Cox v Salt (1994) 12 WAR 12

May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654

Moriarty v Lawson (1992) 6 WAR 294

R v Edmonds & Ors [1963] 1 All ER 828

R v Morris, unreported; CCA SCt of WA; Library No 970703; 15 December 1997

R v Nguyen [1997] 1 VR 551

The King v Regos and Morgan [1947] HCA 19; (1947) 74 CLR 613

Woodward v Koessler [1958] 3 All ER 557

The respondent stood trial before Mr K Moore SM in the Bunbury Court of Petty Sessions on 7 May 1998 on a charge that on 21 April 1998 at Bunbury he, without lawful excuse, had in his possession two pepper sprays, contrary to the provisions of s65(4a) of the Police Act 1892. He pleaded not guilty and was represented by counsel.

The prosecution case consisted of the evidence of a Detective Waterhouse, who testified that on 21 April 1998, in company with other officers, he had executed a search warrant at a dwelling at 42 Vickery Crescent, Bunbury where there were a number of persons present, including the respondent. The search of the premises and of a motor vehicle parked in the driveway led to the discovery of two canisters of pepper spray. When questioned in relation to these items the respondent initially indicated that one belonged to himself and one to a person named "Jules", whom the Detective took to be the respondent's girlfriend. The respondent stated that the pepper sprays were "for protection against Gypsy Jokers" which the Detective took to be a motor cycle group. A video recorded interview was then conducted between Waterhouse and the respondent, in which the respondent admitted that both pepper sprays were his and stated that they were the purpose of self defence. He explained to the Detective that a fellow member of his group had been attacked by a rival motorcycle group and on the basis that he thought he might be "next", he had acquired the pepper sprays for "self defence". The two pepper sprays were tendered as exhibits. One was in a canister, but one was not, and was attached to a keyring. It contained directions on it which read:

"Turn actuator button to ready to use position and aim at target. Depress button and spray. Maximum effective range up to 12 feet. Test fire monthly for familiarity and performance."

Other wording on the pepper spray included the following:

"Contents are dangerous and will cause pain and temporary impairment to eyes, nose, mouth and lungs. May cause other injury - use with caution - defensive purposes only. Severe irritant - avoid accidental contact with eyes, skin or mucous membranes."

On one side of the spray were written in large words:

Waterhouse was cross-examined by counsel for the respondent. He was asked whether the substance in the canisters had been tested, to which he answered in the negative. There were no further questions put to him.

At the close of the prosecution case the learned Magistrate cut short any submission from counsel for the respondent that by reason of lack of evidence of the content of the pepper spray, it could not be categorised as an "offensive weapon" within the meaning of the section. The learned Magistrate simply referred to the writing on the can as clear evidence of its purpose.

Counsel for the respondent then submitted that there was no evidence as to the effect of pepper spray, and, further, that a correct reading of s65(4a) of the Police Act 1892 indicated that a pepper spray was not in the same category as the various items which were there listed. It was put that the items specified in the section could be distinguished from the pepper spray in terms of the damage which they might cause.

The provisions of s65(4a) of the Act are in the following terms:

"(4a) Every person who, without lawful excuse, carries or has on or about his person or in his possession any rifle, gun, pistol, sword, dagger, knife, sharpened chain, club, bludgeon or truncheon, or any other article made or adapted for use for causing injury to the person, or intended by him for such use by him."

The learned Magistrate had no difficulty with concluding that a pepper spray was something that could cause injury, but nevertheless accepted the submission that s65(4a) of the Act covered "a completely different type of offensive weapon" from a pepper spray. His Worship said:

"... in my view there is a lacuna in the law in the sense that section 65(4A) of the Police Act covers a completely different type of offensive weapon. A pepper spray cannot be said to come within the ejusdem generis rule which section 65(4A) envisages. Mr McCormack was quite right when he says 'or any other article made or adapted for causing injury to a person', but it's any other article of that type. I don't think you can include a pepper spray with a gun or a sword or a dagger or a sharpened chain, bludgeon or truncheon. They're all weapons in a particular category. I don't think, with the best will in the world, you can include a pepper spray in it."

The learned Magistrate upheld the submission of no case to answer and dismissed the charge.

The appellant was given leave by Parker J on 5 June 1998 to appeal the decision of the learned Magistrate on the following grounds:

"(a) The learned magistrate erred in law in finding that pepper spray was not an article made or adapted for use for causing injury to the person within the meaning of section 65(4a) of the Police Act 1892; and

(b) The learned magistrate erred in law and fact in finding that the pepper spray was not an article intended by the Defendant for use by him for causing injury to the person within the meaning of section 65(4a) of the Police Act 1892."

At the hearing of the appeal the appellant was represented by counsel, but the respondent failed to appear. An affidavit of Adrian Robert Jones, sworn 25 August 1998, makes it clear that the respondent had ample notice of the hearing date and received all relevant documentation.

Counsel for the appellant submitted at the hearing of the appeal that there was no warrant for the learned Magistrate to have interpreted the words used in s65(4a) of the Act by reference to the ejusdem generis rule. Counsel submitted that the ordinary and natural meaning of the words in the subsection led to no ambiguity, and to the contrary, the scope of the words "or any other article" was clearly and expressly indicated in the general words following that phrase in the subsection. The point was properly made that if it were the case that the legislature had intended the specific articles listed in the subsection to constitute a genus of articles, giving rise to the application of the ejusdem generis rule, all that would have been required would be the use of general words such as "or other article". The appellant's submission was that the express provision of the criteria "made or adapted for use for causing injury to the person or intended by him for such use by him" left no room for the operation of the ejusdem generis rule.

Reference was made to the legislative history of s65(4a) which, it was argued, militated against the conclusion that the intention of the legislature was that the subsection should be interpreted ejusdem generis. Section 65(4a) was inserted into the Police Act by the Police Act Amendment Act 1956, and in its original form, it created an offence for a person without lawful excuse to carry or have on or about his person or in his possession "any rifle, gun ... or truncheon, or any other offensive or lethal weapon or instrument". In Chadbourne v Ansell [1975] WAR 104, the Full Court held that a small steel mallet carried for the purposes of protection or defence was not an offensive weapon within the meaning of the provision, and the Court (at 106) held that upon the true construction of s65(4a) as it then appeared in the Police Act, in order to establish the commission of an offence under that section, the prosecution was obliged to prove that a defendant, without lawful excuse, carried or had on or about his person or in his possession:

"(a) one of the named weapons; or (b) 'a thing that is not in common use for any other purpose than a weapon' - using the words quoted by Bray CJ at 74 of the report of Considine v Kirkpatrick, supra; or (c) an instrument which has a normal use other than as a weapon if on the occasion charged it was intended by the defendant to be used as a weapon of attack."

Following the decision in Chadbourne v Ansell, s65(4a) was amended by the Police Act Amendment Act (No 2) 1975 with the specific intention of overcoming the problem that the prosecution would otherwise be obliged to prove the three elements set out by the Full Court in that case. The Second Reading Speech, Police Act Amendment Bill (No 2) 1975, Hansard, Legislative Assembly, 14 August 1975, 2029, the then Minister for Police, Mr O'Connor, said:

"The courts recently ruled that a small steel mallet carried by a demonstrator was a defensive weapon as distinct from an offensive weapon and accordingly acquitted the man of a charge of carrying an offensive weapon. The position now appears to be that any demonstrator or other person can carry an undefined weapon of some kind without committing an offence so long as he does not use it in attack and claims he is carrying it for his own defence.

It is proposed to amend the section to make it an offence to carry any article made or adapted for use to cause injury or intended for such use. It is believed that this amendment will resolve the present problem."

It was argued by counsel for the appellant that the consequence of the 1975 amendment to the section was to now make the subsection very wide in its scope. Support for this argument is to be found in the Law Reform Commission of Western Australia's Report on Police Act Offences, Project No 85, August 1992, p120, where the following commentary on the section was made:

"12.10 Section 65(4a) was added to the Police Act because of the need for an offence to deal with the carrying of weapons. It was redrafted in its present form to make it clear that it covered weapons carried for defensive as well as offensive purposes. The scope of the section is now very wide. It is not confined to possession of a weapon in a public place but includes possession in a home. It applies not only to the particular weapons listed but also to '... any other article made or adapted for use for causing injury to the person, or intended by him for such use by him'. This is wide enough to include a short metal bar if it is intended to be used for self defence because this involves an intention to use it for causing injury. The fact that a person had possession of a weapon for self defence may not amount to a 'lawful excuse' to a charge under section 65(4a). In England it has been held that '... it may be a reasonable excuse for the carrying of an offensive weapon that the carrier is in anticipation of imminent attack and is carrying it for his own personal defence'. It was never intended to '... sanction the permanent or constant carriage of an offensive weapon merely because of some constant or enduring supposed or actual threat or danger to the carrier'. If this construction also applies to the defence of 'lawful excuse' in section 65(4a), those who keep a weapon such as a firearm, or even a cricket bat, in their home for protection without a fear of imminent attack would commit an offence under the section."

Counsel for the appellant argued that even if s65(4a) in its original form was intended and appropriate to be interpreted ejusdem generis, that intent could not now be said to have subsisted following the 1975 amendment. Further, it was argued that the subsection should be considered to have a wide scope by reason of the purpose of the subsection, which (it was argued) is to protect the community from violence by preventing the carrying or possession of articles capable of inflicting injury to the person. It could be expected (it was argued) that the legislature would wish to express the subsection widely so as to encompass the multitude of possible articles that could be devised from time to time to inflict injury on persons in the community.

In essence, I found the submissions of counsel for the appellant to be sound. In my view, there was no warrant for the learned Magistrate to interpret the words in s65(4a) by reference to the ejusdem generis rule. The ordinary and natural meaning of the words led to no ambiguity, and a pepper spray, prima facie, fell within the words "any other article made or adapted for use for causing injury to the person, or intended by him for such use by him". When seen against the background of legislative amendment and the Second Reading Speech to which I have referred, there is, in my view, no doubt that the legislature intended that an item such as a pepper spray should fall within the words "any other article" as used within the subsection.

Because the learned Magistrate considered that the words used in s65(4a) should be interpreted by reference to the ejusdem generis rule, it is appropriate to say something about the modern day application of that rule. More than half a century ago reservations were expressed in the High Court about the rule. In Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629, Starke J (at 639) said:

"The contention is that acts or omissions which the Governor-General may declare to be black marketing should be construed according to the rule or canon of construction called 'ejusdem generis' or 'noscitur a sociis.' It is not a rule of law. But where there are general words following particular or specific words the general words should be confined to things of the same kind as those specified. This 'rule of construction is subordinate to the real intention of the parties, and does not control it; that is to say, that the canon of construction is but the instrument for getting at the meaning of the parties, and that the parties, if they use language intimating such intention, may exclude the operation of this or, I suppose, any other canon of construction' (Thorman v Dowgate Steamship Co Ltd)."

More recently, in Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368, Mahoney JA expressed serious reservations about the applicability of the ejusdem generis rule. His Honour said (at 373-374):

"The ejusdem generis process of reasoning has had a long but varied history; is based upon a doubtful premise; operates by a mechanism which is uncertain; and, to the extent that it presently operates, in my opinion, has real effect to determine the construction of a statute only in a limited area.

The meaning of particular words may, of course, be ascertained by reference to the meaning of words with which they are associated. This, noscitur a sociis, was accepted as a process of interpretation as early as Bacon: see Bacon's Abridgement, Vol VII, p452, par 2; Jonmenjoy Coondoo v Watson; see Hay v Earl of Coventry. The process of reading down general words by reference to accompanying particular words, said to be a variation of noscitur a sociis, also has a long history, but one which has varied. In an early form, for example, it limited general words to the extent that a particularization of inferior persons or things was seen as indicating that the general words did not extend to superior persons or things: see, eg the Archbishop of Canterbury's case. The present ejusdem generis process, whereby general words are restricted by the genus of the foregoing particular words, emerged, it has been suggested, only at a later stage: see the article by Glanville Williams in (1943) 7 The Conveyancer and Property Lawyer (New Series), p119, at p120 et seq. Since the end of the eighteenth century it has, Dr Glanville Williams suggests, 'caused a great deal of litigation and seems frequently to have thwarted the intentions of the draftsmen of statutes, deeds, wills, contracts and memorandums of association.' "

"The importance of giving to words, including general words, their ordinary meaning has been repeatedly stressed: see, eg Rookes v Barnard. The increasing emphasis is upon this, as what Lord Simon of Glaisdale has described as 'the first and paramount' canon of construction: Maunsell v Olins. In Suthendran v Immigration Appeal Tribunal, his Lordship said: 'Parliament is prima facie to be credited with meaning what is said in an Act of Parliament. ... The drafting of statutes, so important to a people who hope to live under the rule of law, will never be satisfactory unless courts seek whenever possible to apply "the golden rule" of construction - that is, to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition.'

If, then, the use of surplus words is common, and it is the less appropriate to restrict the meaning of words otherwise general in their meaning for the purpose of achieving a construction which avoids a verbal surplusage, the traditional basis of the ejusdem generis rule appears substantially unsatisfactory.

If, in order to determine whether there is any, or what, genus, or whether the particular words exhaust that genus, it is necessary first to determine what was the relevant intention of that part of the legislation, the construction of the words may normally be best determined simply by reference to that intention, without the necessity of resorting to an artificial rule of construction.

The extent to which the ejusdem generis rule operates to require or lead to the selection of one construction rather than another is, in my opinion, limited. In Cody v J H Nelson Pty Ltd, a case where the operation of the rule was directly in issue, Dixon J, as he was, said: 'But, according to Asquith LJ, "the tendency of the more modern authorities is to attenuate the application of the ejusdem generis rule": Allen v Emmerson. If this be so, it is but the result of the greater freedom with which courts now use all rules and admonitions as to the interpretation of written instruments. In the modern search for a real intention covering each particular situation litigated, however much help and guidance may be obtained from the principles and rules of construction, their controlling force in determining the conclusion is likely to be confined to cases where the real meaning is undiscoverable or where the court of construction, sceptical of the foresight of the draftsman or of his appreciation of the situation presented, is better content to supply the meaning by a legal presumption than subjectively.'

At the present time, I would see the ejusdem generis rule as giving no assistance in determining the actual intention disclosed by the legislative language. I would, with respect, adopt the view of Dixon J that the rule is of assistance only where the intention is to be imputed rather than discovered. But even in such cases, I would doubt that it now embodies what experience shows to be the legislative intention as to the meaning of general words. The tendency should be, in my opinion, to adhere to the primary rule as to the meaning of words and to see the 'subordinate' rule of ejusdem generis as explaining how, if there is to be a limitation of the general words, it can be accommodated to the language."

Similar sentiments were expressed by Wells J in Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 587:

"The eiusdem generis rule has, from time to time in the past, appeared to exercise an almost hypnotic effect on courts and counsel. The latin words represent a convenient label when there is no doubt about the identity of that which is labelled. But the same words are invoked sometimes as though they represented a canon of construction that courts must apply unless good reason can be found for not apply it. I am of the opinion that the more recent authorities suggest that the reverse is true."

D D Pearce and R S Geddes, in their work Statutory Interpretation in Australia, 1996, (4th ed) at 104 describe the passage I have cited from Mattinson as a "swinging attack by Mahoney JA" and the passage I have cited from Brewarrana as a "similar, if less vigorous, refutation of ejusdem generis". They add this caution:

"... any drafter worthy of the name writes with the ejusdem generis rule in mind. The courts have left few straws for the drafter to clutch in the unenviable task of conveying the intention of the legislature. None of these should be lightly cast aside. The courts should think carefully, therefore, before rejecting the ejusdem generis principle as a canon of construction."

I accept the submissions of counsel for the appellant that the modern approach to the ejusdem generis rule is that it should not be applied without good reason and that the starting point in any exercise of statutory construction is to give the words used in the statute their ordinary and natural meaning. The rule is, in my view, of limited application and the criticisms of it which I have cited apply with full force to the reasoning adopted by the learned Magistrate in the present case. What his Worship did was look primarily to the ejusdem generis rule in approaching the interpretation of s65(4a) of the Act, rather than to the legislative intention of the subsection, as revealed by the words within it.

In my view it was open to the learned Magistrate to have concluded on the evidence before him that the respondent had a case to answer. The question which was then before him was not whether on the evidence as it stood the defendant ought to be convicted but whether, on the evidence as it stood, he could be convicted: May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at per Dixon CJ, Webb, Fullagher, Kitto and Taylor JJ at 658. As the Full Court has recently held in Morrison v Kiwi Electrix Pty Ltd & Rettay, unreported; FCt SCt of WA; Library No 980440; 6 August 1998, the question for a trial Judge (or Magistrate) where a no case to answer submission is made by an accused in reply to a prosecution case is whether the evidence of the Crown, taken at its highest, is capable of establishing beyond a reasonable doubt the guilt of the accused. Although that case was dealing primarily with the application of the test to cases involving circumstantial evidence, it has been made clear that any doubts which previously existed by reason of the decision in Briggs (1987) 24 A Crim R 98 at 104-105 about the standard of proof to be applied to a no case to answer submission are now to be resolved on the basis that the standard is the criminal one (see particularly Malcolm CJ at 17-18).

I am of the view that in the present case the learned Magistrate had before him sufficient evidence at the close of the prosecution case to establish that there was a case to answer. The evidence, taken at its highest, was capable of sustaining a verdict of guilty by proof beyond reasonable doubt. That was because the evidence established:

(a) the respondent, when interviewed by the investigating Detective, said that he had at least one of the canisters for protection against Gypsy Jokers - a rival motorcycle group

(b) in the course of a video recorded record of interview the respondent stated that he had both items for the purpose of self defence against anticipated attack;

(c) one of the items (and presumably the other which was in a container) made it clear by description on the item itself that it was a "pepper spray" for "personal defence" and something which, when used, would cause injury to others.

Although the respondent had said in the course of his video recorded interview that the only purpose for having possession of the two cans of pepper spray was to protect himself from possible attack, that of itself could not be said on a no case submission to mean that there was no evidence that the respondent was in possession of an article "made or adapted for use for causing injury to the person or intended by him for such use by him" without lawful excuse. In Evans v Hughes [1972] 3 All ER 412, Lord Widgery CJ observed in relation to a case in which a person had been carrying a short metal bar for the purpose and with the intention of using it only for self defence (at 415):

"The outcome of those authorities, and my own reading of the Act, assisted as it has been by counsel for the appellant's argument, is that it may be a reasonable excuse for the carrying of an offensive weapon that the carrier is in anticipation of imminent attack and is carrying it for his own personal defence, but what is abundantly clear to my mind is that this Act never intended to sanction the permanent or constant carriage of an offensive weapon merely because of some constant or enduring supposed or actual threat or danger to the carrier. People who are under that kind of continuing threat must protect themselves by other means, notably by enlisting the protection of the police, and in order that it may be a reasonable excuse to say, 'I carried this for my own defence', the threat for which this defence is required must be an imminent particular threat affecting the particular circumstances in which the weapon was carried."

In my view, there was a prima facie case against the respondent, and the learned Magistrate therefore erred in his ruling to the contrary. I direct that the appeal be allowed and the matter be remitted to the Bunbury Court of Petty Sessions for re-hearing before a different Magistrate. I make the latter order because the learned Magistrate expressed (understandably) some strong views about the dangers of use of pepper sprays and indeed invited the prosecutor to appeal his no case ruling. In all the circumstances it would be better that a Magistrate with no prior knowledge of the matter be allocated to the re-hearing of the case.