Chapman v Suttie

[1963] HCA 9

High Court of Australia|1963-04-02|Before: Owen JJ

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Court

High Court of Australia

Decision date

1963-04-02

Before

Owen JJ

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Judgment (48 paragraphs)

[1]

High Court of Australia Dixon C.J. Taylor, Menzies, Windeyer and Owen JJ. Chapman v Suttie [1963] HCA 9

[2]

ORDER Appeals ( Nos. 11 to 23) allowed with costs. Convictions set aside and informations dismissed.

[3]

These are thirteen appeals against as many separate convictions by the Court of Petty Sessions at Melbourne upon informations for offences against the Firearms Act 1958 of Victoria, No. 6251 as amended by No. 6716 (Statute Law Revision Act 1960). The defendants placed reliance upon s. 92 of the Commonwealth Constitution and, for that reason, the Court of Petty Sessions was regarded as exercising federal jurisdiction under s. 39 (2) of the Judiciary Act 1903-1960 Cth; appeals were brought accordingly direct to this Court in pursuance of par. b of sub-s. (2) and 0.70 r. 1 (i) (c) of the Rules of Court. The appeals were argued together, it being said at the outset that for the appellants the thirteenth appeal (by which I understand Appeal No. 23 of 1962) was taken as the test. Although this was said at the outset no special attention was paid to that case in the argument, which seemed to spread somewhat widely over the operation of the Firearms Act 1958, although perhaps with particular reference to the purchase in or from Victoria of firearms required in another State. To me this proved a little unhelpful, for now that judicial decisions appear to have succeeded in settling the chief general tests governing the application of s. 92 to laws and governmental action said to impair or adversely affect transactions of trade, commerce or intercourse among the States, it has seemed to me that the question whether a given transaction obtains the protection of s. 92 from the interference of a statutory provision or an exercise of governmental authority must be determined by the facts of the transaction rather than the general character of the law considered in the abstract. When you are dealing with statutory provisions the ambit, extent or application of which depends upon what is called a "severability clause", this must be particularly so: and of course in Victorian legislation such a severability clause always applies, where the State provision may be affected by the Commonwealth Constitution. See s. 3 of the Acts Interpretation Act 1958 (No. 6189). It is true that one aspect of s. 92, viz. its operation where the conflict is between complete freedom of trade in dangerous things or implements and measures of control in the interests of safety, has not hitherto received much consideration at the hands of the Courts. But to me it seems clear enough that the problems to which it gives rise must yield even more to an examination of the facts of every specific case and involve more often the application of so-called "severability clauses". The Firearms Act 1958 Vict. is a consolidation reproducing the previous consolidation, the Firearms Act 1951, together with the Firearms (Industrial Tools) Act 1956 and the Firearms (Pistols) Act 1957. The law it expresses is obviously directed at the control of dangerous weapons that may be used for criminal and other purposes which should be repressed or at all events for purposes that should not go unchecked or unaccounted for. Section 5 of the Act provides that, subject to the Act, "a person shall not manufacture sell deal in repair test or prove firearms by way of trade or business or otherwise carry on business as a gun dealer unless he holds a gun dealer's licence in respect of the premises where he carries on the trade or business and such licence is for the time being in force". A firearm is defined by s. 3 (1) at considerable length but the definition begins by saying that it means "any lethal firearm or other weapon of any description from which any shot bullet or other missile can be discharged". It seems uncertain whether these words should be understood as meaning any lethal firearm or any other lethal weapon etc. but perhaps that is not material. The definition goes on to include a pistol and to provide that a smooth bore shot-gun which is not less than thirty inches long overall and the barrel of which is not less than sixteen inches long cannot be deemed to be a firearm for the purposes of the Act. There is a special definition of "machine gun" and a special definition of "pistol". The point about a pistol is that it is a lethal firearm or other weapon of any description which is capable of being concealed about the person.

[11]

The three appellants under the firm or name of E. Dark & Co. at Post Office Place, Melbourne, carried on business as licensed gun dealers. There is a fourth member of the firm, a lady, but she was not included in the proceedings. This appeal is from a conviction of the three appellants at Melbourne on 1st August 1961 for an offence against s. 24 (1). The offence was that they did (within the meaning of the Firearms Act 1958) sell one Luger pistol to J. J. Vaughan of Nicholson Station, Western Australia, such person not having produced to the defendants a firearm certificate authorizing him to purchase such firearm and not having given the defendants reasonable proof that he was by virtue of such Act entitled to purchase such firearm without producing such a certificate. It appeared from the firm's firearms register that a .38 calibre automatic Luger pistol was sold to J. J. Vaughan of Nicholson Station, Western Australia, via Alice Springs, and was sent by post, registered mail, on 1st August 1961. The defendant, Mr. G. F. Chapman, in the presence of the defendant Mr. Brian Chapman, admitted that no firearm certificate was produced and said that it was a mail order and as it was from another State no certificate was necessary. No formal evidence of the nature of a Luger pistol was given but it may be taken that everybody knew it as a heavy German pistol, carried in two world wars as a standard military arm. In peace time of course it might be carried as a weapon to be used in attack or defence or as a protection against any human conflict that might be feared. That, however, was not Mr. Vaughan's purpose in buying it. The transaction was opened by a letter from J. J. Vaughan dated 19th June 1961 and in that he wrote to E. Dark [sic], Melbourne, from Nicholson Station via Alice Springs: "I wish to purchase from you if possible a 9 m.m. Cal(ibre) side arm. By this I mean something in the order of a Lugar, P. 38, or Browning. If none of the above can be furnished then perhaps you could suggest something else in the hard hitting line though if possible nothing in the revolver line or 45 cal(ibre) auto(matic)s." The letter continues: "To help in your choice I shall explain my shooting conditions. I shoot cleanskin bulls off a horse in rugged country whilst mustering cattle. I bought a 45 auto from you recently but found the recoil of this weapon too great for my shooting conditions. If you have the weapon you think is suited for my situation, then please put it aside for me and I shall send the required amount by return mail." E. Dark & Co. seem to have replied to him on 4th July by a letter which did not reach him at Nicholson Station until 23rd July 1961. Next he wrote to them saying: "Re the 9 m.m. Luger [sic] you have for me if it's not too late, I would still like to purchase the weapon and have enclosed a cheque for £23 0s. 0d. the extra 10s. being for postage to the following address: "J. J. Vaughan c/- Nicholson Station W.A. via Alice Springs"." In a letter to E. Dark & Co., Melbourne, dated 21st August 1961, he acknowledges the receipt of "the Luger"; orders an extra Luger barrel with a length of 4 to 7¼ inches and a spare magazine, if they can be procured, and orders a Webley or standard .22 revolver. Evidence does not seem to have been given of the exact locality of Nicholson Station. Probably it lies in the Kimberleys to the west of the source of the Ord River. But it may be treated as certain that it is in the State of Western Australia and not in federal territory, notwithstanding that the weapon was to be consigned via Alice Springs. For not only the register and the mail order but the information gives the location as Western Australia. I mention this because it appears to me that when a claim is made by a defendant that s. 92 excludes the operation upon his case or a particular case of such a closely conceived scheme of control of lethal weapons, it must be shown affirmatively and with reasonable certainty that the transaction for which immunity is claimed is in fact one of commerce or intercourse with another State. Of course it has been decided (Lamshed v. Lake [1] ) that by s. 10 of the Northern Territory (Administration) Act 1910-1961 it is validly enacted that the freedom of trade commerce and intercourse between the Northern Territory and the States is validly established and by reason of the fact that this is a law of the Commonwealth Parliament the jurisdiction of the Court of Petty Sessions would probably be federal. For presumably s. 39 (2) of the Judiciary Act would operate with reference to s. 76 (ii) of the Constitution as it would with reference to s. 76 (i) of the Constitution had the defence fallen directly under the application of s. 92.

[12]

One thing that it is desirable, as it seems, to point out here is that though it is a State Act which s. 92 is invoked to meet, parallel legislation (confined of course to inter-State trade and commerce and its incidents) under s. 51 (i.) of the Constitution might meet with a like recourse to s. 92. I mention these incidental questions because though they do not in the end become material to the decision, I think it may prove of more importance than usual to show how this case works out. I proceed on the basis that it appears with a sufficient degree of certainty that the weapon was required by a man on a cattle station in a wild part of another State for shooting cleanskin bulls and for no purpose otherwise involving human safety, and that it was purchased as a mail order and despatched in a corresponding manner to the purchaser. Now one of the purposes of the Firearms Act is to control the "distribution" of firearms and to ensure that anyone who manufactures, sells, deals in, repairs, or tests or "proves" firearms by way of trade or business or otherwise carries on business as a gun dealer shall have a licence as a gun dealer in respect of the premises where he carries on business (s. 5) and to require him to keep a proper register accounting for the weapons and recording various matters but specially the particulars of the acquisition and disposition of the weapons. Probably all this might have been worked out consistently with s. 92 without serious challenge. But unfortunately the statutory machinery chosen for the purpose of control contained a provision going further than requiring proper records of acquisition and disposition: it was provided that the purchaser must produce a certificate and one which it might be impossible for him to obtain if he dwelt in another State. It was provided that the selling of the firearm should be unlawful if the purchaser did not produce such a certificate. The Act approaches the matter rather from the point of view of making sure of the purchaser: for s. 22 (1) says that, subject to the provisions of the Act, no person shall purchase or have in his possession or carry a firearm unless he holds a firearm certificate authorizing him so to do granted under Pt III (a Part headed "Firearms Certificates"). A certificate may be obtained by any person on application to the Chief Commissioner of Police (scil. of Victoria) or any officer of police authorized by the Chief Commissioner, if he is satisfied that the applicant has good reasons for purchasing and having in his possession the firearm in respect of which the application is made, that the applicant is not a person who by the Act or any law is prohibited from purchasing, being in possession of or carrying such a firearm and that the applicant is not a person of intemperate habits or unsound mind or otherwise unfitted to be entrusted with such a firearm: s. 22 (2). By s. 43 (1) an appeal is given to a person feeling aggrieved by, inter alia, the refusal to issue a firearm licence. But the appeal is to be to the Court of Petty Sessions nearest to the residence or place of business of the person aggrieved, which needless to say means a Court of Petty Sessions in Victoria and that would be rather absurd for a man living in the northern part of Western Australia. Section 24, under which the information is laid, forbids among other things the "sale" of any firearm "unless a firearm certificate is produced". A provision assuming the sale and treating it as valid and lawful but imposing a consequential obligation on one or other of the parties to see that the transaction received the support of a certificate might have caused less difficulty; but in spite of the difficulties which exist in the present form of the provision, I am not satisfied that the defendant appellants have made out their case for immunity from the obligation of s. 24 (1) in connexion with this transaction. The only exculpation offered when the police, on going through the firearm register, challenged the transaction was that it was inter-State and therefore outside the section. That might be so if it were a "sale" outside Victoria but on the whole I am satisfied that technically it was a "sale" in Victoria and that delivery was in Victoria to a carrier. Even so it might be true that to observe s. 24 (1) would have been or involved an impairment of the freedom of inter-State trade. It was not shown, however, that a firearm certificate could not have been obtained by or for Mr. J. J. Vaughan on application and indeed quite readily. If one likes to be very precise it did not affirmatively appear that he did not in fact possess one for a Luger pistol. I may add that as to an application for a firearm certificate I do not overlook the forms in the schedules to the regulations containing references to signing at a place in Victoria and otherwise localizing an application but it is just that sort of thing that cannot stand in the way of the lawful, if limited, operation of a statutory provision when to any extent it may operate consistently with constitutional limitations. Nor do I overlook the answer given in evidence by the Senior Constable in charge of the "staff engaged in the registration of firearms" that it was departmental policy not to issue a firearm certificate to a person residing outside Victoria. I see no foundation for such a policy; see s. 22: in any event it was not brought into application in this case. All I decide is that without clear proof of a necessary infringement of the freedom guaranteed by s. 92, a failure to comply with statutory controls attempted in reference to dangerous weapons should not be held lawful. In considering whether compliance would mean an interference with "freedom" of inter-State trade you cannot disregard the fact that we are not concerned with the ordinary course of trade and commerce in commodities where delay and the like may form real impediments. In this particular case ( Appeal No. 11 of 1962) I think that the defendants' attempt to make out an immunity under s. 92 has failed. Appeal No. 11 should be dismissed.

[16]

This is a charge against one only of the defendants, namely Alfred Fulton Chapman, but it relates to a purchaser who figured in Appeal No. 11, namely J. J. Vaughan of Nicholson Station, Western Australia. This time the weapon is a .22 revolver. The charge is that on 25th August 1961 at Melbourne the defendant A. F. Chapman did sell to Vaughan a revolver without requiring him to produce and deliver up a firearms certificate entitling him to purchase the firearm and without his giving reasonable proof that he was by virtue of the Act entitled to purchase without a certificate. The margin of the information refers to s. 17 (1) (d) as the source of the charge and there are words in the information taken from that provision, but s. 17 (1) (d) deals with the holder of a gun dealer's licence. It provides that in the case of a sale of any firearm he, that is the holder of the gun dealer's licence, shall at the time require the purchaser, if not known to him, to furnish particulars and so on. In fact the charge, at all events as framed, cannot be supported unless under s. 24 (1). When the evidence is looked at it appears that Vaughan wrote a letter dated 21st August 1961 as from Nicholson Station to E. Dark & Co. saying that he wished to add to his collection either a Webley or the standard .22 revolver somewhere in the vicinity of £30. "I have enclosed a cheque for £33 0s. 0d. and I trust you will forward the excess money plus whichever revolver you have in stock to the following address:". His address as before was then stated. When the informant Suttie asked questions of the Chapmans concerning this transaction it was not Mr. A. F. Chapman whom he interrogated. I think that probably the defence under s. 92 is not made out but at the same time in all the circumstances I fail to see how on any strict construction this conviction could be supported on the evidence independently of s. 92. Apparently it is clear that the magistrate was exercising federal jurisdiction. I would allow this appeal on grounds 2 and 3 of the notice of appeal.

[29]

On this point there can, we think, be no doubt. Section 24 (1) expressly prohibits any sale unless the purchaser produces a firearm certificate or unless he gives reasonable proof that he is entitled to purchase such a firearm without producing such a certificate. Such a prohibition, per se, strikes directly and immediately at the very heart of the trade and must be taken to constitute an infringement of s. 92 unless it appears that there is a right to the grant of a certificate except in circumstances where a refusal would not constitute an impairment of the constitutional freedom. But the provisions of the Act relating to the granting of certificates leave it to the Chief Commissioner of Police in the first instance, at least, to determine, inter alia, whether the applicant has good reason for purchasing a firearm and whether he is a person who is fit to be entrusted with a firearm. Presumably, also, it leaves to the Chief Commissioner the right to determine what constitutes "good reason" for purchasing or possessing a firearm and what constitutes fitness or unfitness in relation to the purchase or possession of firearms. Probably the provisions of s. 22 were framed purely for the purpose of restricting and regulating the sale of firearms to persons in Victoria and without regard to s. 92. This view receives some support from s. 43 of the Act which provides that any person who feels aggrieved by the refusal of the Chief Commissioner of Police to grant a firearm certificate may within one month appeal against the refusal to the court of petty sessions held nearest to the usual residence or the place of business of the person aggrieved. One may well doubt whether it was intended that the Chief Commissioner of Police should, in effect, control the purchase of firearms by persons resident and, at the time of the purchase, present in another State or that, in the event of an application by such a person for a certificate and its subsequent refusal, he was intended to have a right of appeal to the court of petty sessions held nearest to his usual residence or place of business. The reference to a court of petty sessions must, of course, be taken to mean a court of petty sessions in Victoria and we should think that the section contemplates an applicant whose usual residence or place of business is in that State. It would, indeed, be strange if a resident of a more or less remote part of Western Australia - as one of the purchasers in this case was - should be taken to have a right of appeal to the court of petty sessions in Victoria nearest to his usual residence. The provisions of ss. 22 and 43 lend some colour to the proposition advanced on behalf of the appellants that the general provisions of ss. 24 (1) and 17 (1) (d) were not intended to deal with sales such as those in question here. But the proposition has many difficulties not the least of which is that if one were to incline to the view that the general provisions of those sections ought to be held to be constrained by a process of interpretation based upon some presumed intention of the legislature as gathered from a consideration of the Act generally, it would be quite impossible to say with any degree of precision what that intention was and, consequently, how or in what manner the general language of those sections should be constrained. That being so we have no alterative but to understand the language of those sections according to its literal import. On that view s. 24 (1) expressly forbids any sale of a firearm whether in the course of inter-State trade or not. But it is a conditional provision and, as already pointed out, would not infringe s. 92 if the Act gave a right to the grant of a firearm certificate except in cases where a refusal would not impair the constitutional freedom accorded to inter-State trade. The Act, however, does not do this; on the contrary it denies that freedom whenever the Chief Commissioner is not satisfied that the purchaser has a "good reason" for purchasing a firearm or that the purchaser is not a person fit to be entrusted with a firearm. It is true that s. 43 purports to give a right of appeal to a court of petty sessions but how far this may be availed of by a purchaser living in another State is open to doubt. It is, however, unnecessary to resolve this doubt for a provision which leaves to the Chief Commissioner of Police in one State and, ultimately, to a court of petty sessions in that State, to say whether or how far a person in another State has a "good reason" or is fit to become the purchaser of a firearm in the course of inter-State trade must be regarded as repugnant to s. 92.

[35]

The transaction of sale and purchase of conventional firearms is, however, an ordinary trading transaction and, as such, s. 92 of the Constitution says that where such a transaction forms part of inter-State trade it shall be absolutely free. The appellants have nevertheless been convicted on four charges of selling in contravention of s. 24 firearms to be sent to purchasers in other States. A sale of which it is a term that the goods sold shall be sent to the purchaser inter-State is itself inter-State trade: W. & A. McArthur Ltd. v. State of Queensland [1] , and there is a finding, which I accept, that all the transactions in question were in the course of inter-State trade. If, as seems likely, no provision has been made for a would-be purchaser outside Victoria to obtain a firearm certificate without the production of which s. 24 forbids the sale of any firearm, then the sale by a Victorian firearm owner to a customer outside Victoria is altogether forbidden - at any rate, unless the customer should come to Victoria and, contrary to the evidence relating to police practice, there obtain the necessary certificate. Such a law cannot be reconciled with s. 92. Assuming, however, that it were possible for a person who desires to buy a firearm which is in Victoria from a vendor in Victoria for despatch to the purchaser in another State to obtain a firearm certificate, I would nevertheless regard the requirement that he must do so before the Victorian vendor can sell the firearm for despatch as aforesaid as infringing s. 92. This is because the right to grant or refuse a firearm certificate is a matter for the discretion of the Chief Commissioner of Police in Victoria or one of his authorized officers (s. 22). It is, therefore, put within the competence of the police to prevent inter-State trade taking place. Police action may sometimes quite legitimately prevent inter-State movement (e.g. the arrest of a person carrying obscene pictures from one State to another State and the seizure of the pictures): it is, however, beyond the power of a State to authorize its officers to license inter-State trade in goods which are clearly trading goods notwithstanding that in criminal hands they may be instruments of lawlessness. Axes, carving knives, explosives and motor cars are obvious examples. It seems to me that ordinary firearms fall within this category and it is at this point that I differ, with respect, from the view taken by the Supreme Court of South Australia in Coghlan v. Fleetwood [2] . The decision of this Court and of the Privy Council in Hughes and Vale Pty. Ltd. v. State of New South Wales [3] establishes that to attempt to authorize the licensing of inter-State trade at the discretion of an official of a State is an infringement of s. 92 of the Constitution and I have not been able to find any exception to this general rule that would take s. 24 of the Firearms Act outside its scope. I am, therefore, of the opinion that the prohibition against sale in s. 24 of the Firearms Act does not apply to sales which form part of inter-State trade and that the convictions of the appellants under that section ought to be set aside.

[47]

I do not think that the imprecise character of the matters of which, under s. 22 (2), the officer of police must be satisfied before he grants a firearm certificate, makes the law invalid. I am prepared to assume that the decision to grant or refuse an application for a certificate depends upon his unfettered discretion in the sense that what is a "good reason" for purchasing a firearm is not defined. But, as I read the Act, it means only that the applicant does not want the firearm for some nefarious use in Victoria. I do not think that par. (c) of s. 22 (2) is of itself objectionable. A State law that prohibits persons in Victoria selling firearms to drunkards, lunatics, criminals or other persons unfit to be entrusted with firearms, wherever such persons reside and carry on their lawful, or unlawful, activities, seems to me no different from a State law prohibiting the sale of drugs to drug addicts. The fact that the addict lived in another State would not, in my view, render State law powerless to prevent persons in Victoria selling or sending drugs to him. In short I am inclined to think that the administrative discretion conferred by s. 22 (2) is not unfettered. It is limited by the apparent policy and purpose of the Act. If s. 43 had not provided for an appeal to a magistrate, the exercise of the police officer's discretion would, I think, have been judicially reviewable and controllable: see Swan Hill Corporation v. Bradbury [1] . However the appeal to the stipendiary magistrate probably supplants other possible forms of judicial control of the police officer's decision. But this appeal must be made to the court of petty sessions nearest to the applicant's usual residence. This seems to mean that only a resident of Victoria can appeal, for the nearest court of petty sessions means a court of petty sessions of Victoria. If a resident of Perth went to Melbourne and there applied for a firearm certificate which was refused - as we were told it probably would be - surely the Act does not mean that he should apply to the court of petty sessions in western Victoria nearest to Perth? The only sensible conclusion is, I think, that only a resident of Victoria can appeal. This emphasizes the obstacles that the Act imposes on inter-State transactions. It also, I am inclined to think, brings the Act into collision with s. 117 of the Constitution. The Chief Justice referred to this aspect of the question; but as the matter was not pursued in argument I do no more than mention it.