VERDIGLIONE v Police - [2007] SASC 349

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VERDIGLIONE v POLICE
[2007] SASC 349
Judgment of The Honourable Justice Kelly
28 September 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS
Appellant convicted of carrying an offensive weapon contrary to s 15(3) Summary Offences Act 1953 (SA) - appellant alone in car at night with baseball bat underneath driver's seat - whether baseball bat is an offensive weapon. Held: baseball bat is an offensive weapon for the purpose of s 15 Summary Offences Act 1953 (SA). Appeal dismissed.
Summary Offences Act 1953 (SA), s 15(3); Police Act 1936 (SA), s 85; Police Offences Act 1953 (SA), referred to.
Darling v Police (2003) 228 LSJS 59, applied.
Coleman v Zanker (1991) 58 SASR 7; Freundt v Hayes (1992) 59 A Crim R 430, not followed.
Considine v Kirpatrick [1971] SASR 73, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"club"

VERDIGLIONE v POLICE
[2007] SASC 349
Magistrates Appeal: Criminal

KELLY J. At about 10.00 pm on 11 November 2005 the police found the appellant alone sitting in the driver’s seat of an unlit car on Stradbroke Road, Rostrevor.
On the front passenger seat of the vehicle was a small plastic bag containing a white crystalline substance. When the police asked the appellant if it was “speed” he replied in the affirmative. In the course of the search police also found an aluminium baseball bat protruding from under the driver’s seat between the seat railing and the centre console. The appellant told the police that he had put the baseball bat under the seat about two or three years earlier. He told the police he did not play baseball. However, he also denied ever using it to hit anyone or keeping it in his car to use as a weapon if needed. He offered no explanation to the police for carrying the bat in his car. At the trial the appellant did not give evidence.
On 25 June 2007 a magistrate found the appellant guilty of carrying an offensive weapon without lawful excuse. In reaching a verdict of guilty the magistrate reasoned that the definition of “offensive weapon” contained in s 15(3) of the Summary Offences Act 1953 (SA) (“the Act”) includes a baseball bat. Alternatively, she concluded that the baseball bat had taken on the character of being an offensive weapon within the wider definition of other offensive weapon in s 15(3) of the Act.
The appellant challenged both conclusions reached by the magistrate. It was argued that a baseball bat is not one of the specified objects, nor on the facts established before the magistrate, was there sufficient evidence to have satisfied the magistrate that the bat was an “other offensive weapon” within the wider definition of the section.
At the hearing of the appeal the respondent conceded that there was insufficient evidence to satisfy the magistrate that the baseball bat fell within the wider definition of other offensive weapon. In the light of that concession the point was not further argued by either the appellant or the respondent on appeal. For that reason I prefer to express no concluded view as to whether, on the facts of this matter, the baseball bat could be characterised as an offensive weapon within the wider definition.
Because of the respondent’s concession there remains only one issue for me to consider on appeal and that is whether a baseball bat is an offensive weapon by reason of it answering the description of one of the objects specified in the definition in s 15(3) of the Act. In my respectful view the magistrate’s conclusion that it is, is correct for the reasons which follow.
The definition of an offensive weapon contained in s 15(3) of the Act is:
(3)Offensive weapon includes a rifle, gun, pistol, sword, knife, club, bludgeon, truncheon or other offensive or lethal weapon or instrument…
The respondent argues that a baseball bat is a “club”. It is well established that whether a particular object is caught by the section depends on whether it answers the description of one of the specified objects, or falls within the wider category of “other offensive or lethal weapon or instrument”. In the latter category whether the object can be described as an offensive weapon will depend on its nature or on the intention with which it was used on the occasion of the alleged offence: Considine v Kirkpatrick [1971] SASR 73. If the object falls within the former category then the only issue is whether the appellant can show on the balance of probabilities that he was carrying it for a lawful purpose: Darling v Police (2003) 228 LSJS 59.
The precursor to s 15(3) of the Act was s 85 of the Police Act 1936 (SA). That provision contained only the words “gun”, “pistol”, “sword” and “bludgeon”. The words “club” and “truncheon” were added to the list of specific inclusions in the Police Offences Act 1953 (SA) and the Act. Little assistance is to be gained from the second reading speeches when the relevant amendments were made to the definition in 1953. There was a general reference to the inappropriateness of some of the language in the previous Acts, which the Minister described as no longer appropriate in the South Australian community. There was a further reference to the fact that the new Bill did make some minor amendments to the substance of some of the offences where modern conditions appeared to require such amendments. I have therefore resorted to a number of commonly used dictionaries to ascertain what is the current ordinary meaning of the word “club”. The Oxford Dictionary describes a club as:
1.A thick stick, a heavy stick or staff for use as a weapon, thin enough at one end to be grasped with the hand, and increasing in thickness and weight towards the other end; also a special form for use in athletic exercises.
2.A stick or bat used in various games of ball.
The Macquarie Dictionary:
1.A heavy stick, usually thicker at one end than at the other, suitable for a weapon; a cudgel.
…
3.A stick or bat used to drive a ball, etc; in various games.
Webster’s Dictionary of the English Language describes a club as:
1.A stick or piece of wood, usually with one end thicker and heavier than the other, used as a weapon.
2.A variously shaped stick or bat used in certain games. …
In some dictionaries the meaning of “club” and “bat” is interchangeable as the following extracts demonstrate.
The Macquarie Dictionary contains the following definition of bat:
1.     The club used in certain games, as cricket and baseball, to strike the ball.
2.     A heavy stick, club or cudgel.
The Oxford Dictionary describes a bat as:
1.     A stick or stout piece of wood.
2.     A stick, a club, a staff for support and defence.
Webster’s Dictionary describes a bat as:
1.     Any stout club, stick or cudgel.
2.     A club used in striking a ball in baseball and cricket …
The conclusion that a baseball bat is a particular type of club is uncontroversial if the word “club” is given its current ordinary meaning. Is there any reason why for the purposes of s 15 of the Act the word “club” should not be given its current plain ordinary meaning? The appellant says there is. He argues that if the word “club” in s 15 is not read down to exclude sticks and bats commonly used for sporting purposes, it would lead to the harsh and possibly absurd result that every sporting stick or bat used in various ball games is an offensive weapon.
The issue for decision in this case is whether the aluminium baseball bat in question here answers the description of a club within the specific inclusion in s 15 of the Act.
Looked at as a group the named inclusions in s 15(3) of the Act all have one thing in common. They are all objects which could be described as intrinsically, potentially dangerous in the sense that they are all capable of being used to inflict physical harm on others. Some have uses which are neither dangerous nor unlawful. It is true that a baseball bat is commonly used for sporting purposes. However, it is also a fact that baseball bats can be and are, not uncommonly these days, used for unlawful purposes to inflict physical harm.
The appellant nevertheless argues that the word “club” should be limited by its context in conjunction with “bludgeon” and “truncheon”. He submits that it can be inferred from this context that Parliament intended to limit the meaning of the word “club” only to those objects which fall within the category of bludgeons and truncheons. In my view this argument cannot be accepted for two reasons.
First, to accept that interpretation would involve a degree of circular reasoning. A bludgeon itself is described in a number of dictionaries commonly as:
A short, heavy club with one end loaded, or thicker and heavier than the other. (Macquarie Dictionary)
The word “truncheon” is described in a number of dictionaries commonly as including:
A short thick staff, club, a cudgel. (Most frequently in modern usage, a short staff or club with which a police constable is armed.) (Oxford Dictionary)
Second, the words “club” and “truncheon” were added to the section by later amendment.
If the appellant’s argument is accepted, the inclusion of the word “club” is really quite superfluous. As a general principle I accept that this Court should strive to give the additional words included meaning and effect unless an obvious intention to the contrary can be inferred. Here the purpose of s 15 of the Act, one might reasonably infer, is to ensure that police have authority to seize certain items capable of being used to inflict serious physical harm when they are being carried by people without lawful authority. That is to say, before any harm is actually caused.
Broadly speaking the specific objects included fall within three classes, namely firearms, sharp objects, and blunt objects. As I have already observed, they all have in common the capacity to inflict serious physical harm if misused. If the appellant’s argument is accepted then “club” would have to be read down to mean any club except one of a type commonly used in sporting games.
In all of the circumstances I can see no good reason why the meaning of “club” should be limited in the way suggested by the appellant.
The effect of an interpretation which gives “club” its ordinary current meaning does not, in my view, produce a result as draconian as the appellant suggests. A person lawfully carrying a baseball bat for a sporting purpose would not be guilty of the offence in s 15. All that the section requires is that a person prove on the balance of probabilities that the particular object or instrument is carried for a lawful purpose. A sporting purpose would be one obvious lawful purpose. It is unlikely that a person would ever be charged if the bat was carried in company with other accoutrements of a sporting game.
I briefly mention the appellant’s alternative argument, that even on the assumption that it is a club within the meaning of s 15(3) of the Act, the test enunciated in Coleman v Zanker (1991) 58 SASR 7 should be applied. In that case and another decision shortly thereafter, Freundt v Hayes (1992) 59 A Crim R 430, Olsson J held with respect to a knife, that before it could be categorised as an offensive weapon, the prosecution needed to prove that on the specific occasion alleged the person charged intended to use the knife as a weapon.
In my respectful view the approach taken by Duggan J in Darling is to be preferred. Duggan J held in relation to a knife that the prosecution is entitled to rely on its specific inclusion in the primary definition of offensive weapon. It was said that once that fact was established there was no need for the prosecution to prove that on the specific occasion there was an intention to use it as a weapon. Although those cases were dealing with an issue concerning knives, also included as a specific inclusion in s 15(3), I consider his Honour’s reasoning in Darling to be equally applicable to the facts of this case. If the baseball bat falls within the definition of a club then that is the end of the matter. I find on the facts of this case that it does.
The only other issue for the magistrate was whether the appellant discharged the onus of proving on the balance of probabilities he had the baseball bat for a lawful purpose. Here the appellant did not proffer any lawful excuse at all for carrying the bat in his car. In the circumstances, the appellant having offered no explanation for its presence, the conclusion of the magistrate that the defence had not been established was inevitable.
For these reasons I would dismiss this appeal.