blowing up a tree stump would not then be a defence?
MR HOWIE: But you cannot read them the same way because they have been written - I appreciate that there is the use of the same words but it is curious that it comes and goes as to whether the words are used “with reasonable excuse” independently, or does not appear at all, and “reasonable excuse” is used. That may be something to ‑ ‑ ‑
KIRBY J: But did D and E come in at the same time?
MR HOWIE: No, they did not, that is what I am saying. It may be that they all had different generics, they had different provenances and therefore they have built on an existing or different provision and therefore they have just come about in that way.
McHUGH J: I may be wrong about this, but do you not have to have a licence for explosives? Can just anybody just go and get possession of explosives? Is there not a ‑ ‑ ‑
MR HOWIE: I cannot tell you that, I do not know. But take the firearms one. Certainly you have to have a licence for firearms. Now it may be that you can have a lawful purpose for having a loaded firearm in a public place, or a reasonable excuse, but it would not be authorised by law. This is this distinction between having a legal right to have it in your custody or your possession, and having a legal purpose for having it in a particular place or at a particular time. It may be that you could have a “lawful purpose” although your possession of it is not authorised by law. That was what my learned friend was talking about in that case of the man who was returning the pistol. He had no legal authorisation, or lawful excuse, to have the pistol in his possession because he was returning it as part of giving himself up and what he has perceived to be a government amnesty about firearms.
But all I was trying to show was that there is a different way these words are used and a different juxtaposition, and it may be difficult to use them in the same way in every section, even though the sections are appearing in the same Act, because they have a different provenance, a different background - they came in at different times. But what we would say is that you would read the two together in the same Act where those same words appear, for example “lawful purpose” or “ reasonable excuse”. You would not give those any different ‑ ‑ ‑
KIRBY J: Are they entirely separate concepts with unintersecting circles or will sometimes a lawful purpose provide the reasonable excuse?
MR HOWIE: I think they can be both, but there would be things which would be reasonable excuses, but which may not be a lawful purpose.
KIRBY J: Well now, let us get back to this case. Why is it in the circumstances where, as can be noticed, there is violence in our community that did not exist previously to the same extent, even in public streets and public places, why is it not a lawful purpose or reasonable excuse for a citizen to carry an aerosol, if their purpose is only to use it strictly in their self-defence and that is accepted as a matter of fact?
MR HOWIE: Because one looks at the time of the possession and sees whether, at the time of the possession, the self-defence, in that situation, would be lawful. Not all self-defence is lawful or not all defence of yourself is lawful, because there is, in self-defence to be lawful or to be justified, doing something in your self-defence, there is an element of objectivity about it. There is an element of reasonable basis for it. So your own personal beliefs cannot be determinative of the question and this is, if you like, the policy of the criminal law itself, which is a policy to say that you cannot be the sole determinant of what you can do in your own self‑defence.
KIRBY J: I understand that, but what if the possessor says, ”Look, I have read all the latest authority of the High Court of Australia on self-defence and I swear I was never going to use this aerosol except strictly and only in those cases where by law I could”?
MR HOWIE: Because at that time, when she was in possession of it, that occasion which is the occasion we are talking about, in those circumstances, she had no belief at that stage that there was a reasonable apprehension of violence ‑ ‑ ‑
KIRBY J: But where is that in the section? It does not require that, it just says that it has “a reasonable excuse for possessing” or “possessed it for” ‑ ‑ ‑
MR HOWIE: A lawful purpose to possess. Well, it comes in because we are talking now about a lawful ,urpose; that is, a purpose justified by law, and the purpose, self-defence, is only justified by law in particular circumstances. So that if she has got a purpose of self-defence, it has to be a lawful self-defence purpose, to be a lawful purpose because not all self‑defence is lawful.
KIRBY J: But what if she said and was believed that, “My purpose is I will not use it just if I am attacked; I will only use it if it is a desperate attack and it is in a dark street and there is no way I can call the police”. If that is her purpose and that is believed, the problem is presented by the proof of the facts, but assume the defence is accepted on that footing, why is that not then a lawful purpose?
MR HOWIE: Because where there is no actual anticipated violence at the time of the possession or no imminent threat or no perceived imminent threat, it is not lawful. That is the element that is missing. That is the element that must be there to make self‑defence lawful. You have to look at it in all the circumstances in which the possession is occurring: the time, the place and the circumstances surrounding the possession.
KIRBY J: Where do you get imminent threat out of the statute?
MR HOWIE: I get it in the same way as I get reasonableness in self‑defence, out of the concept of lawful self‑defence. We are talking about a lawful purpose and what I am saying is the purpose of defending yourself is not always lawful and that is so right through the criminal law because the criminal law imposes conditions upon that. You may be acting in your own self‑defence, you may be justifiably doing so, you may believe you are justified in doing so, you may truly and honestly believe you are doing so, but the criminal law will say that is not lawful self‑defence.
KIRBY J: Yes, but, Mr Howie, the position is Parliament has provided by subsection (1) that you shall not in a public place be possessed of this and by subsection (2) it has provided a defence, so it obviously contemplates that cases will exist where it is lawful to have an aerosol.
MR HOWIE: Clearly. Clearly there will be cases where it is lawful to have an aerosol in your own self‑defence because at the time in which you are in possession you do have on reasonable grounds a belief that there is an imminent threat. If a lady is going perhaps to town to see a movie and has to go on - it can come and go. She can be walking along the street and she says, “Well, I have no trouble getting to the station. It is well lit. I know everybody. There is no problem. I have no problem on the train, but then I have got to walk through Central Park. There is a lot vagrants there. People are attacked there. I am really worried about there is an imminent threat against me in walking through Central Park.” Imminent does not mean right here and right now. It is reasonable grounds for belief that it is necessary for me at the time of my possession to have it in my possession for my self‑defence.
KIRBY J: Why was it not open to Judge Rummery to say with this appellant that living or walking in a particular suburb, particular streets, that she had a reasonable excuse or a lawful purpose because at some time there could well be, as there had been in the past, attacks on people in those streets?
MR HOWIE: But she had no reasonable grounds for belief at this particular time that she was subject to imminent attack. It may not have occurred for 10 or 15 years. It may never occur. It is merely a hypothetical situation, a bare possibility that she is providing for. Now, it would depend on the particular person in the particular circumstances and we would submit that it must be so. I mean, it is what is brought into the law of self‑defence. It is what is brought into this section. The section requires some objectivity, either in reasonable excuse or in lawful purpose.
KIRBY J: But surely that is just a matter for the fact‑finder to determine. I mean, the sorts of considerations which are now in subsection (4) it seems to me are the sorts of considerations the fact‑finder would take into account in determining whether the ‑ ‑ ‑
MR HOWIE: But he found there was no imminent belief. There was no belief of an imminent attack.
KIRBY J: No imminent, but you keep using this word “imminent”, which has come from the English case but I just do not see it in the statute. I have looked and I have looked again.
MR HOWIE: Yes, but you do not find “reasonable self-defence” in the statute either.
KIRBY J: You do find “reasonable excuse”.
MR HOWIE: No, but we are not in the “reasonable excuse” category now, we are in the “lawful purpose” category.
McHUGH J: Well, I am not sure that maybe we should not be in the “reasonable excuse”. The more I think of this, the more I tend to the view that perhaps self-defence arguments have got to be defended under “reasonable excuse” rather than “lawful purpose”. Take this case: supposing this appellant in the witness-box had said, “I carry it if somebody’s going to attempt to rape me”. On one argument, about lawful purpose, it is self-defence, it is all right. Supposing it is put to her, “If any person touched me, I would, in self‑defence, spray that person”. Now, that is the purpose, and is it a lawful purpose?
MR HOWIE: It is not a lawful purpose.
McHUGH J: No.
MR HOWIE: So, it may be, if it is not a lawful purpose, you can go to reasonable excuse, because you have got both of them, and then you look at it and say, “Well, it wasn’t lawful, but look at it, was it reasonable?” So it can fall into either one category, but the “lawful purpose” category is a strictly construed category because it is a lawful purpose, a purpose recognised by law, a purpose authorised by law.
KIRBY J: But what is your answer to the proposition that if it is not forbidden by law, it is recognised and authorised by law.
MR HOWIE: No. She has got to prove - the onus is on her to prove that she had a lawful purpose.
KIRBY J: But if it is not banned by the law, the theory of the English law is that you do not have to have a law permitting you to do something. You are permitted to do it unless you are prohibited, and we have adopted that approach in Australia.
MR HOWIE: Yes, but the law here is you are prohibited for having it in your possession unless you can show a lawful purpose for it. The lawful purpose, therefore, you now have to find a purpose which is authorised by law, because the fact that it was never illegal to have these objects has been overturned by statute. The law now has changed and the common law which said that you did not need authorisation has been changed. The Parliament says now you need authorisation or a reasonable excuse. You have to find an authorisation in law or a reasonable excuse for doing it.
KIRBY J: Could you direct me to the Aerosol Carrying Act? I mean, where is there some law that specifically authorises anybody to have a hair spray or cologne or shaving cream?
MR HOWIE: There is not, but that is where you get into “reasonable excuse”. Now, it may not be that you are now - because the Parliament has said, “You will not have an aerosol spray in a public place.” That is now the law. You will not have it.
KIRBY J: You, therefore, say, that lawful purpose has no work to do, because there is no aerosol carrying permitted.
MR HOWIE: Of course it has work to do. It has work to do because you can do an unlawful act in your own self-defence. You can do an unlawful act and it can still be lawfully excused.
GAUDRON J: Can you think of anything other than self-defence that might come in “lawful purpose” on your argument?
McHUGH J: You might have legislation authorising the riot police to carry ‑ ‑ ‑
MR HOWIE: That is true. This applies to everybody. Say, if a police officer is authorised, by law, to carry the pistol in a public place, he is authorised. He comes within that. He does not need a reasonable excuse.
KIRBY J: Firearms are excluded from this section.
MR HOWIE: I am sorry, I am talking generally, because firearms are - it is easier for firearms and the provision is exactly the same with firearms. It is a little bit easier to see because one can see that there is complementary legislation which authorises and controls firearms.
GAUDRON J: Well, let me take (2) though, “a substance capable of causing bodily harm”. Let us take a spray bottle of ‑ ‑ ‑
BRENNAN CJ: Mace.
GAUDRON J: No, I was going to take ‑ ‑ ‑
MR HOWIE: Perfume.
McHUGH J: Cigarettes.
GAUDRON J: A substance which, in small quantities, will heal a wound and in large quantities will cause bodily harm. Do we have lawful excuse? Let us say it is not a doctor or a nurse, just an ordinary person, and it is not a prescribed medicine, but it is in such an item and it has those two possibilities.
BRENNAN CJ: Liquid nitrogen.
GAUDRON J: Yes.
McHUGH J: A bottle of ti-tree oil.
GAUDRON J: Yes, a bottle of ti-tree oil is a good example.
MR HOWIE: Would you come under “reasonable excuse”?
GAUDRON J: That is the question.
MR HOWIE: You must come under “reasonable excuse”.
GAUDRON J: There is no lawful purpose. There could be no lawful purpose.
MR HOWIE: There could be a lawful purpose because you could be taking it with you to use in self-defence or you may be a doctor or you may be ‑ ‑ ‑
GAUDRON J: All right, if you are a doctor.
MR HOWIE: There may be other reasons but if you are not a doctor, then if you are not authorised by law to have it, and we are only talking about in a public place, and Parliament has said, “You are, in fact, no longer authorised, you are not authorised to have it in a public place. We have taken that prohibition. We have prohibited you”.
GAUDRON J: So, “lawful excuse” we are restricted to positive authorisation by law?
MR HOWIE: Yes.
GAUDRON J: Or self-defence.
MR HOWIE: Reasonable excuse. Yes, in lawful - there may be others.
GAUDRON J: It just seems that it is a strange way of saying “unless authorised by law or in self-defence”.
MR HOWIE: Well, there may be other ways. I mean, as I say, I cannot think of any at the moment because of the substance we are in. If you take it with guns, for example, you can, because you could be a person who is authorised in many ways to have a gun; you can be actually taking it to destroy it, you might be doing something with it which is authorised by law, notwithstanding that you have not got a particular authorisation written out. This is such a catch-all. I mean, this is one of those general provisions which come in this area which is called intimidation, et cetera. It is a glad bag, a catch bag, in a way, of various provisions that have come from various places and are put into an area of really what is preventative of crime. When we started off, of course, at least from 53, the Firearms Act, originally in 57 where it comes from, only talked about an article or device not being a firearm, so it was in a firearm provision originally, so it was in an Act called Firearms and Dangerous Weapons, and it was looking at these items being dangerous weapons because they were capable of being used as dangerous weapons in a public place, therefore they were said to be dangerous weapons.
KIRBY J: Was the case stated by the judge addressed to both “reasonable excuse” and “lawful purpose”?
MR HOWIE: Yes, I think it is. But he held there was no reasonable excuse, and that was a matter of fact, we would say, for him.
KIRBY J: Did he do that by reference to a legal test that is challenged?
MR HOWIE: No, I think it was just an application of fact, saying it was not reasonable.
KIRBY J: This is because it was not imminent; that was the base foundation for it, was it not?
MR HOWIE: I think it was the foundation for everything.
BRENNAN CJ: Mr Howie, can you tell me whether section 545E and section 93G were introduced into the Crimes Act by the same amending legislation?
MR HOWIE: No, they were not. Section 545E came in 1989 and section 93G came in 1994, I think. The interesting thing about it though is they came back both from the same legislation originally; they came from the Firearms and Dangerous Weapons Act.
BRENNAN CJ: And were they both cast in the same form in that Act?
MR HOWIE: Yes, I think they were. I can check that for your Honour. From memory they were. So what happened ‑ ‑ ‑
BRENNAN CJ: The Firearms Act, or whatever it is called ‑ ‑ ‑
MR HOWIE: It was the Firearms and Dangerous Weapons Act, which split into two, so we had a Firearms Act and a Dangerous Weapons Act. That was in 1989, and I think at that time the provision 545E was placed into the Crimes Act and it was extended because it no longer covered dangerous weapons.
BRENNAN CJ: What I would like to know is whether the Parliament in the same piece of legislation at any time introduced provisions now corresponding with sections 93G and 545E?
MR HOWIE: I do not know that they were introduced at the same time, but I am pretty certain that they were in the same legislation, at one time, but I could check that for you if you would allow me to do so, within a week or so, and I will make sure of that.
BRENNAN CJ: Yes, thank you.
MR HOWIE: But that is my memory of it and as I say, then two different policies occurred at two different times; in 1989 they split the Firearms Act up and the Dangerous Weapons Act up, they put 545E into the Crimes Act because they extended it to not cover just dangerous weapons, and the Dangerous Weapons Act was now confined to dangerous weapons.
BRENNAN CJ: Yes.
MR HOWIE: And then at a later stage they again changed the Firearms Act by taking out those provisions which they saw as really serious Firearms Act offences like offences against the person or the use of firearms, to leave the Firearms Act really only dealing with the regulation of firearms. That is as I understand the history, but I could check that for you.
BRENNAN CJ: Yes please, thank you.
KIRBY J: What is your answer to the appellant’s contention that if you require imminence, then the problem is that a person does not have the time or the opportunity to know exactly when an attack is going to occur. That is the very nature of the danger against which they wish to be ready for self‑defence.
MR HOWIE: The answer to that is the legislature has made a policy decision about that. The legislature sees it as more important to keep these things out of public places and to be able to provide for people for self‑defence at every available opportunity. It is a policy decision.
KIRBY J: You say that on a macro level the chances of the need for it are not as great as the dangers of thugs and others using these ‑ ‑ ‑
MR HOWIE: It is not only that. I think your Honours have probably heard that one of the problems in America of gun ownership in self‑defence is that they end up being not used in self‑defence but being used for other reasons: because they are there. So they are used for domestic violence or they are used to commit other crimes, even though the purpose originally might have been to have them for self‑defence. It is one of the difficulties of people carrying weapons that they tend to use them not just for the purpose for which they had them because of changes in the situation which they face. If the thing is there, it is so easy to use it.
I think it is a policy that has decided, “Well, we have to draw the line between the lesser of two evils”. One evil is the fact that if you really do believe, if you have a belief on reasonable grounds, that an attack is imminent, then that is covered by “lawful purpose” or at least “reasonable excuse”, but certainly we would say probably “lawful purpose” because the law recognises self‑defence in that situation. It does not recognise self‑defence in a situation where there is no imminent threat.
KIRBY J: I think an important consideration here is that it would be very odd if there were a different meaning to the subsection in 93G from 545E, as the Chief Justice pointed out.
MR HOWIE: And it is perhaps interesting if the legislature thought it was amending perhaps a situation that it felt was unacceptable after the decision in the Court of Appeal; it did not amend 93G.
KIRBY J: What is your submission on that? Are we to simply ignore the subsections or are we to seek to give a construction of the statute which looks at its now entirety?
MR HOWIE: I think your Honours are entitled to look at what was done as an aid to interpretation of what the provision meant before it was changed.
KIRBY J: Does that involve an acceptance by the New South Wales Parliament of the holding of the Court of Criminal Appeal?
MR HOWIE: I can tell your Honour that after the holding of the Court of Criminal Appeal there was some public concern.
KIRBY J: I am not asking agreement with it but acceptance of it as a matter of ‑ ‑ ‑
MR HOWIE: Well, I think there was a reaction to it.
McHUGH J: There was a newspaper editorial, if I remember rightly.
MR HOWIE: The particular situation was stressed of course, the woman alone on the street, and they moved - my learned junior has given me the - it is called the Crimes Legislation (Dangerous Articles) Amendment Bill, which was the Bill that amended it. The second paragraph starts:
The Government was therefore understandably concerned by the recent Court of Appeal decision in Taikato v The Crown.
So it seems to have been a movement particularly aimed at that particular provision in relation to that particular section. As I say, though, nobody moved on 93G, so it was quite happy to accept that restriction if there was one in the Court of Criminal Appeal.
GAUDRON J: If it turned its mind to it. That is always the difficulty.
MR HOWIE: I know that is but I suppose, when we come to - that is always the difficulty of course when we get into the question of legislative intention.
KIRBY J: But here there seems to be pretty clear turning of mind to the Court of Criminal Appeal’s decision and there can be no other explanation for subsections (3) and (4).
MR HOWIE: I think that is right.
KIRBY J: Is there any general principle that you are aware of of the approach by courts where Parliament has amended an Act whilst a matter is going through the courts? Does that involve a parliamentary acceptance of the decision of the court under appeal or does it simply have to be put out of mind because a party is entitled to have the issue determined on the law as it stood at the relevant time?
MR HOWIE: I think that you can use it as long as you know what Parliament intended. I mean, one does not know if Parliament intended perhaps that the Court of Criminal Appeal were right in its decision on the interpretation and, therefore, we should amend it because we no longer like that interpretation or whether they thought they were wrong and would amend it to improve it. So it is a little hard, I think, to draw any conclusion as to what Parliament’s intention was in amending it as to what it thought the words meant and certainly it might be very difficult to know what they were intended to be meant when they were put in there originally.
KIRBY J: Parliamentary intention never meant the subjective thinking of the legislators. It is a myth that is deemed or imputed to the Parliament.
MR HOWIE: I cannot help you any further.
BRENNAN CJ: Thank you, Mr Howie. Mr Kintominas.
MR KINTOMINAS: May it please the Court. Your Honour, I would express some thanks to the librarian of the Court who managed to get the New South Wales Parliamentary Debates Hansard for the 1972‑73 session. That has the second reading speech in respect of the 1973 Bill which had the predecessor section in it. I have not had time to digest it entirely, but it seems from reading it that the reference to discharging irritant liquid in gas or powder form, it appears from my reading of it, that that was introduced for the first time in 1973. There is no previous predecessor section. I was not able to pick up in my quick skimming of it any particular exposition in the speech in respect of those items, but I may be wrong and it may be that if that is read with more time than I have had that it may yield some benefit to the debate, but I doubt it. In respect of the question as to ‑ ‑ ‑
McHUGH J: Significantly there is reference to shooter’s licences and legislation that the licence is to be issued quickly. Perhaps that does indicate that lawful purpose means authorised by law rather than not contrary to law.
MR KINTOMINAS: Your Honour, in my submission, if the Parliament meant that you could only have it if you were authorised by law, it should have said so. It did not. It is true that some items are authorised by law but there are many items where there is no authority that would be covered by the section. It would be unlikely that that is really what the Parliament intended in respect of that particular section.
The other difficulty, your Honour, is this. How do you come up with a test for what “lawful purpose” means which includes, on the one hand, that you have a lawful purpose if you have a reasonable fear of being attacked, but you do not have a lawful purpose if you are only carrying it on a contingency basis. The lawful authority test cannot make the decision in Attorney-General’s Reference, for example, correct.
McHUGH J: But it may be that there is no lawful purpose to use something in self-defence until you are in imminent danger of attack.
MR KINTOMINAS: Your Honour, the section is aimed at possession for a purpose.
BRENNAN CJ: Of course it is - that is right - but that just simply means that you do not come within it. But on your argument under 93G, the notorious criminal has got the pistol in his pocket and he says “Well, I am carrying it for self-defence. I have got a lot of enemies out there who will not hesitate to knock me off, so I carry this gun with me for that purpose.” On your argument there is no offence.
MR KINTOMINAS: Well, your Honour, I must say I was prepared to be critical of my friend’s argument that “lawful purpose” may mean a different thing from section to section, but on reconsideration I think I might adopt it in reverse. It may mean a different thing in 93G to what it means there.
KIRBY J: Very unlikely, given its genealogy. It is all part of the reform of the Firearms Act.
MR KINTOMINAS: But, your Honour, that is the difficulty, that there is no test that has been propounded really which would allow, even in a situation where one was extremely sure that one was going to be attacked - where you got the phone call.
KIRBY J: But why should we strain to give the language of the aerosol provision - the defence - a very broad construction when (a) that would have ramifications for the firearms section, which is in the same statute, and (b) the Parliament of New South Wales has taken the trouble to reform the aerosol provision.
MR KINTOMINAS: Your Honours asked earlier whether the Parliament, by amending the section, took the view that, or demonstrated what it had intended when the section was enacted, either that it demonstrated that what the Court of Appeal decided in this case was what Parliament had intended or otherwise, and just reading from the Second Reading Speech in the Council from the then Attorney-General, he said this:
The Government is gravely concerned by the level of violence against women both inside the home and on the street and is committed to ensuring the safety of women and their protection from physical and sexual assault. The Government supports the view that women should be allowed to defend themselves against attack. This includes taking self-defence classes and carrying non-prohibited items that may discourage an attacker. The Government was therefore understandably concerned by the recent Court of Appeal decision in Taikato v The Queen.
I will not read the lot, but it ‑ ‑ ‑
KIRBY J: All of that implies an acceptance by the Attorney-General of the law as stated and a statement that, “That is what it is and we are going to change it”, and they have.
MR KINTOMINAS: Yes, but it may well be an argument that the Government had not thought the law to be what the Court of Appeal said, but was prepared to pay respect to the decision of the Court of Appeal and, having regard to the political imperatives, not wait for a decision in this Court to finalise the matter, to put the matter out of the political football field.
BRENNAN CJ: Now, Mr Kintominas, you are in reply, not in-chief.
MR KINTOMINAS: Yes, your Honour. Your Honours, in respect of that example that was given in the train about, “He touched me and, therefore, I sprayed him”, your Honour, if the reaction was reasonable, “I sprayed him because he touched me”, perhaps on the breast or something of this kind, “and he touched me in such an unappropriate way that I feared the worst”, then if the reaction was reasonable, then it would come under self‑defence in any event, because self-defence can be lawful even when it is misconceived, even when it is made on a mistake of fact, an honest mistake of fact. “I thought he was going to attack me.”
BRENNAN CJ: That is exactly what is, in a sense, put against you, that you have to see what the situation is which justifies the use of force on the part, in this event, of your client.
MR KINTOMINAS: Yes, your Honour.
BRENNAN CJ: And until that event occurs which can enliven the entitlement of your client to use this spray can, there can be no possession for the lawful purpose.
MR KINTOMINAS: With respect to my friend, it is not correct to say that one cannot forecast in one’s mind the types of situations where it could be used. It may be or it may not be that there may have had to have been a little bit more evidence either way.
BRENNAN CJ: You can contemplate conceptions with great clarity. None of those conceptions gives rise to any entitlement to use the spray can.
McHUGH J: In other words, you only have a lawful right to assault somebody if certain conditions exist and until those conditions exist, you do not have that lawful right.
MR KINTOMINAS: That is right, your Honour, but if your purpose is to use it when those conditions exist, if they ever do, then your purpose is a lawful one.
BRENNAN CJ: That is the argument. We understand that.
MR KINTOMINAS: Yes. Your Honours, just perhaps one final point. In respect of the issue as to whether or not there is a live argument on foot on this issue of reasonable excuse, I put it to the Court earlier that certainly on my argument if it is a lawful purpose then one obviously does not have to go to the question as to whether it is a reasonable excuse. If it is deemed to be an unlawful purpose then I would concede that if it is an unlawful purpose it is very difficult to come up with a reasonable excuse. If, on the other hand, it lays in a vacuum somewhere between lawful purpose and unlawful purpose but cannot be categorised as either, then there would be scope for the application of reasonable excuse and nothing that I have said earlier should be taken as my abandoning that position.
BRENNAN CJ: Let me understand this correct, Mr Kintominas. Are you saying on this leg of your argument that if you are in the “reasonable excuse” area the fact that your client intended this for use only in the event of an attack is a reasonable excuse?
MR KINTOMINAS: Yes.
BRENNAN CJ: The argument that will be put against that notionally is, of course, that the policy of the legislature is that the possession of instruments of this kind should be prohibited and that self‑help should be suppressed in that respect and the question then is what do you say about the reasonableness?
MR KINTOMINAS: What I say in reply to that is that it should not be a matter which is applied indiscriminately irrespective of the item. There may be certain items where it stands very obviously to reason that that ought to be the policy consideration applicable. However, the section casts such a wide net that one could take the view and should take the view that there may be some items that, provided they were possessed for self‑defence, even on a contingency basis and no other, it would be still reasonable to possess them and there may be others that are not and it is an error of law when approaching the determination of the question of fact to use that as a mandatory exclusion of a reasonable excuse. Those are my submissions, may it please the Court.
BRENNAN CJ: Thank you, Mr Kintominas.
MR KINTOMINAS: Your Honours, if your Honours intend to reserve and if your Honours may be assisted by the second reading speech in respect of the amendment legislation in 1994, I have one copy.
BRENNAN CJ: You could perhaps provide those to the Clerk of the Court and copies can be made for the Justices.
MR KINTOMINAS: May it please the Court.
BRENNAN CJ: Thank you, Mr Kintominas. The Court will consider its decision in this matter.
AT 12.05 PM THE MATTER WAS ADJOURNED
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