NSW Commissioner of Police v Eykamp & Anor

Firearms Act 1996 (NSW)

1. Section 3 of the Act sets outs the principles and objects of the Act as follows: "3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms."
2. Section 4 contains a number of definitions including the following: "'firearm' means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm. "'firearm part' means a barrel, breech, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine designed as, or reasonably capable of forming, part of a firearm."
3. Section 6A(7) provides a definition for "antique firearm" as follows: "'antique firearm' means any firearm manufactured before 1900 that: (a) in the case of a firearm other than a pistol: (i) is not capable of discharging breech-loaded metallic cartridges, or (ii) is a firearm the ammunition for which is determined by the Commissioner to be ammunition that is not commercially available, or (b) in the case of a pistol--is not capable of discharging breech-loaded metallic cartridges."
4. Section 6A(1) provides: "6A Exception for certain firearms manufactured before 1900 (1) A person is exempt from any requirement under this Act to hold a licence or permit in respect of the possession of an antique firearm. However, the exemption provided by this subsection does not extend to an antique revolver."
5. Part 2 of the Act concerns licences and permits. Division 1 of that Part contains ss 7 and 7A. Section 7 provides: "7 Offence of unauthorised possession or use of pistols of prohibited firearms (1) A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit. Maximum penalty: imprisonment for 14 years. (2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person: (a) uses a pistol or prohibited firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the pistol or prohibited firearm, or (b) contravenes any condition of the licence. …"
6. Section 7A of the Act provides: "7A Offence of unauthorised possession or use of firearms generally (1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit. Maximum penalty: imprisonment for 5 years. (2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person: (a) uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or (b) contravenes any condition of the licence."
7. Part 4 of the Act deals with the safe keeping of firearms. It contains ss 39(1), 40(1) and 41(1). Section 39(1) provides: "39 General requirements (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case."
8. Section 40(1) provides: "40 Category A and category B licence requirmeents (1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies: (a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable, (b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal, (c) the locks of such a receptacle must be of solid metal and be of a type approved by the Commissioner, (d) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm, (e) such other requirements relating to security and safe storage as may be prescribed by the regulations. Maximum penalty: 20 penalty units or imprisonment for 12 months, or both."
9. Section 41(1) provides: "41 Category C, D and H licence requirements (1) The holder of a category C, category D or category H licence must comply with the following requirements in respect of any firearm to which the licence applies: (a) when any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that cannot be easily penetrated, (b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept, (c) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the safe containing any such firearm, (d) such other requirements relating to security and safe storage as may be prescribed by the regulations. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both."
10. Section 42 of the Act provides the police with power to seize firearms and ammunition if the required storage requirements are not met. It is in these terms: "42 Seizure of firearms if storage requirements not met (1) A police officer must seize any firearm or ammunition that the officer has reasonable grounds to believe is not being kept in accordance with this Part. (2) This section does not require the seizure of a firearm or ammunition if the police officer is satisfied that the failure to keep the firearm or ammunition in accordance with this Part has been rectified or will be rectified without delay. A decision not to seize a firearm or ammunition on that basis does not prevent the taking of a prosecution or the issuing of a penalty notice in respect of the failure." [1]
11. Part 9 of the Act is headed "Miscellaneous Provisions". Section 80 is in that Part of the Act and is in these terms: "80 Disposal of surrendered or seized firearm42(s (1) The Local Court or the Children's Court may, on application by a police officer or by any person who claims to be the owner of a firearm surrendered to or seized by a police officer in accordance with this Act or section 23A (4) of the Security Industry Act 1997, order that the firearm: (a) be forfeited to the Crown, or (b) be returned to the person claiming to be owner of the firearm, or (c) be otherwise disposed of in such manner as the Court thinks fit. (2) If a person is found guilty of an offence under Part 4 and a firearm has been seized by a police officer in connection with the offence, the court which makes the finding of guilt is taken to have ordered that the firearm be forfeited to the Crown. A firearm so forfeited may be destroyed. (3) (Repealed) (4) In this section, firearm includes a firearm part or ammunition."

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

1. Part 17 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA") deals with property in police custody. Division 1 of Part 17 (ss 211 - 214) concerns "confiscated knives and other dangerous articles and instruments". Section 211 provides that: "211 Application of Division (1) This Division applies to the following: (a) a dangerous article seized under this Act, (b) a dangerous implement seized or confiscated under this Act, (c) an explosive, explosive precursor or dangerous good to which section 31 of the Explosives Act 2003 applies that is seized under Division 1 of Part 4 of this Act. (2) If provision is made by or under any other Act for the seizure or confiscation of a dangerous article or a dangerous implement to which this Division applies, the article or implement is to be dealt with as so provided and the provisions of this Division do not apply to the confiscation."
2. "Dangerous article" is defined in s 3 of LEPRA as: "'dangerous article' means: (a) a firearm, a spare barrel for any such firearm, or any ammunition for any such firearm…"
3. Under s 212(1) of LEPRA, a person from whom such an article is seized may apply within 28 days to the Local Area Commander of Police in the area in which it was seized or confiscated for its return. If the Local Area Commander of Police fails or refuses to return the item or items, the person may appeal against the failure or refusal to the Local Court: s 213. Section 214 provides for the circumstances in which items not returned may be forfeited to the Crown.
4. Part 17, Division 2 of LEPRA (ss 215 - 229) concerns "other property in police custody" besides dangerous articles, dangerous implements and confiscated knives. Section 219 provides for the disposal of property on application to a court. Section 219(1) provides that the court may, on application by any person, make an order that the property be delivered to the person who appears to be lawfully entitled to the property or, if that person cannot be ascertained, be dealt with as the court thinks fit. Section 219(2) provides a number of specific powers that the court may exercise in determining an application under s 219, including ordering that the property be forfeited to the Crown if no owner can be ascertained. Section 219(3) provides for the way in which property forfeited to the Crown is to be disposed of.

Background

1. The Commissioner relied upon an affidavit of Jessica Murty affirmed on 22 November 2016 and a lengthy exhibit to that affidavit. That exhibit contained, inter alia, the transcript of proceedings in the Local Court at Tamworth on 3, 4 and 31 March, 7 April, 24 May and 14 June 2016, submissions filed in the Local Court on behalf of the prosecutor and the first defendant, three applications made by the first defendant pursuant to s 80(1) of the Act, an application by New South Wales Police under s 219 of LEPRA, a police facts sheet, and court attendance notices.
2. The defendant relied upon an affidavit of Patrick O'Halloran sworn on 14 December 2016 with an exhibit containing many of the documents exhibited to Ms Murty's affidavit. The additional documents included a fact sheet published by the Firearms Registry of NSW Police regarding the disposal of surrendered or seized firearms.
3. Given that these proceedings for judicial review turn on a narrow question of statutory construction, it is sufficient to recount the factual background to these proceedings only briefly.

The prosecution case in the Local Court

1. In 2015, the first defendant resided alone in a small two-bedroom house situated on a farm a short distance from Tamworth. The property also contained two large machinery sheds. The house has a veranda that wraps around the side of the house. The front door and a side door both have one lock. There are a number of windows on the house. There are houses neighbouring each side of the property.
2. At the relevant time, the first defendant was the holder of a category A, B and C firearms licence.
3. Section 8 of the Act provides that category A licences apply to air rifles, rimfire rifles (other than self-loading), shotguns (other than pump-action, lever action or self-loading), and shotgun/rimfire rifle combinations. Category B licences apply to muzzle-loading firearms (other than pistols), centre-fire rifles (other than self-loading), shotgun/centre-fire rifle combinations, and lever-action shotguns with a magazine capacity of no more than five rounds. The licensee is authorised to possess or use a firearm of a kind to which a category A or B licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.
4. Category C licences apply to self-loading rimfire rifles with a magazine capacity of no more than ten rounds, self-loading shotguns with a magazine capacity of no more than five rounds, and pump action shotguns with a magazine capacity of no more than five rounds. The possession or use of a firearm to which a category C licence applies is restricted to the purpose established by the licensee as being the genuine reason for possessing or using the firearm and only on land used for primary production that is owned or occupied by the licensee or that immediately adjoins that land. The number of firearms that the holder of a category C licence may possess or use is restricted.
5. Police from Oxley Local Area Command conducted a safe storage inspection at the first defendant's property on 16 September 2012.
6. The first defendant's licence was due to expire on 9 March 2015. Prior to that date, the first defendant submitted a renewal application. When that application was being processed at the NSW Firearms Registry, a member of staff identified a domestic violence event that had occurred in April 2014 involving the first defendant and his brother. A request was made that police attend at the first defendant's address to determine whether he was still considered a fit and proper person to hold a firearms licence.
7. At 8:20am on Friday, 12 March 2015, a police officer attended the first defendant's property. He knocked loudly on the front door but there was no answer. He walked along the veranda and looked through a window, where he saw two rifles leaning against the internal wall of the house. He knocked loudly again and then walked around to the rear of the premises. At this time, a motor vehicle approached and stopped at the side of the house. The first defendant got out of his vehicle and the police officer introduced himself to him. The first defendant was asked about the two firearms visible from the kitchen window, to which the defendant replied, "I went shooting last night." When he was asked whether there might be other firearms within the house that were not secured, the first defendant replied, "There might be a few."
8. The police officer stopped the first defendant from entering his house and told him that police would need to enter the house to inspect his firearm storage and seize the unsecured firearms. The first defendant telephoned his solicitor, more police attended the premises, and the first defendant was subsequently cautioned.
9. A search of the premises by police revealed 55 firearms that did not appear to be secured safely. They were all seized by police and charges under the Act were laid against the first defendant.
10. Sequences 1 - 26, 28 - 50, 52 - 54 were charges of not keeping a firearm safely brought under s 39(1)(a) of the Act. Those charges were in respect of the following firearms: 1. Sequences 1 to 5: five rifles found in the kitchen and lounge room of the premises. 2. Sequences 6 to 13: eight firearms (three of which were loaded) located in the "gun room" of the house. 3. Sequences 14 to 26: 13 rifles located inside a "Spika" brand safe in the gun room with 11 rounds of live ammunition loose in the bottom of the safe. 4. Sequences 28 to 44: 15 rifles (five of which contained rounds) and two pistols located in a "Buffalo River" brand safe in the gun room. 5. Sequence 45: incomplete rifle located in the office desk in the gun room. 6. Sequences 46 - 47: two rifles found beside the bed in the main bedroom. One of the rifles contained rounds and the other was fitted with a scope. 7. Sequences 48 - 50: one pistol found under a pillow on the bed and two pistols found in the drawer, both of which the first defendant claimed to police dated from the 1850s. 8. Sequences 52 - 54: two shotguns and a rifle found in three separate vehicles on the first defendant's property, two of which were loaded.
11. Sequence 27 relates to ammunition seized in the gun room in an unlocked "Winchester" brand safe and was brought under s 40(1) of the Act. Sequence 51 relates to ammunition found in the open "Sentry" safe in the laundry and was also brought contrary to s 40(1).
12. Sequence 55 relates to the first defendant's failure to comply with the firearms licence condition relating to safe keeping and storage and was brought contrary to s 7A(1) of the Act.
13. Sequences 56 to 63 relate to the unauthorised pistols located on the premises and were brought contrary to s 7(1) of the Act.
14. Sequence 64 was brought under s 36(1) of the Act (possessing an unregistered firearm) and relates to the Italian manufacture revolver that is also the subject of sequence 63.

The hearing

1. The hearing commenced before Magistrate Prowse at Tamworth Local Court on 3 March 2016. The first defendant entered a plea of not guilty to all charges. An application was made by the first defendant to exclude all of the evidence of police on the basis that it was obtained by illegal entry to the premises. The Magistrate rejected that application. The charges were then defended, with the exception of sequences 63 and 64, to which there was a late plea of guilty.
2. The hearing was conducted on 3 and 4 March and on 7 April 2016. On 7 April 2016, Magistrate Prowse found the first defendant guilty of the majority of the charges.
3. The first defendant mounted a number of challenges to the prosecution case. He placed reliance on the fact that he would not have been charged with these offences had he been at home at the time that police arrived. It was submitted that the house is 400m from the road and that the first defendant was present on the property at the time. None of his firearms had been lost or stolen or come into the possession of any unauthorised person. Police had admitted that some of the firearms did appear to be "under repair". It was submitted that the fact that the first defendant was attending to the upkeep of the firearms meant that they were all being "used" within the meaning of the Act. As for the firearms contained in the vehicles, it was submitted that he had a genuine reason to do so as a primary producer who needed to control vermin on his property.
4. The first defendant was acquitted of sequences 14 to 26 brought pursuant to s 39(1)(a) of the Act in respect of alleged failures to comply with the firearm storage requirements prescribed by s 40(1). His Honour referred to those charges as the "Spika brand safe" matters, as they related to two shotguns and 10 rifles found in the locked Spika gun safe, along with live rounds of ammunition. Section 40(1)(c) provides that, "any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the receptacle containing any such firearm." Section 41(1)(c) is in identical terms. The Magistrate found that the prosecution had not proved that the ammunition in the Spika brand safe was ammunition for the firearms that were also in the safe and accordingly dismissed sequences 14 to 26.
5. Similarly, his Honour dismissed sequences 27 and 51, which both related to ammunition, on the basis that the prosecution had not proved beyond reasonable doubt that the ammunition related to "the" firearm with which it was stored.
6. The first defendant was also acquitted of sequence 53. That charge related to a rifle found in the vehicle that the first defendant was driving when police arrived. His Honour determined that that firearm was being "carried", within the meaning of ss 40(1)(a) and 41(1)(a) at the relevant time.

The applications regarding the firearms after conviction

1. On 9 May 2016, police filed an application in the Tamworth Local Court under s 219 of LEPRA seeking an order that the firearms seized by police be forfeited to the Crown and destroyed. Both the Commissioner and the first defendant now agree that this provision was not applicable in this matter for two reasons. First, it is only concerned with the disposal of property in police custody other than dangerous articles, such as firearms. Second, it only pertains to items seized under LEPRA. The firearms seized from the first defendant in this matter were seized by police under the Act.
2. On 10 May 2016, the first defendant filed a written application to the Local Court under s 80(1) of the Act seeking orders that: 1. The firearms not be forfeited to the Crown (s 80(1)(a) of the Act); 2. The firearms "taken to have ordered be forfeited to the Crown" not be destroyed (s 80(2) of the Act); 3. The firearms be returned/transferred to James A. D. Eykamp pursuant to s 80(1)(c) of the Act for ultimate ownership; 4. The firearms be stored and kept safe by Roy David Eykamp pursuant to s 80(1)(c) of the Act; 5. The firearms be transferred/returned to James A. D Eykamp (firearms licence No. 411246072 category A and B license) transferee and person named in the Permit To Acquire Applications submitted to the NSW Police Firearms Registry at Murwillumbah NSW pursuant to s 80(1)(c) of the Act; 6. In the alternative to Orders 1-5, the rifle/long arms/firearms telescopic sights be returned to James A. D Eykamp, not being part of the firearm(s): s 4 of the Act.
3. Under the heading, "Grounds for Application", the following was stated: "1. The firearms are part of James A. D. EYKAMP'S family inheritance and are worth approximately $100,000 - $120,000. 2 James A. D EYKAMP completed the Permits to Acquire Applications and forwarded them to the NSW Police Firearms Registry. 3. The firearms and ammunition are to be stored at XXXX, owned and occupied by Roy EYKAMP and his wife (firearms A, B, C licence holder number 409153969) 4. Section 80 Firearms Act 1996 is discretionary as to destruction."
4. On 23 May 2016, a second application was filed in the Tamworth Local Court seeking similar orders in relation to the firearms falling within category C and H. In this second document, orders 1, 2 and 6 are the same as in the application filed on 10 May 2016. A different order 3 was sought in these terms: "3. The Class "C" and "H" firearms be stored and kept by Mr M. Crowley owner of Engineering Unlimited Pty Ltd as trustee for Unlimited Engineering T/as Custom 37 - Section 80(1)(c) Firearms Act 1996."
5. On 24 May 2016, the matter came back before Magistrate Prowse for submissions on sentence. His Honour considered both the application under s 219 of LEPRA and the first defendant's application under s 80 of the Act that day. His Honour pointed out that s 80(2) of the Act is mandatory in its terms that the court that makes a finding of guilt is taken to have ordered that the firearms were forfeited. His Honour observed that the use of the word "may" in s 80(2) of the Act referred to a discretion as to whether the firearm is ultimately destroyed, but that there was no discretion for the court to decline to order forfeiture.
6. His Honour also noted that the application under s 219 of LEPRA before the court was misplaced in relation to the charges upon which the first defendant had been convicted. Mr Donnelly of counsel, appearing for the first defendant, indicated that he accepted that the court did not have jurisdiction under s 219. The transcript notes, "No jurisdiction both matters (see s 80(2))". The prosecutor then asked for a one-week adjournment to consider an application under s 219 of LEPRA in respect of the charges of which the first defendant was acquitted.
7. His Honour noted that the first defendant's application under s 80(2) would remain on foot in relation to the scopes, given that there was an outstanding issue as to whether the sights or scopes of the seized firearms formed part of the firearms.
8. Submissions on sentence proceeded on that day. During an exchange between counsel and the bench as to whether the first defendant should be placed on a supervised bond, his Honour noted, "There is little about which Mr Eykamp can be supervised one suspects, especially given the consequences of s 80(2), i.e., the firearms being mostly forfeited for destruction."
9. On 10 June 2016, the first defendant filed a third application under s 80(1) of the Act for the return of his firearms notwithstanding that Magistrate Prowse had determined on 24 May 2016 that he had no jurisdiction to entertain such an application. The following orders were sought: "1. The firearms not be forfeited to the Crown (Section 80(1)(a) Firearms Act 1996). 2. The firearms 'taken to have ordered be forfeited to the Crown' not be destroyed (Section 80(2) Firearms Act 1996). 3. That all firearms be stored and kept by Mr. M. Crowley owner of Engineering Unlimited Pty Ltd as trustee for Unlimited Engineering T/as Custom 37 - Section 80(1)(c) Firearms Act 1996 until sold."
10. This third application was accompanied by written submissions from Mr Donnelly dated 14 June 2016. It was again submitted that s 219 of LEPRA is inapplicable to firearms. It was noted that s 80(2) of the Act states that a firearm seized by a police officer in connection with an offence under Part 4 is taken to be forfeited to the Crown on a finding of guilt. A firearm so forfeited "may" be destroyed. It was further submitted on behalf of the first defendant that s 80(2) confers a discretion on the prosecution as to whether or not to make an application pursuant to s 80. It was submitted that s 80(2) operates in conjunction with s 80(1) in that police make application for an order pursuant to s 80(1) to invoke sub-paras (1)(a), (b) or (c). It was submitted that there is no implicit power within s 80 for the court to order the destruction of the firearms in the absence of an application as the court is only empowered to order forfeiture. On this basis it was contended that there was no valid application for destruction before the court.
11. On 14 June 2016, the matter came before Magistrate Prowse for sentence. At the commencement of the proceedings on that day, the police prosecutor, who was the same prosecutor who had appeared on all previous occasions, stated the following: "PROSECUTOR: I can indicate what the prosecution do consent to your Honour and that being a total of the 15 firearms, so they relate to sequences 14 to 26, there are 13 firearms there and also sequence 53 your Honour there is one firearm there and also the one firearm serial number 141493 that is the one that was already at Custom 37 so the prosecution consent for those to be for custody of those ones [sic] to be given to Custom 37 to be disposed of to James Eykamp and also we do consent for the scopes if an employer or gunsmith from Custom 37 attend the police station and in consultation with Sergeant McMahon who is the exhibits officer, the police have no issue with any scopes being removed from any of the firearms and also we do agree to the ammunition being returned or given to Custom 37 to be disposed of accordingly. So those 15 firearms plus the scopes and the ammunition, no problem with those. HIS HONOUR: Why have we got this additional application then? PROSECUTOR: I think, well your Honour I think my friend's made the point that under s 80(2) although your Honour has confirmed that the position is they are forfeited by virtue of the convictions, I think my friend's application is that under that section that there can be an order made by the court. I would ask that your Honour confirm they can be destroyed but certainly the position, the default position is, in my respectful submission, under s 82 is that they are forfeited to the Crown by virtue of the convictions as your Honour pointed out. Now I think my friend's application relates to those firearms also being given to Custom 37 for sale. DONNELLY: That's so your Honour. PROSECUTOR: Which is opposed by the prosecution."
12. The first defendant then re-litigated the issue of the disposal of his firearms in reliance upon his filed written submissions. He submitted that no order could be made for their destruction as there was no power for the court to do so, s 219 of LEPRA being inapplicable. His Honour was informed that the police consented to all of the firearms in connection with sequence numbers 14 - 26 and 53, plus the ammunition, being collected by Mr Crowley of Custom 37. His Honour made orders to that effect by consent. The following exchange then took place: "PROSECUTOR: Yes your Honour and perhaps an addition, Mr Crowley can remove any scopes from the other firearms. That would need to be done at the police station in consultation with Sergeant McMahon. HIS HONOUR: Detach is that the word, is this on any of the firearms? PROSECUTOR: Yes. HIS HONOUR: You don't need a licence to possess a scope do you? PROSECUTOR: No but it is just the removal of them can be fiddly your Honour, I'm told."
13. The Magistrate then made the following order: "Plus Malcolm may at his own expense and labour detach any scopes or attachments mounted on any of the firearms seized provided prior arrangements are made by Malcolm Crowley with Sergeant McMahon."
14. His Honour proceeded to reconsider the question of the disposal of the balance of the firearms. On this occasion there was no suggestion by either the prosecutor or the Magistrate that the terms of s 80(2) of the Act permitted the firearms to be returned. Rather, the issue in dispute is whether the Court had the power to order their destruction. The first defendant submitted again that there was no application for destruction before the court, given that s 219 was inapplicable. The prosecutor indicated that he could make an oral application for the firearms to be destroyed. When the Magistrate inquired of the prosecutor why the remaining firearms ought not be given to Mr Crowley for sale, the prosecutor simply responded that there was no good reason for them to continue in circulation and that the first defendant should not be permitted to profit from the sale of the firearms.
15. Mr Donnelly submitted that it was intended that the first defendant's son would receive the profits of any sale of the firearms. There was then an exchange between the prosecutor and the Magistrate in relation to this issue during which his Honour expressed some concern about the pistol found under the pillow and the two loaded firearms found in a car outside the house. The transcript then records the following exchange: "HIS HONOUR: Well I am proposing to, apart from the sequences 52, 54 and 48 for which I propose order the destruction, for reasons I will come to in a moment, grant the application to Mr Crowley to take possession of the other ones and un [sic] accordance with the application, firstly transfer the ownership to - withdraw that. Permit Mr Crowley to hold them if he is lawfully entitled to do so and thereafter sell them as opposed to them being destroyed. Do you want to say anything about that Sergeant? PROSECUTOR: Just the concern is who gets the proceeds of those sales your Honour. HIS HONOUR: I don't know if I can control that. But whatever proceeds may well - one of the applications was to - I can't transfer ownership of them to somebody who doesn't have a license though can I? PROSECUTOR: No. HIS HONOUR: Even if the proceeds went to James Eykamp he could then buy his old man a carton of beer for the rest of his life for example. It is not a penalty you could - or his groceries or his car rego or put a new roof on, et cetera. Hide it in the Virgin Islands, the British Virgin Islands or the Cayman Islands, there is a current politician who known [sic] something about the Cayman Islands, he might be able to get advice there. More than one probably. PROSECUTOR: We do have the confiscation of assets section of the police, I am sure they might be able to track the funds your Honour, you never know. But I take your Honour's - HIS HONOUR: Well I suppose that would be a first then. PROSECUTOR: Your Honour there are a total of six pistols. HIS HONOUR: Yes, but this is the only one that causes me concern because it was loaded and under the pillow. The other two were outside the house in circumstances that nobody can justify, which is why I was asking which of those three - the rest of them were effectively inside the house and the findings of the court was [sic] that they weren't being kept safely but nevertheless the level of criminality is much reduced in respect of all of those others ones [sic] other than those three. That was why I was proposing to isolate those."

The reasons of the Magistrate

1. Following the above exchange, his Honour proceeded immediately to give the following reasons for making the orders that he proposed: "HIS HONOUR: On this fresh application if I write this, apart from the firearm, the subject of sequences 52, 54 and 48 the Court orders that - so I have drafted this order. Tell me if it needs improvement, because I'm quite happy to accept that it may. The application filed by Mr eykamp returnable today, 14 June 2016 seeking the disposal of the firearms not subject to the other order to have been not destroyed but transferred effectively to Mr Crowley, for both this order, apart from the firearms, subject to sequences 52, 54 and 48, the court orders that Malcolm Crowley may collect same and thereafter lawfully dispose of same accounting to the applicant for the proceeds as instructed by the applicant. Does that adequately cover it? … Because I don't think the court has any other power in relation to that and the reason as I have already indicated briefly what the reasons for the exclusion of 52 and 54 they were found outside the premises in a vehicle without any safeguards whatsoever surrounding them, clearly in breach of Mr Eykamp's obligations and no explanation of any sort whatsoever could be, let alone has been advanced by Mr Eykamp in relation to why a loaded pistol which could not be unloaded except by way of discharge was found in that state, i.e. loaded under his pillow on the other side of the bed that he was inferentially occupying, in those circumstances it would be against the underlying principles of the Firearms Act if any of those three firearms were to be returned to Mr Eykamp in any way or to somebody on his behalf for disposal, that would in effect impose no loss or punishment upon Mr Eykamp in relation to loss of those firearms if his application was granted that they be transferred to somebody else for lawful disposal. That is the reason, however poorly expressed for the distinction of sequences - the firearms in sequences 52, 54 and 48."
2. His Honour went on to sentence the defendant in relation to the criminal offences. He was fined a total amount of $13,500 and received a number of convictions under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). After fixing these sentences his Honour stated: "THERE HAS [sic] ALREADY BEEN ORDERS MADE BY THE COURT IN RELATION TO THE DESTRUCTION OF THREE OF THE FIREARMS, SEQUENCE 48, 54 AND 52 RESPECTIVELY FOR THE REASONS EXPRESSED AND THOSE OTHER OPRDERS MADE IN RELATION TO MR CROWLEY COMING TO COLLECT THEM, WHICH HE IS OTHERWISE LAWFULLY ENTITLED TO DO."
3. The only previous reference to any order made regarding the three firearms to which sequence numbers 48, 52 and 54 related is that part of the transcript extracted above at [59]. There is no reference to any order for destruction in that passage. The police had made an application that the forfeited firearms be destroyed pursuant to s 219 of LEPRA. His Honour was satisfied that s 219 of LEPRA had no application to firearms. His Honour did not give any reasons nor explain the power upon which he was acting in ordering that those three firearms be destroyed.

The grounds of review

1. By amended summons filed on 29 September 2016, the Commissioner seeks that the orders of the Magistrate made on 14 June 2016 under s 80(1) of the Act be quashed and, to the extent that his Honour made any orders under s 219 of LEPRA, that those orders be quashed as well. The Commissioner relies upon three grounds of review. It is asserted that the Magistrate fell into jurisdictional error and/or made an error of law on the face of the record in three respects: 1. By purporting, pursuant to s 80(1) of the Act, to make orders dealing with firearms which had been seized by a police officer in connection with an offence found in Part 4 of the Act for which there was also a finding of guilt, contrary to s 80(2) of the Act. 2. By purporting, pursuant to s 219 of LEPRA to make orders dealing with firearms which had been seized by a police officer in connection with an offence found in Part 4 of the Act for which there was also a finding of guilt, contrary to s 211(2) of LEPRA and s 80(2) of the Act. 3. By purporting, pursuant to s 80(1) of the Act, to make orders for the removal and disposition of any scopes or attachments mounted on firearms which had been seized by a police officer in connection with an offence found in Part 4 of the Act for which there was also a finding of guilt, contrary to s 80(2) of the Act.

Submissions on behalf of the plaintiff

1. It was submitted on behalf of the Commissioner that the effect of s 80(2) of the Act is that, where a person is found guilty of an offence under Part 4 and a firearm has been seized by a police officer in connection with the offence, the court is taken to have ordered that the firearm be forfeited to the Crown. This occurs automatically following a finding of guilt and prior to proceeding to sentence. The Crown is then entitled to do as it wishes with the forfeited firearm, including, as the section contemplates, destroying it. The court has no jurisdiction to entertain an application pursuant to s 80(1) of the Act seeking to deal with the firearm further once there has been a finding of guilt for an offence under Part 4. In support of its position, counsel for the Commissioner traced the history of the provision and relied upon the decision in Norton v O'Connor (NSWSC, 10 October 1994, unreported).
2. It was further submitted that a firearm seized pursuant to the Act cannot be dealt with pursuant to an application to a court for disposal under LEPRA. This is because of the wording of s 211(2) of LEPRA. Both the plaintiff and the first defendant agreed on this point. It was submitted that Order 2 in the summons would not be necessary if the court were of the view that no such order was made in this regard by the Magistrate (notwithstanding the indication of this on the court results sheet).
3. Finally, it was submitted on behalf of the Commissioner that the definition of "firearm" for the purposes of s 80 of the Act is extended by s 80(4) and includes any attachment physically affixed to and forming part of the body of the firearm. This includes telescopic sights. It was submitted that, to the extent that the Magistrate ordered that the scopes be removed from the forfeited firearms, error is established.

Submissions on behalf of the first defendant

1. The first defendant's primary submission was that the use of the word "may" in s 80(2) of the Act invokes the application process of s 80(1), which is the only method for disposal pursuant to the Act. It was submitted that there is no distinction between sub-ss (1) and (2) in s 80 for the disposal of seized firearms other than by application under s 80(1). The court has a discretion as to the disposal of the firearms under s 80(1) and the Crown has a discretion under s 80(2) after forfeiture.
2. It was submitted that there is no legislative intention within s 80 of the Act for automatic disposal (after forfeiture) without an application first being made. It was further submitted that it would be a denial of natural justice if the Crown were able to dispose of the property without any consultation or resistance from the owner of the property.
3. The first defendant placed reliance upon a fact sheet published by the NSW Police Firearms Registry. The fact sheet concerns the disposal of firearms seized under the Act. It stipulates that when a firearm is seized pursuant to the Act and forfeited to the Crown, police either seek a destruction order or forfeiture. The fact sheet states that the court is not empowered in relation to firearms beyond forfeiture unless an application is made by the Crown invoking s 80(1). It was submitted that implicit in the fact sheet is an understanding on the part of police that an application must be made for destruction pursuant to s 80(1) of the Act and not s 219 of LEPRA. It was submitted that, in the absence of application by the Crown under s 80(1), the court has no jurisdiction to order what should happen to the firearms.
4. As for the question of whether a "firearm" includes the telescopic sights, it was contended on behalf of the first defendant that the telescopic sights attached to some of the seized firearms are merely attachments and not part of the firearm. It was submitted that scopes are accessories mounted on the barrel and easily removed. These types of accessories were distinguished from "inbuilt" scopes, which are built into the firearm in the manufacturing process. It was further submitted that s 42 of the Act concerns the seizure of firearms and not accessories, such as scopes.
5. Finally, it was submitted that it appears that the police have been utilising s 219 of LEPRA for disposal of all types of property, including firearms, without regard for the proper procedure after forfeiture.

Consideration

1. The Commissioner asserts that the Magistrate fell into either jurisdictional error or, in the alternative, error of law on the face of the record in this matter. There was no issue taken at the hearing of the Commissioner's summons that there would be jurisdictional error if the Magistrate did not have the power under s 80 to order that the firearms be disposed of in the manner that his Honour did. Jurisdictional error will be established if the Commissioner can establish that the Magistrate mistakenly asserted that he had jurisdiction when he did not or misapprehended the limits of his jurisdiction under the Act: Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 at 177; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [71]-[73].
2. There are three questions for determination in these proceedings: whether the Magistrate had jurisdiction under s 80(1) of the Act to order that the forfeited firearms be returned to the defendant's son for sale; whether s 219 of LEPRA was applicable in the present matter; and whether a "firearm" includes attachments affixed to it, such as a telescopic sight or scope. I shall consider each question in turn.

The scope of s 80 of the Firearms Act

1. Section 80(2) of the Act states that upon a finding of guilt for an offence under Part 4 (which occurred in this case), connected to a firearm seized under this Act (as occurred in this case) "…the court which makes the finding of guilt" (the Local Court in this case) is "taken to have ordered that the firearm be forfeited to the Crown". The clear and unambiguous effect of that statutory language is that any of the first defendant's firearms that were seized in connection with a Part 4 offence of which the defendant was found guilty is forfeited to the Crown. There is nothing in s 80(2) of the Act that confers any discretion upon the Magistrate in this regard. The only discretion in s 80(2) rests in the "Crown" as to what to do with the firearms once they are forfeited. That sub-section provides that "a firearm so forfeited may be destroyed".
2. The word "forfeited" is not defined in the Act. It is to be accepted that its meaning is to be understood in the statutory context of s 80 of the Act. As Green CJ observed in Cole v Esanda Ltd (1982) Tas Rep 130 (at 135), "A court must not allow its natural disinclination to adopt a construction of legislation which could result in an innocent owner losing his property through no fault of his own, to frustrate the intention of Parliament." Justice Dowd, considering a predecessor to s 80 in substantially identical terms in Norton v O'Connor (unreported, NSWSC, 10 October 1994), stated (at 5): "Despite the harsh wording of sub-section 1A the words are express and clear in their meaning, in that it is the finding of guilt either by way of a plea of guilty, or finding of guilt after the hearing, that triggers the forfeiture to the Crown. Even before the magistrate proceeds to penalty or, as in this case, to the use of the provisions of section 556A of the Crimes Act, the forfeiture has occurred and the magistrate has no power whatsoever to deal with the matter. The fact that this effect is harsh is ameliorated by the fact that it sits within a section which was in any event potentially harsh in its very words and the powers that it gave."
3. I am satisfied that the word "forfeited" has the same meaning in ss 80(1) and (2) of the Act.
4. Counsel for the first defendant did not ultimately challenge this construction of s 80(2) of the Act. Rather, where the parties joined issue was as to the relationship between ss 80(1) and 80(2). The Commissioner's position was that the court has no jurisdiction to consider the question of forfeiture any further once a firearm is forfeited under s 80(2). The first defendant's position, on the other hand, was that because s 80(2) of the Act does not confer any power on the court to order the destruction of any firearms, such an order could only be made on application by police under s 80(1). This would mean that an application could be made under s 80(1) by either an owner or police after a firearm had been forfeited under s 80(2). The first defendant placed reliance on the fact that there was no other statutory power for police to seek an order for destruction from the court, Part 17 of LEPRA having no application in this matter.
5. There are a number of difficulties with this construction of s 80.
6. The first difficulty is that the clear language of s 80(2) is that once there has been a finding of guilt and the property is forfeited there is no other basis for the court to consider whether the property should be forfeited; it is to be taken as being forfeited following the finding of guilt.
7. The second difficulty is that that s 80(1) is drafted in general terms. It deals with the disposition of all firearms seized under the Act, other than those which fall within the terms of s 80(2), such as the present case. Furthermore, it says nothing about the relevance of any finding of guilt. In this way, the court's discretion is so broad under s 80(1) that it would appear to contemplate the return of seized property in relation to which there has been a conviction, so long as the conviction is for an offence other than one in Part 4 of the Act.
8. It was submitted on behalf of the first defendant that the court's jurisdiction after s 80(2) comes into effect is "reinvoked" by virtue of s 80(1). It would be inconsistent with the doctrine of finality if s 80(1) meant that, after a forfeiture order was deemed to be made under s 80(2), a further application could be made in relation to the same firearm. Such an avenue of review is not contemplated within the terms of s 80(2) itself. Nor does s 80(1) set out any matters offering guidance as to the mandatory or discretionary considerations that a court must take into account if it is invited to consider, at a time after the firearm is already taken to be forfeited, whether it should again be forfeited (s 80(1)(a)) or returned to its owner (s 80(1)(b)). It might be expected that, if there were some way in which the issue could be relitigated, the person convicted would have to establish some special reason for why the firearm already forfeited should instead be returned.
9. Another textual reason for not accepting the first defendant's argument is that s 80(1) does not stipulate a time limit. There is no need for any time limit if no order has yet been made in relation to the firearm. However, if, as the first defendant contends, s 80(1) acts in effect as a type of appeal provision, then it might be expected that there would be a limit for the making of an application. As it stands, and if the first defendant was correct, the firearm could be forfeited to the Crown under s 80(2) and either sold or destroyed shortly thereafter and then an application made some months later under s 80(1), by which time the firearm is no longer in the possession of police.
10. The first defendant contends that to permit the Crown to destroy firearms that have been forfeited without any specific order of the court is a denial of natural justice. It is to be accepted that, as a matter of construction, all legislation that confers power to make decisions affecting the rights of individuals is to be read subject to a requirement for procedural fairness unless it is clearly displaced by a particular statutory scheme: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at 205 [75]. The language of s 80(2) expressly states that the firearms are to taken to be forfeited; no opportunity to be heard on this issue is contemplated by the language of s 80(2). It is consistent with the objects and policy of the Act that there should be such finality in s 80(2); that section is only applicable where there has been a finding of guilt in relation to a specific class of offences.
11. Although there does not seem to be any judicial consideration of s 80 of the Act, its predecessor, s 48 of the Firearms Act 1989 (NSW) ("the previous Act"), was considered by Dowd J in Norton v O'Connor. Section 48(1A) of the previous Act provided: "If a person is found guilty of an offence under section 12 and a firearm has been seized by a member of the Police Force in connection with the offence, the court which makes the finding of guilt is taken to have ordered that the firearm be forfeited to the Crown. A firearm so forfeited may be destroyed." (Section 12 in the previous Act concerned the safekeeping of firearms)
12. A number of provisions, including s 48(1A), were inserted into the previous Act by the Firearms Legislation (Amendment) Act 1992 (NSW) following a massacre in Strathfield in which eight people were shot and killed. The Bill was concerned with tightening firearm regulations. In the second reading speech to the Bill, the Honourable E.P. Pickering stated: "To reduce the risk of misuse of firearms, particularly in the home, stringent requirements have been included in the legislation relating to the safe and secure storage of firearms. Persons who possess a firearm will be required to take all reasonable precautions to ensure its safe keeping. They will have to ensure either that the bolt or firing mechanism, where possible, is removed from the balance of the firearm, that the bolt or firing mechanism is not stored with the balance of the firearm, that no ammunition is in the firearm, that no ammunition is stored with the firearm or that the firearm is stored with the ammunition in a secure, locked storage approved, or of a type approved by the Commissioner of Police."
13. In Norton v O'Connor the first defendant had been found guilty of not ensuring the safekeeping of a firearm pursuant to s 12 of the previous Act. The Magistrate had dealt with the matter under what was then s 556A of the Crimes Act and thus no conviction was entered at sentence. The Magistrate then ordered the return of the subject firearm to the defendant. The police informant sought judicial review of that decision in this Court. Dowd J held that the Magistrate had no power to order the return of the firearm under s 48(1A) of the previous Act. Sections 48(1) and 48(1A) of the previous Act are relevantly in identical terms to ss 80(1) and 80(2) of the Act.
14. To the extent that it is suggested that there is any conflict between ss 80(1) and 80(2), I have had regard to the well-established principles of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (at 381-382 [69]-[70])(footnotes omitted), where McHugh, Gummow, Kirby and Hayne JJ observed: "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…' 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. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme."
15. Similarly, French CJ, Hayne, Crennan, Bell and Gageler JJ stated in Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 (at 519 [39]) (footnotes and citations omitted) that: "'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself."
16. Reading the provision as a whole, I am satisfied that s 80 vests the court with the general discretion to make orders dealing with the disposition of certain seized firearms, but that this general discretion is subject to s 80(2). It would appear that, unlike the analogous provisions in Part 17 of LEPRA concerned with the disposal of items in police custody seized under LEPRA, there is no provision in the Act directed at how the a firearm seized under the Act is to be disposed of if it is forfeited pursuant to s 80(2). For practical purposes, this simply means that the discretion whether or not to destroy the firearm rests with "the Crown", presumably the Minister for Police being the relevant Minister administering the Act. In this way, the legislation envisages that, once a firearm is forfeited under s 80(2), the Minister administering the Act has a discretion to destroy the firearms, retain them or sell them.
17. It seems to me that it would be inconsistent with the spirit of s 80(2) of the Act for the Minister, in the exercise of his or her discretion, to return forfeited firearms to the owner. However, the relevant discretion is otherwise unfettered so long as it is consistent with the objects and principles of the Act. That is, forfeiture vests ownership of the firearm in the Crown and it may dispose of it as it wishes. The absence of any specific delegation of power to a specific organ of the Crown that is entitled to exercise that discretion does not mean that the discretion is not so conferred.
18. I am satisfied that the statutory language is clear and contains no ambiguity. Accordingly, there is no basis to resort to any extrinsic material, such as a second reading speech. Nonetheless, it is pertinent to note that in the second reading speech for the Act, the Hon. J. W. Shaw (Attorney General) stated that, "The legislation puts the public's right to safety before the privilege of gun ownership."
19. It is further of interest to note that the Second Reading Speech also makes reference to the resolutions passed by the Australasian Police Ministers' Council on 10 May 1996 following the Port Arthur massacre, noting that, "The bill manifests a full acceptance of the resolutions." Resolution 8 of the Special Firearms Meeting provided in part: "Legislation should have the effect of making failure to store firearms in the manner required an offence as well as a matter that would lead to the cancellation of the licence and the confiscation of all firearms."
20. Finally, to the extent that reliance was placed on the fact sheet published by the Firearms Registry, I accept the submission advanced on behalf of the Commissioner that such a document can play no part in the exercise of statutory construction that I am required to undertake. It is not relevant that some officer within NSW Police may have misunderstood the effect of the legislation, including the interplay between Part 17 of LEPRA and s 80 of the Act. In any event, to the extent that it is relevant, I am not satisfied that the fact sheet bears the construction advanced by the first defendant. It states: "What if the firearms seized are subject to a safe keeping offence? Firearms seized under Part 4 of the Act for a safe keeping offence, where the firearms have been seized in connection with that offence AND the person had been found guilty of the offence, are subsequently deemed forfeited to the Crown This applies only to the firearms subject to the offences [sic]. ... Firearms deemed forfeited may be destroyed. In these circumstances, the discretion for disposal rests with the LAC Commander and police would be well advised to seek destruction orders from the court." [emphasis in original]
21. These passages of the fact sheet are capable of being interpreted as an exhortation to the police to seek an order for destruction from the court for more abundant caution. They do not suggest that that power is to be found in s 80(2) of the Act.
22. There is no doubt that s 80(2) has the potential to operate harshly in certain circumstances, such as the present case, but there are clear policy reasons why the safekeeping of weapons is crucial to the operation of an effective firearms regime. It is a privilege to have a firearms licence and accordingly obligations are imposed upon persons so licensed. Although the first defendant resides on a property and not in a dense urban area, that does not mean that the obligation to comply with the safekeeping requirements of his licence is any less stringent. It is not uncommon for persons to target rural properties in order to steal weapons, knowing that occupiers of such premises are more likely to have firearms.
23. For these reasons, I am satisfied that the Magistrate fell into jurisdictional error in ordering that the firearms forfeited to the Crown under s 80(2) of the Act be given to Mr Crowley for sale.

The applicability of LEPRA

1. There was no dispute as between the parties that s 219 of LEPRA had no application to the present matter. As I have indicated above at [21], that section only applies to property other than dangerous articles such as firearms and, further, only applies to property seized under LEPRA and not to firearms seized under the Act.
2. There was no issue taken in these proceedings that police seized the relevant firearms under powers conferred on them by the Act, presumably s 42. Somewhat curiously, it would seem that if police seized firearms exercising their powers under LEPRA, including under search warrant, and their owner were subsequently charged and found guilty under Part 4 of the Act, then s 80(2) would not apply and the relevant statutory scheme would be Part 17 of LEPRA.
3. Another anomaly in this regard is the significant difference in consequences between ss 42(1) and 42(2) of the Act. Section 42(1) provides that a police officer "must" seize any firearm or ammunition that he or she believes on reasonable grounds is not being kept in accordance with Part 4 of the Act. Once that evaluation is made by the relevant officer, no further discretion is available; the relevant firearm must be seized. Section 42(2) of the Act was inserted by the Firearms and Weapons Legislation Amendment Act 2017 (NSW) and commenced on 1 November 2017. It was not in effect at the time of the seizure of the firearms in this matter. Unlike s 42(1), it provides that the firearm or ammunition need not be seized if the police officer is satisfied that the failure to keep the firearm or ammunition in accordance with Part 4 "has been rectified or will be rectified without delay". The sub-section goes on to provide that the prosecution can proceed by the issuing of a penalty notice even though the item has not been seized by police.
4. The fact that s 42(2) envisages the issue of a penalty notice rather than a court attendance notice suggests that only relatively minor breaches are contemplated by that sub-section. It could not be said that the breaches committed by the first defendant in this matter were minor. Nonetheless, the legislative regime contemplates that very different consequences result from discretionary decisions made by investigating police at the time that any breaches of Part 4 of the Act are first detected.
5. In any event, the learned Magistrate made no reference to the making of any order under s 219 of LEPRA when he made the relevant orders on 14 June 2016. Nor is there any reference to s 219 of LEPRA in the "Advice of Court Result" sheets for 14 June 2016 in this matter, which were signed by the Registrar on 15 June 2016. The transcript of both 24 May 2016 and 14 June 2016 reflects that the Magistrate was satisfied, correctly, that s 219 of LEPRA was not applicable. Although the Magistrate stated at the conclusion of the sentencing that he had earlier ordered that three of the firearms be destroyed, the transcript does not reflect this. In addition, the "Advice of Court Result" simply states that: "Apart from the firearms the subject of Sequence 52, 54 and 48, the court orders that Malcolm Crowley may collect same and thereafter lawfully dispose of the same averting [sic] to the applicant [the first defendant] for the proceeds as instructed by the applicant."
6. I am satisfied that s 219 was not applicable in this matter and, to the extent that the Magistrate purported to rely on it to order the destruction of the three firearms pertaining to sequence numbers 52, 54 and 48, he acted without power. Although s 80(2) provides that firearms seized in connection with an offence under Part 4 may be destroyed, that is a matter for the discretion of the "Crown". Notwithstanding that the state of the transcript, reasons and court result papers are somewhat inconclusive, I am satisfied that the Magistrate fell into jurisdictional error to the extent that his Honour relied upon s 219 of LEPRA to order the destruction of the firearms.
7. Similarly, to the extent that the Magistrate relied upon s 219 to make orders that the forfeited firearms be provided to Mr Crowley, his Honour erred in doing so. For the reasons that I have given under Ground 1, there is no specific provision concerning the disposal of firearms once they are forfeited to the Crown under s 80(2) of the Act.

Is a "scope" a firearm part?

1. The final question for determination is the discrete question of whether the Magistrate had the power to order that the "telescopic sights" or "scopes" (these descriptions were used interchangeably during the hearing) attached to various of the firearms could be removed from the firearms by Mr Crowley and returned to the first defendant. Implicit in his Honour's order is a finding that a telescopic sight does not form part of a "firearm" for the purposes of ss 42 and 80(2) of the Act.
2. His Honour was not invited to make any ruling in this regard. The police prosecutor indicated that NSW Police had no objection to this course being taken and requested that his Honour make the order by consent. There are no reasons for the decision nor any analysis undertaken by the Magistrate as to whether the Court had the power to make the order by consent.
3. Contrary to the position taken before the Magistrate, the Commissioner now contends that there was no power for the Magistrate to order that the telescopic sights be returned to the first defendant. Putting to one side the discretionary considerations associated with this change in position, the question of whether the Magistrate fell into jurisdictional error in making these orders turns once again on the construction of the relevant sections of the Act.
4. Section 42(1) provides that a police officer must seize any "firearm or ammunition" that the officer has reasonable grounds to believe is not being kept in accordance with Part 4 of the Act. Section 80(2) provides that following a finding of guilt any "firearm" so seized is taken to be forfeited. Section 80(4) provides that, for the purposes of s 80, a "firearm" includes a "firearm part" or ammunition. I have extracted the definitions of "firearm" and "firearm part" in s 4 of Act above at [8] but I will extract them again for ease of reference: "'firearm' means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm. "'firearm part' means a barrel, breech, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine designed as, or reasonably capable of forming, part of a firearm."
5. It is clear that the terms of s 80(4) of the Act extend the definition of firearm beyond what would otherwise have been the scope of ss 80(1) and 80(2). It is not difficult to glean why it would be necessary to do so. It would no doubt frustrate the policy underpinning the Act if an owner of firearms were able to keep his or her firearms in a dismantled state in separate locations on his or her premises in breach of Part 4 and then be able to argue that he or she was not in possession of a "firearm". The effect of s 80(4) is that if, for example, police were able to locate a barrel in one location, a breach somewhere else on the premises, and a pistol slide elsewhere, all of those parts would be forfeited (if s 80(2) were relevant) by virtue of s 80(4). That is not this case.
6. There was no evidence before me as to when or how the first defendant affixed the telescopic sights to his firearms, nor in fact whether any of them were purchased with the sights already affixed to them as attachments. It seemed to be accepted by the parties that this was irrelevant to the question of statutory construction that the Court was being asked to consider. Nor is it clear to me how many of the firearms had scopes attached to them at the time of seizure. It was agreed, however, that the firearms were not manufactured with the telescopic sights inbuilt into the firearms; the sights were purchased separately and affixed to the firearms to enhance accuracy when aiming the firearm.
7. No issue was taken in this matter that the purpose of a scope is to enhance the capacity to shoot a rifle accurately, but it is not essential to the firing of the firearm. They are affixed to the firearms as an enhancement in much the same way that a roof rack or mag wheels are attached to a motor vehicle.
8. The position of the Commissioner was that a telescopic sight, once affixed to the firearm, becomes part of the firearm. The fact that the sight was affixed separately does not mean that it is not a part of the firearm once affixed.
9. The first defendant's central argument was that the sights in question are separate from the firearm and thus do not fall within the definition of "firearm" in s 80(2). Nor do they fall within the definition of "firearm part" in s 4. Thus, they are not liable to be forfeited under s 80(2). The difficulty with this argument is that it is predicated on the assumption that a "firearm" for the purposes of s 80(2) of the Act is limited to either an intact firearm or a "firearm part" within the meaning of s 4. Although the definition of "firearm part" in s 4 of the Act does not include a telescopic sight, the definition of "firearm" in s 80(4) is expressed to be inclusive rather than exclusive and is clearly intended to extend the definition of firearm for the purposes of s 80 of the Act rather than to limit it.
10. The fact that a telescopic sight attached to a firearm does not fall within the definition of "firearm part" in s 4 of the Act is thus not the end of the matter. The question is whether, when the provisions are read together harmoniously, ss 42(1) and 80(2) lead to a construction that the sights on the firearm do not form part of the firearm because they were manually affixed after the manufacturing process. In this regard, it is to be noted that the police prosecutor informed the Local Court that they can be "fiddly" to remove (see above at [56]).
11. I am satisfied that a "firearm" within the meaning of s 80 of the Act includes the firearm in the state that it was when it was seized by police. If the first defendant's construction is correct, the police would have no power under s 42 of the Act to seize firearms in the state in which they are found. Rather, they would have to strip the firearms down to the state in which they were at the time of manufacture. I can find no textual basis for such a construction. Nor is it consistent with the policy and objectives of the Act. In addition, from an evidentiary perspective, there will be cases in which it might be necessary for the Magistrate, in considering the seriousness of offences under Part 4 of the Act, to identify the state of the firearm at the time of seizure.
12. I am thus satisfied that the "firearm" forfeited under s 80(2) is the firearm in the condition in which it was seized by police, including scopes. As I observed in relation to Ground 1 above, the "Crown" then has a broad discretion as to what to with the forfeited firearms, including selling, retaining, or destroying all or part of them. It is clear that investigating police in this matter had no difficulty in deciding that the telescopic sights should be returned to the first defendant. It seems to me that the exercise of their discretion in this regard should be exercised in a manner consistent with the objects and principles of the Act. The error in this matter was inviting the Court to make an order by consent when it was not a matter in which it had any jurisdiction under s 80(2) of the Act. I am thus satisfied jurisdictional error has been established.

Discretionary relief

1. It was submitted on behalf of the Commissioner that there were no discretionary features militating against the Court granting the relief sought in the event that this Court found one or more of the grounds established. The summons was filed in a timely manner.
2. It was submitted on behalf of the Commissioner that the orders of which he complains were made at the behest of the first defendant. Although this is to be accepted, the prosecutor appearing before the Magistrate on 14 June 2016 did not point out to the Magistrate that the order that he proposed was completely inconsistent with his previous position on 24 May 2016. More importantly, the order regarding the removal of the scopes was made by consent at the request of the police prosecutor. Despite this, the fact that the prosecutor led the Magistrate into error is not of itself a reason to refuse the relief sought.
3. It was further submitted that the proper operation of s 80 of the Act is an important issue. Guidance received from this Court as to its proper operation will impact the way in which police approach their responsibilities and obligations in relation to the regulation and management of firearms.
4. I am satisfied that the orders made on 14 June 2016 regarding the disposal of the firearms after forfeiture were made without jurisdiction and should be quashed. Those orders pertained to every firearm seized except the firearms connected with sequences 48, 52 and 54. The orders pertaining to the removal of the scopes from any of the firearms seized were also made without jurisdiction and should be quashed. The orders regarding the disposal of the firearms not the subject of the forfeiture under s 80(2) were not the subject of these proceedings.

Costs

1. During the hearing of the appeal, I inquired of counsel for the Commissioner whether he would seek costs in the event that he was successful. The Court was subsequently informed that the appropriate costs order would be that costs follow the event.
2. The Court has a broad discretion to award costs: s 98 of the Civil Procedure Act 2005 (NSW). That discretion is fettered to some extent by the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 42.1 of which provides: "Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs."
3. I am satisfied that this is a case where some other order should be made. I have set out above at [55] that the police prosecutor did not point out to Magistrate on 14 June 2016 that his Honour had previously accepted that there was no jurisdiction to make any further orders following the findings of guilt. Moreover, he then sought certain orders by consent, representing to the Magistrate that his Honour had power to make the orders sought. That position then changed and these proceedings were commenced by the Commissioner. In the circumstances, I propose to make an order that each party pay his own costs.

ORDERS

1. I make the following orders: 1. Quash the order of the Local Court on 14 June 2016 purportedly made pursuant to s 80(1) of the Firearms Act 1996 (NSW) that the forfeited firearms be provided to Mr Crowley. 2. Declare that the Local Court had no power to order that any of the forfeited firearms be destroyed, whether pursuant to s 80(1) of the Firearms Act 1996 (NSW) or s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). 3. Quash the order of the Local Court on 14 June 2016 that the scopes attached to the forfeited firearms be returned to the first defendant. 4. Each party is to pay his own costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2017