Hall v Collins [2003] WASCA 74

Weapons Act 1999 (WA), s 7, s 8, s 10, s 11

Weapons Regulations 1999 (WA), Sch 2, reg 7

Cooke v South Australian Police [2000] SASC 343

Denton v Bodycoat; Denton v Hickey [2000] WASCA 424

Tomarchio v Pocock [2002] WASCA 156

1 On 27 March 2003 I allowed the appellant's appeal, and entered a judgment of acquittal in his favour. I did not at that time deliver reasons for judgment. These are my reasons for the orders which I then made.

2 Mr Hall, the appellant, was charged on a complaint alleging that on 4 July 2002 he, not being a person exempted under s 10 of the Weapons Act, without lawful excuse possessed a controlled weapon. Although it was not particularised in the complaint, it is plain that the prosecution case was that the weapon in question was an oleoresin capsicum spray, which by virtue of Sch 2 of the Weapons Regulations 1999 is a controlled weapon. The evidence which was accepted by his Worship was broadly to the effect that the appellant had in his possession at the relevant time a spray canister labelled "Pepper Spray" and referred to by the appellant as "Pepper Spray". The appellant had had occasion to use it previously.

3 The appellant operated what was referred to as a "budget motel" and would have troublesome guests at least one or twice a week. These guests would behave on occasion in an extremely anti social manner, for example by smashing windows and fighting. There had been assaults at the motel. The appellant himself had suffered significant injury to his head at the motel which left him in danger of lasting harm in the event of him being struck in the same area of the head again.

4 The appellant had owned the pepper spray for what he described as "quite a while", being perhaps three or four years. He normally kept it at the office in case of hold-ups. On the particular night referred to in the complaint, he was called to a disturbance in one of the motel rooms and had taken the spray with him. Finding a person engaged in a violent scuffle with a guest, he had discharged the spray at that person. He was not charged with assault or with the unlawful use of the spray.

5 There are two grounds of appeal. The first is to the effect that there was no sufficient evidence from which his Worship could have inferred that the spray weapon was one which discharged oleoresin capsicum, so as to find it a controlled weapon. The second was that his Worship erred in law in failing to hold that the evidence established a defence pursuant to reg 7(2) of the Weapons Regulations 1999. In my view it is convenient to deal with the second of these grounds first.

The Weapons Act 1999

6 Although it appears to me that the regulation in question is tolerably clear on its face, the meaning of a number of provisions of the Weapons Act and of the Regulations appears even more plainly when considered against the background of the pre-existing law, and I briefly outline that background.

7 In the United Kingdom the closest analogous legislation appears to have been the Prevention of Crime Act 1953 which provided by s 1(1) that:

"Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence."

The question of whether a weapon might be carried for the purposes of defence was considered in Evans v Hughes [1972] 1 WLR 1452. The Divisional Court held that the fact that the carrier of a weapon intended to use it defensively did not prevent it from being an "offensive weapon". However, it could be a reasonable excuse for the carrying of an offensive weapon that the carrier was anticipating imminent attack and intended to use it for self-defence. In a consideration of earlier authority, Lord Widgery CJ at 1455 referred to and approved earlier decisions in which it had been said that "reasonable excuse" was intended to refer to the circumstances "immediately prevailing" at the time at which the weapon was carried. In the particular circumstances of that case, the defendant had been carrying an iron bar because he had been attacked by three men a week before, and was carrying it with the intention of using it for self-defence should he be attacked again. The court considered that it might be open to the justices to find a reasonable excuse in those circumstances but that because of the length of time since the attack, the case was "borderline".

8 A similar provision existed in South Australia in s 15 of the Summary Offences Act 1953 which provided that:

(a) carries any offensive weapon ... shall be guilty of an offence ... "

In Ford v Lindholm (1987) 45 SASR 445, this provision was considered by Millhouse J. His Honour in effect applied the English line of authority. He did so with some reluctance, in circumstances where the defendant in that case had been carrying two knives, one a Swiss Army knife and the other a short bladed knife. He used the knives partly for camping purposes but also explained that he carried them because he was involved in the live music industry, and that was an industry in which he considered it was desirable to carry them for personal protection.

9 In considering the requirement for imminence of attack, Millhouse J suggested that the law "has reached the edge of absurdity" (at 450). His Honour considered that most people would be surprised to be told that it was unlawful to carry anything for the purpose of using it for self-defence, and remarked that there was an argument that it was appropriate to permit law-abiding citizens to carry at least some items for that purpose.

10 In Western Australia, prior to the Weapons Act 1999, the relevant provision was s 65(4a) of the Police Act 1892. That read:

"Every person who, without lawful excuse, carries or has on or about his person or in his possession any ... other article made or adapted for use for causing injury to the person or intended by him for such use by him ... ". [Commits an offence.]

Miller J had occasion to consider the question of whether pepper spray or capsicum spray fell within that provision in Waterhouse v Pas, unreported; SCt of WA; Library No 980495; 1 September 1998. His Honour traced the history of certain amendments to that provision, and noted (at pages 7 - 8) that the Law Reform Commission of Western Australia in its report on Police Act Offences (Project No 85), considered that the scope of the section was "very wide". The Law Reform Commission commented that the provision was not confined to possession in a public place, as were the English provisions, nor to carriage, but included possession at home, so that those for example who kept a cricket bat in their home for protection, without fear of imminent attack, could commit an offence under the section. The Law Reform Commission assumed, as did Miller J (in my respectful view correctly) that the English line of authority which permitted carriage only where there was an anticipation of "imminent attack" was applicable to s 65(4a).

11 Finally, it should be noted that the question of "reasonable excuse" under the somewhat similar provisions of s 545E of the Crimes Act 1900 (New South Wales) was considered by the High Court in Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454. The majority of their Honours considered that a fear of attack, if well-founded, could constitute a "reasonable excuse" for possession of a dangerous item under that provision. Their Honours took the view that in determining whether the purpose of self-defence was reasonable in the circumstances, the court must consider all of the circumstances including the immediacy of the perceived threat, circumstances such as the time and location in which the weapon was possessed, the type of weapon possessed, and the age, characteristics and experiences of the person charged. A somewhat different view was taken by Dawson J, who considered that it was sufficient to establish the defence pursuant to s 545E, if the possession was by way of precaution against the possibility of an attack which would justify the use of the article.

12 Against the background of the pre-existing law, it seems clear that the Weapons Act 1999 was intended to alter the law in some respects. Dealing with possession of items such as baseball bats in a dwelling in order to defend persons at that dwelling, s 8 of the Weapons Act 1999 specifically provides that a person does not commit an offence if the person carries or possesses the article at the person's dwelling for such a purpose. The excuse of self-defence as a "reasonable excuse" is specifically excluded, in relation to controlled weapons, by s 7(3) of the Act. To that extent, the Act is more restrictive than the common law. However, s 7(4) provides that subs (3), excluding self-defence as a reasonable excuse, "does not apply to a controlled weapon of a kind prescribed for the purposes of this subsection as long as it is carried or possessed in such circumstances, if any, as the regulations may prescribe".

13 Regulation 7 provides that in respect of oleoresin capsicum, "s 7(3) of the Act does not apply ... if it is carried or possessed by a person for the purpose of being used in lawful defence in circumstances that a person has reasonable grounds to apprehend may arise".

14 Against the background of the pre-existing law, it appears to me to be significant that reg 7 does not make any reference to "imminent" defence, or to any form of temporal nexus between the possession and the possible need for defence. It is also noteworthy that the "circumstances" which are to be considered under that regulation are not the circumstances existing at the time of the possession or carriage; rather, they are circumstances which "may" arise in future. It appears to me that the wording chosen was, deliberately, somewhat broader than any of the formulations of the circumstances in which self-defence would be a reasonable excuse which are to be found in the cases dealing with earlier legislation both in the United Kingdom and in Australia. The reference to circumstances which a person has reasonable grounds to apprehend "may" arise appears to me to be close to the view of Dawson J in Taikato, that possession would be permissible if it was by way of precaution against the "possibility" of an attack, rather than to any other pre-existing formulation of what might constitute a reasonable excuse.

15 If it were necessary to seek confirmation of the view which I take of the intended meaning of reg 7, it appears to me to be amply confirmed by a reference to the relevant parliamentary debates. As well as having the Bill for the Weapons Act before it, it appears that Parliament also had, at the time of debating that Bill, a draft schedule of proposed Regulations. In this context, there was considerable debate about pepper sprays or capsicum sprays. It was noted that the police did not wish them to be generally available. However, the Hon Attorney General, who introduced the legislation into the Legislative Council on behalf of the Government, made it plain that it was the Government's intention that people should be able to carry such sprays for the purposes of defence. He noted that the actual protection provided by such a spray may not be great, but that it was considered important that people should be able to "perceive" themselves as being safer. That appears also to have been the view taken by those other members of Parliament, from all parties, who referred to this issue: eg 20 October 1998 page 2263, 2269; 23 March 1999 page 6836 - 6837; 2 June 1999 page 8673 - 8674. It was plainly intended that women carrying sprays when they go out in the evening, or older and frailer members of the community carrying them in situations where they felt themselves to be in danger, would not be committing an offence under the legislation.

16 In the view which I take of the Weapons Act and Regulations, then, it is not necessary that there be an imminent threat, before such a spray can be possessed or carried. It is enough that a person has reasonable grounds to believe that circumstances in which it may be necessary to use the spray for that purpose may arise.

17 However, this does not in my view mean that such spray can be carried at all times and in all circumstances. It is necessary for the person carrying the spray (the proof of lawful excuse being upon them pursuant to s 11 of the Act) to establish that there is an actual purpose of defence in circumstances which are reasonably anticipated. Looking, for example, at the circumstances of this appellant, the threat which he anticipates is obviously one which may arise from time to time at the motel. If he were to carry the spray in the supermarket in the middle of the day, there would be no reason to anticipate any threat in those circumstances and it would not therefore appear that the inference could be drawn that his purpose in doing so was for defence. Similarly, if he were to cease managing the motel, he would not be able to retain the spray simply on the basis that it had once been lawful for him to possess it. However, where a person envisages on reasonable grounds that circumstances requiring the use of the spray for self-defence may arise from time to time, it appears to me that possession on an ongoing basis must be envisaged.

18 It is plain that the appellant did have, based on the nature of the motel and his past experiences, reasonable grounds to apprehend that there would arise from time to time circumstances in which he might well be required to use the spray for the purpose of self-defence. His Worship accepted that the appellant possessed the spray for that purpose. On the day in question he not only possessed it, but also carried it. He carried it from the office only when advised that there was a disturbance of some kind, and it appears that based upon the history which he gave of incidents at the motel, and upon his description of the actual incident which met him when he attended at the room in question, that there were reasonable grounds for him to have apprehended that he may need to use the spray for defence of himself or of his guest.

19 His Worship took the view that, because of the earlier authorities to which I have referred, which dealt with somewhat different legislation, possession was only lawful when there was an imminent threat of violence. For that reason, his Worship considered that the appellant's possession of the spray for the long periods during which he did not actually use it would have encompassed a significant period of time when there was no imminent threat. It was for that reason that his Worship convicted the appellant.

20 It appears to me that the only reason that his Worship convicted the appellant was because of the finding that there was no imminent threat operating throughout the entire period of the appellant's possession of the item. For the reasons which I have endeavoured to explain, there was no requirement of imminence. Based upon the evidence which his Worship clearly accepted, it is my view that the only inference open was that the appellant did possess and carry the spray on the day in question for the purpose of lawful defence in circumstances which he had reasonable grounds to apprehend might arise.

Failure to prove the substance was oleoresin capsicum

21 It is my view that the conviction should be quashed and a judgment of acquittal substituted based upon ground (2) of the grounds of appeal. It is strictly unnecessary, therefore, to consider ground (1). However, for the sake of completeness, I observe that I would also have allowed the appeal on this ground.

22 It is only a spray which discharges oleoresin capsicum which is a controlled weapon under the Weapons Regulations 1999. There was no testing of the item carried out by the appellant so as to establish what substance, if any, it did discharge.

23 It was sought to argue before me that "a pepper spray" and "capsicum spray" were necessarily the same substance. It is true that in the parliamentary debates the terms are often used interchangeably. It is also true that in common parlance a "pepper" is often used as another name for a capsicum. However, there are a variety of substances commonly described by the word "pepper" including the common spices known as black and white pepper. It is my view that it was not open to his Worship to take judicial notice of any proposition that pepper spray and oleoresin capsicum spray were synonymous terms. Judicial notice is only taken of something which is "so generally known that every ordinary person may be reasonably presumed to be aware of it" (Holland v Jones [1917] HCA 26; (1917) 23 CLR 149).

24 In view of the fact that there are a variety of irritant substances which in the general community are capable of being known by the name of "pepper", and in the absence of any evidence as to whether only one of them is capable of being modified so as to produce an irritant spray, it is my view that even the appellant's apparent admission that the substance was "pepper spray" was not sufficient to establish that the substance was a controlled weapon.