Wallace-Neil v Bull
[2023] WASC 424
•7 NOVEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WALLACE-NEIL -v- BULL [2023] WASC 424
CORAM: SOLOMON J
HEARD: ON THE PAPERS
DELIVERED : 7 NOVEMBER 2023
FILE NO/S: SJA 1054 of 2023
BETWEEN: JOSHUA JACK WALLACE-NEIL
Appellant
AND
JASON BULL
Respondent
ON APPEAL FROM:
For File No: SJA 1054 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R YOUNG
File Number : PE 44653 OF 2022
Catchwords:
Criminal law - Single judge appeal - Appeal against conviction - Whether guilty verdict is unreasonable or cannot be supported by the evidence - Carrying articles/weapons with intent to cause fear - Statutory presumption of intent - Reasonable grounds for suspecting - Whether contrary intention proved
Legislation:
Criminal Appeals Act 2004 (WA)
Weapons Act 1999 (WA) s 8, s 8(2)
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | MGM O'Connor Lawyers |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Roebuck v Beadle [2009] WASC 236
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SOLOMON J:
Background
This is an application for leave to appeal and, if leave if is granted, an appeal against a decision of the Magistrates Court under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA).
On 24 September 2022 at approximately 11:20pm, Mr Joshua Wallace‑Neil arrived at a police traffic stop on Little Parry Street in Northbridge, Perth. Mr Wallace‑Neil was in the backseat of the vehicle, which was being driven by a friend.
Mr Wallace-Neil became argumentative with the police officer at the traffic stop, Senior Constable Bull. Senior Constable Bull 'took hold' of Mr Wallace‑Neil,[1] and saw what he believed to be a knife in Mr Wallace‑Neil's pocket.
[1] Transcript, Western Australia Police v Joshua Jack Wallace-Neil, Perth Magistrates Court, 8 June 2023, 15.
Senior Constable Bull then placed Mr Wallace‑Neil in handcuffs and conducted a search of his person. A small folding knife was located clipped to the right pocket of Mr Wallace‑Neil's shorts. Only the clip of the knife was visible prior to the search, and the knife was folded at the time it was located by police.
Mr Wallace-Neil's explanation was that he worked as a tree lopper, and that he also used the knife for tasks around his property. Mr Wallace‑Neil said he had forgotten to take the knife out of his pocket when he left his house.
Mr Wallace-Neil was charged, relevantly, with possessing an article with intent to cause fear, contrary to s 8(1)(b) of the Weapons Act 1999 (WA) (Charge PE 44653 of 2022).
Section 8 of the Weapons Act provides:
8.Other articles carried or possessed as weapons
(1)Except as provided in subsections (3) and (5) and section 10, a person who carries or possesses an article, not being a firearm, a prohibited weapon or a controlled weapon, with the intention of using it, whether or not for defence —
…
(b)to cause any person to fear that someone will be injured or disabled by that use,
commits an offence.
Penalty: imprisonment for 2 years and a fine of $24,000.
(2)A person is presumed to have had the intention referred to in subsection (1) if —
(a)the article was carried or possessed in circumstances that give reasonable grounds for suspecting that the person had the intention; and
(b)the contrary is not proved.
(emphasis added)
Magistrates Court Trial
At the Magistrates Court trial on 8 June 2023, Mr Wallace‑Neil gave evidence that he used the knife around his property for various tasks, such as cutting rope and opening furniture boxes. He maintained that he had forgotten to remove the knife from his pocket when he left his home that night to meet up with friends.
In cross-examination, Mr Wallace‑Neil stated that he had left his home 90 minutes prior to being stopped by police, and that the clothes he was wearing at the traffic stop were the clothes he had been wearing all day. Mr Wallace‑Neil denied knowing that the knife was in his pocket at the traffic stop.
Body-worn camera footage of Mr Wallace‑Neil's interaction with police was also tendered at the trial.
Mr Wallace-Neil's mother, Mrs Marie Neil, gave evidence that Mr Wallace‑Neil was in the process of being diagnosed with attention‑deficit hyperactivity disorder (ADHD), and that he was often forgetful. Mrs Neil also gave evidence that knives are frequently used around the property where she lives with Mr Wallace‑Neil, a semi‑rural property of 11 acres.
Magistrate's reasoning
The learned magistrate was satisfied that the knife was in Mr Wallace‑Neil's possession and did not accept that Mr Wallace‑Neil was unaware of the knife at the time he was stopped by police.
However, in relation to s 8(2) of the Weapons Act, the learned magistrate made the following remarks:
[T]he notion of proving the contrary - so that's proving that the item was not possessed with intention to - to cause fear of injury or - or disablement - cannot mean, in my view, that that would be satisfied merely by a - a denial of a person that they such an intention.
If that were the case, it would be almost impossible for the Prosecution to ever successfully mount a prosecution under this provision because every time that it came up, the accused would just say, well I had no intention of using it for anything, and - and very often that is the case. So a person has a knife in their pocket, pepper spray, a taser, whatever it might be, if they could simply come to court and say, well I wasn't going to use it, then that would be almost impossible for the Prosecution to succeed in relation to this - this provision.
…
So having regard to that, in my view, the - the notion of proving the contrary must be proving that there were no reasonable grounds for suspecting, rather than proving that there was indeed no intention. For if it were the latter, then I repeat; it would be almost a mere assertion that there was no intention would be sufficient to defeat almost every prosecution under this provision. So having regard to that, I'm therefore not satisfied that Mr Wallace-Neil has proven the contrary. I certainly don’t find there is any sinister element to his possession of it, despite the oddity of it being conveyed for such a lengthy period.
(emphasis added)
The magistrate entered a judgment of conviction in respect of PE 44653 of 2022, sentenced Mr Wallace‑Neil to a $400 fine, and granted a spent conviction order in respect of that offence. Mr Wallace‑Neil was also ordered to pay costs in the sum of $264.30.
Legal principles - appeals
As this is an appeal under div 2 of pt 2 of the Criminal Appeals Act, leave to appeal is required.
Section 7(1) of the Criminal Appeals Act provides as follows:
A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
Section 6 of the Criminal Appeals Act provides that a 'decision' of a court of summary jurisdiction means, relevantly, 'a decision to convict an accused of a charge, whether after a plea of guilty or after trial'. The decision to enter a judgment of conviction after trial in respect of PE 44653 of 2022 was a decision within s 6(c) of the Criminal Appeals Act.
The court must not grant leave to appeal unless a ground has reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[2]
[2] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
Grounds of appeal
Mr Wallace-Neil appealed the decision of the learned magistrate on two grounds. Ground 2 was:
The guilty verdict should be set aside because, having regard to the whole of the evidence, it is unreasonable or cannot be supported.
The respondent conceded ground 2. That concession in my view was correctly made and the appeal must therefore be allowed for the reasons that follow.
In Roebuck v Beadle [2009] WASC 236, Hall J (as his Honour then was) explained the operation of s 8(2) of the Weapons Act:[3]
Bearing in mind that s 8 is intended to operate at a point in time prior to the use of the weapon either to injure or to cause fear, proof of intention is likely to be more difficult. The intention of a person who has used a weapon or is brandishing it and making threats to those who are present can be readily inferred. The intention of a person who is carrying an article but has yet to use it is not necessarily as apparent. No doubt for these reasons the legislature included s 8(2).
The effect of s 8(2) is that if the prosecution proves that the circumstances in which the article was carried or possessed are such that there would be reasonable grounds for suspecting that the person carrying the article has the intention of using it to injure or to cause fear then the person is presumed to have that intention unless the contrary is proved. Whilst the prosecution bears the onus of proving the circumstances which give rise to reasonable grounds for suspicion, once those circumstances have been established to the requisite standard the onus effectively shifts to the defendant.
For the 'contrary' to be proved in terms of s 8(2)(b) would usually necessitate that there be some evidence adduced by the defendant that no intention to injure or cause fear was held. Whilst it is conceivable that there may be evidence in the prosecution case which the defence could seek to rely on as negating an intention, this would also be taken into account in assessing the 'circumstances' and whether they give rise to a reasonable suspicion that such an intent is held. In my view, s 8(2)(b) requires a consideration of all of the proven circumstances; the prosecution could not rely on only some of the circumstances and ignore others which may qualify or negate suspicions as to the intent of the person.
Accordingly, in respect of s 8(2) the finder of fact would need to ask two questions. Firstly, whether circumstances have been proven that give reasonable grounds for suspecting that the defendant had an intention to use the article to injure or to cause fear and, secondly, whether there is evidence that would establish that it is more likely that the defendant did not have such an intention. In simple terms, where the circumstances are sufficiently suspicious, the intention will be presumed unless some explanation will satisfactorily negate that an intention of the requisite type was held. That explanation may be bolstered or supported by some of the circumstances.
It is important to note that the circumstances have to be assessed on an objective basis and that it is not necessary for the finder of fact to personally hold a suspicion as to the necessary intent.
…
When applied to s 8 of the Weapons Act, this means that the proven circumstances do not need to establish, either directly or by inference, that an intention was held. There need only be a basis for a reasonable person to have a 'positive feeling of actual apprehension or mistrust' that the person was carrying the article with the intention of using it to injure or cause fear. Whilst this is a very low threshold, it does not obviate the need for the prosecution to establish the circumstances upon which it relies beyond reasonable doubt and for those circumstances to then be clearly identified by the magistrate. The circumstances must be of such a quality as to be capable of raising an apprehension in the mind of a reasonable person that the defendant had the relevant intent.
[3] Roebuck v Beadle [2009] WASC 236 [16] - [18], [22] - [23], [25].
It is plain from reading the provision and the explanation of Hall J that an objective assessment of the circumstances under s 8(2)(a) may ground the presumption of the requisite intention. However, rebuttal of that presumption under s 8(2)(b) is not necessarily or even primarily a product of the objective assessment of the circumstances. The rebuttal of the presumption may be demonstrated by evidence of the subjective intention of the alleged offender irrespective of the objective impression created by the circumstances. Whether that rebuttal will be demonstrated by a denial of intent by the accused depends upon the magistrate's findings of credibility as to the accused's account and the assessment of the evidence as a whole.
As noted at [13] above, the learned magistrate said that the rebuttal under s 8(2)(b) required proof that 'there were no reasonable grounds for suspecting, rather than proving that there was indeed no intention'. It follows from what is set out above that this was not a correct reflection of the way the statutory provision should be understood and applied.
It was on the basis of the erroneous construction of the statutory provision that the learned magistrate was 'therefore not satisfied that Mr Wallace‑Neil ha[d] proven the contrary'. Moreover, the learned magistrate found as a matter of fact that Mr Wallace‑Neil did not have 'any sinister element to his possession of [the knife]'. In plain terms, the learned magistrate appears to have found that Mr Wallace‑Neil did not have the intention required by s 8(1)(b). On a correct understanding of s 8, that was sufficient to acquit Mr Wallace‑Neil.
It follows that ground 2 is made out, leave to appeal must be granted and the appeal should be allowed.
Conclusion
I therefore find that the judgment of conviction imposed in respect of PE 44653 of 2022 was unreasonable and unsupported by the evidence, and that ground 2 of the appeal is made out.
In the circumstances, the parties agreed that it is unnecessary to assess the merits of ground 1.
I therefore make the following orders, which were the subject of a consent notice signed by the parties on 23 October 2023:
1.Leave to appeal is granted on ground 2.
2.The appeal is allowed on ground 2.
3.The appeal is otherwise dismissed.
4.The conviction, sentence and costs order relating to charge PE 44653/2022 are set aside.
5.A verdict of acquittal is substituted for the offence the subject of charge number PE 44653/2022.
6.The Appellant is entitled to his costs of the proceedings in the Magistrates Court under the Official Prosecutions (Accused's Costs) Act 1973 (WA), fixed in the sum of $429.
7.The Appellant is entitled to costs of the appeal under the Official Prosecutions (Accused's Costs) Act 1973 (WA), fixed in the sum of $3,482.30.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
YM
Associate to the Honourable Justice Solomon
7 NOVEMBER 2023
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