DPP v Hardman [2002] NSWSC 714 | Case summary

JUDGMENT 1 SIMPSON J: On 15 September 2001 the defendant, Jamie Ronald Hardman, was charged by Information with having in his possession, in a public place, a loaded firearm, contrary to s93G of the Crimes Act 1900. A hearing of the charge was conducted in the Moree Local Court on 12 March 2002. The magistrate dismissed the Information, holding that the prosecution had failed to establish a prima facie case. 2 Exercising the rights conferred by s104(2)(b) of the Justices Act 1902, the informant, David Minehan (one of the police officers who charged the defendant) appealed against the dismissal. Such an appeal is available only on a ground that involves a question of law alone. It is not contested that the matters raised on the appeal raise questions of law alone. The Director of Public Prosecutions ("the DPP") has assumed the conduct of the appeal. 3 The hearing in the Moree Local Court was short, and proceeded by the tender of an agreed statement of facts pursuant to s191 of the Evidence Act 1995, prepared statements of the informant and another police officer, and some short oral evidence from each of the police officers. It is convenient to refer to the agreed statement of facts. Its substance can be set out in full. It reads: "1. Firearm is not in issue. 2. That firearm was loaded is not in issue. 3. That defendant had possession of firearm. Public place and move so possession of that firearm in public place without lawful excuse is in issue. (sic)" 4 The evidence of the police officers, both oral and documentary, was not in dispute. In short, they stated that, shortly after midnight on the morning of 15 September 2001 (and in the company of others) they were patrolling an area called Watercourse Road, near Morialta Junction (which I take to be in the Moree district). They encountered the defendant's vehicle, which he was driving, and required him to stop for the purpose of allowing them to inspect animal carcases he was transporting. One of the police officers requested the defendant to produce his firearm for inspection. The defendant passed a rifle to the police officers. It contained ammunition. However, prior to passing the gun from the vehicle, the defendant removed the bolt. 5 The magistrate gave extempore reasons for his conclusions that the prosecution had failed to make out a prima facie case. There appear to have been two main factors in his decision. The first, and most important, was that he held that the motor vehicle in which the defendant had possession of the firearm when in its loaded state (before being disarmed by the defendant) had not been shown to be a public place (although there was no question that the street on which it was stopped was a public place). The secondary reason concerned a conclusion that, at the time the defendant passed the gun from inside the vehicle to the police officers (and therefore to or over a public place) it was no longer loaded. 6 It is these findings that the DPP challenges on appeal. In giving his reasons the magistrate said, inter alia: "I have come to the conclusion that the inside of a motor vehicle is not a public place in these circumstances and consequently for the reason I have announced … the limb needed to be proven by the prosecution to establish a prima facie case i.e. public place has not been so proven. If Mr Hardman had handed the weapon out in a loaded state, handed the weapon to a police officer or anybody else for that matter standing outside the vehicle, then it would appear to me that the offence would have been made out in these circumstances even if the loaded firearm, even if the firearm was loaded inside the vehicle in ejecting the live round from the vehicle, beside the vehicle, he would seems (sic) to me to have disarmed it or unloaded it in a private place before it was translocated into a public place i.e. outside the vehicle." 7 Earlier, the magistrate had considered various instances of places that might properly be described as public or private. He included some consideration of circumstances in which a vehicle might become a public place. 8 Central to his reasoning was s8 of the Crimes Act which is relevantly in the following terms: "8. 'Public place', etc. Where, by this or any other Act, … any offence, … in a public place … is made punishable … the place shall be deemed public for the purposes of the enactment or taken to be otherwise within its meaning if the same, although a vessel or vehicle only, or a room, or field, or place, ordinarily private, was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise." 9 Curiously enough, although s8 has been part of the Crimes Act since its enactment in 1900, and has been the subject of judicial consideration on a number of occasions, the present point does not appear to have been directly raised for determination. The present point is whether a motor vehicle, when in a public place, is or is not itself a public place, or whether its physical construction somehow creates an exclusion zone that becomes a non-public place. It may be more accurately stated as whether a person or object wholly contained within a motor vehicle that is in a public place is himself, or herself or itself in a public place, or whether the motor vehicle creates a border, or island, within but not part of the public place. No court in this state appears to have been confronted with this question (at least no such case has been thrown up by counsel's researches). 10 There are, however, three interstate decisions that are relevant, all favouring the position adopted by the DPP. It may be noted at the outset that these cases are not binding on me, and that they must be treated with a certain degree of caution because in no case was there a section in the precise terms of s8. Notwithstanding that, the cases (and the legislation) have significant parallels to the present and are of persuasive authority. In McKenzie v Stratton [1971] VR 848, the Victorian Supreme Court considered a charge that the defendant was drunk and disorderly in a public place. The defendant was in fact found in a taxi-cab in a car park of a police station. At first instance a magistrate held that the taxi was not a public place and therefore the defendant was not found in a public place. 11 The charge was brought under the Summary Offences Act 1966 (Vic). That Act contained a definition of "public place" which was not set out in full in the judgment but is, to some extent, paraphrased. From that paraphrase it appears that the definition had some elements in common with the provisions of s8. However, Nelson J concluded that the evidence fell far short of bringing the taxi within the extended definition of "public place" in the Act. Nevertheless, his Honour held: "In the case of a man who is found drunk and disorderly in the front seat of a motor car in a public place I can see no reason to doubt that he is found in the public place. Whether the motor car is itself a public place is in those circumstances immaterial." 12 A very similar set of circumstances arose in Mansfield v Kelly; Langley v Bull [1972] VR 744. There two men were charged with being found drunk in a public place. The place specified in the Information was a public street. Again, the two men had been in a motor vehicle which was itself in a public street. Again, the magistrate dismissed the Information on the ground that the motor vehicle was not a public place. 13 The Full Court of the Supreme Court of Victoria held: "When the defendants were 'found' they were in the motor car, and we agree with the stipendiary magistrate that the motor car was not in itself a public place. But the motor car was then in Inkerman Street, so that, in our opinion, the defendants themselves were then in Inkerman Street. Where the motor car was, there were the defendants also. … The word 'in' in the expression 'in a public place' in s13 means or includes, in our opinion, 'within the limits or bounds of'; see the Shorter Oxford English Dictionary ." 14 Their Honours, however, recognised that fine distinctions might arise and they added: "Special questions might arise as to the applicability of s13 to persons found drunk in caravans, tents or the like in cases where the caravan, tent or other habitat or receptacle is itself in a public place. It may be that a person so found could not be said to be found drunk in a public place because of the degree of his insulation therefrom. The word 'found' in s13 means 'discovered' or 'seen; … But no such questions arise in the present case, and we express no views upon them. An ordinary motor car is not in the same category as a caravan or tent. Its occupants are readily visible to outside observers." 15 Finally, the Full Court of the Supreme Court of Queensland dealt with a comparable issue in Forte v Sweeney, ex parte Forte [1982] Qd R 127. In that case the relevant legislation (the Firearms and Offensive Weapons Act 1979 (Qld)) defined the term 'public place' as including every road and also including any vehicle for the time being used for a public purpose. 16 The respondent was charged with having in his possession in a public place a loaded firearm. The prosecution case was that the respondent had possession of the firearm in a motor vehicle which was on a public road. Yet again, at first instance, the magistrate dismissed the Information, saying that the definition of "public place" in the legislation precluded a finding that a motor vehicle was a public place. The definition was an inclusive one, incorporating into what is encompassed by "public place", inter alia, any vehicle which for the time being was used for a public purpose or for the time being was open to access by the public, whether on payment or otherwise. W B Campbell J, with whom the other members of the Court agreed, held: "Whether the motor car was in itself a public place is in my opinion immaterial in this case. The question here is whether the respondent himself was in a public place, and in my opinion the respondent was at the material time in a public place. He was physically within the confines of the public place and whether he was at that time in a motor vehicle does not seem to me to matter. It may be material for the purposes of certain legislation as to what he was doing in the particular motor vehicle …" 17 Although I am not bound by the decisions in those cases, and I must have regard to the peculiarities of s8, I am persuaded that the approach taken is correct. In McKenzie Nelson J expressed the view that the final determination of whether a place should be held to be a public place may and probably does involve a consideration of the nature and subject matter of the particular enactment and the evil which it was intended to restrain. While I can understand the reasoning, I am not comfortable with the implications of the proposition - that is, that, depending upon the subject matter and the purpose of the legislation creating the offence, the same place may be a public place for one purpose but not for another. I am also conscious of the distinction made in Mansfield and in Langley, that, while (for the purposes of the legislation there under consideration) a person in a motor vehicle on a public road might be in a public place, a person in a caravan or tent or the like may not be. These questions potentially give rise to anomalies in the construction of the legislation in question and the consistent application of the criminal law. 18 However, those considerations do not persuade me that I should conclude other than that the defendant's possession of the loaded firearm occurred in a public place. 19 While acknowledging that s8 does not constitute a definition of "public place", counsel for the defendant placed some reliance upon its terms. At first glance, it seems to me, the section does offer the defendant some comfort. On a superficial reading it appears to comprehend the proposition that, generally speaking, and absent the extension of the notion contained in the section, a vessel or vehicle is not a public place. However, that construction gives no weight to the words "ordinarily private". The relevant effect of s8 is to extend the meaning of "public place" to encompass, inter alia, a vessel or vehicle which is ordinarily private but which comes within the description in the section. 20 In my opinion, it could not be said that a motor vehicle on a public road is ordinarily a private place. It is no more and no less than a motor vehicle in a public place. Its occupants are not removed from the public place in which the vehicle is located by reason of the "insulation" or structure of the vehicle. 21 I am satisfied that the magistrate was in error in the approach he took to the meaning of the phrase "in a public place". 22 A second matter on which reliance was placed may be disposed of quickly. In reliance on s191 of the Evidence Act, the parties proceeded by way of an agreed statement of facts. This statement of facts included the fact that the firearm was loaded. However, the magistrate departed from that concession, holding that the gun was not loaded at the time it was passed from the motor vehicle to the police officer. This would be a matter of some significance if I had not held that the magistrate was in error in his approach to the question of whether possession took place in a public place, while the firearm was contained within the motor vehicle. However, having regard to that conclusion, it is necessary only to say that, the parties having put their agreement before the magistrate, it was not open to him to make contrary findings of fact, at least not before drawing the attention of the parties to what he was considering doing, and giving them an opportunity to be heard. 23 The orders I make are: (i) that the order of the magistrate dismissing the Information is quashed; (ii) I order that the matter be remitted to the Local Court to be dealt with in accordance with these orders and reasons. 24 The plaintiff, in the summons, claimed also a number of declarations, but, as presently advised, I see no utility in making such declarations. I will grant the plaintiff liberty to apply in the event that he perceives some reason why such declarations ought to be made.

DPP v Hardman

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