Director of Public Prosecutions (Cth) v El Ali

Should the CANs otherwise be dismissed as "embarrassing' or that the elements of the offences have not been proved

1. The accused's latter submissions are to be considered and properly only determined at this stage under s 62(1) of the Criminal Procedure Act, namely the legal test "whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence." That determination requires the Court "not consider the probative value of the evidence as a whole, but only that evidence which, if believed and un-contradicted, could be accepted as proof of the Crown case": R v Serratore [1999] 48 NSWLR 101 at [127]. The CDPP's case is to be taken at its highest and there is still a case to answer even if the CDPP's evidence is tenuous, inherently weak or vague: DPP v Elskaf [2012] NSWSC 21 at [47].
2. The accused has informed the court that in the event that the Court does not dismiss the CANs he does not propose to give or call evidence as he is entitled to under s 63 of the Criminal Procedure Act 1986.

The CANs

1. Given the nature of the accused's contentions that the State CANs should be discharged it is instructive to set the individual averments in the CANs and they are: 1. Matter 2012/81506 (H47219172) Sequence 2 alleges an offence under s 51D(2) of the Firearms Act 1996 (NSW) which is described as: Conspire to possess more than 3 unregistered firearms including prohibited firearm or pistol…Between about 27 July 2011 and about 13 March 2012 at Sydney, NSW, and elsewhere Khoder EL ALI did conspire with one or more of Ahmed KARNIB, Andrew BOTROS or a divers other person to possess more than three firearms, at least one of which was a prohibited pistol, in circumstances where the firearms were not registered and none of those persons were authorised by a permit or licence to possess the firearms. The CAN was laid by Detective Sergeant Fabio Furia, NSW Police Force State Crime Command-Firearms and Organised Crime on 13 March 2012. 1. Matter 2012/81506 (H47219172) Sequence 3 alleges an offence under s 51B(1) of the Firearms Act which is described as: Unlawfully sell firearms 3 times or more within a 12 month period…Between about 10 November 2011 and 9 November 2012 at Sydney, NSW, and elsewhere Khoder EL ALI did contravene section 51 of the Firearms Act 1996 (NSW) on three or more separate during the period of 12 months between 10 November 2011 and 9 November 2012 inclusive. That CAN was laid by Detective Sergeant Fabio Furia, NSW Police Force State Crime Command-Firearms and Organised Crime on 13 March 2012. 1. Matter 2012/81506 (H47219172) Sequence 4 alleges an offence under s 93T(1) of the Crimes Act 1900 (NSW) which is described as Participate in criminal group contribute to criminal activity…between 1201am on 27/7/11 2011 and 1105am on 13/03/12 at Wentworth Point did knowingly participate in a criminal group knowing that his participation contributed to the occurrence of a criminal activity, to wit, the possession of a firearm or firearms parts by a person not authorised to do so by licence or permit. The CAN was laid by Detective Sergeant Fabio Furia, NSW Police Force State Crime Command-Firearms and Organised Crime on 13 March 2012.

Is CAN Sequence 2 "embarrassing" and liable to be quashed?

1. The accused submits that Sequence 2 which avers a conspiracy by the accused Khoder El Ali "with one or more or Ahmed KARNIB, Andrew BOTROS or a divers other person" leads to an incomprehensibly alleged offence as it is not known whether the offence charges a conspiracy with a single, unknown, or other person, or an uncertain number of other persons. In the absence of the clarity of specification, Sequence 2 the accused submits should be quashed, if on no other ground, simply as being "embarrassing". Presumably, the accused refers to the civil law procedural principle that a pleading may be struck out where it is "embarrassing": see Northam v Favelle Favco Holdings Pty Ltd (unreported, Supreme Court of NSW, Bryson J, 7/3/95) where His Honour said: A pleading may be embarrassing even though it does not contain allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognizing or piecing together what is referred to, or if imprecise or slang words are used with unduly broad ranges of possible meanings or without clear meanings. What is referred to must be clearly stated showing, as appropriate, when and where an event happened, who participated, what was said, what was the relevant effect of any document and so forth. It is not fair to require a defendant to flesh out general expressions or indirect illusions by piecing together information in other documents such as affidavits or expert's reports. He might get it wrong, and the greater the complexities are, the more probable it is that he will understand what is alleged in some different way to what the plaintiffs will rely on.
2. The accused does not refer to any authority whereby the civil law pleading principle that a pleading is "embarrassing" has application to a criminal law averment in a charge. On the contrary, at common law a person may be convicted of conspiracy with a person or persons unknown, and it is not necessary to name a co-conspirator in the indictment: R v Harrison (1995) 79 A Crim R 149; Gerakiteys v The Queen (1984) 153 CLR 317 at 334; and s 393 of the then Crimes Act 1900 (now clause 21 of Part 4 of Schedule 3 applied by s 316 of the Criminal Procedure Act) does not abrogate that common law right: R v Harrison. In any event the averment in CAN Sequence 2 complies with clause 21, which provides: (1) This clause applies to an indictment for conspiracy. (2) It is not necessary to state any overt act of conspiracy. (3) Each accused person, whether two or more are included in the same indictment or not: (a) may be charged separately, in any count: (i) as having conspired with other persons, of whom it is sufficient to name one only, or (ii) as having conspired with one other named person only, and (b) may be convicted on any such count on proof of having unlawfully conspired, for the purpose alleged in the indictment, with any one of the named persons. (4) No more than 3 counts against the same accused person may be inserted in one indictment. (5) In any case before a plea is entered, the court may order such particulars to be given as the court considers appropriate. (6) If substantially different conspiracies are charged in the same indictment, the prosecutor may be put to election as to the one on which to proceed.
3. In R v Harrison Mahoney JA, with whom Gleeson CJ and Sperling J agreed, said of the then s 393: The effect of that provision is, I think, to allow each defendant in a conspiracy case to be "charged separately" and to be charged with having conspired with either "divers persons" or "one other named person only".
4. As averred in CAN Sequence 2 the accused is separately charged with two named persons "with one or more or Ahmed KARNIB, Andrew BOTROS (and) or a divers other person" which complies with clause 21(3)(a)(i). The Court notes that no application for particulars has been made by the accused so that any unfairness may be identified and, if possible, cured by an order for particulars or by putting the prosecutor to an election if substantially different conspiracies are charged. On the evidence before the Court there is a clear conspiracy as charged in CAN Sequence 2 between the accused and at least Ahmed Karnib and Andrew Botros.
5. The Court does not accept that the CAN should be dismissed even if the civil practice and procedure concept of an embarrassing pleading does apply. The accused's submission is rejected.

Has the prosecutor has failed to prove the element in CAN Sequences 2-4 that the unnamed co-conspirators did not possess a licence or permit authorising them to possess the firearms?

1. The accused next submits that Sequences 2-4 should be dismissed as there is a defect in the evidence, namely that it is incumbent upon the CDPP to prove that none of the named co-conspirators and for that matter the unnamed co-conspirators had a licence or permit to possess the firearms. If the unnamed co-conspirators are not known then, the accused argues, it must logically follow that it is impossible for the CDPP to negate the possibility that the unnamed co-conspirators did not possess a licence or permit. The accused argues, for example, that a licensed firearms dealer who is prepared to nefariously acquire and sell unregistered firearms does not commit an offence under s 51D as while the firearms may not be registered, his licence under s 8 allows him to possess those firearms. He may commit an offence under s 36(3) which exempts unlawful possession by a licensed firearms dealer if an application for registration of the firearm is made within 24 hours after acquiring it.
2. To the extent the prosecutor's case is that the unknown co-conspirators are the purchasers of the firearms, then CAN Sequence 2 is doomed to fail as the CDPP has no evidence that each purchaser entered into an agreement with the other purchaser. Instead, potentially there would be a multiplicity of conspiracies, rather than one, overarching conspiracy: Gerakiteys v The Queen per Gibbs J at 319 and Brennan J at 327.
3. Similarly, CAN Sequence 3 must also fail by reason of the same defect in CAN Sequence 2. If the co-conspirators are not known then the CDPP cannot prove to whom the firearms were sold, only that the firearms were in the joint possession of the accused, Ahmed Karnib and Andrew Botros. The accused relies a number of grounds why the CDPP cannot prove the sale of the firearms: 1. First, the limitation in s 51 (picked up by the aggravated offence in s 51D) that a person (the seller) commits an offence by selling or knowingly taking part in the sale of a firearm "unless… (a) the purchaser is authorized to possess the firearm by a licence or permit" is an element of the offence and which the CDPP must prove. The accused argues that the CDPP's reliance on s 417A(1) of the Crimes Act, which provides that "Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived", does not apply to an offence under s 51 and consequently s 51D, and he bears no onus in proving that limitation; 2. Second, the accused submits that there is no proof that the accused in fact sold the firearms. The accused argues that at the time of the commission of the alleged offences that the Firearms Act required an actual sale for reward and the extended definition of supply in s 4 ("have in possession for supply") can have no application to offences under Part 6 which includes ss 51 and 51D. The accused relies upon the amendments brought about by the Firearms and Criminal Groups Legislation Amendment Act 2013 (effective 23/10/2013), which replaced the definition of "sell" with "supply" and expanded the offence to include a gratuitous supply, and introduced a new offence of "must not give possession" in s 50D. The accused argues that those amendments are indicative that the prior definition of "sell" was limited to a supply for reward and did prohibit a gratuitous supply or the giving of temporary possession. It follows, the accused submits, that the CDPP cannot prove that the accused sold the firearms as there is no evidence of that fact. For instance, the CDPP cannot negate myriad exculpatory possibilities such as that the accused was acting as an agent to supply another person without any sale, or had lent or provided the firearms to another person without financial reward. 3. Third, the CDPP is unable to establish that complete firearms were sold as opposed to firearm parts. The only firearms recovered appear to be a mix of parts from various firearms, including (on the accused's understanding) parts which cannot be identified as having originated from the accused. The accused does concede that it would in those circumstances be open to the Court to commit the accused under s 51BB for selling firearm parts if none of the other arguments are accepted. 4. Fourth, the concept of selling requires title to be passed and as the firearms (in parts) were forfeited to the Commonwealth under s 229(ba) of the Customs Act 1901 (Cth) title could not pass.
4. Consequently, CAN Sequence 4 must also be dismissed for the same reasons as the CDPP cannot prove an element of the offence, namely "that his participation contributed to the occurrence of a criminal activity, to wit, the possession of a firearm or firearms parts by a person not authorised to do so by licence or permit."
5. Since the accused's written submissions were made, the CDPP by consent was allowed to re-open its case and tender Certificates under s 87 of the Firearms Act: Exhibit 17. Those Certificates are, by s 87, prima facie evidence of what they certify. The Certificates certify that: 1. There "is no record of the following firearms(s) being registered: GLOCK PISTOLS BEARING THE FOLLOWING SERIAL NUMBERS:" (total identified 160 in number being the firearms imported in Glock parts); 2. Khoder El Ali had his firearm licences Category A, B and H and High Calibre Pistol Permit "revoked on 03/08/2011"; 3. Ahmed Karnib "was not, between 12/01/2011 to 13/03/2012, the holder of a Firearms Licence or Permit"; 4. Andrew Botros had his firearm licence Category A, B "revoked on 18/05/2012".
6. The CDPP responds through lengthy written submissions which for reasons of brevity (and taking into account the s 87 certificates since admitted into evidence) are that: 1. The CDPP is not required at law to prove the absence of lawful authority in Ahmed Karnib, Andrew Botros, the accused or the unknown persons because of the shifting onus upon the accused under ss 417 and 417A of the Crimes Act referring to Director of Public Prosecutions v Belani; Jumah; and Ammoun [2005] NSWSC 1013; 64 NSWLR 319. The accused argues to the contrary submitting that that decision does not provide support for the CDPP's contention that it need not prove the matters set out in subsection (1) beyond the element of selling or taking part in the sale of a firearm. The accused submits that it is plainly obvious that the legislation under consideration in Director of Public Prosecutions v Belani; Jumah; and Ammoun was of a very different nature. There, Johnson J was considering whether the words "unless the written approval of the Commissioner of Police to the holding... of the race has been obtained" in s 40(1) Road Transport (Safety and Traffic Management) Act 1999 constituted an element of the offence, which the prosecution had to establish beyond reasonable doubt or an exception or proviso within s 417A Crimes Act, which the prosecution need not prove, but may be raised by the defence. As Johnson J said, whether a circumstance is to be seen as an element of the offence or a proviso to be proved by the accused is a matter of construction. 2. Alternatively, the CDPP submits that on the evidence available to the Court the firearms were in fact not registered and that neither of Ahmed Karnib, Andrew Botros or the accused was consequently authorised to possess the firearms. 3. The CDPP further submits that there is evidence that the firearms were sold for reward.

The Firearms Act 1996

1. At the time the offences are alleged to have been committed the Firearms Act relevantly provided: 51D Unauthorised possession of firearms in aggravated circumstances [Sequence 2] … (2) A person who is in possession of more than 3 firearms any one of which is a prohibited firearm or pistol is guilty of an offence under this subsection if: (a) the firearms are not registered, and (b) the person is not authorised by a licence or permit to possess the firearms. Maximum penalty: imprisonment for 20 years. 51B Selling firearms on an ongoing basis [Sequence 3] (1) Offence A person must not contravene section 51 on 3 or more separate occasions over any consecutive period of 12 months. Maximum penalty: imprisonment for 20 years. 51 Restrictions on sale of firearms (1) A person (the seller) must not sell, or knowingly take part in the sale of, a firearm to another person (the purchaser) unless: (a) the purchaser is authorised to possess the firearm by a licence or permit, and (b) the following documents have been produced to, and inspected by, the seller: (i) the purchaser's licence or permit, and (ii) if the purchaser is not a licensed firearms dealer - the purchaser's permit to acquire the firearm (or the equivalent of any such permit that is issued under the law of another State or Territory in respect of the firearm concerned). Maximum penalty: imprisonment for 5 years. … 3 Principles and objects of Act (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 sales 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. 4 Definitions In this Act: firearm means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm. firearm part means a barrel, breech, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine designed as, or reasonably capable of forming, part of a firearm. prohibited pistol - see section 4C. purchase includes: (a) purchase by wholesale, retail, auction or tender, and (b) obtain by barter or exchange, and (c) cause or allow anything referred to above. sell includes: (a) sell by wholesale, retail, auction or tender, and (b) dispose by barter or exchange, and (c) sell for profit, and (d) offer for sale, receive for sale, have in possession for sale or expose or exhibit for sale, and (e) conduct negotiations for sale, and (f) consign or deliver for sale, and (g) cause or allow anything referred to above. (2) For the purposes of this Act: (a) anything that would be a firearm if it did not have something missing from it, or a defect or obstruction in it, is taken to be a firearm, and (b) any firearm that would be a prohibited firearm: (i) if it did not have something missing from it, or a defect or obstruction in it, or (ii) if it were not for the fact that something has been added to it, is taken to be a prohibited firearm. (3) For the purposes of this Act: (a) if firearm parts are possessed, or being carried, by 2 or more persons, each of them is taken to be possessing or carrying the firearm, and (b) a person who takes possession of anything under a hire-purchase agreement is taken to have bought it and the person who possessed it immediately before parting with possession is taken to have sold it. 4C Meaning of "prohibited pistol" For the purposes of this Act, any pistol that would be a prohibited pistol: If it did not have something missing from it, or a defect or obstruction in it, or … is taken to be a prohibited pistol.

The evidential onus of absence of lawful authority to possess - ss 417 and 417A of the Crimes Act 1900

1. Sections 417 and 417A relevantly provide: Division 2 Lawful authority or excuse 417 Proof of lawful authority or excuse Wherever, by this Act, doing a particular act or having a specified article or thing in possession without lawful authority or excuse, is made or expressed to be an offence, the proof of such authority or excuse shall lie on the accused. 417A Proof of exceptions (1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings. (2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person. (3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it.
2. Sections 417 and 417A both apply to offences under the Firearms Act and the common law (Sequence 2, the s 51D(2) conspiracy offence) by virtue of s 3 and Schedule 2 of the Crimes Act, which picks up Part 11 Division 2, which contains ss 417 and 417A.

Relevant principles

1. In Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64 at 66-7 Jordan CJ described the rule of construction as follows: If the offence were defined as consisting of a single concatenation of facts all were regarded as necessary ingredients of the offence, whether they were positive or negative in their nature; but, if the definition were twofold, in the sense that after a definition of the offence there was a distinct and separate provision exempting from liability in a certain event, only the first part was regarded as defining the ingredients of the offence and the second was regarded as a matter of confession and avoidance available by way of a defence.
2. In Vines v Djordjevitch (1955) 91 CLR 512 at 519 the court held that the prime consideration was the intention to be ascribed to the legislature: When an enactment is stating the ground of some liability that it is imposing or conditions giving rise to some right it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualification exceptions or provisos and it may employ negative as well as positive expressions.. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then provide for some special ground of excuse, justification or exception depending upon new or additional facts.
3. In Chugg v Pacific Dunlop [1990] HCA 41; 170 CLR 249 Dawson, Toohey and Gaudron JJ, with Brennan and Deane JJ agreeing with additional comments, said of construing legislative intention as to whether a statutory provision evinces an intention to place the onus on an accused to prove a particular factual state (footnotes omitted): [9] For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule. See Vines v. Djordjevitch. The distinction does not depend on the rules of formal logic: Dowling v. Bowie. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it": Director of Public Prosecutions v. United Telecasters Sydney Ltd. The intention may be discerned from express words or by implication. See Reg. v. Edwards and Reg. v. Hunt. … [13] One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobsen, per Dixon J. Such is ordinarily the case where, in the terms used in Reg. v. Edwards, there is a prohibition on the doing of an act "save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities". See Reg. v. Hunt, where Lord Griffiths considered the statement from Reg. v. Edwards "an excellent guide to construction". If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.
4. In Dowling v Bowie [1952] HCA 63; 86 CLR 136 Dixon CJ said of such statutory provisions: 2. The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification. See Barritt v. Baker [1948] VicLawRp 85; (1948) VLR 491, at p 495. The distinction has been criticized as unreal and illusory and as, at best, depending on nothing but the form in which legislation may be cast and not upon its substantial meaning or effect. The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it. Cf. Pye v. Metropolitan Coal Co. Ltd. [1934] HCA 9; (1934) 50 CLR 614; (1936) 55 CLR 138; Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobson [1945] HCA 22; (1945) 70 CLR 635 (at p140)
5. In construing the word "unless" in s 51(1) and the word "and" in s 51D(2)(a) and (b) they are to be considered by a textual analysis in context of the Act as a whole: Ex parte Ferguson; Re Alexander at 66 following Metropolitan Coal Co. Ltd v Pye [1936] AC 343 at 351; ADI Limited v Environment Protection Authority; Environment Protection Authority v ADI Limited [2000] NSWCCA 333 at [15]. In R J Wimborne Pty Ltd; Re Beale (1958) 58 SR (NSW) 353; (1957) 75 WN (NSW) 372 the Full Court held that in a prosecution under the Electricity Development Act 1945-1948, s 22(1), where a person is charged with having, whilst not licensed, carried out electrical wiring work, once it has been shown that the person carried out the electrical work alleged, that person bore the onus of proving that he was at the relevant time possessed of a current licence. The Full Court said at 375: Taking a broad view of the Act and its purposes, it appears that the policy of the legislature, having regard to the danger from faulty electrical wiring, was to prohibit altogether any installation or interference with electrical wiring in premises within the definition (s. 4) by unauthorized persons…The policy of the Act is to require persons who carry out such work properly to qualify themselves before becoming licenced. It is consistent with such policy to require that persons who are charged with a breach of the law should be prepared, upon proof that they have carried out electrical wiring work, to show that they are authorized to do so by the production of a licence current at the relevant date.
6. To the Court's knowledge there has been no consideration of the word "unless" in the present licensing context. The Macquarie Dictionary defines "unless" to mean, in part, "except on the condition that; except if it be, or were, that; except when"; see also Director of Public Prosecutions v Belani; Jumah; and Ammoun at [64] where Johnson J accepted the DPP's submissions and reference to the word "unless" from the Shorter Oxford Dictionary to mean "except when" and thus denoting an exception. The synonymous words "unless" and "except" have been held in a variety of statutory licensing contexts to constitute words of a proviso casting an evidential burden upon an accused: see for instance Director of Public Prosecutions v Belani; Jumah; and Ammoun; Ex parte Ferguson; Re Alexander; Lynch v Attwood [1983] 3 NSWLR 1 and the useful analysis by Yeldham J of a number of decisions on the present issue.
7. The Court is required to give a construction which would promote the purpose or object of the Firearms Act to one that would not promote that purpose or object: Interpretation Act 1987, s 33; Chugg v Pacific Dunlop at [21]; Director of Public Prosecutions (NSW) v Morgan [2013] NSWSC 1474 at [42] and [52] a decision concerning the definition of a firearm under the Firearms Act. Turning to the Firearms Act, s 3 sets out the principles underlying the Act and its objects which for present purposes include: … to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety…by imposing strict controls on the possession and use of firearms…to establish an integrated licensing and registration scheme for all firearms…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… Considering the Act as a whole it is clear that it sets out a general rule prohibiting, in part, the possession, use or sale of firearms "unless" a person is authorised to do so by a licence or permit (including when a licence or permit may issue and its conditions) and the firearms are registered: ss 7; 7A; 11-16; 19; 29; 31; 43-47; 50; 50AA; 50A; 51; 51A; 51BA; 53-54; 58; 62; 63; 65 (for the sale, purchase or possession of ammunition); and 66. While it is not determinative, there are circumstances where knowledge that a person has a licence is peculiarly within the knowledge an accused: see for instance s 51(1)(b), (1A), (2)(a); (2A) (a); s 51A(1) and (2)(a); and 51BA as to the production and inspection of a licence or permit.
8. Casting the onus upon an accused within the meaning of s 417A in the present circumstance of the use of the word "unless" is far more likely to promote the underlying principles and objectives of the Firearms Act 1996 (especially given that possession is a privilege and not a right; and public safety: DPP v Morgan at [52]) than it being an element of an offence. Further, the usual meaning of the word "unless" in ss 51 and 51B(1) (and the Act as a whole) also lends support to a construction that means the Parliament intended that it be regarded as an exception within the meaning of s 417A, Crimes Act. It is also consistent with a number of other decisions where in differing licensing contexts the word "unless" has been held to cast the evidential onus upon the accused.
9. While the word "unless" does not appear in s 51D(2) a construction of substance rather than form also evinces a statutory intention that the obligation to show that the firearms were registered "and" that there is a licence or permit to possess the firearm lies upon the accused. Such a construction is again far more likely to promote the underlying principles and objectives of the Firearms Act than not. It is also consistent (as the Court has concluded) with the other provisions where the word "unless" is used concerning the possession and registration of firearms. It also removes an absurdity between s 51D and ss 7 and 7A. For instance, it open to the prosecution to alternatively charge possession simpliciter under ss 7 and 7A (and the Court in committal proceedings to commit for trial either of those offences) if, for instance, there is an issue of proving "3 firearms". The trial judge (and therefore this Court) would need to direct the jury under s 51D that the prosecution must prove that the accused did not have a licence or permit but then under s 7 and 7A that it was for the accused to prove otherwise. That could not have been the intention of Parliament.
10. For these reasons the Court concludes that s 417A of the Crimes Act casts the obligation upon this accused to show that either he, the other named accused or the unnamed accused lawfully possessed the firearms under the authority of a licence or permit and that they were registered. The accused has not done so at this stage.
11. In any event the Court notes that the s 87 certificates now tendered into evidence establishes that neither of the named conspirators (s 51D(2)) held a licence or that the firearms were registered.
12. The evidence also establishes that the firearms (in parts) imported into Australia were either Glock Models 19, 26 or 27 all of which are prohibited pistols as each had barrel length under 120mm, respectively 102mm, 87mm and 87mm.
13. The accused has also submitted that CAN Sequence 2 is further doomed to fail as the CDPP has no evidence that each purchaser entered into an agreement with the other purchaser. Instead, potentially there would be a multiplicity of conspiracies, rather than one, overarching conspiracy: Gerakiteys v The Queen per Gibbs J at 319 and Brennan J at 327. This submission is also not accepted. The Court relies upon its earlier reasons that the accused is separately charged with two named persons "with one or more or Ahmed KARNIB, Andrew BOTROS [and] or a divers other person", which complies with clause 21(3)(a)(i) of the Criminal Procedure Act. The Court notes that no application for particulars has been made by the accused so that any unfairness may be identified and, if possible, cured by an order for particulars or by putting the prosecutor to an election if substantially different conspiracies are charged. As these are committal proceedings and the accused has not established any present relevant unfairness, the evidence before the Court is that there is a clear conspiracy as charged in CAN Sequence 2 between the accused and at least Ahmed Karnib and Andrew Botros.

Were the firearms sold within the meaning of ss 51 and 51D?

1. The Courts accepts the accused's submission that at the time of theses offences that the word "sale" in ss 51 and 51B(1) meant sale for reward. However, the Court accepts the CDPP's submission that there is sufficient evidence from which it may be inferred that there is a reasonable prospect that a jury properly instructed would convict the accused of the s 51B offence and therefore for this Court to commit under s 64. The Court does not propose to deal with that evidence exhaustively (the CDPP's Crown case Statement MFI "B" summarising the evidence, in part, of Exhibit 1 [the Brief of Evidence] itself is 453 pages). In short, the evidence from which that inference may be drawn is: 1. The total number of Glock parts imported would have, when put together, made some 140 Glock pistols. As the evidence shows the accused spent over $100,000 to acquire the firearms and firearm parts in circumstances where his own known legitimate financial circumstances were insufficient. It would be objectively implausible not to conclude that this was a commercial enterprise for the sale of the firearms for reward; 2. The nefarious nature of the conspiracy using false identities, coded language and the plea of guilty to the unlawful importation again suggest that this enterprise was not for gratuitous supply or the lending or giving of temporary possession, but for reward. In the absence of evidence to the contrary such inference is reasonably open; 3. Listening device evidence that, with this accused's knowledge the co-accused Ahmed Karnib was remunerating the other co-accused Andrew Botros for his role. Other listening device evidence that the accused was remunerating other persons who were transferring money on his behalf to acquire some of the firearms; 4. Email admissions by the accused that he was involved in selling the imported firearms "someone has reported us to customs for selling Glocks cheaper than NIOA [an authorised Australian Glock 26 prohibited pistol distributor] and they have made a big fuss about it" (Email 17 February 2012 at 11.18 pm ADT) and to making a profit "with all honesty the pricing you are giving us, we are making a good profit" (Email 17 February 2012 at 11.27 pm ADT).
2. The accused's submission that as the firearms were forfeited to the Commonwealth under s 229(ba) of the Customs Act they could not be sold as title could not pass is not accepted. Section 229(ba) provides for the forfeiture to the Crown of "All goods the importation of which has been prohibited unless a licence or permission containing conditions or requirements has been granted and those conditions or requirements have not been complied with." While some 140 Glock pistols were imported in parts, only 8 have to date been recovered. As determined above there is evidence of sale. While s 229(ba) deems the unlawfully imported pistols to be forfeited (whether seized or not) that does not stop them from being sold. Plainly, it would be an absurdity to suggest that ss 51 and 51D are limited to a lawful sale, which is a valid contract. Irrespective of s 229(ba) the law of contract would deem the agreement or contract for sale of the Glock pistols prohibited under ss 51 and 51D to be invalid at common law. To accept the accused's submission to construe ss 51 and 51D as applying to valid contractual sales where title does pass would leave it with no operation at all.
3. Finally, the accused's submission that the CDPP is unable to establish that complete firearms were sold (from parts imported by the accused) as opposed to firearm parts is also not accepted. It is clear from DPP v Morgan that s 4 (and it follows s 4C) deems "anything that would be a firearm (or prohibited firearm or pistol)… if it did not have something missing from it from it… is taken to be a firearm" (or prohibited firearm or pistol). As determined above there is evidence of sale from which a jury could draw the reasonable inference (and this Court under s 64) that from the unrecovered unlawfully imported parts at least 3 firearms were assembled and sold. In this regard the only 8 firearms recovered contained imported parts.
4. For these reasons the Court is satisfied under ss 62 and 64 that there is a reasonable prospect that the evidence is both capable and in fact would satisfy a jury properly instructed that the accused has committed the offences charged. The accused is committed for trial. Magistrate J Favretto Downing Centre Local Court 20 August 2015

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: 30 November 2015