Citation: Mark Jonathan Wright v Regina [2013] NSWDC 157
Court: District Court of New South Wales
Date: 23 August 2013
Judge: Judge MJ Finnane QC
Background
The appellant was a police officer who, while off duty and heavily intoxicated, attended a hotel with friends. He was carrying a partially used canister of capsicum (oleoresin) spray that had been issued to him for official duties and which he had failed to return after using it earlier that month, as required.
During the evening, an incident occurred over a high steel fence separating the hotel from an adjacent property. The appellant sprayed a man standing on the neighbouring property with the capsicum canister, claiming he did so in self-defence after the man jumped onto the fence and threatened him.
The appellant was convicted in the Local Court on two counts of possessing and using a prohibited weapon (the capsicum spray) and one count of common assault. He appealed to the District Court, contending that the magistrate erred in rejecting his self-defence claim and in finding the weapons offences proved.
Legal Issues
- Whether the magistrate erred in rejecting the appellant's self-defence claim
- Whether the magistrate erred in finding the appellant had not genuinely forgotten he was carrying the capsicum canister (relevant to a potential defence under s 6(2) of the Weapons Prohibition Act 1998)
- Whether the appellant was acting in the course of his duties as a police officer at the time of the incident, which would have affected the prohibited weapons charges
- Whether the offences were proved beyond reasonable doubt
Decision
Judge Finnane QC reviewed the transcript and exhibits and found no error of law or fact in the magistrate's findings. The magistrate had believed the victim's account, supported by the physical evidence: the tree stump the victim was said to have stood on weighed more than 135 kg and required three police officers to move, making the appellant's version of events implausible. The magistrate also drew on the evidence of two other witnesses and recordings of calls made to emergency services.
On self-defence, the magistrate correctly identified and applied the relevant legal test. Even accepting the magistrate's rejection of the appellant's version, Judge Finnane added that the Crown could in any event have rebutted self-defence beyond reasonable doubt on the appellant's own account. A person standing on the other side of a fence, unarmed and waving a fist, did not present circumstances in which deploying capsicum spray could be considered a reasonable response. The appellant's intoxication could not found a claim that he reasonably believed such force was warranted.
On the weapons charges, the magistrate rejected the appellant's claim that he had forgotten he possessed the canister. The appellant had returned all other issued equipment to his locker but retained this canister, had used it to subdue an arrestee, and acknowledged he could have lodged it at a nearby police station when he realised he had it. The magistrate found the appellant had deliberately taken the canister with him on leave. The court agreed that finding was justified and that no defence under s 6(2) of the Weapons Prohibition Act 1998 arose. At no point on the relevant night was the appellant acting in the course of his official duties.
Orders Made
- The appeal was dismissed.
- The offences were found proved beyond a reasonable doubt.
Key Takeaways
- In dismissing the appeal, the District Court confirmed that appellate review of a magistrate's factual findings proceeds on the transcript record, with appropriate deference to credibility findings made at first instance, particularly where those findings were open on the evidence.
- A self-defence claim will fail where the magistrate accepts the victim's account and rejects the defendant's version of events as not credible; no threatening conduct means self-defence simply does not arise.
- Even where self-defence is raised on a defendant's own account, the Crown may rebut it beyond reasonable doubt if the force used was objectively unreasonable given the circumstances, and voluntary intoxication cannot ground a claim of reasonable belief in the necessity of that force.
- Under the Weapons Prohibition Act 1998, a police officer's possession of a service-issued capsicum canister outside the performance of official duties constitutes possession of a prohibited weapon; the exemption for use in the ordinary course of duties does not extend to off-duty conduct.
- Sufficient evidence existed to reject a claimed honest but mistaken belief that possession was innocent, where the officer had used the canister on duty, failed to return it as required, and could have surrendered it to a nearby station but chose not to.
Legislation and Cases Referenced
Legislation
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 18, 19, 20
- Weapons Prohibition Act 1998 (NSW), s 6(2)
Cases
- Charara v the Queen [2006] NSWCCA 244
- Harmer v Hare [2011] NSWCCA 229
- Gommesen v R [2012] NSWCCA 226