Citation: Director of Public Prosecutions v Zheng [2021] NSWSC 131
Court: Supreme Court of NSW
Date: 23 February 2021
Judge(s): Walton J
Background
Police officers performing licensing duties at the Royal Easter Show identified what they believed to be a butterfly knife on display at a vendor's stall. The vendor was arrested and charged with possessing a prohibited weapon without a permit under s 7(1) of the Weapons Prohibition Act 1998 (NSW). Possession was not in dispute, and the defendant held no permit.
At the Local Court hearing, expert evidence from a ballistics officer was excluded after a successful challenge to that officer's expertise. The magistrate dismissed the charge, finding that the prosecution had not proven beyond reasonable doubt that the item fell within the statutory definition of "butterfly knife" in Schedule 1, cl 1(6) of the Act.
The Director of Public Prosecutions appealed to the Supreme Court on the ground that the magistrate had erred in law in construing that definition.
Legal Issues
- Whether the magistrate erred in law by reading the word "or" in the phrase "single-edged or multi-edged blade or spike" conjunctively rather than disjunctively, so as to require even a spike to have a sharpened edge.
- Whether the magistrate erred in law by adding to the definition a requirement that the blade or spike be "sharpened" or "capable of cutting," when no such requirement appears in the statute.
- Whether the magistrate erred in law by holding that only "the real thing" is prohibited, relying on the Court of Criminal Appeal's decision in Darestani to exclude toys and imitations from the butterfly knife definition.
- Whether the questions raised by the appeal were questions of law alone, so as to enliven the Supreme Court's appellate jurisdiction under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW).
Decision
Jurisdiction
Walton J held that the questions raised by the appeal were confined to questions of law alone, because the crux of the appeal was the proper construction of the definition of "butterfly knife" rather than the application of agreed facts to settled meaning (at [125]). The defendant's argument that the appeal raised a mixed question of law and fact was rejected.
Ground 1 (First Error): Disjunctive reading of "blade or spike"
The magistrate construed the definition so that the adjectives "single-edged" and "multi-edged" applied to the word "spike" as well as to the word "blade," effectively treating the word "or" conjunctively (at [89]). Walton J accepted that this was an error. A blade is a relatively flat cutting part of a knife, whereas a spike may have no edges at all, such as a needle or spear (at [87]). Reference to cl 1(4) of Schedule 1, describing an "Urban Skinner push dagger," supported this distinction: blades can cut, slash or stab; spikes stab (at [88]). The adjectives were not intended by the legislature to apply to a spike.
Ground 1 (Second Error): Implied requirement of a sharpened edge
The magistrate further erred by reading into the definition a requirement that the blade be "sharpened" or "capable of cutting" (at [106]). The word "edge" in the definition, used with "single" and "multi," addresses the number of edges a blade may have, not whether the blade has been actively sharpened. Walton J confirmed that a dull knife still has an edged blade, and the definition contains no requirement of sharpness (at [105]). The magistrate's finding that the butterfly knife's point was sharp in fact conformed to the dictionary definition of "spike" she had herself cited, making her conclusion that it was not a spike contradictory and erroneous (at [96]-[97]).
Ground 1 (Third Error): "Real thing" and the toy or imitation argument
The magistrate erred in relying on Darestani, a case concerning firearms under a different legislative scheme, to import a distinction between "the real thing" and toys or imitations (at [113]-[114]). The only express carve-out for toys in Schedule 1 appears in cl 3(1), and that provision applies exclusively to military-style weapons under cl 1A. No equivalent exclusion exists for butterfly knives (at [116]). The defendant's submission that such a requirement was needed to distinguish real butterfly knives from imitations was also rejected on policy grounds: on that approach, a prohibited butterfly knife blunted by heavy use would fall outside the Act's prohibitions (at [111]).
Remittal
Having upheld the grounds of appeal, and noting the defendant's concession that a finding of legal error would mean the prosecution must succeed on the appeal, Walton J set aside the dismissal and remitted the matter to the Local Court to be dealt with according to law (at [129], [133]).
Orders Made
- The appeal against the decision of Stapleton LCM of 17 December 2019 at Burwood Local Court is allowed.
- The order dismissing the charge of "possess or use a prohibited weapon without permit" contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) is set aside.
- The matter is remitted to the Local Court to be dealt with according to law.
- The defendant is to pay the plaintiff's costs of the appeal.
- The defendant is granted an indemnity certificate under the Suitors' Fund Act 1951 (NSW).
Key Takeaways
- The Supreme Court confirmed that the word "or" between "blade" and "spike" in the butterfly knife definition in Schedule 1, cl 1(6) of the Weapons Prohibition Act 1998 (NSW) operates disjunctively, so an object need only be either a blade or a spike to satisfy that element of the definition (at [85], [89]).
- No requirement of sharpness or capacity to cut appears in the statutory definition of "butterfly knife." A dull knife retains an edged blade, and a magistrate errs in law by implying such a requirement from dictionary definitions of "edge" (at [105]-[106]).
- The adjectives "single-edged" and "multi-edged" in the definition apply to the word "blade," not to the word "spike," because a spike need not have any edges (at [87]-[88]).
- Clause 3(1) of Schedule 1, which excludes items produced and identified as children's toys, applies only to military-style weapons under clause 1A. There is no equivalent statutory exclusion for toys or imitations in the butterfly knife category (at [113]-[114]).
- A question of statutory construction concerning the definition of a prohibited weapon is a question of law alone for the purposes of appellate jurisdiction under the Crimes (Appeal and Review) Act 2001 (NSW), provided the error lies in the construction of the provision rather than in its application to the facts (at [125]).
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW)
- Interpretation Act 1987 (NSW)
- Suitors’ Fund Act 1951 (NSW)
- Summary Offences Act 1988 (NSW)
- Supreme Court Rules 1970 (NSW)
- Weapons Prohibition Act 1998 (NSW)
Cases
- Acuthan v Coates (1986) 6 NSWLR 472
- Cole v Minister for Immigration (2017) 324 FLR 431; [2017] FCCA 2234;
- Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 322
- Darestani v R [2019] NSWCCA 248
- Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230
- Director of Public Prosecutions v Gramelis [2010] NSWSC 787
- Director of Public Prosecutions v Starr (2012) 221 A Crim R 525; [2012] NSWSC 315
- El Ali v R [2019] NSWCCA 207
- Hope v Bathurst City Council (1980) 144 CLR 1
- Jacob v R (2014) 240 A Crim R 239; [2014] NSWCCA 6
- Police v O’Brien [2012] NSWLC 7
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- The Commissioner of the Australian Federal Police v Pharmacy Depot Hurstville Pty Ltd (in liq) (No 2) [2020] NSWSC 1571
- Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
- Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; [2003] HCA 54