Supreme Court of WA|2005-06-03|Before: Mr P, Simmonds J

Brayley & Anor v Malkovic [2005] WASC 136 (3 June 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BRAYLEY & ANOR -v- MALKOVIC [2005] WASC 136

File No : PE 12511 of 2005, PE 12512 of 2005, PE 12513 of 2005, PE 12514 of 2005, PE 12515 of 2005

Criminal law - Practice and procedure - Application for leave to appeal from court of summary jurisdiction - Whether grounds of appeal have a reasonable prospect of succeeding - Standard for evaluating grounds of appeal - Effect of non-compliance with correct procedure and form of application

Leave to appeal refused on remaining ground of appeal

King v City of Fremantle [2004] WASCA 212

1 I should introduce this judgment by saying these are applications for leave to appeal against convictions on charges relating to the export of certain items that were found to be prohibited exports under Commonwealth customs legislation. There is also an application for leave to appeal against a conviction on a charge of intentionally making a statement to a customs official on the familiar form (for those entering this country from abroad) where the maker was reckless as to the fact the statement was false or misleading in a material particular.

2 These applications require me to consider the new provisions and the procedure under them for appeals against decisions of courts of summary jurisdiction. The new provisions are in the Criminal Appeals Act 2004 (WA) Pt 2, comprising s 6 to s 21 and in particular s 9 on applications for leave to appeal.

3 The new procedure under these provisions is that in the Criminal Procedure Rules 2005 (WA) Pt 14, comprising r 58 to r 75 and in particular r 65 on commencing appeals. As will be seen, the applications in this case were not brought in compliance with the procedure.

4 I begin by setting out the background of these applications. I then consider the form of the applications and the procedure that ought to have been followed, in my view. In light of the position adopted by the parties at the hearing before me and in the interests of addressing the substance of the applications, I will then consider the merits of the applications.

5 The first applicant, Nigel Paul Brayley, is the sole director and shareholder of the second applicant, Brayley Ballistics Pty Ltd, which carries on the business of sale and repair of firearms.

6 By a decision of Magistrate Nicholls on 26 April 2005 in the Court of Petty Sessions at Perth, Mr Brayley and Brayley Ballistics were convicted on a number of complaints brought under the Commonwealth customs legislation. The complaints were five and arose out of two distinct matters. One matter was the export, arranged by Mr Brayley for Brayley Ballistics, of certain items owned by the company. Those items, as identified in one pair of the complaints, were prohibited exports, namely two slides, each being a component of a Glock pistol, and a barrel, being a component of a Glock pistol. The complaints were against Mr Brayley and Brayley Ballistics.

7 The complaints against Brayley Ballistics were two. One was that on or about 1 March 2003 at Perth, being the owner of goods intended for export, it failed to ensure they were entered for export and allowed the goods to be loaded on an aircraft in which they were exported without the required authority to deal with the goods being in force. This charged an offence under s 113(1) of the Customs Act 1901 (Cth).

8 The other complaint against Brayley Ballistics in relation to the export matter was that on or about the same date at the same place it exported the items in contravention of reg 13E(2) of the Customs (Prohibited Export) Regulations 1958 (Cth) contrary to s 233(1)(c) of the Act.

9 The complaints against Mr Brayley were also two, matching those for Brayley Ballistics. One complaint was that on or about the same date at the same place as for the company, being a director of the owner of goods intended for export, he was directly concerned in the owner failing to ensure that they were entered for export and allowed the goods to be loaded on an aircraft in which they were exported without the required authority to deal with the goods being in force. This charged an offence contrary to s 236 of the Act dealing with persons concerned in offences under other provisions in the Act when read with s 113(1). The other complaint in relation to the export matter was that, on or about the same date, at the same place, he was directly concerned in the export of the items in contravention of reg 13E(2) of the Customs (Prohibited Export) Regulations contrary to s 233(1)(c) and s 236 of the Act.

10 The other matter was the statement made by Mr Brayley in the form familiar to all arrivals into Australia that I referred to above. The complaint here was against Mr Brayley alone. The form he completed, called an incoming passenger card, requires arrivals to indicate by "Yes" or "No" whether the arrival was bringing into Australia "goods that may be prohibited or subject to restrictions, such as medicines, steroids, firearms, weapons of any kind, or illicit drugs?"

11 The complaint was that on 23 February 2003 at Melbourne Mr Brayley answered "No" to the question, whereas he was bringing into Australia eight magazines for pistols. This complaint charged an offence under s 234(1)(d)(i) of the Act.

12 In relation to the export matter, the learned Magistrate found that all of the elements of the offence were proved. In particular he considered the elements of the s 113(1) offence. I set out that subsection in material part as its form goes to one of the grounds of appeal:

(a) must ensure that the goods are entered for export; and

(b) must not allow the goods:

(i) ...

(ii) if the goods are other goods - to be loaded on the ship or aircraft in which they are to be exported;

(iii) an authority to deal with them is in force; or

(iv) ..."

13 The learned Magistrate said this with respect to the elements of the offence as he understood them in his reasons for decision (TS 3):

"The prosecution must prove that the owner, in this case being Brayley Ballistics Pty Ltd, failed to ensure the goods were entered for export and allowed the goods to be loaded on an aircraft in which they were to be exported. There's clear evidence from the prosecution that establishes both these matters, so the question of authority to deal does not even arise as a matter of logic. One can only get to the authority to deal point if you enter the goods for export."

14 The reference to authority to deal is apparently to that in s 113(1)(b)(i). The Act as at the date of export defined authority to deal in s 4(1) in relation to goods the subject of an export entry as, "an export entry advice in the form specified under s 114C(1), authorising the goods to be dealt with in accordance with the entry". The term "export entry" was referred in the Act s 114(1) as it then stood as a communication to customs of information concerning goods intended for export that is effected either by document or by computer. The Act, s 114C(1), provided in material part that:

"Subject to this Act, where an entry in respect of goods has been sent, given or transmitted to Customs, the Customs must give an export entry advice, in a manner and form specified in the regulations, that constitutes either an authority to deal with the goods to which the entry relates in accordance with the entry or a refusal to provide such an authority."

15 It was conceded by counsel for the respondent before me that the effect of these provisions was that an authority to deal could not have been obtained in respect of goods that s 113(1) required to be entered for export if there had been no such entry.

16 Having dealt with these matters under s 113, and some other matters not now relevant, the learned Magistrate addressed the matter apparently pressed on him by the defendants that the slides and the barrel were in fact damaged and not capable of being used for their original purpose as part of a pistol. This meant, it was said, they were not subject to the prohibitions in s 113(1) or s 213(1)(c). To understand this submission on which two of the grounds of appeal rest, it is necessary to understand how a part of a pistol fell under those provisions as they stood at the time of the export matter.

17 Although s 113(2) of the Act concerning goods consigned by aircraft from one person to another and also goods with an FOB value not exceeding the stipulated amount would otherwise make s 113(1) inapplicable to the items in question, s 113(2A) removed goods from that exemption for which a permission was required by, among other things, an instrument under an Act, with an exclusion not here relevant.

18 It was accepted by the Magistrate and before me that the Defence and Strategic Goods List as it was at the time of the export matter to which reference is made in the Customs (Prohibited Exports) Regulations, reg 13E, lists goods which for the purposes of s 113 (2A) of the Act require a permission.

19 Annexed to a statement of a Mr Brad Howlett of 14 February 2005 were extracts from the list which, it appears was accepted by the Magistrate and before me, were current at the date of the export matter. The relevant entry on the list was in material part as follows:

"ML901 Weapons, as follows, and parts and components therefor:

a. rifles, carbines, muskets, pistols, revolvers, shotguns, machine guns and smooth-bore weapons, other than those specified in Item ML1;

b. air weapons;

c. parts and components of a. and b."

20 The list was also relevant for the purposes of s 233(1)(c) of the Act which prohibits the export of any prohibited exports. The Act, s 112(1), said that regulations may be made prohibiting the exportation of goods from Australia and the prohibitions might be made to apply unless a licence or permission was granted as prescribed in the regulations. The Customs (Prohibited Export) Regulations, reg 13E, it was accepted by the Magistrate and before me, were regulations so referred to and thus the list set out goods that were prohibited exports for the purposes of s 213(1)(c). The learned Magistrate found that (TS 3):

"The evidence is not to the effect that the items were capable of function."

"The evidence of Mr Brayley was to the effect two slides and barrel were damaged parts. They were not serviceable in that they could not or would not be repaired as they could no longer function as parts should function as a part of the pistol and a pistol of course is a firearm. There is no evidence to the contrary."

"Even though I accept that the items were damaged they would still be discernible as parts of a firearm. The prosecution contend that even if the parts are damaged the inherent character of the parts is not changed. The defence on the other hand take the functional approach only; that is, if they cannot work or operate or function they are no longer part of a pistol."

Having considered the two approaches, the Magistrate concluded as follows (TS 6):

"Now, if the parts themselves had been melted down. - they were just again then solid pieces of metal - they would not be discernible ... it does not render them no longer parts of a pistol."

21 The learned Magistrate's decision concludes with his consideration of the complaint as to the statement matter. He said this (TS 6):

"As to the statement, the statement - - the incoming passenger card was completed on 23 February 2003. The evidence is that Mr Brayley had done it several times before. He's travelled quite frequently. He had with him eight magazine tubes in his luggage. He didn't declare them in response to the first question and a charge was laid."

22 The relevant offence in s 234(1)(d)(i) as it stood at the time of the offence read as follows with omissions of immaterial parts:

(i) intentionally make a statement to an officer, reckless as to the fact that the statement is false or misleading in a material particular;"

23 The learned Magistrate having referred to the Code provision just set out said (TS 6):

"The defendant at the time he brought in the eight magazine tubes knew he had eight magazine tubes in his luggage. Indeed, he had produced permits so he knew there was an issue in relation to an authority to bring them into the country. He is at the time, or was at the time, a firearms dealer but the charge is not that Mr Brayley brought in eight magazines illegally into the country. A person can act honestly but recklessly."

24 The learned Magistrate accepted the evidence of the customs official with whom Mr Brayley had an exchange over the statement in question. The Magistrate said this about the exchange (TS 7):

"I accept the evidence of Officer Christie as to what was said and the exchange went along those [sic] lines. 'Why didn't you declare them?' ... he was reckless by filling out the form 'No' in response to the question."

25 The schedule to the complaint in respect to the statement matter says in par 7:

"Pistol magazines are prohibited imports unless the importer holds the appropriate authorisation to allow them to be imported."

26 It was accepted before me that this is a reference to the Customs (Prohibited Import) Regulations 1956 (Cth), reg 4F, which at the time of the offence read as follows, subject to subregulations not now relevant:

"(1) Subject to subregulations (2), (2A) and (2B) the importation of a firearm, a firearm accessory, a firearm part, a firearm magazine, ammunition, a component of ammunition or a replica is prohibited unless:

(a) the firearm, firearm accessory, firearm part, firearm magazine, ammunition, a component of ammunition or a replica is an article to which an item in Part 2 of Schedule 6 applies; and

(b) the importation is in accordance with the requirements set out in column 3 of the item."

27 Notwithstanding the exchange to which the learned Magistrate referred, the relevant items for the purposes of the statement matter were put to me as being not a firearm but a firearm magazine and a firearm part, all three of which are defined in reg 4F(4). The definitions, which are important for the purposes of the remaining ground of appeal, are as follows.

firearm means a device designed or adapted to discharge shot, bullets or other projectiles by means of an explosive charge or a compressed gas, whether that device is fitted with a magazine or other feeding device designed to be used with it or not, but does not include the following devices:

...

firearm magazine means a magazine designed or intended for use with a firearm.

firearm part, for a firearm, means any of the following items:

(a) a gas piston, friction assembly, action bar, breech bolt or breech block;

(b) a firearm barrel;

(c) an assembled trigger mechanism;

(d) a receiver;

(e) something, other than a complete firearm, that includes 1 or more of these items."

28 The applications for leave were made on 16 May 2005, and supported by an affidavit of counsel for the applicants. This affidavit annexed copies of the complaints and the transcript of the reasons for decision of the learned Magistrate. The applications set out a total of four grounds of appeal: three in relation to the convictions on the export matter and one in relation to the conviction on the import matter.

29 The applications set out two (unnumbered) grounds of appeal in relation to the charges under s 113(1) and s 236 of the Act, which I will call the first and the second s 113(1) grounds and which are as follow:

• "The learned Magistrate erred in law in holding that the metal objects which the applicant exported, despite them not be [sic] able to function as firearm parts, constituted firearm parts for the purposes of the Customs Act; and

• the offence of which each was convicted was not known to law."

30 The application set out one (unnumbered) ground of appeal in relation to the charges under s 233(1)(c) and s 236 of the Act, which I will call the s 233(1)(c) ground and which is as follows:

"That the learned magistrate erred in law in holding that the metal objects which the applicant exported, despite them not be [sic] able to function as firearm parts, constituted firearm parts for the purposes of the Customs Act."

31 The application set out one (unnumbered) ground of appeal in relation to the charge under s 234(1)(d)(i), which I will call the s 234(1)(d)(i) ground and which is as follows:

"The learned magistrate erred in law in holding that when the applicant brought into Australia pistol magazine tubes, which are not prohibited or restricted, he made a statement misleading in a material particular when he answered in the negative the question, 'Are you bringing into Australia any goods that may be prohibited or subject to restrictions, such as medicines, steroids, firearms, weapons of any kind or illicit drugs?"

32 Since 2 May 2005, appeals to a single Judge of this Court against decisions of the sort of the Magistrate in this case have had to be brought by way of leave under the Criminal Appeals Act, Pt 2 Div 1. The procedure in such appeals is set out in the Criminal Procedure Rules, Pt 14 Div 3. Such appeals, by r 65(1), must be commenced within time or by applying for an extension of time within which to commence an appeal, by lodging with this court and serving on the respondent a form 20 and certain other documents.

33 The applicant, by r 65(7), must lodge a form 21, which is a service certificate. The respondent, by r 67, on being served with an appeal notice, defined as a form 20 document by r 58, may lodge a form 22, which is a statement of the respondent's intentions with respect to defending the appeal.

34 In this matter the applicants did not use a form 20 and did not lodge a form 21. The respondent did, however, lodge a form 22. Before me, counsel for the applicants explained that he had not expected the new procedure to be applicable, although its application is clear enough to me from Criminal Procedure Rules r 4, read with r 2.

35 I took the position at the hearing however that if it was possible to proceed to hear the applications for leave with the material before me I should do so, subject to any objections expressed to me by the respondent. This seems to me to be consistent with the overall thrust of the rules, which seems to me to be to permit matters to be heard provided that sufficient materials in that regard are properly before the Court and were before the other side, such that it could sensibly proceed and respond.

36 The respondent did not express any objection to my proceeding in that fashion, subject to the points I reach next. The requirements for the form 20 include, r 65(1)(f), that the primary Court's transcript, which is defined in r 58, be included with the form as well as, r 65(1)(g): "A copy of every other record that the Court will need to decide the appeal".

37 I have already indicated that the full transcript was not made available to me nor, until just before the hearing, was the Defence and Strategic Goods List as it was at the time of the export matter and as annexed to the Howlett statement before the Magistrate to which I previously referred. Nor was either of these served on the respondent, although the list the Court was able to procure came from the respondent.

38 The respondent properly expressed concern at the protraction of the hearing before me, necessitated by the inability to flesh out references in the reasons for decision of the Magistrate by reference to the complete transcript. In the circumstances, I concluded that it was possible for me to make my determination to the application for leave with the material I had at the hearing, as I will explain. However, I indicated to counsel that any grant of leave to appeal would require him to lodge and serve all of the material required by r 65, which would be at least the full transcript and the Howlett material.

39 I turn now to the determination of the applications themselves.

The Standard for Evaluating the Grounds of Appeal

40 Since 2 May 2005 applications for leave to appeal from decisions of Magistrates have had to be brought under the provisions of the Criminal Appeals Act, which replaced the corresponding provisions in the Justices Act 1902 (WA).

41 The principally relevant provision for my purposes is s 9(2) of the Criminal Appeals Act, which reads as follows:

"After an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding."

42 This may be compared with the corresponding provision of the Justices Act, which was s 187(1) and read as follows:

"The Judge shall grant leave to appeal unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case."

43 Although there is nothing in the explanatory memorandum for what became the Criminal Appeals Act that deals with this change, I consider it evident that a court hearing an application for leave is now to be more searching of the applicant seeking leave to require of the applicant that it satisfy the Court to the new standard of a reasonable prospect of success on each of the grounds put forward.

44 I note that under the previous legislation it had indeed been determined that the standard of "arguable" required that the case have "some prospect of success", not be one "merely capable of being argued", and the test whether a lack of reasonable prospects of success was shown was sometimes used to decide the application for leave: see King v City of Fremantle [2004] WASCA 212, per Barker J, at [25] and [95].

45 However, I consider that the effect of the changes represented by s 9(2) of the Criminal Appeals Act is to require the more searching review I have described. This, in my view, requires me to consider whether I have been satisfied, on the necessarily cursory review available to a judge in this setting, that it is possible for me to see a court upholding the relevant ground. It seems to me that it is a different matter from whether, notwithstanding the success on the relevant ground, the appeal should be successful.

46 I note in that last respect, Criminal Appeals Act s 15(2), which had a counterpart in s 199(1)(b) of the Justices Act, that the Court may dismiss an appeal if it is satisfied, "no substantial miscarriage of justice has occurred", even if the appellant was successful on a ground of appeal.

47 I now consider the grounds of appeal using the s 9(2) approach I have described.

The First 113(1) Ground and the 233(1)(c) Ground

48 These grounds raise the question, if not altogether clearly, whether the learned Magistrate was correct in law in concluding that the matter of the lack of functionality of the pistol parts, whether evident or not, and whether repairable or not, was not relevant to the question whether they were caught by the Defence and Strategic Goods List, at least if the part was discernibly a pistol part.

49 It is evident that there is no assistance to be derived from the express terms of the legislation, nor was there any authority on the legislation, although my attention was drawn to an authority on the meaning of firearm in the Firearms Act 1973 (WA), in Carlson v Karlovsky (1998) WAR 59. There the Full Court, made up of Burt CJ and Wallace and Pidgeon JJ, held that the rifle from which the bolt had been removed was still a firearm within that Act.

50 However, there does not appear to have been any question in that case of the bolt not being restorable and the statutory context was a licensing one with a provision, s 25(2), that said that, where any firearm was in parts carried by different people, then each and every one of those people was "in possession of the firearm".

51 It seems to me that these grounds raise the issue whether functionality has a role to play in the determination of the question whether what was involved was regulated under the customs legislation by virtue of its inclusion on the list.

52 I note, for example, the reference in Howlett's statement, to which I have previously referred, to the fact that firearm parts "that are being exported overseas to be returned to the manufacturer for repair or replacement also require approval from the [Defence Trade Control and Compliance Section of the Department of Defence]."

53 While this tends to suggest through "replacement" that functionality has no role, I consider it is possible to conclude, on the cursory review I am able to provide, that this does not determine the matter, at least if the part is evidently beyond reuse as a firearm part. Whether that would assist the appellant on the particular facts of this case is, it seems to me, a different matter.

54 I would conclude then that the first s 133(1) ground and the s 233(1) ground have reasonable prospects of success.

55 This ground, as it appeared to be put to the Court by counsel for the applicant, was that there were for present purposes two alternative offences in s 113(1). One was the failure to enter goods for export; the other was allowing goods entered for export but for which an authority to deal had not been obtained to be loaded on an aircraft. There was no offence that combined these two because an entry was required before the authority could be obtained.

56 However, it seems to me to be clear that the legislation did indeed allow for an offence as was complained of here. Putting aside the question of how to establish an offence of simply failing to enter goods for export without more, it seems to me that the more natural reading of the provision, albeit not an altogether straightforward one because of the way the provision is worded, is that for present purposes there might indeed be two forms of the offence. One was clearly that complained of here. The other possibility is, having entered the goods for export but failed to obtain an authority to deal, the offender nonetheless loaded the goods on to an aircraft.

57 It seems to me that the reading contended for by the applicant would call for an "or" or something similar between the two paragraphs (a) and (b). An "and" would be inapt.

58 At the hearing before me counsel for the applicant raised with me obtaining leave to amend the grounds in case I concluded that the offence was properly charged. The amendment was to challenge the complaint as duplex or perhaps uncertain.

59 I do not consider any question of granting such leave arises as the reading I have suggested does not seem to me to raise any issue of duplicity or uncertainty. What was charged was an offence with a number of elements, one of which flowed from another. This does not raise an issue of duplicity or uncertainty.

60 I conclude the present ground has no reasonable prospects of success.

61 The respondent before me rested heavily on the words in the incoming passenger card, "Goods that may be prohibited or subject to restrictions," (emphasis added) and on the matters referred to by the Magistrate which, assuming the tubes were not prohibited imports and so did not require the permits Mr Brayley had obtained, indicated that at least doubt had indeed occurred to Mr Brayley. This made the answer he gave on the card false or misleading and made him reckless in the relevant sense with respect to that answer.

62 The respondent submitted the question was not whether or not the goods were in fact prohibited or restricted. I agree that the questions here are whether the statement was false or misleading and that the answer on the form may be false or misleading even if the goods are not a prohibited import or subject to restrictions.

63 However, it seems to me that if an arriving passenger has considered the matter and concluded correctly and in good faith that the goods are simply not prohibited or subject to restrictions, notwithstanding the assistance with that question the card provides, a court might conclude there is no question of recklessness in the relevant sense as he is "not aware of a substantial risk that the circumstance exists", (Criminal Code s 5.4(1)(a)).

64 Of course, the fact that the matter has been considered at all may tend to cast doubt on the claimed elimination of any substantial risk of error. However, it seems to me a court might conclude on fuller argument than was possible before me that a recklessness finding as a matter of law is indeed precluded in such circumstances.

65 Again, whether or not, even if this ground succeeds, it assists the applicant on the facts of this case, as disclosed by the complete transcript at least, is a different matter. Accordingly, I conclude that there is a reasonable prospect of success on the present ground.

66 I conclude that leave to appeal should be granted on what I have called the first s 133 ground and on the s 233(1)(c) ground as well as on the s 234(1)(d)(i) ground but, not on the second s 133 ground.

67 The appellant must, however, lodge and serve on the respondent the material called for by r 65 of the Criminal Procedure Rules, and in so doing be informed by my reasons for the grant of leave.

68 In addition, I will hear from the parties on orders as to lodgement and service of written submissions and lists of principal authorities on which they will rely under Criminal Procedure Rules, r 71.

Procedure Rules 2005

(Prohibited Import) Regulations 1956

Brayley & Anor v Malkovic [2005] WASC 136

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Brayley & Anor v Malkovic [2005] WASC 136 (3 June 2005)

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