Hardman v Director of Public Prosecutions

Reported Decision : 57 NSWLR 390 138 A Crim R 560

CITATION : Hardman v Director of Public Prosecutions (NSW) [2003] NSWCA 130 revised - 8/09/2003 HEARING DATE(S) : 14/05/03 JUDGMENT DATE : 29 July 2003

JUDGMENT OF : Meagher JA at 1; Tobias JA at 13; McColl JA at 24 DECISION : 1. Appeal allowed; 2. The orders made by Simpson J on 14 August 2002 be set aside; 3. Respondent to pay the appellant's costs of the appeal and the hearing before Simpson J.

CATCHWORDS : Definition of "public place" - Crimes Act 1900 (NSW) ss. 8, 93G - Loaded firearms - Whether loaded firearm found in enclosed motor vehicle in a "public place". Crimes Act 1900 (NSW) Crimes (Firearms) Amendment Act 1989 (NSW) Firearms Act 1936 (NSW) Firearms and Dangerous Weapons Act 1973 (NSW) Firearms and Offensive Weapons Act 1979 (Qld) LEGISLATION CITED : Interpretation Act 1987 (NSW) Justices Act 1902 (NSW) Offences in Public Places Act 1979 (NSW) Police Offences Act 1901 (NSW) Summary Offences Act 1966 (Vic) Summary Offences Act 1987 (NSW) Supreme Court Act 1970 (NSW) Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 480 Beckwith v R (1976) 135 CLR 569 Bropho v Western Australia (1990) 171 CLR 1 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Limited (1995) 184 CLR 453 Cooper Brooks (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 Forte v Sweeney (1982) Qd R 127 Geaghan v D'Aubert [2002]36 MVR 542 Hutt v R [1978] 82 D.L.R. (3d) 95 In The Appeal of Camp [1975] 1 NSWLR 452 K & S Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309 The King v Adams (1935) 53 CLR 563 The King v Wilson; ex parte Kisch (1934) 52 CLR 234 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 CASES CITED : Krakouer v The Queen (1998) 194 CLR 202 Mansfield v Kelly (1972) VR 744 McKenzie v Stratton (1971) VR 848 Miller v Hunt (unreported, Supreme Court of Victoria, 20 February 1968) Murphy v Farmer (1988) 175 CLR 19 Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 R v Sloan (1994) 18 O R (3d) 143, Ont. Rep 381 R v Wise 67 C.C.C. (2d) 231, 1982 C.C.C. LEXIS 6052 Risk v Northern Territory of Australia and Another Scott v Cawsey (1907) 5 CLR 132 Smith v Corrective Services (1980) 147 CLR 134 Sweeney v Fitzhardinge (1906) 4 CLR 716 Taikato v R (1996) 186 CLR 454 Walker v Crawshaw [1924] NZLR 93 Ward v Marsh [1959] VR 25 Jamie Ronald Hardman PARTIES : v Director of Public Prosecutions (NSW) FILE NUMBER(S) : CA CA 41045 of 2002 COUNSEL : A: G J Sundstrom R: Cogswell SC & J Quilter SOLICITORS : A: Woodgate Morgan (by their city agents Pigott Stinson Ratner Thom) R: NSW DPP

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC 11704/02 FILE NUMBER(S) : LOWER COURT Simpson J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Tuesday, 29 July 2003 JAMIE RONALD HARDMAN v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

FACTS In September 2001, pursuant to s. 93G of the Crimes Act 1900, the appellant was charged by information with the possession of a loaded firearm in a public place. A hearing of the charge was conducted in the Moree Local Court in March 2002. The learned magistrate dismissed the information, holding that the prosecution had failed to establish a prima facie case.

The respondent appealed to the Supreme Court. The appeal was heard by Simpson J, who reversed the magistrate's decision. The appeal to this Court was brought from the decision of Simpson J.

HELD per McColl JA (Tobias JA agreeing)

1. In order to determine the construction of the expression "in a public place" in s 93G(1)(a)(i) of the Crimes Act 1900 (NSW) it is necessary to construe the section so that it is consistent with the language and purpose of all the provisions of the statute and to proceed on the assumption that its provisions are intended to give effect to harmonious goals.
2. In approaching the exercise of construction the Court may also have regard to extrinsic materials, including the legislative history and antecedent circumstances.
3. Where a provision is inserted by amendment it is necessary to give effect to the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole.
4. Sections 8 and 357(2) of the Crimes Act 1900 (NSW) constituted legislative recognition of the proposition that there is a distinction between being in a public place per se and being in a motor vehicle which is in a public place.
5. Possession of a loaded firearm in a motor vehicle on a public road does not constitute possession of that firearm in a public place for the purposes of s 93G(1)(a)(i) of the Crimes Act 1900 (NSW).

HELD per Meagher JA (dissenting)

1. Section 8 of the Crimes Act 1900 does not set out the core meaning of the expression "public place". Its purpose is to indicate when the scope of the application of that expression can be extended.

2. For some purposes a loaded firearm held inside a vehicle is not "possessed" in a "public" place.

3. Whether or not the appellant's motor car taken in isolation can be considered a "public" place, it was situated at the relevant time in a public road, which was admittedly a "public" place, and where the car was there also was the appellant.

4. Section 357(2) of the Crimes Act 1900 does not support the conclusion that, in s. 93G, if a firearm is in a motor vehicle it is not in a "public" place. Section 357(2) implies that a firearm may be found in a multiplicity of situations, all of them public. It does not warrant the conclusion that, for the purposes of s.357(2), some possession in public places may nonetheless be private.

1. Appeal allowed;
2. The orders made by Simpson J on 14 August 2002 be set aside;
3. Respondent to pay the appellant's costs of the appeal and the hearing before Simpson J.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Tuesday, 29 July 2003 JAMIE RONALD HARDMAN v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

1 MEAGHER JA: This is an appeal from a judgment of Simpson J relating to s. 93G of the Crimes Act 1900. On 15 September 2001 the appellant, Mr Hardman, was charged by information with having in his possession, in a public place, a loaded firearm, contrary to that section. A hearing of the charge was conducted in the Moree Local Court on 12 March 2002. The learned Magistrate dismissed the information, holding that the prosecution had failed to establish a prima facie case. This is an appeal from that decision.

2 The evidence of the police officers was not in dispute. They stated that shortly after midnight on the morning of 15 September 2001 they were patrolling an area called Watercourse Road, near Morialta Junction, Moree. They encountered Mr Hardman's vehicle, which he was then driving. They required him to stop, and asked him to produce his firearm for inspection. Mr Hardman passed his rifle to them.

3 The learned magistrate gave ex tempore reasons for his conclusion that the prosecution had failed to make out a prima facie case. The main reason was that Mr Hardman had not been shown to have possessed his firearm in a "public" place. It was not, of course, disputed that Watercourse Road was a "public" place, but the fact that the rifle was in a vehicle was held to be sufficient to demonstrate that it was not in a "public" place.

4 Reference was made to s. 8 of the Crimes Act 1900, which, under the rubric of "public place", says as follows:

"8. 'Public place', etc. Where, by this or any other Act, ... any offence, ... in a public place ... is made punishable ... the place shall be deemed public for the purposes of the enactment or taken to be otherwise within its meaning if the same, although a vessel or vehicle only, or a room, or field, or place, ordinarily private, was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise."

7 Maybe for some purposes a loaded firearm held inside a vehicle is not "possessed" in a "public" place. For example, if a man who lives in a caravan which is permanently situated in a caravan park has a firearm in his caravan, arguably he may be said not to possess it in a "public" place, even if the land on which the caravan stands is itself a public place. In these circumstances, the firearm could possibly be said to be sufficiently insulated from contact with the public to be said not to be possessed in a "public" place. One will have to wait until that case arises. If and when it does arise, perhaps the scope of s. 8 will be relevant. But that has nothing to do with the present case.

8 Whether or not Mr Hardman's motor car taken in isolation can be considered a "public" place - and, unlike her Honour, I must confess I can see no reason why it should be - it was situated at the relevant time in Watercourse Road, which was admittedly a "public" place, and where the car was there also was the appellant.

9 A similar conclusion has been reached in interstate cases dealing with the same problem: see McKenzie v Stretton (1971) VR 848, Mansfield v Kelly (1972) VR 744 and Forte v Sweeney (1982) Qd R 127. Whilst each case deals with legislation which is different from the New South Wales legislation, it is sufficiently in point to afford useful guidance; this is particularly so of the Queensland decision, where the legislation approximates to the New South Wales legislation.

10 All these cases demonstrate that the provisions of s. 8 are simply irrelevant in the present case. That section tells us when the expression "public place" can be extended, not what is the core meaning of that expression.

11 On the hearing of the appeal, but not on the hearing before her Honour, our attention was directed to s. 357 (2) of the Crimes Act, which is in the following form:

"(2) If a member of the police force suspects, on reasonable grounds, that a dangerous article is being or has been used in the commission of an offence to which this section applies and that it is in the possession of any person in a public place or is in any vehicle, vessel, aircraft, package or receptacle which is in a public place and is in the possession or under the control of any person, the member may, without warrant:

(a) detain and search the person and any such vehicle, vessel, aircraft, package or receptacle, and

(b) seize and detain any dangerous article found as a result of the search."

I am of the opinion that this provision makes no difference. It does not support a conclusion that, in s. 93G, if a firearm is in a motor vehicle it is not in a "public" place. The section implies that a firearm may be found in a multiplicity of situations, all of them public. It does not warrant the conclusion that, for the purposes of the section, some possession in public places may nonetheless be private.

13 TOBIAS JA: I have had the advantage of reading in draft the judgment of McColl JA. I agree with the orders proposed by her Honour substantially for the reasons she has given. I content myself with a few additional observations.

14 It is clear from an analysis of the provision of s 93G(1) of the Crimes Act that it deals with four situations. The first is where a person possesses a loaded firearm in a public place. The second is where a person possesses a loaded firearm in any other place so as to endanger the life of another person. The third is where a person fires a firearm in or near a public place and the fourth is where a person carries or fires a firearm in a manner likely to, inter alia, endanger the safety of himself or others.

15 In my opinion, it is apparent from this analysis of the provision that its primary purpose or object is to protect members of the public in circumstances where the possession or firing of a loaded firearm is likely to endanger the life or bodily integrity of others. Thus, s 93G(1)(a)(ii) makes it an offence for a person to possess a loaded firearm in any non-public place so as to endanger the life of another person. Section 93(G)(1)(b) assumes that a person will be endangered if a firearm is fired in or near a public place: the firing of a firearm near a public place is obviously likely to endanger a person within that place so that it matters not that the person charged is not in a public place or that the firearm is not fired in a public place. Section 93G(1)(c) does not require the person charged to be in any particular location, whether public or not, as it assumes that a firearm is either carried or fired in a manner that is likely to endanger third parties.

16 In this context, I am of the view that s 93G(1)(a)(i) requires that the person charged with possession of a loaded firearm is in a public place in the sense that his presence therein in those circumstances is, of its very nature, likely to endanger persons within that place. In other words, the provision assumes that others will be endangered by the mere fact that the person charged possesses a loaded firearm in the public place.

17 In the foregoing circumstances, I am of the opinion that the purpose or object of the provision in question is not achieved where the person charged is in possession of a loaded firearm not in the public place itself but in an enclosed motor vehicle which stands in a public place. It is one thing to be in possession of a loaded firearm within the confines of such a motor vehicle standing in a public place: it is quite another to be in possession of such a firearm when standing in a public place outside the confines of such a vehicle. Accordingly, I would construe s 93G(1)(a)(i) as requiring the person charged to be directly within the public place rather than sheltered therefrom by being, at the time of the offence, located in an enclosed motor vehicle or some other form of enclosure.

18 I have referred in the previous paragraph to an enclosed motor vehicle. I do so for two reasons. The first is that I am conscious of the reservation expressed by Simpson J in paragraph 7 of her judgment that one must avoid an interpretation whereby the same place may be a public place for one purpose but not for another.

19 The second is that it cannot be that in no circumstances can a person be in possession of a loaded firearm in a public place where he or she is wholly located in a vehicle of any description. Whether or not that person is in a public place in such circumstances is a question of fact and will depend on the type and nature of the vehicle in which he or she is located. Thus, if the person is astride a bicycle or a motorbike upon a public road he may well be in a public place. On the other hand where, as in the present case, the appellant was possessed of a loaded firearm in the enclosed cabin of a Toyota Landcruiser Tabletop, then in my opinion he was not relevantly in a public place and the learned magistrate was correct in so finding.

20 I would also observe that it would not be foreign to the Crimes Act and to the application of s 93G(1)(a)(i) to particular facts for a distinction to be drawn between a "public place" and an enclosed vehicle which is in a public place. Section 357(2) of the Act which is extracted in [106] of the judgment of McColl JA draws that distinction with clarity and in a context not dissimilar to that the subject of s 93G. Further, although it has no direct application to the present case, s 8 of the Crimes Act contemplates or assumes a difference between a public place on the one hand and, inter alia, a vehicle on the other. No doubt it might be said that s 8 assumes that the vehicle referred to therein is not in a public place for it deems a vehicle which is a "place" to be a "public place" if the conditions referred to in the provision are satisfied. It thus extends what would otherwise be a "public place" to places (including vehicles) which would not ordinarily be public. However, in my opinion s 8 is consistent with s 357(2) in drawing or recognising a distinction between a public place on the one hand and, inter alia, a vehicle on the other even where that vehicle is in a public place.

21 I think it must be assumed that the draftsman of s 93G was aware of s 8 at the time the former was inserted into the Crimes Act. He or she must therefore have known that a person in possession of a loaded firearm within a motor vehicle such as a bus (being a vehicle used for a public purpose) travelling along a public road would be guilty of an offence against s 93G(1)(a)(i) by virtue of the deeming provisions of s 8. This would accord with the purpose or object of s 93G referred to in [15] above. This combined operation of ss 8 and 93G in achieving that purpose or object lends support to the construction of s 93G(1)(a)(i) which I and McColl JA favour.

22 The respondent relied upon the trilogy of cases referred to in [38] of McColl JA's judgment. As her Honour recognised each case dealt with legislation different from that with which we are concerned in the present case. It is, however, correct that the decision in Forte v Sweeney concerns legislation not remarkably different to the present in so far as the definition of "public place" in s 7 of the Firearms and Offensive Weapons Act 1979 is not dissimilar to s 8 of the Act. Nevertheless, there is no suggestion in the judgment in that case that the Firearms and Offensive Weapons Act included a provision such as s 357(2) of the Crimes Act or that it had the legislative history of s 93G so carefully analysed by McColl JA. Although there are some similarities between s 93G of the Act and s 75 of the Firearms and Offensive Weapons Act pursuant to which the charge in Forte was preferred, nonetheless I consider an approach in this case to the construction of s 93G which is different to that adopted by the court in Forte to be justified.

23 The foregoing reasons hopefully further support my agreement with the orders proposed by McColl JA.

24 McCOLL JA: The issue in this case is whether the appellant who had a loaded firearm in a motor vehicle on a public road relevantly possessed that firearm in a public place contrary to s 93G(1)(a)(i) of the Crimes Act 1900 (NSW) ("the Crimes Act"). A magistrate sitting in the Local Court in Moree held that he did not. Justice Simpson held that he did.

25 I have concluded that on the proper construction of s 93G(1)(a)(i) possession of a loaded firearm in a motor vehicle albeit on a public road is not possession which contravenes the section.

26 At about 12.30 am on 15 September 2001 the appellant was driving along Watercourse Road, Morialta Junction. Watercourse Road is the main road out of Moree. The appellant was licensed as a professional shooter. He was driving his Toyota Land Cruiser tabletop vehicle. There were carcasses of dead animals on the back of the vehicle, no doubt the product of his recent endeavours.

27 Two police officers and a ranger from the Moree Rural Lands Board who were carrying out a rural patrol stopped the vehicle so that the carcasses could be inspected. The spot where it was stopped was in a fairly deserted area.

28 The vehicle was fitted out, according to one of the police officers, in "the normal manner of a person that shoots kangaroos or pigs." One of the police officers saw a rifle sitting in a bracket on the top or in front of the dashboard with the firearm pointing out the driver's door. It was just below the windscreen. One of the constables who had stopped the appellant's car asked him to hand the rifle to him. As the appellant did as he was asked, he removed the bolt from the action. When the rifle was inspected it had live cartridges in the magazine. The rifle was registered to the appellant.

29 The appellant was charged pursuant to s 93G(1)(a)(i) of the Crimes Act with possessing a loaded firearm in a public place.

"(1) Any person who: (a) possesses a loaded firearm or loaded spear gun:

(ii) in any other place so as to endanger the life of any other person; or

(b) fires a firearm or spear gun in or near a public place; or

(c) carries or fires a firearm or spear gun in a manner likely to injure or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person,

is liable to imprisonment for 10 years." The Proceedings below 31 Before the Magistrate the appellant conceded that the rifle was a firearm, that it was "loaded"[1] and that he had possession of it. He disputed, however, that he had possession of a loaded firearm in a public place without lawful excuse.

32 The Magistrate found that possession of the rifle within the appellant's vehicle did not constitute possession of a loaded firearm in a public place such as to satisfy that element of the offence. He dismissed the information.

33 The respondent appealed to the Supreme Court pursuant to s 104(2)(b) of the Justices Act 1902. An appeal to the Supreme Court pursuant to s 104 is limited to questions of law: s 104(2) of the Justices Act.

35 Before Simpson J the respondent relied upon the fact that the appellant was in the motor vehicle and that the vehicle was in a public place as meaning that the appellant was, relevantly, in a public place. The appellant argued that s 8 of the Crimes Act constituted legislative recognition that the private vehicle in which he had his loaded gun was not a public place.

36 Section 8 of the Crimes Act relevantly provides:

"8 Where, by this or any Act, or by any rule, regulation, ordinance or by-law, duly made ... any offence ... in a public place ... is made punishable ... the place shall be deemed public for the purposes of the enactment or taken to be otherwise within the meaning if the same, although a vessel or vehicle only, or a room, or field, or place, ordinarily private, was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise." Section 8 has been in the Crimes Act since its enactment in 1900.

37 Her Honour rejected the appellant's reliance upon s 8 because in her view it could not be said that a motor vehicle on a public road was ordinarily a private place. Its occupants, according to her Honour, were not removed from the public place in which the vehicle was located by reason of the "insulation" or structure of the vehicle.

38 The respondent relied upon three cases: McKenzie v Stratton [1971] VR 848, Mansfield v Kelly [1972] VR 744 and Forte v Sweeney [1982] Qd R 127. In each of these cases it had been held that although an act took place within a vehicle, the fact that that vehicle was at the relevant time located in a public place meant that the act itself was committed in the public place. Her Honour noted that none of the three decisions were binding on her and that they must be treated with a certain degree of caution because in no case was there a section in the precise terms of s 8 of the Crimes Act.

39 In McKenzie v Stratton [1971] VR 848 the defendant was charged pursuant to the Summary Offences Act 1966 (Vic) with being drunk and disorderly in a public place. Nelson J held that a defendant found in a taxicab in a car park was found in a public place, namely, the car park.

40 Simpson J was not persuaded by observations made by Nelson J in McKenzie v Stratton that the final determination of whether a place should be held to be a public place may, and probably did, involve a consideration of the nature and subject matter of the particular enactment and the evil which it was intended to restrain. Her Honour was not comfortable with the implications of the proposition that, depending upon the subject matter and the purpose of the legislation creating the offence, the same place may be a public place for one purpose but not for another. While she was conscious of the anomalous results adverted to in Mansfield v Kelly that would follow if a person in a motor vehicle on a public road was found to be in a public place compared to a person in a caravan, tent or the like in that place, that consideration did not persuade her to conclude other than that the appellant's possession of the loaded firearm occurred in a public place.

41 In Mansfield v Kelly the Full Court of the Supreme Court of Victoria held that two men charged with being drunk in a public place were relevantly in that place even though they were in a motor vehicle at the time the offence was alleged to have occurred. Newton J (who delivered the judgment of the Court) said: [2]

"Where the motor car was, there were the defendants also.... The word 'in' in the expression 'in a public place' in s 13 means or includes, in our opinion, 'within the limits or bounds of'; see the Shorter Oxford Dictionary."

42 In dealing with the definition of "public place" in s 3 of the Summary Offences Act 1966 (Vic) Newton J referred to a similar definition to s 8 of the Crimes Act to the effect that "public place" in the Victorian legislation included any public vehicle plying for hire. He concluded that that definition did not support the inference that "Parliament intended that an occupant of a private motor car in a public place could not himself be treated as being in a public place". [3]

43 In Forte v Sweeney, the respondent was charged pursuant to s 75 of the Firearms and Offensive Weapons Act 1979 (Qld) with the offence that he without reasonable excuse did have in a public place a firearm whilst such firearm was loaded and contained live ammunition. The loaded gun he owned was in a motor vehicle in the well between the front bucket seats in one of which the respondent was sitting. The prosecution relied upon the public place being the road in which the vehicle was situated at the time the respondent relevantly possessed the loaded firearm. The Full Court held that the fact he was in a motor vehicle in a public place did not matter. 44 Section 7 of the Firearms and Offensive Weapons Act contained a provision not dissimilar to s 8 of the Crimes Act which purported to extend the definition of "public place" to (among other matters) vehicles for the time being used for a public purpose. 45 In the course of his judgment W B Campbell J (with whom Douglas and DM Campbell JJ agreed) said: [4] "Whether the motor car was in itself a public place is in my opinion immaterial in this case. The question here is whether the respondent himself was in a public place, and in my opinion the respondent was at the material time in a public place. He was physically within the confines of the public place and whether he was at that time in a motor vehicle does not seem to me to matter..." 46 WB Campbell J did not regard s. 7 as detracting from his conclusion that the respondent was at the material time in a public place even though he was within a motor vehicle. In this respect his Honour applied the passage from Newton J's decision in Mansfield v Kelly which I have set out in [18] above.

47 Simpson J regarded the approach taken in these three cases as persuasive. She allowed the appeal, quashed the Magistrate's order dismissing the information and ordered that the matter be remitted to the Local Court to be dealt with in accordance with her orders and reasons.

48 The appellant was granted leave to appeal to the Court of Appeal from her Honour's decision: s 101(2)(h) Supreme Court Act.

49 Before this Court, the appellant repeated the argument rejected by Simpson J concerning s 8 of the Crimes Act. Implicit in this submission is the proposition that the relevant place where the appellant had the firearm was in his vehicle and that that space was not a "public place" and could therefore be distinguished from the public road on which the vehicle was situated.

50 In oral argument he drew the court's attention to s 3 of the Summary Offences Act 1988. That section defines "public place" to mean:

"(a) a place (whether or not covered by water), or (b) a part of premises, that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school." [5]

(2) For the purposes of this Act, a person who is in a vehicle in any place shall be taken to be in that place.

52 Sub-section 3 (3) provides that s 8 of the Crimes Act does not apply in relation to the expression "public place" in the Summary Offences Act 1988.

53 The appellant argued that sub-section 3(2) constituted legislative recognition that it was necessary to deem a person who was in a private vehicle to be in the physical place in which the vehicle was located. He relied on the fact that the Summary Offences Act was enacted a year before s 93G was inserted into the Crimes Act and the fact that the legislature had not seen fit to insert a provision such as subsection 3(2) into the Crimes Act to support his submission that a firearm located within a private vehicle on a public road was not in a public place.

54 He further submitted that s 93G was directed to the mischief of preventing people "from wandering around in public places with a loaded firearm".

55 The respondent resisted the appeal on three bases advanced in the following order: comparable authorities, the text of the section and the purpose of the provision. Authorities

56 The respondent first submitted that the three inter-state authorities to which Simpson J referred supported her decision. He submitted that those authorities posed a similar question to that facing her Honour and that she properly treated them as persuasive.

57 The respondent also referred to some overseas authorities. He properly drew the Court's attention to the fact that not all those cases supported her Honour's conclusion. Thus in Hutt v R [1978] 82 D.L.R. (3d) 95 Spence J, in delivering judgment for the majority of Supreme Court of Canada, expressed the obiter view that an act of solicitation which occurred inside a motor vehicle in a public street was not performed in a public place. In R v Sloan (1994) 18 O R (3d) 143, Ont. Rep 381, Goodman JA also expressed the view that an act which took place in a private vehicle, albeit one parked in a public place, was not committed in a public place. The contrary conclusion was reached in R v Wise 67 C.C.C. (2d) 231, 1982 C.C.C. LEXIS 6052. [6]

58 Finally, the respondent referred to Walker v Crawshaw [1924] NZLR 93 where it was held that an indecent act committed inside a closed motor vehicle parked in a street was committed in a street and therefore in a public place. Walker v Crawshaw was referred to in both Mansfield v Kelly and McKenzie v Stratton.

59 The respondent next sought to support Simpson J's conclusion on the basis of the common and ordinary meaning of the word "in" as defined in the Macquarie Dictionary (Third Edition 1997) as:

"A particle expressing: 1. Inclusion within space or limits, a whole, material or immaterial surroundings, etc." [7]

60 On the basis of this one word in s 93G (1)(a)(i), it was submitted that as the appellant was included within the space or limits or bounds of Watercourse Road he was therefore "in" the public place which was that road. It was submitted that no barrier such as a motor vehicle could remove him from being within the space or bounds or limits of that road and he was therefore "in" the public place constituted thereby.

61 The respondent next submitted, referring to s 33 of the Interpretation Act, 1987, that the construction of s 93G(1) which found favour with Simpson J promoted the purpose or object of the provision and was therefore to be preferred. He submitted that the various subsections of s 93G(1) disclosed (in reverse order) the following purposes of the various offences created by the sub-section:

• Sub-section 1(c) deals with the risk of injury or danger to persons or property which may be caused by a firearm, loaded or unloaded. The conduct proscribed is the handling of the firearm in a particular manner, without reference to any place.

• Sub-section 1(b) deals with the same risk but because the risk is regarded as self evident when the firearm is discharged in a public place, the nature of the risk is not articulated in the same manner as in clause (c).

• The mischief dealt with by sub-section 1(a)(ii) is articulated as the risk of endangering the life of another person. The conduct proscribed is the possession of a loaded firearm in a non-public place in a manner which causes that risk.

• The mischief confronted by sub-section 1(a)(i) is the risk of injury or danger to persons or property which may result from the presence of a loaded firearm in a public place. A further mischief may be the fear and apprehension engendered in members of the pubic by persons in possession of loaded firearms in public. Once again, this risk is regarded as self evident and is therefore not articulated.

62 Relying upon this analysis, it was submitted that a construction of s 93G(1)(a)(i) which relieved the appellant of liability if he possessed the loaded firearm in a motor vehicle which was itself in a public place would defeat the underlying purpose of the provision. This was because, so it was submitted, persons would be able to transport loaded firearms along public thoroughfares with the clearly attendant risk of injury to members of the public in the event of an accident of some kind such as a collision.

63 Finally, the respondent argued that the appellant's reliance on s 8 of the Crimes Act was misconceived. Essentially he submitted that s 8 was a deeming, not a definitional, provision which merely deemed certain places to be "public places" in particular circumstances. He argued that it had no operation where those circumstances did not exist and that it should not be used other than for the purpose for which it was intended.

64 The principles of statutory construction which govern this case are well established.

65 They were expressed with typical clarity in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at 381, 384 per McHugh, Gummow, Kirby and Hayne JJ in the following terms:

"[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed....[78] The duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." [8]

66 The Court will also have regard to extrinsic materials, [9] including the "legislative history and antecedent circumstances", [10] although resort to that history "all too rarely illuminates the meaning of the current provision."[11]

67 Thus the courts avoid a literal approach to construction as Mason J (as he then was) made clear in K & S Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309 at 315 when he observed that:

"Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasis the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise ... the instances of general words in a statute being so held to be constrained by their context are legion."

68 The primary object of statutory construction, therefore, is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. Further, a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.[12]

69 In undertaking the exercise of construing legislation in its context to determine the legislative meaning, it is necessary to look at the compound expression rather than its disintegrated parts.[13]

70 If the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. However if two constructions are open the court will prefer that which will avoid what it considers to be inconvenience or injustice.[14]

71 Mere inconvenience of result in itself, however, is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernable from other provisions in the statute.[15]

72 In the case of penal statutes it is a fundamental principle that if the language of a statute remains ambiguous or doubtful, that ambiguity or doubt must be resolved in favour of the subject by refusing to extend the category of criminal offences.[16] As Gibbs J (as he then was) said in Beckwith v R [17]:

"The rule, formerly accepted, that statutes creating offences are to be strictly construed has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... the rule is one of last resort."

73 Finally, where one Act amends another "both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature".[18] Under modern practice it is the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole. [19]

74 Section 93G(1) is the successor of s 43(1) of the Firearms and Dangerous Weapons Act 1973 (NSW) (the "1973 Firearms Act"). It was inserted in the Crimes Act by the Crimes (Firearms) Amendment Act 1989. That Act was one of three Bills introduced at the same time designed to streamline firearms legislation in New South Wales. These Bills, according to the Second Reading Speech, demonstrated the Government's commitment "to the view that a fair and reasonable balance must be struck between safeguarding the community from firearms misuse and ... providing reasonable though stringent controls for those who wish to legitimately use and possess firearms." [20]

75 Although s 43 (1) was not in identical terms to s 93G, the two sections were substantially the same. First, both dealt with loaded firearms. Earlier provisions dealing with firearms, as can be seen from the legislative history set out below, did not single out the fact that the firearm was loaded or not as being of any relevance. Moreover, in addition to the offence of possessing a loaded firearm in a public place, the offence of having a loaded weapon "in any other place" was created.

76 "Public Place" was defined in s 3 of the 1973 Firearms Act to mean:

"... any public road, public place or public reserve or any place (whether or not covered by water) that is, or is from time to time, open to or used by the public whether or not on payment of money or for any other consideration and whether or not the public to whom it is open or by whom it may be used consists only of a limited class of persons."

77 This provision was not repeated when the 1973 Firearms Act provisions were incorporated into the Crimes Act in 1989.

78 The 1989 amendments also substantially reproduced s 57 of the 1973 Firearms Act as s 545E of the Crimes Act. That section created an offence of possessing in a public place a number of items such as irritant liquids, any substance likely to cause bodily harm, fuses capable of use with an explosive or a detonator or a detonator itself. The section did not draw the same distinctions concerning proximity to the "public place" as did s 93G(1).

79 The 1973 Firearms Act repealed the Firearms Act 1936 (NSW) (the "1936 Firearms Act"). The 1936 Firearms Act had amended the Police Offences Act 1901 by inserting a new Part IIA dealing with firearms. Part II of the Police Offences Act contained a number of provisions of a public order nature creating offences in "any street or public place". There was no definition of "public place" in the Police Offences Act.

80 Section 41N in Part IIA created an offence of possessing or carrying a firearm or air gun in "a public street, highway or public place" without lawful, proper and sufficient purpose if a person had previously been convicted of a summary or indictable offence or was found consorting with criminals or known prostitutes. Section 41O created an offence of possessing or carrying in "any public street, highway or public place" any article or instrument capable of discharging in any way any irritant liquid, gas, powder or any substance capable of causing bodily harm except for some lawful purpose. Section 41P(2) created an offence of possessing a firearm or air gun in a vehicle. Section 41Q(2) created an offence of possessing a firearm or air gun in a shop, room or office.

81 None of these offences turned on whether or not the relevant weapon was loaded or, with the exception of s 41O, referred directly to the mischief the weapon might cause.

82 Section 41R of the 1936 Firearms Act gave the police power to search without warrant a person in a public place suspected of carrying or having in his possession an unlicensed firearm and extended that power to a search of any vehicle "there" (i.e. in the public place) in that person's possession or under his control. This was early recognition of the fact that the interior of a vehicle was to be distinguished from the "public place" in which it was located.

83 The Second Reading Speech to the 1973 Firearms Act traced the evolution of statute law in New South Wales in relation to firearms: New South Wales Parliamentary Debates, Vol. 104, p. 4285ff. It appears from this history that the 1936 Firearms Act was the first legislation in New South Wales which proscribed the possession of firearms in certain places.

84 This legislative history reflects a progression from the 1936 provisions which penalised possession of firearms whether they were loaded or not and irrespective of the risk they posed (with the exception of irritants etc) to the 1973 provisions (in turn incorporated in the Crimes Act in 1989) which penalised possession of firearms by reference to whether they were loaded and, in certain sub-sections, what was actually being done with them or the risk they posed. It also demonstrates a progression from penalising possession of weapons by reference to specified places (public place, vehicle, shop etc) to more generically described places ranging from being in a public place, to being in or near it and finally to being in any other place.

85 The foregoing analysis also demonstrates that save for the 16 years during which the 1973 Firearms Act was in force, even though the expression "public place" appeared in the Police Offences Act 1901 there was no statutory provision relating to the meaning of "public place" for the purposes of firearms legislation other than that found in s 8 of the Crimes Act. That provision, of course, by its terms had extensive application beyond the Crimes Act.

86 Importantly, when the 1989 amendments were effected, the 1973 Firearms Act definition of "public place' was not repeated in the Crimes Act. Accordingly the effect of the "revised text" created by the amendment of the Crimes Act by (inter alia) the insertion of s 93G in 1989 was that the expression "public place" in s 93G took its colour from other sections of the Crimes Act which were capable of bearing upon its meaning.

87 In Ward v Marsh [1959] VR 25 at 27 Lowe J observed:

"The books abound with instances of what is and what is not a public place, and looking at them as a collection of instances it seems difficult if not impossible to see a guiding principle to decide the question."

88 The concept of a "public place" is said to be "a place where the public go no matter whether that have a right to go or not." [21] A private motor vehicle does not fall within that description. That, no doubt, is why the legislature saw fit in 1900 to include s 8 in the Crimes Act.

89 This case does not turn, however, on the meaning of "public place" but on what the legislature intended by the phrase "in a public place" in s 93G(1)(a)(i).

90 Looking at s 93G(1)(a)(i) in its immediate context, it is apparent that in s 93G(1) the legislature has created four separate offences which turn on two core concepts: place and activity.

91 Insofar as the place is concerned, three are identified: in a public place (s 93G(1)(a)(i)), in any other place (s 93G(1)(a)(ii)) and in or near a public place (s 93G(1)(b)). In other words the legislature has carefully described various different locations in which an offence might occur although in more generic language than, for example, in the 1936 Firearms Act.

92 So far as activities are concerned the offences range from the mere possession of a loaded firearm (s 93G(1)(a)(i)) to possession or carriage in a manner likely to endanger persons or property (s 93G(1)(a)(ii) and s 93G(1)(c)) and finally to firing the firearm (s 93G(1)(b) and s 93G(1)(c)).

93 This analysis of the section reveals that the legislature has drawn a distinction between a person actually being "in" the public place and being "in or near" it. This is hardly remarkable. It needs little imagination to conclude that possessing a loaded firearm in a public place without any barrier between the weapon and the public is fraught with risk.

94 In my opinion the foregoing analysis also demonstrates that the purpose of s 93G is to guard the public against the risk posed by the possession of a loaded firearm but to weigh that risk by reference to the place in which the firearm is possessed or by reference to the activity being undertaken in relation to it. Where the loaded firearm is actually in the public place then the risk is, to adopt the respondent's expression, "self evident".

95 A similar approach was adopted to the concept of possession in a public place in s 545E of the Crimes Act to which I have already referred in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Taikato v R (1996) 186 CLR 454 at 459 - 500 where their Honours said:

"Section 545E and its predecessor were obviously enacted upon the assumption that the public interest is best served by excluding from public places fuses, detonators and articles or things that discharge harmful substances. They were enacted upon the basis that, where in a public place a person possesses a fuse, detonator or an article capable of discharging an irritant or a substance capable of causing bodily harm, it is probable that the item was brought there with the intention of causing harm and that, even if that intention is not present, the availability of such an item in a public place enables it to be used to cause harm. Thus, s 545E(1)(a) treats an article or thing capable of discharging a harmful substance or irritant matter as a dangerous weapon and treats its possession as comparable to the possession of fuses and detonators in public places. Significantly, the section does not make it an offence to discharge the irritant matter or other harmful substance. Other sections of the Act are adequate to deal with conduct of that sort. The purpose of s 545E(1)(a) is to prevent such conduct from occurring by forbidding the possession of such weapons in public places. It is a reasonable conclusion that, subject to the exceptions within s 545E(2), the section is meant to deal with the person who goes into a public place armed with a dangerous article or thing irrespective of the use to which that person intends to put the article or thing. As counsel for the respondent pointed out, when guns and other dangerous articles are available, they often come to be used for harmful purposes although they were initially possessed for innocent purposes."

96 Once, however, the legislature is seen to have turned its "mind" to the different locations referred to in the various sub-sections of s 93G(1), then those distinctions must be given significance. It cannot be said for example, that the possession of a loaded firearm in a public place where there is an intervening barrier, such as the body of a motor vehicle or, to revert to the distinction which did not impress Simpson J, a caravan, tent or the like located in such a place, poses the same risk as possession of a weapon in a public place without such an intervening barrier. It cannot invariably be said that possession of a loaded firearm where there is such an intervening barrier demonstrates an intention to cause harm.

97 In cases where the loaded firearm is possessed in a place such as a vehicle, caravan, tent or the like, albeit in a public place, regulation of the possession of the weapon is accommodated, in appropriate circumstances, by invoking the offence created by s 93G(1)(a)(ii). In other words, in those circumstances it is an offence if the loaded firearm is possessed "in any other place" (which would include possession of that firearm within a private motor vehicle) in a manner likely to endanger another.

98 This conclusion is reinforced by the fact that if the legislature had intended that possession of a loaded weapon within a motor vehicle in a public place was to be proscribed, it would have been perfectly simple for it to have achieved its purpose directly by so providing as sub-section 3 (2) of the Summary Offences Act 1988 makes clear. [22]

99 The respondent's literal construction of s 93G(1)(a)(i) which focuses merely on the concept that the appellant was "in" a public place albeit that he was separated from that "public place" by his motor vehicle does not, in my opinion, give sufficient weight to the context in which s 93G(1)(a)(i) is found.

100 Further, his reliance on the dictionary meaning of the word "in" does not accord with the principles of statutory construction to which I have already referred which require the section to be construed as a whole and not by reference to the "disintegrated parts" of the expression divorced from its context. [23]

101 An interpretation which focuses merely upon the grammatical meaning of "in a public place" without regard to the context in which that provision appears suffers from the vice of literality which the modern approach to statutory construction eschews.

102 I also do not accept the respondent's submissions concerning the purpose of s 93G(1)(a)(i) - namely, first, to prevent the risk arising from the transportation of loaded firearms in motor vehicles through public thoroughfares and, secondly, to prevent a member of the public becoming fearful on seeing a loaded firearm in such a vehicle. The concept of endangering the public by transporting a loaded weapon in this manner, but insulated from the public by the motor vehicle, is clearly encompassed by s 93G(1)(a)(ii) of the Crimes Act. The respondent's submission would deprive the words "in any other place" of the work they were clearly intended to perform.

103 The secondary purpose referred to is simply unrealistic. A member of the public who sees a firearm, whether it is being carried along the street or sitting in a bracket on the dashboard of a motor vehicle will not know whether or not it is loaded. The fact that it is not an offence to have an unloaded firearm in a public place strongly indicates that the purpose of s 93G(1)(a)(i) is to alleviate the danger posed by the possession of loaded weapons rather than the reaction the mere possession of such a weapon may provoke in a member of the public.

104 In this sense, at least, the offence created by s 93G(1)(a)(i) can be distinguished from the public decency offences considered in Walker v Crawshaw, Mansfield v Kelly and McKenzie v Stratton.

105 In my opinion the immediate statutory context in which s 93G(1)(a)(i) is found supports the appellant's submissions.

106 Further support may be found in other provisions of the Crimes Act. I have already referred to s 8. In addition, regard may be had to s 357(2), which was not referred to before Simpson J or raised by either party before this Court. That sub-section provides:

"(2) If a member of the police force suspects, on reasonable grounds, that a dangerous article is being or has been used in the commission of an offence to which this section applies and that it is in the possession of any person in a public place or is in any vehicle, vessel, aircraft, package or receptacle which is in a public place and is in the possession or under the control of any person, the member may, without warrant:

(a) detain and search the person and any such vehicle, vessel, aircraft, package or receptacle, and

(b) seize and detain any dangerous article found as a result of the search. (Emphasis suppled)

107 Section 357(2) of the Crimes Act reflects further legislative recognition of the proposition that there is a distinction between being in a public place per se and being in a motor vehicle etc which is in a public place.

108 The respondent was asked to deal with s 357. He submitted that the specific reference there made to vehicles etc. in a public place was made to overcome arguments about the liability of a person under that section fixing on the word "possession". However, as it was pointed out to him during argument, s 93G(1)(a)(i) also focuses on "possession". 109 In my view the legislature saw fit to include possession in vehicles etc within public places in s 357(2) to avoid an argument that a search of such a place was an illegal search. While that may be the purpose of the extended reference to vehicles in s 357(2) that does not, in my opinion, detract from the utility of that section in determining the meaning of "in a public place" in s 93G(1)(a). This is especially the case when it can be seen that the danger to which the respondent referred of having a loaded weapon within a vehicle in a public place is an evil which, in appropriate cases, can be sanctioned by charging an offence under s 93G(1)(a)(ii).

110 Thus both ss 8 and 357(2) recognise a distinction between a private vehicle and a public place. Section 8 recognises that in some circumstances it will be necessary to deem a place which is ordinarily private to be a "public place" in certain circumstances. Section 357(2) recognises that the mere fact that a vehicle etc is in a public place does not make its interior a "public place". Using s 8 in this manner does not treat it as definitional as the respondent submitted. It does treat it as giving context to the legislature's notion of what constitutes a "public place" in the revised text of the Crimes Act created by the 1989 amendments. This is appropriate having regard to s. 10 of the Interpretation Act.

111 Further, s 545E by referring only to possession of the dangerous irritants "in a public place" without the refinements of place which appear in s 93G(1) underlines the legislature's appreciation of the different risks which may be posed depending upon where the dangerous object is located.

112 Applying these indicia to s 93G(1)(a)(i) so as to give the Crimes Act a consistent and harmonious interpretation, in my view, requires the conclusion that the interior of the appellant's motor vehicle was not a "public place" and that possession of a loaded firearm within that vehicle did not constitute possession "in a public place".

113 Finally, although I do not think it is necessary to invoke the principle concerning the construction of penal statutes in the case of ambiguity or doubt to determine the legal meaning of s 93G(1)(a)(i), it is not irrelevant to note that the substantial penalty attached to a breach of the section is ten year's imprisonment. That penalty should suffice, in my opinion, to ensure that where there is any doubt about the construction of s 93G(1)(a)(i), that doubt should be resolved in favour of the appellant.

114 I am conscious that penal statutes "are not to be construed so strictly as to defeat the obvious intention of the legislature".[24] In my view the construction which I favour does not defeat the legislative intention. Section 93G(1)(a)(ii) makes it clear that the legislature intended that possession of a loaded firearm in a place which was not relevantly a "public place" was an offence if that possession was likely to endanger the life of any other person. If the appellant's transportation of his loaded firearm had posed such a danger, it was open to the respondent to charge him with that offence.

115 The inter-state authorities relied upon by the respondent were cases in which it had been held that an activity which took place within a motor vehicle was nevertheless an activity which took place "in a pubic place". They are distinguishable on the basis that they concern different statutory schemes and, in at least two cases, were directed at different evils.

116 Only Forte v Sweeney; ex parte Forte [1982] Qd R 127, a decision of the Full Court of the Supreme Court of Queensland, is directly in point in the sense that it concerned the carrying of a loaded firearm in a vehicle in a public place. Section 75 drew a distinction between possession of a firearm etc "in any place" by reference to whether its possession was likely to cause injury, destruction or alarm and possession of a loaded firearm etc "in any public place". It did not, however, demonstrate the same subtleties as to location as s 93G(1). 117 The other two authorities upon which the informant relied, Mansfield v Kelly and McKenzie v Stratton [1971] VR 848 involved public decency offences. They raised different considerations as to the evil addressed by the relevant legislation in those cases compared to that addressed by firearms legislation.

118 In the course of his decision in McKenzie v Stratton Nelson J made two important observations. First he referred to Gowans J's decision in Miller v Hunt (unreported, Supreme Court of Victoria, 20 February 1968) saying:

"... in the course of his judgment after referring to Ward v Marsh, [1959] VR 26; [1959] ALR 233, he said that he was disposed to think that the proper view was that there cannot be a public place in the ordinary signification, or the common law meaning, of the term "public place" unless the public had a right to resort to the place, or did in fact resort to the place in numbers, and that that would not be the position in the case of a private car. Literally all that his Honour was there saying was that a private car to which the public had no right to resort and did not in fact resort was not itself a public place."

119 That observation is consistent with the starting point of the appellant's argument that a private vehicle is not a "public place".

120 Secondly, having observed that when a person was in a motor vehicle in a public place, he was "physically within the confines of such public place and he is in that sense in that place", his Honour observed: [25]

"Whether, however, for the purposes of certain statutory offences he should be held to have done a certain act in that place or to be found in a certain condition in that place may require a consideration of something more than the fact that the act was done or that he was found in the required condition while he was within the physical confines of the place. It may and probably does involve a consideration of the nature and subject-matter of the particular enactment and the evil which it was intended to restrain, a matter to which both Lowe and Sholl, JJ, adverted in Ward v Marsh, supra, in considering the ordinary meaning of the expression 'public place'."

121 In concluding that the defendant was, relevantly in a "public place" Nelson J was influenced by his view that when an offence was defined in terms of a "public place" "it is the public nature of the offence which is the evil which the legislation is designed to restrain." [26] In other words, his Honour took the view that if, notwithstanding that the defendant was physically within a motor vehicle in a public place, "his offence" was a matter which could influence members of the public then he would relevantly be regarded as "in a public place".

122 I do not regard Mansfield v Kelly and McKenzie v Stratton as persuasive. Both involved public decency offences where, for relevant purposes, the underlying purpose of the relevant provisions was to avoid offence to the public. In such circumstances it was the ability to observe the conduct in question which was not inhibited by the illusory interposition of a windscreen which attracted the relevant legislative opprobrium. As the discussion of McKenzie v Stratton which I have already set out makes clear, it was the ability of the conduct in the vehicle nevertheless to offend passers by which led to Nelson J's conclusion that it was committed in a public place.

123 Although I appreciate the force of Forte v Sweeney, it does not appear that the provision being considered by the Full Court of the Supreme Court of Queensland in that case was found in a legislative context relevantly similar to the Crimes Act. This case is not one in which principles of judicial comity prevail to require an intermediate appellate court to follow the interpretation placed on similar words by another Australian intermediate appellate court: cf Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 480 at 492.

124 What these authorities do demonstrate, however, is that the question whether an act was relevantly committed "in a public place" must ultimately turn on the terms of the particular legislation under consideration.

125 In the final analysis, in my opinion, the question this Court is asked to answer must be resolved by considering the statute not by reference to authorities decided in different statutory contexts and directed to regulating different conduct.

126 Looked at in that context I am of the opinion that possession of a loaded firearm in a motor vehicle in a public road does not constitute possession of that firearm in a public place for the purposes of s 93G(1)(a)(i).

127 In my opinion, Simpson J therefore erred in quashing the Magistrate's decision.

2. The orders made by Simpson J on 14 August 2002 be set aside.

5. Respondent to pay the appellant's costs of the Appeal and the hearing before Simpson J.

1 See s 93G (2) of the Crimes Act 1900 (NSW). 2 Mansfield v Kelly, supra at 745. 3 Ibid at 746. 4 Forte v Sweeney, supra, at 129. 5 The Summary Offences Act 1988 repealed the Offences in Public Places Act 1979. The definition of "public place" repeated the definition found in the 1979 Act. The 1979 Act did not, however, contain a provision like s 3(2). 6 A case which counsel for the informant did not place a great deal of reliance upon as it had been decided by the County Court of Caribou, British Columbia. 7 The Shorter Oxford English Dictionary meaning was also relied upon as it had been in Mansfield v Kelly, supra, at 745. 8 See also Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 per McHugh JA at 421-4 referred to with approval in Bropho v Western Australia, supra, at 20. 9 Bropho v Western Australia (1990) 171 CLR 1 at 20. 10 Risk v Northern Territory of Australia and Another (2002) 76 ALJR 845 per Gummow J at [83]; Geaghan v D'Aubert [2002] 36 MVR 542 per Stein JA (Handley JA and Foster AJA agreeing) at [22]-[23]. 11 Beckwith v R (1976) 135 CLR 569 per Mason J at 578. 12 Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ. 13 The King v Wilson; ex parte Kisch (1934) 52 CLR 234 per Dixon J at 244. 14 Cooper Brooks (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 per Gibbs CJ at 305 15 Ibid per Mason and Wilson JJ at 320. 16 Halsbury's Laws of Australia [385] - [420]; see also Scott v. Cawsey (1907) 5 CLR 132 at 141 per Griffiths CJ, at 144-5 per Barton J and at 154-7 per Isaacs J; The King v. Adams (1935) 53 CLR 563 at 567-568 per Rich, Dixon, Evatt and McTiernan JJ; Smith v Corrective Services (1980) 147 CLR 134 at 139; Murphy v Farmer (1988) 165 CLR 19 at 28-9. 17 Supra, at 576. 18 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Limited (1995) 184 CLR 453 at 463 per Brennan CJ, Dawson and Toohey JJ. 19 Ibid at 479 per McHugh and Gummow JJ; see also Sweeney v Fitzhardinge (1906) 4 CLR 716 at 735 per Isaacs J and s 10 Interpretation Act 1987 (NSW) which is "declaratory and represents the modern approach to the construction of an amended statute": Commissioner of Stamps (SA) v Telegraph Investment Co Pty Limited, supra, at 463 per Brennan CJ, Dawson and Toohey JJ. 20 Second Reading Speech to Firearms Bill, Prohibited Weapons Bill, and Crimes (Firearms) Amendment Bill, Legislative Assembly, 2 March 1989, Hansard 5604- 5605. 21 In the Appeal of Camp [1975] 1 NSWLR 452 at 454 ; see also Ward v. Marsh, supra, at 28. 22 See Krakouer v The Queen (1998) 194 CLR 202 at 222 per McHugh J. 23 See the King v Wilson; ex parte Kitsch, supra at 244, per Dixon J and K & S Lake City Freighters Pty Limited v Gordon & Gotch Limited supra at 315. 24 Scott v Cawsey, supra, at 156 per Isaacs J quoting Fuller CJ in Johnson v Southern Pacific Co 196 U.S. 1. 25 Ibid. 26 McKenzie v Stratton at 851.

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