Taikato v The Queen

[1995] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S59 of 1994

B e t w e e n -

JO-ANNE TERUIA TAIKATO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 AUGUST 1995, AT 12.10 PM

Copyright in the High Court of Australia

MR P. KINTOMINAS:   May it please your Honours, I appear for the applicant with the learned friend, MR R.K.M. RASMUSSEN.  (instructed by J. Giles, Women’s Legal Resources Centre)

MR R.N. HOWIE, QC:   I appear with MS M.F. LATHAM for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DAWSON J:   We thought perhaps we might hear from you first, Mr Howie, in this matter.

MR HOWIE:   Your Honours, we submit in this case that there was no error in the approach by the Court of Criminal Appeal.  We submit that the whole purpose of the legislation in this case is to prohibit the carrying of certain objects, in this case the spray cans - and there is similar legislation in relation to other objects - because the legislature considers that people should not be carrying those objects with them in public places, obviously because the legislature believes that the carrying of those objects can lead to the commission of offences and therefore, as a precautionary measure against the use of such objects in the commission of offences, the legislature intends that they should not be in the possession of people in public places.

The legislature does allow a defence to the fact that the person is in possession of what is otherwise an illegal object or an object which it is illegal to have in a particular place.  One is a defence of reasonable excuse and the other is a defence of lawful purpose.  We submit that when one comes to the question of purpose being a purpose to use in self‑defence that there is in reality no difference between a reasonable excuse and a lawful purpose on the basis that a lawful purpose which relies upon the purpose being that the object will be used or may need to be used in self‑defence requires that there be some reasonable apprehension that the object will be necessary to be used in self‑defence and that it would be reasonable to use it in the conditions that a person foresees that they might have to use it.

McHUGH J: Would that not require a bit of surgery on the simple words in the legislation, Mr Howie?

MR HOWIE:   No, your Honour, because lawful excuse itself necessitates - if the lawful excuse is one of self‑defence, then it necessitates - we say brings with it, because of the concept of self‑defence - a concept of reasonableness.  Self‑defence cannot be seen in isolation; it cannot be seen as a concept devoid of the circumstances, devoid of the object, devoid of the circumstances in which the concept is being looked at.

McHUGH J:   But you have got it; you are possessed of it for the purpose of defending yourself if you are attacked.  Why is that not a lawful purpose?

MR HOWIE:   Because it has to be reasonable to have it in your possession for that purpose.

McHUGH J:   The statute does not say that.

MR HOWIE:   No, but the concept of lawful excuse, the concept of using it for self‑defence itself implies the fact that the possession has to be reasonable.

TOOHEY J:   Why do you say that?  Why has the legislature gone to such pains to distinguish between reasonable excuse and lawful purpose?

MR HOWIE:   Because they can be different in certain circumstances.  There is clearly a purpose which may not be a lawful one but which is reasonable to have, for example, to find a prohibited weapon in the street in a public place and to be taking it to the police.  It might not be a lawful excuse but it would certainly be a reasonable one.  But if one comes to the question of self‑defence, otherwise it is merely a subjective belief on the person that they may at some stage wish to use the object to defend itself, and we would submit that that runs counter to the whole purpose of the legislation.  The whole purpose of the legislation is to stop people carrying such objects in public places.  It cannot be sufficient that the person has a subjective belief that the person may wish or be required to use it in their own defence to be enough to overcome the legislature’s intention that it will be an unlawful to carry that object in a public place.

DAWSON J:   But if you had to wait until an attack was imminent in order to have a lawful purpose in possessing something for self‑defence, we would never have a lawful purpose for possessing something for self‑defence.

MR HOWIE:   No, it depends perhaps on what is imminent.  It is not suggested that you have to wait until you are there and then attacked.  For example, one can think of a situation where a woman is going to walk through a particular park where she knows particular people are there where it has a reputation for assaults in that particular park, where it is a dark night and where she has to go through the park.  In that situation she may have a reasonable belief that an attack is imminent when she goes through the park, which is what she intends to do ‑ ‑ ‑

DAWSON J:   It is not a matter of reasonable belief; it is a matter of lawful purpose.

MR HOWIE:   The lawful purpose in that situation is that she anticipates that it will be - she has reasonable grounds to believe that she will be required or may be required to use that object in her self‑defence.

TOOHEY J:   The problem with that approach is that it really flies in the face of the reasoning of the Court of Criminal Appeal which has obviously reached its conclusion with some reluctance and in the light of authority based on the idea that there must be a reasonable apprehension of imminent attack.

MR HOWIE:   True, but I do not know that a reasonable apprehension of an imminent attack has to be right at this very moment.

TOOHEY J:   It may or may not be, but then it becomes a question of fact, a question of fact which was really precluded in this case, I think, by the reasoning upon which the Court of Criminal Appeal relied.

MR HOWIE:   No, we would submit not on the basis that there was never a suggestion in this case that this woman had on reasonable grounds an apprehension of imminent attack.  The facts here were that she had been attacked some many months ago at her home and therefore simply carried it around on the off‑chance, on the possibility that she might need it at some stage in some situation.  On any basis of the test, even under the test as the Act has been amended now, would anybody feel that that could be seen as reasonable grounds for belief that you would need to use the object or may be required to use the object in self‑defence.

TOOHEY J:   No, but it is the emphasis on “imminent attack” in the authorities upon which the Court of Criminal Appeal relied, which really raises the real question of principle here.

MR HOWIE:   That is true because that is the thing that has been extracted, and it has been extracted for the policy reason that the whole purpose of the legislation, as I say, is to stop people simply walking around with such objects unless there is a real reason to use it; that is, by reasonable excuse or lawful purpose.  Usually that has been looked at in terms of belief of imminent danger of attack.  That is only because those cases seem to have concentrated on that area because the people who have been involved have been involved very much in the same way as this appellant was.  It may be that if there was an imminent attack but that the object was completely out of proportion for what the person believed the attack was going to be, for example, if it was in relation to an unlawful weapon and the weapon happened to be a gun and what she believed the attack was going to be was something which was not going to be life threatening at all but simply that she was going to be harassed or something, then it may not be the question of imminent attack that becomes relevant.  Then it will become the alternative question of whether there were reasonable grounds for belief that it was necessary to arm yourself with that object in view of the fear that you anticipated.  If you do not introduce this concept of reasonableness into it and it is the concept that ‑ ‑ ‑

DAWSON J:   But that is dealt with by other legislation, and that is the point.  You are not able to carry firearms around for reasons which are found in other legislation, so that question does not arise really here.

MR HOWIE:   That is the point, I would think, of special leave here, that if the legislation has been amended in relation to this particular matter ‑ ‑ ‑

DAWSON J:   Yes, but there is other legislation which employs the same tests, is there not?

MR HOWIE:   Yes, but the other legislation poises that test in things ‑ ‑ ‑

DAWSON J:   And in other States as well.

MR HOWIE:   Surely, but in relation to offensive objects like guns and nails and buckles, it is all designed that these objects, not just spray cans - it comes up generally in other States in this offensive weapon legislation.  There is one in Victoria and there have been cases in Victoria about it that your Honour would be aware of.  That was in relation to similar legislation which is designed to stop people taking round objects like baseball bats, studded belts, knuckle dusters, all those sorts of objects which either can be used to inflict injury or which have been intended to inflict injury on other people.

McHUGH J:   Ultimately it is a question of fact.  At the back of judgments like Evans v Hughes and Peacock’s Case seems to be a fear that unless we tighten up this legislation, people will be acquitted.  That seems to be really the fear of it.  But in this particular case, if you thought this woman was out there with this in her possession for the purpose of robbing people, that is the end of the case; she has got no defence.  But here it is accepted that she had it for the purpose of self‑defence.

MR HOWIE:   But the whole legislation is of not having these objects in your possession; not for having them with any particular intent but not having these objects in possession unless there is a real reason to have it, either by reasonable excuse or lawful purpose.  We would submit that the lawful purpose brings into it where the lawful purpose is self‑defence ‑ ‑ ‑

McHUGH J:   Self‑defence is a lawful purpose and if you have got an object for that purpose, then at the moment I cannot see how it can be possibly said you commit an offence against this section.  You are possessed of it for a lawful purpose.  That is what the legislation says.  It is lawful to possess something to defend yourself.

MR HOWIE:   Only if it is reasonable in the circumstances ‑ ‑ ‑

McHUGH J:   You add the word “reasonable”; the legislature does not.  It has two defences:  reasonable excuse for possession or possessing it for a lawful purpose.

MR HOWIE:   I introduce it because of the concept of self‑defence which is being relied upon as the lawful excuse.  If the lawful excuse is something else which does not rely upon reasonableness or reasonable grounds for its existence, then reasonableness would not be in it because that would not be required necessarily by the defence upon which you are relying upon, the lawful excuse.

McHUGH J:   Yes, but it is not possession for an immediate purpose; it is possession for a lawful purpose.  That purpose may not come to fruition for some time.  It may never be required to be exercised, but nevertheless that is her purpose that she has possession.

MR HOWIE:   We say it has to be a lawful one and the lawfulness brings into it the concept of reasonable grounds for belief that it is necessary.  It is the lawfulness which brings in the concept of self‑defence that are concepts of reasonable grounds, otherwise it becomes merely a subjective view which is almost impossible to ‑ ‑ ‑

DAWSON J:   Purpose is a subjective things.

MR HOWIE:   Yes, but when one is bringing in a concept - again, I can only say, as I have said before, the submission is that if one is bringing in the concept of a lawful purpose and if the lawful purpose relied upon is one of self‑defence, then it carries with it a concept of reasonable grounds because that is the whole basis of self‑defence which is based not upon pure subjective beliefs, not upon pure subjective views about what is necessary, but subjective views based upon reasonable grounds.

DAWSON J:   Yes, that is reasonable grounds for doing what you did but this is a point anterior to this.

MR HOWIE:   Yes, I accept that, but a purpose - our argument is that a purpose which involves a concept of self‑defence as being the purpose must carry with it a concept of what self‑defence is all about, and that is reasonable grounds for your action.  I know it is not the taking of the object ‑ ‑ ‑

DAWSON J:   Reasonable grounds for your action.  That is where the question of reasonableness comes in but not before.

MR HOWIE:   We would submit that if it is brought forward with the word “lawful” in the concept of purpose, it is not for any purpose; it has to be for a lawful purpose and a lawful purpose in relation to self‑defence has to be ‑ ‑ ‑

DAWSON J:   If she had the spray can for the purpose of using it unreasonably in all the circumstances in her self‑defence, then that would not be a lawful purpose, but that is not this case.

MR HOWIE:   It was this case.

DAWSON J:   No, the occasion had not arisen which she feared, so you could not really say what was reasonable.

McHUGH J:   Asked what she used it for, she said, “To spray at someone if they attack me”.  That was the purpose.  Why is that not a lawful purpose?

MR HOWIE:   We would say because in all the circumstances there was - to go back to the cases, there was no reasonable grounds for that purpose.  I know I am reading something else into - I appreciate the argument against me.  I can only say really that it is brought into the concept by the requirement that it be lawful and that the concept that is being relied upon here is self‑defence which requires some relationship, some proportionality between what the person does and some proximity between the actions and the fear that causes it.  That is the only basis upon which the argument can be brought and that is the argument we put in the submissions.

DAWSON J:   You have had a hard time, Mr Howie.  We need not trouble you, Mr Kintominas.

There will be a grant of special leave in this case.

AT 12.25 PM THE MATTER WAS CONCLUDED