Director of Public Prosecutions (NSW) v Weinstein

Director of Public Prosecutions (NSW) v Weinstein - [2010] NSWSC 1123 - NSWSC 2010 case summary — Zoe

[35]

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:

[39]

"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:

[44]

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:

[48]

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.

[49]

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.

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Cases Cited (17)