Every so often, the Courts produce a judgment that neatly explains or clarifies a legal point.
Taikato v The Queen (1996) 186 CLR 454 is one such case. I don’t know why we haven’t made much use of it previously. (Perhaps it’s just me who missed it? In a way, it would be nice if that is so…)
Taikato neatly sets out lawful purpose and reasonable excuse for possessing weapons in public places.
On 26 March 1992, police officers searched Jo-Anne Taikato as she walked in Railway Street, Liverpool, Sydney. They found mace in her handbag. A few years earlier, Ms Taikato and her husband found a criminal trying to break into their home. The nefarious criminal tried to strike her. That frightened her so much she took to carrying mace in her handbag, to spray anyone who might attack her.
The police charged her with possessing a prescribed weapon contrary to s 545E of the Crimes Act 1900 (NSW).
The provision is now replaced by s 93FB. The offence is similar — though not identical to — the Control of Weapons Act 1990 (Vic) s 7.
At the time that provision provided:
545E Possession of dangerous articles other than firearms
(1) A person who, in a public place, possesses:
(a) anything (not being a firearm within the meaning of the Firearms Act 1996) capable of discharging by any means:
(i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or
(ii) any substance capable of causing bodily harm, or
(b) a fuse capable of use with an explosive or a detonator, or
(c) a detonator,
is liable, on conviction before a Magistrate, to imprisonment for 2 years, or a fine of 50 penalty units, or both.
(2) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose.
(3) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) (a) if the person satisfies the court that he or she possessed it for the purpose of self-defence and that it was reasonable in the circumstances to possess it for that purpose.
(4) In considering a defence under subsection (3), the court must have regard to its reasonableness in all the circumstances of the case, including:
(a) the immediacy of the perceived threat to the person charged, and
(b) the circumstances, such as the time and location, in which the thing was possessed, and
(c) the type of thing possessed, and
(d) the age, characteristics and experiences of the person charged.
At CLR 460 – 3, the majority1 said lawful purpose can mean a purpose that:
- is not forbidden or unlawful, or
- is positively authorised
Usually, lawful purpose means ‘not forbidden’.
But in this case lawful purpose meant ‘positively authorised’ because:
- It was an exception to a statutory provision making it unlawful to possess prescribed items
- Otherwise, the section would only create an offence of possessing a prescribed item in a public place. That wouldn’t be consistent with the purpose of the provision
- Otherwise, the defence of reasonable excuse wouldn’t be needed
- It was consistent with the principle of statutory interpretation that words are assumed to be used consistently in legislation. ‘Positive authorisation’ supported the proper operation of other weapon offences in the Act
At CLR 463, the majority said self-defence could not be a lawful purpose because self-defence isn’t an issue until a person is attacked or reasonably anticipates attack. Self-defence could only be relevant to lawful purpose if there was an actual attack.2
At CLR 464 – 467, the majority essentially said that reasonable excuse is determined by considering a person’s reason or purpose for possessing the prescribed weapon.
Carrying hairspray to style your ‘do is a reasonable excuse; carrying it to spray in someone’s eyes is not.
Carrying a weapon to hand in at a police station is a reasonable excuse.
But self-defence as a reasonable excuse for possessing a weapon required at least actual attack or fear of imminent attack.
This was 4:3 split in the High Court. The dissenters pretty much agreed that lawful purpose meant ‘positively authorised’, and that reasonable excuse was a jury question — did the person have an excuse, and was it a reasonable one?
What they disagreed on was how it was applied.
Dawson J said self-defence could be a reasonable excuse, relying on the continuity-of-lawful-purpose type argument found in Bell v Attwell (1988) 32 A Crim R 181. In this case, if Ms Taikato could lawfully use mace to defend herself at the time of an actual attack, she could lawfully possess it both before and after the attack. Practically, it would be silly if the law said, “You can only lawfully possess it for that precise moment you’re attacked.” How would she have it available to defend herself if she couldn’t carry it before hand? What would she do with it after the attack? I think they’re pretty good points, but, the majority held differently!
Gaudron J said self-defence could be a lawful purpose, even for a future possible attack, but would require a genuine reason to fear attack, and it was reasonable to possess the type of weapon at the relevant time and place.
Kirby J said lawful purpose related to the possession of the weapon, not its possible future use, and so self-defence could not be a lawful purpose. He too agreed that lawful purpose meant ‘positively authorised’.
Kirby J considered that self-defence could be reasonable excuse, and that it didn’t need to be as narrow as the legal concept of self-defence with the requirement for imminent attack.
1 Brennan CJ, Toohey, McHugh and Gummow J.
2 Dawson J agreeing at CLR 470.