Lord v Dwyer[2009] QDC 407

[2009] QDC 407

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE SAMIOS

No 1847 of 2009

BRISBANE 

DATE 07/12/2009

ORDER

HIS HONOUR: On the 17th of June 2009 the defendant was found guilty by the learned Magistrate of the offence that on the 20th of November 2008 at Camp Hill without reasonable excuse he physically possessed a knife in a public place namely Boundary Road at Camp Hill.

Section 51 subsection (1) of the Weapons Act 1990 provides that a person must not physically possess a knife in a public place or a school unless the person has a reasonable excuse.

Subsection (2) of section 51 provides it is a reasonable excuse to physically possess a knife (a) to perform a lawful activity due to your employment or (b) to participate in a lawful entertainment, recreation or sport or (c) for exhibiting the knife or (d) for use for a lawful purpose. A number of examples are given in the Act.

Subsection (4) provides:

"In deciding what is a reasonable excuse for subsection (1) regard may be had, amongst other things, to whether the way the knife is held in possession or when and where it is held in possession would cause a reasonable person concern that he or she or someone else in the vicinity may be threatened or harmed."

There is no dispute the appellant had a knife in his possession. The issue is whether he was guilty of the offence, that is had he satisfied the learned Magistrate on the balance of probabilities that he had a reasonable excuse.

One of the police officers who attended the scene gave evidence before the learned Magistrate and said that they came to a property at Boundary Road, Camp Hill. They had been sent to attend a disturbance. The police pulled up the patrol car in the driveway prior to the job address and observed a male, the defendant, sitting in the gutter on the road.

Constable Dwyer got out of the motor vehicle and approached the defendant and observed he was holding a camping knife in his right hand. She immediately stopped and walked backwards because she was concerned because he had a knife. It was clearly visible to both herself and her partner and anyone else who was present.

She walked backwards and said, "I challenged him and said to the defendant, 'Put the knife down.'." or words to that effect. "Put the knife down. Why do you have a knife?  Put it on the ground. Show me your hands."  And at that time the defendant threw the knife to the right in her direction on to the ground. She describes in her evidence the knife as being a camping knife about 50 centimetres in length covered with an army green canvas style sheath.

When the appellant gave evidence he talked about the argument he and his partner had at the house that night. He said he had damaged a fish tank and cut his foot and his partner had told him to get out and did not want to see him again and she said, "Oh, take your stupid knife with you."  The appellant said he grabbed it and threw it  straight out the door and said, "There, the bloody knife is gone."  And he had thrown it out the front door over a porch and it landed on the driveway.

They then argued for another five minutes and he then left and as he walked out the driveway he saw the knife sitting on the driveway and as his partner said they have two small children and they play out in the yard he picked up the knife off the driveway and walked down to the end of the driveway and sat out on the gutter at the end of the driveway.   

He had the knife with him and he said to the learned Magistrate he picked it up and tossed it away a bit further and then he said the police arrived and they asked him why he had the knife and all that sort of stuff and then he was taken to the ambulance and went to hospital.

The learned Magistrate seems to accept the thrust of the evidence of Constable Dwyer and the appellant but comes to the conclusion, agreeing with the learned Prosecutor, that the defendant had other options with respect to the knife. The learned Magistrate states:

"He could have simply left it there and, as he said, went and sat in the gutter and waited for the police, having heard the police being called by the friend, and he does not take that option  or he doesn't take any other action to put it in some other appropriate place rather than taking it out into the gutter."

The learned Magistrate also accepts that the appellant had not threatened anyone, but he had ,physical possession of the knife, and he did not have a reasonable excuse for doing it therefore he found the prosecution had established all elements of the offence beyond reasonable doubt.

In my opinion there was a view of the facts the learned Magistrate could have taken that was consistent with the appellant having a reasonable excuse for possessing the knife. That is, it was open to the learned Magistrate to conclude on the facts that the appellant was taking possession of the knife for safe-keeping so that it did not fall into somebody else's hands, for example the children that lived in the house could come across the knife the next morning or some other person might take possession of the knife and immediately he was asked by the police to hand the knife over he did. He threw it in the direction of the constable.

While the constable may have been concerned when she saw the appellant with the knife, he immediately gave it over to her. Therefore, any concern was immediately allayed by the appellant's acceptance of the demand by the police to hand the knife over. That is consistent with his safe-keeping of the knife.

In those circumstances I come to the view that the learned Magistrate erred by testing the matter as to whether there was some other option. That might be relevant in other circumstances but, in my opinion, is not relevant in these circumstances when the facts leave it open to a view that the appellant was holding the knife for safe-keeping.

In those circumstances the learned Magistrate ought to have been not satisfied beyond reasonable doubt of each of the elements of the offence and ought to have found the appellant not guilty of the offence in the circumstances.

I therefore set aside the conviction and orders made by the learned Magistrate on the 17th of June 2009.