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Queensland Police Service v Pitt[2021] QMC 4

Queensland Police Service v Pitt[2021] QMC 4

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Police Service v Pitt [2021] QMC 4

PARTIES:

QUEENSLAND POLICE SERVICE

(prosecution)

v

RYAN JOHN PITT

(defendant)

FILE NO/S:

MACK-MAG-00005191/20

DIVISION:

Magistrates Courts

PROCEEDING:

Criminal Trial

ORIGINATING COURT:

Magistrates Court at Mackay

DELIVERED ON:

8 July 2021

DELIVERED AT:

Mackay

HEARING DATE:

22 February 2021

MAGISTRATE:

Acting Magistrate J M Aberdeen

ORDER:

Defendant is found Not Guilty

CATCHWORDS:

CRIMINAL LAW – WEAPONS – Possess knife in public place – knife out of sight in vehicle – “reasonable excuse” – “lawful purpose” – burden of proof of “reasonable excuse”

Weapons Act 1990 (Qld) s. 51

Taikato v R (1996) 186 CLR 454

Bell v Atwell (1988) 32 A Crim R 181 (SCNSW)

Lord v Dwyer [2009] QDC 407

Courtney v Thomson (2007) 170 A Crim R 233 (QCA)

SOLICITORS:

Mr N Coburn (for Police Prosecution Corps)

Defendant in person (not legally represented)

REGISTRY: Mackay

MACK-MAG-00005191/20(7)

QUEENSLAND POLICE SERVICE

v

RYAN JOHN PITT

DECISION

[01] Mr Ryan PITT is before the Court charged with one offence against the Weapons Act 1990, which can be shortly described as “possessing a knife in a public place”.

[02] This matter proceeded to trial before me on 22 February 2021, following which I reserved my decision to consider the evidence, and the application of the relevant law.

The charge:

[03] The charge against Mr Pitt is in the following terms –

“That on the 30th day of August 2020 at South Mackay in the Magistrates Courts District of Mackay in the State of Queensland one Ryan John PITT without reasonable excuse physically possessed two knives in a public place namely Paradise Street West Mackay”

[04] The offence is a summary offence, which carries a maximum penalty of 40 penalty units, or 1 year’s imprisonment.

[05] The charge is, of course, a criminal charge. The prosecution carries the onus of proving the charge beyond a reasonable doubt; and, if I am left in doubt as to proof of any of the basic elements of the offence, the Defendant is entitled to an acquittal.

Evidence at trial:

[06] The prosecution called three witnesses – Senior Constable Jared KNOX, Sergeant Clinton SKILLINGTON, and Constable Jade EMBLEM. The Defendant, Mr Pitt, gave evidence on his own behalf, but called no further evidence. The following exhibits were received into evidence –

  Exhibit 1[1] = CD footage from Body-worn Camera (Knox)

  Exhibit 2 = CD containing five (5) photographs of two (2) knives

  Exhibit 3 = CD footage from Body-worn Camera (Skillington)

  Exhibit 4 = CD footage from Body-worn Camera (Emblem)

[07] Constable Knox stated in evidence that he was working a 10pm to 6am shift in company with Constable Emblem. Constable Emblem was driving a police vehicle, and Constable Knox was seated in the front passenger seat.

[08] At about 5:48am, Constable Emblem turned from Connors Road, at Paget (a suburb), onto Paradise Street. As soon as that was done, Constable Knox saw, to his left, a white Land Cruiser utility, which was parked on the nature strip between Paradise Street, and Paget Street.

[09] Constable Knox saw a male person, wearing a blue t-shirt and dark shorts, standing at the front of the vehicle. He requested Constable Emblem to drive towards the Land Cruiser, but by the time they got there, the person in the blue shirt was no longer in sight. Constable Knox could see that there were two persons sitting in the front of the Land Cruiser utility – a male sitting in the driver’s seat, and a female sitting in the middle position on the front seat.

[10] Both officers alighted from the police car, and approached the Land Cruiser. Constable Know walked to the passenger side of the Land Cruiser, while Constable Emblem walked to the driver’s side.

[11] While Constable Knox was at the passenger’s side of the Land Cruiser, a male person, wearing a blue t-shirt, has arrived at the vehicle. Constable Knox activated his body-worn camera, and had a conversation with this person who, there was no dispute, was the Defendant Mr Pitt.

[12] As a result of this conversation, taken together with his earlier observations of the vehicle, the behaviour of the person in the blue t-shirt, and the demeanour of the female person sitting in the front of the Land Cruiser, Constable Knox formed a suspicion that one or more of the persons at the vehicle may have had possession of a dangerous drug. He detained all three persons at that time.

[13] Upon the arrival of Sergeant Skillington, Constable Knox requested the sergeant to remain with Mr Pitt, while Constable Knox commenced a search of the Land Cruiser.

[14] Constable Knox requested the female occupant of the utility – a Ms Stewart - to alight, which she did. She was then searched by Constable Emblem. Constable Knox walked around to the driver’s side of the utility, and the male occupant – a Mr Bell - who was seated in the driver’s seat, upon request, alighted from the Land Cruiser. Constable Knox then conducted a search of that person.

[15] Constable Knox then commenced to search the driver’s side of the front compartment of the utility. I was able to observe, on the body-worn camera footage, that there was a single front seat for the driver, and a wider seat on the passenger side. Between these two seats was what appeared to be a handle, which may have been a hand-brake release.

[16] As Constable Knox was searching the centre console area of the cabin of the utility, he produced, apparently from that area[2], what appeared to be a knife. He walked to the rear of the vehicle, where the three persons were located, and I could see on the recorded footage, in the early light, that there appeared to be two knives, each in a sheath.

[17] Constable Knox then had a discussion with Mr Pitt, who standing near the rear of the vehicle, about some other items not relevant to this charge. Constable Knox then walked to where Mr Bell was sitting on the ground, and at this point, it seems Mr Pitt may have seen Constable Knox holding the knives. Mr Pitt said:

  “They’re my pigging knives.”

 After further short conversation[3], Constable Knox said:

  Q: “These knives shouldn’t be in the centre console of your car.”

 A: “They’re my pigging knives. They live there. They’ve lived there for 20 years.”[4]

Constable Knox asked Mr Pitt if he was “going pigging now”. I was unable to discern, from the recording, Mr Pitt’s response; but Constable Knox stated “No”, and told Mr Pitt that he was seizing the knives, and that Mr Pitt would be charged for the knives. Mr Pitt stated[5]:

“That’s all I do mate, I go pigging all the time. They [ie the knives] live there”.

He told Sergeant Skillington[6] that he had last “gone pigging” 4 to 5 days previously, at Dar              ong[7] station. He also said that it was “well-known that all I do in this country is kill wild boars”; and that he had supplied some “thousand (?) tonne of pig”. He asked if his knives would be returned to him, and he was advised by the Sergeant that he would be charged with having the knives in a public place. He responded:

 “They’re not in a public place, they’re concealed in my truck”.

Sergeant Skillington then advised Mr Pitt that, under the law, his truck was a “public place”.

[18] By this time, I could see, with the arrival of daylight, that the Land Cruiser was parked on a concrete path – possibly a footway - which ran through the centre of the nature strip between Paradise Street and Paget Street. I could see that the Land Cruiser had, on the rear tray, a number of items, including a large “tradie’s box” along each side of the tray, as well as a bicycle.

[19] In due course, Constable Knox provided Mr Pitt with a Notice to Appear in respect of the charge of possessing the knives[8].

Evidence from Mr Pitt:

[20] Mr Pitt gave evidence that between 1995 and 2012, he was authorised by the DPI - which I take as the Department of Primary Industries – to catch and kill feral pigs, a function known, perhaps euphemistically, as a “field harvester”. Over this time he was instrumental in the obtaining for export of perhaps a thousand tonnes of feral pig meat. For at least part of that period, he was paid $1 per kilogram for the butchered meat. He gave evidence that he did not use firearms, but that he mainly used a rope to catch the pigs.

[21] While he was doing this, the knives (or other similar knives) were always kept in his vehicle for use in the processing of captured pigs. Harvesters would take the pigs to what were called “cold boxes”, located in country areas, where the meat would be put into refrigeration. This system, he said, was discontinued in 2014.

[22] At the time of the offence, “field harvesting” was no longer his main source of income. Yet it is reasonably clear that he was still “pigging”, as he termed it. His evidence was in general accordance with his statements to police on the morning of the offence. He was asked by the prosecutor:

  Q: They’re [ie the knives] always kept in the same spot in the vehicle?

 A: They’re kept – they’re jammed underneath – they’re out of sight, so, you know, so no one’s even knocked them off. You know what I mean…”             

[23] When he was spoken to on 30 August, he was working mainly as a tiler, and a concreter. His last pigging outing was “the Friday before” the Sunday[9]. There is some ambiguity as to this. He told police on 30 August that he had last been pigging “4 to 5 days”[10] previously; but he seemed to agree with the prosecutor, when asked in cross-examination, that it would have been “at least a week”[11] before his interception on 30 August.

[24] Cross-examination of Mr Pitt by the prosecutor was fairly brief, and focussed, it seemed to me, upon the lapse of time between his last “pigging” expedition, and the date of his interception in Paradise Street. Mr Pitt was not asked about any pigging activities after the 30 August.

The relevant law:

[25]  The Weapons Act 1990, as originally passed, contained no provision specifically aimed at the possession of knives in public places. By the amending Act No 48 of 1997, section 51 was introduced and was directed to the possession of knives in nightclubs, in the following terms:

  51.(1)  A person must not physically possess a knife in a night club unless it –

   (a) is used for the preparation of food being provided on the premises; or

 (b) is supplied by the operator of the premises for the consumption of food on the premises.

[26]  By section 31 of Act No 19 of 1998, section 51 was replaced with a prohibition upon               having physical possession of a knife in a public place, which has since been further               amended to extend specifically to a school. At the time of the incident under               consideration in this case, section 51 provided as follows:

 51 Possession of a knife in a public place or a school

  1. (1)
    A person must not physically possess a knife in a public place or a school, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units or 1 year’s imprisonment.

  1. (2)
    It is a reasonable excuse for subsection (1) to physically possess a knife—

(a) to perform a lawful activity, duty or employment; or

(b) to participate in a lawful entertainment, recreation or sport; or

   (c) for lawfully exhibiting the knife; or

(d) for use for a lawful purpose.

Example for subsection (2)(a)—

1 A person may carry a knife on his or her belt for performing work in primary production.

Examples for subsection (2)(b)—

1 A scout may carry a knife on his or her belt as part of the scout uniform.

2 A person may carry a knife as an accessory while playing in a pipe band.

3 A fisher may carry a knife for use while fishing.

Example for subsection (2)(c)—

1 A person who collects knives may exhibit them at a fete or another public gathering.

Examples for subsection (2)(d)—

1 A person may use a knife to prepare or cut food at a restaurant in a public place or when having a picnic in a park.

2 A person may carry a pen knife or swiss army knife for use for its normal utility purposes.

(3) However, it is not a reasonable excuse to physically possess a knife in a public place or a school for self-defence purposes.

(4) Also, it is a reasonable excuse for subsection (1), to the extent the subsection relates to a public place, to physically possess a knife for genuine religious purposes.

Example—

A Sikh may possess, in a public place, a knife known as a kirpan to comply with the person’s religious faith.

(5) However, it is not a reasonable excuse to physically possess a knife in a school for genuine religious purposes.

(6) In deciding what is a reasonable excuse for subsection (1), regard may be had, among 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.

(7) In this section—

knife includes a thing with a sharpened point or blade that is reasonably capable of—

(a) being held in 1 or both hands; and

(b) being used to wound or threaten to wound anyone when held in 1 or both hands.

public place includes a vehicle that is in or on a public place.

school means any part of the premises of—

(a) a State educational institution under the Education (General Provisions) Act 2006; or

(b) a non-State school under the Education (Accreditation of Non-State Schools) Act 2017.

[27] The 1997 provision, pertaining to nightclubs, was focussed on a quite narrow range of places (ie only nightclubs), and allowed only one “excuse” for possessing a knife under such circumstances, namely, that the knife was provided to the possessor by the operator of the venue for the preparation or consumption of a meal provided by the operator.

 The 1998 (and current) provision reached a much broader range of places, ie “public place”, and provided a number of excuses, which were structured around the concept of a “reasonable excuse”. The statute itself declared that some excuses would constitute a “reasonable excuse” (s 51(a), (b), (c) and (d), and ss (4)); but the Explanatory Notes for the 1998 amendment specifically provided that the “reasonable excuses” provided by the section itself were not intended to be definitive.[12]

The elements of the charge:

[28] It follows from the text of the section that, in order to find the Defendant guilty of the present charge, the following elements must be proved:

  1. (i)
    the Defendant physically possessed
  2. (ii)
    a knife
  3. (iii)
    in a public place
  4. (iv)
    without having a reasonable excuse for doing so

[29]  There is one further definition, contained in Schedule 2 (the Dictionary) to the Act, which is directly relevant in this case:

physically possess, a weapon, means physically hold or have an immediate ability to physically hold the weapon.

“physical possession”: 

[30] The idea of “physical possession” stands in contrast to “possession” simpliciter. The definition of “possession” in the Dictionary to the Act is a wide definition, which includes cases involving a right, or even an ability, to gain physical possession[13] - what is often called “constructive” possession. “Physical possession” is a much narrower term, and applies only where the possessor physically “holds” the thing, or has an “immediate ability to physically hold it”.

[31] In this case, the  items in question were located in a position between the two seats in the cabin of the utility, in the area of the handbrake lever, and the centre console. The Defendant’s description, which was not challenged, was that they were “jammed underneath” and “they [were] out of sight”. That they were accessible from the driver’s side is illustrated by Constable Knox’s retrieval of them from the driver’s side of the car.

[32] I think it is open to me to infer that, prior to his exit from the vehicle - seemingly before police had arrived – Mr Pitt had been seated on the far left of the front seat[14]. Whether he would have been able, when in the vehicle, from the far left of the front seat, to access the knives’ location has not been demonstrated in evidence. It would have required him to reach across the middle occupant (Ms Stewart), and then down, in order to access under the handbrake lever/console position. It may have been something of a stretch, but I think it is possible he may have been able to reach the knives, even if the upper part of his body may have intruded to some extent into the middle passenger’s space. I believe it could properly be said that his access would still have been “immediate”, within the meaning of the definition[15].

“knife”:

[33] The knives in question are depicted in Exhibit 2. They were at all times accepted by both parties to this matter as being “knives”, and no submission was made to the contrary. This element is clearly proved.

“public place”:

[34] The definition of “public place” in section 51(7) expressly includes “a vehicle that is in or on a public place”. There is no dispute that Mr Pitt’s Land Cruiser was a “vehicle”, or that the footway on the nature strip in Paradise Street would have been a “public place” at the relevant time. That is clear, in daylight, from Exhibit 1.

[35] Mr Pitt’s assertion to police that the knives were not in a public place[16], but in his truck, was erroneous. Any belief that Mr Pitt may have had about the nature of a “public place” in respect of the offence under section 51 was a mistake of law (even assuming that it was determined to be “reasonable”) and can provide no exculpation under section 24 of the Criminal Code.

“unless the person has a reasonable excuse”:

[36] A person will not commit an offence against section 51 if that person has a “reasonable excuse” for that possession.

[37] The concept of a “reasonable excuse” is well known to the law, and it’s content, in any particular case, is dependent upon its context[17]. Legislation restricting the possession and use of weapons, both in Queensland and elsewhere, has regularly employed the “reasonable excuse” qualification.

[38] Section 51 itself contains a number of specified circumstances which in and of themselves are declared, by the statute, to constitute a “reasonable excuse”. Those specified excuses include “to perform a lawful activity or employment”[18], and “for use for a lawful purpose”[19]. Each of these statutory excuses are illustrated by examples.

[39] The Act of 1998 which inserted section 51, largely in its present form, was accompanied by Explanatory Notes which, in respect of the purpose behind the proposed provision, explained:

“Clause 31 omits the previous section and replaces it with a new section that better reflects community and police concerns over the increasing use of knives to commit offences. The section provides police officers with authority to prosecute a person who is in possession, or carrying, a knife in a public place without reasonable excuse. This is achieved by defining the term “knife” and includes a reasonable excuse section which contains examples which are not meant to be definitive. Issues to have regard to when considering what is a reasonable excuse are also identified. The section also provides that the possession or carriage of a knife for self defence is not a reasonable excuse.”

[40] The Notes attest to a clear intention that the specified “excuses” were not intended to be “definitive”; although the specific excuses are each clearly and carefully stated, they were intended to be indicative, but not exhaustive.

[41] The evidence in this case concerning the proposed use of these knives is all “one-way”. They were intended, by Mr Pitt, to be used, and had in fact been used - perhaps as recently as the previous Friday - in the capture and control of feral pigs on a rural property. Further, Mr Pitt’s statement to the officers, early on that Sunday morning, made it clear that he is a regular “pig hunter” – “…that’s all I do…go pigging all the time…”[20]

[42] No submissions were addressed to me by the prosecutor as to the possible scope of the specified excuses in section 51; and Mr Pitt, not being legally represented, could not be expected to address these potential issues. Nevertheless, as is the case with matters of exculpation in criminal cases, it is my view that, especially in the case of an unrepresented Defendant, I should remain alert to the possibility that the possession in question, in this case, might be excused[21] by the statute itself.

“lawful activity” and “lawful purpose” – feral pigs:

[43] Feral pigs are not a protected species in Queensland. As a matter of common knowledge, they are the cause of much damage to agriculture, and as a result are categorised as an “invasive animal” under Schedule 2 of the Biosecurity Act 2014. I have been able to locate no express prohibition on the culling, or killing, of the species, provided at all times that it is done humanely.

[44] On the basis that a feral pig can be lawfully culled, and killed in certain circumstances, I would think that possession of knives for that purpose must constitute both a “lawful activity”, and a “lawful purpose”. It is permitted by law in Queensland, and acknowledged by implication in section 42 of the Animal Care and Protection Act 2001.

[45] The real issue in this case, and that to which the prosecution case was directed, was whether Mr Pitt’s possession, at the time of his apprehension at about 5:48am on 30 August 2020, was excused, on the basis that he was not at that time engaged in culling feral pigs. The prosecution’s proposition, as I understood it, was that Mr Pitt was not pigging at the time of the interception, and that it was some days since he last went “pigging”. It should be found, in accordance with these facts, that he had no “reasonable excuse”.

[46] Subsections (2)(a) and (2)(d) of section 51 contain no requirement of immediacy with respect to either use or purpose; with which compare subsection (7), which deals with access by the possessor. But the submission by the prosecutor would appear to require that a temporal element is to be implied which would limit any otherwise “reasonable excuse” to a specific time frame, capable of identification, and application, in each individual case.

[47] If a person is wearing a knife enclosed in a pouch, on a belt, which is intended for use in conjunction with that person’s employment, the excusal would have to extend beyond strict hours of work. Journeys to and from work must, on any reasonable interpretation, be included within a period of excusal. Further, it would be an extremely strict interpretation to hold that, should the wearer stop at the shops on the way to or from work, perhaps to pay a bill, or pick up a take-away, the excusal would not continue to apply.

[48] Every case which comes before this Court will bring forward facts which are unique to the particular incident under examination. It seems to me that it must be a question of fact, and perhaps, degree, based upon each individual case, whether a “reasonable excuse” has been made out.

[49] Some guidance might be gathered from the terms of subsection (6) of section 51, which provides:

In deciding what is a reasonable excuse for subsection (1), regard may be had, among 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.”

[50] The subsection attests to the relevance, in determining what constitutes a “reasonable excuse”, when and where the knife was in physical possession, and whether a reasonable person, or someone else in the vicinity, would have concern as to possible harm, or would feel threatened.

[51] The introduction into consideration of a “reasonable excuse” of a “reasonable person” is consistent with an interpretational history of “reasonable excuse”. In Pascoe v Nominal Defendant (Qld) No 2, Mansfield CJ said[22]:

“What is to be determined is whether the applicant [for an extension of time] has shown any cause which can be deemed by the Court to be a reasonable excuse. I think this means a cause which a reasonable man would regard as an excuse.”

[52] A similar approach has been taken in the United Kingdom in respect of possession of an offensive weapon in a public place. In Bryan v Mott, the Lord Chief Justice said[23]:

“…[it] is not necessarily a matter which turns upon the legality or illegality of his ultimate purpose. Has he got a reasonable excuse for having it in a public place? It seems to me that in deciding that question one has to introduce the element of the reasonable man.

In deciding whether there is a reasonable excuse one has to ask oneself whether a reasonable man would think it is excusable.”

[53] Looking at subsection (6), with respect to “the way it is held”, and “where”, the evidence shows that the knives were located somewhere below the handbrake lever, and the centre console. Mr Pitt’s evidence makes it clear that they were “concealed”[24]. They were not in open view – eg on a seat, on the floor, on the dashboard, or even in an unlocked glove-box[25]. They were, quite deliberately, hidden from view.

[54] The inclusion of “when” in subsection (6) confirms that there is a temporal dimension within the notion of a “reasonable excuse”, but the Legislature has avoided including any specific criteria as to time. The charge, of course, alleges a temporal element by reference to a specific date – namely 30 August 2020. The relevant time involved, in this case, extends from midnight on the 29 August to about 5:48am on the 30 August.

[55] It would seem to me that it would be placing a gloss on the words of the statute to contend that there should be a particular “cut-off” period of grace - perhaps “24”, or “48” hours;  or “1” day, or 2, 3 or 4 days after work, or some other permitted activity - allowed in respect of (in this case) “a lawful purpose”. Rather is a temporal element simply one of the factors which the Court should take into account in an overall consideration of all the circumstances

[56] In Bell v Atwell[26], Justice Campbell, sitting in the Supreme Court of New South Wales, considered a case where the appellant had a pocket-knife, for use in his work, in a pouch on his belt, well after he had completed work. The charge under the relevant legislation allowed for a defence of “lawful purpose”, rather than “reasonable excuse”. The appellant had been convicted of the offence by the Magistrate, who found that:

“…it could not be said that at the time he was taken into lawful custody he had the knife in his possession for a lawful purpose.”                            [italics added]             

[57] The facts were summarised by his Honour, as follows:

The evidence established that on the day in question [the Appellant] had motorcycled to Sydney from the said property where he worked wearing his belt on which was the pouch containing the pocket knife. Evidence further established that when he went out that night he put on the same pair of trousers he had worn to motorcycle to Sydney. The trousers still had the belt with the pocket knife on it threaded through them. The appellant’s evidence was that he came to Sydney with only one belt, the one he was wearing, and that when he dressed that evening he did not think to remove the pocket knife from the belt.”

[58] The case has some similarity to the present case, in that in this case, the prosecution contends that the purpose for which the knife was being carried, at the relevant time and place, could not be a purpose which did not belong … to the immediate circumstances associated with that time and place, namely 5:48am on 30 August 2020, concealed in his car, in Paradise Street.

[59] On appeal, the conviction was quashed. Justice Campbell explained his approach in the following extract[27]:

“In my view the learned magistrate fell into error in this matter by taking the view that the purpose for which the knife was being carried at the relevant time and place could not be a purpose which did not belong simply to the immediate circumstances associated with that time and place but might encompass events, such as working at the farm, both before and after the events of the time and place in particular question.

If one looks at all the circumstances the correct analysis, on the facts found by the learned magistrate, is, in my view, that the appellant carried the knife for use in his farming activities, a clearly lawful purpose, and the fact that he did not think to remove it on the night in question explains why it was on his belt but does not alter the purpose for which it was being carried.

…it may be that in appropriate circumstances the failure to take advantage of an opportunity to remove the knife might throw doubt upon the reason why and the purpose for which the knife continued to be carried; but that opportunity alone cannot necessarily preclude a finding that a lawful purpose continued or existed.

In my opinion, on the facts as found by the learned magistrate there is no scope for any finding other than that the knife was being carried for a lawful purpose.”

This was, of course, a decision of a Judge of the Supreme Court of another State, sitting alone, on appeal from a Magistrate; but his Honour’s analysis was endorsed by the majority of the High Court in Taikato v The Queen[28], a leading authority in this country with respect to the expressions “reasonable excuse”, and “lawful purpose”, in the context of weapons-related legislation.

[60] Section 51 contains a number of express “reasonable excuses”. The everyday application of the section may, as time passes, raise other non-specified excuses, which a Court recognises as reasonable in the particular circumstances.

[61] On the facts in this case, and for the reasons I have set out, I have no real hesitation in finding that Mr Pitt had a “reasonable excuse” for possession of the knives in the circumstances in which he was intercepted.

[62] The knives were in a concealed position; they had been used for a lawful purpose perhaps as recently as the previous Friday[29]; he was “always” pigging, and there is no basis whatsoever for an inference that it would be a long, or even substantial, time, before he went pigging again. He could, of course, have taken the knives out of the truck. But his failure to do so in no way derogates from the basic fact that he had the knives “for use” – in terms of the section – for a lawful purpose[30]. The knife was also, in my opinion, possessed “to perform a lawful activity”, for the same reasons.

[63] Subsection (6) specifically looks to the possible effects upon other people of the possession in issue. There is nothing in the proven facts of the matter which points to any improper or inappropriate use of the knives, either at the time of interception, or at any other time – no display to any person, no threat made, nor any which could be inferred. There is, in short, nothing which could have the effect of rebutting a finding of “reasonable excuse” based upon possession for a lawful purpose.

[64] In considering all the circumstances of this matter, I have had in mind the observations of the High Court in Taikato’s case, which drew attention to the ascertained purpose of that legislation - to prohibit weapons in public places – not just where they were possessed for an unlawful purpose, but also where they were possessed for a quite lawful purpose; the mere fact that they were in someone’s close possession in a public place could give rise to a situation where a decision might have been made to use them[31].

[65] A question that I must ask myself, in this case, is whether a reasonable man would think it is excusable for Mr Pitt to have his pigging knives concealed in his truck, where he may have used them 48 hours before for pigging, and may have intended to use them again, for the same purpose or activity, in the near future[32]?

[66] In considering this question, I must also take into account that this is a penal act, and that I should not, after first applying the ordinary rules of construction, extend the operation of the statute to a case not clearly embraced within its terms[33].

[67] The majority of the High Court in Taikato, described the situation where a defence of “reasonable excuse” is provided within legislation[34]:

“… the reality is that when legislatures enact defences such as "reasonable excuse" they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of Parliament and give effect to their own ideas of what is a "reasonable excuse" in cases coming within s 545E even when it requires the courts to make judgments that are probably better left to the representatives of the people in Parliament to make.”

[68] Based upon Mr Pitt’s evidence, and his statements to police at the time of interception, taken with the evidence confirming the location of the knives, the fact that they were sheathed, and that they could not be seen by anyone, I find that he has made out a reasonable excuse for his possession of them at the time of his interception. In my opinion, he had them to perform a lawful activity; and for use for a lawful purpose; and further that a reasonable person, having considered all of the circumstances, would find that Mr Pitt had such reasonable excuse.

The burden of proof concerning “reasonable excuse”:

[69] In submissions, the prosecutor submitted that the burden of making out a “reasonable excuse” under section 51 lay upon Mr Pitt. Mr Coburn was able to refer me to the observation by Justice of Appeal Jerrard, in Courtney v Thomson[35]. In the course of his Honour’s dissent in that case[36], he noted:

“ … the Magistrate correctly held that the onus lay on Mr Courtney [the Appellant] to show a reasonable excuse, which the Magistrate said the police had given him the opportunity to do, and which he had refused to do.”

[70] In Lord v Dwyer[37], the Appellant had been convicted of possessing a knife in a public place under section 51. On appeal, his Honour Judge Samios observed that:             

“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.”

[71] More recently, in Fuller v RSPCA, His Honour Judge Smith JA, in a prosecution under section 161 of the Animal Care and Protection Act, had occasion to consider an offence which allowed to a defendant a “defence” where there was a “reasonable excuse” for non-compliance with an officer’s direction. His Honour considered the issue at some length[38], and found that section 161 placed the relevant burden upon the defendant. In the course of his consideration, he drew attention to the differing views which have been expressed in previous cases about the appropriate burden in “reasonable excuse” offences.

[72] In Dowling v Bowie[39], the High Court gave consideration to the matters relevant to a determination of whether a particular expression in a statute was a matter to be alleged and proved by the prosecution, or was a matter in respect of which the defendant carried the burden of proof. Dixon CJ said (at 139-140):

“The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification. See Barritt v. Baker [1948] VLR 491, at p 495. The distinction has been criticized as unreal and illusory and as, at best, depending on nothing but the form in which legislation may be cast and not upon its substantial meaning or effect. The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it. Cf. Pye v. Metropolitan Coal Co. Ltd. (1934) 50 CLR 614; (1936) 55 CLR 138; Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobson (1945) 70 CLR 635.”

[73] In Callanan v Witness M[40], Burns J had to consider an allegation of contempt against a witness before the Crime and Corruption Commission who had declined to answer particular questions. The particular provision under consideration was s.190(1) of the Crime and Corruption Act 2001, which was in the following terms:

190 Refusal to answer question

(1) A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer, unless the person has a reasonable excuse.

Maximum penalty—200 penalty units or 5 years imprisonment.

[74] In the course of his decision, his Honour had cause to consider the issue as to the onus of proof[41]:

“[31] The question as to which of the parties bears the onus of proof is less clear but whether the Act imposes the onus on the respondent to prove the facts required to establish a reasonable excuse or on the Commission to disprove the existence of such facts will depend on the legislative intention as discerned from the language of the relevant provision, its context and purpose. To assist in that task, the court was referred to a number of authorities including Chugg v Pacific Dunlop Limited, Ganke v Corporate Affairs Commission, R v Debono and R v QX.

[32] In Chugg v Pacific Dunlop Limited, the reasons of the majority contain the following statement of principle:

“… if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.

Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined “upon considerations of substance and not of form”… One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. … If the new matter is peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.”

[33] Here, the matter – “reasonable excuse”– accompanies the description of the obligation in s 190(1) of the Act and is part of the statement of that obligation. The same observation may be made about the references to that obligation in s 198(4)(c) and s 199(8A)(a)(ii) of the Act. “Reasonable excuse” is not set up as a new or different matter from the subject matter of the obligation and, unlike the legislation under consideration in both Ganke v Corporate Affairs Commission and R v Debono where the relevant matter was set out separately to the description of the obligation or offence, there is nothing in s 190 (or any other provision) to suggest that “reasonable excuse” is an exception in relation to which the witness bears the onus of proof. Rather, it should in substance be seen as a proviso to the statement of the relevant obligation. Nor can it be said that the subject matter will be peculiarly within the knowledge of the witness, as the affidavit evidence assembled in this case demonstrates. For these reasons, s 190(1) should be construed as requiring the Commission to prove the absence of “reasonable excuse”. Of course, there will be an evidential onus on the witness to raise the facts that are said to give rise to the claimed excuse, but the onus will then be on the Commission to prove that the excuse so raised is not reasonable.”

[75] I must admit to some difficulty in the task of discerning, from the relevant statutes the terms of which I have included by way of comparison, the basis for the differing approaches. Section 76 of the Justices Act, which was also referred to by his Honour Judge Smith in Fuller, does not, of itself, prevail over the traditional position outlined in Dowling v Bowie[42], and confirmed in Chugg v Pacific Dunlop Limited[43]. The phrase “unless the person has a reasonable excuse” is in regular use in Queensland law. This Court is usually the court of first instance when a statute which uses this formula falls for interpretation. Where an identical expression is used in different legislation, it would, of course, be most convenient if were to receive a uniform application. It is undoubtedly necessary that, in a case where a variation in its application is clearly indicated, then that must be capable of being applied. There is, in my respectful view, much to be said in favour of Justice Burns’ approach in Witness M, which seems to be in accordance with the relevant pronouncements of the High Court. Where the effect of a particular interpretation is a displacement of such a fundamental rule as that in Woolmington v DPP[44], the necessity for that course should be irresistibly clear[45].

[76] Nevertheless, Mr Coburn’s submission, which drew my attention to Justice Jerrard’s opinion[46], deserves the most serious consideration. While not forming part of the ratio in Courtney’s case, his Honour’s observation, on the same section of the Weapons Act, reinforced as it is by his Honour Judge Samios in Lord’s case[47], has persuaded me that I should defer to Justice Jerrard’s great expertise and long experience  in criminal cases, and follow his considered opinion in respect of this charge.

Orders:

[77] I find that Mr Pitt is Not Guilty of this offence. I dismiss the charge, and I discharge Mr Pitt. I order that the property the subject of the charge be returned to Mr Pitt.

J M Aberdeen

Acting Magistrate

Mackay

8 July 2021

Footnotes

[1] This exhibit contained three e-files, which I will refer to as 0538 (duration = 14:27), 0553 (duration = 8:16) and 0606 (duration = 5:19).

[2] Exhibit 1, file 0553 at 3:27.

[3] Pertaining to other property which had been found during the search.

[4] Exhibit 3 at 16:57.

[5] Exhibit 1, file 0553, at 6:12.

[6] Exhibit 3, from 20:40.

[7] Spelling uncertain – phonetically “Darong”. Sgt Skillington heard the name as “Taroom”.

[8] Constable Emblem’s brief evidence was corroborative of evidence already provided by the other officers.

[9] See Transcript p 1-24 lines 21 to 41.

[10] See [17] above.

[11] Transcript 1-24 at line 33. Mr Coburn, the prosecutor, was also cautious in his submissions on this point: “…roughly four to five days ago up to over a week…”: Transcript 1-31 line 28.

[12] See [39] below.

[13] See eg Pollock & Wright on Possession in the Common Law (1888) at pp 25, 27.

[14] There is nothing in the evidence, in my view, which would justify an inference that Mr Pitt had been sitting in the driver’s seat prior to police arrival.

[15] See eg the discussion in R v Pickard [1959] Qd R 475 at 476 per Stanley J, cited with apparent approval in R v Barrow [2001] Qd R 525 at 532 (40).

[16] See [17] above – “…they’re concealed in my truck…”.

[17] Solway v Lumley General Insurance Ltd [2003] QCA 136 at [10].

[18] Section 51(2)(a).

[19] Section 51(2)(d).

[20] See [17] above.

[21] Although, rather than an exculpation, as one finds in Chapter V of the Criminal Code, the “reasonable excuse” stipulation, in my opinion, is an element of the offence, and is primarily a matter of proof: “The offence…is not committed by being in possession of an offensive weapon in a public place, but only by being in possession of an offensive weapon in a public place without…reasonable excuse”: per R I Card, “Authority and Excuse as Defences to Crime” [1969] Crim LR at 359. The question of the burden of proof is discussed below.

[22] [1964] Qd R 373, at 378.

[23] (1976) 62 Cr App R 71 (DC), at 73; Prevention of Crimes Act 1953, s 1(1). The first sentence of this observation must be read against s. 51, which allows the excuse in respect of certain “lawful” activities.

[24] See [17] and [22] above.

[25] It could well be that the keeping of a knife in the locked boot of a vehicle, or in a locked “tradie’s box”, as opposed to being in open view, would, in any case, be relevant to the determination of “reasonable excuse”.

[26] (1988) 32 A Crim R 181.

[27] At 183-184.

[28] (1996) 186 CLR 454, at 462, 2nd para. It was also cited, with apparent approval, by Justices Gaudron and Kirby, in dissent as to the result, at 478 and 481 respectively.

[29] Mr Pitt’s first assessment since last use, as at early Sunday morning, was 4 to 5 days. That, I suspect, is probably more reliable than the “week or more” as put to him by the prosecutor six months after the event. I keep in mind, in this respect, the exchange, in respect of dates, between Mr Pitt and Sgt Skillington concerning the dates of his “pokie” winnings, which were apparently evidenced on his mobile phone. I am not prepared to find that the “Friday”, to which he referred, was the Friday of the 21 June 2020, which would have been some 12 days before interception. The date of his visit to the station in question could, it seems to me, have been the subject of evidence from a more reliable source than Mr Pitt, should such have been desired. I cannot exclude the possibility that Mr Pitt’s interception may have occurred less than 48 hours after he had finished pigging on the Friday.

[30] In this respect, I have had regard to the discussion on “lawful purpose” in Taikato v R (1996) 186 CLR 454, at 460-464, by the majority of the Court, and to the nature of the examples included with section 51(d).

[31] See Taikato, referred to above, at 459, 460, 461.

[32] The expression “for use” in s. 51(2)(d) is certainly capable of encompassing future use: compare R v McAnally [1979] Queensland Law Reporter (24 November) per the Chief Justice at p 2.

[33] See eg Flinders Shire Council v Smiles (1970) 43 LGRA 92, at 97 per W B Campbell J (as his Honour then was).

[34] Taikato, at 456.

[35] (2007) 170 A Crim R 233 at [38] (QCA).

[36] The majority consisted of Chief Justice de Jersey, and Justice of Appeal Holmes (as her Honour then was).

[37] [2009] QDC 407, at pp 1-2 to 1-3.

[38] [2021] QDC 94, at [75] to [97]. The section provided: “A person to whom an animal welfare direction has been given must comply with the direction unless the person has a reasonable excuse.”

[39] (1952) 86 CLR 136.

[40] (2017) 264 A Crim R 249 (QSC).

[41] With footnotes omitted.

[42] Cited above, which confirmed Barritt v Baker [1948) VLR 491 (SC); and see Macarone v McKone [1986] 1 Qd R 284 (FC), esp per GN Williams J at 297: “[section 76] is substantially declaratory of a long standing common law rule of evidence”; note also W K T Allen, The Justices Act of Queensland (3rd Ed, 1956) at 212.

[43] Provisions like section 76 leave the question ‘whether the matter in issue is an exception’ to be answered by the ordinary process of statutory construction: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, at 258.

[44] The significance of which was noted by the majority in Chugg v Pacific Dunlop, at 257.

[45] To adapt O'Connor J’s description in Potter v Minahan (1908) 7 CLR 277, at 304.

[46] Of which I was previously unaware.

[47] See also QPS v Skennar [2017] QMC 11 (Acting Magistrate Morrow).

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service v Pitt

  • Shortened Case Name:

    Queensland Police Service v Pitt

  • MNC:

    [2021] QMC 4

  • Court:

    QMC

  • Judge(s):

    J M Aberdeen

  • Date:

    08 Jul 2021

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