Banks v Commissioner of Police [2018] QDC 232

DISTRICT COURT OF QUEENSLAND CITATION: Banks v Commissioner of Police [2018] QDC 232 PARTIES: JOHN FREDERICK BANKS (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: 4962 of 2017 DIVISION: Appellate PROCEEDING: Appeal from Magistrates Court ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 26 October 2018 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 26 October 2018 JUDGE: Koppenol DCJ ORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW – APPEAL – CRIMINAL LIABILITY - DEFENCES – IGNORANCE AND MISTAKE OF LAW – HONEST CLAIM OF RIGHT – MISTAKEN BELIEF IN EXISTENCE OF STATE OF THINGS - where appellant convicted of unlawful possession of prohibited weapon (knife) – where appellant had been given knife as part of fishing tackle set – where appellant thought knife was non-prohibited fishing knife – whether defence available under s 22 or s 24 of Criminal Code Criminal Code, ss 22, 24 Weapons Act 1990, s 50(1)(c)(iii) Weapons Categories Regulation 1997, s 7A(d) Ostrowski v Palmer (2004) 218 CLR 493, applied Walden v Hensler (1987) 163 CLR 561, referred to R v Waine [2006] 1 QdR 458 (CA), applied Molina v Zaknich (2001) 24 WAR 562 (CA), referred to Pearce v Stanton [1984] WAR 359, referred to COUNSEL: A MacAdam for the appellant S Sherrie for the respondent -- 1 of 4 -- SOLICITORS: Office of the Director of Public Prosecutions for the respondent [1] The appellant was convicted in the Magistrates Court of the unlawful possession of a category M weapon, contrary to section 50(1)(c)(iii) of the Weapons Act 1990. The relevant weapon was a knife as described in section 7A(d) of the Weapons Categories Regulation 1997, namely: “a butterfly knife, a knife known as a ‘balisong’, a pantographic knife, or a similar device that consists of a single-edged or multi-edged blade or spike that fits within 2 handles attached to the blade or spike by transverse pivot pins or pantographic linkage and is capable of being opened by gravity or centrifugal force.” [2] The evidence before the Magistrates Court established that the subject knife was a knife as described in section 7A(d). [3] Mr MacAdam of Counsel for the appellant submitted that his client was not in unlawful possession of the knife. He relied upon sections 22 and 24 of the Criminal Code. Relevantly, those sections provide as follows: “ 22 Ignorance of the law—bona fide claim of right (1) Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence. (2) But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud. …” “24 Mistake of fact (1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. (2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.” [4] By way of background, the appellants’ vehicle had been intercepted by police officers for a random breath test. During the test, the officers noticed that a knife and other items (a knuckle-duster and some drugs) were on the front passenger’s seat in the vehicle. They asked the appellant driver about the knife. He said (and it was not disputed) that his father gave it to him as part of a fishing tackle set about 31 years ago, when he was only 15. His father had since died. [5] Mr MacAdam submitted that the appellant believed that the knife (which was in the custody of the Court and which I inspected during the hearing of the appeal) was a fishing knife and not a weapon. An examination of the transcript from the Magistrates Court supports that submission. He went on to argue that the appellant was afforded a defence to the charge by section 22 or section 24 of the Criminal Code. As can be seen, section 22 deals with ignorance of the law and a bona fide claim of right and section 24 deals with the effect of a mistake of fact. [6] Section 22(1) is not applicable here because the offence is not one in which knowledge is expressly declared to be an element of the offence. -- 2 of 4 -- [7] Section 22(2) provides a defence for an offence relating to property if the act was done or omitted to be done by the accused person in the exercise of an honest claim of right and without intention to defraud. No intention to defraud was suggested. There was some debate about whether or not the subject offence was one “relating to property”. Assuming that it is, the defence would then require the identification of an “honest claim of right”. [8] In R v Waine [2006] 1 QdR 458 (CA), Keane JA (with whom McMurdo P and M Wilson J agreed) said, of section 22(2), that (a) an accused person acts in the exercise of an honest claim of right in respect of the property the subject of the charge if he honestly believes himself to be entitled to do what he is doing in relation to that property (at [27]), and (b) it is not necessary that the right claimed be one known to the law (at [23]), but (c) an erroneous belief that what one is doing is lawful is a mere mistake of law and no defence under section 22(2) (at [25]). [9] Mr MacAdam submitted that his client’s belief that the knife was just a fishing knife was sufficient to engage the section 22 defence. [10] Mr Sherrie for the respondent disputed that approach. He relied on Walden v Hensler (1987) 163 CLR 561 and Molina v Zaknich (2001) 24 WAR 562 (CA) as illustrations of the meaning of “honest claim of right”. In Walden v Hensler, an Aboriginal man who was charged with keeping fauna (two plain turkeys) without a licence claimed that he had taken the birds as bush tucker in the exercise of traditional hunting rights. In Molina v Zaknich, a trade union representative who was charged with remaining on a building construction site without lawful authority claimed that he had a right to be on the site pursuant to the terms of a particular industrial award. [11] In the present case, the appellant thought that the knife was just a fishing knife. It was part of a box of fishing tackle that he had been given and he and his brother used it when they went fishing. The learned magistrate accepted that and also concluded that there were no sinister overtones in relation to the appellant’s possession of the knife. It was regarded as a family heirloom and an item of significance, particularly as the appellant’s father had since died. [12] However in my opinion, those circumstances do not raise for consideration the type of claim of right with which section 22(2) is concerned. A claim of a right to possess the knife because the appellant thought that it was just a not-prohibited fishing knife is in reality a claim founded upon an erroneous belief (whether by reason of ignorance or mistake) that what he was doing was lawful. [13] In those circumstances, I find that the relevant provisions of section 22 do not afford a defence to the appellant in the present case. [14] Reliance was also placed upon section 24 of the Criminal Code. Mr MacAdam submitted that section 24 enabled the appellant to rely upon his mistake of fact that the knife was just a fishing knife and not a prohibited weapon. If the appellant did the act (possessed the knife) under an honest and reasonable, but mistaken, belief in the existence of any state of things, then that would be a defence to the charge. [15] In Ostrowski v Palmer (2004) 218 CLR 493, a professional rock-lobster fisherman was fishing for rock lobsters in an area where (unbeknown to him) professional fishing was prohibited. He argued that his section 24 mistake was (a) one concerning the location of his fishing activities, and (b) sufficient to constitute a defence to the charge. -- 3 of 4 -- [16] The High Court considered the interaction between section 22 and section 24 and held that the case fell within section 22 and not section 24. That was because the appellant’s mistaken belief that the law did not prohibit fishing for rock lobsters in that area was not a mistake as to a fact or “state of things”, but a mistake as to the operation of the law. Gleeson CJ and Kirby J said (at 503) that “section 24 is not concerned with mistakes at large. In particular, it is not concerned with mistakes about whether there is a law against conduct of a certain kind.” [17] Each member of the Court concluded that the reference in section 24 to “state of things” was a reference to the state of things relating to the elements of the offence and not to the state of things as to whether the offence existed: see at 504, 515, 529. [18] Another rock lobster fishing case illustrates the distinction. In Pearce v Stanton [1984] WAR 359, a fisherman was charged with selling undersized lobsters. He successfully raised a section 24 defence because he had an honest and reasonable belief that the lobsters were the correct size. His belief as to the actual size of the lobsters was a belief in the existence of a fact which constituted one of the elements of the offence. Thus, section 24 applied. It would not have applied if he had been mistaken about the minimum size of rock lobsters permitted by law, as that would have been a mistake of law. [19] In the present case, the appellant knew that he had possession of the knife but thought it was just a not-prohibited fishing knife. In reality, it was a prohibited balisong knife. A defence under section 24 is not available if the relevant mistake is whether the offence existed. As a result, a mistake about the type of knife permitted by law is a mistake of law—and the appellant’s mistaken belief that his knife was just a fishing knife was a mistake of law. [20] It follows that this case, as in Ostrowski v Palmer, falls within section 22 (Ignorance of the law) and not section 24 (Mistake of fact), as the magistrate correctly concluded. [21] In the end, having considered all of the submissions made by Mr MacAdam and Mr Sherrie, I am satisfied that there was not any error of law on the part of the magistrate such as would justify allowing this appeal. [22] The appeal is dismissed. … [23] The subject knife will now be returned by the registrar to the Queensland Police Service. The appellant is at liberty to make application to QPS or other appropriate authority for a licence to possess the knife. -- 4 of 4 --