Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd

Supreme Court of NSW|2017-07-19|Before: Wilson J

Judgment

WILSON J: On 8 December 2015 police officers from Tuggerah Lakes executed a search warrant on a store in the Westfield Shopping Centre at Tuggerah, seizing some 127 suspected firearms. This case ultimately turns on whether the objects seized that day are in fact imitation firearms as defined by s 4D(3) of the Firearms Act 1996 (NSW), or children's toys as defined by s 4D(4) of that Act.

Background to these Proceedings

The items seized by police on 8 December 2015 were in the possession (although not the ownership) of a store trading as ModCon Gift and Accessories. The store sold a variety of stock, including cinema related paraphernalia, mobile phone accessories, figurines, and home wares.
On entering the store police officers observed a number of objects with the appearance of firearms on display (with a quantity of combat style knives) in a locked glass cabinet. Further similar items were stored under a counter, and more were held at a storehouse facility nearby. All were seized and removed from the premises by police. The store owner requested the return of the items the following day, but they were retained by police.
On 25 May 2016 the owner of the seized items, the defendant in these proceedings, filed an application to the Local Court pursuant to s 45 of the Local Court Act 2007 (NSW) seeking orders for the return of 125 of the 127 items seized. (The two remaining items were the property of the store owner and need not be further considered here.) The police filed an application for the forfeiture of the items on 5 July 2016, although the initiating process does not form part of the material before this Court.

A Preliminary Jurisdictional Question

The defendant raised a preliminary question of the basis upon which the appeal by the Commissioner was brought before the Court, and consequentially the basis of the Court's power to determine it.
As noted above the application determined by the magistrate in the Local Court was one made pursuant to s 45 of the Local Court Act. Applications proceeding under that provision, which is contained in Part 4 of the Act, fall within the Special Jurisdiction of the Local Court. Section 70(1)(c), also in Part 4 of the Act and relevant to matters heard in the Special Jurisdiction, provides for appeals to the Supreme Court to be made in accordance with Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAAR Act"), in the same way as an application or appeal in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW).
Part 5 of the CAAR Act provides for "Appeals by Defendants" (Division 1) and "Appeals by Prosecutors" (Division 2). Although the language sits a little oddly in the circumstances of the present case, this matter is submitted to be an appeal by a prosecutor. "Prosecutor" is defined by s 3 of the Act as follows: "prosecutor in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings."
As can be seen, that definition is a wide one and is not confined to the situation of a person or agency bringing a criminal charge against a defendant.
The plaintiff submits that the appeal is properly brought pursuant to s 70 of the Local Court Act and Part 5 of the CAAR Act, and is an appeal as of right pursuant to 56 of the latter Act. The defendant argues that s 70 provides no basis for an appeal, because the Commissioner of Police cannot be regarded as a "prosecutor" within the meaning of the CAAR Act. It is the defendant's contention that the only avenue of review available to the plaintiff is via s 69 of the Supreme Court Act 1970 (NSW), invoking the Court's supervisory jurisdiction.
Although for practical purposes probably little turns on the precise nature of the appellate mechanism, since the Commissioner asserts errors of law which are amenable to review pursuant to s 69 of the Supreme Court Act, I accept the plaintiff's submission that an appeal as of right lies pursuant to the CAAR Act, by operation of s 70 of the Local Court Act.
There is no doubt (and no issue) that the proceedings heard in the Local Court were heard by the court sitting in its Special Jurisdiction. Appeals to the Supreme Court against orders in that jurisdiction arising from an application notice proceed in accordance with s 70 whether the order related to a criminal prosecution or some other sort of application.
That the language of the CAAR Act may not be always be appropriate to appeals arising under s 70 appears to receive recognition in s 70(5), which provides: "The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act."
Although there are no relevant regulations, the fact that there is a mechanism to allow for modifications of the CAAR Act to an appeal arising under s 70 is consistent with the fact that the precise terms of the CAAR Act may sometimes be inapposite. The fact that the language of "prosecutor" and "defendant" is more usually relevant to a criminal prosecution cannot be taken as disqualifying appeals not arising in such a context from appellate review pursuant to s 70 of the Local Court Act.
Section 70(6) provides further support for that interpretation. It provides: "In this section, a reference to an order includes a reference to any determination that the Court has jurisdiction to make, and any penalty that the Court has jurisdiction to impose."
I am satisfied that the Court has jurisdiction to hear and determine the Commissioner's appeal pursuant to Part 5 of the CAAR Act. That there is a precedent for the Court exercising jurisdiction in this way provides some support for the accuracy of that conclusion: Commissioner of Police v Pecover [2014] NSWSC 1427.

The Conclusions of the Magistrate

In his judgment of 3 March 2017 the magistrate set out his reasons for concluding that the seized items were children's toys within the meaning of s 4D(4) of the Firearms Act. He found that: 1. "The parliament must have intended that toy guns are not to be regarded as imitations despite varying degrees of realism if the exception [in s 4D(4)] is satisfied on the evidence" (CB 159:28). 2. "The packaging and the markings on the packaging demonstrate their production as a toy, something to play with. The packaging identifies the items as toys. The items in the display case were labelled as toys and signs to that effect were present on the display case" (CB 158:37). 3. Although he noted that there was no evidence of what the manufacturers of the items intended in producing them, his Honour inferred that the items were produced as toys (CB 158:40). 4. From the wording on the packaging of the items (where packaging was present), and labels and signs applied within the store, the magistrate inferred that the items were identified as toys (CB 158:44).

The Commissioner's Appeal

Although nine grounds are pleaded, at the hearing of the matter the parties approached it by reference to two asserted errors of law, and it is intended to deal with the matter in the same way.

The First Asserted Error

The plaintiff contends that, in his interpretation and application of s 4D of the Firearms Act his Honour erred in failing to give effect to the qualifier "children's" when considering the meaning of "children's toy". That argument is based upon his Honour's repeated references in his reasons to "toy" rather than to the statutory phrase "children's toy", particularly when giving his findings.
The Commissioner provided the Court with two dictionary definitions of the word "toy". It was submitted that, having regard to the definitions and to ordinary usage of the word "toy" and the phrase "children's toy", a distinction is to be drawn between the two, and the magistrate failed to give effect to that distinction, thus erring in his construction of the statute.
The defendant argues that the complaint is one which mistakes a type of "shorthand" usage by the magistrate for an error of construction. It is submitted that his Honour well understood that the exception in s 4D applied to children's toys rather than to toys, with the reasons simply reflecting an economy of language and not a failure of understanding.
The magistrate both gave an oral judgment on 3 March 2017, and prepared a written version of his reasons, which seems have to have been retained with the court's file rather than being published or otherwise made available to the parties. The status of the written document is unclear.
A written note of the orders made by the magistrate, which follows the written account of the reasons, bears the seal of the Local Court, but the reasons do not. It seems that his Honour read from the written document when giving his oral judgment, on occasion diverging from it. There are differences between the two. Relevantly, there is a difference in terms of what was recorded in the written version of the judgment concerning s 4D and the judgment delivered in court.
In the written decision the magistrate correctly set out the statutory provisions that were relevant to the matter, and referred to s 4D in full, including as the section does the words "children's toy". In the oral judgment, and probably bearing in mind that those at the Bar Table to take the judgment were familiar with the legislation, his Honour did not refer to the full terms of s 4D. He said: "The Firearms Act 1996 at s 4D makes certain provisions relating to imitation firearms. Gentlemen, I will not bore you with that. I have set it out in full but the important subsection is subs (4)" (CB156:22).
He subsequently referred to "toy" repeatedly during the judgment, including in the critical parts of the reasons when setting out his conclusions and findings.
That his Honour was aware of and understood that the exception applied to a "children's toy" can, however, be gleaned from the whole of the reasons, informed as the Court is by the written version of the reasons. It is true that, when giving his findings and conclusions, the magistrate referred only to "toy" or "toys" and not to "children's toy", but I accept the defendant's submission that the issue is one of semantics and not incomprehension.
In the oral judgment, at CB157:19, the magistrate set out the precise terms of s 4D(4) when noting the question of whether the seized items were dangerous articles for the purposes of LEPRA. As noted, s 4D was set out in full in the written version of the judgment.
When considering the evidence connected with the seized items and the packaging of some of them, his Honour noted some of the features of the packaging consistent with a children's toy. For example, at CB157:47 he noted the words "children's toy" on packaging, saying: "They all bore somewhere upon the packages in English - and I note that they also bore other European languages, some of which appeared to me to be French, Spanish, Italian, and I think German - the word "toy" or the words "children's toy" and some had the word "cap" as in cap gun or similar."
That he did not always or even often use the phrase "children's toy" in the judgment as a whole is not determinative of his understanding of the statutory phrase. Whilst precision in using statutory language is always desirable, it is not unusual for a judicial officer to adopt a short form means of referring to a provision and that, in my view, is what has occurred here.
There is an important distinction to be drawn between the meaning of "toy" and the meaning of "children's toy", but I do not conclude that the magistrate failed to draw it.
This complaint has not been made good.

The Second Asserted Error

The Commissioner contends that in construing the meaning of s 4D(4) the magistrate erred in accepting that the packaging of the items was sufficient proof that the items were children's toys, thus having regard to the purpose for which the items were produced without separately considering that identification of the object as a children's toy must derive from the object.
The defendant submits that the terms "produced and identified" must be read and construed as a composite phrase, and it is not necessary to give separate consideration to the meaning of "produced" and "identified".
In considering the construction of s 4D, regard must be had to both the terms of the provision itself, and to the overall purpose of the Firearms Act.
Section 3 of the Firearms Act gives the principles and objects of the Act as follows: "(1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms."
Clearly, the overriding purpose of the Firearms Act is to improve and ensure public safety, in part by prohibiting the unauthorised possession of firearms. A "firearm" is a gun or other weapon which is or was capable of propelling a projectile by explosive means: s 4.
Whilst s 3 refers to "firearm", s 4D makes it clear that the Act applies to an "imitation firearm" in the same way as to a firearm, subject to the exception in s 4D(4). An "imitation firearm" is defined by s 4D(3): "In this section, imitation firearm means an object that, regardless of its colour, weight or composition or the presence or absence of any moveable parts, substantially duplicates in appearance a firearm but that is not a firearm."
The exception provided by s 4D(4) is in these terms: "However, an imitation firearm does not include any such object that is produced and identified as a children's toy."
The purpose of the provision is plain: to prevent the unauthorised possession of imitation firearms in the same way as the possession of firearms is restricted, as a means of ensuring public safety. Only those objects produced and identified as a children's toy are exempt.
I accept the plaintiff's argument that, in interpreting the meaning of s 4D(4) the magistrate fell into error by confining his consideration of whether or not the items were children's toys to whether they were produced, packaged and otherwise labelled as such. The purpose of the production of the item, that is, its manufacture, is but one part of the statutory definition. Separate regard must also be had to the "identification" of the item.
There was evidence before the magistrate that the items were produced as children's toys. Some of the original packaging in which some of the seized items were contained bore references consistent with a children's toy. One object with the appearance of a semi-automatic pistol, and labelled "Polizia", displayed upon its packaging pictures of a police car, and of a silver metallic badge bearing the words "Police Play". Inside the package was a badge consistent with that depicted on the box. Another item with the appearance of a hand gun was in a box labelled "Gonher", which was adorned with the word "Cowboy" and a picture of an adult horseman. A third item, with the appearance of a machine gun, was packaged in a box bearing the words "Command" and "M-133", and illustrated by a picture of three male persons dressed in combat fatigues, one of whom appears to be a teenager, whilst the others are adults. Other packaging was less suggestive, being illustrated by pictures of police cars, bullet holes, and the like, but without anything specific to children's play and children's toys.
Those items which were not packaged were accompanied by a removable swing tag stating: "TOY PISTOLS PRODUCED FOR CHILDREN 8 YEARS OLD + This Product is produced and identified as a child's toy and only suitable for children 8 years old and above. It is recommended that this Product is used strictly under adult supervision. Altering or changing the colours, markings and/or fittings on this Product to make it look like a real firearm is illegal and may subject the parent or guardian of a child liable for prosecution. Brandishing this Product in a public area or any other place may result in possible police prosecution. Transporting this item interstate may change the legal status of this Product. Please keep this Product clean and store away when not i[n] use."
The locked glass fronted display case in which those items removed from packaging had been displayed contained signage stating (in part): "Dear Customers, We would like to inform all of our valued customers that these die-cast toy metal cap-guns are legal to sell in NSW."
On a separate notice in the cabinet: "The removal of the red plug in the barrel to make it look like a real firearm is illegal and will make you liable for prosecution!"
In his judgment of 3 March 2017 his Honour focused on this evidence as conclusive of both production and identification, effectively considered together. However, the words and evidence relevant to both "production" and "identification" had to be separately considered and separately determined. Evidence relevant to the purpose for which the items were produced was not necessarily relevant to the identification of the items. How the items were to be identified depended upon matters intrinsic to the items themselves and could not be determined by packaging or other removable paraphernalia.
The objective evidence relevant to the identification of the items included: 1. the fact that the items were made of metal or die-cast metal rather than plastic or some other light weight material; 2. they were heavy to hold, similar to a comparable firearm; 3. many of the items had moveable parts consistent with the operation of a firearm; 4. the items were produced in colours consistent with a firearm rather than the sort of bright colours typically associated with children's toys; and 5. expert ballistics evidence was that the items substantially duplicated the appearance of the corresponding firearms, being self-loading pistols, revolvers, and select-fire rifles.
Further, in construing and applying the legislation, it was incumbent on his Honour to give full effect to the primary object of the Firearms Act of ensuring community safety. His conclusion that "parliament must have intended that toy guns are not to be regarded as imitations despite varying degrees of realism" failed to give proper attention to the purpose of the legislation to protect the community from the illegal possession and use of firearms or imitation firearms. To conclude that an item which substantially duplicated the appearance of a firearm was a children's toy because of its packaging was to reach a conclusion contrary to the purpose of the legislation.
In focusing on the production of the items as children's toys, and failing to separately consider their identification by reference to qualities intrinsic to them the magistrate misconstrued s 4D(4), that being an error of law.

Conclusion

Having concluded that the magistrate erred in law in his construction and application of s 4D(4) of the Firearms Act it follows that the orders of the Local Court must be set aside. Consistent with the approach of the parties it is not necessary to address the individual grounds of appeal, other than to note that grounds 1, 3, 5 and 9 have been made out.
Although the Amended Summons seeks orders dismissing the defendant's application in the Local Court, in oral submissions to the Court at hearing counsel for the Commissioner asked that the orders be for a remitter of the matter to the Local Court. I propose to make that order.

orders 1. Appeal allowed. 2. Pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 the order of Magistrate Day sitting in the Local Court on 3 March 2017 directing the return of 125 specified items to the defendant is set aside. 3. Pursuant to s 59(2)(a) of the Crimes (Appeal and Review) Act 2001 the matter is remitted to the Local Court to be heard in accordance with law by a magistrate other than Magistrate Day. 4. Subject to any application made in writing by the plaintiff each party is to bear its own costs. Any application by the plaintiff is to be filed with my Associate and served upon the defendant within 14 days from today. Any submissions in reply are to be filed in the same way and served within 14 days thereafter. Any decision on such an application will be made on the papers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2017

Law Enforcement (Powers and Responsibilities) Act 2007(NSW)

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