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Taikato v R [1996] HCA 28; (1996) 186 CLR 454; (1996) 139 ALR 386; (1996) 70 ALJR 960 (16 October 1996)

HIGH COURT OF AUSTRALIA

BRENNAN CJ,

DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

TAIKATO APPELLANT

AND

THE QUEEN RESPONDENT

ORDER

Appeal dismissed.

16 October 1996

Solicitors for the Appellant: Women's Legal

Resources Centre

Solicitor for the Respondent: S E O'Connor, Solicitor

for Public Prosecutions

(New South Wales)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Taikato v The Queen

Criminal law - Possession of a prohibited article in a public place - Whether accused had a "reasonable excuse for possessing it or possessed it for a lawful purpose" - Crimes Act 1900 (NSW) s 545E(1), (2).

Criminal law - Possession of a prohibited article in a public place - Meaning of "reasonable excuse" and "lawful purpose" - "[L]awful purpose" means purpose authorised by law - Whether "lawful purpose" includes self-defence where no apprehension of imminent attack - Whether a well-founded fear of attack sufficient to constitute a "reasonable excuse" - Relevance of time and location at which article possessed - Relevance of age, characteristics and experience of accused - Type of article possessed - Prohibited article intended to be used as a weapon - No perceived threat, immediate or otherwise, of attack at time of possession - Crimes Act 1900 (NSW) s 545E(2).

Crimes Act 1900 (NSW) s 545E.

BRENNAN CJ, TOOHEY, McHUGH AND GUMMOW JJ. The issue in this appeal is whether on the facts of the case it was open to the District Court of New South Wales to find that the appellant, who was carrying a pressurised canister of formaldehyde to defend herself if she happened to be attacked, "had a reasonable excuse for possessing it or possessed it for a lawful purpose" within the meaning of s 545E(2) of the Crimes Act 1900 (NSW) ("the Act"). In our opinion, as a matter of law, she had neither a reasonable excuse nor a lawful purpose for her possession of the canister.

Factual background

At about 12.15 pm on 26 March 1992, the appellant, Mrs Jo-Anne Taikato, was walking in Railway Street, Liverpool, a suburb of Sydney. She was approached by police officers in respect of a matter with which, counsel informed us, she had no connection. The officers searched her possessions. In her handbag they found a pressurised canister of formaldehyde, 10 centimetres in height and 2.5 centimetres in diameter. The canister had an angled nozzle and was "carried in a black leather type case with a belt clip." An analyst's report subsequently certified that "the spray canister when discharged, produced a clear liquid with a pungent odour." The report stated that the liquid contained formaldehyde which is "known to be an irritant substance".

Mrs Taikato told the officers that she had had the canister for a few years and that, although she had never used it, she carried it so that she could defend herself if someone attacked her. Whether the officers disbelieved her statement or thought that it was not a legal justification for her possession of the canister does not appear. They charged her with an offence under s 545E of the Act which provides:

"(1) A person who, in a public place, possesses:

(a) anything (not being a firearm within the meaning of the Firearms Act 1989) 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

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."

She was brought before a Local Court where a magistrate convicted her of "possessing in a public place a thing capable of discharging an irritant liquid contrary to s 545E(1)" of the Act. The learned magistrate fined her $400.

Mrs Taikato then appealed to the District Court where her appeal was heard by Rummery DCJ. The solicitor who appeared for Mrs Taikato did not dispute that her possession of the canister fell within s 545E(1), but he contended that she was not guilty of the offence because she had the canister for a lawful purpose or, alternatively, that she had a reasonable excuse for possessing it. Rummery DCJ accepted Mrs Taikato's evidence that, following an attempt to strike her when she and her husband discovered a person breaking into their home, she carried the canister in case she was attacked. Nevertheless, his Honour held that acceptance of her evidence did not constitute a defence under s 545E(2) because she had not been under immediate fear of attack and was not entitled to carry the canister on the off chance of being attacked.

At the request of Mrs Taikato's solicitor, his Honour stated a case to the New South Wales Court of Criminal Appeal pursuant to the provisions of s 5B of the Criminal Appeal Act 1912 (NSW). He asked the Court of Criminal Appeal to answer the following questions of law:

"1. Am I correct in concluding that the facts which I have accepted as proved provide no evidence capable of establishing a defence for the appellant under the proper construction of s 545E(2) of the Crimes Act?

2. Does s 545E of the Crimes Act, 1900 render possession in a public place of a thing capable of discharging an irritant liquid illegal where the purpose for which it is possessed was not unlawful prior to the enactment of the section?

3. Does s 545E of the Crimes Act, 1900 render possession in a public place of a thing capable of discharging an irritant liquid illegal where the purpose for which it is possessed is not proscribed or regulated under any other law or statute?"

The Court of Criminal Appeal (Meagher JA, Abadee and Ireland JJ)

The Court of Criminal Appeal answered each question "yes"[1]. Counsel for Mrs Taikato appears to have conceded, as he did in this Court, that she did not have a reasonable excuse for possessing the canister. But he contended that she had possession of it for a lawful purpose. Meagher JA, with whose judgment Abadee and Ireland JJ agreed, said that the case law made it plain:

"that no possession can be justified by a reasonable excuse unless it is a possession motivated by a reasonable apprehension of imminent attack or imminent danger. ... In other words there must be a temporal nexus between the excuse and the possession."

However, Meagher JA found the contention that Mrs Taikato had the canister for a lawful purpose because she had it for the purpose of self-defence "extremely attractive". He said that "lawful purpose" in s 545E(2) did "not import expressly any suggestion of reasonableness". Nevertheless, he thought that the present case could not be distinguished from the English decision in Attorney-General's Reference (No 2 of 1983)² concerning a similar statute. In that Reference, the English Court of Appeal held that possession for the purpose of self-defence was not a "lawful object" unless there was reasonable apprehension of an imminent attack. Meagher JA said that that case had been followed by the Supreme Court of South Australia in Ford v Lindholm[3] and by the Supreme Court of New South Wales in Bell v Atwell[4] in deciding questions of lawful purpose. After referring to Attorney-General's Reference (No 2 of 1983), his Honour said:

"[I]t was a decision which I feel some reluctance in following, both because it seems to me to be an absurd result in terms of practical effect and it is based on what seems to me to be an unwarranted interpretation of the language of the statute. Nonetheless I am of the view that for reasons of comity we should follow that case. For those reasons, with some reluctance - particularly as the facts of the case seem to me so trivial - I do not accept the submissions of the appellant."

Section 545E(1)(a) is framed in wide terms to cover the use in public places of anything that is not a firearm but which operates in a similar way. The key words of the paragraph are "anything (not being a firearm within the meaning of the Firearms Act (NSW) 1989) capable of discharging by any means"[5]. Section 545E and s 93G - which deals with the use or possession of loaded firearms and spearguns in public and other places[6] - are the successors of ss 57 and 43 respectively of the Firearms and Dangerous Weapons Act 1973 (NSW). The declared object of that Act was, inter alia, to regulate the possession and use of firearms and "to prohibit the possession of certain dangerous weapons and articles".

Section 545E and its predecessor were obviously enacted upon the assumption that the public interest is best served by excluding from public places fuses, detonators and articles or things that discharge harmful substances. They were enacted upon the basis that, where in a public place a person possesses a fuse, detonator or an article capable of discharging an irritant or a substance capable of causing bodily harm, it is probable that the item was brought there with the intention of causing harm and that, even if that intention is not present, the availability of such an item in a public place enables it to be used to cause harm. Thus, s 545E(1)(a) treats an article or thing capable of discharging a harmful substance or irritant matter as a dangerous weapon and treats its possession as comparable to the possession of fuses and detonators in public places. Significantly, the section does not make it an offence to discharge the irritant matter or other harmful substance. Other sections of the Act are adequate to deal with conduct of that sort. The purpose of s 545E(1)(a) is to prevent such conduct from occurring by forbidding the possession of such weapons in public places.

It is a reasonable conclusion that, subject to the exceptions within s 545E(2), the section is meant to deal with the person who goes into a public place armed with a dangerous article or thing irrespective of the use to which that person intends to put the article or thing[7]. As counsel for the respondent pointed out, when guns and other dangerous articles are available, they often come to be used for harmful purposes although they were initially possessed for innocent purposes. For that reason, possession in a public place of an article or thing answering the relevant description is sufficient to constitute the offence unless the person in possession of the article or thing is excused under s 545E(2).

"Lawful purpose"

"[L]awful purpose" in s 545E(2) should be read as a purpose that is authorised, as opposed to not forbidden, by law because that meaning best gives effect to the object of the section. The meaning of "lawful" depends on its context, as Napier J pointed out in Crafter v Kelly[8]. As a result, a "lawful purpose" may mean a purpose not forbidden by law or not unlawful under the statute that enacts the term[9]; or it can mean a purpose that is supported by a positive rule of law[10]. If the term has the former meaning, the defence of "lawful purpose" covers any purpose unless the legislation or the general law prohibits it. Thus, in Bear v Lynch[11], this Court held that a person who was playing cards on licensed premises with a lodger during prohibited hours was there for a "lawful purpose" because the legislation did not prohibit playing the card game. That decision can be contrasted with Windsor v Denastazi[12] where the New South Wales Court of Criminal Appeal held that, under the Gaming and Betting Act 1912 (NSW), a person playing a lawful card game in a common gaming house was not there for a "lawful purpose" because all gaming in a common gaming house was prohibited under that Act.

As a general rule, interpreting "lawful purpose" in a legislative provision to mean a purpose that is not forbidden, rather than positively authorised, by law is the interpretation that best gives effect to the legislative purpose of the enactment. This is because statutes are interpreted in accordance with the presumption that Parliament does not take away existing rights unless it does so expressly or by necessary implication[13]. Nevertheless, the purpose, context or subject matter of a legislative provision may indicate that Parliament has used the term "lawful purpose" to mean a purpose that is positively authorised by law. That seems to be the best interpretation of the term in the present case. Four matters support this conclusion.

First, the term "lawful purpose" appears in sub-s (2) of s 545E as an exception to sub-s (1) which makes conduct that was otherwise lawful, unlawful. It is unlikely, therefore, that "lawful purpose" merely means a purpose that is not forbidden by law; sub-s (1) makes possession of the relevant article or thing unlawful unless it falls within sub-s (2).

Second, unless "lawful purpose" in sub-s (2) means a purpose positively authorised by law, the general prohibition in sub-s (1) would apply only to situations where the purpose of the possession was otherwise prohibited by law. That is not an impossible interpretation. But it would mean that all that s 545E(1) added to the law was the offence of possessing a dangerous article in a public place for the purpose of doing something that was prohibited by law. That interpretation would not promote what we perceive to be one of the purposes of the section which is to ensure that dangerous articles and weapons are kept out of public places so that they are not at hand for use - whether that use was or was not anticipated when they were brought there. It is possession in a public place, not possession for a purpose that is prohibited by law, which constitutes the essence of the offence.

Third, if "lawful purpose" means any purpose that is not prohibited by law, the alternative defence of "reasonable excuse" will have little scope. Indeed, we doubt that it will have any scope at all. It is difficult to conceive of a situation where it could be a reasonable excuse to possess the weapon where the law forbade its possession for that purpose. Yet if "lawful purpose" means any purpose not prohibited by law, that class of case can be the only one where the defence of "reasonable excuse" could be needed.

Fourth, s 93G(1) of the Act which makes it an offence to possess a loaded firearm or speargun in a public place also provides that no offence under the section is committed "if the person satisfies the court that he or she had a reasonable excuse for possessing it or doing it or possessed or did it for a lawful purpose."[14] Any loaded firearm or speargun in a public place is a serious source of danger to members of the public. In the face of the prohibition in s 93G(1), it is difficult to conclude that Parliament intended that a person could carry a loaded firearm or speargun in a public place as long as that person was not carrying the weapon for a purpose prohibited by law. The evident purpose of s 93G would be largely nullified if people could carry loaded guns and spearguns in public places except where the purpose of the possession was prohibited by law. If the term "lawful purpose" in s 93G means, as we believe it does, a purpose positively authorised by law, then, prima facie, it should be given the same meaning in s 545E(2). It is a general rule for the construction of statutes that, where a word is used more than once in a statute, it is presumed to have the same meaning "unless there is reason to do otherwise"[15]. Both s 93G and s 545E derive from the Firearms and Dangerous Weapons Act 1973 (NSW) and both were inserted in the Act in 1989. That being so, the terms "reasonable excuse" and "lawful purpose" in s 93G and s 545E should be given the same meaning.

One factor that points against the conclusion that "lawful purpose" in s 545E means a purpose positively authorised by law is that s 353B of the Act also contains the term "lawful purpose" and that term has been interpreted in a manner that does not require the purpose to be positively authorised by law. Section 353B was introduced into the law of New South Wales in 1929 for the purpose of dealing with the "razor gangs" which were a source of much crime and concern at the time. The section makes it an offence where "a person is in lawful custody upon a charge of committing any crime or offence and is found to have been carrying ... any razor, razor blade or other cutting weapon ... unless the justice before whom he is brought is satisfied that he was carrying the same for a lawful purpose". In Bell[16], Campbell J held, correctly in our opinion, that it was open to a justice to find that the accused had a "lawful purpose" within the meaning of the section when he was found with a pocket knife that he used in the course of his work on a horse stud.

But the fact that "lawful purpose" in s 353B does not require a purpose that is positively authorised by law does not throw much light on the meaning of s 545E(2). It has a different history, a different social purpose, and does not have the alternative defence of "reasonable excuse". If "lawful purpose" in s 353B required the purpose to be authorised by law, any person who innocently had a packet of razor blades on him or her when arrested would be guilty of an offence against the section unless that person could point to a law that positively authorised the carrying of the razor blades. Such an interpretation of s 353B does not advance the purpose of the section and is so harsh and unreasonable that it must be rejected.

Accordingly, the best interpretation of s 545E, as it stood in 1992[17] when Mrs Taikato's possessions were searched, is that a person could not have a "lawful purpose" for possessing a dangerous weapon coming within sub-s (1) unless that purpose was positively authorised by law. On this view of the section, a lawful purpose would have to be one whose achievement was expressly or impliedly authorised by law. Thus, it would provide a defence for a member of the riot police or similar body who was authorised by law to possess the dangerous item for a particular purpose. The authorisation might have been express or implied and may have flowed through a long chain of orders from a person who was given a general power to promote or protect public safety. But whatever form an authorisation took, it must have been sourced in a positive rule of law which empowered the defendant to possess the item for the purpose that he or she had. It follows that legal authorisation to carry the article in question did not in 1992 and does not now necessarily provide a defence under s 545E. It is the purpose that must be authorised. Lawful purpose is not synonymous with lawful authority.

Self-defence is not a "lawful purpose" for the purpose of s 545E

Counsel for Mrs Taikato contended that the "law recognises self defence as the lawful right of any citizen where it is exercised in circumstances that that citizen believes on reasonable grounds that it is necessary in self defence to do a particular act." It followed, he argued, that she was carrying the canister of formaldehyde for a lawful purpose. However, it is more accurate to say that she was carrying the canister to spray any person who attacked or threatened to attack her and that whether she had a legal right to do so would depend on whether the circumstances of the attack gave rise to a right of self-defence at law. When her purpose is formulated in that way, it is obvious that, when she was searched, she did not possess the canister for a lawful purpose.

The law authorises a person to assault another person in self-defence only when certain conditions are fulfilled. No legal right of self-defence arises until there is a reasonable apprehension of attack by the person who is assaulted. To attempt to mould the right of self-defence into a "lawful purpose" for the purposes of the section is fraught with practical and legal difficulties. If a person was charged with an offence under s 545E after using the dangerous article in circumstances that did not give rise to the right of self-defence, it would seem odd that that person nevertheless had a defence under s 545E(2) because he or she had the article for the purpose of "self-defence". That would make the defence under s 545E(2) entirely dependent on that person's judgment as to when he or she could use the article in "self-defence". Subjective factors play an important role in the doctrine of self-defence, but the availability of the defence also depends upon objective factors.

Because the existence of a right of self-defence cannot be determined until after the fact of a particular attack or threatened attack, it makes no sense, absent an actual or threatened attack, to talk of possession for self-defence as a "lawful purpose". Self-defence in the colloquial sense is not a "lawful purpose" within the meaning of s 545E(2). Action in self-defence can only be taken for a "lawful purpose" when there is a lawful right entitling the person in danger of attack to take certain limited steps to use force against another person. It is only after the circumstances of the attack and the defendant's response are evaluated that a court can determine whether the person was exercising the right of self-defence. Only then can it be determined whether a particular weapon was used for a "lawful purpose". Accordingly, possession of a dangerous article for the purpose of "self-defence" is not possession for a "lawful purpose" within the meaning of s 545E(2) although, as will appear, it may be a "reasonable excuse".

"Reasonable excuse"

Counsel for Mrs Taikato did not rely on the "reasonable excuse" limb of s 545E(2). Upon the facts of the case, his reluctance to do so is both understandable and correct. It was correct in our opinion because "the facts which [Rummery DCJ] accepted as proved" were not capable in law of providing a reasonable excuse.

The term "reasonable excuse" has been used in many statutes and is the subject of many reported decisions[18]. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case[19] but also on the purpose of the provision to which the defence of "reasonable excuse" is an exception. One purpose of s 545E is to protect the public from the use of certain dangerous weapons which are analogous to, but not as dangerous as, guns. It strikes at the person who goes into a public place armed with such a weapon. To achieve this purpose it uses language which arguably catches some pharmaceutical and domestic items that are most unlikely to be used to cause harm to members of the public even when they are carried in a public place. Without a defence of reasonable excuse or lawful purpose the reach of the section would be intolerable in a free society. But having regard to the width of the language of s 545E(1) and its evident purpose, determining what constitutes a "reasonable excuse" is not easy.

Plainly, a person has a reasonable excuse for possessing a prohibited weapon in a public place if the person is carrying it to surrender it to police officers or other relevant authorities[20]. Similarly, the man or woman carrying a pressurised can of insect spray has a reasonable excuse if the spray was carried for domestic use. So does the trader or carrier who possesses articles, prohibited by s 545E, for ordinary commercial purposes. But given the purpose of the section, it is not easy to conclude that it was a "reasonable excuse" in 1992 for a person to carry an article prohibited by s 545E(1) in a public place for the purpose of using it, if that person happened to be attacked.

The chief difficulty in a court interpreting "reasonable excuse" in s 545E(2) to cover possession for use in case of attack is to find a principled way of distinguishing cases where the legislature could not conceivably have envisaged such a defence arising and those where it may well have envisaged such a defence being available. It is hardly to be supposed that in enacting s 545E the legislature intended that criminals, hoodlums or members of street gangs should be free to carry the prohibited weapons in public places because they had a well-founded fear of attacks from other criminals, hoodlums or street gangs. In addition, it seems almost certain that the legislature intended that a person's possession of a loaded firearm could not be excused under s 93G on the ground that the loaded firearm was carried for self-defence. Such an excuse would nearly defeat the object of s 93G. Equally, it seems almost certain that the legislature intended that a person's possession of "a fuse capable of use with an explosive or detonator" or of "a detonator" under s 545E(1)(b) or (c) could not be excused on the ground that it was possessed for self-defence. But if that is so, on what principled basis could the legislature have intended a court to interpret "reasonable excuse" in s 545E(2) so as to provide a defence for persons who have a well-founded fear of attack?

If the rule of law is to have meaning, a criminal law should operate uniformly in circumstances which are not materially different. Consequently, even if in some circumstances a well-founded fear of attack is a necessary but not decisive criterion of "reasonable excuse", courts will have to formulate various conditions which disqualify some, but not all, individuals or groups from taking advantage of the "reasonable excuse" protection afforded by s 545E(2). That means that, under the label "reasonable excuse", the courts will have to make what are effectively political judgments by looking for material differences justifying the distributive operation of the criminal law in a variety of circumstances which have many, sometimes almost identical, similarities with each other. Put at its lowest, the courts will have to make value judgments as to what circumstances giving rise to a well-founded fear of attack entitle a person to arm him or herself with a prohibited article or thing. That is to say, the courts will have to make a judgment as to what circumstances deserve to be exempted from the scope of s 545E(1). Courts will have to distinguish between the case of the criminal or hoodlum who has a well-founded fear of attack and other cases or otherwise hold that a well-founded fear of attack is always a "reasonable excuse" for carrying an article or thing coming within s 545E(1).

However, a person should not be guilty or not guilty of a crime depending on a value judgment by a court as to whether in one case, but not another, a well-founded fear of attack was a "reasonable excuse" and entitled the defendant to carry a prohibited article or thing. The operation of the criminal law should be as certain as possible. If the interpretative choice is between making a value judgment and applying a rule, a court exercising criminal jurisdiction should prefer the rule. That being so, there is much to be said for the view that in 1992 such were the difficulties of holding that the term "reasonable excuse" in s 93G and s 545E included a claim of self-defence that, in the absence of a contrary legislative indication, the term should not be interpreted as covering such a claim.

However, 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. It is therefore impossible to say that "self-defence" could never be a "reasonable excuse" for the purpose of s 545E(2) and perhaps even s 93G.

Accordingly in some circumstances, even before the recent amendments to s 545E, a person, who possessed a prohibited article or thing in a public place because he or she feared an attack, might have had a "reasonable excuse" within the meaning of that section. Nevertheless, given the purpose of the section and the requirement of reasonableness in sub-s (2), a plea of reasonable excuse could not succeed by relying on a mere belief that the person needed the prohibited object for self-defence. Whatever else was needed to make a plea of self-defence a "reasonable excuse" for possession of the dangerous item, a well-founded fear of attack in the public place in question would have to be a minimum requirement. Otherwise, the purpose of the section would be too easily defeated.

Upon the facts found by Rummery DCJ, no ground exists for concluding that Mrs Taikato had a reasonable excuse for the possession of the canister of formaldehyde. The canister was found in her possession at about 12.15 pm in a public street in a suburb of Sydney. There is nothing in the findings of the learned judge that supports a conclusion that she was likely to be attacked or had a well-founded fear of attack while walking in the street where she was found in possession of the canister.

This conclusion is supported by the criteria that were enacted in 1994 when amendments were made to s 545E to provide for a defence of "self-defence"[21]. In determining whether the purpose of "self-defence" is reasonable under these amendments, a court must consider all the circumstances of the case including[22]:

"(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

(d) the age, characteristics and experiences of the person charged."

Although a court is now directed to take these matters into account, they were all relevant to the issues of "reasonable excuse" and "self-defence" before the amendments.

It is impossible to conclude, having regard to the above criteria and the purpose of the section, that the facts of Mrs Taikato's case would constitute a "reasonable excuse" for the purpose of the amendments. Those amendments make it clear that possession of a prohibited article or weapon for the purpose of "self-defence" is not of itself a "reasonable excuse". There must be a perceived threat, and its immediacy is also a relevant factor. So is the time, the location, the nature of the prohibited article and the personal history of the defendant. Here there was no perceived threat, let alone an immediate one. It was mid-day and Mrs Taikato was on a public street. The thing possessed was not an ordinary household item. It was intended to be used as a weapon. Her presence in Railway Street bore no similarity to the circumstances of the attempted attack on her at her home some years before. Having regard to the purpose of the section and the criteria specified in the amendments, a person of Mrs Taikato's age, characteristics and experience would have no reasonable excuse for carrying a canister of formaldehyde in the middle of the day on a public street in the Sydney suburb of Liverpool when she has no reasonable grounds for believing at that time that she is in danger of attack. That being so, it must follow that she had no "reasonable excuse" under s 545E as it stood in 1992.

Order

The appeal should be dismissed.

DAWSON J. The appellant was apprehended by police officers who mistook her for someone else. She was searched and the search revealed that she was carrying in her handbag a pressure pack spray can the approximate dimensions of which were 10 centimetres in height and 2.5 centimetres in diameter. The spray can was found to contain formaldehyde, an irritant substance. The appellant was charged with an offence under s 545E of the Crimes Act 1900 (NSW), which provides:

"(1) A person who, in a public place, possesses:

(a) anything (not being a firearm within the meaning of the Firearms Act 1989) 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

is liable, on conviction before a Magistrate, to imprisonment for 2 years, or a fine of 50 penalty units, or both.

Notwithstanding that the appellant raised a defence under s 545E(2) that she had a reasonable excuse for possessing the spray can or possessed it for a lawful purpose, she was convicted by the Liverpool Local Court. She appealed against the conviction to the District Court.

The learned District Court judge found that the appellant was carrying the spray can for the purpose of self-defence following an attempt made by a man to strike her when she and her husband returned home a few years earlier and discovered the man breaking into their house. Nevertheless, the judge held that the appellant did not have a reasonable excuse for possession of the spray can and did not possess it for a lawful purpose. At the request of counsel for the appellant, the judge stated questions of law for the Court of Criminal Appeal as follows:

The Court of Criminal Appeal answered each question in the affirmative, adding to the answers to the second and third questions the qualification "if the possession of [the object is] not related to a reasonable apprehension of imminent attack". The appellant now appeals to this Court from the judgment of the Court of Criminal Appeal.

In this Court counsel for the appellant concentrated his submissions upon the meaning of lawful purpose in s 545E(2). He contended that a lawful purpose within the meaning of that sub-section extended to a purpose which was not unlawful and that, since the appellant possessed the spray can for the purpose of self-defence, which was not unlawful, she possessed it for a lawful purpose. It is understandable why the appellant placed no emphasis upon reasonable excuse as a defence because, upon that submission as to the meaning of lawful purpose, there is little if any work for the defence of reasonable excuse to do. It is unlikely that a purpose which is unlawful would provide a reasonable excuse for possession and, upon the appellant's submission, a lawful purpose would cover the same ground as a reasonable excuse. On the other hand, if, contrary to the appellant's submission, a lawful purpose within the meaning of s 545E(2) extends only to a purpose actually authorised by the law and does not embrace a purpose which is merely not proscribed or regulated, it is possible to give some content to the defence of reasonable excuse.

I agree with Brennan CJ, Toohey, McHugh and Gummow JJ, for the reasons which they give, that a lawful purpose within the meaning of s 545E(2) is confined to a purpose positively authorised by the law. As was pointed out by Napier J in Crafter v Kelly[23] the word "lawful" must take its meaning from its context. And, whilst I would adopt all the reasons given by their Honours, it seems to me to be cogent that, unless a lawful purpose is confined to an authorised purpose, the defence of reasonable excuse has little or no scope. That can hardly have been intended by the legislature. Having rejected the appellant's submission to the contrary, it is necessary to examine whether the facts found in the District Court are capable of constituting a reasonable excuse within the meaning of s 545E(2). That defence was not abandoned in that Court and its availability is raised by the first question reserved.

The Court of Criminal Appeal took the view that possession of the spray can by the appellant for the purpose of self-defence was incapable of providing a reasonable excuse because that possession was not "motivated by a reasonable apprehension of imminent attack or imminent danger". In reaching that conclusion, the Court was influenced by the decision of the English Court of Appeal in Attorney-General's Reference (No 2 of 1983)[24]. Although the Court was in that case concerned with a defence of "lawful object" to a charge of making a petrol bomb contrary to s 4 of the Explosive Substances Act 1883 (UK), it considered two cases dealing with the offence of having in a public place any offensive weapon contrary to s 1 of the Prevention of Crime Act 1953 (UK). Under that Act "lawful authority or reasonable excuse" is a defence. The two cases which the Court of Appeal considered were Evans v Hughes[25] and Grieve v Macleod[26]. It approved the decision in each of those cases, saying[27]:

"[T]hose courts decided that the question of reasonableness of excuse for possession of an offensive weapon must be considered in relation to the 'immediately prevailing circumstances.' It may be a reasonable excuse that the carrier is in anticipation of imminent attack and is carrying the weapon for his own personal defence."

With all due respect, I am unable to accept that proposition as one of general application or, at all events, as one of application to s 545E(2) of the Crimes Act. The Court of Criminal Appeal took the contrary view and I think that they were in error in so doing.

It is quite conceivable that self-defence (assuming it to be something which is positively authorised by the law as opposed to merely being not unlawful[28]) may only amount to a lawful purpose for possessing a weapon where an imminent attack is anticipated. That is because the occasion for self-defence only arises when an attack is imminent. That is to say, self-defence can only occur in response to an imminent attack and it is the nature of the attack which sets the bounds of what is permissible by way of self-defence. Possession of a weapon for the purpose of being prepared to defend oneself should the occasion arise may be seen as not being possession for the purpose of self-defence because the occasion has not arisen and hence there is no possession for a lawful purpose. In that regard it may be observed that for all practical purposes the defence of lawful purpose has little, if any, scope to play in this context. But whether the possession of a weapon in preparation for an occasion calling for self-defence is a reasonable excuse for that possession is an entirely different question. For my part, depending upon the circumstances, I can see no reason why it should not be capable of constituting a reasonable excuse.

A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person. It is different from a lawful excuse[29] but, as has already been noted, it is difficult to conceive of an unlawful purpose which would constitute a reasonable excuse. Reasonableness provides a test which is well-known in both criminal and civil law and, though it may involve a judgment of degree, has a ready application in widely differing circumstances. The fact that the test of reasonableness frequently involves a question of degree so that minds may differ upon the answer does not relieve a tribunal of the duty to apply the test where that is the test laid down and does not justify confining its scope for the sake of greater precision or certainty. That is particularly so where the test is contained in a provision which is intended to define the circumstances amounting to a defence in a criminal prosecution. "Reasonable excuse" is a defence prescribed by the legislature in s 545E(2) and if that defence is raised, as it was here, it requires a decision to be made upon the question of the reasonableness of the excuse alleged.

I can see no reason why, in appropriate circumstances, it may not be a reasonable excuse for the possession in a public place of a spray can containing an irritant, that its possession was by way of a precaution against the possibility of an attack which would justify its use. Any other interpretation of the defence would, in my view, lead to absurd results. For example, if at the time the appellant was apprehended by the police an attack upon her was imminent she may, even upon the contrary view, have had a reasonable excuse (as well as a lawful purpose) for possessing the spray can, namely, self-defence. Can it sensibly be said that she would have been denied the defence of reasonable excuse if she were apprehended by the police ten minutes earlier or, even more pointedly, if after repelling her attacker, she were to continue on her way with the spray can in her bag? If it would have been a reasonable excuse for the appellant to have possessed the spray can for the purpose of repelling an imminent attack, how would she have been in possession of the spray can for that purpose if she had not carried it with her at an earlier time?

Of course, whether the appellant in fact had a reasonable excuse for the possession of the spray can depends upon all the circumstances. After the alleged offence was committed by the appellant, the Crimes Act was amended by adding sub-ss (3) and (4). Sub-section (3) provides for a defence of self-defence if that was reasonable in the circumstances. Sub-section (4) provides that in considering that defence:

"... 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

(d) the age, characteristics and experiences of the person charged."

Whilst it is not possible to take the amendments to s 545E into account in interpreting the section as it was before the amendments, at least upon the view which I take which is that the prior legislation is unambiguous[30], those amendments serve to indicate the kind of circumstances which are relevant in determining whether the appellant had a reasonable excuse for her possession of the spray can under the unamended section. The type of thing possessed - namely, a small spray can containing a substance that is not highly dangerous - seems particularly relevant in this case. Upon that basis, the findings of fact made in the District Court are clearly capable of founding such a defence. I would answer the questions reserved as follows:

Question 1 No, so far as the defence of reasonable excuse is concerned.

Questions 2 Yes, except where the possession is positively

and 3 authorised by law or there is no defence of reasonable excuse.

I would allow the appeal and remit the matter to the District Court for decision in accordance with those answers and these reasons.

GAUDRON J. The appellant, Mrs Taikato, was convicted in the Liverpool Local Court of an offence under s 545E of the Crimes Act 1900 (NSW) ("the Act"). At the relevant time s 545E provided:

" (1) A person who, in a public place, possesses:

(a) anything (not being a firearm within the meaning of the Firearms Act 1989) 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

is liable, on conviction before a Magistrate, to imprisonment for 2 years, or a fine of 50 penalty units, or both.

Section 545E has since been amended, ostensibly to overcome the earlier decisions in this case[31].

The facts leading to the appellant's conviction may be shortly stated. She was carrying a small pressure-pack spray can[32] in her handbag when she was stopped in a public place and questioned by police with respect to another matter and one, incidentally, with which she was not in any way involved. The can was enclosed in a leather type case with a cap covering its top. When questioned, the appellant said she did not know what was in the can but that she bought it "to spray at someone if they attack me". She added that she had never used it. When analysed, it was found that the spray can contained formaldehyde. The appellant was thereafter charged with an offence under s 545E of the Act.

It has never been in issue that, for the purposes of s 545E, formaldehyde is an "irritant matter" and that a pressure-pack spray can is not a firearm. The appellant defended the charge in the Local Court, claiming that she possessed the spray can for a lawful purpose or, alternatively, that she had a reasonable excuse for possessing it. She repeated in evidence what she had told police, namely, that she bought it in case someone attacked her but that she had never used it. She added that she bought it a few years earlier following an incident in which an intruder in her home tried to strike her. Her defence was rejected, seemingly on the basis that, unless she reasonably apprehended some imminent danger, self-defence was neither a "reasonable excuse" nor a "lawful purpose" within the meaning of those expressions in s 545E(2) of the Act.

An appeal to the District Court was unsuccessful. However, Rummery DCJ found that the appellant had possession of the spray can for self-defence and had purchased it in the circumstances which she recounted in the Local Court. In the context of that finding, he referred the following questions for the consideration of the New South Wales Court of Criminal Appeal[33]:

The Court of Criminal Appeal answered "Yes" to each of the questions referred by Rummery DCJ[34]. It was held by Meagher JA, with whom Abadee and Ireland JJ agreed, that self-defence constitutes neither reasonable excuse nor lawful purpose unless there is reasonable apprehension of imminent attack, a holding which is consistent with United Kingdom authorities concerned with provisions similar to s 545E. The appellant now appeals to this Court.

The expression "reasonable excuse" lacks precise content. And its companion in s 545E of the Act, "lawful purpose", is, at best, ambiguous: it may signify something positively authorised or countenanced by law; on the other hand, it may mean something which can be done without breaching the law[35]. The precise meaning and operation of these expressions must be ascertained from their context, if that is possible. And if context provides no sure guide, they must be ascertained by application of the other rules of construction which have been developed to determine, in the event of uncertainty, what Parliament intended but failed to make clear.

Little is to be ascertained from the immediate context in which s 545E appears. Section 545A makes it an offence to tender a bogus advertisement for insertion in a newspaper; s 545B is concerned with intimidation; s 545C with unlawful assembly; s 545D with the unlawful making and possession of explosives. The latter provision bears some similarity to s 545E in that it creates an offence unless the person charged establishes that "he made the explosive substance, or had such substance in his possession or under his control, for a lawful purpose". However, only the subject-matter by reference to which the offence is created, namely, "any explosive substance", provides any indication of the meaning of "lawful purpose" as used in s 545D.

Counsel pointed to two other provisions of the Act. The first, s 93G, creates a number of offences relating to the possession and use of loaded firearms and spearguns, including possession in a public place. It is provided in sub-s (3) of that section that a person is not guilty of the offence of possession if he or she "satisfies the court that he or she had a reasonable excuse for possessing it ... or possessed it ... for a lawful purpose". The second provision is s 353B which creates an offence with respect to the possession in lawful custody of "any razor, razor blade or other cutting weapon" unless the person charged establishes that "he was carrying the same for a lawful purpose". Given the nature of the objects encompassed in the offence created by s 353B, it would be unreasonable to construe "lawful purpose" in that section as meaning anything other than something that can be done without breach of the law.

It is well established that, when used in the same instrument, the same words are generally to be taken as bearing the same meaning[36]. However, counsel for the respondent submitted that, given their different legislative history, there is no basis for construing "lawful purpose" in s 545E as having the same meaning as it has in s 353B. In this regard, he pointed out that, whereas ss 353B and 545D have been in the Act for some considerable time[37], ss 93G and 545E, both of which derive from the Firearms and Dangerous Weapons Act 1973 (NSW) and both of which postulate defences of reasonable excuse and lawful purpose, were inserted by the Crimes (Firearms) Amendment Act 1989 (NSW) only in 1989.

Although legislative history may be of some relevance, it does not, of itself, provide a safe basis for departing from the general rule that the same words are to be taken as having the same meaning if used in the same instrument. After all, it is a rule of common sense and, it may be assumed, one with which draftspersons are generally familiar.

There are, however, two reasons why the meaning of "lawful purpose" in s 353B should not automatically be transposed to s 545E. The first is that, in s 353B, it derives its meaning from the nature of the objects or things by reference to which that section operates, namely, "razor[s], razor blade[s] or other cutting weapon[s]". The second, which is related to the first, is that words and expressions which are otherwise ambiguous or of indeterminate reference often take their meaning from other words or expressions with which they are combined or juxtaposed. Thus, there is no reason to assume that, when used in combination or juxtaposition with some other expression, "lawful purpose" necessarily has the same meaning as it does when used alone.

It follows from what has been said that context is of little assistance in the present case, but that assistance may be found in subject-matter and syntax. So far as syntax is concerned, the juxtaposition of "lawful purpose" with "reasonable excuse" strongly suggests that a lawful purpose is a purpose positively authorised or countenanced by law. If "lawful purpose" were to be construed for the purposes of s 545E as extending to anything which is not forbidden by law, there would be very little scope for a defence of reasonable excuse. And to a considerable extent, that construction is confirmed by the nature of the objects and substances encompassed in the prohibition effected by s 545E, namely, objects and substances capable of causing serious inconvenience and, even, harm if discharged or used in a public place. A fortiori in the case of the objects encompassed in the prohibition effected by s 93G of the Act. It follows, in my view, that in ss 93G and 545E of the Act, "lawful purpose" must be construed as meaning a purpose positively authorised or countenanced by law.

It remains to be considered whether, as a matter of law, self-defence does not constitute a lawful purpose or reasonable excuse for the purposes of s 545E, unless there is an apprehension of imminent attack. There can be no doubt that self-defence is positively countenanced by law and is, in that sense, a lawful purpose. And, leaving aside the question whether there is apprehension of imminent attack, it is one which falls within the notion of "lawful purpose" as used in s 545E. However and as already indicated, there are United Kingdom decisions to the effect that self-defence constitutes a lawful object or reasonable excuse only if there is an apprehension of imminent attack. Of these, Attorney-General's Reference (No 2 of 1983)[38] is, perhaps, the most significant.

The expression in issue in Attorney-General's Reference was "lawful object", an expression which, for the moment, may be equated with "lawful purpose". The decision in that case was reached by reference to R v Fegan[39], which also concerned the expression "lawful object", and to the decisions in Grieve v Macleod[40] and Evans v Hughes[41], both of which concerned the expression "reasonable excuse". The decision in Attorney-General's Reference was followed in this country in Ford v Lindholm[42] and, of course, by the Court of Criminal Appeal in this case. It is necessary to examine the United Kingdom cases to determine whether they disclose reasoning which requires or supports the approach of the Court of Criminal Appeal.

It is convenient to turn first to the cases of Grieve v Macleod and Evans v Hughes. In the former, the High Court of Justiciary in Scotland held that each case must depend on its own facts and found that, having regard to the facts and circumstances disclosed, the accused, a taxi driver who carried in his cab a length of rubber hose into which a piece of metal had been inserted, allegedly for self-defence, failed to establish the defence of reasonable excuse[43]. In Evans v Hughes, a case involving an iron bar which the accused was carrying because he had been attacked a week or so earlier, it was said by Lord Widgery CJ, with whom Melford Stevenson and Milmo JJ agreed, that "it may be a reasonable excuse ... that [the person concerned] is in anticipation of imminent attack ... but ... [the] Act [in question] never intended to sanction the permanent or constant carriage of an offensive weapon merely because of some constant or enduring supposed or actual threat or danger"⁴⁴.

There are a number of matters to be noted with respect to the decisions in Grieve v Macleod and Evans v Hughes. First, Grieve v Macleod laid down no principle of general application. Second, Evans v Hughes did not hold that anticipation of imminent attack is necessary in all cases. Moreover, in Evans v Hughes the question whether the matters proffered by the accused were to be taken into account in determining whether he had a reasonable excuse was seen as one to be answered by reference to the legislation creating the offence with which he was charged[45]. Finally, it follows that it is impossible to extract from Evans v Hughes any principle extending beyond the legislation there in question.

As with Attorney-General's Reference, Fegan was concerned with possession for a "lawful object". It was said in that case[46]:

" Possession of a firearm for the purpose of protecting the possessor or his wife or family from acts of violence, may be possession for a lawful object. But the lawfulness of such a purpose cannot be founded on mere fancy, or on some agressive [sic] motive. The threatened danger must be reasonably and genuinely anticipated, must appear reasonably imminent, and must be of a nature which could not reasonably be met by more pacific means".

That conclusion was adopted as correct in Attorney-General's Reference, though the principle was not there stated in terms of the danger "appear[ing] reasonably imminent" but, seemingly, by reference to a more immediate situation. It was held in that case that self-defence constitutes lawful object, but only if the "object [is] to protect the [person concerned] or his family or his property against imminent apprehended attack and to do so by means which he believe[s are] no more than reasonably necessary to meet the force used by the attackers"⁴⁷.

The United Kingdom decisions to which reference has been made are clearly grounded in the law of self-defence. However, they are grounded in the law of self-defence as an answer to a charge of murder or an offence involving assault. In such cases, self-defence is not an answer unless the person concerned was attacked or apprehended that attack was imminent.

So far as "lawful purpose" is concerned, there are two reasons, in my view, for taking a different approach from that taken in Attorney-General's Reference. First, "lawful purpose" is a notion which extends beyond self-defence. And if viewed independently of self-defence, it clearly extends to a future event or possibility, and is not restricted to immediate purpose[48]. It may be that, in this respect, "lawful purpose" differs from "lawful object". Whether or not that be so, there is no basis for importing the law relating to self-defence as an answer to a charge of murder or an offence involving assault to a situation which, ex hypothesi, has not happened.

The second reason for not taking the approach adopted in Attorney-General's Reference is that it tends to conflate two distinct issues, namely, whether self-defence constitutes lawful object or purpose and whether the evidence supports a finding that that was, in fact, the object or purpose of the accused at the time in question. The matters specified in Attorney-General's Reference as necessary for self-defence to constitute a lawful object are matters which are apt to indicate that the object is, in truth, self-defence. And if the focus of attention is the immediate situation, they also indicate that the object is not self-defence.

Given that "purpose" extends beyond immediate events, a person may, in my view, have possession of some object or substance for self-defence, notwithstanding that he or she does not apprehend imminent attack. And in my view, the preferable approach to s 545E is to proceed on the basis that self-defence is a lawful purpose but that, as a matter of fact, it will generally be found that a person does not have the object or substance in question for self-defence unless that person has genuine reason to fear that he or she might be attacked and unless the nature of the object or substance and the time and place of its possession are reasonable having regard to the nature of the attack feared and the time and place it might occur.

In the view which I take, it is strictly unnecessary to say anything of "reasonable excuse". It is, however, appropriate to add that, were I of a different view as to "lawful purpose", I would conclude that self-defence constitutes reasonable excuse, whether or not there is apprehension of imminent attack. Although the notion of "reasonable excuse" ordinarily imports a value judgment, it necessarily extends to self-defence. And so far as concerns self-defence, the only question that could arise with respect to "reasonable excuse" is whether the evidence supports a finding that the purpose is, in truth, self-defence. And as with lawful purpose, that, in my view, is a question to be answered having regard to whether the person concerned reasonably fears attack, and whether the nature of the object and the time and place of its possession are reasonable having regard to the nature of the attack feared and the time and place it might occur.

The appeal should be allowed. Question 1 of the questions referred to the Court of Appeal by Rummery DCJ should be answered "No". It is unnecessary to answer Questions 2 and 3.

KIRBY J. This appeal from the Court of Criminal Appeal of New South Wales concerns the meaning, in s 545E(2) of the Crimes Act 1900 (NSW) ("the Act"), of the words "reasonable excuse" and "lawful purpose".

In Crafter v Kelly[49], Napier J observed that the word "lawful", where appearing in such a legislative provision, must always take its meaning from the context. This is because it is inherently ambiguous, although it wears a "deceptive air of simplicity"[50]. The same may be said of the words "reasonable excuse". Taken in isolation, these phrases are slippery and chameleon-like in their content. The meaning to be given to them is necessarily confined to the particular statutory provisions under scrutiny.

An aerosol canister is found in possession

The proceedings come to this Court following a case stated in the District Court of New South Wales by Rummery DCJ. He was, in turn, hearing an appeal by Mrs Jo-anne Teruia Taikato ("the appellant") against her conviction in the Local Court of New South Wales. The appellant was charged with, and convicted of, the offence of possessing in a public place a thing capable of discharging an irritant liquid chemical. This offence is created by s 545E(1) of the Act.

There was no dispute about the facts. On 26 March 1992 the appellant was in a public place, viz Railway Street, Liverpool near Sydney in New South Wales. In the course of a police operation for purposes other than those giving rise to the charge (and with which, as the Court was informed, the appellant was wholly unconnected) she was apprehended. Her possessions were searched. In her handbag, police found a pressure-pack canister with an angled nozzle. The object was 10 centimetres in height and 2.5 centimetres in diameter. A certificate of an analyst was admitted into evidence. It showed that the canister, when discharged, emitted a clear liquid with a pungent odour, found on analysis to be formaldehyde. It was certified that this was an "irritant matter".

The appellant told police that she had purchased the canister in a hotel some time before. She had possessed it for a few years. She had never used it. When asked why she had it, she said: "[T]o spray at someone if they attack me".

Stated case and appellate decision

In the Local Court, the appellant gave evidence that she had purchased the canister after an incident in which she and her husband had returned to their home one night to find someone breaking in. The intruder had attempted to strike her. Because she had never actually used the spray, she did not know whether it was effective or not. In cross-examination she explained that she had been told that the canister was "a self-defence spray". She stated that if someone tried to attack her she would use it:

"[I]f you spray in someone's face it's going to give you a couple of minutes to be able to get away."

None of the foregoing was contested. Nor was it disputed that the evidence was available for consideration in answering the questions reserved in the case stated. The appellant did not dispute that she fell within the prohibition of s 545E(1) of the Act. She claimed to be exempted under s 545E(2) of the Act. The prosecution did not dispute that her purpose in carrying the canister was that stated in her evidence.

Rummery DCJ found that the foregoing facts did not bring the appellant within s 545E(2) of the Act. However, before making his orders, at the request of the appellant, he stated a case for the opinion of the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). The questions in the stated case are set out in the opinions of the other members of this Court.

The reasons of the Court of Criminal Appeal for its answers to the questions reserved were given by Meagher JA. His Honour concluded that the case law on the statutory phrases in question made it "fairly plain" that, in the case of a prohibited thing, no possession could be justified by a "reasonable excuse" unless the possession was motivated by "a reasonable apprehension of imminent attack or imminent danger"[51]. Because the purchase of the canister had occurred some years earlier and there was no evidence that there was "any rational fear of another attack" of the kind which had preceded its purchase, the element of imminent danger was missing. This fact deprived the stated "excuse" of reasonableness.

Meagher JA was more attracted to the argument that the "purpose" of the possession, being strictly for self-defence, was "lawful". However, after reference to a decision of the English Court of Appeal in Attorney-General's Reference (No 2 of 1983)[52] (which had been followed in South Australia in Ford v Lindholm[53] and in New South Wales in Bell v Atwell[54]), his Honour felt constrained to give the phrase a meaning which imported a reasonable apprehension of imminent attack. He noted that the Australian decisions had followed the opinion of the English Court of Appeal "with some distaste". He regarded the result as "absurd ... in terms of practical effect". He concluded that such a view of the law was "based on what seems to me to be an unwarranted interpretation of the language of the statute". Nevertheless, "for reasons of comity" he considered, "with some reluctance", that the Court of Criminal Appeal should follow the line of authority cited. Abadee and Ireland JJ concurred.

In this Court, the appellant criticised both the approach of the Court of Criminal Appeal and the result to which that approach had taken it.

Provisions of the Act

Section 545E appears in Pt 14 of the Act ("Offences Punishable by Justices and Procedure Before Justices Generally"). Chapter 3 of that Part contains a number of offences punishable summarily. These include various offences of larceny; bogus advertisements; intimidation; joining unlawful assemblies; abetting or procuring; consorting; resisting police; making false statements respecting births, deaths or marriages; public mischief and peeping or prying. There is no apparent genus for the offences included in Pt 14. Some of the offences appear to have found their way into the Act from other legislation, seemingly for the purpose of responding to community concern about the prevalence and occasional seriousness of anti-social conduct of various kinds. Such appears to have been the case in respect of s 545E. The history of the section can be traced to the Firearms Act 1936 (NSW), which incorporated in the Police Offences Act 1901 (NSW) a new Pt IIA to regulate firearms. Section 41O, contained in that Part, was a provision similar to s 545E of the Act. It created an offence of having in possession in a public place an article or instrument capable of discharging an irritant liquid, gas or powder, or any substance capable of causing bodily harm except for some lawful purpose.

In 1973, Pt IIA of the Police Offences Act was repealed by the Firearms and Dangerous Weapons Act 1973 (NSW). Section 57 of that Act was the immediate predecessor to s 545E. That section read, relevantly:

"(1) A person shall not have in his possession in a public place -

(a) any article or device, not being a firearm, capable of discharging by any means -

(i) any irritant liquid, powder, gas or chemical or any dense smoke; or

(ii) any substance capable of causing any bodily harm; or

(b) any safety fuse or detonator.

Penalty: $500 or imprisonment for 6 months, or both.

(2) A person is not guilty of an offence arising under subsection (1) in respect of having in his possession any thing referred to in that subsection if he has a reasonable excuse for doing so or does so for some lawful purpose."

In 1989 the Crimes (Firearms) Amendment Act 1989 (NSW), the Firearms Act 1989 (NSW) and the Prohibited Weapons Act 1989 (NSW) were enacted. The Firearms and Dangerous Weapons Act 1973 (NSW) was repealed. Serious offences were transferred from the Firearms and Dangerous Weapons Act to the Crimes Act "as a recognition of their gravity" and the penalties were increased[55]. It was in this way that s 545E came to be inserted in the Act. Apparently reflecting perceptions of the potential seriousness of the offences, the maximum term of imprisonment was quadrupled. The offence was recast somewhat. So were the exemptions. The terms of s 545E are set out in the majority opinion. I will not repeat them.

The provisions of s 545E may be contrasted with the immediately preceding section of the Act (s 545D) which relates to the unlawful making or possession of explosives. That section refers only to having in possession, or under control, explosive substances, otherwise than for a "lawful purpose". No reference is made in that section to a "reasonable excuse". There is a similar approach in s 353B of the Act which relates to carrying "any razor, razor blade or other cutting weapon". An exception is provided in the case of that offence if the accused proves that "he was carrying the same for a lawful purpose". No reference is made to "reasonable excuse".

There are other provisions in the Act which substantially repeat the language of s 545E(2). Thus s 93G of the Act renders it an offence for a person, relevantly, to possess a loaded firearm or speargun. An exception is provided in s 93G(3) in the same terms as in s 545E(2).

Supervening amendment of the Act

Following the decision of the Court of Criminal Appeal in this case, there was much public reaction. This was generally critical of the law as expounded in that Court's decision. In consequence, the Act was amended by the addition to s 545E of the new sub-sections (3) and (4) set out in the opinion of the majority.

A preliminary question arises as to whether the enactment of these amendments demonstrates an acceptance by the New South Wales Parliament of the correctness of the decision under appeal such that this Court should take that decision to be affirmed by Parliament. The possibility was broached that this Court should refrain from adopting a construction of s 545E(2) different from that accepted by the Court of Criminal Appeal because to do so would be to render the amendments otiose.

There is no merit in this suggestion. The appellant has been convicted by a magistrate under the Act as it stood at the time of her alleged offence. That conviction is the subject of an appeal to the District Court which has not yet been disposed of. That appeal will inevitably be dismissed if the view taken of s 545E(2) by Rummery DCJ is left undisturbed. If that view is incorrect, the appellant is entitled to the benefit of this Court's opinion. The amendment of the Act may have been a matter relevant to the grant of special leave. Indeed, the amendment was canvassed at the hearing of the application. Unless, on that ground, special leave were to be revoked, this Court should decide the matter on the basis of the law as it stood at the relevant time. By amending the Act, Parliament may be taken to have responded to perceived political or social necessities. This Court is not so controlled.

In any case, the amendments contained in sub-ss (3) and (4) of s 545E merely spell out, and do not contradict, the submissions of the appellant on the "reasonable excuse" requirement of s 545E(2). Although s 545E has been amended other, similar, sections have not been changed. Accordingly, the general problem presented by the Court of Criminal Appeal's approach remains, unless corrected.

Use by Australian courts of non-Australian authority

The appellant criticised the approach which was adopted by the Court of Criminal Appeal. As the matter is now before this Court, that approach is not of central concern. This Court may take the correct approach, by-passing any error in that of the Court of Criminal Appeal.

Nevertheless, with respect to the Judges of the Court of Criminal Appeal, I should say something about the way the problem was approached there. Doing so may contribute to an understanding of the proper approach to analogous problems in the future.

It is clear enough from the reasoning of the Court of Criminal Appeal (for it was said directly) that the Court found the conclusion which it adopted a matter for regret and one resulting in "an unwarranted interpretation of the language of the statute"[56]. Yet when the reasons which drove their Honours to such an uncongenial result are analysed, they fall far short of the imperatives which could explain such an outcome. No decision of this Court required it. No decision of the Court of Criminal Appeal of New South Wales had that effect. There was not even a decision of another Australian appellate court which should have been followed out of comity unless clearly wrong[57]. All that was relied upon, as the basis of the suggested obligation to come to the unwanted result, was a suggested "comity" with a decision of the English Court of Appeal in Attorney-General's Reference (No 2 of 1983)[58] and two decisions of single judges in Australia which had followed that English opinion "with some distaste".

The decision of the English Court of Appeal was addressed to different statutory language, in legislation with somewhat different purposes, operating in a different social environment. Attorney-General's Reference (No 2 of 1983) concerned a householder who had made petrol bombs allegedly to repel rioters following an earlier entry into his shop during urban riots in London in July 1981. That decision drew, in turn, on Reg v Fegan[59], a case in Northern Ireland where the accused, who had married across religious affiliations, was found in possession of an unlicensed revolver allegedly for the protection of his house and family.

This Court has made it plain that judicial opinions, expressed in foreign courts, may be used to assist Australian courts in the resolution of like problems[60]. Such opinions constitute a useful source of comparative law material upon which Australian courts may continue to draw, as they have in the past. But it is a mistake, in the performance of the judicial function in Australia, simply to follow foreign judicial opinions as if courts in this country were still subject to their authority. They are not. Since the termination of Privy Council appeals, whilst great respect will continue to be paid to foreign courts, the accountability of Australian courts to the opinions of any court of another country has entirely ceased[61]. It is important that Australian judges recognise the intellectual freedom (and responsibility) which is the consequence of the severance of the former institutional links.

It is more likely that the exposition of basic principles of the common law, by courts of high authority in other common law countries, will assist courts in Australia engaged in analogous tasks, than that opinions on the construction of legislation may be adopted and applied to different, local legislation. The local legislation will have been made by an Australian Parliament. It will have been enacted to respond to Australian political and social circumstances. It will be intended to operate in Australian conditions. Australian statutes have taken their own particular directions for more than 150 years. Interpretation of such statutes by Australian courts should reflect these realities.

The dissatisfaction of the Court of Criminal Appeal with the consequence to which their Honours felt themselves impelled by English authority should have been a reason for them to question the applicability of that authority to an Australian statute. That statute had been enacted recently by the New South Wales Parliament. Clearly, it was intended to respond to local conditions. Such conditions are different from the communal tensions of Northern Ireland or the urban race-riots of Brixton in London. Relevant Australian conditions today include the danger which is faced by women in certain circumstances and at certain times in Australian cities. They also include the dangers faced by other vulnerable groups, such as the old, the young, ethnic minorities, homosexuals, etc. Section 545E was enacted to operate in this environment. It should have received a construction appropriate to that context. The Court of Criminal Appeal ought to have questioned the applicability of the English authority and doubted the assistance which such authority could give in the task of construing a statute of the New South Wales Parliament. The Court of Criminal Appeal had full authority to do so. Given the relatively small number of appeals which may be considered by this Court, it ought to have formed its own view of the matter[62]. It ought not to have followed unpalatable foreign authority which it felt was "absurd" and which was not binding on it "for reasons of comity"[63].

The purpose of the stated case procedure was to secure the opinion of the Court of Criminal Appeal of New South Wales on points of law. No other Australian appellate court had considered the point or one exactly like it. Whilst I am not unmindful of the heavy caseload in Courts of Criminal Appeal, the approach adopted in the present case was incorrect. It led to an incorrect result.

General considerations

A number of general considerations affect my approach to this appeal:

1. The duty of a court is, relevantly, to give effect to the imputed purpose of Parliament, as expressed in the language of the enactment. Until the enactment of s 41O of the Police Offences Act, it was no offence for a person to have in possession in a public place a thing capable of emitting an irritant liquid etc or of causing bodily harm. But Parliament enacted that provision in particular terms. Thereafter, such possession was rendered a criminal offence. The offence has been re-enacted by s 545E(1) of the Act. Indeed, the punishment, upon conviction, has been increased. The seriousness attached by Parliament to the offence can be seen by the inclusion of the offence in a sub-section which also includes provisions dealing with explosive fuses and detonators. By the Act, such possession, without more, is deemed criminal if it occurs in a public place. The reference to the public place implies that the use which is apprehended is one which may endanger the public or members of it. The exceptions stated in s 545E(2) must be understood in the context of the statutory offence. It may be inferred that the language of the offence is so expressed in order to prevent the bringing of potentially dangerous things (as specified) into public places and because experience has shown that those possessing such things there sometimes use them to the danger of the public.

2. The exceptions in s 545E(2) provide relief to a person who would otherwise be guilty of a criminal offence and liable, upon conviction, to lose his or her liberty and/or to suffer a heavy fine. Conventionally, such exceptions will not be given a narrow construction. This is especially so because, whereas in some legislation the onus is cast upon the prosecutor to establish the absence of a lawful purpose, in s 545E(2) the onus is placed on the accused to establish the exception. It is the accused who must excuse or justify the possession of the thing which otherwise establishes the liability for the offence. Whereas the general onus remains on the prosecutor throughout to establish the offence, the accused must "satisfy the court" of the applicability of the suggested exemption[64]. Unless the accused can do so, mere possession is enough to establish the offence. That may appear drastic. Its purpose is evident enough in the case of explosive fuses and detonators. It may be less immediately clear in the case of things capable of discharging irritant liquid, powder, gas or chemicals or dense smoke. But in some circumstances a canister of teargas could have a potentially disruptive consequence not unlike a small explosion. Aerosol canisters and other objects falling within s 545(1) exist in great variety. They range from hairspray, cologne and mouth-wash (suitable to be carried in a person's handbag or pocket) to implements capable of being used to cause great social disruption or bodily harm. Parliament did not further narrow the definition of such things when it enacted s 545E(1)(a). Presumably, it relied, in part, upon the good sense of prosecutors not to charge persons found in a public place with, say, an aerosol hairspray canister. In part, it would have relied upon the onus borne by the prosecution to show that the accused was guilty of the criminal offence stated. In part, it may have relied upon the necessity for the prosecutor to prove that the thing was capable of discharging "irritant matter" or a substance capable of "causing bodily harm". But in part, it would also have relied on the availability of the exceptions stated in s 545E(2).

3. The exceptions expressed in s 545E(2) are applicable not only to the offence constituted by the possession of a thing capable of discharging irritant matter or causing bodily harm. The exceptions also operate in the case of the other particular things mentioned in sub-s (1), viz explosive fuses and detonators. Care must therefore be taken in giving meaning to "reasonable excuse" and "lawful purpose". If it could be a defence to possess an aerosol cylinder in a public place against the chance that at some future, unspecified, uncertain time it might be needed for self-defence, a similar argument would be available in respect of the possession in a public place of an explosive fuse or detonator. This is a reason for requiring that a degree of precision be given to the meaning of "reasonable excuse" and "lawful purpose" when mentioned in sub-s (2).

4. Nonetheless, by the provision of sub-s (2), it is clear that Parliament contemplated that cases would arise where a "reasonable excuse" and/or a "lawful purpose" were made out. The words must be given content and real operation. Even in the case of the possession in a public place of an explosive fuse or detonator, it must be accepted that there would be instances where a "reasonable excuse" and/or "lawful purpose" might be shown. For example, the chance discovery of such objects, and the possession of them, in a public place for the purpose of taking them to the police or other authorities for safe disposal, could certainly constitute a "reasonable excuse". Similarly, a person licensed to use explosive devices, for example in roadworks, farm activities and tunnelling would have a "lawful purpose", sufficient to attract the exception provided in s 545E(2). The onus would be upon the person in possession to convince the tribunal of fact that the suggested "excuse" was reasonable or that the claimed "purpose" was lawful. But if that onus were discharged, the exception would apply. The person in possession would not be guilty of the offence.

5. Given the virtual identity in the language of s 93G of the Act (dealing with possession in a public place of a loaded firearm or loaded speargun) and of s 545E, which excludes firearms, it seems likely that a similar construction should be given to the words creating the exception in s 93G(3) as is given to those words in s 545E(2). Having regard to the close similarity of the statutory language, the way in which the two provisions complement each other and their respective legislative histories, a common meaning should be given to each. The rigour which would be appropriate to the definition of a "reasonable excuse" and "lawful purpose" in the case of the possession in a public place of a loaded firearm should carry over to the same words when expressed as an exception to the possession in a public place of an aerosol canister having the defined capability. The facts might be different and the risks much less. But the similar statutory language should attract the same meaning.

"For a lawful purpose"

It is convenient to deal first with the suggested exception of possession "for a lawful purpose". The appellant, in this Court, laid principal emphasis upon that phrase, asserting, as she had in the Court below, that self-defence was a "lawful purpose" and that the Court of Criminal Appeal had erred in coming to the opposite conclusion.

What meaning should be given to the phrase "lawful purpose", when used in this context? The word "lawful" can mean, simply, permitted, ie something which can be done without an infraction of the law, for example a lawful trade. Or it can mean something which is supported by the law, for example lawful authority. Or again it may connote a quality of being legally enforceable, for example a lawful demand which can be enforced by action[65]. In many cases it is easier to see what the word does not mean than to define with precision what it does.

The appellant argued that it was a fundamental principle of our law that conduct was ordinarily deemed lawful unless it was explicitly forbidden. That may be true. However, in the case of possession in a public place of an object of the relevant character, Parliament has enacted that such possession, without more, is unlawful. What would otherwise have been the "lawful purpose" of possessing such a canister for one's own reasons is no longer lawful.

In deciding which of the foregoing meanings applies to the phrase "for a lawful purpose" in s 545E(2), regard must be had to the fact that what is possessed is deemed by Parliament to be potentially dangerous to the public and bracketed, for this purpose, with explosive fuses and detonators (and, in s 93G with loaded firearms or loaded spearguns). In such contexts, the better view of the meaning of "for a lawful purpose" in sub-s (2) is that it refers to a purpose expressly or impliedly authorised by law. If it meant simply some purpose that was not made unlawful by another provision of the law, it would be difficult to reconcile such a very broad exception with the explicit statement of the offence in s 545E(1). As in the case of the possession of loaded firearms (for which s 93G(3) provides a parallel exception), there are clear cases where a person may have the thing in question in a public place "for a lawful purpose", in the sense of being positively authorised by law. Thus, police may be so authorised. Others who have explosive fuses, detonators and canisters of teargas may be able to demonstrate the positive authority of law for such possession.

As to the appellant's suggestion that the "purpose" of potential self-defence was sufficient to constitute an authority of law in this sense, it is necessary to test this assertion by what the law actually authorises. That this is so is confirmed by the use of the same phrase as an exception to the offence of possession in a public place of a loaded firearm. It is not the law that a person may use any means of self-defence. Lawful self-defence takes into account such considerations as the real danger of an attack; the prudence of retreat; and the proportionality of the response. To be lawful, self-defence must reflect these objective considerations[66]. It cannot have been the purpose of Parliament to have permitted a chance future possibility of a need for self-defence to constitute "a lawful purpose" in the sense of a purpose not unlawful.

If, therefore, the expression "for a lawful purpose", means, as I think it does, something more than merely not forbidden by law, in the case of an alleged purpose of self-defence, it necessitates consideration of the kinds of matters to which I have referred. The most relevant of these in the present case is the real danger of an apprehended attack.

The necessity of a real danger of attack to justify conduct as self-defence was given expression in the advice of the Privy Council in Palmer v The Queen[67]:

"If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. ... If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action."

In Evans v Hughes[68] an accused had been attacked a week before he was found carrying a bar in a public place. His evidence (which was accepted) was that he had this object in his possession for the intention of using it for self-defence, if he were attacked again. The justices acquitted him, although on the ground that he had proved a "reasonable excuse". Some of the observations on appeal are pertinent to the point which I am making. Lord Widgery CJ remarked[69]:

"[T]his Act never intended to sanction the permanent or constant carriage of an offensive weapon merely because of some constant or enduring supposed or actual threat or danger to the carrier. People who are under that kind of continuing threat must protect themselves by other means, notably by enlisting the protection of the police, and in order that it may be a reasonable excuse to say 'I carried this for my own defence,' the threat for which this defence is required must be an imminent particular threat affecting the particular circumstances in which the weapon was carried."

His Lordship acknowledged that it was "a nice point" as to whether seven days took the case beyond one of "imminent danger", the test adopted in the English authorities. But he found that the conclusion was one open to the justices. The dismissal of the charges was affirmed.

Similar considerations apply to the meaning of "lawful purpose" where the "purpose" said to be authorised by law is that of self-defence. If a person, apprehending a real danger of violence, took steps to defend himself or herself in a proportionate way, the possession in a public place of a thing otherwise prohibited for self-defence could amount to possession "for a lawful purpose". But where, as here, there was no foundation for an apprehension of real danger of an attack at the time of the relevant possession, it would not be possession "for a lawful purpose". To hold otherwise would be to contradict the provisions of s 545E(1), which make possession, without more, illegal.

On the undisputed facts, the appellant, at the time of the possession of the thing in question did not have, or claim to have, any apprehension of immediate or likely danger. It was not even a case of a seven day delay as in Evans v Hughes[70]. Therefore, her possession was not "for a lawful purpose", as that phrase is used in s 545E(2) on the ground of self-defence. The "lawful purpose" which is referred to relates to the "possession" of the object, not to its potential future use.

No other "lawful purpose", in the sense of legal authority, was relied on. The Court of Criminal Appeal therefore made no error in so determining. Nor did the primary judge. The stated case should be answered accordingly.

"A reasonable excuse for possessing it"

The foregoing leaves the alternative ground of exception which was relied on by the appellant both before Rummery DCJ and in the Court of Criminal Appeal. I do not agree that the appellant's counsel conceded this ground either in the Court below or in this Court. I agree with the analysis of Dawson J. The suggested concession may appear from the way counsel relied primarily on the defence of "lawful purpose". But the defence of "reasonable excuse" is clearly raised by the first ground of appeal. And it must be considered to answer the first question reserved by Rummery DCJ.

By using the two phrases of exception, the legislature obviously intended to refer to two related but separate concepts. Having a "lawful purpose", of the kind which I have explained, would ordinarily, if not always, afford the possessor a "reasonable excuse" for possessing the thing in question. But "reasonable excuse" is added to cover a wider range of exempting circumstances. Each of the words in question shows that this is so. Thus, "purpose" has a narrower denotation than "excuse" which may involve reference to a much wider range of considerations than the "purpose" for possession. Similarly, "lawful" directs attention (as I would hold) to the existence of the positive authority of law. What is "reasonable" as an "excuse" invites consideration of a much wider range of pertinent facts.

This is where I consider that the English and Northern Irish cases, relied upon by the Court of Criminal Appeal and referred to in argument in this Court, evidence error[71]. Exactly what the "excuse" is and whether, if accepted, it constitutes a "reasonable excuse" for possession in a public place, of a thing otherwise forbidden, requires consideration of a wider range of facts than is relevant to the ascertainment of the "lawful purpose" of the possession of the thing. It is a mistake to narrow the exemption of "reasonable excuse" by reference only to the legal requirements of self-defence. It is in this opinion that, respectfully, I differ from the majority in this Court.

Adopting a view that "reasonable excuse" has a wider ambit than "lawful purpose" creates no special difficulties for the operation of the exemption in the cases of explosive fuses, detonators and loaded firearms and spearguns. This is because the word "reasonable" will take into account the need for a much more substantial "excuse" for being in possession in a public place of a loaded firearm than it would, say, for being in possession of a small canister capable of emitting an irritant liquid. Similarly, what would be a "reasonable excuse" for being in possession of such a canister would not necessarily be sufficient to excuse possession of a canister of teargas, still less an explosive fuse or detonator. The flexibility of the concept, allied with the fact that the onus of establishing the existence of the "excuse" and its "reasonableness" is upon the accused, affords s 545E(2) an effective and sensible operation.

My conclusion is reinforced by the consideration that the decision-maker could be entrusted to give short-shrift to spurious or unreasonable excuses. It is not appropriate to impose on the broad words of exemption used in the phrase "reasonable excuse" the view that in no case, as a matter of law, can possession of a prohibited thing amount to a "reasonable excuse" where the excuse given is potential use in self-defence and no immediate danger of attack is apprehended. That is to distort, and artificially to narrow, the wide language of exemption used by Parliament. There is no warrant for so doing.

In so far as reasons of policy were said to sustain the approach favoured by the Court of Criminal Appeal, in terms of the explanation offered by Lord Widgery CJ in Evans, the answers which may be given are two-fold. First, if the excuse proffered is unbelievable, by reference to the suggested disproportionality of the response or the delay since the events said to warrant it, it could safely be left to the decision-maker to reject it as an excuse which is not "reasonable". This is the answer to the suggested difficulty of hoodlum gangs with knives and other persons with loaded firearms mentioned by the majority. Secondly, deciding what is a "reasonable excuse" depends on the particular facts of each case. This will take the decision-maker to the kinds of considerations which are now listed in s 545E(4) of the Act. As Millhouse J observed in Ford v Lindholm[72] it was possible, in "more abiding, less violent times", to rely on police to give effective protection. In such times the argument of policy excluding reasonable means of self-defence carried more weight than it does today. What is a "reasonable excuse" today in the suburbs of an Australian metropolis may be quite different from what struck judges, more than a decade ago, in England to be a "reasonable excuse" in the context of that society. A rigid rule should be replaced by a reasonable evaluation of the facts of each case, as those facts are proved and accepted. Such facts will include the appreciation of any relevant local conditions which the rigid rule, accepted by the Court of Criminal Appeal, puts entirely out of account.

Far from being a negation of the rule of law, or an indulgence by the courts in matters of political judgment, this conclusion does no more than to give effect to the clear language of the statute. Recognising that, to render mere possession of the specified thing illegal might, in a given case, be too drastic, Parliament afforded an exception which allowed regard to be had to the wide range of facts and circumstances admissible under the rubric of "reasonable excuse". Those words should not be read out of the Act nor subsumed in the other, different and narrower defence of "lawful purpose". Yet that, with all respect, is what the conclusion of the Court of Criminal Appeal (now confirmed) does. Their Honours were right to find that result absurd and distasteful. It is also unnecessary.

Answers to the stated case

Rummery DCJ was correct, in the evidence accepted by him, in concluding that the appellant's claim did not establish a "lawful purpose" for the possession of the article in question. But he erred in concluding that the appellant did not have a "reasonable excuse" for possessing it.

I favour giving the answers to the questions reserved, and making the orders stated, in the opinion of Dawson J.

[1] However the answers to questions two and three were subject to qualification.

2 [1984] QB 456.

[3] (1987) 45 SASR 445.

[4] (1988) 32 A Crim R 181. Bell did not in fact cite Reference. It did however refer to Ford (at 183) and applied the principles laid down in Reference.

[5] "Firearm" is defined in s 3(1) of the Firearms Act 1989 (NSW) to mean:

"(a) a gun, or other weapon, that can propel anything wholly or partly by means of an explosive; or

(b) a blank fire firearm; or

[6] If the place is not a public place the possession must be "so as to endanger the life of any other person": s 93G(1)(a)(ii).

[7] cf R v Jura [1954] 1 QB 503 at 506.

[8] [1941] SASR 237 at 243.

[9] Bear v Lynch [1909] HCA 31; (1909) 8 CLR 592 at 600, 603, 606.

[10] Crafter [1941] SASR 237 at 243-245.

[11] [1909] HCA 31; (1909) 8 CLR 592.

[12] [1957] SR (NSW) 462 at 464-465.

[13] Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304; Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 322, 338; Coco v The Queen (1994) 179 CLR 427 at 436-437.

[14] s 93G(3).

[15] Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at 618.

[16] (1988) 32 A Crim R 181.

[17] After the decision of the Court of Criminal Appeal in this case, the section was amended to provide a defence of "self-defence" in certain circumstances.

[18] See, for example, Clough v Leahy [1904] HCA 38; (1904) 2 CLR 139 (refusal of witness to be sworn without reasonable excuse); R v Lichaa (1980) 3 A Crim R 355 (reasonable excuse for possession of drugs); Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385 (reasonable excuse for failure to produce documents); Ganin v NSW Crime Commission (1993) 32 NSWLR 423 (reasonable excuse for refusal to answer question); MacDonald v Australian Securities Commission (1994) 120 ALR 515 (failure without reasonable excuse to comply with notices to produce issued under the Australian Securities Commission Act 1989 (Cth)); R v Hill (1994) 74 A Crim R 59 (found in a place reasonably suspected of being used for the purpose of prostitution without reasonable excuse); Conners v Craigie (1994) 76 A Crim R 502 (reasonable excuse for offensive language).

[19] Wong Pooh Yin v Public Prosecutor [1955] AC 93 at 100.

[20] Wong Pooh Yin [1955] AC 93.

[21] s 545E(3) and (4).

[22] s 545E(4).

[23] [1941] SASR 237 at 243.

[24] [1984] QB 456.

[25] [1972] 1 WLR 1452; [1972] 3 All ER 412.

[26] 1967 SLT 70.

[27] [1984] QB 456 at 471.

[28] cf Zecevic v Director of Public Prosecutions (Vict) [1987] HCA 26; (1987) 162 CLR 645 at 657-658.

[29] cf Wong Pooh Yin v Public Prosecutor [1955] AC 93.

[30] See Grain Elevators Board (Vict) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70 at 86; Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 254-255; Allina Pty Ltd v Federal Commissioner of Taxation (1991) 99 ALR 295 at 303.

[31] The New South Wales Court of Criminal Appeal delivered its judgment on 6 April 1994. On 16 May 1994, s 545E was amended by the insertion of the following sub-sections: " (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

(d) the age, characteristics and experiences of the person charged."

[32] It was approximately 10 centimetres in height and 2.5 centimetres in diameter.

[33] The questions were referred pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) which provides: " A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit."

[34] The answers to questions two and three were given with qualification.

[35] See Crafter v Kelly [1941] SASR 237 at 243 per Napier J.

[36] See Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at 618.

[37] Section 353B was inserted into the Act by the Crimes (Amendment) Act 1929 (NSW); s 545D was inserted by the Crimes (Amendment) Act 1951 (NSW).

[38] [1984] QB 456.

[39] [1972] NI 80.

[40] 1967 SLT 70.

[41] [1972] 1 WLR 1452; [1972] 3 All ER 412.

[42] (1987) 45 SASR 445.

[43] 1967 SLT 70 at 71-72.

44 [1972] 1 WLR 1452 at 1455; [1972] 3 All ER 412 at 415.

[45] [1972] 1 WLR 1452 at 1455; [1972] 3 All ER 412 at 415.

[46] [1972] NI 80 at 87-88.

47 [1984] QB 456 at 471.

[48] See also Bell v Atwell (1988) 32 A Crim R 181 at 183 where Campbell J, in discussing "lawful purpose" in the context of s 353B of the Act, held that it was permissible to look beyond "immediate circumstances" to events "both before and after the events of the time and place in particular question".

[49] [1941] SASR 237 at 243.

[50] Hancock v Birsa [1972] WAR 177 at 178. See also Warburton v Huddersfield Industrial Society [1892] 1 QB 817 at 820.

[51] Taikato v The Queen Unreported, Court of Criminal Appeal of New South Wales, 6 April 1994 at 2.

[52] [1984] QB 456.

[53] (1987) 45 SASR 445.

[54] (1988) 32 A Crim R 181.

[55] See New South Wales Legislative Council, Record of Proceedings, 1 December 1988 at 4178.

[56] Taikato v The Queen Unreported, Court of Criminal Appeal of New South Wales, 6 April 1994 at 3.

[57] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492.

[58] [1984] QB 456. The Explosive Substances Act 1883 (UK), as amended, provides by s 4(1) for an offence constituted by:

"Any person who ... knowingly has in his possession ... any explosive substance ... under such circumstances as to give rise to a reasonable suspicion that he ... does not have it in his possession ... for a lawful object, shall, unless he can show that he ... had it in his possession ... for a lawful object ..." (emphasis added).

[59] [1972] NI 80. The Prevention of Crime Act 1953 (UK) provides by s 1(1): "Any person who without lawful authority or reasonable excuse ... has with him in any public place any offensive weapon ..." (emphasis added)

[60] Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 at 668.

[61] Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 at 390: "[T]he precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning."

[] 62[ ]Nguyen v Nguyen[ (1990) 169 CLR 245 at 269-270.

63] The correct course was taken by the Court of Criminal Appeal in R v Carey (1990) 20 NSWLR 292 at 297. See also, as an illustration of the proper approach, Parker v South Australian Housing Trust (1985) 41 SASR 493 at 516-517 per King CJ.

[64] Hancock v Birsa [1972] WAR 177 at 181.

[65] Crafter v Kelly [1941] SASR 237 at 243.

[66] Zecevic v Director of Public Prosecutions (Vict) [1987] HCA 26; (1987) 162 CLR 645 at 661-663; R v Dziduch (1990) 47 A Crim R 378 at 382-383; Palmer v The Queen [1970] UKPC 2; [1971] AC 814 at 831-832.

[67] [1970] UKPC 2; [1971] AC 814 at 831-832.

[68] [1972] 1 WLR 1452.

[69] [1972] 1 WLR 1452 at 1455.

[70] [1972] 1 WLR 1452.

[71] Evans v Wright [1964] Criminal Law Review 466; Grieve v Macleod 1967 SLT 70; Evans v Hughes [1972] 1 WLR 1452.

[72] (1987) 45 SASR 445.

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