Director of Public Prosecutions (NSW) v Morgan

The Facts 10On 1 December 2011, the defendant placed an advertisement on a website offering an AR-15 semi automatic rifle for sale. The rifle was described by the defendant as being an "as new complete AR-15 upper plus components", semi automatic of .223 calibre, at an asking price of $6,000. The advertisement included a photograph. The advertisement was removed by the host of the website and referred to police for investigation. 11At about 8.30am on Tuesday 20 December 2011 NSW Police executed a search warrant at the defendant's house. The officer in charge, Detective Senior Constable Greaney, told him they were searching for an AR-15 style firearm which was advertised for sale on the website. The defendant said "It's in my room". In the defendant's bedroom he told the police officers "There it is, it's dismantled in parts" and indicated two cardboard boxes on the floor. Detective Senior Constable Gibbons asked "It's in these two boxes?" and the defendant replied "Yes". Police seized the two cardboard boxes. They contained the AR-15 rifle in a dismantled state, save for a lower receiver housing. 12The police searched the premises and seized many items, including magazines of various sizes and capacities. They included the 49 magazines the subject of the second group of charges. 13 The AR-15 assault rifle was a self-loading centre-fire rifle. As such it was a prohibited firearm: Sch 1 cl 3 Firearms Act. For licensing purposes it fell within Category D. The defendant did not hold a Category D licence. He did, however, hold a Collector licence which allowed him to possess, inter alia, a prohibited firearm to which Category D applied: Firearms Act s 8. Relevantly, s 20 Firearms Act provided: 20 Firearms collector licences-special conditions Without limiting the conditions to which a firearms collector licence may be subject, any such licence is subject to the following conditions: (a) any prohibited firearm (being a firearm to which a category D licence applies) that is part of the collection must be rendered permanently inoperable in a manner prescribed by the regulations, ... 14The AR-15 assault rifle had not been rendered permanently inoperable as required. 15The defendant was interviewed. He agreed that he had placed the advertisement including the photograph, which he referred to as a parts kit. He said "...On my collector's licence I acquired parts for a rebuild kit which as far as I knew through the definition there's no actual lower to complete the rifle which the lower, being the registered part with that I've legally advertised it for sale on a common firearms site for licenced category D firearms owners or dealers" (sic). He said that he had a Collector licence for the AR-15 parts but did not have a Category D firearms licence.

The Evidence at the Hearing 16Senior Constable Mark Horder, a forensic ballistics officer, gave evidence. He examined the items seized by the police at the defendant's home on 20 December 2011. He said that they included a lower receiver parts kit which, in addition to the handle contained the grip, all the pins, springs, the hammer and the trigger, the magazine release button and the selector for safe and fire. The only item missing was the housing. He fitted the parts contained in the lower receiver parts kit within the lower receiver housing, using tools seized from the defendant. He attached the assembled parts to the upper receiver and the stock and the barrel. Using the parts seized from the defendant's bedroom together with the lower receiver housing supplied by the police, he was able to create a working firearm that was capable of propelling a projectile by an explosive, controlled by a trigger. He test-fired the assembly. It fired 20 cartridges. It was a self-loading, centre-fire rifle. It had an adjustable (also described as telescopic or collapsible) stock. It included an upper receiver assembly, a barrel and fore-end assembly, bolt assembly and firing pin as well as the items contained in the lower receiver parts kit referred to above. The only part he had to add was the lower receiver housing. He described it thus: It's a simple housing with no working components in it. When - until I assembled it and - all it consisted of was a housing to house the magazine and the hammer and trigger components. All the holes were already drilled. So it just needed the actual trigger mechanism and hammer mechanism and springs fitted to it. 17The AR-15 rifle as assembled by Senior Constable Horder was tendered and became Exhibit 3 in the proceedings. 18In cross-examination Senior Constable Horder agreed that the lower receiver housing, the only part missing from those possessed by the defendant, was a registrable part. He agreed that the lower receiver housing was an integral part without which the firearm could not operate. It was a part "that has the serial number on them and that is one of the reasons why they are the controlled part". 19In re-examination he was asked what the difference was between a lower receiver and a lower receiver housing and stated: It is my opinion that the lower receiver is a complete receiver with trigger mechanism and hammer and springs, safety mechanism. I used a lower receiver housing, so I only used the housing itself from another firearm and the actual internal parts, the hammer, the hammer springs, the trigger and safety mechanism and other pins and springs were all part of an exhibit. 20By his answer Senior Constable Horder meant that the actual internal parts he used came from the things seized from the defendant. 21The defendant called evidence from Mr Barry John Smith, a gunsmith who had run a business for 40 years until his recent retirement. He had also held a licence as a firearms dealer. He had qualified as a fitter machinist. He was president of the Firearms Dealers Association for about the first nine years of his business. He was the chief valuer for Norfolk Island, New South Wales and the Australian Capital Territory during the gun buyback and had participated in consultative committees with the Government prior to the introduction of the Firearms Act. 22Mr Smith stated that in his opinion, "without the receiver it is not a complete firearm". He said "It is the major part. It is the part on which everything else hangs off. Its also the controlled part, the registered part". He said it is only when parts are converted into a firearm that he notifies the firearms registry of the fact that he has created a firearm. 23He said that the parts in the lower receiver kit were available for sale from various sources in Australia from time to time, the only record made on sale being a cash sale docket. The frame of the receiver, he said, was extremely difficult to obtain both in Australia and from overseas. 24The defendant gave evidence. He stated he was an electrical technician and lived with his parents. He acquired a junior licence for firearms, a Category H licence, at the age of 16. His father thought he would take up the sport of handgun target shooting with him and they joined a club together and spent most Sunday afternoons doing that sport. Since 2007/2008 he has been an active member of a collectors club associated with the Sporting Shooters Association of Australia. He said that he held a Collector licence which permits possession of Category A, B, C, D and H firearms. Of the AR-15 he said: Without a lower receiver its not a firearm. I mean, I collected those parts on my collector's licence category D with the intention of having it as a refurb (sic) kit for someone suitably licensed to use it in another matter as in vermin control for farmers and so on...they would already have to have the lower receiver and basically a refurbish fit (sic). 25He said that he deliberately excluded the lower receiver from his collection of parts to avoid having to render the resulting firearm inoperable: "...if I had a lower receiver I then would have a Category D firearm. Under my collector's licence, any Category D firearm would have to be permanently inoperable" and "I would basically turn expensive parts into nothing". He wanted $6000 for the AR-15 and planned to continue selling. He was going to sell the kits off and put a deposit on a house. 26The firearm magazines the subject of the second group of charges were identified and tendered though Senior Constable Horder. 27The defendant said in evidence that they were "really just to form a collector's collection of magazines. One would go with a collection, the spare parts kit, but the majority of those magazines were just part of my collection".

Submissions at the Hearing 28The police prosecutor relied upon the extended definition in subs 4(2) Firearms Act to establish that the dismantled AR-15 rifle, found in boxes in the defendant's bedroom but missing one piece, was a "firearm" for the purposes of s 7(1) Firearms Act. The prosecutor referred the Magistrate to a number of authorities including R v Mezzadri [2011] NSWCCA 125; (2011) 210 A Crim R 442. He also argued that a Collector licence under the Firearms Act did not permit collection of the high round firearm magazines, which were prohibited weapons for the purpose of the Weapons Prohibition Act. He also argued that the defendant's Collector licence did not bring him within the exemption in clauses 5(1) and 5(2) of Schedule 1 to the Weapons Prohibition Regulation 1999. 29Counsel for the defendant submitted that there was only a collection of parts that were never part of a firearm capable of projecting a projectile. Counsel submitted that the Collector licence permitted the defendant to collect the firearm magazines. It was submitted that the Collector licence enabled the defendant to rely upon the exemptions created by clauses 5 (1) and 5(2) of Schedule 1 to the Weapons Prohibition Regulation. It was submitted that the defendant was entitled to collect pistols and was therefore entitled to possess magazines that fit the pistols. Similarly, since the defendant was entitled to collect Category D firearms he was also permitted to possess the firearm magazines.

Her Honour's Judgment on the Charge of Possessing a Prohibited Firearm 30In giving judgment on the charge based on the possession of the AR-15 rifle her Honour said: Turning now to my findings and decision. The parts were new and there is no evidence that any of them ever formed part of another firearm other than the alleged firearm referred to in the court attendance notice. The assembled firearm was test fired thereby demonstrating that once it was assembled it was capable of propelling a projectile by means of an explosive but I do note that it was assembled using a combination of parts owned by the accused and the police. A firearm can exist even if a part is missing however it is relevant in R v Mezzadri when Adams J gave examples of parts that might be missing for the purposes of subs (4)(2) he referred to arguably non critical parts. The stock can be detached from the firearm without affecting its ability to propel a projectile by means of an explosive and the trigger guard which is arguably a non essential safety part of the firearm. Even though I am required to prefer a construction of the section that gives effect to the objects of the Firearms Act and to give appropriate recognition to the legislative policy of strict control upon the possession of firearms, I am not satisfied that subs 4(2) and 4(3) operate so as to render ineffective the requirements set out in subs 4(1) that the items is [sic] to be capable of propelling a projectile by means of an explosive. I am not satisfied that the prosecution has proven beyond reasonable doubt that the parts were by themselves capable of propelling the projectile by means of an explosive. Indeed the evidence seems to suggest that the lower receiver housing was an integral part without which the rifle cannot be held together and operated. This view is consistent with the actions of the police expert who did not attempt to test fire the rifle before he assembled it using the lower receiver housing. Therefore I am not satisfied beyond reasonable doubt that the parts constitute a firearm. For completeness sake I need to go on and deal with the other matters I indicated earlier. 31In relation to the AR-15 semi automatic self-loading rifle her Honour went on to find that if she had been satisfied that it was a firearm she would have been satisfied that it was a prohibited firearm within the meaning of Schedule 1 of the Firearms Act. Her Honour made that finding in particular because it was a self-loading centre-fire rifle as described in item 3 of the Schedule. Her Honour found that it had: a stock that is specifically designed so as to be readily detachable or to operate on a swivel, folding or telescopic basis as referred to in sch 1 item 11 and therefore was also a prohibited firearm within the meaning of item 11 in Schedule 1. If it had been a firearm the defendant was prohibited from possessing it given the terms of his licence. The charge was dismissed however because her Honour was not satisfied it was a firearm.

The Grounds of Appeal 32There were four grounds of appeal against the order dismissing the AR-15 rifle charge, namely that the Magistrate erred in law in: (1)Holding that the term 'something missing' in subs 4(2) Firearms Act refers only to 'things' the absence of which do not prevent the item in question from being 'capable of propelling a projectile by means of an explosive' within the meaning of the definition of the term 'firearm' in subs 4(1) Firearms Act. (2)Holding that despite relying on the extended definition of the term "firearm" in subs 4(2) Firearms Act, the prosecution was required to establish that the portion of the AR-15 rifle the subject of this charge which was present was by itself "capable of propelling a projectile by means of an explosive" in order to establish that it was a "firearm" within the meaning of the Firearms Act. (3)Holding that the AR 15 rifle the subject of this charge was not a "firearm" within the meaning of the Firearms Act. (4)Dismissing the charge on the basis of the erroneous interpretation and application of subs 4(2) Firearms Act.

The Submissions on Appeal 33This Court appears not to have considered the definition of "firearm" in the Firearms Act. Although the Judges of the Court of Criminal Appeal considered the legal history of the offence under s 7(1) in Thalari v Regina [2009] NSWCCA 170; (2009) 75 NSWLR 307, the construction of subs 4(2) did not arise. 34Mr Pickering SC, for the plaintiff, submitted that the case relied on by her Honour, R v Mezzadri, did not bear on the construction of subs 4(2). Mr King SC, for the defendant, did not disagree. 35In R v Mezzadri the Court of Criminal Appeal was concerned with an appeal by the Crown against what was said to be a lenient sentence. The respondent had pleaded guilty, under s 51D(2) Firearms Act to possessing more than three firearms, any of which was a prohibited firearm or pistol, when the firearms were not registered and the respondent was not authorised by licence or permit to possess them. At the relevant time the respondent possessed eight firearms, four of which were prohibited and none of which was registered, the respondent being unlicensed. The sentencing judge was not satisfied that when seized the firearms were in working order and capable of discharging a projectile. Two of them did not have bolts. Three of them did not have magazines. One, though apparently complete, was not in a condition to be fired. The sentencing Judge took those matters into account in assessing the respondent's criminality. 36The only relevant concern of the members of the Court of Criminal Appeal was to consider whether the respondent's level of culpability rose or fell according to which part or parts were missing from any firearm or what its condition was. In pursuance of that enquiry Adams J said at [18] - [19]: [18] As has been pointed out, a maximum penalty of twenty years with a standard non-parole period of ten years is provided for the offence under appeal. In considering whether a particular case is in the middle of the range of objective circumstances, it is necessary to bear in mind the very wide range of circumstances that are caught by s 51D(2). Thus, by virtue of s 4 of the Firearms Act 1996 "firearm" is defined as "a gun ... that is (or at any time was) capable of projecting a projectile by means of an explosive, and includes a blank firearm, or an air-gun, but does not include anything declared by the regulations not to be a firearm". It follows that a weapon which at one time was serviceable will be a firearm even if it is completely unserviceable at the time it was in the possession of the offender. Section 4(2) provides that "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 ..." The potential circumstances of offending, on the assumption that (in accordance with the usual rule) the singular includes the plural, are such that, for example, a gun stock or trigger guard alone would arguably nevertheless be a firearm for the purposes of the Act, as much as would a completely operable machine gun. [19] It is obvious that the possession of unserviceable weapons must be significantly less objectively serious than the possession of serviceable weapons. Of course, the degree to which the weapons in question were unserviceable, that is to say whether the missing parts were capable of being found and the ease with which the gun could be made to work would be relevant. Here, there was no evidence about the degree of unserviceability or the ease or difficulty with which the missing parts could be found. These are scarcely matters capable of being resolved by judicial notice. In my respectful view, the unchallenged findings of the sentencing judge as to the actual serviceability of the weapons in question was of considerable significance and pointed to objective seriousness well below the middle of the range. Even if the weapons were serviceable, the belief of the applicant that they were not, that is to say that they could not be fired with safety, was a material objective circumstance which again pointed to the lower end of objective seriousness together with the lack of any intention to repair, use or dispose of them. 37Their Honours were nowhere concerned to decide whether any of the firearms were or were not a firearm or whether the respondent were guilty or not. It did not fall to the Court to construe subs 4(2) and it did not do so. In my opinion the case does not bear upon the proper construction of the subsection. It seems that its citation misled her Honour insofar as her Honour said: A firearm can exist even if a part is missing however it is relevant in R v Mezzadri when Adams J gave examples of parts that might be missing for the purposes of subs (4)(2) he referred to arguably non critical parts. The stock can be detached from the firearm without affecting its ability to propel a projectile by means of an explosive and the trigger guard which is arguably a non essential safety part of the firearm. 38Her Honour's statement that subss 4(2) and 4(3) did not operate so as to render ineffective the requirement of subs 4(1) that the item was to be capable of propelling a projectile by means of an explosive stemmed from the cited passage from Adams J's judgment. If her Honour was of the view that Adams J was authoritatively stating that the missing parts contemplated by subs 4(2) were non-critical parts, her Honour fell into error. The reference by Adams J to a stock and a trigger guard were intended, I think, to reason that a single part might, by application of subs 4(2), be just as much a firearm as a completely operable machine gun. His Honour's point, I think, was that if that were so, although the offence was complete, the culpability in possessing such a mere part would be significantly less than that of possessing a firearm consisting of a completely operable machine gun. His Honour was not saying that missing parts contemplated by subs 4(2) were, like a stock or a trigger guard, non-critical. The purpose of his Honour's observations was to illustrate the breadth of the range of possible criminality. 39Her Honour did not otherwise explain how she reached her conclusion, which was effectively that anything missing, as contemplated by subs 4(2), had to be non-essential. 40Mr Pickering submitted that "missing" in subs 4(2) meant merely lacking. I accept that submission. The expression "... something missing" may include anything previously present but since lost or removed, but the word "missing" is wide enough to refer also to something that has never been present, something lacking. See Oxford English Dictionary, 2nd Ed, Vol IX, 888: not present, not found, absent, gone. Mr Pickering cited other dictionaries to the same effect. 41Mr Pickering drew attention to ss 6 and 33 Interpretation Act 1987, which are as follows: 6 Definitions to be read in context Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires. 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 42Mr Pickering submitted that the subsection fell to be construed in the context of the whole of the Firearms Act, including its legislative history and the mischief it was introduced to remedy. He referred to the judgment of McHugh J in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 in which, at [103] his Honour warned against giving a narrow, literal meaning to a definition and using it to negate the evident policy or purpose of the enactment under consideration. The passage was referred to with approval by Basten JA, with whom Allsop P agreed, in Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; (2009) 171 LGERA 152 at [16]. 43Mr Pickering referred to the underlying principles and objects of the Firearms Act, as set out in s 3 thus: 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, an (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. 44Mr Pickering also referred to the responsible Minister's speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 19 June 1996 at 3204) in introducing the Bill for the Firearms Act to the Legislative Assembly as follows: The Firearms Bill represents the toughest controls on firearms ever enacted in New South Wales. The underlying principles and aims of the proposed Act are that the possession and use of firearms is a privilege, not a right, and is conditional on the overriding need to ensure public safety. The proposed Act will improve public safety by imposing strict controls on the possession and use of firearms, promoting the safe and responsible storage and use of firearms and facilitating a national approach to the control of firearms. The objects of the bill are to prohibit the possession and use of all automatic and semiautomatic rifles and shotguns except in special circumstances; 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; to provide strict requirements that must be satisfied in relation to the licensing of firearms and the acquisition and sale of firearms; to ensure that firearms are stored and conveyed in a safe and secure manner; and to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms. 45Mr King submitted that her Honour had applied s 4 correctly. What the defendant possessed was a collection of firearm parts which did not meet the definition of "firearm" in subs 4(1). So the case depended on subs 4(2). Subs 4(2) speaks in the singular - "anything", "something" - and requires the existence of a single object which is not a firearm but which will meet the definition of "firearm" when another single object is added to it. They were not the facts of this case: the defendant possessed no more than a collection of parts. 46Mr Pickering relied on the provisions of s 8 Interpretation Act that the singular may include the plural. Moreover it was not necessary to read all provisions in an Act in the singular or the plural. Some might be read in the singular and others in the plural in order to achieve the purpose of the Statute. He referred to Pearce, D.C. and Geddes, R.S., Statutory Interpretation in Australia, 7th Ed (1996) LexisNexis Butterworths at [6.42] and to the remarks of Megarry J in No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] 1 Ch 229; at 241 - 2. 47Mr King submitted that the proposition by which the singular imports the plural could not fairly apply to the definition. The public interest and wide considerations of public safety do not require it. What this legislation is directed to is a weapon which can be put into complete working order by the addition of a part necessary for that purpose, that is, a single object which requires the addition of a single part, able immediately to be fired upon being loaded. Subs 4(3), Mr King submitted, points in the direction of that construction. It would for example, enable two people intending to commit a crime with a firearm, the firearm being inoperable because one of them was carrying all of it except the final necessary part and the other carrying that part, to be caught by the statute and found guilty of an offence. 48I do not accept Mr King's submission as to the meaning of subs 4(3). In my opinion, while subs 4(3) is capable of producing the result put forward in his hypothesis, that does not assist in the construction of subs 4(2). 49Subs 4(2) defines as a firearm "anything that would be a firearm if...". In doing so it speaks only of the conversion into a firearm of something that, by subs 4(1) alone, is not a firearm. Her Honour effectively held that a firearm could exist only if what was present met the definition in subs 4(1). In doing so her Honour ignored the plain meaning of subs 4(2) and left it without a role to play as a defining measure. 50Mr King submitted that if, contrary to his submissions, a number of individual unassembled rifle parts could be regarded as "anything" for the purposes of subs 4(2), the subsection was ambiguous. 51I disagree. It seems to me there is no reason why the words "anything" and "something" as used in subs 4(2) should not, according to the facts of any individual case, be given a singular or a plural meaning if that achieves the intent of the Act. 52I conclude that the meaning contended for by the defendant does not accord with the plain meaning of the words used. Moreover, so to construe subs 4(2) would not advance the policy of the Firearms Act to control the possession and use of firearms in the community and thereby to promote safety in the community. The construction contended for by the plaintiff accords with the words used and advances the policy and objects of the Firearms Act. It should be accepted.

A Question of Law? 53Mr King observed that the plaintiff might bring its appeal only by demonstrating an error of law. He submitted that the plaintiff must fail because there was at least a mixed question of law and fact involved in her Honour's decision. If there was an interpretation open and the facts fitted it and that is how her Honour decided the case, then there was no error of pure law. 54Mr King referred to Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 at 287 - 288 in which Neaves, French and Cooper JJ said this:- The principles according to which the jurisdiction conferred by s 44 is limited are not always easy of application. Distinctions between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raises issues which may be or involve questions of fact or law or mixed fact and law. Nevertheless there are five general propositions which emerge from the cases: 1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: ledko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973) AC 854. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact: ledko Game Co Pty Ltd v Collector of Customs (NSW) (supra); New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 512; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Neal v Department of Transport (1980) 3 ALD 97 at 107-108. 3. The meaning of a technical legal term is a question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Commissioner of Taxation (Cth) (1979) 40 FLR 208 at 215. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia v Phillips (supra) at 79. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ). The fifth proposition as stated by the High Court in Hope v Bathurst City Council (supra) was elaborated by reference to the remarks of Fullagar J in Hayes v Commissioner of Taxation (Cth) (1956) 96 CLR 47 at 51: "Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact: Hope v Bathurst City Council at 8. Mason J there cited the observation of Kitto J in New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (Cth) (supra) at 512: "The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the ... operations fall within the ordinary meaning of the words as so determined; and that is a question of law ... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact ... " 55Mr King submitted that the present case fell into the second category identified by their Honours. The question was the meaning of the word "firearm". That was an ordinary word which had an ordinary meaning. Its construction was therefore a question of fact. Alternatively, if the meaning found by her Honour was available, subs 4(2) was ambiguous and there was a question of mixed law and fact. 56I do not think that her Honour was charged with finding the ordinary, non-legal meaning of the word "firearm". In my opinion the case falls within the fifth category identified by their Honours. Her Honour found the facts. The question was whether they fell within the proper construction of subs 4(2). Their Honours' reference to the remarks of Fullagar J in Hayes v Commissioner of Taxation (Cth) (1956) 96 CLR 47 at 51 seems apposite. 57I am satisfied that her Honour's error was an error of law.

The 49 Charges of Possessing a Prohibited Weapon 58The 49 magazines comprised high round capacity AR-15 and pistol magazines as defined in Sch 1 cl 4(4) Weapons Prohibition Act. The issue for determination by the Magistrate was narrow. It was common ground that the magazines were prohibited weapons that could not be lawfully possessed without a permit. The defendant had no permit. He submitted that Sch 1 cl 5 Weapons Prohibition Regulation exempted him from the requirement to have a permit. The Prosecutor submitted that it did not. 59According to the transcript, her Honour said this in giving judgment: Dealing next with the magazine charges. In relation to these matters, as I indicated earlier, Mr Morgan had a firearms licence permit which enabled him to collect firearms falling within Categories A, B, C, D and H. Section 50AA of the Firearms Act enabled him to purchase firearm parts, which include magazines for firearms, for which he was unable to possess (sic). I am satisfied that he held a licence that enabled him to possess magazines to fit rifles and pistols. The legislative scheme though, in relation to firearms encompasses not just the Firearms Act, it also encompasses the Weapons Prohibition Act. The Weapons Prohibition Act places further limits on the possession of certain types of items and for example, absent the matters that I am going to refer to later in this decision. Schedule 1 cl 4(4) of the Weapons Prohibition Act lists the types of detachable firearms magazines that could only be held pursuant to the additional permit that is required by the Weapons Prohibition Act. Section 8 of that Act requires a person to hold a general permit or other types of permits if they are going to possess the weapons that are outlined in Schedule 1 of the Weapons Prohibition Act. These include magazines that have a capacity of more than a certain number of rounds. The Firearms Registry has provided a certificate under section 48 of the Weapons Prohibition Act that Mr Morgan was not, on 21 December, the holder of a permit and was not authorised to have in possession a prohibited weapon under Schedule 1 of the Weapons Prohibition Act. The police expert did provide a certificate in relation to the magazines, the weapons for which it is designed and the capacity of the magazine. However, the Weapons Prohibition Regulation in Regulation 4 and Schedule 1.5 and I note, for the purpose of the record, Regulation 4 provides- For the purposes of section 6(4) of the Act a person specified in a provision of Schedule 1 is exempt from the requirement under the Act to be authorised by a permit to possess or use a prohibited weapon, but only to the extent and the circumstance so specified, and only in relation to the prohibited weapon or weapons so specified. Schedule 1.5 sets out the requirements in relation to the possession and use of firearm magazines by certain persons. A person who is the holder of a Category D licence and a Category H licence, is exempt from the requirement to hold the additional permit required by the Weapons Prohibition Act, only in relation to its use in a registered firearm to which the Act applies and only for the purpose established by the licensee as being a genuine reason for possession or using a firearm and subject to such restrictions as may be imposed on the licence. The holder of a Category H licence, issued for a genuine reason of business or employment is exempt from the requirement under the Act for a permit to possess or use a prohibited weapon referred to in Schedule 4F of Schedule 1 of the Act, done in relation to its use in a registered pistol to which the licence applies and only in connection with a genuine reason, subject to such restrictions as may be imposed on the licence. Absent the provision of the provisions set out in the Weapons Prohibition Act, I would have been satisfied that the prosecution has proven its case to the requisite standard because all of the magazines fall within the description of the items set out in Schedule 1 of the Weapons Prohibition Act. But, as I have indicated earlier, the licence that was held by Mr Morgan did cover Categories A, B, C, D and H and G, he had a collector's licence. The collector's licence specifically gave him the authority to collect firearms falling within categories A, B, C, D and H. The pistols fall within Category H and the rifles fall within the other categories for which he was permitted to possess firearms. Noting the requirement for me to interpret legislation in a matter that promotes the objects of the Weapons Prohibition Act and it does have an object clause that is very similar to that set out in the Firearms Act, namely that the -and just to quote a bit from section 3 of the Act (a) The underlying principles are to confirm possession and use of prohibited weapons is a privilege and that is conditional on the overriding need to ensure public safety and, (b) To improve public safety by imposing strict controls on the possession and use of prohibited weapons. And then it goes on to state some simple objects of the Act. I note the requirements to give effect to those objects, but the legislation on its face, and it is complex and very specific and detailed legislation, does provide the exemptions when people have been separately licensed under the Firearms Act. I have already made findings in relation to the licences. Therefore, when I consider what I am required to, and the standard the prosecution is required to establish, I find that the prosecution has not established that Morgan is guilty of any of the charges that relate to the possession of the firearm magazines.

The Grounds of Appeal 60There were four grounds of appeal, namely, the Magistrate erred in law in the following respects: (1)Holding that the term "the holder of a category D licence" in clause 5(1) of Schedule 1 to the Weapons Prohibition Regulation includes the holder of a Firearms Collector licence permitting the possession, for the purpose of a firearms collection, of firearms to which a category D licence applies. (2)Holding that the Defendant's being the holder of a Collector's licence permitting the possession, for the purpose of a firearms collection, of firearms to which a category D licence applies, was by reason of clause 5(1) of Schedule 1 to the Weapons Prohibition Regulation exempt from the requirement for a permit for the possession of the magazines the subject of charge sequences 5-7, 10-13, 30-34 and 38-39. (3)Holding that the Defendant, being the holder of a Collector's licence permitting the possession, for the purposes of a firearms collection, of firearms to which a category H licence applies, and being the holder of a Category H licence issued for the genuine reason of target shooting, was by reason of clause 5(2) of Schedule 1 to the Weapons Prohibition Regulation exempt from the requirement for a permit for the possession of the magazines the subject of charge sequences 3-4,16-29, 35-37 and 40-54. (4)Dismissing the charges on the basis of the erroneous interpretation and application of clauses 5(1) and 5(2) of Schedule 1 to the Weapons Prohibition Regulation.

The Submissions on Appeal 61Mr Pickering submitted that s 11 Weapons Prohibition Act required the defendant to have a separate permit to possess the magazines, consistent with his stated purpose of having a weapons collection. 62A "prohibited weapon" is defined in subs 4(1) of the Act as "anything described in Schedule 1". Schedule 1 provides a list of items that are prohibited weapons for the purposes of the Act. Clause 4(4) is as follows: (4) A detachable firearm magazine of any of the following kinds: (a) a rimfire rifle magazine with a capacity of more than 15 rounds, (b) a centre-fire self-loading rifle magazine with a capacity of more than 5 rounds, (c) a centre-fire rifle magazine (other than a self-loading rifle magazine) with a capacity of more than 10 rounds, (d) a shotgun magazine with a capacity of more than 5 rounds, (e) a tubular magazine extension that is capable of extending the capacity of any firearm, (f) a pistol magazine with a capacity of more than 10 rounds, (g) any magazine designed to be attached to any machine gun, sub machine gun or other firearm that is capable of propelling projectiles in rapid succession following one pressure of the trigger. 63Section 6(4) of the Act provides that: The regulations may exempt any person or class of persons from the operation of any provision or requirement of this Act in such circumstances, and subject to such conditions, as may be specified in the regulations. Any such regulation may create offences in relation to a failure to comply with a condition prescribed in relation to an exemption. 64The Permit Scheme is dealt with in Part 2 Division 2 of the Act. Section 7 is as follows: Division 1 Requirement for permit 7 Offence of unauthorised possession or use of prohibited weapon (1) A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit. Maximum penalty: imprisonment for 14 years. (2) Without limiting the operation of subsection (1), a person who is the holder of a permit to possess or use a prohibited weapon is guilty of an offence under this section if the person: (a) possesses or uses the prohibited weapon for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the weapon, or (b) contravenes any condition of the permit. 65Section 8 provides in part: 8 Permit categories and authority conferred by permit (1) The categories of permits and the authority they confer are as follows: General permit Authorises the holder of the permit to possess or use a prohibited weapon of the kind specified in the permit, but only for the purpose established by the holder as being the genuine reason for possessing or using the prohibited weapon. 66Section 9 deals with applications and the information they must contain. 67Section 10 empowers the Commissioner to issue or refuse to issue a permit to an applicant. 68Section 11 is as follows: 11 Genuine reason (1) The Commissioner must not issue a permit authorising the possession or use of a prohibited weapon unless the applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon. (2) Without limiting the reasons that the Commissioner may be satisfied are genuine reasons, the Commissioner may determine that an applicant has a genuine reason for possessing or using a prohibited weapon if the applicant: (a) states that he or she intends to possess or use the weapon: (i) for any one or more of the reasons set out in the Table to this subsection, or (ii) for any other reason prescribed by the regulations, and (b) is able to produce evidence to the Commissioner that he or she satisfies the requirements (if any) specified in respect of any such reason. 69The table in subs (2) includes this: Reason: weapons collection The applicant must: (a) be a current member of a collectors' club or society approved by the Commissioner in accordance with the regulations, and (b) demonstrate that the applicant's weapons collection has a genuine commemorative, historical, thematic or financial value. 70Clause 4 Weapons Prohibition Regulation provides that the persons specified in Schedule 1 of the Regulation are exempt from the permit requirement. It provides: Part 2 General provisions relating to permits 4 Persons exempt from requirement for permit For the purposes of section 6 (4) of the Act, a person specified in a provision of Schedule 1 is exempt from the requirement under the Act to be authorised by a permit to possess or use a prohibited weapon, but only to the extent and in the circumstances so specified, and only in relation to the prohibited weapon or weapons so specified. 71Schedule 1 of the Regulation exempts a number of persons. Clause 5 is as follows: 5 Possession and use of firearm magazines by certain persons (1) The holder of a category D licence under the Firearms Act 1996 (as referred to in section 8 of that Act) is exempt from the requirement under the Act for a permit to possess or use a prohibited weapon referred to in clause 4 (4) (a)- (d) of Schedule 1 to the Act, but: (a) only in relation to its use in a registered firearm to which the licence applies, and (b) only for the purpose established by the licensee under that Act as being the genuine reason for possessing or using the firearm, and (c) subject to such restrictions as may be imposed on the licence by or under the Firearms Act 1996. (2) The holder of a category H licence under the Firearms Act 1996 (as referred to in section 8 of that Act) issued for the genuine reason of business or employment is exempt from the requirement under the Act for a permit to possess or use a prohibited weapon referred to in clause 4 (4) (f) of Schedule 1 to the Act, but: (a) only in relation to its use in a registered pistol to which the licence applies, and (b) only in connection with that genuine reason, and (c) subject to such restrictions as may be imposed on the licence by or under the Firearms Act 1996. 72Section 4(1) of the Firearms Act states that the term "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. 73The defendant did not have a permit under the Weapons Prohibition Act to possess the magazines. He did have a Collector licence under the Firearms Act. Relevantly the genuine reasons for his holding that licence were stated thus: ... G collecting A B C D H. 74The magazines were all capable of attachment to firearms contemplated by a Category D or a Category H licence. 75Mr Pickering contrasted the differing purposes which Collector licences and Category D licences might be issued, as well as the circumstances in which and the conditions on which they might be held. By s 15 Firearms Act : 15 Category D licences-restrictions on issue The Commissioner must not issue a category D licence to any person unless: (a) the genuine reason established by the person for being issued with the licence is that of vertebrate pest animal control, and (b) in addition to establishing any such genuine reason, the person produces evidence to the Commissioner's satisfaction that there is a special need for the person to possess or use a firearm to which a licence category D applies, and (c) in the case of a person referred to in paragraph (c) of the genuine reason of vertebrate pest animal control, the person produces evidence to the Commissioner's satisfaction that any such special need cannot be met by any other means (including by the authority conferred by a category A, category B or category C licence, or by engaging the services of a professional contract shooter). 76While Category D licences are issued only for vertebrate pest control, Collector licences are issued only for collection. An applicant for a Collector licence does not have to demonstrate to the Commissioner the existence of a special need to possess and use a Category D firearm or that that need cannot be met by any other means. 77It was submitted that this distinction explained why the Parliament had exempted Category D licence holders, who had made such a demonstration, from the requirement to hold a permit to possess or use prohibited weapons capable of use with Category D firearms. 78 In written submissions it was submitted on behalf of the defendant that whether the licence issued was a Category D licence or a Collector licence permitting collection of Category D firearms did not matter. Clause 5(1) of Sch 1 Weapons Prohibition Regulation applied equally to both kinds of licences. It was pointed out that s 50AA Firearms Act permitted the holder of a Collector licence to purchase firearm parts for firearms possession of which was allowed by the licence. They included magazines.

Resolution 79It seems to me that there are fundamental differences between Category D licences and Collector licences endorsed to allow collection of Category D firearms. The former are unobtainable without proof of an otherwise unsatisfiable need for their use for the purpose expressed. There is no such requirement for a Collector licence. 80In any case, the Firearms Act states what a Category D licence is. It separately states what a Collector licence is. It nowhere states that they are the same or equivalent to one another. The evidence before the magistrate proved not that the defendant held a Category D licence but that he held a Collector licence endorsed to allow the collection of Category D firearms. Although her Honour did not state in terms that a Collector licence endorsed for Category D firearms was a Category D licence or was equivalent to it, the judgment can be understood only as stating that, for the purposes of Sch 1 cl 5 (1), the defendant was or was in the position of a holder of a Category D licence. 81In my opinion her Honour fell into error. The defendant did not hold a Category D licence. He could not bring himself within the exempting provisions of Sch 1 cl 5(1). 82I note that her Honour observed in commencing to give reasons that as the holder of a Collector licence the defendant was entitled by s 50AA Firearms Act to purchase firearm parts for Category D firearms and that magazines were firearm parts. However, her Honour did not put that circumstance forward as justifying her conclusion that the defendant qualified for the exemption under Sch1 cl 5(1). I do not think that it could and I reject what appears to be the defendant's submission to that effect. 83The pistol magazines, likewise, could not be lawfully possessed or used without a permit. All the defendant had was a Collector licence endorsed for Category H firearms. A Category H licence is issued only for the genuine reason of business or employment. An applicant for such a licence has to demonstrate a need for the possession and use of the relevant firearms and that the need cannot otherwise be met. A Collector licence endorsed for the collection for Category H firearms is not a Category H licence. The same arguments apply and the same conclusion follows. 84In my opinion her Honour erred in concluding that the defendant was exempt from the requirement to hold a permit to possess the magazines. The error was one of law. 85I make the following orders: 1.Allow the appeal; 2.Set aside the orders made by the Magistrate on 5 February 2013 at the Local Court Toronto dismissing the charges of: - (a)Possessing an unauthorised prohibited firearm, namely an AR-15 self-loading assault rifle, without a permit (H47327865 sequence 1): s 7(1) Firearms Act 1996, and (b)Possessing prohibited weapons, namely magazines, without a permit (H47327865 sequences 3-7, 10-14, 16-54): s7 (1) Weapons Prohibition Act 1998. 3.Remit the matter to the Local Court to be dealt with according to Law; 4.Order the defendant to pay the plaintiff's costs of Summons. The defendant is to have a certificate under the Suitors' Fund Act 1951.

Amendments 22 October 2013 - His Honour includes an order under Suitors' Fund Act 1951. Amended paragraphs: Cover Sheet "Decision" and Orders in [85] (4) 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: 22 October 2013