Director of Public Prosecutions v Zheng

1. [1]

   HIS HONOUR: By summons filed on 3 March 2020, the Director of Public Prosecutions (NSW) (“the plaintiff”) brought an appeal pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW) against a decision of Stapleton LCM given on 17 December 2019 at Burwood Local Court dismissing a charge “possess or use prohibited weapon without permit” under s 7(1) of the Weapons Prohibition Act 1998 (NSW) (“the decision”).

2. [2]

   The plaintiff sought orders allowing the appeal, setting aside the decision and remitting the matter to the Local Court (together with an order for costs).

FACTUAL BACKGROUND

1. [3]

   On 31 March 2018, Senior Sergeant Peter Boyce and Sergeant Paul McEvoy were rostered to perform licensing duties at the Royal Easter Show. In the course of their duties, they attended a stall owned by Jaincong Zheng (“the defendant”). Senior Sergeant Boyce introduced himself and Sergeant McEvoy, and informed the defendant that they had taken a toy gun from a patron. The defendant said that he would return the patron’s money, and did so.

2. [4]

   Senior Sergeant Boyce then identified an item in the display counter of the stall that he believed to be a butterfly knife which he knew was a prohibited weapon. He arrested and cautioned the defendant for possession of the butterfly knife. Senior Sergeant Boyce then asked the defendant whether there were other butterfly knives anywhere else in the stall. The defendant identified two further knives in the display counter and told Senior Sergeant Boyce that “[t]here are more of those in boxes underneath”.

3. [5]

   The police took photos of, and seized, numerous items from the stall.

4. [6]

   The defendant was subsequently charged with the following offences:

   1. (1)

      sequence 1: possessing a prohibited weapon (steel butterfly knife) without a permit, contrary to s 7(1) of the Weapons Prohibition Act;

   2. (2)

      sequence 2: possessing a prohibited weapon (85 star knives) without a permit, contrary to s 7(1) of the Weapons Prohibition Act;

   3. (3)

      sequence 3: possessing a prohibited weapon (two butterfly knives) without a permit, contrary to s 7(1) of the Weapons Prohibition Act (this sequence was withdrawn on 19 September 2018); and

   4. (4)

      sequence 4: having custody of an offensive implement (33 silver metal flat-bladed butterfly knives) in a public place, contrary to s 11B(1) of the Summary Offences Act 1988 (NSW).

5. [7]

   Sequence 1 was expressed in the Court Attendance Notice as follows:

6. [8]

   That charge was dismissed by Stapleton LCM, and is the subject of this appeal.

THE PROCEEDINGS BELOW

1. [9]

   The matter was heard by Stapleton LCM at Burwood Local Court on 18 June, 23 October and 17 December 2019.

2. [10]

   The prosecution called Senior Sergeant Boyce to give evidence and tendered his redacted statement, photographs of certain seized items and the actual items that had been provided to a ballistics expert, Senior Constable Greening. The prosecution unsuccessfully sought to tender an expert report of Senior Constable Greening over objection. No issue was taken on this appeal with that evidentiary ruling.

3. [11]

   At the outset of the proceedings, counsel for the defendant, Mr B Vasic made the following submission referable to sequence 1:

4. [12]

   On 17 December 2019, Stapleton LCM delivered judgment in the matter. Her Honour commenced judgment, with respect to sequence 1, noting that the onus is on the prosecution to satisfy the Court beyond reasonable doubt that the item was a prohibited weapon, namely, a butterfly knife.

5. [13]

   Stapleton LCM noted:

6. [14]

   Her Honour set out the relevant provisions of Weapons Prohibition Act, namely, Sch 1. As to cl 3, her Honour observed:

7. [15]

   Stapleton LCM commenced her analysis of whether the defendant for the purposes of the sequence 1 possessed a prohibited weapon, namely, a butterfly knife, by turning to the definition of a butterfly knife as follows:

8. [16]

   Stapleton LCM then turned to the meaning of the expressions “an edge” and “a spike” as follows:

9. [17]

   Turning to the submissions of the parties, Stapleton LCM made the following observations:

10. [18]

    Stapleton LCM then considered an argument advanced by the defendant and the Director’s reply (which attracted a submission from the Director in these proceedings as to error and inconsistency). That extract was as follows:

11. [19]

    Finally, Stapleton LCM’s findings in relation to the dismissal of sequence 1 were expressed as follows:

12. [20]

    Exhibit 1 in the proceedings below was the Statement of Senior Sergeant Boyce, dated 3 April 2018, which was before the Court as annexure “E” to the affidavit of Ryan James Thomas, dated 9 April 2020.

13. [21]

    By that statement, the officer deposed that Senior Sergeant Boyce and Sergeant McEvoy, during performing licensing duties at the Royal Easter Show on 31 March 2018, were called to the stall of the defendant. During his review of the stall, Senior Sergeant Boyce saw what he “believed was a butterfly knife” and after “closely checking how it opened and shut at which time [he] suspected it was a butterfly knife”.

14. [22]

    On questioning the defendant, Senior Sergeant Boyce stated, “This edge appears to be very sharp”, to which the defendant “said shaking his head ‘Sir, it’s just a toy’”. The defendant was then cautioned and arrested. The defendant stated to Senior Sergeant Boyce, “I understand but I did nothing wrong. I’m not going anywhere, Sir I do this for many years” and “I do the Easter Show for 7 years and the police said there was no trouble so why know?”. When asked whether he had other alleged butterfly knives, the defendant directed the officers to “2 types on the front counter and said, ‘There are more of those in boxes underneath’”.

15. [23]

    Senior Sergeant Boyce attended the Forensic Ballistics Unit at the Sydney Police Centre on 3 October 2018 and handed to Scott Dent the contents of “exhibit CX0002701764” which included the one single alleged “butterfly knife”, the subject of sequence 1, to which this appeal relates. The alleged butterfly knife, provided to the Forensic Ballistics Unit, was before the Court (marked Ex 1) and a photograph of the same can be seen at Exhibit 2 of the proceedings before this Court as “exhibit F” to the affidavit of Mr Thomas, dated 9 April 2020, labelled “Exhibit J2018/1263/5”. That photograph was also attached to the plaintiff’s written submissions dated 15 April 2020.

16. [24]

    It was agreed between the parties that possession was not in dispute. It was also not in dispute that the defendant did not have a permit to possess prohibited weapons. It was confirmed in cross-examination by Senior Sergeant Boyce that the defendant does not have any prior criminal record, although no character direction appears to have been made in this matter.

17. [25]

    As earlier mentioned, during the proceedings in the Court below, the defendant’s counsel objected to the evidence sought to be led from the Ballistics Expert called by the Prosecution, Senior Constable Steven Grenning, on the basis of expertise. A voir dire was held as to the defendant’s counsel’s objection to the tender of the Statement of Senior Constable Grenning. The Stapleton LCM upheld the objection and refused the tender of the statement, on the basis of a failure to expose the reasoning for the opinion and how specialist knowledge was applied to the reasoning to make the conclusions that ground the opinion. As a result, there was no expert evidence before the Court as to whether the alleged “butterfly knife” was regarded by an expert as a prohibited weapon within the meaning of the Weapons Prohibition Act.

GROUNDS OF APPEAL

1. [26]

   There were two grounds of appeal expressed as follows:

2. [27]

   It may be noted that the defendant contended that the submissions by the plaintiff and, in particular, the errors relied upon by the plaintiff, exceeded the scope of the grounds within the summons. Ultimately that issue was resolved by the parties accepting the following suggestion from the bench:

3. [28]

   In the result, the appeal went forward on the basis of the errors contended for by the plaintiff and set out in [47] of this judgment, which shall be referred to as the first, second and third error in the discussion of the parties’ submissions.

EXTENSION OF TIME

1. [29]

   Pursuant to a request filed on 9 January 2020, Stapleton LCM granted an extension of time, pursuant to r 6(2)(b) of Pt 51Bof the Supreme Court Rules 1970 (NSW), within which to institute the appeal.

EVIDENCE

1. [30]

   The evidence in the proceedings was as follows:

   1. (1)

      the affidavit of Mr Thomas, affirmed 9 April 2020;

   2. (2)

      the affidavit of Di Sun, affirmed 19 May 2020; and

   3. (3)

      the actual item the subject of sequence 1, being the physical object marked Ex 1 in these proceedings. It shall hereafter be described, for convenience, as “the butterfly knife” without an intention to intrude upon the ultimate question as to whether the object was caught by the definition of butterfly knife in cl 1(6) of Sch 1 of the Weapons Prohibition Act.

2. [31]

   The evidence was not the subject of objection.

Relevant Legislation

1. [32]

   Section 3(1) of the Weapons Prohibition Act sets out the underlying principles of the Act. That provision appears below:

2. [33]

   The relevant offence provision is s 7(1) of the Weapons Prohibition Act, which provides:

3. [34]

   Pursuant to s 4(1) of the Weapons Prohibition Act, a prohibited weapon is defined to mean “anything described in Schedule 1”. Schedule 1 sets out five categories of prohibited weapon:

   1. (1)

      knives (cl 1);

   2. (2)

      military-style weapons (cl 1A);

   3. (3)

      miscellaneous weapons (cl 2);

   4. (4)

      imitations, concealed blades, etc (cl 3); and

   5. (5)

      miscellaneous articles (cl 4).

4. [35]

   Clauses 1, 1A and 3 of Sch 1 are extracted in full below:

5. [36]

   Clauses 2 and 4 concern miscellaneous weapons and articles, respectively, and are extracted below:

PRINCIPLES OF STATUTORY CONSTRUCTION

1. [37]

   The general principles as to statutory construction were set out in The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd (in liq) (No 2) [2020] NSWSC 1571 at [32]-[35], as follows:

2. [38]

   In Application of the Securities and Exchange Commission of the United States of America under the Evidence on Commission Act 1995 (NSW) (No 2) [2020] NSWSC 1500, this Court also observed at [179]:

Weapons Prohibition Act: Relevant Principles

1. [39]

   Two decisions that concern the role of the objects and purpose of the Weapons Prohibition Act when interpreting Sch 1, generally, include Jacob v R (2014) 240 A Crim R 239; [2014] NSWCCA 6 and Director of Public Prosecutions v Starr (2012) 221 A Crim R 525; [2012] NSWSC 315 (“Starr”).

2. [40]

   In Starr, Adamson J considered whether a belt with a buckle in the shape of a knuckle-duster met the definition of “knuckle-duster” in cl 2(19) of Sch 1 of the Weapons Prohibition Act. Her Honour had regard to the object and purpose of the Weapons Prohibition Act in addressing the question of whether the buckle met the Sch 1 definition, citing s 33 of the Interpretation Act 1987 (NSW) (at [20]). In an observation that is apposite here, Adamson J held (at [51]) that:

3. [41]

   By contrast, in Jacob v R, Ward JA (as her Honour then was) and R S Hulme AJ held that s 3 of the Weapons Prohibition Act did not assist in determining whether an object is a prohibited weapon, because s 3 is predicated on the existence of a prohibited weapon. In a strong dissent, Johnson J disagreed. His Honour held at [56] that:

4. [42]

   Consistent with Adamson J’s approach in Starr, Johnson J identified the requirement in s 33 of the Interpretation Act to prefer the statutory construction that promotes the purpose or object of the Act (at [55]-[56]). Reading the objects section in context, his Honour held that application of the principles and objects of the Weapons Prohibition Act supported an expansive, rather than restrictive, construction of terms in that Act (at [53]).

5. [43]

   It may also be noted the majority decision in Jacob v R has been questioned and Johnson J’s reasoning (albeit in obiter dicta), in a recent decision of the Court of Criminal Appeal in El Ali v R [2019] NSWCCA 207, per Basten JA (with the agreement of Simpson AJA and N Adams J).

6. [44]

   I will return to this issue of principle below.

SUBMISSIONS FOR THE PLAINTIFF

1. [45]

   The plaintiff’s submissions were divided into three parts:

   1. (1)

      the question of jurisdiction, namely, whether the issue on appeal involved a question of law alone: s 56(1)(c) of the Crimes (Appeal and Review) Act (“the jurisdiction issue”);

   2. (2)

      the findings by the Court below and the proper interpretation of the definition of “butterfly knife” (“the primary issue”); and

   3. (3)

      the question of remittal, in the event the appeal is successful (“the remittal issue”).

2. [46]

   The following summary commences with the primary issue. The submissions advanced in that respect deal with the two grounds of appeal, which as mentioned earlier were expanded upon in the course of submissions by the plaintiff (although ground 2 is expressed in very general terms). I will separately return to the submissions advanced with respect to the jurisdiction and remittal issues.

The Primary Issue

1. [47]

   Ms M England of counsel for the plaintiff identified three passages of the judgment of Stapleton LCM as representing errors of law. In summary, they were as follows:

   1. (1)

      First, with respect to construction of the phrase “single-edged or multi-edged blade or spike” within the definition of butterfly knife. Her Honour erroneously approached the construction conjunctively; that is, her Honour held the definition should be construed so that the words “single-edged” or “multi-edged” applied to both the word “spike” as well as “blade” so that the word “spike” in the definition should be read to mean “single-edged spike” or “multi-edged spike”.

   2. (2)

      Second, Stapleton LCM erroneously held “the proper interpretation of the definition of butterfly knife to require the item to have a sharpened edge capable of cutting”. Her Honour erroneously made the following observations: “It has a blade, but not sharpened edges” and “the tip of the blade is a point which is sharp, but not sharped”. Hence, she held, “I’m not satisfied it falls within the definition of ‘spike’ and even if that point were in fact a spike, it does not have a sharpened edge, which it is required to do for the purposes of the definition”.

   3. (3)

      Third, Stapleton LCM held that if an item is a toy or imitation of a butterfly knife, it was, thereby, not a prohibited weapon within the category of knives. Her Honour held that “[w]hat is prohibited is the real thing”.

2. [48]

   Each of the above contentions, shall hereafter be referred to as the first, second and third error, respectively.

3. [49]

   Turning to the first error, it was contended that there are three textual indications that the word “or”, which should be read disjunctively, in the expression a “single‑edged or multi-edged blade or spike”, consistent with the general principle that the word “or” is generally used disjunctively in statutes. (See, for example, Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54; Cole v Minister for Immigration (2017) 324 FLR 431; [2017] FCCA 2234 at [47]; Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 at [53]). They are as follows:

   1. (1)

      The word “or” is clearly used disjunctively in the first part of the definition. Three different types of devices are listed: butterfly knives, or balisongs, or any other devices that fit the description (“the first part”).

   2. (2)

      In the middle part of the description, the adjectives “single-edged” or “multi‑edged” precede the noun “blade” only (“the middle part”). They are adjectives that by their meaning apply to a blade rather than to a spike. Accepting that (as her Honour noted below) a blade is relevantly the flat cutting part of a knife, and a spike is a sharp pointed piece of metal, it is a blade that must have one or more edges. A spike, by contrast, may have no edges at all, as with the sharp end of a round metal rod (such as a nail or a spear). This indicates that the adjectives “single-edged” or “multi‑edged” are not intended to apply to the word “spike” in the statutory description.

   3. (3)

      The word “or” is clearly used disjunctively in the last line of the description, which refers to “gravity or centrifugal force” (“the third part”). In circumstances where the meaning is disjunctive in the first and last parts of the description, and where the meaning of the adjectives supports a disjunctive interpretation of the middle part of the description, such an interpretation is internally consistent and is to be preferred.

4. [50]

   Stapleton LCM’s finding that, in order to be a “butterfly knife”, the device the subject of sequence 1 had to have a sharpened edge, was dependent on the middle part of the description in cl 1(6) of Sch 1 being read conjunctively. That is, her Honour found that in order to meet the definition of butterfly knife, the device had to have a single‑edged or multi-edged blade, or a single-edged or multi-edged spike.

5. [51]

   The reasoning of the Court below was also internally inconsistent Stapleton LCM noted that the word “edge” is relevantly defined as “the thin sharp side of the blade of a cutting instrument or weapon” and that “blade” is relevantly defined as “the flat cutting part of a sword or knife” (emphasis added). The concept of a single or multi-edged spike does not fit within this definition.

6. [52]

   As to the defendant’s submission that Stapleton LCM found that the definition of "butterfly knife" required either a spike or a blade, with a single or multiple edge (see at para 19 of the defendant’s written submissions), the plaintiff contended that was an incorrect statement of her Honour's finding. Her Honour found, it was contended, that, even if the item was a spike, it would still require a sharpened edge capable of cutting.

7. [53]

   The second error was described in oral submissions as the “real vice” within the decision below and the key finding of the Court below. Whilst extracted earlier in this judgment, it is convenient to repeat the relevant finding from the Court below. Her Honour held:

8. [54]

   The words “have a sharpened edge or edges” do not fall expressly within the definition provided by the Act. As mentioned above, the description in cl 1(6) of Sch 1 does not include any reference to the “blade” (or even the spike, for that matter) being either sharp, or sharpened. It appears that her Honour read that requirement into the statutory description by reference to the word “edged”, which the Macquarie Dictionary defines to include “the thin sharp side of the blade of a cutting instrument or weapon”. Stapleton LCM erred by reading into the statutory definition a requirement that the device have a “sharpened edge”, when the statutory requirement is simply a single or multiple edge. Stapleton LCM also erred by reading into the definition that the item must be “capable of cutting”, a requirement that itself does not form part of the Macquarie Dictionary definition on which her Honour relied. A dull knife still has an edged blade.

9. [55]

   Stapleton LCM’s observations about the “sharp, but not sharpened” point are inextricably bound up with the finding that an item must have a sharpened edge to fall within the statutory description of a butterfly knife, which, in light of the preceding submissions, it was contended, was erroneous.

10. [56]

    Furthermore, her Honour had noted earlier in the judgment that the definition of spike in the Macquarie Dictionary included “a sharp pointed piece of metal fastened in something with a point outwards as for defence or a stiff sharp pointed piece or part”. The word “sharpened”, which implies some deliberate act to create a point, does not form part of that definition. As long as the point was sharp – and Stapleton LCM found that it was – it satisfied the definition of “spike” on which Stapleton LCM relied. This aspect of the reasoning was contradictory. By failing to apply the dictionary definition of “spike” which was cited by the Court (and which was, with respect, correct), her Honour fell into further error.

11. [57]

    Turning to relevant authorities, whilst it was submitted there do not appear to be any cases directly on point, the plaintiff referred to Jacob v R and Starr. The plaintiff submitted that the approach of both Adamson J in Starr and Johnson J (dissent) in Jacob v R should be preferred to that of the majority in Jacob v R. The approach of Adamson J and Johnson J to interpreting the Weapons Prohibition Act was consistent with the requirements of the Interpretation Act and was also consistent with well-established principles laid down by the High Court (as to which, see for example Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (“Project Blue Sky”) at [78]). That is to find that the objects of an Act do inform the description provision or the definition provision.

12. [58]

    A statutory construction of Sch 1 that promotes the protective objects and purpose of the Weapons Prohibition Act highlights the error in the approach of the Court below. Clause 1(6) does not require a butterfly knife to have a sharpened edge capable of cutting, and such an interpretation renders the definition far more restrictive than Parliament intended.

13. [59]

    The photograph of the device before the Court, it was submitted, clearly demonstrates that the device has a sharp spike at the end. Accordingly, properly construed, in circumstances where there was no dispute that the other components of the definition were met, the device falls within the definition of “butterfly knife” in Sch 1.

14. [60]

    Reference in that respect was made to the purposes of the Act. The plaintiff correctly submitted that the purpose of the Act, titled the "Weapons Prohibition Act", is to criminalise the possession of prohibited weapons consistent with the underlying principle of ensuring and improving public safety. A knife with a sharp edge as opposed to a sharpened edge is still well capable of causing harm and undermining public safety. Her Honour found that the knife had a sharp edge, that finding, it was submitted, was sufficient to bring it within the definition.

15. [61]

    As to her Honour’s finding that only “the real thing” is prohibited under cl 1, which view her Honour reached upon acceptance of the defendant’s reference to Darestani v R [2019] NSWCCA 248 (“Darestani”), the plaintiff contended that such a finding was not supported by the provisions of Sch 1, nor was the authority of Darestani apposite to the construction of the Weapons Prohibition Act.

16. [62]

    First, there is no reference to a carve-out or exception within cl 1 of Sch 1. There is, however, a carve-out provision at cl 3(1). Clause 3(1) provides:

17. [63]

    The scope of that carve-out, it was submitted, is plainly restricted to certain types of objects referred to in clause 1A(1) that are "produced and identified as a children's toy". As earlier mentioned, cl 1A concerns military weapons.

18. [64]

    Secondly, as to the authority of Darestani, upon which the defendant maintained reliance in these proceedings, it was submitted, the Court would not be assisted by that judgment, which concerned a firearm and an entirely different legislative scheme, “with an entirely different carve out”.

19. [65]

    Finally, reference was made to Stapleton LCM’s subsequent finding which, it was submitted, was inconsistent with the immediately preceding finding as to the characterisation of the butterfly knife as either an imitation or toy, which was expressed as follows:

20. [66]

    In reply to the submissions advanced by the defendant, in this respect, the plaintiff submitted: “There is no statutory exclusion for toys in relation to ‘butterfly knife’, by contrast with the carve out for batons, handcuffs and military objects, for example”.

The First Error

1. [67]

   As to the first error contended for by the plaintiff, the defendant advanced the following submissions supportive of the construction adopted by Stapleton LCM.

2. [68]

   Stapleton LCM found against the prosecution submission that the Court could find the object within the alleged “butterfly knife” to be a “spike” under the definition, as referred to in her Honour’s reasons when she noted that:

3. [69]

   Her Honour’s finding was that the object had a blade and not a spike, it was submitted, implements the appropriate disjunctive reading the statute’s definition requires in referring twice to “blade or spike”. Thus, it was submitted, the magistrate’s approach to the definition was “clearly disjunctively: it is either a blade or a spike”.

4. [70]

   During the course of oral submissions, the defendant submitted that whilst “there may be some slips” within the magistrate’s decision (see example, “single edged blade of single-edged spike”), “when one looks at the entirety of the judgment a fair reading is that her Honour correctly interpreted the legislation and that is, in a disjunctive manner, interpreted the phrase “a single edged or multi-edged blade or spike”.

The Second Error

1. [71]

   Turning to the second error, the defendant submitted, the import as to the nature of the “blade” (namely, its “sharpness”) was not erroneous and is relevant to the definition of “butterfly knife” in cl 1(6) of Sch 1.

2. [72]

   As mentioned above, Stapleton LCM found that the “blade” within the alleged “butterfly knife” was not a blade for the purposes of the definition in Sch 1, cl 1(6):

3. [73]

   That finding was in light of the abovementioned distinction between the nature, quality or characteristic of the particular blade and in light of the definition cited in the Macquarie Dictionary of “blade” and “edge”:

4. [74]

   Stapleton LCM’s reasoning, as to implying the nature of the blade into the definition, was founded on the basis that the existence of a sharpened edge would characterise a “blade” as it was intended to mean. Reference, in that respect, was made to the decision of Kirby P in Acuthan v Coates at 478-479, as quoted by Price J Director of Public Prosecutions v Gramelis at [19]: “It is the substance of what the magistrate said and did that the court is concerned with”.

5. [75]

   That submission was also supported by reference to the arguments and findings in relation to the knives particularised in Sequence 4, which concerned a different type of knife, distinguishable from a butterfly knife:

   1. (1)

      Sequence 4 related to a charge laid pursuant to s 11B of the Summary Offences Act. The charge was particularised as relating to “Silver metal style/flat bladed butterfly knives”. Stapleton LCM found that:

   2. (2)

      During submissions, the parties and her Honour further referred to the alleged knives in sequence 4 as “training knives”.

   3. (3)

      This followed the concession from the Prosecution, in submissions in the Local Court, in the description of the alleged knives subject to sequence 4, being: “…silver metal style flat blade”.

   4. (4)

      The Prosecution, in charging the offences concerning the “silver metal style/flat-bladed butterfly knife”, conceded that the Prosecution determined that such knives would not fall within the definition of “butterfly knife” as contained in Sch 1 cl 1(6) of the Act.

   5. (5)

      It was on this basis, that the Prosecution sought to argue that these alleged knives, were offensive implements, as opposed to being charged and argued to be alleged “butterfly knives”.

   6. (6)

      This distinction between a butterfly knife and an offensive implement, based on the nature, quality or characteristic of the blade (and its “edge”), was an appropriate one to make. This reasoning appropriately recognises, as was stated by his Honour Magistrate Favretto in Police v O’Brien [2012] NSWLC 7 at [15], that the inclusion of “or any other blade” in s 3 of the Summary Offences Act:

6. [76]

   Stapleton LCM explicitly acknowledged her consideration of the principles and objective of the Act, as set out in s 3, when considering the definition of “butterfly knives”. Her Honour further proceeded to detail the underlying principles and specific objects of the Act in her reasons.

7. [77]

   It was submitted that the importance of the context and reasoning for Stapleton LCM’s finding in regard to the sharpness of the blade is explained by her Honour’s reasons and ultimate finding:

8. [78]

   The defendant contended that a requirement for the blade of a butterfly knife to have an edge capable of cutting would appropriately enable the Court to distinguish between butterfly knives and objects which were intentionally excluded from being criminalised under the Weapons Prohibition Act as imitations, toys or objects that substantially duplicate prohibited weapons in appearance. Contrary to the plaintiff’s submissions, it would include edges which might be described as “blunt” as blunt edges are still capable of cutting. Such a requirement enhances the purpose and object of the Act and allows a tribunal of fact to appropriately take into account the nature, quality or characteristic of the blade in any given case.

The Third Error

1. [79]

   As to the third error, the defendant relied upon the following aspects of Stapleton LCM’s decision.

   1. (1)

      Stapleton LCM found the following:

   2. (2)

      Stapleton LCM’s reasoning for so finding included the facts that:

   3. (3)

      Turning to the construction of the Act, Stapleton LCM noted that cl 3 of Sch 1 provides for “Imitations, concealed blades etc”. Her Honour further noted that cl 3(1) had the deliberate effect of excluding “any object that substantially duplicates in appearance” a knife. As cl 3(1) applies only to “military style weapons” in clause 1A:

   4. (4)

      Her Honour then proceeded to outline the deliberate inclusion of “replica(s)” in the firearms legislation within the definition of a firearm, and the inclusion of “objects that substantially duplicates” military-style weapons that are not “objects produced and identified as children’s toys” in the cl 1A of the Sch to the Weapons Prohibition Act as prohibited weapons under cl 3(1) of Sch 1, an extended definition. Stapleton LCM then concluded: “This extended definition does not apply to knives”. That is, an imitation of a knife listed under cl 1 is not a prohibited weapon under cl 3 of Sch 1.

   5. (5)

      Following that analysis, her Honour accepted the submission advanced by the defendant:

2. [80]

   As to why the Court would accept the magistrate’s approach to statutory construction, in this respect, the defendant submitted:

   1. (1)

      The Court is required when interpreting legislation and engaging in statutory construction, to prefer interpretations that would promote the purpose and object of the Act: Interpretation Act, s 33; Starr at [20]. Whilst purposive construction does not justify expanding the scope of a criminal offence beyond its textual limits, her Honour’s judgment does not do so.

   2. (2)

      Section 34(1)(b) of the Interpretation Act permits the use of extrinsic material to determine meaning, in cases such as this where the definition is “ambiguous or obscure” or if its ordinary meaning “leads to a result that is manifestly absurd or is unreasonable”. In this instance, the defendant made reference to the second reading speeches of both the Weapons Prohibition Act and the Firearms Act, and the “Report on the Review of Weapons Prohibition Act 1998 and Weapons Prohibition Regulation 1999”, June 2009, 36, 4.11.4. It is contended, in that light, “where lack of precision or clarity within the definition may invite the inclusion of children’s toys, imitations or any object(s) that substantially duplicate in appearance, that are intended to be specifically excluded under the Act, would lead to a “result that is manifestly absurd or is unreasonable”.

   3. (3)

      Reliance was also placed upon the observations of Price J (with whom Hoeben CJ at CL and Lonergan J agreed) held in Darestani at [61]-[62] and [67], which decision concerned s 4D of the Firearms Act, in particular, the discussion as to the “children’s toy exception” relied upon by the defendant addressed the Court’s approach to subs (4): “However, an imitation firearm does not include any such object that is produced and identified as a children’s toy”.

   4. (4)

      This definition of the children’s toy exception is adopted in Sch 1 cl 3(1) and, therefore, pertains only to “military-style weapons” in cl 1A. In a case where it is raised on the evidence that the relevant alleged firearm or military style weapon was a toy, pursuant to the exceptions in ss 4D(4) of the Firearms Act or Sch 1 cl 3(1) of the Weapons Prohibition Act, the prosecution is required to exclude as a reasonable possibility that the firearm or weapon was produced and identified as a children’s toy: Darestani at [91]. Had the legislature desired prohibited weapons other than those “military-style weapons” in cl 1A to be required to meet the same threshold as the Firearms Act, it was open to the legislature not to draft cl 3(1) to include and reference only cl 1A.

   5. (5)

      Further, without qualifying in some way what the legislature intended to mean by “blade” and “edged”, there is no ability to distinguish between a “real butterfly knife” and a children’s toy, an imitation, replica or object that appears to substantially duplicate in appearance a butterfly knife.

3. [81]

   Thus, the defendant contended that Stapleton LCM properly dismissed sequence 1 on the basis that the prosecution could not prove beyond reasonable doubt that the alleged “butterfly knife” fell within the definition in Sch 1 cl 1(6), as the prosecution was unable to exclude the reasonable possibility that the alleged “butterfly knife” was an imitation, replica object that substantially duplicates a butterfly knife or a children’s toy.

The Construction Issues

1. [82]

   Ground 1 of the appeal, as was expanded by the contentions of the plaintiff as to the first and second errors, concerns the construction of the definition of prohibited weapon, and in particular, the construction of the definition of butterfly knife in cl 1(6) of Sch 1 (“the definition”). Ground 2 is generic in nature and concerned broadly the dismissal of sequence 1.

2. [83]

   There was no dispute as to the finding of Stapleton LCM that the butterfly knife conformed with the latter part of the definition, namely, the words “fits within 2 blades attached to a blade or spike by traverse pivot pins and is capable of being opened by gravity or centrifugal force.

3. [84]

   If follows that the issues raised by these proceedings essentially concern, the construction of the words “consists of a single-edged or multi-edged blade or spike” in the definition of butterfly knife (“the phrase”).

4. [85]

   There would seem to be no dispute that the word “or” when used between the words “blade” and “spike” in the phrase is used disjunctively. In any event, in my view, the plaintiff’s submissions that the word is used disjunctively in the definition, in that respect, may be accepted for the following reasons:

   1. (1)

      In addition to the general principle that the word “or” is generally used disjunctively in statutes, the context in which it is used in the definition make abundantly clear that the legislation did not alter the general approach in the definition. The word “or” is also used to distinguish between:

   2. (2)

      The legislature may be taken to have use the word consecutively in the definition unless a contrary intention were indicated (and there are none, as I will discuss below).

5. [86]

   A further question arises in that context, namely, whether the adjectives “single-edged” or “multi-edged” (“the adjectives”) were intended by the legislature to apply to the word “spike” as well as the word “blade” in the definition.

6. [87]

   Part of the answer to that question lies in the conclusion that the word ‘or’ is used disjunctively between the words “blade” and “spike” in the definition. However, I accept the submission advanced by the plaintiff, by reference to the decision below, that a blade is a relatively flat cutting part of a knife, whereas a spike may have no edges at all such as a needle or spear. Thus, it would appear that the adjectives in the phrase were not tended to apply to a “spike”.

7. [88]

   That construction is supported by an examination of the broader context in which the definition appears. In the description of an “Urban Skinner push dagger” at cl 1(4) of Sch 1, where there is a reference to the blade or spike being supported by the palm of the hand “so that stabbing blows or slashes can be inflicted by a punching or pushing action”. This recognises the different functions of blades and spikes (albeit that with enough force, there is some cross-over): blades can cut, slash or stab; spikes stab. Blades have edges; spikes may not.

8. [89]

   In my view, Stapleton LCM erroneously construed the definition so that the adjectives “single-edged” and “multi-edged” were applied to the word “spike” in phrase as well as the word “blade”. That conclusion must only be consistent with her Honour erroneously approaching the word “or” in “blade or spike” conjunctively.

9. [90]

   I do not accept the submission of the defendant that her Honour found that the definition of a butterfly knife required either a spike or a blade with a single or multi-edge.

10. [91]

    Stapleton LCM asked herself what was meant by the words “single-edged blade (of) single-edged spike or multi-edge” There is plainly a slip or transcription error in this phrase but the intention to apply the adjectives to the word “spike” is clear.

11. [92]

    This conclusion also follows from her Honour’s finding that the butterfly knife does not fall within the meaning of the word “spike” in the definition because, even if the point of the butterfly knife resulted in it falling within the definition of a “spike”, it did not have a “sharpened edge which it is required to do for the purposes of the definition”. The reference to “sharpened”, as I will discuss in relation to the second error below, derived from the definition of “an edge” as found in the adjectives.

12. [93]

    Finally, in that respect, the plaintiff correctly submitted that the defendant cannot properly support the decision below upon the principle in Acuthan v Coates (1986) 6 NSWLR 472 at 478-479, with respect to Local Court decisions that are given extemporaneously (see also, Director of Public Prosecutions v Gramelis [2010] NSWSC 787 at [19] (per Price J)), as the judgment of the magistrate was not ex tempore. The hearing concluded on 23 October 2019 and a decision was delivered two months later on 17 December 2019.

13. [94]

    The plaintiff has established the first error.

14. [95]

    It follows from the conclusion reached with respect to the first error that the finding below that, in order to meet the definition of a spike, any “spike” on the butterfly knife must have a “sharpened edge” must be rejected. Thus, I accept the submission of the plaintiff that the observations by Stapleton LCM regarding a “sharp, but no sharpened” point are inextricably bound up with the finding that the butterfly knife may only fall within the definition as a “spike” if it had an edge, and further, by dint of her Honour’s approach to the definition of “edge”, namely, a “sharpened edge”.

15. [96]

    There is a further difficulty with her Honour’s reasoning regarding that the butterfly knife did not have a “spike”. There is an inconsistency in her Honour’s reasoning in that respect.

16. [97]

    That is because her Honour’s finding as to the characteristics of the butterfly knife as having a point which was sharp conforms to the dictionary definition of a spike as relied upon by her Honour, namely, “a sharp pointed piece of metal fastened on something with a point outwards as for defense of a stiff sharp pointed piece or part”. The finding in this respect was, therefore, contradictory and erroneous for that reason.

17. [98]

    There is a further aspect to this ground. The plaintiff challenges the construction of the definition by the Court below that the definition of butterfly knife, requires the knife to have “a sharpened edge, capable of cutting” and the related finding that the butterfly knife “does not have a sharpened edge at all”.

18. [99]

    There is a finding in the judgment below that whilst “the butterfly knife looks like a butterfly knife” it does not fall within the definition of butterfly knife in Sch 1 to the Act because it does “not have a sharpened edge or edges of the blade. It has a blade not a spike”.

19. [100]

    The italicised component of that finding appears to accord with the early conclusion, to which I have referred, that the butterfly knife does not fall within the definition of a spike, notwithstanding the dictionary definition of a spike relied upon by her Honour.

20. [101]

    This aspect of her Honour’s judgment received little attention in the submissions of the parties and, given the finding I will make that the judgment below is infected with errors of law, and my ultimate determination to remit the matter, it is unnecessary to further consider that issue in this judgment.

21. [102]

    I return then to the contention of the plaintiff that there was an erroneous construction of the definition of butterfly knife in determining that a blade (her Honour found the butterfly knife had a blade) had to be sharpened or “capable of cutting” to fit the definition.

22. [103]

    I agree with the submission for the plaintiff that her Honour appears to have found that a blade in a butterfly knife must, in order to meet the definition, have the attribute of being “sharpened” or “capable of cutting” (presumably by its sharpness) by virtue of the Dictionary definition of “edge”.

23. [104]

    It is true that the definition does not expressly state that the knife must be ‘sharp’ or “sharpened”; nonetheless the word “edge” was utilised in the definition in conjunction with the words “single” and “multi” to establish that the blade may have one or more edges. When used in the context of the blade of a knife (whatever the type or style of knife) the word edge would ordinarily connote the side of the knife which had been sharpened for use in cutting.

24. [105]

    This conclusion does not require, however, the butterfly knife, being the object of the subject of the charge, to be “sharp” or “capable of cutting” for the object to be caught by the definition. As the plaintiff correctly submitted “a dull knife still has an edged blade”.

25. [106]

    It follows that her Honour was correct to, in applying the definition of butterfly knife, consider whether the butterfly knife had a blade with an edge, but it was erroneous to consider, as Stapleton LCM did, whether the blade was sharpened, as illustrated by the passage of her decision where she stated: “That the sharpness of the blade of a butterfly knife is an imputed part of the definition that what the item could be used for is irrelevant that the object is designed to look like a butterfly knife but is not a butterfly knife”.

26. [107]

    The defendant relied upon the concession made by the Crown below in relation to objects the subject of sequence 4, but it is difficult to see how the discussion of a charge brought under s 11B of the Summary Offences Act could have a bearing under the question here under consideration.

27. [108]

    As Stapleton LCM correctly observed, the definition of an offensive implement in s 11B(3)(a) is “anything made or adapted for use for causing injury to a person”. It was concluded, on the evidence before the Court, it could not be found beyond reasonable doubt that the objects were made for causing injury as opposed to some other reason such as a training blade.

28. [109]

    In order to deal with this particular aspect of ground 1 it is unnecessary to consider issue of principle earlier discussed as to whether the Court should undertake a purposive construction of the Weapons Prohibition Act, and in particular Sch 1 of that Act, and, in that respect, the judgments in Jacob v R, Starr and El Ali v R (although the opinions expressed by Johnson J in Jacob v R are persuasive), save in one respect.

29. [110]

    The defendant contended that the reasons for the requirement that a butterfly knife has a sharpened edge was to distinguish between a real butterfly knife and an imitation or a toy that substantially duplicates a butterfly knife in appearance.

30. [111]

    In my view, that approach would undermine the protective purpose of the Weapons Prohibition Act. For example, on that approach, an otherwise‑prohibited butterfly knife blunted by heavy use, becomes permissive, having fallen outside the prohibitions of the Weapons Prohibition Act simply because it was no longer sharp.

31. [112]

    The plaintiff has not strictly made out the entirety of ground 1 as expressed in the summons, but has succeeded on the amended form of the ground as expressed by the first and second errors. However, the defendant submitted that if the Court found that ground 1 was upheld, the Court would nonetheless find that the trial judge did not err in dismissing sequence 1. This is because the prosecution did not prove beyond reasonable doubt that the butterfly knife fell within the definition because the prosecution was unable to exclude the reasonable hypothesis that the butterfly knife was “an imitation, replica object and substantially duplicates a butterfly knife or a children’s toy”. This brings attention to the third error.

32. [113]

    The Court below accepted the submission by the defendant that, in reliance upon Darestani, if an item is a toy or an imitation it is not a prohibited weapon (even though in the judgment at first instance, her Honour found that the prosecution was correct to submit that the “manufacture’s intention in relation to an item, whether it was produced as a toy or not, does not affect whether it was in the definition”). Her Honour observed that what is prohibited is the real thing. Attention was paid below to the “stylised stamps” on the butterfly knife, the nature of the packaging and the defendant referring to the object as a toy.

33. [114]

    The defendant accepted that cl 3(1) of Sch 1 of the Weapons Prohibition Act only applied to “military style weapons” in cl 1A. In the case of such weapons, the prosecution was required to exclude as a reasonable possibility that the weapon was produced and identified as a children’s toy.

34. [115]

    However, it was submitted by the defendant that “had the legislature desired prohibited weapons other than these military-style weapons in cl 1A to be required to meet the same threshold as the Firearms Act 1996 (NSW) it was open to the legislature not to draft clause 3(1) to include and reform only clause 1A”.

35. [116]

    I do not consider the defendant’s submission in this respect may be accepted for the following reasons:

    1. (1)

       There is, as properly conceded by the defendant, no carve out or exception within cl 1 of Sch of the kind otherwise provided for, inter alia, military style weapons in cl 3(1) or the Schedule.

    2. (2)

       It follows that the prosecution is not required to disprove the object was a toy.

    3. (3)

       The judgment of Darestani is of little assistance, as it concerned the provisions s 7 and s 4D of the Firearms Act.

    4. (4)

       The contentions of the defendant sit ill with a purposive construction of the Act – the Weapons Prohibition Act criminalises the possession of prohibited weapons consistent with the underlying principle of ensuring and improving public safety. Here the object was metal, was 10 centimeters long; had a sharp tip and was, on her Honour’s findings, potentially dangerous.

The Jurisdiction Issue

1. [117]

   Pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act, a prosecutor may appeal to this Court against an order of the Local Court dismissing a matter the subject of any summary proceedings, but only on a ground that involves a question of law alone.

2. [118]

   In the present matter, there is a dispute as to whether key issue on appeal enlivens the jurisdiction of this Court.

3. [119]

   As to the relevant authorities informing the question of jurisdiction, both parties relied upon the statement of principle in the decision the Full Court of the Federal Court, constituted by Neaves, French and Cooper JJ, in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322. Those principles are extracted below (at [23]-[26]):

4. [120]

   As the plaintiff relied upon the fifth proposition set out above, it is useful to briefly turn to the authority cited therein. In Hope v Bathurst City Council (1980) 144 CLR 1 (“Hope”), Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) pointed out that, when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law. In Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 (“Vetter”), the High Court cited Hope and observed “his Honour's reasons make it clear that a question exclusively of law arises… if, on the facts found only one conclusion is open” (at [27] (per Gleeson CJ, Gummow and Callinan JJ)). See also Australian National Railways Commission v Collector of Customs (1985) 8 FCR 264 at 277 (per Sheppard and Burchett JJ).

5. [121]

   The plaintiff further relied upon the decision of Adamson J in Starr. The application before the Court in Starr concerned a contended erroneous interpretation of the description of "knuckle-dusters" in cl 2(19) of Sch 1 to the Weapons Prohibition Act. It was submitted that the judge below fell into error by finding that the word "user" meant “the person in whose possession the item is found”. The applicant contended that the Court below was in error in requiring proof that the item fitted the hand of a defendant charged with possession, as distinct from use, of a knuckle-duster. The plaintiff contended that this was a question of law alone because it concerned the correct interpretation of a statute, as distinct from its application. Adamson J accepted that submission and held “this amounts to a question of law alone since it raises solely a question of statutory construction” at [19].

6. [122]

   The plaintiff submitted that the key issue on the appeal is the interpretation of the definition of “butterfly knife” in the Weapons Prohibition Act. The question, it was contended, is whether the facts as found fall within the definition of “butterfly knife”, properly construed. In this case, it was contended, the question is a question of law, because it solely concerns a question of statutory construction, as distinct from the question of the statute’s application.

7. [123]

   The defendant contended that the issue the Court is being asked to determine, is a question of mixed law and fact, or a question of fact. It was submitted that the issue for determination in this matter, concerning the ordinary meaning of the words “blade” and “spike” within the definition of “butterfly knife”, in light of the facts found, is most appropriately regarded as a mixed question of fact and law, or a question of fact. The Presiding Magistrate’s finding was predicated on her determination of the interpretation of the meaning of “butterfly knife” under Sch 1 cl 1(6), Stapleton LCM’s determination of the disputed facts in the case and how the facts as so determined, fitted within the definition as Stapleton LCM interpreted it. Thus, the defendant submitted that the ground raised by the plaintiff is not confined to a question of law alone and that therefore the appeal ought to be dismissed, pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act.

8. [124]

   In reply, the plaintiff submitted that relevant construction concerns that of “butterfly knife” and whether the facts as fully found fall within the provision, properly constructed. Thus, it was submitted, the defendant has incorrectly directed the Court to fixate upon the ordinary meaning of “blade” and “spike”. The plaintiff contended that the error of law by the Court below was to read into the definition of butterfly knife a requirement of a “sharpened edge capable of cutting”, which is not part of the definition. Hence, the error “is squarely an error of law”.

9. [125]

   The defendant has not made good its case as to question before the Court being of mixed law and fact, or a question of fact. The determination before the Court does not turn upon the ordinary meaning of “blade” and “spike”, but rather, as correctly identified by the plaintiff, concerns the proper construction of the definition of “butterfly knife”. The crux of the error contended for by the plaintiff was a question of construction of the definition of butterfly knife, and particularly, construction of the words “a single-edged or multi-edged blade or spike”, which construction was foundational to the dismissal of the charge. Thus, I find the questions before the Court, as raised by the plaintiff (see above at [47]), are confined to questions of law and that, therefore, an appeal is within the jurisdiction of this Court.

THE REMITTAL ISSUE

1. [126]

   As to the issue of remittal the plaintiff submitted:

2. [127]

   The defendant relied upon submissions advanced in writing, which are extracted below:

3. [128]

   It may also be noted, however, at the hearing, the defendant conceded that if the decision was found to involve an error of law, in finding that the subject item did not fall within the definition, the plaintiff must succeed on this appeal.

4. [129]

   As I have effectively upheld both grounds of the appeal (albeit in the context of the broader issues raised by the plaintiff then it would follow, from the concession made by the defendant, the matter should be remitted in order for it to be dealt with at law.

Costs

1. [130]

   The plaintiff submitted that the ordinary rule as to costs should apply, namely, “costs follow the cause”. However, it was submitted that the plaintiff “would not oppose the granting of a suitors’ fund certification if the Court was minded to order costs.

2. [131]

   The defendant submitted:

3. [132]

   In my view, there is not a test case aspect to this appeal. The plaintiff has been wholly successful in the appeal and costs should follow the event with an order for costs being made in favour of the plaintiff. It is appropriate to grant the application by the defendant for an indemnity certificate pursuant to s 6 of the Suitors’ Fund Act 1951 (NSW).

CONCLUSION

1. [133]

   In the circumstances the appeal should be allowed and the matter remitted to the Local Court to be dealt with according to law.

ORDER

1. [134]

   The Court makes the following orders:

   1. (1)

      The appeal against the decision and order of Stapleton LCM of 17 December 2019 at Burwood Local Court is allowed.

   2. (2)

      Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the order made by Stapleton LCM of 17 December 2019 dismissing the charge of “possess or use a prohibited weapon without permit”, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW), is set aside.

   3. (3)

      The matter is remitted to the Local Court to be dealt with according to law.

   4. (4)

      The defendant shall pay the plaintiff’s costs of the appeal.

   5. (5)

      The defendant shall be granted an indemnity certificate under the Suitors’ Fund Act 1951 (NSW).