Supreme Court
New South Wales

Medium Neutral Citation:

Director of Public Prosecutions (NSW) v Simon James Fairbanks [2012] NSWSC 150

Hearing dates:

28 October 2011

Decision date:

01 March 2012

Before:

Rothman J.

Decision:

The Court issues the following declaration and order:

(i) An offence of possessing a prohibited weapon under s 7(1) of the Weapons Prohibition Act 1998 requires proof by the prosecutor that the accused knows that he/she possesses the item that is prohibited, but does not require proof that the accused knows the location of the item possessed, nor proof that the item is physically on or about the accused at the time of the commission of the offence;

(ii) Leave granted to the parties for further submissions on the form of the declaration in Order 1 above and on the necessity or desirability of any further orders.

Catchwords:

APPEAL - civil - pursuant to of s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 - error of law

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Supreme Court Act 1970
Weapons Prohibition Act 1998

Cases Cited:

Alramadan v DPP [2007] NSWCCA 322; Krishna v DPP [2007] NSWCCA 318
He Kaw Teh v The Queen (1985) 157 CLR 523
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Police v Kennedy (1998) SASR 175; (1998) 100 A Crim Rep 377
R v Buswell [1972] 1 All ER 75
R v Martindale [1986] 3 All ER 25
Russell v R (1984) 81 Crim App Rep 315

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) (plaintiff/appellant)
Simon James Fairbanks (defendant/respondent)

Representation:

Ms A. Mitchelmore (for the plaintiff/appellant)
Mr R. McIlwaine SC with Mr J. Davidson (for the defendant/respondent)
Solicitor for Public Prosecutions (NSW) (for the plaintiff/appellant)
Andrews Combined (for the defendant/respondent)

File Number(s):

2011/239627

Judgment

1The Director of Public Prosecutions appeals the judgment of a Magistrate made in a local court at Waverley on 23 May 2011. The appeal arises pursuant to the terms of s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 .

2The learned Magistrate dismissed proceedings against Mr Fairbanks, which proceedings had been commenced by a Court Attendance Notice, charging Mr Fairbanks with the offence of possessing a prohibited weapon (flick knife) without a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 ('the Act').

Legislation

3An appeal under the relevant provision of the Crimes (Appeal and Review) Act is granted to the Director of Public Prosecutions ('DPP') "but only on a ground that involves a question of law alone": see Alramadan v DPP [2007] NSWCCA 322; Krishna v DPP [2007] NSWCCA 318 and the cases cited therein. The submissions on behalf of the DPP identify alleged errors of law made by her Honour in the following terms:

"(1) Her Honour erroneously held that the prosecution was required to establish that the defendant was aware of the location of the flick knife at the time of the alleged offence, in order to prove that he was in possession of it;

(2) Her Honour failed to apply the principle established in R v Martindale [1986] 3 All ER 25 (" Martindale's Case" ) and applied in Police v Kennedy (1998) 71 SASR 175 to the effect that, once established, knowledge of custody of a prohibited weapon is not displaced by a defendant subsequently forgetting the fact of that custody."

4Each of the foregoing is a question of law, but nice questions arise as to whether the "error" of the learned Magistrate is such that the ground of appeal involves a question of law alone. In other words, the ground may, on proper analysis, involve a question of mixed law and fact.

5The most relevant provisions of the Act are in the following terms:

" Possession of a prohibited weapon includes any case in which a person knowingly:

(a) has custody of the weapon, or

(b) has the weapon in the custody of another person, or

(c) has the weapon in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person

...

7 Offence of unauthorised possession or use of prohibited weapon:

(1) A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit.

Maximum penalty: imprisonment for 14 years."

6As can be seen from the foregoing, the legislature has treated the possession of a prohibited weapon without a permit as a serious offence. The definition of "possession" imports knowledge and therefore mens rea. Possession includes the custody of the weapon, the weapon being in the custody of another, or the weapon being on premises or at a place, whether or not occupied by the alleged offender.

7While the debate before the learned Magistrate focused on the application of the judgment of the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523, this case does not require an exposition of the principles of construction that require that mens rea or knowledge be implied as an element of the offence. The legislation expressly requires it. Nevertheless, the learned Magistrate (and this Court) was faced with submissions that treated He Kaw Teh as inconsistent with the English judgments exemplified by Martindale's Case .

Facts

8Most of the ancillary facts do not require repeating. Ultimately, the factual findings by her Honour are, for the purposes of these proceedings, uncontroversial and, even if they were not, could not be challenged on any basis available to the DPP.

9Mr Fairbanks was required to travel on a trip by aircraft. He is an experienced traveller. In 2001, Mr Fairbanks was given a flick knife, as a gift, while he was in France. He carried it in his checked-in luggage on his return to Australia.

10Between 2001 and 2009, the knife remained in a drawer at his home. In 2009 he re-discovered the knife during the process of moving house. From that time, it seems, Mr Fairbanks used the knife on camping trips (or on one camping trip), in particular, on a camping trip to Jervis Bay. At the completion of that trip he left the knife in a pocket of his backpack.

11On 24 September 2010, Mr Fairbanks was required to travel to the airport and had made arrangements to be picked up and given a lift. The arrangements made to go to the airport were altered at short notice and Mr Fairbanks was required to pack his bags "in a hurry". He placed his laptop computer into the backpack, with the intention of taking it as hand luggage. The knife, it seems unknown to Mr Fairbanks, was still in the backpack from the earlier camping trip.

12Mr Fairbanks went through the security checks at the airport and the knife, contained in a pocket of his carry-on backpack, was detected.

13There is no issue that a flick knife is a prohibited weapon. Mr Fairbanks cooperated fully with the AFP Officers. When the knife was discovered, and before any questioning by the relevant officers, he volunteered the exclamation:

"I forgot I had it in there. I'm sorry!"

14Later, after returning from overseas, when participating in an electronically recorded interview, Mr Fairbanks said:

"I had no knowledge it was on me, in my luggage, or I wouldn't have had it if I did! The knife was in my laptop bag which I use for work. I occasionally use it to cut up an apple."

15The Court Attendance Notice was relevantly in the following terms:

"Weapons Prohibition Act 1998, section 7(1)

Possess or use a prohibited weapon without permit

between 12:00 p.m. and 12:20 p.m. on 24/09/2010 at Mascot.

did (possess/use) a prohibited weapon without being authorised to do so by a permit. (flick knife)"

The words "flick knife" were in handwriting.

16In the alternative to supporting the judgment of her Honour, Mr Fairbanks submits that the terms of the Court Attendance Notice required that Mr Fairbanks had knowledge that the knife was in his possession at Mascot.

Knowingly possess

17In order for the prosecutor to prove that part of an offence under s 7(1) of the Act that prohibits possession, the defendant must be proved to have been, at the time of the commission of the offence, in possession of a knife and must be proved to have had knowledge of that possession.

18It is inappropriate for the Court, in the present circumstances, to delineate every circumstance, which, if believed, would give rise to a successful defence to such a charge.

19The difference between the parties in these proceedings can be summarised best by giving two extreme examples. If a person were to know that he/she possesses a loaded pistol (a pistol is a prohibited weapon) and cannot remember whether he/she has left it in the second or third bedroom of the house that he/she occupies, would such a person be knowingly in possession of the pistol? At the other extreme, if the person were given a prohibited weapon when the person was say 18 years of age and hidden it, forgotten about it and years later, during subsequent renovation of the house, the pistol were found by another and its existence reported to the police, when the person was by that time unaware of its existence, would the person be knowingly in possession of the pistol?

20Each of those examples raises significant factual differences. Further, it should be borne in mind that any version of the facts as to the state of knowledge would have to be believed. In this case, there is no issue as to credit or reliability and the Court readily accepts the version of events to which the defendant attests and which the learned Magistrate below accepted.

21The definition of "possession" clarifies, if clarification were necessary, that the alleged offender need not carry the prohibited weapon in order for an offence to be committed. The offender must, of course, have possession of the prohibited weapon, but does not need to have the prohibited weapon immediately available. Thus, a person commits an offence when in possession of a prohibited weapon even though the weapon is physically separated from the offender. In this case, assuming knowledge, to which the Court will come, Mr Fairbanks would have committed an offence under this provision, even if the knife in question were at home when he was at the airport.

22Reconciliation of He Kaw Teh and Martindale's Case, on the facts in this case, is unnecessary. On the facts, as admitted and found, Mr Fairbanks knew he had (i.e. owned and possessed) the knife, albeit that he did not know that the knife was in his bag and with him at Mascot.

23In He Kaw Teh , Gibbs CJ said:

"The effect of the authorities to which I have referred is that where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ("in his possession") themselves necessarily import a mental element." (Supra at 539).

24As already stated, the provisions of the Act make clear that knowledge that the prohibited weapon is in the possession of the offender is an express requirement. But, Mr Fairbanks knew he had possession of the knife. He did not know that it was in his bag.

25In the United Kingdom, in Martindale's Case, the Court of Appeal (Lord Lane CJ, Taylor and Schiemann JJ) dealt with what, as a matter of law, amounted to knowing possession. Lord Lane CJ, delivering the judgment on behalf of the Court, said:

"Here the applicant himself put the cannabis in his wallet knowing what it was and put the wallet into his pocket. In our judgment, subject to the authorities, to which reference will have to be made in a moment, he remained in possession, even though his memory of the presence of the drug had faded or disappeared altogether. Possession does not depend on the alleged possessor's powers of memory. Nor does possession come and go as memory revives or fails. If it were to do so, a man with a poor memory would be acquitted, he with the good memory would be convicted."

26The judgment in Martindale's Case relied on the earlier judgment of the Court of Appeal in R v Buswell [1972] 1 All ER 75. It is unnecessary to deal with the full implications of the latter two cases. Neither of them deals with the situation, such as in this case, where the defendant has actual knowledge that he possesses the prohibited weapon. Mr Fairbanks' forgetfulness and lack of memory is confined to whether the prohibited weapon that he admittedly possessed was in the bag that he was carrying.

27The respondent relies on Russell v R (1984) 81 Crim App Rep 315, which was a judgment of the Court of Appeal in the United Kingdom. Russell was overruled, at least implicitly, in Police v Kennedy (1998) SASR 175; (1998) 100 A Crim Rep 377, which considered and applied Martindale's Case and Russell, turned on a very different point. In Russell, the offence was to have the offensive weapon "in any public place" and, therefore, the location of the offensive weapon was critical to proof of the offence and knowledge of its location was essential to guilt.

28As a matter of fact, in these proceedings, Mr Fairbanks knew he had possession of the prohibited weapon. Therefore, he was knowingly in possession of the weapon. Mr Fairbanks was knowingly in possession of a weapon, even if he thought the weapon was at home and not with him at Mascot.

The Terms of the Court Attendance Notice

29Mr Fairbanks submits that the terms of the Court Attendance Notice described the offence in a manner that required Mr Fairbanks to have known that the knife was in his possession at Mascot.

30As a matter of fact, Mr Fairbanks was at Mascot between 12 noon and 12:20 pm on 24 September 2010 and had in his possession the prohibited weapon. As a consequence, the offence was committed during that time and at that place.

31Properly construed, the Notice (and charge) does not require knowledge that the prohibited weapon was at that location. The time, date and place are particulars of when and where the offence was committed and they do not require an additional layer of knowledge to be proved in order for Mr Fairbanks to be found guilty.

Error of law

32I initially had some doubt that the ground raised by the DPP is a ground "that involves a question of law alone." The determination of the issues as to the correctness of the decision of the learned Magistrate requires acceptance of a factual scenario. The DPP is not entitled to appeal a question of mixed fact and law or a question of fact. Appeals on mixed fact and law and questions of fact are confined to appeals against sentence or against conviction, not acquittal.

33Nevertheless, if there were no appeal, certiorari would issue for error of law, including an error of law disclosed in the reasons for judgment: see subs 69 (3) and (4) of the Supreme Court Act 1970 and Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 .

34In Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280, the Full Court of the Federal Court of Australia (Neaves, French and Cooper JJ) provided a taxonomy for the distinction between questions of fact and questions of law, which was later cited with approval by the High Court. The Full Court said:

"The principles according to which the jurisdiction conferred by s 44 is limited are not always easy of application. Distinctions between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raise issues which may be or involve questions of fact or law or mixed fact and law. Nevertheless there are five general propositions which emerge from the cases:

1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law - Jedko Game Co. Pty Ltd v. Collector of Customs (1987) 12 ALD 491; Brutus v. Cozens [1972] UKHL 6; (1973) AC 854.

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact - Jedko Game Co. Pty Ltd v. Collector of Customs (supra); NSW Associated Blue Metal Quarries Ltd v. Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Life Insurance Co. of Australia Ltd v. Phillips [1925] HCA 18; (1925) 36 CLR 60 at 78; Neal v. Secretary, Department of Transport (1980) 29 ALR 350 at 361-2.

3. The meaning of a technical legal term is a question of law. Australian Gas Light Co. v. Valuer General (1940) 40 SR (NSW) 126 at 137-8; Lombardo v. Federal Commissioner of Taxation (1979) 28 ALR 574 at 581.

4. The effect or construction of a term whose meaning or interpretation is established is a question of law - Life Insurance Co. of Australia v. Phillips (supra) at 79.

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law - Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v. Collector of Customs (supra) at 379 (Sheppard and Burchett JJ).

The fifth proposition as stated by the High Court in Hope v. Bathurst City Council (supra) was elaborated by reference to the remarks of Fullagar J in Hayes v. Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47 at 51:

Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.

This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact - Hope v. Bathurst City Council (supra) at 8. Mason J there cited the observation of Kitto J in NSW Associated Blue Metal Quarries Ltd v. Federal Commissioner of Taxation (supra) at 512:

The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the ... operations fall within the ordinary meaning of the words as so determined; and that is a question of law... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact;...

See also Australian Gaslight Co. v. Valuer-General (supra) at 137 (Jordan CJ); Lombardo v. Federal Commissioner of Taxation (supra) at 576 (Bowen CJ), 581 (Franki J); TNT Skypak International (Aust) Pty Ltd v. Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 at 182 (Gummow J); Federal Commissioner of Taxation v. Bivona Pty Ltd (1990) 21 FCR 562 at 564; Commissioner of Taxation v. Cooper [1991] FCA 164; (1991) 29 FCR 177 at 194-195 (Hill J).

In Collector of Customs v. Davis (supra), Beaumont J rejected an objection to the competency of an appeal from the Administrative Appeals Tribunal in a case involving the rebate of duty on diesel fuel. The question was whether, on undisputed facts, fuel was used for the "cultivation or gathering in of crops" within the meaning of s 164(7)(b) of the Customs Act 1901. His Honour observed at 382:

In the present case, it is not suggested that any of the material terms of the legislation have any special meaning. It follows their ordinary meaning should be treated as a question of fact. On the other hand... can it be said that the evidence before the Tribunal 'reasonably admits of different conclusions as to whether the ... operations fall within the ordinary meaning of the words as so determined?' If so, a question of law is involved.

That observation concerned the construction of the words "cultivation or gathering in of crops", a description of a range of operations, the construction of which, according to their ordinary meaning, is a matter of fact. And the question whether a set of facts to which those words are capable of applying do fall within their range is also a question of fact. But the phrase "connected with the rearing of live-stock" has a different character. Its construction does not merely involve the identification of some activity. The words "connected with" are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. As Sheppard and Burchett JJ observed in Australian National Railways Commission v. Collector of Customs (supra) at 378, the meaning of the word "connection" is wide and imprecise, one of its common meanings being "relation between things one of which is bound up with, or involved in, another" - Shorter Oxford English Dictionary . Although the words of the statute are construed according to their ordinary English meaning, that does not mean that their application to a set of facts is simply described as the matching of that set of facts with a factual description. There is necessarily a selection process involved. The range of relationships to which the words apply for the purpose of the Act depends upon a judgment about that purpose. The selection process involved is analogous to that used in determining what causal relationships between conduct and loss attract liability for the purpose of s.82 of the Trade Practices Act (1974) (Cth) - see Elna Australia Pty Ltd v. International Computers (Aust) Pty Ltd (No. 2) [1987] FCA 230; (1987) 16 FCR 410 at 418-419; Munchies Management Pty Ltd v. Belperio (1988) 84 ALR 700 at 712-713. In the end this is not a process of fact finding. The facts are found. What is left is a value judgment about the range of the Act and that is a question of law."

35Notwithstanding the initial doubt earlier expressed, I take the view that the ground raised by the DPP is confined to a question of law and that, therefore, an appeal is permitted. I take that view because the facts have been fully found and the determination of guilt depends only on the proper construction of the words of the statute and for which the statute admits no other reasonable conclusion.

36The learned Magistrate's decision to dismiss the charge against Mr Fairbanks depends on her understanding of the knowledge required in order for an offence to have been committed. The learned Magistrate applied a test that required the prosecutor to prove that Mr Fairbanks knew that the knife was in his bag at the airport. On the evidence accepted by the Magistrate, Mr Fairbanks had no knowledge that the knife was in his bag at the time. Therefore, the Magistrate dismissed the charges.

37The Court has determined that, once Mr Fairbanks knew that the knife was in his possession, it was unnecessary for the prosecutor to prove that Mr Fairbanks knew it was in his bag at the airport. The learned Magistrate has, with respect, misconstrued the knowledge necessary to prove possession for the purposes of this offence. As such, there is an error of law, and the appeal involves a question of law alone.

Disposition of appeal

38On the basis of the foregoing reasons, there has been an error of law in the determination by the learned Magistrate of that which the prosecutor must prove in order to prove guilt for the offence in question.

39Material currently before the Court suggests that Mr Fairbanks has not previously appeared before a court and he does not have a prior criminal history. There is no contest in these proceedings that the prohibited weapon was a gift to Mr Fairbanks, nor has it ever been used to threaten or perpetrate any act of violence against any person or animal. It has been used to cut apples.

40The immediately preceding paragraph ought not be taken to be condoning the possession of prohibited weapons. There is good reason for flick knives to be prohibited and for possession of them to give rise to an offence.

41Nevertheless, it seems that a finding of guilt and/or conviction would have consequences for Mr Fairbanks beyond that contemplated by the legislature. Further, on the material currently before the Court, there seems to be a strong case for the exercise of the discretion by a sentencing court not to record a conviction: see s 10 of the Crimes (Sentencing Procedure) Act 1999 .

42This Court is not the sentencing court and does not have available to it the aforementioned discretion. However, given that this is an appeal against acquittal, the Court does have discretion as to the orders that it should make in this appeal.

43As presently informed, I am minded to make a declaration in or to the following effect:

An offence of possessing a prohibited weapon under s 7(1) of the Weapons Prohibition Act 1998 requires proof by the prosecutor that the accused knows that he/she possesses the item that is prohibited, but does not require proof that the accused knows the location of the item possessed nor proof that the item is physically on about the accused at the time of the commission of the offence.

44Any other order that the Court would be prepared to make will await further submissions of the parties.

45The Court issues the following declaration and order: