Yuen v Police
[2012] SASC 149
•30 August 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
YUEN v POLICE
[2012] SASC 149
Judgment of The Honourable Justice White
30 August 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - WHEN OBJECTION NOT TAKEN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - OTHER OFFENSIVE WEAPONS - WITHOUT LAWFUL EXCUSE
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - OTHER CASES OF AMENDMENT
Appellant convicted by Magistrate of five weapons offences - appeal against all convictions.
Whether police search unlawful - whether suspicion held at time of entry of premises was sufficient for a continued search after the items which were the subject of that suspicion had been located - whether appellant's failure to object to the admission of the evidence of the continued search at the proper time precluded later challenge to its admission - whether Magistrate erred in failing to exclude unlawfully obtained evidence in exercise of her discretion - whether being a collector amounts to a "lawful excuse" within meaning of s 15(1b) Summary Offences Act 1953 - whether Magistrate erred in using Sch 3 of Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 when considering s 15(1b) - discussion of meaning of "lawful excuse" in s 15(1b) - whether fact that knives not double-edged should have resulted in acquittal on Counts 7 and 8 - whether Magistrate's amendments of Complaint in the course of her reasons was authorised by s 181 Summary Procedure Act 1921 - whether the amendments denied appellant procedural fairness - whether appellant's Ka-Bar knives "designed or adapted for hand to hand fighting" so as to be "prohibited weapons" within the meaning of s 15(1c)(b) Summary Offences Act 1953.
Held: appeal dismissed - continued police search unlawful - police must hold the requisite suspicion at the time of each activity authorised by s 32(3) of the Firearms Act 1977 - applications for the exclusion of admissible evidence on discretionary grounds should be made at or before the evidence is adduced or tendered - Magistrate correct in declining to exclude evidence on discretionary grounds - being a collector does not amount to a "lawful excuse" within meaning of s 15(1b) - Magistrate erred in using Sch 3 to consider s 15(1b) - "lawful excuse in s 15(1b) means positively authorised by law - Magistrate not obliged to acquit of Counts 7 and 8 upon finding knives not to be double-edged - Magistrate empowered by s 181 to amend Complaint as she did, subject to procedural fairness requirements - Magistrate did deny appellant procedural fairness by amending Complaint in her reasons - appellant's Ka-Bar knives designed or adapted for hand to hand fighting.
Acts Interpretation Act 1915 (SA) s 19; Crimes Act 1900 (NSW) s 545E; Crimes Act 1914 (Cth) s 10; Firearms Act 1977 (SA) s 32, s 33; Police Act 1892 (WA) s 66; Summary Offences Act 1953 (SA) s 5, s 15; Summary Procedure Act 1921 (SA) s 68, s 69, s 181; Firearms Regulations 2008 (SA) reg 38, reg 61; Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 (SA) Sch 1, Sch 2, Sch 3, referred to.
Crafter v O'Reilly [1934] SASR 20; Cornelius v The King (1936) 55 CLR 235; MacPherson v The Queen (1981) 147 CLR 512; R v Little (1976) 14 SASR 556; Roddan v Walker (1997) 94 A Crim R 170; Stirland v Director of Public Prosecutions [1944] AC 315, distinguished.
Ayles v The Queen (2008) 232 CLR 410; Bick v Keogh, Registrar of Firearms Unreported, Supreme Court of Victoria, 13 April 1992; Bunning v Cross (1978) 141 CLR 54; Crafter v Kelly (1941) SASR 237; Coleman v Zanker (1991) 58 SASR 7; Ercegovic v Higgins (1987) 45 SASR 189; Foxtel Management Pty Ltd v The Mod Shop Pty Ltd (2007) 165 FCR 149; Knights v Pipersberg Unreported, Supreme Court of Victoria, 6 June 1991, Judgment No 9038/91; Kyriakopoulos v Police [2006] SASC 72; Maguire v Modra (2010) 107 SASR 198; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 154 LGERA 60; Ousley v The Queen (1997) 192 CLR 69; Police v Hailemariam (1999) 201 LSJS 471; R v Hudson (1996) 189 LSJS 22; R v Horsfall [1981] 1 NZLR 116; R v Ireland (1970) 126 CLR 321; R v P [1996] 1 VR 402; R v Reid (2007) 250 LSJS 240; R v Robinson [1996] 1 VR 402; R v Roissetter [1984] 1 Qd R 477; R v Trotter (1992) 60 A Crim R 1; Robey v SA Police (1993) 18 MVR 121; Schultz v Pettitt (1980) 25 SASR 427; Stead v State Government Insurance Commission (1986) 161 CLR 141; Surman v SA Police (1996) 65 SASR 421; Taikato v The Queen (1996) 186 CLR 454; Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361; Trimboli v Onley (No 3) (1981) 56 FLR 321, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"lawful excuse;", "designed or adapted."
YUEN v POLICE
[2012] SASC 149Magistrates Appeal
WHITE J. The appellant was convicted by a Magistrate of five weapons offences and acquitted on four others. All the offences were alleged to have been committed on 28 October 2009. The appellant appeals against the convictions.
The prosecution case was to the following effect: two police officers attended at the appellant’s home on 28 October 2009 for the sole purpose of seizing three replica firearms under s 32 of the Firearms Act 1977 (SA).[1] Initially the appellant refused them entry but, on being warned about hindering police,[2] he permitted them to enter the home.
[1] By amendments to the Firearms Regulations 2008 (SA) which came into effect on 1 October 2009, the possession of “imitation” firearms was made unlawful.
[2] Section 33 of the Firearms Act1977 (SA).
The appellant took the police officers to a bedroom cupboard in which the replicas were kept and the police seized them. They then searched the bedroom and located a bolt‑action Winchester rifle (the subject of Count 1), two knives described as “double‑edged” by the police witnesses (the subject of Counts 7 and 8), and two bayonets (the subject of Counts 5 and 6). In another bedroom the police found an air rifle (the subject of Counts 2 and 3) and some ammunition for an air rifle (the subject of Count 4). Finally, the police found a third “double‑edged” knife (the subject of Count 9).
The appellant was acquitted of Counts 2, 3 and 4 which related to the air rifle and its ammunition. There was evidence that they belonged to his father and the Magistrate was not satisfied that the appellant was in possession of them. The appellant was also acquitted of Count 9 because the Magistrate was not satisfied that a knife of its particular type was a prohibited weapon for the purposes of s 15(1c)(b) of the Summary Offences Act 1953 (SA) (SOA).
In relation to the bolt‑action Winchester rifle, (Count 1) the appellant was convicted of the offence of failing to keep it secured in accordance with reg 38(1) of the Firearms Regulations 2008.[3] In relation to the two bayonets (Counts 5 and 6), the appellant was convicted of offences under s 15(1b)(b) of the SOA, namely, possession without lawful excuse of a dangerous article. Finally, in relation to the two knives which were the subject of Counts 7 and 8, the appellant was convicted of possessing a prohibited weapon (particularised in each case in the Complaint as a double‑edged knife), contrary to s 15(1c)(b) of the SOA.
[3] Regulation 61 creates the offence of contravening a requirement contained in the Regulations.
The notice of appeal contains 10 separate grounds of appeal. Ground One was abandoned.
Grounds 2 and 3: Evidence of the Search
The appellant contended that, after seizing the three replica firearms, the police had no basis to carry out any further search of his home and, in particular, the search which led to the seizure of the items which were the subject of Counts 1-9. Even if some further suspicion arose after the police found the bolt-action Winchester rifle, the search which had led to it being found[4] was unlawful, with the effect that all that followed was also unlawful. That was because, upon effecting the seizure of the three replicas, the purpose of their entry had been fulfilled and there was no circumstance justifying them engaging in some wider search. He submitted therefore that their continued search was unlawful, with the effect that the Magistrate’s discretion to exclude the admission into evidence of the items located by the police had been enlivened.
[4] The evidence that the police did carry out a search which led to their finding the bolt‑action Winchester rifle is incomplete, but that does appear to be the effect of Constable McInerney’s evidence at Tx 8, lines 8-9.
Was the Police Search Unlawful?
It was common ground that the powers of search and seizure being exercised by the two police officers at the relevant time were those contained in s 32 of the Firearms Act. Section 32(3) provides:
(3)A police officer may break into, enter and search any premises in which the police officer suspects on reasonable grounds—
(a) there is a firearm, licence, mechanism, fitting or ammunition liable to seizure under this section; or
(b) a firearm is kept contrary to the security requirements of this Act.
It can be seen that s 32(3) authorises a police officer to break into, enter and search any premises in which the police officer suspects on reasonable grounds that, amongst other things, there is a firearm liable to seizure under s 32.
The appellant accepted, as I understood it, that his three replica firearms were liable to seizure.
The investigating officer, Constable McInerney, said that at the time of entry to the premises he was aware that the appellant had another registered firearm and that he wished to inspect it. He acknowledged, however, that he did not have a suspicion that the appellant had committed any other offence, or that he had any other firearm or item liable to seizure under s 32, or that the appellant was keeping a firearm in a manner which did not comply with the security requirements of the Act. Although he did not say so expressly, it was implicit in Constable McInerney’s evidence that he accepted that the three replicas which the appellant produced to him were the particular replicas which were the subject of his suspicion. Finally, Constable McInerney acknowledged that after locating the replica firearms he did not have any other suspicion about any other matter under the Firearms Act which may have entitled him to carry out his search.
The Magistrate considered that, upon their location of the replica firearms, the police had exhausted their entitlement under s 32(3) to search for those particular items. She concluded, however, that s 32(3) does not require police to cease a search immediately upon finding the particular object which was the subject of their suspicion at the time of their entry. The Magistrate held:
I consider s 32(3) gives the police officer who suspects on reasonable grounds that a firearm is being kept contrary to the security requirements of the Act, authority to break into, enter and search the premises. I do not consider the police officer is obliged at the time of locating the firearm, which formed the basis of the original suspicion, to cease any search once that firearm is located in a situation such as this, where it was obvious there were other items of a military nature located throughout the house.[5]
The Magistrate held accordingly that the police officers’ continued search of the appellant’s premises after locating the three replicas was lawful.
[5] [2012] SAMC 8 at [16].
Plainly enough, the powers of the police to break into, enter and search premises under s 32(3) of the Firearms Act are contingent upon them having the requisite suspicion.[6] The question is whether it is sufficient that police officers had the requisite suspicion at the time of entry of the premises even if, after their entry, that suspicion ceases or is dispelled.
[6] Ercegovic v Higgins (1987) 45 SASR 189 at 197; R v Hudson (1996) 189 LSJS 22 at 25.
The evident purpose of s 32 to facilitate enforcement of the Firearms Act and thereby to promote the protection of the community is not to be overlooked. However, search provisions of the kind contained in s 32(3) involve an infringement of personal liberty and privacy and are therefore to be construed strictly.[7]
[7] Tran Nominees Pty Ltd v Scheffler (1986) 42 SASR 361 at 384-5; R v Trotter (1992) 60 A Crim R 1 at 8; Ousley v The Queen (1997) 192 CLR 69 at 105.
On its face, subs (3) authorises three distinct kinds of activities by police officers who have the requisite suspicion: breaking into, entering and searching. Although those activities may frequently be carried out in combination, it does not seem appropriate to regard the expression “break into, enter and search” as describing a composite activity. Some of the activities may be performed without another, for example, if a householder permits the police to enter the premises, it will not be necessary for them to break in. That was the circumstance in the present case. Further, the three activities may be separated in time and, to an extent, by space. Depending on the circumstances with which they are confronted on entering premises, police officers may not commence a search immediately after their entry and, in large premises, may carry out their search some distance away from the point of entry.
It is easy to envisage circumstances in which a police officer who had the requisite suspicion to justify breaking into premises may cease to have that suspicion shortly afterwards. Householders may, for example, be able to dispel a suspicion that they are in possession of an unregistered firearm by producing evidence of its current registration; or by demonstrating a misapprehension by police officers as to the identity of the premises which they have entered.
These matters suggest that there is good reason to construe s 32(3) as requiring police officers to have the requisite suspicion at the time of each of the activities which it authorises.
Such a construction is consistent with that adopted by Holland J in Trimboli v Onley (No 3)[8] in relation to the former s 10 of the Crimes Act 1914 (Cth). That provision authorised a justice of the peace, if satisfied that there were reasonable grounds to suspect, amongst other things, that there was present in a place something which would afford evidence of the commission of an offence, to issue a search warrant authorising a police officer to enter the place and to seize that thing. After observing that there were a number of separate acts involved in the execution of a warrant (the entry, the search, a period of possession while inspecting the located item, the seizure and the detention) Holland J continued:
Next comes an important question in the present case. At what time must the belief be held for a seizure and subsequent detention to be lawful? In my opinion, the only possible answer is that the belief must exist at every point at which lawfulness is claimed under the warrant for taking and keeping another’s property. It must exist contemporaneously with the act of seizure. Thereafter it must exist at least whenever it is sought to justify retention of the property under the warrant.[9]
[8] (1981) 56 FLR 321.
[9] Ibid at 335.
I referred earlier to the possibility that a police officer’s suspicion when first entering premises may be dispelled before breaking into, or entering premises which the officer intends to search. Johnston J adverted to this possibility in Ercegovic v Higgins.[10] Once that is accepted, it is reasonable to suppose that information or observations made by a police officer after obtaining entry but before commencing, or during, a search may have the same effect.
[10] (1987) 45 SASR 189 at 194.
Section 32(3) should also be construed in the context of s 32 as a whole. Section 32 vests police officers with a wide range of powers including the power to require the production of a firearm or a licence (subss (a1) and (1a)) respectively; to seize firearms and other items (subss (1), (1aa), (1ab)); to search and detain vehicles (subs (2a)); and to inspect the means by which firearms are secured (subs (2a)). In this context it does not seem necessary to give subs (3) an enlarged construction in order that the enforcement of the Firearms Act may be facilitated.
The present case provides an example in this respect. If Constable McInerney wished to inspect the firearm registered to the appellant of which he had knowledge, he could simply have required its production to him under subs (a1).
The mere presence of militaria in the room in which the appellant kept the three replicas was not sufficient by itself to justify Constable McInerney’s further search. In any event, he did not claim that the presence of the militaria had given rise to some new or additional suspicion.
For these reasons I consider that the Magistrate erred in concluding that Constable McInerney’s continued search, after being handed the three replicas and without having any further suspicion, was lawful.
Absence of Objection at Trial
Although the claimed unlawfulness of the police search was a prominent part of the appellant’s submissions on appeal, it was a matter which he raised only belatedly in the trial. The prosecution was permitted to lead the evidence of the police search and to tender the items seized by the police without any objections from the appellant, or any request for a voir dire. This was despite the fact that in correspondence to the prosecution before the trial, the appellant’s counsel had raised issues concerning the lawfulness of the police search. The omission of counsel at trial to raise an objection at the trial or to seek a voir dire was unexplained. The appellant’s cross‑examination of Constable McInerney was completed on the first day of the trial.
On the resumption of the trial (after an adjournment of about two months), the appellant was granted permission to have Constable McInerney recalled. It was in the course of some further cross‑examination that counsel elicited the concessions upon which the appellant now relies for his submission that the police search was unlawful.
At the conclusion of the prosecution case, the appellant made a submission of no case to answer. In the course of that submission, he raised for the first time the lawfulness of the search and sought the exclusion of the evidence concerning the items located by the police. The Magistrate rejected that submission. The trial transcript does not contain any reasons from the Magistrate for that ruling, but it was presumably influenced by her view that the police search was not unlawful.
I add that the appellant (a legal practitioner) was represented throughout the trial by counsel who, as I understand it, has considerable experience in trials in the Magistrates Court.
The question of whether the appellant’s failure to object at the proper time to the evidence of Constable McInerney, and to the tender of the seized items, precluded a later challenge to its admission was raised on the appeal. Counsel for the appellant then submitted that an objection to evidence may be taken at any time in the trial, even after the evidence has been tendered and received.
However, many of the authorities to which counsel referred were cases concerning evidence which was not admissible at all, or admissible only on satisfaction of certain conditions, such as proof of the voluntariness of a confession. See for example MacPherson v The Queen;[11] Cornelius v The King;[12] R v Little;[13] and Stirland v Director of Public Prosecutions.[14] Different considerations apply in such cases. They reflect the principle that trials should be conducted according to law and on the basis of admissible evidence.
[11] (1981) 147 CLR 512 at 523, 543.
[12] (1936) 55 CLR 235 at 240
[13] (1976) 14 SASR 556 at 571.
[14] [1944] AC 315 at 327-8.
Evidence obtained by means of unlawfulness or unfair acts is of a different kind as it is not, by that reason alone, inadmissible.[15] Statutory qualification apart, the unlawfulness, when it exists, enlivens a discretion in the Court to reject evidence which is otherwise relevant and admissible. Accordingly, this was not a case in which the Magistrate was asked, belatedly, to exclude evidence which was not admissible at all or which was admissible only upon satisfaction of certain pre‑conditions.
[15] R v Ireland (1970) 126 CLR 321 at 334; Bunning v Cross (1978) 141 CLR 54 at 72.
The circumstances in which a later application to exclude on discretionary grounds previously admitted admissible evidence will be upheld are of a limited and, perhaps, an exceptional kind. Objections on discretionary grounds to the admission of evidence which is otherwise relevant and admissible should be made (at the least) at the time of the tender of that material.[16] That is part of counsel’s responsibility at trial. Trials are not to be conducted on the basis that parties can agitate, at any time, issues concerning the discretionary exclusion of evidence already heard and received. Counsel are bound by their conduct.
[16] This is of course subject to the procedures in the Supreme and District Courts for the determination in advance of the commencement of the trial proper of issues concerning the admissibility of evidence. See r 9 of the Supreme Court Criminal Rules 1992.
This was the approach taken in R v Reid.[17] Defence counsel in a jury trial belatedly sought the exclusion of evidence admitted without objection. Counsel relied on alleged unlawfulness in the use of material seized in the execution of a search warrant. The trial judge refused the application. Vanstone J (with whom Doyle CJ and Layton J agreed) referred to the undesirability of trials being interrupted and juries being kept waiting while trial judges hear arguments which should have been the subject of pre‑trial applications. Her Honour then continued:
But more fundamentally, once the evidence was admitted, without objection, the time for any appeal to the judge’s discretion on account of some theoretical illegality was well past. Counsel are, and must be, bound by their conduct in a trial. Trials will become unmanageable if juries are sent away while counsel are permitted to re-agitate points or rulings or the receipt of evidence after the fact. In my view permission given by the judge to counsel to file a Rule 9 notice as the trial progressed, in relation to exhibits already received, was an indulgence which would have been better refused.
…
I would not wish to be understood as asserting that a decision regarding admissibility of evidence, or even a decision as to discretionary exclusion of evidence, could never be recalled in the course of a trial. Extraordinary circumstances might, I suppose, justify such a course. However, this was a clear case where there was simply no scope for, nor any warrant for, ventilation of the appellant’s new position with respect to the seized items.[18]
[17] [2007] SASC 302; (2007) 250 LSJS 240.
[18] Ibid at [13], [15]; 242.
It will be observed that Vanstone J did not exclude the possibility that circumstances may arise warranting the later exclusion on discretionary grounds of evidence already received, but thought that such a circumstance would be of an “extraordinary” kind.
A trial before a Magistrate does not involve a jury nor a procedure for the filing before trial of applications for the exclusion of prosecution evidence. Accordingly, the rationale stated by Vanstone J does not apply to the same extent in such trials. Nevertheless I consider the underlying principles stated by her Honour to be applicable in the present case. They are an incident of the orderly conduct of a criminal trial.
A party who does not take objection to evidence by the proper time in a trial may face a heavy burden on appeal. Appellate courts are particularly astute to preclude appeals when the absence of objection to the admission of evidence was a forensic decision made by trial counsel. See, for example, R v Roissetter;[19] R v Robinson.[20] The New Zealand case of R v P[21] provides an example of the appellate approach:
As to the principles applicable at the appellate stage, it is necessary for the appellant to show that if objection had been properly taken the Judge would not have admitted the evidence … [i]f there was a tenable basis for admitting the evidence the appellant will fail. …
If the appellant is able to overcome that first hurdle, there is another. The evidence in question must be such as to have had a significant prejudicial effect on the outcome of the trial. … Finally, an overarching requirement is that counsel’s failure to take the objection at trial was a mistake of [a] radical kind …[22]
[19] [1984] 1 Qd R 477.
[20] [1996] 1 VR 402.
[21] [1996] 3 NZLR 132.
[22] Ibid at 135. See also R v Horsfall [1981] 1 NZLR 116. Some authorities indicate, however, that the position may not be so stringent. See, for example, R v Shaw (1991) 57 A Crim R 425.
In the present case, there clearly was a tenable basis for the admission of the evidence to which the appellant now objects. As already indicated, the evidence of the search was relevant and admissible and was only to be excluded in the exercise of discretion in accordance with established principles.
I emphasise again that the present appeal does not involve circumstances in which the evidence was not admissible at all, or only admissible on the Court’s satisfaction of certain pre‑conditions for its admissibility.
In my opinion, the appellant should not now be permitted to complain of the Magistrate’s subsequent refusal, after admitting relevant and admissible evidence without objection, to exclude that evidence on discretionary grounds. The proper time for the objection to be taken was, at the latest, when the evidence was led from the police officer and the items found in the search tendered as evidence. The omission of the appellant’s counsel to make an objection at that time, or to seek a voir dire, has not been explained.
I mention that when the issue arose during the course of the appeal, I permitted counsel to provide after the hearing references to the relevant authorities. I expressly refused permission to counsel to provide any further written submissions or summary of argument. Counsel for the appellant ignored the limits of that permission and provided a supplementary written submission. Counsel for the respondent responded in like fashion. In those circumstances, I ignored the submissions and had regard only to the authorities to which counsel referred.
The Exercise of the Discretion
The Magistrate indicated that even if she had considered that the search of the premises was unlawful, she would not have exercised the discretion to exclude the evidence. She considered that the police officers had not deliberately exceeded their authority, as they believed that s 32(3) of the Firearms Act authorised their continued search. Further, the Magistrate considered the location of the unregistered bolt‑action Winchester rifle amongst the appellant’s militaria was probably sufficient to give rise to a further suspicion that other items liable to seizure may be found in the appellant’s premises. These circumstances led the Magistrate to distinguish Coleman v Zanker[23] upon which the appellant relied.
[23] (1991) 58 SASR 7 at 15.
I agree with the Magistrate’s conclusion on this alternative basis. The above reasons indicate that the reach of s 32(3) may not have been clear at the time. It is understandable that the police officers may have had a misapprehension about the extent of their powers. This does not appear to be a case of police officers deliberately exceeding their authority. Further, the search revealed cogent evidence of offences. It is also pertinent that if the police had required production of the bolt‑action Winchester rifle to them for their inspection under s 32(1), as they were entitled, the appellant’s compliance with that request would probably have revealed his failure to keep that firearm properly secured. This by itself may have led the police to have further suspicions of the requisite kind.
For these reasons I consider that Grounds 1 and 2 of the appeal fail.
Grounds 4-7 – The Claimed “Genuine Collector” Defence
Grounds 4-7 relate to the conviction on Counts 5 and 6. Those counts charged the appellant with the offences of possession, without lawful excuse, of dangerous articles, namely bayonets, contrary to s 15(1b)(b) of the SOA.
The appellant contended that the Magistrate should have found that he was a genuine collector of militaria with the effect that he did have a lawful excuse for his possession of the bayonets.
In his evidence at trial, the appellant described himself as a “military collector”. He said that he collected materials from World Wars I and II, including uniforms, headgear, weapons, and grenades, as well as books and other written material relating to them. The appellant said that he had become “quite expert on weapons”. The bayonets which were the subject of Counts 5 and 6 were part of his collection.
The Magistrate did not make a specific finding concerning this evidence but it seems implicit in her reasons that she accepted it. However, the Magistrate rejected the submission that the appellant’s interest as a collector meant that he had a lawful excuse for the possession of the bayonets.
Section 15(1b) of the SOA establishes the offence of which the appellant was convicted:
(1b) A person who, without lawful excuse—
(a) manufactures, sells, distributes, supplies, or otherwise deals in, dangerous articles; or
(b) has possession of, or uses, a dangerous article,
is guilty of an offence.
Maximum penalty: $7 500 or imprisonment for 18 months.
By Sch 1 of the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000, (the Regulations) weapons designed or adapted to be used solely or predominantly as a bayonet are declared to be “dangerous articles” for the purposes of s 15 of the SOA.
Section 15(1c) of the SOA contains a corresponding offence in relation to prohibited weapons:
(1c) A person who—
(a) manufactures, sells, distributes, supplies or otherwise deals in, prohibited weapons; or
(b) has possession of, or uses, a prohibited weapon,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
The definition of prohibited weapons in Sch 2 of the Regulations does not include bayonets.
It can be seen that, unlike subs (1b), the offence created by subs (1c) is not subject to the qualification “without lawful excuse”. However, Sch 3 of the Regulations exempts specified categories of persons from the provisions of s 15(1c). Relevantly for present purposes, a person who has possession of a prohibited weapon “as part of a collection of weapons or other artefacts or memorabilia that (a) has a particular theme; or (b) [which] the person maintains for its historical interest or as an investment” may, on satisfying specified conditions, be exempt from s 15(1c)(b). Those conditions relate to the minimum number and security of the weapons in the collection and the keeping of appropriate records concerning them.
In rejecting the appellant’s claim of lawful excuse for possession of the dangerous articles the Magistrate said:
[25]Schedule 3 of the [Regulations] sets out the criteria which must be established for a person to be a collector and therefore exempt from the provisions relating to prohibited weapons.
[26]The defendant does not fulfil these criteria. If one takes the criteria set out in the Schedule as being a good indication as to what a person needs to do in order to be a genuine collector, the defendant falls far short of those requirements. He does not keep a record in a bound book as required by Schedule 3(8) or, indeed, any written record at all.
[27]The fact [that] the defendant may have a particular interest in a subject matter cannot amount to a lawful excuse. It would be a nonsense to make lawful the possession of items, which by their definition are dangerous articles, simply because one has an interest in those particular articles. The fact [that] the defendant may have a hobby or interest in those articles does not make it lawful to possess them.
….
[28]I do not accept there has been a historical recognition that genuine collectors of militaria have a lawful excuse. But in any event, the defendant’s evidence is to the effect he bought some items when he could afford them and had a serious interest. He does not display them to other collectors, trade them or even collate them. Such an interest, I am not satisfied, is a “lawful excuse”.[24]
[24] [2012] SAMC 8.
In the first part of these reasons the Magistrate appears to have doubted that the interest described by the appellant meant that he could be characterised as a “genuine collector”. In reaching that view, the Magistrate drew inferences from the provisions in the Regulations relating to genuine collectors in relation to prohibited weapons. In the second part, the Magistrate seems to have proceeded on an alternative basis, ie, that even if the appellant was a genuine collector, that interest did not amount to a lawful excuse for the purposes of s 15(1b) of the SOA.
Use of Criteria Concerning Prohibited Weapons
The appellant’s first submission was that the Magistrate had erred in her use of Sch 3 of the Regulations (which related to prohibited weapons) when considering s 15(1b) which is concerned with dangerous articles. I consider that there is force in that submission and that it should be upheld.
What had to be determined was whether the appellant’s claimed interest as a genuine collector amounted to a “lawful excuse” for the purposes of s 15(1b). As already noted, s 15(1c) does not contain the qualification of lawful excuse at all. Nor does Sch 3 in the Regulations. That is concerned with a different subject matter, namely, the exemption of certain categories of persons altogether from the provisions in s 15(1c). This limited the utility of reference to Sch 3.
Further, and in any event, it is not possible for regulations made under an Act to control the meaning of expressions used in that Act.[25] The content of the Regulations could not inform the meaning of the expression “without lawful excuse” in subs (1b).
[25] Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 at 109-10; Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 154 LGERA 60 at 69-70.
Accordingly, the question of whether the appellant’s interest as a collector of militaria amounted to a lawful excuse for the purposes of s 15(1b) should have been determined without reference to Sch 3 of the Regulations.
Lawful Excuse and the Genuine Collector
By s 5 of the SOA the appellant had the onus of proving the lawful excuse upon which he relied. However, the issue raised by this ground of appeal really turns on whether a genuine interest as a collector can amount to a lawful excuse for the purposes of s 15(1b).
The expressions “without lawful excuse” and “without lawful purpose” are used in a number of statutory provisions creating offences. The authorities concerning the meaning to be attributed to those expressions are of considerable assistance in the present context. As Mullighan J observed in Police v Hailemariam,[26] it is commonly the case that “lawful purpose” and “lawful excuse” embrace the same considerations.[27]
[26] [1999] SASC 96; (1999) 201 LSJS 471.
[27] Ibid at [23]; 476.
The High Court considered the meaning of the expression “lawful purpose” in Taikato v The Queen[28] in relation to an offence of a broad but similar kind to that established by s 15(1b). Section 545E(1) of the Crimes Act 1900 (NSW) made it an offence for a person to possess an article of a defined type but subs (2) provided for a defence if the defendant established that he or she had “a reasonable excuse for possessing it or possessed it for a lawful purpose”. The question was whether the defendant’s possession of a pressurised canister of formaldehyde was possession for a lawful purpose.
[28] (1996) 186 CLR 454.
The majority noted that the meaning of the expression “lawful purpose” varies according to context.[29] In some circumstances it may mean authorised, as opposed to not forbidden, by law. In other circumstances it may mean a purpose supported by a positive rule of law.[30] They considered the former construction generally to give best effect to the legislative purpose of enactments. This is because statutes are to be interpreted in accordance with the presumption that Parliament does not take away existing rights unless it does so expressly or by necessary implication.[31]
[29] Ibid at 460.
[30] Ibid at 460; Crafter v Kelly (1941) SASR 237 at 242-3.
[31] Taikato v The Queen (1996) 186 CLR 454 at 460.
Despite this, the majority considered that the expression “lawful purpose” in s 545E(2) referred to a purpose positively authorised by law.
On this view of the section, a lawful purpose would have to be one whose achievement was expressly or impliedly authorised by law. Thus, it would provide a defence for a member of the riot police or similar body who is authorised by law to possess the dangerous item for a particular purpose. The authorisation might have been express or implied and may have flowed through a long chain of orders from a person who was given a general power to promote or protect public safety. But whatever form an authorisation took, it must have been sourced in a positive rule of law which empowered the defendant to possess the item for the purpose that he or she had.[32]
[32] Ibid at 462-3.
The context with which the Court is presently concerned is an offence of possession of proscribed articles without lawful excuse. The evident purpose of s 15(1b), together with the other provisions in s 15, is the protection of the public by limiting access to, and possession of, dangerous items. The majority in Taikato referred to this context, observing that when guns and other dangerous articles are available, they often come to be used for harmful purposes even if they were initially possessed for innocent purposes.[33]
[33] Ibid at 460. See also Police v Hailemariam [1999] SASC 96 at [28]; (1999) 201 LSJS 471 at 478-9.
In my opinion, a number of matters indicate that “without lawful excuse” in the context of subs (1b) should be understood as referring to some positive legal authority, whether express, implicit, or implied.
First, the expression in subs (1b) has the effect of making lawful conduct which would otherwise be unlawful. This makes it unlikely that a lawful excuse means a purpose which is not forbidden by law.[34] Were it otherwise, a person would have a lawful excuse for possession of a dangerous article in all circumstances unless the law otherwise proscribed that possession. Such a construction would mean that s 15(1b) would add very little to the existing law. It would also mean that much of the practical effect of subs (1b) would be negated and that the protection of the public, which the provision is intended to provide, would not be achieved.
[34] Taikato v The Queen (1996) 186 CLR 454 at 461.
Secondly, “without lawful excuse” is not to be equated with “without reasonable excuse”. The appellant’s submissions in the present case on analysis amounted to little more than a claim that his possession of the bayonets was lawful because he liked possessing them, derived satisfaction from that possession and had an innocent purpose in doing so. Those considerations may amount to a reasonable excuse, but they do not make his possession lawful.
It is pertinent to note that the SOA does, in relation to some of the offences which it creates, use the expression “without reasonable excuse”.[35] This suggests that the terminology in s 15(1b) and in the other subsections of s 15, must have been intended to have a different meaning. I accept that the strength of this inference may be weakened by the different legislative history of those provisions and the different nature of the conduct which they proscribe. Nevertheless it is, as I say, pertinent that in s 15 the legislature has not chosen to use an expression which it has used in other provisions.
[35] Section 13: consorting; s 21: permitting premises to be frequented by thieves; s 50: unlawfully ringing doorbells; s 74A: power to require statement of name and other personal details; s 74AB: questions as to identity of drivers; s 74B: road blocks; and s 83B: dangerous areas.
Thirdly, the words “without lawful excuse” in s 15(1b) also qualify the activities of manufacturing, selling, distributing, supplying and otherwise dealing with dangerous articles. By including this wide range of activities, Parliament plainly intended to limit the availability of dangerous articles. It is quite unlikely that Parliament intended s 15(1b) to have the effect of limiting those activities in relation to dangerous articles only to the extent that the law otherwise made them unlawful. The same reasoning is applicable to the other provisions within s 15 which make specified conduct unlawful subject to the qualification of “without lawful excuse”.
Fourthly, the subject matter of s 15(1b) is dangerous articles. Although the specification of the articles which answer that description is left to regulation, it is evident that the focus of the provision is not on items which may have a common usage or which a person may possess for benign purposes. One would be more ready to construe a provision which related to articles of that kind as referring to activities in which a person may engage without breaching the law. This serves to distinguish the present case from Roddan v Walker[36] in which Steytler J considered the meaning of the expression “without lawful excuse” in the context of s 66(4) of the Police Act 1892 (WA).
[36] (1997) 94 A Crim R 170.
Finally, the expression “without lawful excuse” is also used in other provisions in the SOA. The subject matter of those provisions suggests that the meaning of positively authorised by law which I would attribute to s 15(1b) is also appropriate in that context. I note that in Police v Hailemariam,[37] Mullighan J considered that the qualification “without lawful excuse” in s 15(1) of the SOA[38] referred to a purpose which is positively authorised by law.[39] It was not suggested on this appeal that the approach adopted by Mullighan J should not be applied to s 15(1b).
[37] [1999] SASC 96; (1999) 201 LSJS 471.
[38](1) A person who, without lawful excuse—
(a)carries an offensive weapon; or
(b)has custody or possession of an implement of housebreaking; or
(c)carries an article of disguise,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
[39] Police v Hailemarian [1999] SASC 96 at [23]; (1999) 201 LSJS 471 at 476.
I conclude therefore that proof that the appellant had a lawful excuse for the possession of the bayonets required proof that his possession was positively authorised by a law.
The appellant did not point to any authority positively authorising his possession of the bayonets as part of a collection of military items. It follows therefore that the “genuine collector defence” mounted by the appellant was properly dismissed by the Magistrate.
Summary on Grounds 4-7
The appellant also submitted that he had an honest and reasonable belief that his possession of the bayonets as part of a collection was lawful and that this by itself was sufficient to give rise to a lawful excuse. He referred in this respect to a passage in the judgment of Murray CJ in Crafter v O’Reilly.[40]However, Murray CJ was there concerned with a statutory provision of a different kind, namely, the presence of a person in a dwelling without lawful excuse. Different considerations apply in such a context. The propositions which I have extracted from the authorities above indicates that in the present context the enquiry is not solely as to a defendant’s subjective state of mind.
[40] [1934] SASR 20 at 22.
In summary, although I consider that the Magistrate erred in drawing inferences from Sch 3 of the Regulations, I would uphold her conclusion that the appellant’s interest as a genuine collector of military items did not constitute a lawful excuse for the purposes of s 15(1b). Accordingly, these grounds of appeal fail.
Grounds 8-10 – Double-Edged Knives and Fighting Knives
The appellant was convicted on Counts 7 and 8, each of which charged him with possession of a prohibited weapon, namely, a “double-edged knife” in contravention of s 15(1c)(b) of the SOA (set out earlier in these reasons).
Some knives are included in the list of weapons declared in Sch 2 to the Regulations to be prohibited weapons. The relevant item is as follows:
7 — Fighting knife
An article that is —
(a) a butterfly knife; or
(b) a dagger; or
(c) a flick knife; or
(d) a push knife; or
(e) a trench knife; or
(f) any other kind of knife,
that is designed or adapted for hand to hand fighting, but does not include a bayonet or a sword.
At the trial, the appellant disputed the characterisation of the knives as double-edged. The Magistrate does not appear to have made a positive finding on that issue, although it seems that she must have considered that they were not.
The Magistrate rejected a prosecution submission that the knives could be characterised as a “dagger” so as to come within par 7(b) of the definition. She seems to have considered, however, that both knives came within par 7(f) because they were a kind of knife which is “designed or adapted for hand to hand fighting”.
The Magistrate was troubled by the fact that both counts referred to the knives as “double-edged” whereas knives are not referred to at all by that description in the SOA or the Regulations. She thereby acted on her own motion under s 181 of the Summary Procedure Act 1921 (SA) (SPA) to amend the particulars to Counts 7 and 8 by substituting the words “fighting knife” for the words “double-edged knife”. The Magistrate’s decision in this respect was announced to the parties for the first time in her published reasons for the convictions. Those reasons included a statement by the Magistrate that she did not believe that the appellant was “substantially prejudiced” by the amendments.
The appellant raised three complaints on appeal about his convictions on Counts 7 and 8. First, that as the Magistrate considered (as appears to be the case) that the knives were not double-edged, she should for that reason alone have acquitted him on those counts.
Secondly, the appellant raised a number of issues concerning the Magistrate’s amendments of the Complaint: that s 181 of the SPA had not authorised the Magistrate to make the amendments; that he had been denied procedural fairness; and that there had been non‑compliance with ss 68 and 69 of the SPA.
Thirdly, the appellant contended that the knives which were the subject of Counts 7 and 8 did not in any event come within the list of fighting knives contained in Sch 2 to the Regulations.
The Amendment to the Complaint
The first two of these complaints are linked. I reject the contention that the Magistrate was obliged, on finding that the knives the subject of Counts 7 and 8 were not properly described as “double-edged”, thereupon to acquit the appellant of those charges.
Section 181 of the SPA provides:
(1)An information or complaint is not invalid because of a defect of substance or of form.
(2) The Court may—
(a) amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b) dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
Accordingly, the Magistrate was empowered, subject to the qualification of substantial prejudice to the appellant, to amend the Complaint to cure a defect in it, whether that defect be one of substance or of form. Subject to the requirements of procedural fairness that power could be exercised at any time.[41]
[41] Schultz v Pettitt (1980) 25 SASR 427 at 432; Robey v SA Police (1993) 18 MVR 121; Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410.
The Magistrate was correct in concluding that the appellant was not severely prejudiced by the amendment. There had never been any doubt about the particular knives which were the subject of Counts 7 and 8. The dispute at trial as to whether the knives should be properly characterised as double-edged was a dispute about the description of the knives and not one going to their identity. Further, both the prosecution and the defence (and in particular the defence) had led considerable evidence at the trial about the nature, history, provenance and use of the type of knife in question.
The description in each count of the knives as double-edged appears to have been a distraction. Double-edged knives are not referred to by that description in the list of fighting knives in par 7 of the Schedule to the Regulations. The fact (if it was the fact) that the knives were double-edged would not of itself have brought them within the par 7 list. The prosecution would still have had to establish that they were a kind of knife “designed or adapted for hand to hand fighting”. Conversely, a finding that the knives were not double-edged did not mean that they could not come within the list contained in par 7. Accordingly the “pith and substance”[42] of the charges did not change.
[42] Shultz v Pettitt (1980) 25 SASR 427 at 433; Maguire v Modra [2010] SASC 74 at [18]-[20]; (2010) 107 SASR 198 at 202-3; Surman v SA Police (1996) 65 SASR 421 at 424.
The particularisation of the knives as double-edged was unfortunate. However, as I have indicated, the inclusion of those words did not alter the matters to be proved by the prosecution. It is also to be remembered that the prosecution is required to establish only the essential elements of an offence and, generally, not the particulars.[43]
[43] Kyriakopoulos v Police [2006] SASC 72 at [10]-[11].
The transcript of the trial evidence indicates that the issue of whether the knives were “fighting knives” was an issue known to the defence throughout the trial. As already indicated, the parties led a substantial amount of evidence on the topic.
For all these reasons, this was not a case in which the defendant had, within the meaning of s 181(2)(a), been “substantially prejudiced by the defect”.
Nor was the Magistrate precluded from acting on her own motion by reason that the prosecutor had declined to make the amendment.[44] Section 181 does not confine in any way the power of the Court to make an amendment by reference to the attitude or conduct of the prosecutor.
[44] Ayles v The Queen [2008] HCA 6 at [50], [79]-[80]; (2008) 232 CLR 420 at 425, 435.
Subject to the requirements of procedural fairness, there was therefore no impediment to the Magistrate exercising the power of amendment available under s 181.
Denial of Procedural Fairness
However, it was necessary for the Magistrate to comply with the requirements of procedural fairness. The fact that the Magistrate chose to announce the amendment for the first time in her reasons for the convictions meant that the issue of procedural fairness arose acutely in the present case. By then it was too late for the appellant to make any further submissions.
The issue arose even more acutely because the prosecution had, before the commencement of the closing submissions, expressly indicated that no application to amend the particulars to Counts 7 and 8 would be made. It is understandable in that context that, despite the evidence which had been led at trial, counsel for the appellant focussed his submissions on the charges as particularised. Those circumstances meant, as I have said, that the Magistrate’s later decision to act on her own motion to amend the counts raised acutely the provision of procedural fairness to the appellant.
It does seem to me, with respect, that the Magistrate has denied the appellant procedural fairness by announcing the amendments in her reasons for decision. It is true that the appellant had the opportunity, and did, lead considerable evidence on the topic of whether the knives were “fighting knifes”. However, that is only one aspect of the requirement of procedural fairness. The appellant also had to be given the opportunity to make submissions concerning that evidence and its effect. The amendment made to the Complaint made by the Magistrate served to bring into sharper focus the nature of the case which had to be met by the appellant and therefore the submissions which would have been appropriate. It removed the distracting effect of the manner in which the prosecution had particularised the charges.
There is no suggestion that the Magistrate had put the appellant’s counsel on notice that the amendments may be made, or that she had invited him to make submissions on an alternative basis.
Of course, it is not every departure from the rules of natural justice which will entitle an aggrieved party to a new trial. However, when the denial of natural justice affects the entitlement of the party to make submissions on an issue of fact, or the inferences to be drawn from facts, it is difficult for an appellate court to conclude that compliance with the requirements of natural justice could have made no difference.[45]
[45] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
In the present case, I am not prepared to conclude that an opportunity to make further submissions could have made no difference. On the contrary, there are a number of critical matters which the appellant could have addressed. These include the question of whether the two knives in question (described as “Ka‑Bar” knives) were designed or adapted for hand to hand fighting. As the Magistrate herself observed the expression “fighting knife” is only a heading in the Regulations. As such, it does not form part of the Regulations.[46] The critical issue was whether the two knives were within the list of knives appearing under that heading and, in particular, within subpar (f).
[46] Acts Interpretation Act 1915 (SA) s 19(2)(a).
In these circumstances, I consider that the appellant’s complaint that he was denied procedural fairness in relation to Counts 7 and 8 should be upheld. This makes it unnecessary to consider his submissions concerning the effect of ss 68 and 69 of the SPA in the present context.
The Ka‑Bar Knives as Prohibited Weapons
The parties agreed that, in the event that I found that a denial of procedural fairness had occurred, I should myself determine whether the knives were prohibited weapons, and that I should do so by reference to the evidence led before the Magistrate.
I am satisfied that the two knives which are the subject of Counts 7 and 8 will come within the list of knives in par 7 of Sch 2 only if they are a “kind of knife that is designed or adapted for hand to hand fighting”.
It is not clear whether the word “adapted” in par 7 has the meaning of “modified so as to be suitable for” or simply “suitable for”. The parties did not address any submissions to this issue. In those circumstances, I consider it undesirable to express any concluded view. I will instead proceed on the basis that it is the former construction which is appropriate, ie, that to be within par 7, a knife must have been originally designed for, or subsequently modified so as to be suitable for, hand to hand fighting. This is the construction which is more favourable to the appellant. I note that this meaning appears to be consistent with the approach taken in Knight v Pipersberg;[47] Bick v Keogh, Registrar of Firearms[48] and Foxtel Management Pty Ltd v The Mod Shop Pty Ltd.[49]
[47] Unreported, Supreme Court of Victoria, Smith J, 6 June 1991, Judgment No 9038/91.
[48] Unreported, Supreme Court of Victoria, Hedigan J, 13 April 1992.
[49] [2007] FCA 463 at [103]; (2007) 165 FCR 149 at 167.
It seemed to be common ground at trial that the two Ka‑Bar knives which were the subject of Counts 7 and 8 were in their original state and without any modification since their manufacture.
The two knives were located in what appears to be the original boxes issued by the manufacturer. Those boxes were tendered (without objection) with the knives. Each box described the knife as “Ka‑Bar - USMC Fighting Knife” and included the words “Depot of Supplies US Marine Corps” with an address for that Depot. In his evidence‑in‑chief, the appellant acknowledged that the two knives were US Marine Corps Ka-Bar knives and said that they were used by every marine in World War II. He also acknowledged that he had the knives as part of his collection of World War II militaria.
The appellant said, without objection, that the Ka‑Bar knives were originally a hunting knife which had come to be used as a survival and utility knife. He also said that it is now produced principally as a commemorative item and as a collector’s item.
The appellant’s cross‑examination included the following:
QHow would you describe that knife as?
AWorking tool for the average US marine in World War II. It’s a general purpose, multi‑purpose knife for everything – as a hammer as well, hammer tent, tent hammer.
QYou say that they’re used by the marines?
AYes. US Marine Corps, World War II, that is Ka‑Bar.
QThat is based on the research that you have done, is that right?
ABased on my research and also my – lots of knowledge about this knife because I like the historical part. I bought this knife for a purpose because of World War II because – importance, significance. It helped win the war, World War II. Every marine in the Pacific carried it for all‑purpose in everything. Opening cans as well, food, hammer. …[50]
The appellant went on to describe a wide range of uses to which the knives were put which did not include any form of combat. However, a later answer in cross‑examination included the following:
This knife can be used to stab someone. To tell the truth, not designed for fighting. When I say fighting in the World War, purpose is fighting the Japanese not fighting, you know, criminal in the street. Pulling a knife is fighting some other person. When you say fighting, mean World War II fighting the Japanese, that is what the purpose was.[51]
[50] Transcript 110.
[51] Transcript 113.
The appellant also led some evidence from a Mr Balsamo, who has developed some expertise with knives. He said, without objection, that the Ka‑Bar knife “was designed as a utility knife” and later selected by the US Marine Corps for issue to marines.[52] After speaking to a number of different uses to which the Ka‑Bar knives may be put, Mr Balsamo gave the following evidence‑in‑chief:
QAre they designed as – or for rather, hand‑to‑hand fighting?
AThey are designed – they were designed as a utility knife and adapted to hand or adopted for hand‑to‑hand fighting.
QSo one of the uses might be for hand‑to‑hand fighting?
AMost certainly.
QIn that sense, any knife could be used for hand‑to‑hand fighting?
ACorrect.[53]
[52] Transcript 127.
[53] Transcript 128.
In addition to this oral evidence the appellant also tendered some documentary material which he had downloaded from the internet. The precise provenance of this material was not established but it was tendered by the appellant without objection for the apparent purpose of providing information to the Magistrate about the Ka‑Bar knives in question. Several of these documents spoke of the use of Ka‑Bar knives in combat. One (Exhibit D19) contained a timeline of relevant events concerning Ka‑Bar knives which included the following:
c 1942
Soon after the start of World War II, the Union Cutlery Company submits a Ka‑Bar branded knife to the US Marine Corps for issue to fighting personnel.
1945
Although the original design presented was not up to par, the Marine Corps accepts a re‑worked design of the knife and begins issuing it as their standard fighting/utility knife.
…
1976
The first knife is produced by the newly formed Collectors’ Club: a full dress version of the USMC Fighting/Utility Knife, produced in limited number
(Emphasis added)
Another document (Exhibit D20) gives the following description of the Ka‑Bar knife:
The most famous fixed blade knife in the World – “the KA‑BAR” – was designed to serve our troops during World War II and is still doing its job, with honours, more than 50 years later.
(Emphasis added)
A third document (Exhibit D23) contains details of the military history and purpose of the “USMC KA‑BAR Combat Knife”:
The Ka‑Bar is a Combat Knife that is used by members of the Armed Forces to be used in Close Combat scenarios. These days, the Ka‑Bar is used mostly as a Utility Knife. For example, opening wooden crates, clearing out foliage, cutting down branches, etc. It’s also strong enough to easily puncture a hole in a can.
…
In 1942 right after the United States entered WWII, the troops were having issues with their old Mark 1 Trench Knives. They came to the realisation that they needed a better knife to engage in Trench Warfare, so the military picked the Ka‑Bar from a catalogue of hunting gear, and made it standard military issue for the troops. The USMC used several different types of knives during the war, but the KA‑Bar was by far the most popular.
In fact the military liked it so much it also became Standard Military Issue after WWII ended. The Marine Corps got to choose the final shape. They made the blade longer so it could be used in combat. They also wanted a fuller, which was a rounded or bevelled groove that sat on the fat side of the blade. The Ka‑Bar Company earned millions of dollars during WWII by selling this to the military.
… The military still uses the Ka‑Bar, and so do hunters, fishermen and outdoor enthusiasts.
(Emphasis added)
On the basis of the above evidence I make the following findings. Ka‑Bar knives were originally manufactured as hunting knives and over time became popular as a general utility knife. However, in World War II the United States Marine Corps acquired Ka‑Bar knives for the purpose of issue to marines as a combat knife. For this purpose, the Marine Corps sought and obtained modifications to the design of the Ka‑Bar knife. The adaptations made the knives better suited for combat, the relevant form of which (it is appropriate to infer) would be hand to hand fighting. The Ka‑Bar knives continue to serve their original utilitarian purposes but the fact that they are so used does not detract from the fact that the particular design required by the US Marine Corps was one adapted for combat purposes. The two knives in the appellant’s possession are Ka‑Bar knives of the kind produced for the US Marine Corps. On this basis, I conclude that they are a kind of knife designed or adapted for hand to hand fighting and therefore within the list of knives contained in par 7 of Sch 2 to the Regulations.
The appellant was therefore in possession of prohibited weapons and should be found guilty on Counts 7 and 8. This means that the appeal against the convictions on those counts should be dismissed.
Summary
For the reasons given above I dismiss the appeal. I will hear from the parties as to any consequential matters.
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