Supreme Court of WA|2006-05-30|Before: Mr P, Hasluck J

Brayley & Anor v Malkovic [2006] WASC 94 (30 May 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BRAYLEY & ANOR -v- MALKOVIC [2006] WASC 94

Appeal - Criminal law - Customs - Export charges and misleading statement charge - Defence and Strategic Goods List - Whether metal objects comprised firearm parts despite lack of functionality - Whether functionality the appropriate test - Parts could not be restored to former condition - Whether statement on incoming passenger card was false or misleading in a material particular - Effect of purporting to exclude the possibility that the gun parts in question were subject to prohibition or restriction - Turns on own facts

Customs (Prohibited Exports) Regulations 1958, reg 13E(2)(c), reg 13E(2)(d), reg 13E(2)(e)

Customs (Prohibited Imports) 1956 (Cth), reg 4F(4)

Appeals allowed and convictions quashed on complaints PE 12511/05, PE 12512/05, PE 12513/05 and PE 12514/05

Appeal in respect of complaint PE 12515/05 dismissed

Beaton v Wray-Watts [2003] WASCA 314

Carlson v Karlovsky [1988] WAR 59

Chief Executive Officer of Customs v El Hajje [2005] HCA 35

Chief Executive Officer of Customs v Granite Arms Pty Ltd [2005] HCA 51

Dickey v Police [1964] NZLR 503

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1

Harling v Hall (1997) 94 A Crim R 437

Moore v Gooderham [1960] 1 WLR 1308

R v Freeman [1970] 1 WLR 788

Read v Donovan [1947] 1 KB 326

Vrisakis v Australian Securities Commission (1993) 9 WAR 395

1 HASLUCK J: The second appellant, Brayley Ballistics Pty Ltd ("Brayley Ballistics") carries on a business from premises in Morley in the State of Western Australia that included the sale and repair of firearms. The first appellant, Nigel Paul Brayley, was at all times the sole director and shareholder of Brayley Ballistics. The appellants have obtained leave to appeal against rulings made by his Honour Magistrate Nicholls at the Perth Magistrates' Court on 26 April 2005 in respect of a number of complaints brought pursuant to the Customs Act 1901 (Cth).

2 The subject complaints can be grouped in two categories being, first, the export charges which concern steps taken on or about 1 March 2003 by Brayley Ballistics and the first appellant to send certain items overseas to the Glock Pistol Manufacturing factory in Austria; second, the misleading statement charge which arises out of certain events on 23 February 2003 at Melbourne when the first appellant was found to have brought into Australia a pistol part, namely, a magazine body, otherwise described as eight magazine tubes.

3 I will begin by looking at the circumstances and statutory provisions relating to the export charges. Two of these charges were brought against Brayley Ballistics. Two further charges were brought against the first appellant as director of the subject company. At the hearing before the learned Magistrate the case was contested upon the basis that the actions of the first appellant as the sole director of the subject company could be characterised as the actions of the company itself.

4 It was alleged in complaint 12511/05 that on or about 1 March 2003 at Perth, being the owner of goods intended for export, Brayley Ballistics failed 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 charge was brought pursuant to s 113(1) of the Customs Act.

5 It was alleged in complaint 12512/05 that on or about the same date and at the same place the company exported certain items in contravention of reg 13E(2) of the Customs (Prohibited Exports) Regulations 1958 (Cth) contrary to s 233(1)(c) of the Act.

6 As to the first matter, the complainant averred in the particulars set out in Schedule A to the complaint that on or about 1 March 2003 Brayley Ballistics through the agency of its director, Mr Brayley, sent a pistol slide serial number AHH995, a pistol slide serial number CRA506, and a pistol barrel serial number L10385 by post from Australia to the Glock factory in Austria. The subject items were called collectively the "goods" and I will continue to use that term.

7 Further, the complainant averred that the goods were in the possession or under the control of the company; they were at all material times discernible as parts and components of a pistol; they were parts or components of a Glock pistol; the goods travelled by air mail from Australia and were received by the Glock factory in Austria.

8 It was said also that the goods were not entered for export; no authority to deal with the goods was in force; the goods were not excluded from the application of s 113(1) of the Customs Act by the subject regulations; the goods were not included in a class of goods excluded from the application of s 113(1) of the Customs Act by the subject regulation; the export of the goods was prohibited without a licence or permission in writing granted by an authorised person; the company did not hold the requisite licence or permission to export the goods, nor did the goods fall within any of the exclusions in reg 13E(2)(c), reg 13E(2)(d) or reg 13E(2)(e) of the subject regulations.

9 As to the second export charge, the complainant averred by way of certain particulars set out in Schedule B to the complaint that on or about 1 March 2003 the company by its director, Mr Brayley, sent the goods, all of which were parts or components of Glock pistols, by airmail from Australia to the Glock factory in Austria.

10 Further, the complainant averred that the goods were at all material times discernable as parts and components of a pistol; they were sent to the Glock factory to be replaced under warranty; they arrived in Austria and were received by the Glock factory; they were replaced at the Glock factory and the replacement parts were sent by airmail to Brayley Ballistics; each of the replacement parts were stamped with an identical serial number to the serial number stamped on the equivalent part in the goods.

11 It was said further that the parcel containing the replacement parts was examined by Customs Officer Mark Cody at Australian Air Express Licensed Bond on arrival in Perth from Austria; the goods were not excluded from the application of s 113(1) of the Customs Act by the subject regulations; the goods were not included in a class of goods excluded from the application of s 113(1) of the Customs Act by the subject regulations; the export of the goods was prohibited without a licence or permission in writing granted by an authorised person; the company did not hold the requisite licence or permission to export the goods and nor did the goods fall within any of the exclusions in reg 13E(2)(c), reg 13E(2)(d) or reg 13E(2)(e) of the subject regulations.

12 The complaints against the first appellant, Mr Brayley, mirrored the complaints against the company save that in this case the complainant relied also upon s 236 of the Customs Act whereby a person who aids or procures an offence shall be deemed to have committed the offence in question. I am referring here to complaints 12513/05 and 12514/05.

13 It will now be useful to look at the statutory provisions bearing upon the export charges.

14 Section 113(1) of the Customs Act provides that the owner of goods intended for export must ensure that the goods are entered for export and must not allow the goods to be loaded on the ship or aircraft in which they are to be exported unless an authority to deal with them is in force or the goods are, or are included in a class of goods that are, excluded by the regulations from the application of this paragraph. By s 113(1A) the subject offence is an offence of strict liability. By s 113(2) the provision in question does not apply to goods that are consigned by post, by ship or by aircraft from one person to another, and has an FOB value not exceeding $2000 or such other amount as is prescribed.

15 However, by s 113(2A) it is said that s 113(2) does not exempt goods for the export of which a permission (however described) is required by an Act or an instrument made under an Act, other than goods or classes of goods prescribed by the regulations for the purposes of this sub-section.

16 Regulation 13E(2) of the subject regulations provides that the exportation from Australia of goods specified in the Defence and Strategic Goods List is prohibited unless a licence or permission in writing to export such goods has been granted by an authorised person and the licence is produced to a Collector.

17 Item ML901 on the subject List reads 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.

Note: Item ML901 does not include: nailing or stapling guns; explosive powered fixing tools used in the building industry; flare guns or other signalling devices, designed for emergency or life-saving purposes; line throwers; tranquilliser guns; guns that operate a captive bolt for the slaughter of animals, devices for the casting of weighted nets; underwater powerheads; fire extinguisher cartridges; paintball markers."

18 The subject List was relevant also for the purposes of s 233(1)(c) of the Customs Act which prohibits the export of any prohibited exports. The combined effect of the subject regulations (made pursuant to s 112 of the Act), especially reg 13E, and the subject List were relied upon by the prosecution in asserting that the subject goods were prohibited exports for the purposes of s 213(1)(c) of the Act.

19 At the hearing before the learned Magistrate evidence in support of the export charges was presented by various witnesses such evidence including a statement by a Deputy Director of the Defence Trade Control and Compliance (DTCC) section of the Department of Defence, Brad Howlett, concerning the Defence and Strategic Goods List. Mr Howlett said that in 2003, firearm parts were listed at Item ML901(c) of the subject List (November 1996 as amended March 01) and as such required a permit to be issued for the lawful export of these goods. A copy of the subject List was received in evidence as Exhibit F1. I will turn to the details of the subject List in a moment.

20 Mr Brayley gave evidence at the hearing on behalf of the company and on his own behalf in respect of the export charges. His evidence dealt with facts and matters bearing upon the export of the goods and concerned the physical characteristics of the goods. Mr Brayley's evidence was presented with a view to persuading the Court that the goods could not be regarded as functioning parts of a pistol and did not fall within the subject prohibition.

21 In the course of his evidence in chief Mr Brayley said that he was a firearms dealer and a "factory certified Glock armourer trained by Glock". He said that over-pressure caused the subject gun "basically to blow up" with the result that Glock had agreed to replace the pistol barrel and two slides once the damaged parts were returned to it. With this in mind, Mr Brayley used an angle grinder to cut the barrel into three segments. He said that prior to the cutting the barrel and the slides "couldn't function in the firearm". They were unserviceable before he cut them and after his cutting they could not be reused; they were "totally useless" (T62/AB74).

22 In his reasons for decision delivered on 26 April 2005 the learned Magistrate reviewed the statutory provisions and the evidence presented to him.

23 His Honour noted that the prosecution averments set out in the schedule of particulars to each of the complaints comprising the 4 export charges were that the goods were at all material times discernible as parts and components of a pistol (par 7); the goods were parts or components of Glock pistols (par 8). He found that the elements of the charges other than characterisation of the goods had been made out. I note in passing that these findings were accepted by the parties at the hearing before me. The parties were principally in dispute as to the proper characterisation of the goods.

24 According to the learned Magistrate, the evidence of Mr Brayley was to the effect that the 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 of the pistol should function. His Honour noted that there was no evidence to the contrary.

25 His Honour went on to make this finding (T4/AB106):

"I accept that the three items were damaged in some way and that the indication of the damage is shown in the diagram which is exhibit 2. Even though I accept that the items were damaged they would still be discernible as parts of a firearm."

26 The learned Magistrate then proceeded to make this observation (AB104):

"The main issue in respect of these four charges ... is whether or not the items, being the two slides and the one barrel, when exported by the defendant, were parts and components for a pistol, or whether they had ceased to be parts or components for a pistol."

27 In addressing that issue, his Honour seemed to accept that the legislation provided no express guidance as to whether appearance should be treated as an important factor. However, as I indicated in earlier discussion, the learned Magistrate seemed to give weight to the test proposed (by implication) in the prosecution averments. He said this (AB108):

"Now, if the parts themselves had been melted down - they were just again then solid pieces of metal - they would not be discernible as parts of a pistol. If they are damaged or cut up they can longer function but they still are discernible, in my view, as part of a pistol. The character of the part has not changed. Because the part is damaged or cut up it is still discernible as a part and in my judgment is still a part, albeit a part which has been cut into pieces. I therefore find in this particular case that the prosecution have established the charges beyond reasonable doubt and because - - because the possibility is that the parts were cut up it does not render them no longer parts of a pistol.

I therefore find for the prosecution in respect of those four charges and find the respective defendants guilty of those four charges."

28 On 3 June 2005 the appellants obtained leave to appeal from Simmonds J in respect of the four export charges. The orders reflecting the grounds of appeal read as follows:

"(1) The First and Second Applicants have leave to appeal against the decision of Mr Nicholls SM given on the abovementioned complaints on 26 April 2005, to find proven, against both Applicants, the charges, under ss113(1) of the Customs Act, that, in the case of the former (Complaint 12513 of 2005), he being a director of the owner of goods intended for export and, in the case of the latter (Complaint 12511 of 2005), being that owner, 'failed to ensure that the goods were entered for export and allowed the goods to be loaded on an aircraft in which they were to be exported without the required authority to deal with them being in force', the ground of appeal being the learned Magistrate erred in law in holding that the metal objects which the First Applicant exported, despite them not being able to function as firearm parts, constituted firearm parts for the purposes of the Customs Act.

(2) The First and Second Applicants have leave to appeal against the decision of the same learned Magistrate, on the same day, to find proven, against each Applicant, the charge, under s233(1)(c) and 236 of the Customs Act, that, in the case of the First Applicant (Complaint 12514 of 2005), he was directly concerned in the export of, and, in the case of the Second Applicant (Complaint 12512 of 2005), it did export, prohibited exports, namely, components of pistols, the grounds of appeal being that the learned Magistrate erred in law in holding that the metal objects which the Applicants exported, despite them not being able to function as firearm components, constituted components of a firearm for the purposes of the Customs Act."

29 It follows from earlier discussion that as to each ground of appeal the metal objects which the appellants exported were two pistol slides and one pistol barrel. In essence, the issue to be resolved on the appeal is the "main issue" defined by the learned Magistrate, namely, whether the pistol slides and barrel in question can properly be characterised as components or parts of a firearm, despite them not being able to function as a firearm.

30 I note in passing that by s 255 of the Customs Act it is open to the defence to adduce evidence in rebuttal of prosecution averments. Such averments are not to be treated as decisive: Chief Executive Officer of Customs v El Hajje [2005] HCA 35. It follows from this that the learned Magistrate was not bound to accept the prosecution averments that the goods were discernible parts and components of Glock pistols or to proceed upon the basis that discernability was the operative test.

31 Before turning to the submissions of the parties concerning the grounds of appeal, it will be useful to look briefly at the statutory provisions and legal principles bearing upon an appeal of this kind.

32 Appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA) but are now covered by Pt 2 of the Criminal Appeals Act 2004 (WA). By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow the appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the applicant.

33 By s 39, an appeal court must decide the appeal on the evidence and material that were before the lower court but this does not prevent the consideration of any evidence that the lower court refused to admit. By s 40 an appeal court may admit any other evidence.

34 A Magistrate is generally required to set out the relevant findings of fact in the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226.

35 The finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The Court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.

36 If the appellate court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the appellate court will usually provide relief, especially where findings depend upon credibility: M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1.

37 If an inference is drawn from primary facts and said to be wrong, it is for the court of appeal by way of rehearing to analyse the evidence and objective facts in order to determine the issues afresh: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 487.

38 When I turn to the substantive law, I must begin by noting that the Customs Act does not contain a definition of "weapon" or "firearm". These terms are not defined by the Customs (Prohibited Exports) Regulations 1958 (Cth), although the terms "firearm" and "firearm part" are defined in the Customs (Prohibited Imports) Regulations 1956 (Cth). I will look at those definitions in more detail later when I turn to the misleading statement charge. In essence, the term "firearm" is defined by the Imports Regulations to mean a device designed or adapted to discharge bullets or other projectiles by means of an explosive charge.

39 The decided cases bearing upon the meaning of the terms used in Item ML901 on the Defence and Strategic Goods List have to be approached with care, for it is clear that the meaning attributed to the crucial terms will usually be determined by the statutory context in which the terms appear. It will therefore be useful to begin by looking at certain definitions to be found in The Concise Oxford Dictionary.

40 According to that dictionary, a "weapon" is said to be a thing designed or used or usable as an instrument for inflicting bodily harm, eg. gun, bomb, rifle, sword, spear, stick, hammer, poker, horn, claw; action or procedure or means used to get the better in a conflict. A "gun" is said to be a metal tube for throwing missiles with gunpowder or other propellant; piece of ordnance, cannon, rifle, carbine, pistol. A "pistol" is described as a small firearm held and fired by one hand.

41 In Read v Donovan [1947] 1 KB 326, a signal pistol firing a cartridge containing a phosphorous and magnesium flare was held to be a lethal weapon within the meaning of the Firearms Act 1937 (UK) as it was a weapon capable of causing injury. Importantly for present purposes, Lord Goddard CJ observed at 327 that the intention of the manufacturer or designer of the weapon was immaterial; the question simply was whether the weapon was capable of inflicting harm. This suggests that the design or appearance of the item will not necessarily be decisive. The same line of reasoning was applied in Moore v Gooderham [1960] 1 WLR 1308 in regard to an air gun.

42 In R v Freeman [1970] 1 WLR 788, a defendant was charged with possessing a firearm without holding a certificate contrary to provisions of the Firearms Act 1968 (UK). The police had found upon his premises a starting revolver described as being of solid construction and with constrictions in the front ends of the firing chambers and with a solid barrel. These features were intended to prevent the discharge of missiles but could be removed by drilling, whereupon the revolver would be capable of firing bulleted ammunition with lethal force.

43 It was held by the Court of Appeal that as the starting revolver could easily be adapted to fire a bullet, it was a firearm as defined by s 57(1) of the Act; that is, a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged. The Court approved the reasoning in Read v Donovan (supra) and said also that other cases might arise when it was a question of fact and degree whether the subject matter of the charge did or did not fall within the ambit of the Act.

44 This was essentially the approach adopted by Pullin J in Beaton v Wray-Watts [2003] WASCA 314. In that case, a dealer was charged with various offences under the Firearms Act 1973 (WA). The dealer was said, inter alia, to have had in his possession a prohibited firearm being a military rifle which had been used by Australian servicemen in Vietnam prior to being withdrawn from military service. The piece in question had been modified so that it would not fire ammunition and so that it could then be used for drill purposes by cadets or trainees, and was thus said by the defendant not to be a firearm. His Honour upheld the learned Magistrate's finding that it was a firearm on the grounds that although the piece had been altered in a way which made it impossible to fire, the expert evidence had shown that the alterations could be undone to make it capable of discharging a bullet. The piece should therefore be characterised as a firearm.

45 In the course of his reasoning, his Honour placed some reliance upon an earlier decision of this Court, namely, Carlson v Karlovsky [1988] WAR 59 in which the Full Court held that the removal of the bolt from a single shot rifle did not make the rifle cease to be a firearm. Burt CJ observed that it would be contrary to the spirit of the Firearms Act 1973 to hold that a rifle was no longer a firearm under the Act merely because its bolt had been removed. Wallace J said that it was the intention of Parliament that a boltless rifle would still come within the description of a "firearm" under the Act. It must still be licensed without a bolt and the construction and fabric of the rifle was unaltered by the removal of the bolt.

46 I note in passing that a view to the contrary was expressed in Dickey v Police [1964] NZLR 503 in which Woodhouse J expressed the view that in its ordinary significance a firearm is a weapon capable of discharging a missile. The weapon in question, from which the bolt was missing, could easily have been put into that condition but, absent the bolt, was not a "firearm" within the meaning of the subject legislation when the defendant was alleged to have presented a firearm without sufficient lawful purpose.

47 Counsel for the respondent submitted at the hearing before me that Carlson (supra) and Beaton (supra) were both persuasive authorities to the effect that functionality was not the appropriate test because in both those cases a firearm which was not operative at the relevant moment was nonetheless held to be a firearm.

48 On the other hand, counsel for the appellants argued to the contrary. He said that it was inherent in the reasoning underlying those decisions that if a gun was found to have the capacity or potentiality to fire a bullet then it should be characterised as a firearm. This suggested that functionality was the critical factor, and this should be treated as the decisive test, subject to questions of fact and degree. He submitted also that there is nothing in the two cases just mentioned which purports to set up discernability as the appropriate test.

49 Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying that Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. The task of the Court under s 15AA and its equivalents is to seek to discover the underlying purpose or object of the provision in question and, if possible, to adopt the interpretation of that provision that furthers the purpose or object: Pearce and Geddes: Statutory Interpretation in Australia (5th ed) Pt 2.10.

50 In a case concerning the importation of hand guns, namely, Chief Executive Officer of Customs v Granite Arms Pty Ltd [2005] HCA 51, the High Court said in the expression of a unanimous view at par 29, that the subject, scope and purpose of the relevant regulations was the performance by the Commonwealth of its part in the creation of a national scheme of firearms control.

51 The provisions under notice in the present case concern the exportation of weapons, nonetheless they appear to form part of a scheme of firearms control. This suggests that provisions in the Customs Act and related regulations concerning weapons of a kind specified in Item ML901 of the Defence and Strategic Goods List such as rifles, pistols and guns, which discharge missiles, were intended to govern the exportation of weapons which have the capacity or potential to inflict damage by the discharge of missiles. There is nothing in the subject List and related provisions which expressly requires or indicates that the design or appearance of the item, or the likelihood that it will be discernible as a rifle or pistol, or as part of a rifle or pistol, is to be regarded as a decisive or important factor in determining whether an item falls within the ML901 category.

52 On the hearing of the appeal, counsel for the respondent submitted that the learned Magistrate had effectively rejected the test of functionality as inappropriate for the purposes of s 113(1) and s 233(1)(c) of the Customs Act, and that this was the correct approach. As I have indicated, counsel placed reliance upon previously decided cases such as Carlson (supra) and Beaton (supra). These cases were said to indicate that a rifle could be properly characterised as a firearm, even if it was not in working order. By the same token, counsel argued, the pistol barrel and two pistol slides in the present case should be regarded as parts or components of a weapon, even though they might not be immediately useable. If the items were discernible as parts of a weapon, they should be characterised accordingly. Counsel submitted that the decision of the learned Magistrate should be upheld because, on his finding, the parts were still discernible as parts.

53 I cannot agree with this submission. The statutory provisions in question and related subordinate legislation do not purport to establish design or appearance as decisive or important factors in determining whether an object is to be characterised as a gun or pistol, or whether a part should be characterised in that way. The decided cases relied upon by the respondent cannot be regarded as conclusive for several reasons. First, the cases in question arose in a different statutory context (that is, under the Firearms Act). Further, and in any event, the decided cases relied on concerned firearms which were found to be capable of being restored to a useable condition. They had the capacity to deliver missiles and inflict damage.

54 In the present case, however, the learned Magistrate found as a matter of fact that the subject parts, being the barrel and slides, had been rendered useless and were not functional, even though they could still be discerned as parts of a pistol. This finding was clearly open on the evidence and there was no evidence of any significance to the contrary.

55 The decided cases, albeit of marginal relevance to the present case, suggest that in the end it will be a matter of fact and degree as to whether an item can continue to be regarded as a pistol, or as a part. In other words, both Carlson (supra) and Beaton (supra) appeared to proceed from the premise that if an object had been designed as a firearm and could, by repair or replacement of parts, be used as a firearm (that is, used to discharge bullets by means of an explosive charge), then it could be characterised as a firearm. However, inherent in this reasoning is the notion that if, as a matter of fact and degree, the object is beyond repair, or irretrievably useless, and thus incapable of performing the function for which it was designed, then it cannot be characterised as a firearm.

56 This line of reasoning can be tested in this way. If the victim of a traffic accident is found in the burnt out shell of a vehicle, a newspaper report might speak of the victim being found in a car, simply because the unusable wreckage continues to resemble a car in its general appearance. However, in the context of the Customs Act concerning the export and import of vehicles, the scheme of the legislation would suggest that what is being spoken of is an object which not only has the discernible appearance of a motor vehicle, but also has the capacity or potentiality to be used as such. In other words, it might be classified as a vehicle with regard to the imposition of duties even though various components need to be fitted before it could be used. However, in a legislative context concerned with revenue or safety, it would seem far-fetched to include within the meaning of the term "car" an object which resembled a car but which, due to various depredations, had been rendered totally useless and had no prospects of fulfilling the function for which it was designed.

57 To my mind, the subject parts in the present case cannot properly be characterised as parts of a firearm or pistol or weapon within the meaning of the ML901 category in circumstances where it is clear on the evidence that they cannot be restored to their former condition or be used as part of a functioning weapon. Accordingly, as to both grounds of appeal concerning the export charges, I am of the view, being the view contended for by the appellants, that the learned Magistrate erred in law in holding that the metal objects which the first appellant exported, despite them not being able to function as firearm parts, constituted firearm parts for the purposes of the Customs Act. If the appellate court is left with a reasonable doubt as to whether an element of the subject charges has been made out, then that is a doubt which the primary court ought to have had and the subject convictions should be quashed: M v The Queen (supra).

58 In the course of earlier discussion concerning the nature of the appeal provisions, I noted that it is open to the Court on an appeal of this kind to remit the matter to the Court of first instance for rehearing. However, it is also open to resolve the matter in issue in light of the evidence before it. In this case it seems to me that the findings of fact made by the learned Magistrate are clear. It is open to me to conclude, having regard to those findings, that the convictions in respect of the export charges should be set aside, because no offences have been committed. The same result will follow if the matter is dealt with at a rehearing, because, ultimately, the case turns upon a point of statutory interpretation.

59 I will proceed accordingly in respect of the four export charges and make the appropriate orders. I must now turn to the misleading statement charge.

60 Complaint 12515/05 was directed to the first appellant, Nigel Paul Brayley. The complaint by an Officer of Customs alleged that on 23 February 2003 at Melbourne the first appellant intentionally made a statement to a Customs Officer reckless as to the fact that the statement was false or misleading in a material particular contrary to s 234(1)(d)(i) of the Customs Act 1901 (Cth).

61 Particulars of the charge were that on an incoming passenger card dated 23 February 2003 the first appellant answered "No" to the question whether he 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?".

62 The complainant averred in Schedule E to the subject charge that the complainant was an authorised delegate of the CEO of Customs to make the complaint. On the date in question, the first appellant arrived at Melbourne International Airport from the United States of America on a Qantas flight and had completed an incoming passenger card by answering "No" to the question specified in the complaint. It was averred that the first appellant produced the statement to a Customs Primary Interview Officer who endorsed the statement and directed the first appellant to the baggage carousels.

63 It was averred further in par 5 that at the baggage carousels the first appellant was interviewed by a customs officer who pointed to the statement presented by the first appellant and asked him if he understood the questions on the statement, whether the answers marked "Yes" on the statement were his, whether he had packed his baggage, whether he was aware of its contents, and whether the contents belonged to him. It was averred that pistol magazines are prohibited imports unless the importer holds the appropriate authorisation to allow them to be imported.

64 At the hearing before the learned Magistrate the prosecution witnesses associated with the Customs Service gave evidence in support of the particulars. Customs Officer Kristy spoke of interviewing the first appellant in the manner portrayed in the particulars. He described locating eight magazine pistol parts in the first appellant's bag and asking the first appellant why he did not declare these to Customs. The first appellant queried how they would be declared and went on to say that the goods were his property and not intended for commercial use. He said that they were not firearms, but parts, and he had permits issued by the Western Australian Police in relation to them. According to Mr Kristy, the first appellant then produced the permits he was referring to, although these appeared to cover a larger number of pistol parts than the ones under notice.

65 In the course of his evidence-in-chief the first appellant confirmed that upon arrival he handed over a card signed by him containing a negative answer to the statement complained of. He said that the subject item was a "magazine body" comprising eight hollow tubes. The difference between this and a complete magazine was that the latter had additional parts including a base plate and spring.

66 The first appellant said that on his understanding a magazine tube was not a restricted part although firearms and whole magazines were. There were restrictions on certain parts but small parts were not restricted.

67 The first appellant said in evidence that he was familiar with the standard questions asked of incoming passengers and was aware of the implications of the answers given. He acknowledged that he produced some permits relating to firearm magazines although they were not directly applicable to the situation because he was not actually importing whole magazines. The relevant permits (marked as Exhibits K1 and K2) were essentially a police certification that the named person had a dealer's licence.

68 Under cross-examination the first appellant confirmed that Mr Kristy asked the standard Customs questions. He knew what the questions were on the declaration form and exercised some discretion in relation to answering them as appears from the fact that some questions were answered in the affirmative. He agreed that when questioned by Mr Kristy as to why he had provided a negative answer to the question concerning the firearms he responded that they were not firearms but only parts. They were not restricted and not prohibited.

69 The first appellant said that he produced the permits, although they were strictly not applicable to the parts in his baggage, so as not to have to spend time discussing the finer points of the Customs Act. He agreed that the items in his bag were a part of a pistol, being one part of a magazine. He understood that the subject question was not limited only to those items specifically listed in the question.

70 I must turn to the relevant statutory provisions.

71 Section 234(1)(d)(i) of the Customs Act provides that a person shall not intentionally make or cause to be made a statement to an officer, reckless as to the fact that the statement is false or misleading in a material particular. By s 234(2) a person who contravenes that provision is guilty of an offence punishable upon conviction.

72 The averment to the subject complaint refers to pistol magazines being prohibited imports unless the importer holds the appropriate authorisation to allow them to be imported. Counsel accepted that this could be taken as a reference to the Customs (Prohibited Import) Regulations 1956 (Cth) which provided in reg 4F that the importation of a firearm, a firearm accessory, a firearm part, a firearm magazine, ammunition, a component of ammunition or a replica is prohibited save in certain cases which do not apply here.

73 By reg 4F(4) a "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 certain specified devices such as a stapling gun or a flare gun or other signalling device. A "firearm magazine" means a magazine designed or intended for use with a firearm.

74 Section 5AA of the Customs Act provides that the Criminal Code Act 1995 (Cth) applies to offences under the Customs Act (subject to certain exceptions). By Div 3.1 of the Schedule to the Criminal Code Act an offence is said to consist of physical elements and fault elements. It emerges from subsequent provisions that a physical element of an offence may be conduct or a circumstance in which conduct occurs. A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. By Div 5.4 a person is said to be reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and having regard to the circumstances known to him or her it is unjustifiable to take the risk.

75 The learned Magistrate, in the course of his reasons for decision, said that the issue was whether or not the first appellant made the statement complained of reckless to the fact that the statement was false or misleading in a material particular. He then referred to the definition of "recklessness" set out in the Criminal Code Act.

76 The learned Magistrate noted that on the evidence before him the first appellant had eight magazine tubes in his luggage which had not been declared in response to the first question on the incoming passenger card. His Honour made it clear that he accepted the evidence given by Customs Officer Kristy as to the response provided by the first appellant to the questions asked of him. His Honour was of the view that the exchanges concerning the permits held by the first appellant indicated that the first appellant and any reasonable person should have been on notice from the words "such as a firearm" that the magazine tubes, being part of a firearm, might fall within the ambit of the question.

77 His Honour found that the first appellant was reckless in filling out the subject form so as to give a negative response to the question concerning goods that "may" be prohibited or subject to restrictions such as a firearm. The learned Magistrate then proceeded to find the first appellant guilty of the misleading statement charge.

78 The first appellant was granted leave to appeal against his conviction in respect of the misleading statement charge on the ground that the learned Magistrate erred in law in holding that when the first appellant brought into Australia pistol magazine tubes, which were 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?". This was ground 3 in the order allowing leave to appeal dated 3 June 2005.

79 At the hearing before me, as apparently was the case before the learned Magistrate, it was accepted on both sides that magazine tubes of the kind found in the first appellant's luggage were not subject to any restrictions or prohibitions. However, there was a recognition on both sides, as had been recognised by the learned Magistrate, that the charge was not that the first appellant had brought in eight magazine tubes unlawfully, but as to whether the statement he made was reckless as to the fact that the statement was false or misleading in a material particular.

80 According to counsel for the respondent, it was not sufficient to contend that magazine tubes are not prohibited or subject to restrictions, and that this justified the giving of a negative answer to the question. The question was designed to elicit information, and to bring to light doubtful cases. If the magazine tubes "may" be subject to restriction, the question as framed, being wide in its scope, demanded an affirmative answer.

81 It was said further by counsel for the respondent, echoing a point that had found favour with the learned Magistrate, that the production of the permits by the first appellant indicated an appreciation by the first appellant that there could be an issue concerning the magazine tubes and that, in these circumstances, it was reckless to give a negative answer. The circumstances clearly required an incoming passenger to provide information which would be of assistance to Customs Officers in determining whether goods were subject to any current prohibition or restriction.

82 Counsel for the first appellant submitted that the statement complained of could not be characterised as false or misleading in a material particular because the goods were not in fact subject to a prohibition or restriction. However, for the reasons touched on by the respondent, I am not persuaded by this submission. The question was clearly couched in a general form and was directed to eliciting information which would be of assistance to Customs Officers in their appraisal of an incoming passenger's belongings. It was clear from the form of the question that it was not for a passenger, such as the first appellant, to make his own private determination as to whether a component of a firearm lay within or outside a particular prohibition or restriction. A frank and careful response would oblige the first appellant to provide an affirmative answer so that as to any circumstances in which there was a degree of ambiguity a determination could be made by the Customs Officers as to where the line was to be drawn.

83 Counsel for the first appellant submitted also that the statutory context in which the question was posed to the incoming passenger indicated that what was being spoken of was only goods in respect of which the Customs Officer had a legitimate interest; that is, goods which were prohibited or subject to restrictions. Accordingly, it was argued, a person would commit no offence by intentionally misleading a Customs Officer about goods falling outside that category because it would be irrelevant to his duty as a Customs Officer to take an interest in or to ask questions about innocuous goods.

84 Again, a submission of this kind is not persuasive. The question was clearly framed in a way which would permit ambiguous circumstances or a doubtful object to be brought under notice by the provision of an affirmative answer to the question. If the first appellant was aware of a substantial risk that the magazine tubes in his luggage, which he himself admitted to be a firearm part, could arguably be characterised as a firearm magazine or firearm part subject to a prohibition or restriction, then it would be reckless to provide a negative answer to the subject question, because that would be reserving to the first appellant as an incoming passenger the power to make the necessary appraisal. The scheme of the legislation supports such a conclusion. It emerges from the Granite Arms case (supra) that the scope and purpose of the statutory provisions and related regulations is the creation of a national scheme of firearms control. A determination as to whether conduct is reckless must be arrived at within that context.

85 Counsel for the respondent submitted that the crucial issue in respect of this appeal was whether the learned Magistrate erred in law in holding, as he did, that when the first appellant brought into Australia pistol magazine tubes which were not prohibited or restricted, the answer given on his incoming passenger card dated 23 February 2003 was misleading in a material particular.

86 It was not a question of whether in fact the goods were prohibited or restricted but whether the negative answer given by the first appellant, which had the effect of purporting to exclude the possibility that the items in question were subject to prohibition or restriction, was not only false or misleading in a material particular but was made recklessly.

87 To my mind, the learned Magistrate acted correctly in giving weight to that part of the evidence in which the first appellant sought to justify his negative answer in the course of exchanges with Mr Kristy by producing the permits. This evidence strongly suggested that the first appellant recognised that there could be a degree of ambiguity as to the status of the magazine tubes and sought to resolve that ambiguity, or tip the balance in his favour, by producing permits which might be sufficient to appease the Customs Officer and persuade him that the items were infused with an aura of legitimacy. However, this conduct was not sufficient to overcome the fact that a question designed to encourage a fulsome provision of information to the Customs Officer had been answered in a way which was likely to prevent a proper appraisal of items that, at a first glance, would seem to fall within the category of firearm parts. Accordingly, I am of the view that the learned Magistrate did not err in holding that the first appellant was guilty of the offence charged.

88 The appeals will be allowed in respect of the four export charges and the appellants' convictions will be quashed; that is, the convictions in respect of complaints 12511/05, 12512/05, 12513/05 and 12514/05. The appeal in respect of complaint 12515/05 will be dismissed. I will hear from the parties as to whether any further orders and directions are required.

Interpretation Act 1901

(Prohibited Exports) Regulations 1958

(Prohibited Imports) Regulations 1956

(Prohibited Import) Regulations 1956

Brayley & Anor v Malkovic [2006] WASC 94

At a glance

Court

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Judgment (118 paragraphs)

Brayley & Anor v Malkovic [2006] WASC 94 (30 May 2006)

Parties

Legislation Cited (6)

Cases Cited (4)