COOKE v SOUTH AUSTRALIAN POLICE No. SCGRG-00-844 [2000] SASC 343

2 On 8 October 1999, police attended a premises occupied by the appellant. A bag in the appellant's bedroom contained a large quantity of cash which was subsequently the subject of an unlawful possession charge. The Magistrate dismissed that charge.

3 The bag also contained a canister which the police officer who located the bag described as a 'defensive spray'. In addition, a further 12 canisters were found on the floor of the bedroom. Photographs of those canisters were tendered in evidence. A second police officer gave evidence about the canisters. At the time of the search he had been seconded to the Drug and Organized Crime branch. He had previously been a member of the STAR division for seven years. He gave evidence that he had previously seen canisters of the nature of those under consideration and that he understood those items to be 'defensive spray'. No objection was taken to that evidence. During cross-examination the officer was asked whether he had ever heard of capsicum spray being used to subdue unpleasant violent dogs and he responded in the affirmative. He said subduing of dogs was not the only purpose. He agreed the spray was also 'good' for subduing people. The officer's answers were directed to canisters of the type before the court.

4 The appellant did not give evidence. He called a witness who said he gave the cash to the appellant for safekeeping while the witness travelled overseas. The Magistrate accepted the evidence of the witness in that respect on the balance of probabilities. During cross-examination, the witness admitted a conviction in April of 1988 for possessing a dangerous article, namely, a canister of dog spray. He said he owned three very large dogs and quite often needed the spray. His attention was drawn to a photograph of the canisters that were the subject of the charge against the appellant. He agreed he had been in possession of a canister of that type. The witness was asked about the canisters and gave the following evidence:

"Q. That [the substance in the canister] can disarm or at least pacify can it not, a dog.

A. Yes, that is what it has written on the canister. Contra Dog which is German for control dog.

A. I wouldn't know. I have never used it for that purpose. I believe pepper spray the police use is different to the dog spray.

A. Obviously must have pepper or something in it that irritates them.

5 The witness said that the appellant owned two dogs at the relevant time. He said that when he gave the cash to the appellant he provided the appellant with 13 canisters of spray because the appellant was looking after the witness's dogs while the witness was overseas. The witness denied he had been in possession of the canisters for the purpose of disarming a person.

6 In his reasons, the Magistrate observed that the charge now under consideration had been forgotten 'and was not properly addressed during the trial or in submissions'. His Honour commented that counsel for the appellant had thought that the appellant had pleaded guilty to the charge. No submissions were made at the end of the prosecution case that the prosecution had failed to establish a case to answer.

'The evidence clearly establishes that Cooke was in possession of the capsicum spray. There is evidence from Frankham of the use of that spray in order to ward off attacks from dogs. He told the court that it irritates dogs when you spray it in their face. Clearly the same spray would ward off an attack from humans. The law prevents an ordinary citizen from being in possession of the spray unless in special occupations. It is not a defence to this offence that he has it for the purposes of keeping dogs at bay.

In my view the evidence establishes that the offence has been committed. I find the defendant guilty.'

8 Section 15(3) of the Summary Offences Act defines 'dangerous article' as meaning an article or thing declared by regulation to be a dangerous article for the purposes of s 15. Regulation 4 of the Regulations under the Summary Offences Act provides that the articles in the Schedule to the Regulations are declared to be dangerous articles for the purposes of s 15. Paragraph 12 of the Schedule is in the following terms:

"12. Self-Protecting Spray - a device or instrument designed or adapted to emit or discharge an offensive, noxious or irritant liquid, powder, gas or chemical so as to cause temporary disability, incapacity or harm to another person."

9 Possession of the canisters was proved. The burden rested on the prosecution to prove that the canister was designed to emit or discharge an offensive, noxious or irritant liquid, powder, gas or chemical, so as to cause temporary disability, incapacity or harm to another person. Counsel for the appellant argued that the evidence was insufficient to prove any of those matters and that the writing on the canister was inadmissible for this purpose as reliance upon the writing would infringe the rule against hearsay.

10 The evidence established that the canisters were designed to emit a spray which was capable of irritating a dog and of deterring a dog from biting when sprayed into the dog's face. Evidence was also elicited during cross-examination that the canisters of the same type had been used for subduing dogs and were similarly 'good' for subduing people. In my opinion, the totality of the evidence was sufficient to enable an inference to be drawn that the canisters were designed to emit, and did emit, a spray that was offensive or an irritant so as to cause temporary disability, incapacity or harm to a person for the purposes of par 12 of the Schedule.

11 Counsel for the appellant raised an interesting question as to whether it would be an offence to be in possession of an empty canister. The issue was not argued in full. In my opinion, the evidence was sufficient to infer that the canisters were not empty. Little point would have existed in the witness providing the packets of canisters to the appellant if the canisters were empty.

12 The Magistrate referred to the canister as containing 'capsicum spray'. That expression reflected the particulars of the dangerous article identified in the charge. However, no evidence was led to establish the composition of the contents. The questioning during cross-examination appeared to assume that the canisters contained such a spray. The label on the canisters is not sufficiently legible from the photographs to identify any words such as 'capsicum'. If the labels had been legible and referred to the contents in that manner, such writing would not have been admissible as proof of the contents. An attempt to use the writing on the label to prove the contents of a canister would have been an attempt to use the writing as evidence of the truth of the statement contained in the writing. Such use would have infringed the rule against hearsay (Patel v Comptroller of Customs [1966] AC 356, R v Romeo (1982) 30 SASR 243 at 262 and Holmden v Bitar (1987) 27A Crim R 255.)

13 Although the particulars of the charge referred to the dangerous article as a packet of "Oleoresin Capsicum spray", the essence of the charge was that the appellant was in possession of a packet of canisters which was a dangerous article for the purposes of the Summary Offences Act. In those circumstances, and in the absence of any objection or submission before the Magistrate concerning the adequacy of the evidence in respect of the charge or the particulars of the charge, in my opinion no injustice has been caused to the appellant. If necessary, it would be appropriate to amend the particulars of the charge to delete reference to the words "Oleoresin Capsicum".

14 As to the question of lawful excuse, the Magistrate expressed the view that it is not a defence to establish that the purpose of possession was 'keeping dogs at bay'. Although the witness called by the appellant said he kept possession of the canisters because he did not 'plan to get bitten' by his dogs or bitten by other dogs, the appellant did not give any evidence as to why he was in possession of the canisters. While the evidence of the witness established that the appellant was looking after the witness's dogs, there was no evidence as to why the appellant needed to be in possession of the canisters at his place of residence. No evidence was given as to the appellant's state of mind.

15 The burden rested on the appellant to establish on the balance of probabilities the existence of a lawful excuse for possession of the canisters. There may be an issue as to whether possession for the purposes of subduing a dog, should the need arise, amounts to a lawful excuse. The use of a spray for such purpose may amount to ill-treatment of a dog and may, therefore, be unlawful. In addition, possession in such circumstances could be seen as similar to possession for the purposes of possible future self-defence, a purpose which was rejected as a lawful excuse by the High Court in Taikato v R [1996] HCA 28; (1996) 186 CLR 454. I have not heard full submissions concerning these issues and it is unnecessary for me to decide them. Even if they were to be resolved in favour of the appellant, in my opinion the evidence of the witness, in the absence of any evidence from the appellant, was insufficient to discharge the burden resting upon the appellant to establish the existence of a lawful excuse for the possession of the canisters.