Criminal law - Appeal against acquittal for offence against Firearms Act 1973 (WA) s 23(9)(d)(i) - Whether there is an element of offence of lack of reasonable excuse or lack of reason to provide and use storage facilities - Condition to offence that person not lawfully in possession otherwise than by way of storage - Whether circumstances of transit of firearms to firearms cabinet in new accommodation interrupted by power failure preventing anchoring of firearms cabinet, where firearms relocated overnight in bedroom, were such that a finder of fact acting reasonably might fail to find beyond a reasonable doubt that condition was met

Criminal Appeals Act 2004 (WA), s 14

Criminal Code (WA), s 23, s 24, s 36, s 248, s 250

Firearms Act 1973 (WA), s 4, s 10, s 16, s 17B, s 19, s 21B, s 23, s 27, s 28, s 32, s 33

Interpretation Act 1984 (WA), s 18, s 19

Binns v Gardiner [2002] WASCA 337

BRK v The Queen [2001] WASCA 161

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; (1962) 107 CLR 279

Como and Commissioner of Police [2008] WASAT 1

Coumbe v Whittaker [1999] WASCA 151

Daniele v Weissenberger [2002] WASCA 346; (2002) 136 A Crim R 390

Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496

He Kaw Teh v The Queen [1985] HCA 43; (1984) 157 CLR 523

Hill v Holmes [1999] FCA 760; (1999) 92 FCR 120

Horsman v Bishop [2000] WASCA 316

Ingram v Ingram (1938) 38 SR (NSW) 407

Keys v Kitto (1996) 90 A Crim R 288

Lester v Booth [2000] WASCA 155

Martino v Green [2001] WASCA 181; (2001) 123 A Crim R 301

Moors v Burke [1919] HCA 32; (1919) 26 CLR 265

Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493

Project Blue Sky Inc v ABA [1998] HCA 28; (1998) 194 CLR 355

R v Hutchinson [2003] WASCA 323; (2003) 144 A Crim R 28

R v Mokbel [2006] VSC 158; (2006) 199 FLR 176

Robertson v Lawrence [2008] WASC 111

Tomarchio v Pocock [2002] WASCA 156

Turner v Keegan [2001] WASCA 9

Warner v Metropolitan Police Commissioner [1969] 2 AC 256

WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22

Williams v Douglas [1949] HCA 40; (1949) 78 CLR 521

Yeates v Hoare [1981] VicRp 91; [1981] VR 1034

1 The respondent, Simon Chitty, has held a firearms licence for some years. In March 2008 he had moved house, from an address in Parmelia Avenue to an address in McKanna Gardens, Parmelia. About two weeks into the period of the move he had transported between the houses firearms of his that were apparently covered by his licence together with the firearms cabinet in which he had stored them and which had been bolted to the floor of his former house. He had meant to bolt the cabinet to the floor in his bedroom in his new house, but the electrical power for the drill he meant to use failed and he put the cabinet in a shed, from which he removed the firearms and put them in his bedroom. That night he slept in his bedroom in the new house with the firearms in the room with him, about 1.5 m away. The following morning police found the firearms there, and he was later charged with a number of offences under the Firearms Act 1973 (WA) (the Firearms Act). On 5 June 2009 Magistrate Gluestein acquitted the respondent of all of these charges following a trial in the Rockingham Magistrates Court in which the respondent gave evidence. This is an appeal against the acquittals on certain of the charges.

2 The charges were four, RO 5721 - RO 5724. They were for, respectively, a Boito single barrel 12 gauge shotgun, a CBC model 151 single shot .22 Hornet rifle, a CBC model 151 single shot .410 shotgun and a Mossberg model 640KD Chuckster .22 Magnum rifle. The charges were that the respondent in each case had committed an offence against Firearms Act s 23(9)(d)(i).

3 It is convenient to set out s 23(9)(d) in full, emphasising the subparagraph in question:

A person who, -

...

(d) being responsible for the storage of any firearm or ammunition, fails -

(i) to provide and use adequate storage facilities to ensure its safety;

(ii) where prescribed requirements as to security are specified in relation to a firearm or ammunition of a prescribed kind, to ensure that those requirements are observed; or

(iii) otherwise, to safeguard it from loss or improper use;

Penalty:

(a) for a first offence, a fine of $2 000;

(b) for a subsequent offence, imprisonment for 12 months or a fine of $4 000.

4 At the trial counsel for the accused formally admitted that the firearms were firearms for the purposes of the Firearms Act, that they were located in the respondent's bedroom up against a wall and that they were then not secured in a firearms cabinet. The only challenge in respect of the prosecution's evidence of the police finding the firearms as I have indicated was that the police had entered the house on McKanna Gardens unlawfully, and that their evidence obtained as a result should be excluded in the exercise of the discretion considered in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54. If that evidence were excluded, it had been put to the learned magistrate, there would be no case for the respondent to answer. The learned magistrate decided that the entry was lawful, and, even if it was not, the evidence should not be so excluded. Before me there was no challenge to that decision.

5 Following that decision, the respondent gave evidence. In material parts that evidence in his examination-in-chief was as follows (3 June 2009, ts 4 - 6):

So the date, 20 March [2008], would you tell his Honour when those firearms came to the house at McKanna Gardens?---On the 19th I went to our previous address because [we] had a two-week overlay so we could move things from one house to the other. On 19th, the evening of the 19th I went there, picked up my gun cabinet with my rifles, brought them to the McKanna Gardens address with the intention to bolt the guns in.

Okay. Now, had you had the cabinets bolted in at the previous address?---Yes, I had.

So if you had moved from Parmelia Avenue to McKanna Gardens approximately two weeks ago, prior to 20 March [2008], why were the guns left at Parmelia Avenue?---Due to the fact that where I needed to bolt them in which is my bedroom, the walk-in-robe, one of the walls backs onto the bathroom and the shower recess so I had to ask permission from owner to bolt the guns cabinet in or where or could bolt the gun cabinet in so I didn't hit any of the water pipes or anything like that.

Would you just explain to his Honour what you did on the 19th, about what time did you go back to the Parmelia Avenue house?---It was roughly 4.30 I think when I went to the Parmelia house and started unbolting the gun safe. I retrieved the gun safe - - -

HIS HONOUR: Sorry, this is on 19th?---On the 19th, yes. I went back to the McKanna Gardens address with the gun safe. I went to put the gun safe into the house. Sorry, I had tea first, went to put the gun safe - bolt the gun safe in and subsequently we lost power.

WALLS, MR: So did you have the equipment to put the gun safe in at McKanna Gardens?---Yes, the Dyna bolts were in the boot of my Statesman vehicle and the electric drill was in the shed.

It was in the shed?---Yes.

Okay. So what time do you believe you arrived back home at McKanna Gardens?---Roughly 5.30ish.

5.30, and did you take the firearms from - where did place them at?---I took the gun cabinet straight into the shed and I grabbed my rifles out of the shed and put the guns into my bedroom.

In the bedroom?---Yes.

You say you were in the process of fitting the cabinet when the power went off?---That's correct.

What time did the power come back on?---It was roughly - it was late so we'd gone to bed by that stage.

You'd gone to bed by that stage?---Yes.

Now, the house at McKanna Gardens, is that a rental property or do you own that property?---No, it's a rental property.

It's a rental property, okay, and the police have testified that they located those firearms in the corner of your bedroom. Is that where you had put them?---That's correct, yes.

At any time during - from the time that you placed those firearms in the bedroom to the time that the power went out, had you at any stage left those firearms unattended?---No, I hadn't.

When the power went out was it daylight or was it dark?---It was just getting on dusk, so it was around 7.30ish.

At this point in time, the firearms cabinet was in the shed at McKanna Gardens?---Yes, that's correct.

Unbolted from the property at Parmelia Avenue?---yep.

So after the power went out, what did you do?---Well, we went to bed. The guns were in my bedroom which was under my possession. The house was fully locked up with security screens and everything around it and I thought the guns would be safer in my bedroom rather than in the gun safe unlocked.

What is the distance from your bed to where the firearms were in the corner of the room?---A metre and a half.

A metre and a half, and you slept in that bedroom all night?---Yes, I did.

...

WALLS, MR: You said that - you mentioned security. What security have you got on the house?---We've got full security screens with locked doors and flyscreens and things, rollershutters to the front of the house.

Have you watched any of the search videos from the police?---Yes, I've seen one.

Is there anything that you would like to comment on in relation to those videos that you saw?---If you look at one of the videos, you'll see that there's an alarm clock flashing in our bedroom which indicates that the power went out that night.

So was there any way that you could have bolted that cabinet in and complied with the legislation on that night after the power went out?---No, there wasn't.

6 Magistrate Gluestein's reasons for his decision to acquit Mr Chitty of the charges concerned were as follow (5 June 2009, ts 2 - 3):

It very clearly was the prosecution case that Mr Chitty, following what I found to be a lawful search by police officers, had firearms and associated items located in an unstored fashion, or should I say not adequately stored as is required by the Firearms Act. They were located in his bedroom. That, prima facie, founds the proper charges that were levied against Mr Chitty.

Following the giving of evidence in his defence Mr Chitty puts to the court that he had not really - it is my own language, it is not necessarily a language that is befitting of the particular legislation but he had a reason for the firearms and associated items not at that particular time to be adequately stored as is required by the act.

He in evidence had indicated that he had been living - had only just moved into the premises of 24 McKanna Street and he was in fact living there on the date in question, 20 March [2008]. He had previously been living in an address elsewhere. As I recall Parmelia Avenue. He has and has been the holder of a firearms licence/licences for some 14 years and for what it is worth I was told he has no convictions relating to firearms matters.

He was in the process, he said in his evidence in defence, of shifting house from Parmelia Avenue to McKanna and this he was doing partly on 19 March 2008 ... and he had the intention late that afternoon, he says, of bolting the appropriate storage unit into his bedroom where he would then be storing the firearms and associated items.

Some time that afternoon there was a power failure, he says, and he was unable therefore to use the electric drill to fix the dyna-bolts into the wall. By an interesting twist of fate the police arrive on the scene the next day or the next morning in connection with other matters and of course as we know locate the firearms in an unstored or inadequately stored manner.

The proposition put to the court is that there must be necessarily times when a person with a firearms licence has those items and in a situation where they are not stored in the appropriate facility. For example, in transit when the person holding the licence might be heading off to a farm for shooting purposes or to a club, for sporting pursuits in relation to those firearms.

Thirdly, defence counsel would put it to me that this is a situation as per the evidence of the accused where necessarily for a period of time the guns and associated items in transit from one house to the other would not be properly stored and of course logic says that that is quite correct.

It is significant that the accused was not cross-examined to any great extent on these points about the transfer from one house to the other, the power failure, so that on his evidence I can accept that there may have been a reasonable excuse for him to have those firearms in the manner that he had them when police arrived to do their search of the premises.

When I read into the provisions of subparagraph (a) of section 23(9) of the Firearms Act quite clearly the proposition put to me by defence counsel would seem to be inferred in the legislation. What I am left with is that there is the possibility on the defence case that there was a reason for the firearms to not be appropriately stored. That leaves a doubt in the prosecution case and I must therefore acquit which I now do, Mr Chitty.

7 Firearms Act s 23(9)(a) referred to by the learned magistrate makes a person guilty of an offence who

whilst carrying, or in actual physical possession of, or having the custody or control otherwise than by way of storage of, any firearm or ammunition, fails or omits to take all reasonable precautions to ensure its safe keeping.

8 It will be noted that none of RO 5721 - RO 5724 was of an offence against that paragraph.

9 By appeal notice dated 3 July 2009 the appellant sought leave to appeal against the decision of the learned magistrate to acquit the respondent of the charges in RO 5721 - RO 5724. The grounds of appeal were as follow:

1. The learned Magistrate erred in law by applying the wrong test under section 23(9)(d)(i) of the Firearms Act 1973 (WA) ('the Act') in finding that the Accused had a reasonable excuse for failing to store the firearms in accordance with the Act; and
2. The learned Magistrate erred in law by finding that the firearms were 'in transit' and therefore erroneously applying section 23(9)(a) of the Act.

10 On 21 July 2009 Blaxell J of this court gave leave to appeal on these grounds.

11 I will deal with the grounds in that order. As will be seen, they both raise questions in the construction of the Firearms Act, and in the case of ground 2 in its application, of some difficulty.

Ground 1: reasonable excuse and s 23(9)(d)(i)

12 The reasons of the learned magistrate are in my view not altogether clear as to the basis or bases on which he proceeded.

13 On one view of his reasons, reflected in ground 1, he proceeded on the basis that there was an element of the offence in Firearms Act s 23(9)(d)(i) which was implicit ('inferred in the legislation', as the learned magistrate put it) in the provision. That element was that the offender did not have a 'reasonable excuse' or 'reason' not to comply with the subparagraph. If the evidence raised a reasonable doubt in that respect, the verdict would have to be one of acquittal.

14 Counsel for the appellant contended that the effectively unchallenged evidence on which the learned magistrate relied for this purpose was that the power failure prevented the respondent from installing the firearms cabinet.

15 It might also be contended, although counsel for the appellant appeared not to do this, that the learned magistrate also relied for this purpose on the effectively unchallenged evidence that the firearms were 'in transit' or in the course of 'the transfer from one house to the other'. On the latter contention the learned magistrate proceeded on the basis that there was unchallenged evidence that the power failure prevented that transit or transfer from reaching its conclusion, raising the reasonable doubt referred to.

16 On another view of the reasons of the learned magistrate, he proceeded on the basis, rather than or in the alternative to the previous basis, that there was a different element of the offence in Firearms Act s 23(9)(d)(i), one which was also implicit (again as 'inferred in the legislation', as the learned magistrate put it) in the provision. That element was not an excuse from criminal responsibility; rather it was one of the conditions for the application of s 23(9)(d)(i). The condition was that the obligation to store in s 23(9)(d) ('being responsible for the storage') had arisen in the circumstances of the case. If the evidence raised a reasonable doubt that those circumstances had arisen, the verdict would have to be one of acquittal. Unchallenged evidence that firearms were in 'transit' or 'transfer' from one place to another, at least in the form of the evidence in this case, was sufficient so that the prosecution to secure a conviction had to negative, but had not, that the condition had been met.

17 Ground 2 appears to me to reflect this view of the learned magistrate's reasons, and I return to that view in that context.

18 Returning to the present ground, is there an element in Firearms Act s 23(9)(d)(i) of lack of reasonable excuse or reason not to comply with that subparagraph? In my view the answer to that question is no, for the following reasons.

19 The only provisions in the Firearms Act which employ the language of 'reasonable excuse' are s 23(10), s 23(10a) and s 23(10b). With regard to s 23(10) and s 23(10a), those are offences respectively of 'without reasonable excuse' using a firearm on land belonging to another, in certain circumstances; and of 'without reasonable excuse' carrying a firearm on to or across land used for or in connection with primary production, in certain circumstances. Section 23(10b) states the holding of a permit issued under the Wildlife Conservation Regulations 1970 (WA) shall not be taken to be a reasonable excuse for the purposes of s 23(10) and s 23(10a).

20 However, there are a number of provisions in the Firearms Act, of which s 23(9)(a) is one, which define a contravention in terms of not taking 'all reasonable precautions' (see also s 17B(3)(d), s 23(9)(b)) or not taking 'all reasonable steps' (s 21B(1)(a)(ii)), or which allow for a defence of the taking of 'all reasonable steps' (s 23(13)(a)) or for having a belief on 'reasonable grounds' (s 23(13)(b) and (c)).

21 It might then be said that where the legislature uses different language (here lacking any reference to reasonableness) relating to a similar matter (being contraventions of the legislation) it is a 'reasonable assumption' that there is a 'deliberate intention to deal with [the matter] differently': see Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed, 2006) [4.28].

22 However, as that source indicates, this maxim of interpretation, expressio unius est exclusio alterius, is applied 'with extreme caution'.

23 It might also be noted that there is no excuse from criminal responsibility for cases of a reasonable excuse kind among the provisions in Criminal Code (WA) (the Code) pt I ch V 'Criminal Responsibility'. It is clear that those provisions applied to the offence in this case: see Tomarchio v Pocock [2002] WASCA 156; and see also Code s 36. Further, no provision in the Code outside pt I ch V was cited to me as relevant in this case: compare Tomarchio [24] (Pullin J), on the application of Code s 248 and s 250 in that case.

24 As to the possibility for the importation of common law concepts of criminal responsibility, I note BRK v The Queen [2001] WASCA 161 [21] - [22] where Murray J with whom Parker J agreed said this:

Learned senior counsel developed his argument in respect of this ground by relying strongly upon the common law and the requirement to establish mens rea, that the alleged criminal conduct should be intentionally or knowingly performed as an element of any offence not defined in terms which clearly import strict or absolute liability. Reliance was placed upon the exposition of the law by the High Court in He Kaw Teh v Queen [1985] HCA 43; (1984) 157 CLR 523. Counsel argued that such an element of the offence is, perhaps sub silentio, required in respect of the offences defined in the Criminal Code at issue in this case, as a matter of the ordinary construction of the Code and consistently with the law in other jurisdictions, referring to the decision of the House of Lords in DPP v Morgan [1975] UKHL 3; [1976] AC 182 with respect to the common law offence of rape.

Whatever may be its validity in the context of a jurisdiction where the law as to criminal responsibility is the common law, the argument may not, in my opinion, be sustained in a jurisdiction such as this where the criminal law is that defined in the Code, which contains the provisions governing criminal responsibility in respect of offences against the law of WA (as s 36 of the Code makes clear). The relevant provisions are, of course, to be found in Chapter V of the Code, a document which is not to be interpreted on the basis that it is engrafted upon the common law which remains as a substratum of law underpinning the provisions of the Code, so to speak, to the extent that those provisions do not expressly alter the previously existing common law. On the contrary, being a code, the Criminal Code is to be taken to provide the whole of the law in respect of the criminal responsibility of persons charged with criminal offences: Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, 263; Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289, 309; Ward v The Queen [1972] WAR 36, 41-42.

25 However, beyond provisions in the Code relevant to criminal responsibility there may be further qualifications of criminal responsibility made by the legislative provision defining the offence: such qualifications may be made by express words or by necessary implication. See R v Hutchinson [2003] WASCA 323; (2003) 144 A Crim R 28 [31] (McKechnie J, with whose judgment Malcolm CJ agreed; see also [10], Steytler J).

26 In this case, counsel for the respondent submitted that the language of Firearms Act s 23(9)(d)(i) should be seen to require that an offender had deliberately or intentionally not done what he otherwise was required to do. If by that counsel meant that an offender must have engaged in conduct with a consciousness of wrongdoing as that is understood in the common law on mens rea, the submission would be difficult to square with the approach to He Kaw Teh v The Queen [1985] HCA 43; (1984) 157 CLR 523 in BRK [21], above. However, as I understood the submission counsel was putting to me, by it he meant that an accused who had undertaken the task of doing all he reasonably could to provide and use adequate storage facilities, but had been prevented, by an unintended and unforeseeable event, like a power failure, from completing that task, could not be said to have contravened s 23(9)(d)(i). The language in s 23(9)(d)(i) that produced that result was 'fails', read in its context.

27 Counsel drew on two matters of context. One was the use in Firearms Act s 23(9)(a) of 'fails or omits'. The other matter of context was in s 23(9)(d)(i) itself, of 'fails ... to provide and use' (emphasis supplied).

28 In evaluating this submission, I begin by noting that there is a significant body of authority on the range of meanings 'fail' may have in legislation and other legal contexts. The meaning proffered by counsel for the respondent seems to me capable of being accommodated within that range.

29 It suffices for my purposes to set out the following two statements concerning the description of some of the meanings of 'fail' in what appears to be the leading authority of Ingram v Ingram (1938) 38 SR (NSW) 407, 410 (Jordan CJ).

30 The first statement is from Hill v Holmes [1999] FCA 760; (1999) 92 FCR 120 (Goldberg J). His Honour was concerned to construe the phrase in Health Insurance Act 1973 (Cth) s 105, 'fails to comply with the requirements of the notice under paragraph 104(2)(b)'. That paragraph provided for a notice to a medical practitioner to appear and give evidence at a hearing into a question of inappropriate conduct by the practitioner. Goldberg J said this at [34] - [35]:

The word 'fails' may have a number of meanings depending upon its context. It can mean simply an omission or the fact that something does not happen, that is to say mere non-fulfilment; it can also mean that something has not happened because of an element of culpability or responsibility. In Ingram ..., Jordan CJ pointed out that the word 'fail' may have at least three possible meanings. His Honour said at 410:

where it is provided by statute that certain consequences shall follow if a person fails to do something which is directed to be done, the meaning of the word 'fail' depends upon the context in which it is found. In some contexts it may mean simply the omission to do the thing in question, irrespectively of any reason which may have existed for his not doing it ... In other cases it may mean an omission to do the thing by reason of some carelessness or delinquency on his part, but not omission caused by impossibility for which the person in question is not responsible ... In other cases, it may mean omission to do the thing, but so that omission caused by impossibility arising from some causes is included and from others is excluded ...

As Kirby P (who dissented on the point of construction before the Court) pointed out in CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 609:

There are doubtless several other combinations of circumstances which do or do not attract the verb to fail ...

Scrutiny of judicial observations on the word 'fails' (or relevant variants of the verb 'to fail') discloses, as one would expect, differing meanings attributed to the word in differing contexts. In some contexts, the courts have been at pains to confine the word to circumstances evincing default or moral blame on the part of the person alleged to have failed ...

On the other hand, an equally lengthy catalogue of cases can be assembled to illustrate the applicability of the words to circumstance where there is absolutely no suggestion of delinquency on the part of the person alleged to have failed, but simply an omission on that person's part to do something required or expected.

Although these observations were made in the context of construing an agreement between two parties, they are equally applicable to a context of construing a statutory provision. There are numerous cases where the expression 'fails' or 'failure' has been construed but those cases are of little assistance because the relevant statutory provisions and contexts are quite different from the present circumstances. The Director relied on R v Hulme (1870) LR 5 QB 377 at 385 where the relevant statute entitled a witness called before an inquiry into electoral corruption to a certificate protecting the witness from prosecution where the 'witness shall answer every question relating to the matter aforesaid'. The Court held that this provision obliged the witness to give true answers. However that statutory context is sufficiently far removed from the present context to be of little assistance in the present circumstances.

31 The second statement is from R v Mokbel [2006] VSC 158; (2006) 199 FLR 176 (Gillard J). His Honour was concerned to construe 'failed to observe a condition of bail' in Crown Proceedings Act 1958 (Vic) s 6(1). After quoting the passage in Ingram also quoted in Hill, Gillard J said this, referring to Project Blue Sky Inc v ABA [1998] HCA 28; (1998) 194 CLR 355 [34]:

It is trite to observe that what the words 'has failed' mean must be determined giving effect to the purpose of the Act and, after considering the words in context, taking into account the Act as a whole. The object of statutory construction is to determine what Parliament intended. The primary source of the intention is the words used, construed in their normal and natural meaning, in context and after considering the statute as a whole. Statute requires a court to promote the purpose or object underlying the Act in preference to a construction that would not promote that purpose or object. See s 35(a) Interpretation of Legislation Act 1984. In Project Blue Sky ... four members of the High Court said: [384]

However, the duty of a court is to give the words of the 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. But not always. 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 the legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

32 Interpretation of Legislation Act 1984 (Vic) s 35(a) referred to in Project Blue Sky corresponds word for word in all material respects to Interpretation Act 1984 (WA) (Interpretation Act) s 18.

33 In my view 'fails' in s 23(9)(d) means non-compliance with the requirements in s 23(9)(d)(i) to (iii) by a person 'responsible for the storage of any firearm or ammunition'. In terms of the descriptions in Ingram it means 'simply the omission to do something irrespective of any reason which may have existed for ... not doing it' by such a person.

34 I have reached that view by reference to the range just referred to of normal and natural meanings of 'fails', by consideration of the context of s 23(9)(d)(i) and by consideration of the Firearms Act as a whole. At the same time I have preferred an approach that would promote the object or purpose underlying the Firearms Act over one that would not in accordance with s 18 of the Interpretation Act. In considering the context of s 23(9)(d)(i) I have taken particular account of the matters counsel for the respondent directed to my attention; but I have concluded that they do not point away from my view of the meaning of 'fails'.

35 As to the range of normal and natural meanings of 'fails', it is apparent from Ingram that the meaning I have described is within that range.

36 As to the context of Firearms Act s 23(9)(d)(i), I have already referred to the use of the language of reasonable excuse elsewhere in s 23 and the language of reasonable precautions, reasonable steps and reasonable grounds elsewhere in the Firearms Act.

37 I have also taken account of the language 'being responsible for the storage of any firearm or ammunition' in Firearms Act s 23(9)(d) and the stipulations in each of s 23(9)(d)(i), (ii) and (iii). In my view, that language and those stipulations describe a duty imposed by the law for such a person to conduct themselves in the ways described.

38 I note in that regard the approach to the construction of Prevention of Cruelty to Animals Act 1920 (WA) s 4(1)(b) followed by Pullin J in Daniele v Weissenberger [2002] WASCA 346; (2002) 136 A Crim R 390 [14] - [15] as follows:

Section 4(1)(b) states that any person who fails to supply a specified animal with food or water, commits an offence. The word 'fail' does not mean 'does not'. If it did, then any person, even a person who did not know of the existence of the animals, could be charged and convicted. That would be an absurd result.

The word 'fail' in its ordinary meaning means 'a neglect to perform or observe' some obligation duty or requirement; a 'failure' to do something is, in its ordinary meaning, the 'non-performance of something due or required'. Macquarie Dictionary. Section 4(1)(b) is unusual because an Act will ordinarily expressly state the precise nature of the duty before stating that it is an offence to fail to observe the duty. Here there is no express statement of any duty. Section 4(1)(b) refers to a failure to feed and water animals, and because of the ordinary meaning of 'fail', there must be a 'duty' to feed or water the animals before an offence is committed. 'Duty' in its ordinary meaning is that which one is 'bound to do by moral or legal obligation' (Macquarie Dictionary) or 'an obligation assumed ... or imposed by law to conduct oneself in conformance with a certain standard or to act in a particular way' (Merriam -'Webster's Dictionary of Law', 1996).

39 As McLure J noted in Martino v Green [2001] WASCA 181; (2001) 123 A Crim R 301 [30] the Firearms Act 'does not expressly deal with who is responsible for the storage of a firearm or in what circumstances the obligation to store arises'.

40 Her Honour's answer to the first question, at [33], of who is responsible, was as follows, in which she refers to Firearms Act s 23(9)(d)(i) and (ii) as well as s 11(7)(b):

Having regard to the nature and extent of the obligations in s 23(9)(d)(i) and (ii) and on a proper construction of the Act as a whole, 'a person responsible for storage' would include the holder of the licence for the firearm. This conclusion is supported by s 11(7)(b) of the Act which provides that the Commissioner may refuse an application for a licence if satisfied that the applicant has:

(b) failed to give the Commissioner, when requested in writing by a member of the Police Force to do so, a statement in the prescribed form as to what the applicant has done, or intends to do, to ensure that any firearms or ammunition in the applicant's possession are stored in accordance with this Act.

41 I return below to her Honour's answer to the second question, of in what circumstances the obligation to store arises, as I consider that answer is relevant to ground 2 and not to the present ground.

42 I consider that my view of the meaning of Firearms Act s 23(9)(d)(i) is to be preferred to a meaning which would qualify the obligation in that section as contended for by counsel for the respondent. This is on the basis that the former meaning would, in the terms of Interpretation Act s 18, promote the purpose or object underlying the Firearms Act where the latter meaning would not.

43 As to that purpose or object, there are a number of authorities on the construction of provisions in the Firearms Act which have emphasised its policy of protection of the public. See Binns v Gardiner [2002] WASCA 337 [66] read with [55] (Hasluck J), on whether the power to disqualify in s 27 for a 'period' authorised a permanent disqualification; and Coumbe v Whittaker [1999] WASCA 151 [14] and [20], on the principles to guide the discretion to forfeit firearms in s 28 and disqualification under Sentencing Act 1995 (WA) s 106.

44 I particularly note Turner v Keegan [2001] WASCA 9, on whether Firearms Act s 23(9)(d)(ii) extended to the prescription by the Firearms Regulation 1974 (WA) reg 11A of all firearms and ammunition. That regulation requires firearms and ammunition be 'stored in a locked cabinet or container' (reg 11A(2)) and is described in Martino [16] as follows:

Regulation 11A of the Firearms Regulations 1974 is headed 'Storage security requirements' and subregulation (1) provides:

A person entitled to possess firearms or ammunition of any kind is to ensure that the firearms or ammunition are stored in accordance with this regulation.

The firearms are to be stored in a locked cabinet that meets the specifications described in schedule 4 or in such other way as is approved (reg 11A(2)). The specifications deal with how the storage cabinet is to be constructed, locked and anchored.

45 In Turner at [17] Miller J said this (emphasis supplied):

In my view it was open to the legislature to prescribe by reg 11A all firearms and/or ammunition in the possession of any persons entitled to possession thereof as firearms or ammunition 'of a prescribed kind' within the meaning of s 23(9)(d)(ii). Regulation 11A therefore prescribes the requirements as to security required for firearms or ammunition of a prescribed kind within the meaning of s 23(9)(d)(ii) and does so in relation to persons responsible for the storage of firearms or ammunition just as much as it does in relation to persons entitled to possess firearms or ammunition, who are required by reg 11A(1) to ensure that those firearms or ammunition are stored in accordance with the Regulations. To the extent that there is any ambiguity in s 23(9)(d)(ii) I conclude from the second reading speech of the Minister for Police in the Assembly on 26 September 1996 that the clear intention of parliament was that all firearms and ammunition were to be stored in accordance with requirements prescribed in the Regulations then to be introduced in the form of reg 11A. Those Regulations were gazetted on 6 December 1996 which was the date upon which the Firearms Amendment Act 1996 commenced. The Minister's second reaching speech highlighted the concerns within Australia, and particularly within the Australian Police Minister's Council about firearm licensing control and security in Australia in the wake of the 1996 Port Arthur incident, and it is apparent that parliament desired the most stringent requirements for the storage of firearms and/or ammunition. It is therefore not surprising that by reg 11A firearms or ammunition 'of any kind' were prescribed for the purposes of s 23(9)(d)(ii) of the Act. Although one might generally expect something of 'a prescribed kind' to be less than the whole, there is no reason in law why the total of all firearms and/or ammunition cannot be prescribed as a 'prescribed kind' of firearm or ammunition for the purposes of the section.

46 His Honour's reference to the Minister's second reading speech appears to have been that for the Firearms Amendment Bill 1996, which as the Firearms Amendment Act 1996 (WA) (Firearms Amendment Act), by s 25(g)(v) of that Act, added Firearms Act s 23(9)(d). I note the following passage from that speech, Western Australia, Parliamentary Debates, Legislative Assembly, 26 September 1996, 6306 (Mr R L Wiese, Minister for Police):

Clause 25(g)(iii) will in section 23(9) delete the word 'knowingly'. This and other offence provisions have had the word 'knowingly' deleted to refocus the responsibility on the person for doing or omitting to do an act.

It has been confirmed by legal advice obtained from the Crown Solicitor's Office that section 23 of the Criminal Code offers adequate protection for persons from being prosecuted in instances when a breach of the Act or regulations results from an act or omission that occurs independently of that person's will, or for an event that occurs by accident. Under that section, an act occurs by accident if it is not intended, not foreseen and not reasonably foreseeable.

Clause 25(g)(v) will in section 23(9)(d) require a person who is responsible for the storage of a firearm and ammunition to store the firearm and ammunition in accordance with requirements prescribed in regulation 11A. The requirements, among other things, provide -

Firearms and ammunition are to be stored in a metal and lockable cabinet or container that at least meet the specifications described in schedule 4. However, where a person is able to satisfy the commissioner that they have a suitable alternative storage arrangement, the commissioner may approve of that arrangement. For example, the commissioner, under certain circumstances, may decide that in respect of certain types of firearms such as air rifles, single shot .22 calibre rifles and single shot shotguns, an approved locking device may be adequate. This will also enable the commissioner to approve existing adequate storage cabinets that have already been installed by many very responsible firearm owners, but which may not quite meet the new standard.

A magazine is not to contain any ammunition when stored.

Ammunition is not to be stored in a cabinet or container in which a firearm is stored, unless the ammunition is in another locked metal container that is securely affixed so as to prevent its easy removal.

47 I consider that passage tends to confirm my view of the meaning of 'fails' in Firearms Act s 23(9)(d): see Interpretation Act s 19(1)(a).

48 As to the use of 'fails or omits' in s 23(9)(a) to which counsel for the respondent directed my attention, it seems to me that the phrase is intended to ensure that not taking 'all reasonable precautions' is an offence, whether the conduct is in breach of some other duty ('fails') or it is not ('omits'). Thus it does not point away from my view of the meaning of 'fails'.

49 As to the use of 'provide' in s 23(9)(d)(i) to which counsel for the respondent directed my attention, counsel seemed to be suggesting this was not appropriate for an offender who could not be expected to be able personally to provide the 'adequate facilities'. However, I note the view of 'provide' which McLure J took in Martino [37] as follows:

However, it is necessary to give further consideration to the position of persons whose entitlement to possession derives from the licence and permission of a Corporate licence holder. Whilst it is to be expected that such persons would be obliged to use appropriate storage facilities as required in s 23(9)(d)(i) and (ii), the appropriateness of the obligation to 'provide' storage facilities is not immediately obvious. However, the word 'provide' would include a person who had an arrangement whereby he or she had access to conforming storage facilities.

50 I note facilities for storage from other sources, to which potentially a person may gain access and which the Firearms Act might be said itself to recognise for that purpose, are to be found described in s 32 (safe keeping in a strong room or otherwise by a holder of a Dealer's Licence, a Repairer's Licence or a Manufacturer's Licence) and, more clearly, s 33(3) (Commissioner of Police may at the request of an owner and at the Commissioner's absolute discretion accept any firearm or ammunition for safe custody).

51 It might be suggested, however, that where it was impossible to 'provide' such facilities there would be no criminal responsibility for what would otherwise be a contravention of Firearms Act s 23(9)(d)(i). Support for such a limitation in connection with such an obligation might be found in Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; (1962) 107 CLR 279, 291 (McTiernan J) (on 'fails' in the Excise Act 1901-1952 (Cth) s 60(1)(a), making a person liable to pay excise duty who, entrusted with possession, custody or control of excisable goods subject to the control of the Customs, 'fails to keep those goods safely'). I do not believe I need to further consider any such qualification, as in my view the evidence before the learned magistrate did not raise any question of impossibility that the prosecution would have been called on to negative. That evidence related to the means of storage, the firearms cabinet, the respondent had attempted to anchor, and the re-location of the firearms to his bedroom. His evidence was not as to the impossibility of other means of dealing with the firearms.

52 My conclusion also makes it unnecessary for me to address in any detail the contention for the respondent that on the evidence he had sufficiently raised the defence in Code s 24 of honest and reasonable but mistaken belief. That evidence was of an honest and reasonable belief that by keeping the firearms in his bedroom overnight as he did, in the circumstances that presented themselves to him, he had complied with Firearms Act s 23(9)(a). By that I understood it to be contended he honestly and reasonably believed he had taken 'all reasonable precautions to ensure [the firearms'] safe keeping'.

53 However, I would indicate I do not understand how such a belief, as to such compliance, could be relevant: the belief would appear to be one as to the application of a proposition of law, that the taking of such precautions would be a defence to liability under Firearms Act s 23(9)(d)(i), and therefore Code s 24 would have no application to it. See Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493.

54 I consider then that to the extent the learned magistrate arrived at the conclusion he did on the basis that there was a reasonable excuse or reason for non-compliance with Firearms Act s 23(d)(i) he erred in law in the way assigned in ground 1. Thus I would uphold that ground.

55 However, as I explained at the commencement of this section of my reasons, it is not clear to me that the learned magistrate proceeded on that basis, or at least that he did so other than as an alternative to the other basis I identified. That other basis takes me to ground 2.

Ground 2: transit and s 23(9)(d)(i)

56 I understood counsel for the appellant to accept that the respondent, if he had been in possession otherwise than by way of storage, as that phrase is to be understood in the context of the Firearms Act, could not commit any of the offences in s 23(9)(d).

57 In any event any other view would be inconsistent with the answer to the question of the circumstances in which the obligation to store in that section arises that McLure J gave in Martino. Her Honour at [42] said this (emphasis supplied):

Section 23(9)(d)(i) imposes an obligation to use adequate storage to ensure safety (and safety of the firearm is not co-extensive with loss or improper use of the firearm: Condition 5 of Div 1 of Sch 1 of the Security Act). On its proper construction, subparagraph (iii) imposes an obligation in broad terms to safeguard by way of storage a firearm from loss or improper use. It is to be inferred from these subparagraphs and the Act as a whole that a firearm is to be stored unless it is lawfully in a person's possession otherwise than by way of storage.

58 I consider that McLure J was referring to 'possession' as defined in Firearms Act s 4 as follows:

In this Act, unless the context otherwise requires -

...

'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.

59 The terms 'storage' and 'store' and variants of that verb are not defined in the Firearms Act. I return below to the meaning I consider should be given to those terms.

60 Further, none of the terms 'actual physical possession', 'custody', 'control', or 'access' is defined in the Firearms Act. What appears to be the principal authority from this jurisdiction on what those terms should be understood to mean in the Firearms Act is Keys v Kitto (1996) 90 A Crim R 288, 293 - 295, where Steytler J, having previously quoted the definition of 'possession' above, said this, referring to Moors v Burke [1919] HCA 32; (1919) 26 CLR 265, Yeates v Hoare [1981] VicRp 91; [1981] VR 1034, Warner v Metropolitan Police Commissioner [1969] 2 AC 256 and Williams v Douglas [1949] HCA 40; (1949) 78 CLR 521:

The definition of 'possession', which I have set out above, extends the meaning of that word beyond that of 'actual physical possession' so as to encompass also 'custody or control' and 'having and exercising access' to the thing possessed 'in any place either alone or in common with others'. Consequently '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 ...) or 'having and exercising access' to the firearm.

...

The words 'custody or control' were considered by Kaye J in Yeates .... In that case, the respondent's wife, Mrs Hoare, bought a shotgun for which she held a shooter's licence and, with her husband's knowledge, placed it under the bed in the main bedroom in the flat which they rented. A fortnight later she left the respondent to live elsewhere, leaving behind the gun. She did so because it was inconvenient for her to carry it and her immediate personal requirements while travelling with her child in a tram. The next day, police searched the flat and found the gun where Mrs Hoare had left it. The respondent was charged with having in his possession a firearm for which he did not hold a shooter's licence.

Section 22AA(1) of the Firearms Act 1958 (Vic) provided, so far as is relevant, that: '... no person shall have in possession or carry a firearm ... unless he holds a shooter's licence ...'

Section 3 of the Act defined 'possession' in relation to a firearm, as including: 'as well as the actual physical possession thereof, the custody or control thereof or the having and exercising access thereto either solely or in common with others.'

Moreover, s 40(1) of the Act provided that: 'Any person who occupies any land or premises or that part of any premises on or in which any firearm ... is found shall for the purposes of this Act be deemed to be in possession of that firearm ... unless the contrary is proved.'

Kaye J said (citing Warner ... at 304) that, in construing the word 'possession' one should attempt to reach a construction, from the apparent intention of the Act itself, which was not so narrow as to stultify the practical efficacy of the Act or so broad that it creates absurdity or injustice. He considered that the object of the Victorian Act was that of restricting and controlling the availability of any lethal firearm. His Honour went on to say (at 1038 - 1039):

Possession as defined by the Act, however, is not limited to possession according to doctrines of civil law, or to actual possession as interpreted in Moors .... It embraces the factual situation of a person, unendowed with any propriety or exclusive possessory rights, having the physical custody or control of a firearm, and to the factual situation of a person who has and exercises access to a weapon, whether alone or shared with others. The word "custody" in the definition does not have any legal or technical connotation. Its meaning in this statute is the ordinary dictionary one of safe keeping, protection, charge or care: see Shorter Oxford Dictionary, 3rd ed, vol 1, p442. Similarly, control denotes actual power to deal with the article in question by restraint or direction: [cf] Williams ... at p528, per Rich J. There is no warrant for qualifying either the words 'custody' or 'control' or 'access' with any legal doctrine of possessory rights, nor is there any justification for reading down the words by importing the need for some physical act in connection with the weapon consistent with ownership or dominion.

His Honour went on to say (at 1039) that, even if the presumption provided for by s 40(1) of the Victorian Act was put to one side, the application of the principles of law to the evidence compelled the conclusion that the respondent's wife had left the gun 'in his care for safekeeping, albeit for a short period, and that at the time the weapon was found it was in the respondent's physical custody and under his control'.

61 Steytler J's description of 'custody or control' in Keys (293) was referred to with approval in Lester v Booth [2000] WASCA 155 [13] (Miller J).

62 Counsel for the appellant put to me that at the time when the respondent fell asleep he ceased to be in 'possession' in the sense of any of the terms used in the definition of 'possession' in Firearms Act s 4. As I understood his submission, the firearms at that point were not 'lawfully in [his] possession otherwise than by way of storage' within Martino [42] (emphasis supplied). As the respondent was the holder of the firearms licence for the firearms, the respondent was at that time under the obligation of storage described in s 23(9)(d), including s 23(9)(d)(i): see Martino [30], [33] and [42].

63 I took it from that submission that whether or not the firearms could be seen at that time to be in 'transit' from the respondent's former house to the storage facilities in the respondent's new house was irrelevant, let alone whether or not s 23(9)(a) applied. Indeed, on counsel's analysis, it is difficult for me to see how s 23(9)(a) could apply: it would seem on that submission that at that time the respondent could not have been a person 'carrying', 'in actual physical possession of' or 'having custody or control ... of' the firearms.

64 In my view, if the respondent did not have 'possession' of the firearms while he was asleep, the obligation of storage in Firearms Act s 23(9)(d)(i) arose, and the question whether or not at that point the firearms were in transit would indeed have been irrelevant.

65 However, I consider that the respondent did have 'possession' of the firearms while he was asleep, for the following reasons.

66 As to the matter of whether Firearms Act s 4 'possession' is capable of applying to a person who has fallen asleep, I note there is no requirement that the 'possession' be knowing. Indeed the former additional requirement for knowledge for the purposes of offences within Firearms Act s 23 was removed by Firearms Amendment Act, as explained in the Minister's second reading speech as quoted above.

67 At the same time, I note Code s 23, on acts or omissions occurring independently of the exercise of a person's will, the application of which to 'possession' was not explored with me.

68 However, whether or not an act or omission with respect to a firearm cannot occur independently of the exercise of a person's will where that person is unaware of the firearm, it seem to me that taking a firearm into a bedroom and having it near the taker while he or she slept there is capable of being 'custody or control', if it is not 'actual physical possession' in the sense in Moors described as a possible meaning under the Firearms Act in Keys (293) ('personal physical control'). At the least this is so in this case where, on the uncontradicted evidence of the respondent, he had 'thought the guns would be safer in my bedroom' and the house was 'fully locked up with security screens and everything around it' (3 June 2009, ts 6).

69 However, counsel for the appellant put to me that the obligation to store arose in circumstances where the person responsible for storage was no longer able to exercise 'preventative control'. That was this case, he said, as soon as the respondent's wife and, as I understood the submission, the other occupants of the house, being the respondent's two daughters, had access to the firearms in the bedroom. That, it was said, occurred when the respondent fell asleep, although I was not directed to any evidence that the other occupants did have access to the bedroom. The only relevant evidence appears to be the testimony of the respondent in cross-examination, that his wife on the night in question did not sleep in the bedroom (3 June 2009, ts 7), and in his examination in chief, that the following morning she had awakened him (3 June 2009, ts 6).

70 For the purpose of this submission, counsel referred me to the offence in Firearms Act s 19(2)(c) which reads as follows:

A person who -

...

(c) permits another person to be in possession of a firearm or ammunition,

commits an offence if the other person is not the holder of a licence or permit under this Act entitling him to possession of it unless it is a disposal of ammunition under section 30(2) or section 8 applies.

71 Counsel put to me that the respondent's wife did not have such a licence or permit, although I was not directed to evidence before the learned magistrate to that effect, and I could not find such evidence. Counsel admitted there was no evidence as to the daughters, although on the evidence as to their ages, of 14 and 3, a licence could not have been issued to either, because of Firearms Act s 10.

72 Counsel's submission was that by falling asleep with the firearms in the bedroom to which the respondent's wife and daughters had access the respondent committed the offence under s 19(2)(c), which caused the obligation to store to arise.

73 There is support for such a view of when the obligation to store arises, counsel put to me, in Horsman v Bishop [2000] WASCA 316, which I took to be a reference to [27] (Murray J).

74 In Horsman the appellant, who was the holder of a firearms licence, had, it was said, taken firearms to the farm of a friend and placed them in the rear of a disused ambulance there without telling the friend where the firearms were. Murray J, after noting the breadth of the definition of 'possession' in Firearms Act s 4, said this ([27]):

Patently, if, for whatever reason and in whatever circumstances, the appellant relinquished possession even in that wider sense by placing a friend in unlawful possession of the weapon, he would breach the Act, s 23(9)(d)(i), if not by failing to provide adequate storage facilities to ensure the safety of the weapon, then by failing to use such facilities while keeping the weapon in his possession.

75 In my view, if the holder a firearms licence has not 'relinquished' 'possession' in the sense of all of the terms in the definition of 'possession' in Firearms Act s 4 then that construction of s 23(9)(d)(i) has no application. It is quite possible under the Firearms Act more than one person may have 'possession' of a firearm: see Martino [36]. The firearms, in my view, could still have been in the respondent's 'safe keeping, protection, charge or care', the meaning attributed to 'custody' in the Victorian legislation considered in Yeates as quoted in Keys. There was no evidence in my view that he had relinquished custody, to his wife or anyone else.

76 On this basis, it seems to me that the learned magistrate could have properly asked himself whether or not the prosecution had to negative beyond a reasonable doubt that the obligation to store in Firearms Act s 23(9)(d)(i) had not arisen because the respondent's lawful 'possession' was 'otherwise than by way of storage'.

77 It further seems to me the reasons of the learned magistrate could be read to indicate he did ask himself that question, after taking account of the language in Firearms Act s 23(9)(a) 'custody or control otherwise than by way of storage' as supporting the implication of the element of the offence in s 23(9)(d)(i). On the reasoning of McLure J in Martino [42] I do not consider that the learned magistrate was in error in finding such an implication.

78 In the event I arrived at such a conclusion, I understood ground 2 to be in effect that the learned magistrate had erred in answering the question yes, where the learned magistrate's basis for so doing was that the case was one 'as per the evidence of the accused where necessarily for a period of time the guns and associated items were in transit from one house to the other' (5 June 2009, ts 3). As I understood the ground of appeal, and the submissions of counsel for the appellant in support of it, this was an error as possession of the firearm in transit, at least in the circumstances of this case, was not capable of being seen as 'possession otherwise than by way of storage'.

79 I took this to be a submission that it had not been shown to the learned magistrate that, on the version of facts most favourable to the respondent that was suggested by material in the evidence, a finder of fact, acting reasonably, might fail to be satisfied beyond a reasonable doubt that the respondent's possession was otherwise than by way of storage. See WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [9] (Buss JA); see also [39] (Miller JA) and [128] (Murray AJA).

80 In my view possession of a firearm in transit is capable, at least in some circumstances, of being seen as 'possession otherwise than by way of storage'. Further, in this case the evidence, principally the respondent's evidence, in my view sufficiently raised the matter of such possession to justify the learned magistrate's conclusion that the prosecution to secure a conviction had to negative, but had not, that the respondent's possession was otherwise than by way of storage. The following are my reasons for arriving at those views.

81 It seems to me that possession of firearms by way of their carriage to a facility for, or in the course of, their use would be possession otherwise than by way of storage, as on my reading of his reasons the learned magistrate indicated was also his view.

82 I derive support for that view from Firearms Act s 16(1)(a), which reads (emphasis supplied):

The licences which may be issued under this Act are -

(a) a Firearm Licence, which entitles the holder to possess, carry, and lawfully use the firearm named and identified in that licence, and ammunition for that firearm.

83 It seems to me, as counsel for the appellant appeared to concede, that to apply the requirements of Firearms Act s 23(9)(d)(ii) to possession by way of the use of a firearm so described as lawful would produce an absurdity, which would point away from such an application: see Yeates, referring to Warner (304), as noted in Keys (294) above.

84 By the same reasoning, from absurdity, it seems to me that the possession of firearms by way of their carriage to a facility for the purpose of their storage at that facility would be possession otherwise than by way of storage.

85 It may be that such considerations explain why Firearms Act s 23(9)(a) does not qualify 'carry' or 'in actual possession of', as that paragraph does 'having custody or control ... of', by 'otherwise than by way of storage'. That is, the drafter did not envisage there would be many if any situations in which carriage or actual physical possession would not be otherwise than by way of storage. I return briefly to that matter below.

86 At the same time, on the meaning of 'storage' and 'store' and the variants on that verb, a meaning I reach shortly, it seems to me that possession during a significant interruption of use or carriage, where the firearms came to rest, would raise a question whether or not the possession continued to be otherwise than by way of storage.

87 I consider that for the purpose of determining whether the obligation to store has arisen by reason of such circumstances the phrase 'otherwise than by way of storage' should be viewed as meaning 'otherwise than as a method or means of storage': see Macquarie Dictionary (4th ed, 2005) 'way', 26, 'by way of', b (emphasis supplied). The term 'storage' should be interpreted as I will indicate. The view I have described makes the purpose of the possessor determinative. It is a purpose which is for his or her possession to be otherwise than a method or means of storage. I should add that the label the possessor gives his or her possession would not be determinative. Rather, what is determinative is how his or her purpose should be characterised.

88 I consider that on that view of possession 'otherwise than by way of storage' it would not be easy for a reasonable doubt to arise that possession, in a case where a firearm had come to rest during a transit, was 'otherwise than by way of storage'. That is, it would seem to me that an unexplained possession of such a kind would readily justify the finding beyond a reasonable doubt that possession was not 'otherwise than by way of storage'.

89 However, it is not apparent to me that such a view of possession 'otherwise than by way of storage' would exclude the possibility that in a particular case a reasonable doubt was possible.

90 I note that counsel for the appellant put to me that the policy of protection of the public underlying the Firearms Act referred to above, and the particular policy underlying the introduction of Firearms Act s 23(9)(d) by the Firearms Amendment Act described in the Minister's second reading speech previously quoted, would be best served by interpreting s 23(9)(d) and the term 'storage' for the purposes of the Firearms Act as requiring the use of secure storage facilities whenever firearms were not 'actively used'. I understood the submission to subsume active carriage of the goods within 'actively used'. Such an interpretation was necessary, on his submission, to give practical efficacy to the Firearms Act.

91 However, it seems to me that the ordinary meaning of 'storage' and 'store' and variants on that verb in the Firearms Act would stop short of producing that result. The Macquarie Dictionary (4th ed, 2005) defines 'storage', materially for my purposes, as 'the state or fact of being stored', 2, and 'store' as 'to deposit in a storehouse, warehouse or other place for keeping', 13. Further, it seems to me that a meaning of 'storage' in the terms of that ordinary meaning avoids the absurdities I have described. Nor as I will explain below, does it have the effect of freeing the possessor of any obligation under the Firearms Act for the safe keeping of the firearm: see s 23(9)(a).

92 In that light, I do not see the policy of protection of the public, or the particular policy underlying the introduction of Firearms Act s 23(9)(d) indicated by the Minister's second reading speech, as indicating that the ordinary meaning I have identified leads to a result that is manifestly unjust or unreasonable: see Interpretation Act s 18 and s 19(1)(b)(ii). Nor in my view is the interpretation contended for by counsel for the appellant necessary to give practical efficacy to the Firearms Act's obligations to store.

93 I should add that in my view the fact that an interruption of carriage to a facility for storage may be capable of description as part of the transit does not necessarily mean the possession during the interruption is 'otherwise than by way of storage'. I can readily envisage storage at various way points during intermodal transport: see the carrier's placement of excisable goods in a store at a wharf pending their shipment by sea in Southern Shipping.

94 The determination of whether or not an interruption of a carriage involves possession otherwise than by way of storage makes relevant, in my view, the circumstances of the interruption, including its causes, its nature and its duration, as objective evidence of the possessor's purpose. It seems to me that, at one extreme, a readily foreseeable interruption, of significant duration, would point away from possession otherwise than by way of storage. On the other hand, it seems to me that, at another extreme, an unforeseeable interruption, of relatively short duration, would not do so.

95 In this case, the evidence of the respondent was that he had removed the firearms from 'the shed' when he placed the firearms cabinet, into which he had planned to put the firearms, there. He had placed the firearms cabinet there because a power interruption had supervened at about 7.30 pm while he was 'in the process of fitting the cabinet', which was to be in the bedroom to which he had taken the firearms from the shed (3 June 2009 ts 5). Finally, 'after the power went out', 'we went to bed'; the power came back on 'roughly - it was late so we'd gone to bed by that stage' (ts 5 - 6).

96 In my view that evidence which was not challenged or qualified was sufficient to justify a conclusion by the learned magistrate that the prosecution to secure a conviction had to negative, but had not, that the respondent's possession was otherwise than by way of storage.

97 However, counsel for the appellant directed my attention to a number of cases in which there had been convictions for contraventions of subparagraphs in Firearms Act s 23(9)(d) involving the location of firearms in a home for a period during the course of what had been or might have been said to be a transit, and yet those convictions had not been questioned. See Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496, where the accused had pleaded guilty to a number of offences under the Firearms Act including one against s 23(9)(d)(i): in relation to that offending, the offender had 'just' moved farms and had not stored the firearms in an 'approved storage case', '[having] ordered a gun safe and expects that that will be arriving shortly' ([9], Roberts-Smith J, quoting from the plea in mitigation), and there was no appeal against that conviction; Robertson v Lawrence [2008] WASC 111, where the accused had pleaded guilty to a number of offences under the Firearms Act, including one against s 23(9)(d)(ii): in relation to that offending the offender had moved from rental premises where the firearms had been kept in a firearms cabinet 'properly stored' into a new home, 'but had not decided where to secure the cabinet', leaving it in the garage and placing the firearms 'under his bed for safekeeping' ([12], Jenkins J), and the firearms 'had only been unsecured for approximately a month' ([20]), and there was no appeal against that conviction; and Como and Commissioner of Police [2008] WASAT 1 where the applicant for review of a decision by the Commissioner of Police to revoke the applicant's firearms licence had been convicted of an offence against s 23(9)(d)(i): in relation to that offending a firearm had been seized 'at a time when it had been at Mr Como's residence for at least 36 hours' and '[d]uring that period, it was kept in an unlocked metal box', and it appears there had been no challenge to that conviction ([27)].

98 However, in none of those cases was the matter of possession 'otherwise than by way of storage' explored. In addition, those cases, on such of their facts as I can discern, are distinguishable from this case. In them, there was no indication of an unforeseeable interruption of a transit to storage facilities, and there were indications of longer periods over which the facilities used for the firearms were employed.

99 It is important at this point I note again that in a case of possession otherwise than by way of storage there is of course the possibility of an offence against Firearms Act s 23(9)(a) in respect of that possession. Thus there could be an offence under that paragraph where the firearm was being actively used or where the firearm was being carried.

100 However, I consider I do not need to determine whether or not there may be circumstances in which an offence might be committed both under Firearms Act s 23(9)(a) and s 23(9)(d)(i). On the face of it, on any view there would not be many, and on my view none where the offender had lawful 'possession' that was 'otherwise than by way of storage'.

102 I have upheld ground 1, but I have not upheld ground 2.

103 On my view of the reasons of the learned magistrate, this appeal could not succeed solely on the basis of upholding ground 1.

105 Were it necessary to do so, in my view this appeal would fail in any event on the application of the proviso in Criminal Appeals Act 2004 (WA) s 14(2). In my view, for the reasons I have described in relation to ground 2 on the evidence in this case I would have a reasonable doubt that the condition to the application of s 23(9)(d)(i) in a case like this one, that a person not be in lawful possession otherwise than by way of storage, had been satisfied.

106 I will hear from the parties on the appropriate orders to be made.