IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT ALICE SPRINGS

(tho94019)

JUSTICES APPEAL

No. SCC 40 of 1994
(9412407)

BETWEEN: STEPHEN DIXON
Appellant

AND:

LEONARD DAVID PRYCE
Respondent

CORAM:	THOMAS J

REASONS FOR DECISION

(Delivered 18 August 1994)

This is an appeal from a decision of the learned Stipendiary Magistrate sitting at Alice Springs on 16 June 1994.

The appellant pleaded guilty to a charge that on 9 June 1994 at Alice Springs he was found armed with an offensive weapon, namely a knife, and being thereunto required to give a satisfactory and valid reason for his being so armed, failed to do so. Contrary to s56(1)(d) of the Summary Offences Act.

The facts found by the learned Stipendiary Magistrate in support of the charge are as stated by the Prosecutor (transcript p 2):

"At about 3.15 pm on Thursday, 9 June 1994 the defendant was in the Piggly Wiggly supermarket. A fight had broken out between the defendant and another person. The defendant produced a knife, an 18-centimetre folding knife."

"... And producing that he inflicted a small cut to the other person. The police were called; attended and spoke to the defendant. Asked why he was carrying a knife, he said, "That bloke hit me on the head." The defendant had been punched on the head by the other person, Your Worship. He was asked several times why he was carrying the knife in fact and on each occasion he gave the same reply "

In his submissions on sentence, counsel for Mr Rankin stated as follows (transcript p 3):

" Your Worship, on 9 June my client was at a friend's house next to the Piggly Wiggly supermarket.  There were a number of people there. He was having some drinks with his friends. While they were having a drink and a chat on that day the person who was actually - who received the cut with the knife, I am told gave my client a belt as a gift. That person is my client's sister's husband. I am told that they are quite good friends and often catch up for a drink.

Some time . . . after he had been given this belt - the two of them walked next door with the intention of going into the supermarket. I am told that my client was walking slightly ahead of the other person and that person called out to him. So he came back and he was asked to give him the belt back. Mr client tells me that he did that and then with no warning the person punched my client in the face. This particular knife in question, Your Worship, my client tells me that he carries that, that it is actually a pocketknife and that he carries that for the purposes of - well, various purposes, such as opening cans of food and that sort of thing.

He instinctively reached for it by way of self-defence when he was struck by the other person. I understand it was quite a serious blow - the punch was. He had to receive hospital treatment and in fact stitches in his head. I also understand, Your Worship, that my client did inflict a small cut to the other person but it wasn't anything serious and it wasn't directed to his fact or that part of the body' it was directed at his leg, I understand."

and then at transcript p 4:

I also understand that my client was hit on the head with a broken bottle by this other person as well. So he ended up in quite a bad way. But I also understand, Your Worship, that they have shaken hands and made up, so that there is no

likelihood of an unfortunate situation such as this occurring again.

In light of the circumstances in which these events arose, Your Worship, and also the fact that on my instructions he is only carrying this as a means of preparing food and that type of thing
- I would be asking for a fine in the circumstances. I would submit that would be an appropriate penalty "

In imposing sentence the learned Stipendiary Magistrate said as follows (transcript p 5):

. . . I take into account what has been put to me, Mr Dixon. As I understand it, you were assaulted with a fist and in replying you drew a large knife, pocketknife or otherwise, and opened it. You opened with the intention of possibly defending yourself. You cut the other person. You are not charged with that. This type of behaviour cannot be tolerated. You are convicted and sentenced to one month's imprisonment.
..."

On 10 August 1994, the appellant filed Amended Grounds of Appeal, the ground of appeal being as follows:

"1. That the learned Magistrate erred in accepting a plea of guilty to the charge under Section 56(1)(d) of the Summary Offences Act (N.T.) in that there was no evidence:
That the defendant was carrying an offensive weapon or instrument being an article made or adapted for the purpose of causing injury to the person or intended by the person having it with him for such use by him pursuant to Section 56(4) of the Summary Offences Act (N.T.).

The appellant seeks the leave of this honourable court to alter this plea to the offence of being armed with an offensive weapon pursuant to Section 56(1)(d) of the Summary Offences Act to a plea of not guilty on the basis that the evidence in this matter at no time established:
That the article carried by the defendant on the occasion in question was an offensive weapon as defined in the Summary Offences Act (N.T.)
That there was any intention on the part of the defendant to use the article in his possession to cause injury to any persons."

In support of the appeal affidavits of Peter Rankin sworn 12 August 1994 and Stephen Dixon sworn 11 August 1994, were filed and I indicated I had read those affidavits.

At the commencement of the hearing of the appeal, counsel for the appellant sought and was granted leave to file an Amended Grounds of Appeal, dated 16 August 1994 to add the following Grounds of Appeal:

"(1) the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty
or
(2) that on the admitted facts he could not in law be convicted of the offence charged."

It is appropriate to set out the relevant provisions of s56(1)(d) of the Summary Offences Act:

"(1) Any person who -

(d) being found armed with any gun, pistol, sword, bludgeon, or any offensive weapon or instrument, being thereunto required does not assign a valid and satisfactory reason for his being so armed"

and s56(4):

"(4) In this section "offensive weapon or instrument" means an article made or adapted for the purpose of causing injury to the person or intended by the person having it with him for such use by him."

In his affidavit sworn 1 August 1994, the appellant deposes to the fact that on 16 June 1994 he pleaded guilty to a charge of being armed with an offensive weapon. The charge related to events on 9 June 1994 at Alice Springs in the Northern Territory of Australia. Mr Dixon further deposed:

"(5) I have later learned that an "offensive weapon or instrument" within the Summary Offences Act means an article made or adapted for the purpose of causing injury

to the person or intended by the person having it with him for such use by him.

I did not have that article in my possession for the purpose of causing injury to anyone else nor was it my intention to use that article as a means to cause injury to anyone else.

On the 9th of June 1994 I was assaulted by another person and in order to protect myself, I used the pocket knife.

I am aware that knives and pocket knives can cause injury to other persons but I did not carry this pocket knife for any such reason at all. The article was carried by me for the purposes of opening cans of food and the like.

In his affidavit sworn 12 August 1994, Peter Rankin deposed to the fact that he appeared as solicitor on behalf of the appellant at the Alice Springs Court of Summary Jurisdiction on 16 June 1994 in relation to a charge of being armed with an offensive weapon. The charge related to an alleged offence on 9 June 1994 at Alice Springs in the Northern Territory of Australia. Mr Rankin referred to the fact that he was the duty lawyer that day. It was an extremely busy day and after a short discussion with the appellant, in relation to the nature of the charge, he advised him to plead guilty. On further consideration he believes he should have advised the appellant to plead not guilty.

I agree with the submission of Mr Bamber, counsel for the appellant, that on the face of it the question of the necessary mental element was not averted to or discussed with the appellant. I accept the further submission of counsel for the appellant that the plea of guilty was entered on the basis that the appellant believed possession of the article simpliciter was enough to make him guilty of the charge.

On appeal, the onus is upon the appellant to establish that there has been a miscarriage of justice in the court below (R v Murphy (1965) VR 187).

Counsel for the appellant referred me to the recent decision of Kearney J (Salmon v Chute & Anor 94 NTR 1). I adopt with respect the text set out by his Honour at p 11:

"(iii) The nature of this court's appellate jurisdiction under s163(1) of the Justices Act

This appeal against conviction follows a plea of guilty. The law in those circumstances is as stated in R v Murphy [1965] VR 187: the appeal will only be entertained if it appears that there has been a miscarriage of justice below in that, for example, the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty, or on the admitted facts he could not in law be convicted of the offence charged. If any of these matters are shown, there has been a miscarriage of justice because a plea of guilty must flow from a genuine consciousness of guilt; and the conviction must be quashed."

In the matter before me, it appears the appellant did not appreciate the nature of the charge. The appellant has satisfied me that for this reason there has been a miscarriage of justice.

Accordingly, the appeal is allowed. I quash the conviction and remit the case for further hearing before the Court of Summary Jurisdiction.