COLEMAN v. ZANKER No. 2147 of 1991 Judgment No. 3121 Number of pages - 12... [1991] SASC 3121 | Case summary

JUDGE1 OLSSON J. On 16 July 1991 a stipendiary magistrate convicted the appellant of an offence that, on 25 July 1990 at Dalkeith, he carried an offensive weapon, namely a knife, contrary to s.15 of the Summary Offences Act, 1953 as amended ("the Act"). The appellant had pleaded not guilty to the charge and the conviction was the ultimate outcome of a trial on oral evidence. 2. The appellant seeks to impugn that conviction on the grounds that the learned magistrate erred in law by admitting evidence of what is asserted to have been an illegal search of the appellant's vehicle and of the finding of a knife in it and also because the ultimate conclusion was against the weight of the evidence. In reality, the latter plea was, in more accurate terms, that, having regard to the state of the evidence, the conviction was unsafe and unsatisfactory and that the respondent had failed to discharge his onus of proving each element of the offence beyond reasonable doubt. 3. The charge against the appellant arose from an incident which occurred at about 2.30am on Wednesday 25 July 1990. 4. At that time two police officers, Constables Mensforth and Chapman, were on uniform mobile patrol on Main North Road, Dalkeith. As they drove along that road they observed two motor vehicles stationary on the verge of the opposite side of the road, in what was described as being a somewhat isolated area near the Plantscape Nursery and the Richard Stevens Hire premises. It was also near premises occupied by a business known as Active Motor Wreckers. 5. The police were curious as to the presence of the vehicles, both because of the time of the night and also their proximity to premises which were frequently the subject of breaking and entering. There was, however, nothing to actually suggest that any offence was being, or about to be, committed. 6. One of the vehicles was a white Holden and the other a red Corolla. 7. At the trial there was some contention between the parties as to certain events which transpired following the initial police observation. This was the subject of evidence given by both police officers. However, that evidence needs to be examined in light of the fact that it was given with the aid of notes made by Constable Mensforth on return to the Elizabeth Police Station after the incident and subscribed to by Constable Chapman. Those notes were never placed before the appellant for perusal or comment, although there was ample opportunity to do so whilst he was still at the police station after they had been prepared. Constable Mensforth alleged, in the course of her testimony, that it was not her practice to place notes so prepared before an accused person in such circumstances and that her practice was based on Police Department policy. 8. At the time of the alleged event and also of the trial, Constable Mensforth (a female police officer) was in a defacto relationship with her patrol partner Constable Chapman. It appeared that she was fairly frequently on duty with him and had, on a number of occasions, previously been involved with him in quite different incidents affecting the appellant. This had obvious implications as to the possible independence of any verification by Constable Chapman of her testimony. 9. It was part of the appellant's case, testified to by several witnesses, that, on an earlier occasion, Constable Mensforth had said to the appellant (in the presence of another person called to give evidence to that effect) that she would stop him every time she saw him around because, he was a "crim" and hung around with the likes of another person called Barefield. Barefield was also called as a witness, as was a Miss Ives, who was living in a de facto relationship with the appellant. The latter deposed, on oath, to the making of a statement by Constable Mensforth to the general effect of that just recited. 10. It was Constable Mensforth's evidence that, when the police vehicle pulled up near the parked vehicles, the appellant was seated in the driver's seat of the Holden. The person Barefield was, she said, also in the vicinity. Constable Chapman agreed that, as Constable Mensforth and he approached the vehicles, Barefield was standing near the front of Coleman's car, by its offside right wheel. 11. It was put by counsel for the appellant to Constable Mensforth that, when the police arrived on the scene, both the appellant and Barefield were out of the stationary vehicles and had been changing a tyre. Her response to that question was "They may have been changing a tyre but Mr. Coleman was sitting in the driver's seat when I saw him". 12. At the time of the incident there was very little artificial light in the area and it was quite dark. 13. It was conceded by the police witnesses that, at the time when they approached the two parked vehicles, they had no positive belief that the occupants were engaged in any illegal activity. They agreed that their interest was simply aroused by the time of night and the locality. It is also clear from the evidence given by Constable Mensforth that she recognised one of the vehicles as belonging to the appellant at the time of, or very soon after, first sighting it. This is significant in relation to the defence claim of her earlier alleged statement to the appellant. 14. On a reading of her published reasons for decision the learned magistrate does not ever appear to have resolved the issue of whether the appellant and his companion were both outside of the vehicles when the police approached, whether the tyre changing incident did in fact take place and, if so, to what stage such a process had proceeded at that point. It was Barefield's evidence that, when the police got out of the patrol car, both the appellant and he were in fact crouched down along the side of the front of the appellant's vehicle. On his evidence the two vehicles had not previously been travelling in concert, but he had seen the defendant on the side of the road and had pulled up to give him a hand to deal with his flat tyre. 15. Constable Mensforth insisted that she spoke to the appellant whilst he was still seated in his vehicle and said to him "Step out of the car please" to which he replied, "What's the problem?" She then said "We just came over to see what you were doing here", at which, on her version, the appellant got out of the car. She agreed that her request to the appellant was made so that the police could check the whole of his car (transcript p 17). She shone her torch first on him "to make sure that he was not carrying any weapons" and then into the car to see what was in it. 16. In her evidence-in-chief, Constable Mensforth said that when the appellant alighted from his car she, with the aid of her torch, observed a knife in a sheath located between the two front seats on the console area. It seems clear that she was then shining her torch into the vehicle for the express purpose of examining its contents. She agreed that another officer then at once searched the whole vehicle. 17. Constable Mensforth testified that she proceeded to ask a number of questions of the appellant concerning the presence of the knife, at the conclusion of which she told him that he would be reported for carrying an offensive weapon. 18. However, the learned magistrate quite properly excluded that evidence from consideration on the basis that, in her opinion, Constable Mensforth must have formed the belief that the appellant could have committed an offence and should have cautioned him at that point. As the learned magistrate put it, that then left the bare state of the evidence that Constable Mensforth had seen the knife in its sheath on the console area of the vehicle and that the defendant was apparently the driver of the vehicle. 19. A considerable dispute arose before the learned magistrate as to the precise location of the knife in the motor vehicle. 20. On the one hand, Constable Mensforth insisted that it was in the location already described. Her evidence was not verified by Constable Chapman, who did not see any precise location from which she retrieved it, although he said that he saw her produce it from somewhere out of the car. Constable Mensforth conceded that there were a considerable number of items of property, mainly clothing, in the vehicle. 21. The appellant deposed that, on the occasion in question, his vehicle did not in fact have a console in it. His father testified that the appellant himself actually constructed and installed a console subsequent to 25 July 1990. It also emerged from the evidence that Constable Mensforth had occasion to search the vehicle on 15 August 1990 in relation to another incident, by which time the console had been installed. 22. The appellant told the learned magistrate that the knife in question had been in his car and had been found by police officers behind the back seat on the floor when they searched it. He gave evidence to the effect that he had been at his parent's home earlier that night and had picked up a number of items of camping gear, which he had put in the back of the car to take to a caravan, into which he was moving at the time, at the Dalkeith Caravan Park. He said that the knife was normally used in relation to camping activities for cutting meat. 23. Both parents of the appellant gave circumstantial evidence. They verified the fact that their son had been at their house on a night which was probably that of the incident. The appellant's father said that the appellant had then taken some gear from his room, because the father had been putting pressure on him to get rid of it. 24. The bulk of the reasons for decision published by the learned magistrate consist of little more than a recitation of the versions of the narrative facts given by the various witnesses, rather than definitive findings of fact. Indeed, she did not ever resolve a number of important issues of fact which necessarily bore significantly upon the reliability and credibility of various witnesses who appeared before her and/or were directly germane to the charge against the appellant. This was most unfortunate, because a very strong element of the defence case was that the witness Constable Mensforth had been embarking upon a deliberate and specific campaign to harass the appellant and make life difficult for him. No findings were ever made on this issue, which necessarily touched on the question of credibility. Certainly, the transcript of evidence reveals that there had been a number of prior dealings between Constable Mensforth and the appellant and there was obviously no love lost between them. 25. It is necessary to point out that, upon a reading of the transcript and particularly the cross-examination of Constable Mensforth, one is left with the very distinct impression that her notes were far from complete as to what transpired on the night in question. In her answers in cross-examination she appeared to be more than a little coy on the issue of the changing of the front wheel of the Holden and also as regards the appellant's testimony that, at the time when the police arrived, he had only just got the replacement wheel on the vehicle and was doing up the wheel nuts. (He deposed that he had seen the police vehicle proceeding along the opposite side of the road whilst he was working on the wheel. He had, he testified, noted that it turned around, passed them, and came back to their position.) There were other features of her evidence which gave rise to concern. I shall return to them later. 26. In the course of her reasons for decision the learned magistrate directed herself as to the content of sections 5 and 15 of the Summary Offences Act. 27. The latter section inter alia provides:- 15.(1) A person who, without lawful excuse - (a) carries an offensive weapon; (b) ... (c) ... is guilty of an offence." 28. Section 5 of the statute in effect stipulates that where, in the Act, it is provided that an offence is committed if a person does an act without lawful excuse, the prosecution need not prove the absence of lawful excuse; and that the onus lies upon the defendant to prove the existence of any such excuse. 29. The learned magistrate expressed the view that the effect of the two sections was that, if the prosecution proved that an offensive weapon was, at the relevant time, in the possession of the defendant, then the onus lay upon the appellant to prove, on the balance of probabilities, that he had a lawful excuse for having it. 30. She went on to say that she had no doubt that the relevant knife was of the nature of an offensive weapon and was in the defendant's charge on the relevant occasion. It was therefore in his possession and, accordingly, in her view, an onus rested upon the appellant of proving "on the balance of probabilities the possession of the knife was in fact lawful". 31. I pause at this juncture to make the point that such a statement was, with respect, over simplistic. The knife in question was, by its very nature and on the evidence of the appellant, ordinarily designed for domestic and sporting purposes. No doubt it was also capable of use as an offensive weapon. As the Full Court held and in Chadbourne v. Ansell (1975) WAR 104 at 106, it is incumbent on the prosecution to prove that the appellant carried a thing that was not in common use for any other purpose than a weapon, or an instrument which has a normal use other than as a weapon if, on the occasion charged, it was intended by the appellant to be used as a weapon of attack. The prosecution evidence fell far short of doing so. (See also Sandaev v. Forster (1983 35 SASR 38 at 42-3, Considine v. Kirkpatrick (1971) SASR 73, Holmes v. Hatton (1978) 18 SASR 412.) 32. That aspect aside, it must also be said that, apart from the above express finding, virtually the only other positive conclusions arrived at by the learned magistrate in the course of her quite lengthy reasons for decision were expressed in this way:- "Constable Mensforth and Constable Chapman acknowledged that there may well have been other property in the car. Constable Mensforth noted that it was untidy and there was quite an amount of gear in the car. I noted the evidence of the defendant and also of Miss Ives that this knife, according to them, had previously been in a box in the wardrobe of the defendant's home. I also note the evidence of the defendant that the only occasion on which he had previously used this knife was primarily when camping and for cutting meat on those occasions. Miss Ives notes she had not ever previously seen the knife in the car before and that comment was also made by the defendant's father. Having considered all of the evidence in this case I am not satisfied that in fact the knife was in the car for a lawful excuse. I would find it very surprising a person when moving gear that was in a box would, for some reason, cause to take it out of the box and throw it on to the back seat. I accept that the knife was in fact observed in the console area of the car and I do not accept that it was in fact on the floor in the back of the car." 33. The reference to items in a box related to an earlier point in time, at which Miss Ives, who was in a de facto relationship with the appellant, had seen a box of miscellaneous items (including the knife) which used to sit in the bottom of the appellant's wardrobe at his home. Contrary to what was said by the learned magistrate, the appellant made no reference in his evidence to any box. 34. As I read the appellant's evidence, it was to the effect that, as he was leaving his parent's home earlier on the night of the alleged offence, he simply picked up a whole lot of items that had been left there and put them onto the back seat of his car. I cannot find any reference in the transcript to the appellant suggesting that he had positively taken the knife out of a box where it had been with other items, much less that the box was ever put in the car. On the contrary, he deposed that the knife had originally been on the rear seat of the vehicle with other items, but had fallen forward with some of them whilst he was driving. A good deal of the material on the back seat was, he said, related to his camping activities. 35. This seems to me to be a not unimportant consideration, because the very reasoning of the learned magistrate suggests that she was of the impression that the appellant had asserted that he had positively taken the knife out of the box and thrown it onto the back seat. It is far from clear to me as to how she arrived at such an impression. That impression obviously constituted a very important basis for her ultimate conclusions. 36. Be that as it may, I consider that, even if it could have been said that evidence properly admissible had established that the knife in question was an offensive weapon within the meaning of the Act, it next fell to the learned magistrate to determine whether or not the prosecution had proved that the appellant was, in the relevant sense, carrying that offensive weapon at the relevant time. In the event of a positive finding on that aspect she was then required to direct her attention to the issue as to whether, on the balance of probabilities, the appellant had a lawful excuse for carrying the weapon; a question which goes directly to the state of mind of the appellant at the relevant time (Crafter v. O'Reilly [1934] SAStRp 4; (1934) SASR 20, Wong Pooh Yin v. Public Prosecutor (1954) 3 All ER 31, Wilkins v. Condell [1940] SAStRp 20; (1940) SASR 139, Samuels v. Nicholson (1973) 6 SASR 479). 37. I first direct attention to the issue of what constitutes carrying an offensive weapon and whether there was evidence, properly admitted, to prove a relevant carrying. 38. The statute itself does not attempt to define the word "carries" beyond the provision in sub-section (3) of section 15 to the effect that:- "carry" includes 'to have on or about one's person'. 39. I took Mr. Stevens, of counsel for the respondent, to support the proposition that in concept the word "carries" in section 15 is directly equatable with the legal concept of possession - a proposition, which, as already emerges, was subscribed to by the learned magistrate. 40. In my opinion that contention is not sustainable in the context of section 15. The word "carries" is, according to its ordinary usage, susceptible of a variety of meanings and that which is apposite depends very much upon the context in which it appears. However, in its normally accepted sense, the word "carry" means to have about the person ready for use or to convey from one place to another or be the bearer of. So it is that the definition contained in sub-section (3) of section 15 extends that concept to include the mere fact of having an object on or about one's person, regardless of the purpose for having it or of the bearer's intention in relation to it. 41. It is to be noted that a key feature of the word "carry" is that it imports a concept of the object in question being actually on the person or, at the very least, about the person of the carrier. The word "about", in turn, also takes its flavour from its context, but essentially connotes a situation in which the item is near one's person in the sense of being in the immediate vicinity of a person so as to be directly accessible to that person. It essentially carries with it a sense of close proximity or, as it was put by Reed J. in Public Trustee v. Gill and Others [1934] NZGazLawRp 137; (1934) NZLR 832:- "... the word is a geographical expression involving the idea of a certain physical contiguity." A question of fact and degree is necessarily involved. 42. By way of contrast the concept of possession embraces situations which, potentially, are of a much wider nature again. It invokes quite different considerations and relationships. 43. The legal concept of possession extends to a situation in which, knowingly, a person has an item either in his or her physical possession or custody or under that person's immediate physical dominion or control. Here the critical ingredient is the right of and practical capacity for control, rather than a mere geographical nexus. (See, for example, the dicta of Mayo J. in Button v. Cooper [1947] SAStRp 27; (1947) SASR 286 at 292 and in Borrillo v. Bartlett (1966) SASR 286 at pp 287-8.) 44. It follows that, in my opinion, the learned magistrate clearly misdirected herself when she held that the "prosecution have to prove that an offensive weapon was in the possession of the defendant". Such an approach evinced a far wider test than that required by section 15 of the Act. 45. In this case a fundamental question arose both as to the admission of evidence of the finding of the knife and also the actual location of it in the vehicle, assuming that evidence of its existence was properly to be admitted. The precise location of the knife was, in turn, critical in relation to the issue of whether it could properly be said that the appellant was carrying it in the relevant statutory sense. I will deal with each of those aspects in turn. 46. I commence with the basic proposition that, accepting the premise that the appellant was initially in his car as she says he was, Constable Mensforth had no lawful authority to require the appellant to get out of the vehicle. 47. As already emerges, at the time the police officers had no reason to suspect that neither he nor Barefield had committed or were committing any offence, nor did Constable Mensforth even have reason to suspect that he had any weapon in his vehicle (transcript p 19). Her request, as she conceded, was part and parcel of the process of checking the whole of the appellant's car (transcript p 18) which was in fact then searched by another officer after Constable Mensforth had first shone her torch into the interior to look for weapons (transcript p 18). Even assuming that the knife was where she said it was, she may well not have seen it had she not required the appellant to vacate the vehicle. In short, this was no casual, accidental or fortuitous sighting of the knife, as Mr. Stevens of counsel for the respondent asserted. It was the direct product of unlawful conduct on the part of the police. 48. That conduct was unlawful in two ways. The demand that the appellant get out of his vehicle was itself unlawful. He was not being arrested, nor was there any situation giving rise to the exercise of any statutory power to require him to accede to the demand made. Moreover, despite Mr. Stevens' strenuous contention to the contrary, it is impossible to escape the clear inference that, at the point at which Constable Mensforth issued her edict to the appellant, that edict was the first active step in the ongoing process of an unlawful search of his vehicle which then ensued, portion of which was the shining of Constable Mensforth's torch into the interior of the vehicle and the finding and seizure by her of the knife. That total process clearly occurred in circumstances other than a situation falling within section 68 of the Summary Offences Act. 49. In the course of his judgment in The Queen v. Armstrong [1989] SASC 1999; (1989) 53 SASR 25, King C.J. roundly criticised the arrogation by police officers to themselves of such high-handed purported authority. Whilst the circumstances of that case differed in some respects from those of the instant case, the key principle is identical. If police officers deliberately exceed their authority by embarking on unlawful and unauthorised conduct which impinges upon the normal rights of a citizen then they cannot be heard to complain if the courts, in conformity with the approach enunciated in Bunning v. Cross [1978] HCA 22; (1978) 52 ALJR 561 and The Queen v. Ireland [1970] HCA 21; (1970) 126 CLR 321, exclude evidence obtained in the course of such activity. 50. On a weighing of the competing considerations therein adverted to in relation to a situation such as that now before me, public policy clearly demanded the exercise of a discretion to exclude the evidence unlawfully obtained by Constable Mensforth. Such an exclusion, of itself, necessarily sounded the death knell to the prosecution. It excluded any evidence as to the very existence of the knife in the appellant's car. 51. However, before parting from that aspect, it is here convenient to dispose of another point debated by Mr. Stevens. He sought to criticise the decision of the learned magistrate to exclude evidence of the verbal interrogation by Constable Mensforth of the appellant. He argued that, at the time at which the relevant questions were asked of the appellant, the situation did not fall within the Judges Rules (as set out in The Queen v. Lavery (No. 2) (1979) 20 SASR 430 at 467), because Constable Mensforth had not made up her mind to arrest the appellant. 52. What is here in issue is not some rigid application of the Judges Rules but an assessment by the judicial officer of what, in particular circumstances, is fair and just. The very tenor of the opening question asked by Constable Mensforth renders it quite apparent that it was highly likely that she would charge the appellant unless he could somehow exculpate himself on the issue of lawful excuse; and that great care would be needed in how he responded if he was not to incriminate himself by the very form of his answer. The learned magistrate considered that, in all fairness, a caution ought to have been administered prior to asking the question. I agree with her. 53. In any event, that aspect aside, I am of opinion that a broader basis existed for an exercise of discretion adversely to the prosecution. There was, as Mr. English of counsel for the appellant put it, a substantial basis for viewing the notes of the conversation made by Constable Mensforth with considerable reservation, both as to their comprehensiveness and accuracy. 54. Not only was she really unable to assert that they recorded the full conversation between herself and the appellant (including possible conversation as to the changing of the flat tyre), but she also deliberately refrained from affording the appellant the opportunity of perusing and signing or criticising them, when both Constable Mensforth and the appellant were at the police station. Her explanation for failing to do so, as recorded at p 12 of the transcript, verges on the incredible. Moreover, it does not ring true in light of the fact that it was demonstrated that, shortly prior to the incident of 25 July 1990, she and Constable Chapman had been involved in a trial before another magistrate in which this issue had been ventilated at some length. 55. There was, therefore, ample justification for the course adopted by the learned magistrate. 56. Further, it must be said in the plainest terms that the views expressed by Constable Mensforth as to her understanding of her obligations and departmental policy are not in accord with the attitude expressed by the courts as to the procedure proper to be adopted. Where notes of alleged conversations are made and the alleged maker of statements is readily available they ought to be put to the maker for either confirmation or objection as to their accuracy. (See Driscoll v. The Queen [1977] HCA 43; (1977) 15 ALR 47 at p 66.) A failure so to do could well lead to conclusions, in many cases, adverse to their use or the probative value of the evidence based upon them. 57. I return to the mainstream of these reasons. 58. Quite apart from the question of the need to exclude or reject the evidence of the existence of the knife, for the reasons already expressed herein, it is necessary to examine the contentions advanced by Mr. English concerning Constable Mensforth's evidence as to the location of the knife. 59. This is a topic as to which, it must be said, the reasons of the learned magistrate leave a great deal to be desired. They simply do not get to grips, in a satisfactory manner, with the important factual issues which were ventilated at trial. 60. A substantial attack had been mounted on Constable Mensforth's credibility in this regard on the basis of:- . her alleged prior statement to the accused that every

COLEMAN v. ZANKER No. 2147 of 1991 Judgment No. 3121 Number of pages - 12 Criminal law - offences (1991) 58 SASR 7 [1991] SASC 3121 (13 November 1991)

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COLEMAN v. ZANKER No. 2147 of 1991 Judgment No. 3121 Number of pages - 12 Criminal law - offences (1991) 58 SASR 7 [1991] SASC 3121 (13 November 1991)

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