Lester v Booth [2000] WASCA 155

Firearms Act 1973, s 4, s 8, s 9A, s 19(1), s 20, s 21, s 23(5)

Sentencing Act 1995, s 106(1)

Conviction for possession of unlicensed firearm set aside

Conviction for possession of unlicensed ammunition upheld

Matsebula v Vanderklashorst [2000] WASCA 141

Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998

RPS v The Queen [2000] HCA 3

Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217

1 MILLER J: The appellant was charged that on 16 February 1999 at Goodlands he had in his possession a Remington 12-gauge shotgun whilst not being the holder of a licence or permit entitling him to do so and not being exempted under s 8 or s 19(1)(aa) of the Firearms Act 1973 (Firearms Act 1973, s 19(1)(c)) and that on the same day at the same place he possessed a quantity of ammunition whilst not being the holder of a licence or permit entitling him to do so and not being exempted under s 8 or s 19(1)(aa) of the Firearms Act 1973 (Firearms Act 1973, s 19(1)(c)). He pleaded not guilty to these two charges and was tried before Mr F Cullen SM in the Court of Petty Sessions at Northam on 27 July 1999. The learned Magistrate convicted him of both charges and imposed a global penalty by way of a fine of $300 with $95.70 costs. In relation to each conviction there was a spent conviction order.

2 On 24 February, Scott J granted the appellant leave to appeal the two convictions. In relation to the conviction for possession of the shotgun without being the holder of the relevant licence, the grant of appeal as ultimately formulated was that the learned Magistrate had erred in law by holding that the applicant's licence for that firearm became invalid when a condition of that licence was breached (by the fitting of a magazine extension tube to the firearm) and that therefore from that point on he was not the holder of the firearm licence. In relation to the conviction for possession of ammunition, the grounds of appeal essentially asserted that the learned Magistrate had failed to sufficiently articulate his reasons for finding the appellant guilty; had made a finding of guilty which was not justified by the reasons which were given; and the finding of guilt was unreasonable and could not be supported, having regard to the evidence.

3 At the hearing of the appeal, counsel for the respondent conceded that the conviction for possession of the shotgun without being the holder of the relevant licence should be allowed. The conviction for possession of the ammunition without being the holder of the relevant licence was, however, supported.

4 The evidence at the hearing revealed that on 16 February 1999 a number of police officers apprehended the appellant at the intersection of Lemman Road and Kulja Central Road in Kulja. There the appellant was handcuffed and searched and his motor vehicle searched. In the glovebox compartment of the vehicle were located a number of shotgun rounds and (relevantly) four .308 cartridges. The appellant was then taken to what was described as his farm in Black Road, Goodlands where the property was searched in the execution of a search warrant. In what appeared to be a dining room were a number of firearms, including a pump action shotgun, a handgun and various rifles, together with a quantity of ammunition. A search was then conducted of a study in which there was a wardrobe, a cluttered desk and a firearms cabinet. It was a small room said to have been about eight feet by eight feet in dimension. The doors to the firearm cabinet were open and a police officer described "a trail of ammunition leading from that cabinet to the loungeroom where the rifles and shotgun were located". A search of the wardrobe revealed neatly stacked boxes of cartridges, some of which contained empty shells and some of which contained live rounds. There was also tins of gun powder, re-loading equipment, gunbelts and "things of an ancillary nature". A quantity of ammunition was seized from the wardrobe, including a quantity of .308 shells.

5 Constable Adam Raymond Cumbers gave evidence that he located at the house a pump action shotgun which had an extension magazine so that more rounds than originally made for the basic model could be utilised. Constable Cumbers also testified that when the appellant had been apprehended he said to the police "I have got the guns all out for you. I know you want to look at the guns". Constable Cumbers observed that a number of .308 rounds given to him were not on the appellant's firearms licence. When cross-examined, the Constable was challenged about whose house it was where the search had occurred. He replied that before the appellant was taken from his place of apprehension he "intimated (it) was his house ... you know we had a somewhat informal discussion on ... you know, kids and kids from pre-school and so on. And as far as he's concerned we were taking it back to his house. I explained what ... you know, that we'd be going through his house looking for his guns and he mentioned that he had them all laid out there." A Constable Clinton Nathan Walley testified that he had obtained a search warrant under the Firearms Act to search a property in Black Road in Kalannie, Goodlands and the property was that of the appellant.

6 At the conclusion of the prosecution case counsel for the appellant made a submission of no-case to answer. In relation to the charge of possession of the unlicensed firearm, the submission was very simple: the appellant had a firearm licence for the shotgun, and the question whether any conditions may or may not have been imposed upon that licence at other times was irrelevant to the charge. The charge was that he did not have a licence for the Remington 12-gauge shotgun, but in fact he did. The submission in relation to the ammunition was that there was no evidence that the house searched was the house of the appellant, but even if it was, there was no evidence to establish how long he had lived there and no evidence to show how many other people lived there, with the result that there was no evidence to negate the "possible circumstance that someone else is there with a licence for that ammunition perfectly lawfully". It was further contended that there was no indication that the appellant had any knowledge, let alone custody, of the ammunition in question.

7 The learned Magistrate dismissed the submission that there was no case to answer. He accepted the prosecution argument that the appellant had a licence for a category C firearm and not a category D firearm, which the Remington shotgun had become by reason of the extension tube fitted to it. His Worship found that there was a case to answer in relation to the charge of possession of the unlicensed ammunition, holding that notwithstanding counsel's submission that there was "little or no evidence with regards to whether or not the defendant resided at the property which the police searched or whether or not he was or could be ... it could be inferred that he was in possession of the ammunition the subject of the charge".

8 No evidence was called for the defence and the matter was then the subject of final submissions to the learned Magistrate. Following those submissions his Worship reviewed the evidence and concluded in relation to the unlicensed firearm charge that the fact that an extension tube had been fitted to the 12-gauge shotgun made the licence invalid. In relation to the charge of possession of ammunition, the learned Magistrate's reasons for conviction were as follows:

"With regards to a second charge which relates to the 18 rounds of .308 Winchester ammunition, once again, the evidence with regards to that, Mr Williamson says, 'Well, there's no evidence of possession or control or whether or not he ever knew about it or where it came from.' The evidence was, as I understand it, that that ammunition was found by the officer in the wardrobe of that house and that the wardrobe itself, as mentioned, contained numerous rounds of ammunition which were in conformity with the licence, together with the other paraphernalia mentioned, gun bolts and what have you -- ammunition bolts I think they may have been referred to.

So therefore the question is whether or not I am satisfied that the defendant was in possession of the items of ammunition that I have mentioned. While referring back to the evidence of the police on that particular day, I am satisfied that the ammunition that was found, the 18 rounds of 308 ammunition which was found, by Constable Marshall and has subsequently been tendered in this court was in the possession of the defendant on 16th February 1999 at Goodlands. Therefore, I am satisfied that the prosecution have, beyond reasonable doubt, proved the elements of the second charge also."

9 The respondent's concession that the appellant could not be convicted of the charge of unlicensed possession of the shotgun was correct. The appellant's basic contention in this regard was that once a firearm licence had been granted, it could only lose its validity if it lapsed (Firearms Act, s 9A); was revoked by administrative action (Firearms Act, s 20); or it was suspended by reason of a disqualification order made under s 106(1) of the Sentencing Act. Breach of a condition, restriction or limitation of the Firearms Act is an offence (Firearms Act, s 21) as is alteration of the firearm (Firearms Act, s 23(5)(c)(ii)). However, it was argued (correctly) that breach of a restriction, limitation or condition of a firearm licence by the holder does not result in the firearm licence becoming invalid. These submissions are all clearly correct and the conviction for possession of an unlicensed firearm cannot therefore stand. For some reason, although the appellant was originally charged with the offence of altering a firearm from the design or characteristics of its original manufacture (Firearms Act, s 23(5)(c)(ii)), the prosecution elected to discontinue that charge and to substitute in lieu of it the charge that the appellant had in his possession a Remington 12-gauge shotgun whilst not being the holder of a licence or permit entitling him to do so.

10 Counsel for the appellant attacked the learned Magistrate's failure to reveal in his reasons why there had been a finding of guilt in relation to the charge of possession of unlicensed ammunition. It was complained that there was no detail in the reasons given before conviction. Counsel for the respondent contended that the learned Magistrate's reasons were adequate as it was apparent that his Worship had dealt with the relevant evidence and no complex reasoning process was called for. The reasoning process was (it was argued) quite apparent from the brief reasons delivered. Reliance was placed upon what was said in this regard in Garret v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, particularly the observations of Owen J (at 248) where his Honour said:

"At common law there was (and is) a duty on a decision maker required to act judicially or quasi-judicially to give reasons for decision. The reasons must disclose adequately the intellectual process which had resulted in a particular determination. I will repeat what I said on the general question of a duty to give reasons (with which White J agreed) in Frichot v Zalmstra (unreported, Supreme Court, WA, Full Court, WA, Library No 981291, 13 May 1998) at 14:

'The authority most often cited in this regard is the dicta of Moffitt P, in Pettit v Dunkley [1971] 1 NSWLR 376 at 387-388. That passage is so well-known that I will not repeat it other than to say that it has been adopted in this Court in cases such as Lloyd v Faraone [1989] WAR 154 at 163.

In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 702 the court indicated that in a position such as we have here the appealable error lies not in the result of the trial but in the failure to give relevant reasons in circumstances which deprive a party of an effective right of appeal conferred by statute.

To that I would add that in our judicial system, where proceedings are to be conducted in public, the duty to give reasons is an adjunct to or in some respects a part of the overall obligation to afford to litigants procedural fairness. Put in that way, in addition to securing the statutory right of appeal, the obligation to give adequate reasons is part of the fairness to a litigant who comes to the court to know why it is that he or she succeeded or has been unsuccessful ... [T]hat does not mean that every piece of evidence, every exhibit, every word that has fallen from counsel during submissions must be alluded to expressly or even by implication in the course of giving reasons. It would neither be necessary nor feasible for an obligation of that nature to be imposed on trial courts.

It is sufficient if the reasoning process which led to a result is disclosed with sufficient certainty to enable the litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured.'

The tribunal of fact in that case was the District Court. However, I believe the principles are equally applicable to the Court of Petty Sessions. To the authorities mentioned in that extract I would add Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, 277-281; Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531 at 539-40, 548 and Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 at 640, 647."

11 In my view, the learned Magistrate's reasons, although brief and to the point, were adequate. His Worship clearly accepted that the evidence established that the police officers had gone to the house of the appellant where, in a study area, a quantity of ammunition was found for which the appellant had no licence. Although the learned Magistrate made no specific reference to it, he clearly accepted that the definition of "possession" in the Firearms Act was met. That definition is as follows:

" 'possession', in addition to actual physical possession of a firearm or ammunition, means the custody or control of it, or having and exercising access to it in any place either alone or in common with others;"

12 Counsel for the appellant argued that the evidence at trial was consistent with the rounds of ammunition in question being placed in the wardrobe by somebody else and without the knowledge of the appellant. It was argued that there was no direct evidence that the appellant knew of the existence of the particular .308 calibre rounds amongst other boxes of ammunition in the wardrobe; there was no evidence as to who had access to the wardrobe or even the room; there was no evidence as to the nature of the appellant's connection with the house, who else lived there or who else had lived there; and there was no evidence as to the location of the rounds of ammunition in question and as to whether or not they would be visible to a person looking into the wardrobe.

13 Counsel for the respondent pointed out that the evidence at trial established that the appellant had just come from the property in Black Road when stopped by police. Further, there was a "trail of ammunition" from the loungeroom, where the firearms were found to the study, and the same type of ammunition was found in the glovebox of the appellant's utility. Other ammunition found in the wardrobe was in conformity with the appellant's firearm licence. It was further contended that the evidence established a clear finding that the premises were occupied and controlled by the appellant, there being testimony that the police officers understood the farm house to be the appellant's residence and testimony that the appellant, when spoken to, had intimated that the residence was his. The extended definition of "possession" in s 4 of the Firearms Act was relied upon, counsel pointing out that possession as there defined is not limited to actual physical possession but extends to custody or control of ammunition and as far as having and exercising access to it in any place either alone or in common with others. As was pointed out by Steytler J in Keys v Kitto (1996) 90 A Crim R 288 (at 293):

"... 'custody or control' must mean something other than either 'actual physical possession' in the sense, perhaps, , of complete present personal physical control of the firearm (see Moors v Burke [1919] HCA 32; (1919) 26 CLR 265) or 'having and exercising access' to the firearm."

14 In my view, there was ample evidence before the learned Magistrate from which a conclusion could be drawn (and drawn beyond a reasonable doubt) that the appellant possessed the unlicensed ammunition which was found in the wardrobe in the study. There was clear evidence to establish that the property was one at which he resided, and there was his own admission that he had laid out the firearms in the dining room for the police. From those firearms there was a trail of ammunition to the wardrobe in which ammunition was found. Much of that ammunition was in accordance with the appellant's licence. That which was not, consisted of some 18 rounds of .308 ammunition which, on any view of it, the appellant had access to whether alone or in common with others. It was open to conclude in the circumstances that he knew it was there. The appellant failed at trial to establish through cross-examination or otherwise anything which would allow of the drawing of a competing inference. The only evidence as to other occupants of the house was that his wife and children resided there. No-one suggested that his wife held a firearm licence, nor was it suggested that any other person had in times past lived there who held a firearm licence. There was simply no grounding for the submission of counsel for the appellant that other inferences as to possession of the unlicensed ammunition were open. For these reasons I am of the view that the conviction of the appellant for possession of unlicensed ammunition was entirely in accordance with the evidence and unable to be challenged.

15 At the hearing of the appeal I allowed the appeal against conviction for possession of an unlicensed firearm; dismissed the appeal against conviction for possession of unlicensed ammunition; apportioned the global penalty imposed by the learned Magistrate so as to impose $100 by way of a fine and $38 by way of costs in relation to the conviction for possession of unlicensed ammunition; ordered that if the fine and costs have been paid by the appellant there should be remitted to him the sum of $357.70 and made consequential orders for costs.