Director of Public Prosecutions (NSW) v Weinstein

Crimes (Appeal and Review) Act 2001 Firearms Act 1996 LEGISLATION CITED : Firearms Regulation 2006 Interpretation Act 1987 Pistol License Act 1927

Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Beckwith v R (1976) 135 CLR 569 Bropho v Human Rights and Equal Opportunity Commission [2002] FCA 1510; (2002) 72 ALD 321 Board of Fire Commissioners (NSW) v Ardouin (1962) 109 CLR 105 Downs Distributing Co Pty Limited v Associated Blue Star Stores Proprietary Limited (In liquidation) (1948) 76 CLR 463 CASES CITED : Director-General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242 Marshall v Benson [1970] 1 NSWLR 458 Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114 R v Adams (1935) 53 CLR 563 Waugh v Kippen (1986) 160 CLR 156

TEXTS CITED : Pearce and Geddes, Statutory Interpretation in Australia, 6th edition

PARTIES : Director of Public Prosecutions (NSW) - Plaintiff Jason Weinstein - Respondent

COUNSEL : Mr D Arnott - Plaintiff WG Roser SC and Mr S Wilkinson - Respondent

SOLICITORS : SC Kavanagh - Plaintiff Walter Madden Jenkins - Respondent

• 19 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SCHMIDT J

2010/124405 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) SYDNEY v JASON WEINSTEIN

JUDGMENT 1 HER HONOUR: By summons filed in May 2010 the plaintiff appealed a decision given by Favretto LCM on 28 January 2010. The respondent was found not guilty of a charge brought under s 39(1) (a) of the Firearms Act 1996. The plaintiff sought orders pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001, setting aside his Honour's orders that proceedings against the respondent for the offence of 'Not keep firearm safely-not prohibited firearm/pistol' be dismissed. 2 The respondent was an Inspector of the New South Wales Police Service stationed at Bourke. He was charged after his police appointments belt was found on the floor of the rear passenger area of a police vehicle, parked in the secure compound area of the Bourke Police Station. The belt contained full appointments, including a loaded firearm, spare ammunition, OC spray and handcuffs. 3 There was no issue between the parties that the respondent had left the firearm in the police vehicle, while on duty on the afternoon of 11 April 2009 and that he had failed to secure the firearm in the police station, when he later went off duty, as applicable policy required. There was no written policy in evidence, but oral evidence as to what the policy required was unchallenged. 4 The Firearms Act and Regulations Section 3 Principles and objects of Act provides: (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.

5 Section s 39 provides: 39 General requirement (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case. (2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section. 6 The terms 'all reasonable precautions' and 'safe keeping' are not defined in the Firearms Act. There are also no regulations which specify what reasonable precautions are, for the purpose of s 39. 7 The Firearms Act and the regulations deal with police officers in various ways. Section 6 relevantly provides:

6 Application of Act (cf 1989 Act s 4, 1990 Reg cl 96A) (1) This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities (except as provided otherwise by this section). (2) A person is not guilty of an offence under this Act or the regulations only because of something done by the person while acting in the ordinary course of the person's duties: (a) as a police officer (or as a student police officer enrolled in the New South Wales Police Academy), or ... 8 The Firearms Regulation 2006 provides in regulation 113: 113 Exemption relating to off-duty police officers (cf 1997 cl 110) (1) Any police officer who is in possession of a service firearm while the police officer is not on duty as a police officer is exempt from the requirement under the Act to be authorised by a licence or permit to possess the firearm during any such period. (2) The exemption under this clause is subject to the police officer complying with such guidelines as may be issued by the Commissioner with respect to the off-duty possession of service firearms by police officers. (3) In this clause: service firearm means a firearm issued to a police officer in his or her capacity as a police officer. 9 There is no regulation dealing with the position of on duty police officers.

The decision appealed from 10 After outlining the evidence, Favretto LCM identified the issues before the Court as:

"(a) As a preliminary issue is the accused entitled to the benefit of s6 (2) of the Firearms Act 1996 which exempts him from liability if he was acting in the ordinary course of his duties as a police officer;

(b) If the accused is not entitled to the benefit of s6 (2) does the evidence establish the commission of the offence?" 11 His Honour observed that it was the plaintiff's case that the Court should first consider whether the offence charged had been committed, before determining the application of s 6(2), arguing that only when the offence is made out, is consideration of the exemption enlivened. He noted that the respondent's case was that if the evidence established that the respondent had been acting in the ordinary course of his duties, then the exemption was enlivened and the Court need not and should not proceed further. 12 His Honour determined that he would deal with 'the preliminary issue of whether s 6(2)(a) has been enlivened' (at [8]). He turned to consider the history of predecessor legislation, before observing that:

"... the crucial issue is whether, when the accused left the firearm in the rear passenger area of Bourke 16 and later went off duty, he was acting in the ordinary course of his duties. For the purposes of s6 (2) the issue is not what he did or failed to do with the firearm but whether what he did or failed to do was in the ordinary course of his duties, even if it were a breach of the Act. The clear and evident purpose of s6 (2) is to exempt a police officer from liability from the provisions of the Act even where it constitutes a breach of the Act, otherwise the words "is not guilty" would be otiose. It follows that even if what a police officer does is a breach of his duties, then, provided he did so while acting in the ordinary course of his duties s6(2) exempts liability. That is implicit from the judgment of Mason JA at 467.10-18 (as he then was - with Holmes JA agreeing) in Marshall v Benson [1970] 1 NSWR 458 the only decision upon the interpretation of the exemption the Court could find. While the court there found as a matter of fact that the defendant did not possess the pistols at the relevant time as charged on behalf of the Crown (that is not in the performance of his duties) it is implicit that while he had possession of them in his locker and at least before he took the pistols home that he was acting in the performance of his duties." 13 His Honour noted the plaintiff's submission as:

"... police officers are obliged to act lawfully unless something within the ambit of their duty necessitates them to depart from that. Section 6 requires a connection between their duty and the departure from the law in order to excuse it. It is not sufficient to say that he was acting in the ordinary course of duties up until the time he left the appointments belt in the vehicle and in the time after it. The essence of the DPP's argument in oral submissions is that the accused was not acting in the ordinary course of his duties from the time he got out of Bourke 16 and completing his shift. The ordinary course of his duties included unloading and storing the firearm as required by the Commissioner's policy."

14 His Honour concluded that the respondent was not guilty of the offence charged, because he was acting in the ordinary course of his duties when he left the firearm in the vehicle when he went off duty, observing that the problem with the plaintiff's proposition:

"is that it ignores the purpose of s 6(2) is to exempt liability where it would be a failure to act lawfully (whether that be a breach of duty or not). Furthermore, the evidence led by the DPP includes the procedures by way of the Commissioner's policy of what police officers must do with their firearms when coming and coming off duty."

The Firearms Act 15 The Firearms Act must be construed in the light of its objects, as specified in s 3. The Act provides in s 6(1) that it applies to the Crown. It follows that s 39 requires that when the Crown in any of its emanations possesses a firearm, then 'all reasonable precautions' necessary to ensure the matters specified in s 39(a) to (c), are taken. That obligation is ameliorated by s 6(2), which specifies circumstances in which a breach of s 39, (or other offence provisions), will not result in an offence being committed. In the case of police officers, they will not be guilty of an offence under the Act or the regulations, 'only because of something they have done while acting in the ordinary course of' their duties' as a police officer or student police officer enrolled in the Academy (s 6(2)(a).) 16 It follows that when considering a charge brought against a police officer under s 39, a number of questions arise for determination:

Firstly, whether or not there has been a breach of the obligation imposed by s 39. That will require a consideration of whether the police officer was on duty, or off duty and whether or not, in the particular circumstances, 'all reasonable precautions' necessary to ensure the matters specified in s 39(a) to (c) were taken.

If the police officer was rostered off duty, the provisions of Regulation 113, which provide a separate exemption for police officers, may arise for consideration, even though that exemption relates only to the requirements imposed by the Act in relation to a license or permit to possess a firearm (see Part 2.) This regulation obliges the off duty police officer to comply with guidelines issued by the Commissioner, as a condition of the exemption. It follows that when considering a breach of s 39, such guidelines may be relevant to a consideration of whether 'all reasonable precautions' were taken by the off duty officer in the circumstances.

If the police officer was on duty, the policy which requires police officers to carry and secure their firearms will need to be considered in determining whether or not 'all reasonable precautions' were taken by the officer in the circumstances.

If it is found that the police officer did not breach the s 39 obligation, s 6(2)(a) does not arise for consideration, there having been no offence committed of which the officer could be found guilty, but for the operation of the exemption s 6(2)(a) provides. That will be the end of the matter.

If there was a breach, s 6(2)(a) arises for consideration.

If the breach occurred ' only because of something done' by the officer, s 6(2)(a) may be engaged. If the breach resulted from something else, as well as from what the officer did, for example if there was a situation where the breach occurred as the result of an officer receiving and accepting a bribe, then the s 6(2)(a) exemption does not operate.

If the breach occurred ' only because of something done' by the officer, consideration must then be given to whether or not the police officer was 'acting in the ordinary course of' his or her duties, when doing the thing which resulted in the breach.

Again, there are two possible situations in which this could arise. The first where the police officer was rostered on duty at the time of the breach. The second, where the officer was off duty, but nevertheless had call to respond to some matter as a part of the officer's duty as a police officer, rather than as a private citizen.

If it is found that the police officer was not acting in the ordinary course of duty when doing the thing which resulted in the breach of s 39, the s 6(2)(a) exemption does not apply.

It is only if it is found that the breach occurred ' only because of something done' by the officer and that the police officer was then 'acting in the ordinary course' of duty, that the s 6(2)(a) exemption operates.

Did the Magistrate err in concluding that the application of s 6(2) was a 'preliminary issue'? 17 There was no issue that the respondent left his firearm in a police vehicle after he returned to Bourke police station where he continued working, until his shift ended. When he went off shift, he did not secure his firearm in the station's gun room. The vehicle was left locked and parked in the secure compound at the police station. The respondent was not the only officer who used the vehicle. Later that night the vehicle was driven by another police officer, who did not notice the firearm which had been left behind. The vehicle was parked for a time at Brewarrina police station, in an unsecured area. The firearm was not discovered until the following morning, after it had been returned to the Bourke police station, when other police officers had call to use the vehicle. The firearm was then secured and later returned to the respondent, when he commenced his next shift, later that day. 18 The evidence showed that the belts and accoutrements, which weigh between 1.5 and 2 kg, are awkward and uncomfortable to wear while driving and that consequently, officers remove them, when driving long distances. There was no suggestion that this involved any breach of the Firearms Act. 19 There was no issue between the parties that the applicable policy required that the respondent remove his firearm from the police vehicle when he left the vehicle and that he lock his firearm in the gun safe room at the police station, when he finished his shift. Whether complying with that policy was a 'reasonable precaution' which s 39 required be taken in the circumstances, was not determined. 20 The plaintiff's case was that his Honour erred in not considering whether s 39 had been breached, because it was only if there was such a breach, that the s 6(2) exemption arose for consideration. I am satisfied that the case, so advanced, must be accepted. 21 Contrary to the respondent's submissions, whether the provisions of s 6(2) were enlivened in the particular circumstances was not a 'preliminary' issue. In so far as his Honour accepted that approach, he erred. Section 6(2)(a) provides for circumstances in which a police officer will not be guilty of an offence, notwithstanding a breach of the requirements of an offence provision such as s 39. It may be, that despite what he had earlier said, his Honour did in fact come to the view that there had been a breach of s 39, which required that all reasonable precautions be taken to ensure the safe keeping of the firearm. His Honour did not deal with the contest on the evidence, but did observe at [12] that:

"When coming off duty, police officers are required as part of their duty to render the firearm safe and then store it in the gun safe room. It follows, that the accused was acting in the ordinary course of his duties when he returned to Bourke Police Station and failed to remove his firearm from Bourke 16 and properly render it safe and store it in the gun safe room." 22 If that view of his Honour's decision be correct, his Honour fell into further error. He was obliged to clearly state and give reasons for his conclusion that there had been a breach of s 39 (see Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, where the Court of Appeal explained the importance of reasons, in the context of a judicial decision maker by reference to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257 (Kirby P), 268-269 (Mahoney JA) and 278-279 (McHugh JA)).

Did his Honour otherwise err in construing s 6(2)? 23 His Honour came to the conclusion that the respondent was acting in the ordinary course of his duties when he failed to remove his firearm from the vehicle and to later store it in the gun safe room at the police station. In reaching this conclusion his Honour reasoned that:

"For the purpose of s6 (2) the issue is not what he did or failed to do with the firearm but whether what he did or failed to do was in the ordinarily course of his duties . . ." 24 While I am of the view that his Honour did not err in the conclusion reached that the respondent was acting in the ordinary course of his duties, a matter to which I will return, I am satisfied that the plaintiff's argument that his Honour fell into error in so construing the section, must be accepted. 25 Police officers are required to carry and use firearms in the ordinary course of their duties. Policies are directed to how they must be secured and stored. If a breach of s 39 has occurred, what the police officer did or failed to do with the firearm, is a crucial consideration in determining whether s 6(2) operated in the particular circumstances. That requires a consideration of whether the breach occurred 'because of something done' by the police officer and whether the officer was acting in the ordinary course of his or her duty, when the breach occurred. Necessarily both of these questions requires a consideration of what was done, or not done, with the firearm. 26 It is also apparent that His Honour misunderstood the plaintiff's case. He observed that:

"The essence of the DPP's argument in oral submissions is that the accused was not acting in the ordinary course of his duties from the time that he got out of Bourke 16 and completing his shift." 27 The plaintiff's case was rather that when he left the firearm in the police vehicle and later failed to secure it in the gun room, the respondent was not acting in 'the ordinary course' of his duties, in dealing with the firearm. He was not authorised to deal with the firearm as he did, with the result that the departure from the applicable policy took him outside the exemption provided by s 6(2). 28 The plaintiff argued that s 6(2) excused a police officer not securing a firearm when faced with competing duties, one of which could not be fulfilled without breaching the other. It did not excuse a police officer who simply forgot to secure a firearm, as required by applicable policy. Section 6(2) only operated if the evidence showed that the breach of the Act occurred 'only because' of something done by an officer while acting in the ordinary course of duties. 29 I am satisfied that the plaintiff's case, so advanced, may not be accepted. 30 The phrase 'acting in the ordinary course of the person's duties' is not defined. It must be given its ordinary meaning, having regard to the context in which it is used. The consequences of the competing interpretations must also be considered, as must the purpose of the legislation (see s 33 of the Interpretation Act 1987 and the discussion at [2.20] and [2.34] -[2.36] in Pearce and Geddes Statutory Interpretation in Australia, 6th edition). 31 In this case the evidence showed that police officers are required to carry firearms when performing their duties; that they take off their heavy belts when driving long distances; that they are required to secure their firearms when they alight from the vehicle; and when going off shift, they must secure their firearms in the gun room. All of this was what the ordinary course of a police officer's duties required. The respondent erred when he left his firearm behind in the vehicle and later failed to leave the firearm in the gunroom. The issue lying between the parties was whether or not these errors took the respondent outside the ordinary course of a police officer's duties. 32 On appeal the parties each relied on what was observed in Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6, to further their arguments as to the meaning of the phrase here in issue. There the meaning of the phrase 'in the performance of any duty as an officer' was being considered. Dixon CJ observed:

"But, in any case, I think that the words "except in the performance of any duty as an officer" ought to receive a very wide interpretation. The word "duty" there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word "function". The exception governs all that is incidental to the carrying out of what is commonly called "the duties of an officer's employment"; that is to say, the functions and proper actions which his employment authorizes."

33 For the plaintiff it was argued that it followed that in order to be 'acting in the ordinary course of the person's duties', the police officer had to be authorised to carry out his functions in the manner in which they were carried out. Support for this approach was drawn from Downs Distributing Co Pty Limited v Associated Blue Star Stores Proprietary Limited (In liquidation) (1948) 76 CLR 463, where the phrase 'ordinary course of business' was being considered. There Rich J observed at 476-7:

"This last expression it was said "does not require an investigation of the course pursued in any particular trade or vocation and it does not refer to what is normal or usual in the business of the debtor or that of the creditor." It is an additional requirement and is cumulative upon good faith and valuable consideration. It is, therefore, not so much a question of fairness and absence of symptoms of bankruptcy as of the everyday usual or normal character of the transaction. The provision does not require that the transaction shall be in the course of any particular trade, vocation or business. It speaks of the course of business in general. But it does suppose that according to the ordinary and common flow of transactions in affairs of business there is a course, an ordinary course. It means that the transaction must fall into place as part of the undistinguished common flow of business done, that it should form part of the ordinary course of business as carried on, calling for no remark and arising out of no special or particular situation.

The evidence in the case supports the findings that the transaction was not made in good faith or in the ordinary course of business."

34 For the respondent it was argued that it followed from Canadian Pacific Tobacco Co Ltd that a wide interpretation was also required to be given to the phrase 'acting in the ordinary course of the person's duties'. That incorporated the performance of any function undertaken by police officers in the ordinary course, whether well, or poorly performed. 35 The respondent argued that a situation such as the one which here arose for consideration was one to which s 6(2)(a) was directed. The exemption was designed to shelter a police officer from the consequences of a breach of the obligation imposed by s 39, when the breach occurred during the course of the officer's ordinary duties, whether those duties were performed well or not, or in accordance with applicable policy, or not. That conclusion was reinforced by a consideration of Regulation 113, which obliged off duty police officers to comply with 'such guidelines as may be issued by the Commissioner with respect to the off-duty possession of service firearms by police officers, as a condition of the exemption there provided. That the legislature had imposed no obligation on police officers to comply with applicable guidelines, in order that the s 6(2)(a) could be availed of, reinforced the breadth of the exemption intended to be provided by that provision. 36 I am satisfied that the approach to the construction of s 6(2) urged for the respondent must be accepted, at least to a point. 37 This is because of the approach which various rules of statutory construction require be adopted when the meaning of the phrase here in question is being considered. If the Firearms Act is regarded as beneficial legislation, it ought to be given a liberal interpretation (see discussion at [9.1] - [9.4] in Pearce and Geddes, Statutory Interpretation in Australia, 6th edition). Exceptions like s 6(2) must, however, be construed carefully, in order that the balance sought to be achieved in the legislation is not destroyed (see Bropho v Human Rights and Equal Opportunity Commission [2002] FCA 1510; (2002) 72 ALD 321). In the case of penal statutes, ordinary rules of construction must be followed, but in the event of any remaining ambiguity, they must be resolved in favour of a defendant (see R v Adams (1935) 53 CLR 563 at 567-8; Beckwith v R (1976) 135 CLR 569 at 576; and Director-General Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242 at [24] - [27). 38 If the provision made in s 6(2) is viewed as a protective or immunity provision, then considerations of the kind discussed in Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114 arise for consideration. There reference was made to the approach discussed in Board of Fire Commissioners (NSW) v Ardouin (1962) 109 CLR 105 at 109-110 and Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575, which requires a narrow construction of statutory exemptions for government bodies:

[4]: "This should be done both by looking at the subsection in the context of the Administration Act as a whole and on the footing that the immunity conferred by such a provision should not 'be carried further than a jealous interpretation will allow', to repeat a statement by Kitto J in [ Ardouin ]."

39 In Waugh v Kippen (1986) 160 CLR 156 a conflict between rules of statutory construction in relation to beneficial legislation and penal provisions was discussed at 164, where it was observed :

"In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v National Coal Board [1951] AC 639, at p 650, per Lord Porter; John Summers & Son Ltd. v Frost [1955] AC 740, at p 751, per Viscount Simonds; McCarthy v Coldair Ltd. [1951] 2 TLR 1226, at pp. 1227-1228, per Denning LJ In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v Henry Lane Pty. Ltd .(1967) 116 CLR 397), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action."

40 It is in this context that the issue here lying between the parties as to the meaning of the phrase in question must be resolved. 41 There is no suggestion that anything which the respondent did involved a departure from the ordinary course of his duties, other than leaving his firearm in the vehicle and then failing to secure it in the gun room, when he went off shift. This was the 'something done' to which s 6(2) directs attention. In my view, that these errors, whether inadvertent or negligent, involved the respondent acting outside the ordinary course of his duties, so that exemption did not operate, may not be accepted. The phrase, 'acting in the ordinary course of a persons' duties' must be understood as encompassing the possibility of human error in performing a duty in the ordinary course. 42 This conclusion is reinforced by a consideration of the position of off duty police officers. In their case, the applicable guidelines are given regulatory force, the regulation 113 exemption in relation to licensing and permit obligations being subject to adherence to those guidelines. That approach has not been adopted in the case of the s 6(2)(a) exemption. 43 The reason for the differing approaches adopted to these exemptions can be understood by a consideration of a number of examples. 44 Departures from 'the ordinary course' of a police officer's duties when using a firearm can easily be envisaged. A police officer using a firearm to shoot a personal rival with whom the officer is having a dispute, is an obvious and extreme example of use of a firearm while not acting in the ordinary course of duty, albeit no doubt an extremely unlikely one. This is not a mere error committed in the ordinary course of duty, but a deliberate act entirely inconsistent with that duty. Even on the respondent's approach, such a situation would take the police officer's use of the firearm outside the ordinary course of duty. 45 As the plaintiff argued, departures from the policy which regulates carrying and securing firearms which would not take a police officer outside the ordinary course of duty, can also readily be envisaged. In some cases, while deliberate, they will not involve any error. Where a police officer is faced with two conflicting obligations, for example when called on to dive into a river to assist people trapped in a car, necessitating a firearm being left unsecured on a river bank, the resulting breach of the firearm policy could not result in the officer acting outside the ordinary course of duty. 46 Likewise, an error of judgment made when returning fire at an assailant who is shooting at a number of officers, which results in an officer shooting another police officer, could not result in a situation where the officer would no longer be acting in the ordinary course of duty, notwithstanding the serious consequences of the error made. An error of this kind could be inadvertent, or could even involve negligence. 47 Similarly, it seems to me, an error or oversight in securing a firearm after alighting from a police vehicle, may not result in a situation where the officer is no longer acting in the ordinary course of the officer's duties. The evidence does not reveal how the errors here in question came to become made. It may well be that failures like the respondent's involve a very serious breach of the applicable policy, which may be dealt with in various ways, but they do not take a police officer beyond the ordinary course of duty. 48 There may, of course, be other factual situations which could give rise to quite different conclusions. It could be, for example, that a police officer who deliberately refused to adhere to required policy in relation to the carrying and securing of firearms, could also be found no longer to be acting in the ordinary course of duty. Such a deliberate decision, like a deliberate decision to use a firearm to shoot a rival, while of a different character, may still lead to the same result, so far as the question of whether or not the officer is still acting in the ordinary course of duty, once that decision has been made, is concerned. 49 There is no suggestion that this was such a case. To the contrary, the evidence suggests there had been no history of breaches of the firearm policy and that this was a one-off error. 50 The policy requiring police officers to secure their firearms is no doubt directed at the same considerations as those which underpin the objects of the Firearms Act, namely, to ensure that the firearms which police officers are required to carry in the performance of their duties are safely and securely carried and stored. That policy is unquestionably an important one, especially given the statutory exemption for police officers who breach s 39 during the ordinary course of their duties. Undoubtedly a failure to adhere to the policy may be enforced by the Police Commissioner in various ways. Assuming here that the evidence established a breach of s 39, in the circumstances it is difficult to see that it is one which could result in a conviction for an offence under s 39, given the s 6(2)(a) exemption.

The legislative history 51 It is unnecessary to give detailed consideration to the arguments which the parties advanced as to the legislative history. His Honour dealt briefly with that history, finding 'implicit' support for the conclusion which he had reached in the decision given in Marshall v Benson [1970] 1 NSWLR 458 at 467 per Mason JA. There being considered was a police officer who was charged with an offence under the Pistol License Act 1927-63, of possession of three pistols without a license. The case turned on whether or not the officer had 'possession' of the pistols at the relevant time, it being concluded on the evidence that his removal of the pistols from the police station where he had earlier stored them, showed that he no longer intended to hold the pistols for the benefit of the Crown and that they had then come into his own possession. At 467, Mason JA found that the facts pointed powerfully to the probability that the officer was then no longer holding the pistols for the benefit of the Crown, with the result that the Magistrate erred in concluding that the officer had no case to answer. 52 His Honour took the view at [11] that it was implicit that at least before he took the pistols home, the officer in question in Marshall was acting in the performance of his duties. As the plaintiff submitted, the case was not concerned with this question at all, but rather with the question of whether the pistols ever came into the officer's 'possession', or whether possession remained with the Crown. The evidence was that the pistols originally came into the officer's hands during the course of his duty; that he failed to hand them to the ballistics section after 21 days, as was customary; that he kept them in a locker instead; and that eventually, he took them home. The case turned on the meaning of the word 'possession' and whether such possession at the time to which the charge was directed, had been established on the evidence. 53 As the plaintiff submitted, the case throws no light on what here arose for determination.

Orders 54 For the reasons given, I make the following orders:

2. The order made by Favretto LCM on 28 January 2010 dismissing proceedings against the Defendant for the offence of "Not keep firearm safely-not prohibited firearm/pistol" pursuant to Section 39(1)(a) of the Firearms Act 1996 be set aside.

3. The matter be remitted to the Local Court to be dealt with according to law.

4. The respondent is to pay the plaintiff's costs of and incidental to the summons.

11/10/2010 - word 'duty' was omitted in point 8 - Paragraph(s) 16

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