HIS HONOUR: This is an appeal against convictions recorded by Stewart LCM sitting in the Central Local Court on 9 December 2020. His Honour found the appellant guilty of an offence pursuant to s 7(1), of the Firearms Act 1996. The formal allegation was that on 16 December 2018 at Glebe he did possess a prohibited pistol, namely, a 22 centimetre silver and black imitation pistol, not being authorised to do so by licence or permit. The second offence, which his Honour found proved beyond reasonable doubt, was that on 16 October 2018 at Glebe he did without reasonable excuse have in his custody a knife in a public place, namely, Lyndhurst Street, Glebe. The knife was in fact a box cutter.
[2]
Background
On Monday 15 October 2018 Constable Bradley Fisher and Constable Lindsay Sculley were rostered on duty at the Glebe Police Station commencing at 3pm for a 12 hour shift. They were assigned a marked police vehicle given the number LE35. At about 12.30am on Tuesday 16 October 2018 those officers were conducting patrols along Darling Street, Glebe. Constable Fisher observed a man, who is the current appellant, walking along the middle of the road in Lyndhurst Street near its intersection with Darling Street. According to Constable Fisher's statement, he was carrying a green canvas bag. The two police officers pulled their vehicle over to the side of a road and then proceeded to speak with the appellant.
It is common ground, because it is contained in both Constable Fisher's statement and was adduced from Constable Sculley orally by the appellant's solicitor, that he was walking between his grandmother's house in Glebe Street, Glebe, to his father's house in Bellevue Street, Glebe. Constable Fisher noticed that the appellant was sweating and breathing somewhat heavily. He seemed to be unable to stay still, that is, he was somewhat restless, but when asked to give his name the appellant gave it. The police made certain inquiries and were led to believe that in the past the appellant had been linked to the consumption of illegal drugs. The appellant was asked whether he had used any drugs and said that he may have used "a bit of ice, not for a few days", indicating that in the preceding week he may have used crystal methamphetamine.
The police then decided that they should conduct a search because they suspected that the appellant might be in possession of an illegal drug. No issue was raised that the police had reasonable grounds to carry out the search. However, no illicit drug was found. Before conducting the search, the police introduced themselves formally and told the appellant that they thought he might be in possession of an illegal drug and told him that they were going to conduct a search. The statement of Constable Fisher continues thus:
"[9] I observed Constable Sculley searching the green canvas bag. During this time Constable Sculley located a silver and black pistol wrapped in a blue cloth. Upon closer inspection the cloth was secured to the pistol with silver duct tape.
Constable Sculley said, 'My name is Constable Sculley from Glebe Police Station. You are under arrest for being in possession of a replica firearm. You do not have to say or do anything that you don't want to. Do you understand?'
Mr Palmans said, 'Yes'" [I omit the rest of the usual caution]
The description of the search given by Constable Sculley in his statement of 14 November 2018 is more detailed. In it he says this:
"[9] At this time I started to search through the green environment bag which contained folded clothing items. As I was pulling out multiple clothing items,
Palmans said 'Oh, there might be something in there'.
I said 'Like what?'
Palmans said 'I think a knife, it's a box cutter'.
I said 'Why do you have that?'
Palmans said 'It's for work'.
[10] As I was removing clothing from the green Aldi bag, I felt the receiver of what I believed to be a pistol firearm. I pulled the pistol firearm out of the bag and placed it on the ground. The pistol had a piece of blue cloth pulled tight around the barrel with silver duct tape holding it in place. The receiver and the trigger were exposed and visible.
I said 'You're under arrest for possession of a firearm. You don't have to say or do anything if you don't want to, do you understand?'
Palmans said 'Yep'."
Exhibit 18 in the Local Court were photographs of the gun and the blue cloth. The first two photographs are each dated 16 November 2018 and appear to show the gun on the ground, which is black and probably is of a bitumen road. It is clear from the debris scattered otherwise on the black surface, which appears to be leaf litter, that it was an alfresco photography and appears to be photography of the gun as it lay on the ground once it was removed from the bag being carried by the appellant. The green bag can be seen in the top of the first photograph in exhibit 18. One can see the butt/receiver/handle of the gun and the trigger exposed and the blue cloth around the barrel of the gun. The second photograph amongst the photographs in exhibit 18 shows that more closely and shows the fixing of the blue cloth with the duct tape. The balance of the photographs appear to have been taken at a police station because they show a ruler which would not be carried by the police in a patrol car, and the ruler and the gun are on a desktop or tabletop. The ruler contains the police logo as well as an exhortation to the police. The exhibit 18 also contains pictures of the box cutter.
The first issue was whether the item that I have referred to as a "gun" was an item for which the accused required a licence or permit. There are expert reports in evidence, exhibit 12 in the Local Court, made by Senior Constable Stephen Robert Hay who is a forensic ballistics investigator. Senior Constable Hay's expertise was not challenged before the Local Court, nor has it been challenged in this Court.
The first report made by Senior Constable Hay describes the gun as a JG Schrodel 12 chamber cap gun. The report goes on to say this:
"The JG Schrödel 12 chamber cap gun...whilst not imitating any particular brand of self-loading pistol, displays similar external features in the form of size and appearance, that are common to this class of firearm. It substantially duplicates a firearm for which a licence or permit is required in this State. In my opinion the exhibit...is an IMITATION FIREARM as described in s 4D(3) of the Firearms Act 1996."
Below that the report shows a photograph of the JG Schrodel cap gun next to another firearm, the Schrödel gun being on the left and the firearm on the right. Beneath that the following is stated:
"The exhibit imitation...left, shown with a comparison .45 Automatic calibre Springfield Armory model 1911 A1 self-loading pistol, right."
There is a further report from Senior Constable Hay that only excludes the firearm as an "antique firearm" under s 6A of the Firearms Act 1996. Such an antique weapon has to be manufactured before 1900, and there no argument that this item was manufactured before 1900.
Senior Constable Hay gave evidence in the Local Court. He was asked to say how the cap gun displayed similar external features to a firearm. His evidence in that regard can be found at pp 31-32 of the transcript of evidence given on 27 October 2020. The first thing he identified was the overall shape of the gun, the shape of the grip, namely, the finger grips, and the shape of the "backstrap" which was the curved section at the rear of the grip. He pointed out that the backstrap is where the hand grips the pistol at the back of the frame. In answer to a question from the magistrate, Senior Constable Hay said this:
"A. The beavertail, which is the shape of the grip safety, that's the more or less horizontal protrusion above where the shooter's hand would grip the pistol.
Q. Which is perhaps for a non-expert description is like a spur of some sort sticking out?
A. Yes, your Honour."
The "spur" rests in the space between the thumb and the forefinger, or index finger, if one be right handed, holding the gun and pulling the trigger with the right index finger. It stops the hand going further up the butt towards the top of the gun.
Senior Constable Hay also then identified as a feature the rear and front sights of the gun, and he went on to refer to the shape of the slide, which was the rectangular squarish looking component that sits atop the frame above the trigger guard. He went on to admit in cross examination that what appeared to be a slide was not actually a slide at all. The senior constable also pointed to the underslide cut outs were similar to a particular brand of target pistol and the shape of the trigger and the trigger guard are common to yet another brand of self-loading pistol. At T32.29 the witness said that the weight of the gun was 515 grams, that is, just over half a kilogram. The item was tendered and became exhibit 14 in the Local Court and has been produced to this Court and has been inspected by me. The witness went on to say that the features that he could see in the Schrödel cap gun were from three different self-loading pistols. He identified the 911 A1, the Beretta 92 and the Heckler and Koch USP target pistol.
In cross examination the witness admitted that inserted into the nose of the barrel was a piece of plastic, which is in fact black in colour. Introduced into evidence by the defence was a catalogue from JG Schrödel GmbH, which was part of the Heinrich Bauer Group having an address in Nuremburg in Germany. The catalogue boasts that its products are all made in Germany. The catalogue is bilingual, the principal language being German and the secondary language being English. On the second page of the catalogue is this piece of puff:
"The names of JG Schrödel and IDEAL have guaranteed quality for decades. And this is true of the entire range from toy weapons to summer accessories. JG Schrödel was founded in 1846. And since then it has been producing and selling high quality toys to generations of children around the world. The JG Schrödel IDEAL brand has been a watchword for quality in toy weapons and summer toys for decades. Today's grandparents, buying presents for their grandchildren, played with Schrödel products when they themselves were children. Schrödel does not only develop all the products but also manufactures the tools to make them. The entire production facility boasts state of the art technology."
The following two pages of the catalogue list its contents. Its contents are divided into Pistols, Rifles, Western and Police Sets, "Pink Line", Carnival accessories, Wooden Accessories, Ammunition and Summer Toys. Essentially, the summer toys are bows and arrows.
The gun here in question has a number of markings on it. On both sides of the black plastic handle and grip cover are a logo containing the letters JGS. It is clearly a logo for JG Schrödel. On one side of what would be the slide is the matter "IDEAL modell", "IDEAL" beginning a brand name used by JG Schrödel and "modell" being the German word for model. On the other side of the item are the words Sky Marshal. On p 13 of the catalogue is a pistol described as Sky Marshal. It clearly is of the same type as the Sky Marshal that is the subject of these proceedings. It does not have the black plastic plug in the barrel but has a longer extended, it would appear from the catalogue, longer plastic plug in the barrel. The chamber appears also to have been removed from the item shown in the catalogue.
Similar sorts of "pistols" can be found on p 14 of the catalogue, one described as "Kommissar" and on p 15 is one described as "Europol". Many of the pistols look like, if I may use this expression, "the real thing". There are pistols that look modern and pistols that look like they belong in the wild west. There are also old fashioned Derringers and duelling pistols and what could be referred to as a pirate blunderbuss pistol. The rifles marketed by JG Schrödel also appear to be "the real thing". However, when one comes to the Western Sets and Police Sets they are clearly toys. The Western Sets contain, for example, holsters and black pistols and belts to go with them. Some of them have sheriff's or marshal's stars. The Police Sets have either a hand gun and what would appear to be a holster and a set of handcuffs.
The "Pink Line" is a pink revolver, which is made of zinc and coloured pink, together with a pink holster for the pistol and a pink set of handcuffs which are made not from plastic but from zinc. The colour appears to have been designed to attract the attention of young girls. The Carnival Accessories all appear to be toys from the way that they are decorated and because they contain what appear to be small holsters for small guns and, for example, handcuffs, shoulder holsters, sheriff stars and the like. The Wooden Accessories are all imitation swords of one sort or another. They include scimitars, pirate cutlasses in two sizes, and standard medieval looking swords all made from wood. They are accompanied by wooden shields. One bears a black Prussian eagle, another bears a fleur del lis and a third bears a red cross, heraldic symbols of Germany, France and England, probably made before Brexit. The Ammunition are things to be used in cap guns. The bows and arrows clearly are made-for-child items. Each arrow has a suction cap.
[3]
Imitation firearm or children's toy?
The law relating to firearms in Germany might be very different to the law relating to firearms in New South Wales. I have no doubt that the gun here in question was designed and marketed as a toy for children. The issue in this case is whether the item falls within s 4D(4) of the Firearms Act 1996. Section 4D of the Act is this:
"4D Special Provisions Relating to Imitation Firearms:
(1) This Act applies to an imitation firearm in the same way as it applies to a firearm, subject to the following:
(a) the Commissioner may not issue a licence authorising the possession or use of an imitation firearm (except to a firearms dealer) but may issue a permit authorising the possession or use of an imitation firearm;
(b) an imitation firearm is not required to be registered;
(c) the holder of a permit authorising the possession or use of an imitation firearm (a "possession or use permit") is not required to be authorised by a permit to acquire an imitation firearm to which the possession or use permit applies.
(2) For the purposes of the application (as provided by this section) of this Act to imitation firearms:
(a) an imitation firearm that is an imitation of a pistol is taken to be a pistol, and
(b) an imitation firearm that is an imitation of a prohibited firearm is taken to be a prohibited firearm.
Note: Reference to a pistol includes a prohibited pistol (see s 4C.).
(3) In this section, "imitation firearm" means an object that, regardless of its colour, weight or composition or the presence or absence of any moveable parts, substantially duplicates in appearance a firearm but that is not a firearm.
(4) However, an imitation firearm does not include any such object that is produced and identified as a children's toy."
The issue is whether the cap gun in question is an object that is "produced and identified as a children's toy". The matter is not without authority. In Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981 Wilson J had to deal with items seized by police on 8 December 2015 from a store trading as ModCon Gift and Accessories at the Westfield Shopping Centre at Tuggerah. On entering the store police observed a number of objects which appeared to be firearms on display in a locked glass cabinet. Similar items were stored underneath the counter, and more were held in a storehouse facility nearby. They were seized and removed from the premises by the police. The store owner requested the return of the items the following day but they were kept by the police. Her Honour pointed this out at [4]:
"On 25 May 2016 the owner of the seized items, the defendant in these proceedings, filed an application to the Local Court pursuant to s 45 of the Local Court Act 2007...seeking orders for the return of 125 of the 127 items seized...The police filed an application for the forfeiture of the items on 5 July 2016, although the initiating process does not form part of the material before this Court."
At [6] her Honour pointed out that central to the resolution of the question before her was "whether the items constituted 'imitation firearms' within the meaning of s 4D of the Firearms Act". If the items were held to be imitation firearms, s 214(1) of LEPRA applied and the items by statutory operation were forfeited to the Crown. If they were not "imitation firearms" the owner was entitled to their return.
A magistrate found for the owner of the items. Her Honour, however, held that his Honour fell into error by confining his consideration of whether the items were, or were not, children's toys to whether they were produced, packaged or otherwise labelled as such. Her Honour pointed out that the purpose of the production of the item, that is, its manufacture, is but one part the statutory definition. The Local Court should have had separate regard to the issue of "identification" of the item.
Commencing at [50], her Honour said this:
"[50] In his judgment of 3 March 2017 his Honour focused on this evidence as conclusive of both production and identification, effectively considered together. However, the words and evidence relevant to both 'production' and 'identification' had to be separately considered and separately determined. Evidence relevant to the purpose for which the items were produced was not necessarily relevant to the identification of the items. How the items were to be identified depended upon matters intrinsic to the items themselves and could not be determined by packaging or other removable paraphernalia.
[51] The objective evidence relevant to the identification of the items included:
(1) the fact that the items were made of metal or diecast metal rather than plastic or some other light weight material.
(2) they were heavy to hold, similar to a comparable firearm.
(3) many of the items had moveable parts consistent with the operation of a firearm.
(4) the items were produced in colours consistent with a firearm rather than the sort of bright colours typically associated with children's toys.
(5) expert ballistics evidence was that the items substantially duplicated the appearance of the corresponding firearms, being self-loading pistols, revolvers and select fire rifles.
[52] Further, in construing and applying the legislation, it was incumbent on his Honour to give full effect to the primary object of the Firearms Act of ensuring community safety. His conclusion that 'parliament must have intended the toy guns are not to be regarded as imitations despite varying degrees of realism' failed to give proper attention to the purpose of the legislation to protect the community from the illegal possession and use of firearms or imitation firearms. To conclude that an item which substantially duplicated the appearance of a firearm was a children's toy because of its packaging was to reach a conclusion contrary to the purpose of the legislation.
[53] In focusing on the production of the items as children's toys, and failing to separately consider the identification by reference to qualities intrinsic to them the magistrate misconstrued s 4D(4), that being an error law."
Having concluded that the magistrate had erred in law in his construction of s 4D(4) her Honour remitted the matter to the Local Court for further consideration.
Having quoted [51] of what her Honour said, I should point out that the following that can be applied to this case. The gun here in question is made of metal. According to the JG Schrödel catalogue, it is made of zinc. There is plastic, but it is only a decorative item around the butt and the grip on the handle/butt/receiver. The JG Schrödel logo has been imprinted in the black plastic decorative cover. The current item is relatively heavy. It is, as I said, 515 grams. It has movable parts. The trigger is movable and when activated makes a clicking noise. The chamber can be opened by pressing a button on one side which enables one to insert a round set of percussion caps. The item is produced in a colour consistent with its being a firearm rather than the bright colours typically associated with children's toys. Only the "Pink Line" revolver is in a child-appropriate colour. Furthermore, in this case the expert ballistics evidence is that the item substantially duplicated the appearance of corresponding firearms, being self-loading pistols.
Her Honour's judgment was cited with approval by Price J, with whom Hoeben CJ at CL and Lonergan J agreed, in Darestani v The Queen [2019] NSWCCA 248. At [58] his Honour quoted what her Honour said that I have set out above. At [60] his Honour held that the verb "identify" used in s 4D(4) means to ascertain or assert what a thing is. The verb "identified" means how the identity of a thing had been ascertained or asserted. His Honour went on to say this in [61]:
"The question whether an object has been identified as a children's toy raises for consideration, matters intrinsic to the object, the use of the object and the intention of the person using it, if the object is being used at the time it is asserted to be in the person's possession."
His Honour went on to say this:
"[62] An object that by matters intrinsic to it would be readily identified as a children's toy, could cease to be a children's toy because the object has otherwise been asserted not to be a toy. For example, a plastic rifle which by matters intrinsic to it would normally be regarded as a children's toy could lose that identification, when a person pressed it into the back of another's head saying 'this is a hold up, hand over the money or I will shoot'. The use of the plastic rifle and the intention which accompanied that use would identify the plastic rifle otherwise than as a children's toy.
[63] The principles and objects of the Act are set out in s 3. As Wilson J observed in Howard at [41]: 'Clearly, the overriding purpose of the Firearms Act is to improve and ensure public safety, in part by prohibiting the unauthorised possession of firearms'.
[64] In my view, the construction of the term 'identified as a children's toy' that is advocated by applicant does not fit comfortably with the purposes of the Act.
[65] The purposive construction that I have advanced does not expand the scope of a criminal offence beyond its textual limits. On the other hand, the respondent's construction that includes how the object could be used does and I do not accept that submission. I have no doubt that any children's toy which duplicates in appearance, a firearm, could be used in the commission of a crime and be identified otherwise than as a children's toy.
[66] No submissions were made that past use of the object was relevant to the construction issue. Properly construed, s 4D(4) could not embrace matters prior to the time that the object was alleged to have been in a person's possession.
[67] The identification of the object as a children's toy is confined to the time of possession and the past and future use of the object is an irrelevant consideration."
His Honour went on to hold that it was not open to the jury involved in that case to be satisfied beyond reasonable doubt that the applicant was in possession of an imitation self-loading pistol contrary to s 7(1) of the Firearms Act 1996 as the Crown could not exclude as a reasonable possibility that each plastic pistol found in the possession of the appellant was produced and identified as a children's toy. Accordingly, the counts relating to the alleged possession of the self-loading firearm were set aside. His Honour said, prior to making that finding, this:
"[89] This Court was invited to view exhibit D. From those matters intrinsic to the exhibit itself, particularly its weight, plastic construction, orange coloured trigger and orange cap in the muzzle, it is hardly surprising that Senior Constable Sullivan recognised the plastic pistol she found to be a toy. Furthermore, a moveable trigger with an audible clicking sound is not an uncommon feature of a children's toy.
[90] Both plastic pistols were located in the applicant's belongings. There was nothing in the applicant's use of the plastic pistols at the time of possession which asserted them to be other than a children's toy."
The alleged imitation firearm in contention in Darestani v The Queen was quite different to the alleged imitation pistol in issue in this case. For example, these matters need to be taken into account. Constable Sculley was cross examined about finding the cap gun. This evidence was given:
"Q. When you saw the item for the first time, after looking at it for the first time, do you say it was a cap gun?
A. No.
Q. When you looked at the item when it was taken out of the bag, do you agree that it had a plastic insert in the end of the barrel?
A. I at the time when it was first pulled out I didn't see that because it is covered in blue cloth.
Q. Can I put this to you: is it fair to say that you very quickly realised that it wasn't a real firearm?
A. No. Not, not instantly.
Q. When you say, 'not instantly', but it was a matter of minutes before you formed the conclusion; isn't that right?
A. Once I spoke to the accused he informed me that it was not, not a real gun. But the initial time when I grabbed it, to be honest I believed that it was a real firearm, yes."
The constable went on to admit in cross examination that the appellant told him that the item was in fact a cap gun. The important thing to note is that the black plastic insert could not be seen in the barrel when the item was first discovered by Constable Sculley because the barrel was swathed in the blue cloth that had been secured with duct tape and that he could only see the butt and trigger of the item and he, until assured by the appellant that it was not a real gun, accepted that it was in fact not a true firearm, that is, his immediate perception of the gun was that it was a genuine firearm.
The appellant also told the police this. Commencing at 12.45am on Tuesday 16 October 2018 Constable Fisher took a handwritten statement from the appellant in his police notebook. The original was exhibit 2 in the Local Court and the transcript of it is exhibit 17. The notebook conversation is this:
"Sculley: What can you tell me about the replica firearm?
Appellant: It's not real. I've had it for ten years and I didn't know it was in my bag.
Sculley: Are you the owner of the replica firearm?
Appellant: Not really, it's been at my nan's house for years.
Sculley: So how did it get in the bag?
Appellant: My nan must have put it there.
Sculley: So explain the blue cloth?
Appellant: My nan wrapped it. She put the elastic bands around it and shit.
Sculley: Do you agree that you told me that you'd shown your stepson the firearm a week ago?
Appellant: Yea, I showed him and said this is the cap guns we had in my day. I wouldn't let him take it outside.
Sculley: Do you know it's an offence to carry a replica firearm?
Appellant: No, it's a cap gun, I know it looks like a gun.
Sculley: Who packed the green bag at your place?
Appellant: Nan put all the clothes in there.
Sculley: Anything else to say?
Appellant: No."
The appellant signed that notebook after reading the conversation recorded in it.
The important thing to note from what I have just quoted, which I have quoted in extenso for other reasons, is that the appellant would not permit his stepson to take the gun outside and the appellant admitted that the cap gun "looks like a gun".
A further question concerning the identification of the item arises from the circumstances in which it was found in the appellant's possession. The bag in question appears to have been a supermarket shopping bag. Constable Sculley was asked in chief to describe the bag in "further detail". He said this:
"It was.. like a when you go to Woolies or Coles, it's the not the normal plastic bags you buy for 15 cents. I think it's the dollar ones. It's .. like .. maybe 30 centimetres deep. Just a single bag. No pockets. That's all."
What can be seen, in the first photograph with which, of the item [in exhibit 18] is consistent with the bag being a fabric supermarket bag that most people are familiar. As ought be clear from what I have already quoted, the item had been wrapped in blue cloth which was secured around the barrel of the item with duct tape. The question is what was it doing in the bag and how did it come to be there. This goes to both the identification of the item and whether it was in the possession of the appellant, another issue raised in this appeal.
As I have already pointed out, the appellant was on his way from his grandmother's house to his father's house. It appears that the appellant's partner was staying with his grandmother at the time. On Tuesday 16 October 2018 the appellant's mother attended the Glebe Police Station. Paragraph 19 of Constable Sculley's statement of 14 November 2018 is this:
"About 6.30pm that afternoon, I observed a lady at the front counter talking to another officer. I heard the lady say, 'my son George Palmans'. As a result I stopped and had a conversation with the lady. The lady stated her name was Lorraine Lalor, the mother of George Palmans. During conversation Lalor stated that her son had told her that he's trying to get rid of the firearm. I said 'Is it possible to speak with your mother?' Lalor said 'Yeah, she's out in the car'.
[20] Constable Fisher and I went outside and obtained statements off Lalor and Lorraine Palmans, the accused's grandmother."
Constable Sculley erroneously ascribed the wrong first name to the appellant's mother. Her first name is Robyn. Constable Fisher says this in his statement of 15 November 2018:
"[19] About 6.55pm that evening I observed Constable Sculley inside Glebe Police Station speaking with a woman who I now know to be Robyn Lalor, the mother of Mr Palmans. Constable Sculley and I followed Ms Lalor outside to St Johns Road, Glebe where Ms Palmans' grandmother, Lorraine Palmans, was waiting inside a parked vehicle.
[20] I obtained a statement from Ms Lalor. This statement is recorded in official police notebook... issued to Constable Fisher, p 102 104. I observed Mrs Lalor sign my notebook under the statement before I co-signed it. During this time I observed Constable Sculley obtain a statement from Lorraine Palmans."
The notebook statement made by the appellant's grandmother was exhibit 9 in the Local Court together with a transcript of it. It contains Lorraine Palmans' acknowledgment that the current appellant is her grandson. When asked where he lived she said he "comes and goes". She said that the appellant stayed with his father "sometime", which is probably short for some of the time. There was then a question and answer interview which contains this:
"Q. On Monday 15 October 2018, did George stay over at your house?
A. No.
Q. Did you ever pack bags for George with his clothes?
A. I have washed his clothes and I have packed, but I haven't done that for a few weeks.
Q. Do you know anything about a toy gun or a replica cap gun?
A. Nothing.
Q. Have you ever had a toy cap gun in your house?
A. No. I won't allow anything like that there. My son would fly off the handle.
Q. Do you know anything about a black box cutting knife?
A. No.
Q. Never had anything like that at home?
A. Nuh.
Q. Did you pack a toy gun in an Aldi bag with George's clothes in it?
A. No way in the world. I haven't done his washing for weeks.
Q. Do you have anything else to say about the matter?
A. I don't want anything or know anything about guns or drugs.
Q. Has George ever mentioned anything about a gun to you?
A. Nope. Never, not even a toy gun."
Ms Robyn Lalor's statement given to Constable Fisher was exhibit 7 before the Local Court, together with a transcript of it. She admits that she is the mother of the appellant and that her mother is Lorraine Palmans. The statement continues thus:
"My mother has lived at [redacted] Glebe Street, Glebe for about one year. The last time I was there was about a week ago. Over the past year I have been visiting her weekly to fortnightly. During this time I have never seen anything resembling a gun in my mother's house. I have never known my mother to even have toy guns in the house.
About 5pm on 16 October 2018 I was speaking to my son, George, about him getting arrested for having a gun the night before. George said, 'I was trying to get rid of it. I just wanted to get it out of the house'. I said, 'Why don't you just give it to your dad to throw in the bin?' He said, 'I don't know mum, I don't know'."
There is an issue as to whether those statements should have been in evidence which I have yet to deal with. However the appellant's grandmother denies that there had been a gun in her premises at any time, let alone persisting over a period of some ten years. She also denied that she had done any washing for her grandson on the previous evening, and certainly had not packed any gun into his bag. The mother of the appellant supports the grandmother to an extent, although the extent of that corroboration appears to be limited to a period of contact once a week or once a fortnight over a period of a year, say, some 30 to 40 different times over a period of a year. Importantly, according to the appellant's mother, the appellant admitted to her that he is "trying to get rid of the gun".
The learned magistrate accepted those statements from the appellant's mother and grandmother. It is extremely unusual for a mother and a grandmother to give evidence against their son and grandson. The evidence given by the mother and the grandmother is entitled to be given weight. Giving that evidence weight, the appellant's assertion that he did not know the gun was in his bag cannot be accepted because the bag had not been packed by his grandmother on the evening of 15 October 2018. The item had been wrapped to an extent, probably to conceal it. There was no other purpose for wrapping it in the way in which it was wrapped. The appellant admitted to his mother that he was trying to get rid of the item.
Accepting that at face value, why would he do so if this were merely a children's toy, and the answer to that must be inferred from earlier, not permitting his stepson to use the item outside the house because it looked like a gun. The appellant appears to have wanted to get rid of the item because of its appearance. If one accepts that, then, the appellant himself perceived and identified the cap gun as an imitation firearm which he wished to be rid of because it could get him into trouble, perhaps with the police. There was no reason for a man who in October 2018 was 25 years old to be carrying a "children's toy" in the early hours of the morning around Glebe.
The magistrate accepted that the item was not identified as a child's toy and, considering all the circumstances, that finding is in my view completely acceptable. I therefore hold that the gun, which was exhibit 14 before the Local Court, was not identified as a children's toy at the time that it was possessed by the appellant in the early hours of 16 October 2018.\
[4]
Possession
That it was in his possession must be inferred from the fact that it was in a bag that he was carrying, a bag he identifies as his work bag, and it was not placed there by his grandmother because she has denied that.
[5]
…of the box cutter
The position with the box cutter is, however, in my view different. The box cutter the appellant used in the course of his work. He advised the police that it was in his bag when they started searching it. He told them that he used it for his work each day. Exhibit 19 in the Local Court was an email sent by the appellant's solicitor to Constable Sculley together with certain annexures. The first numbered paragraph of the email is this:
"In relation to the charge of possession of a box cutter, my client instructs that he worked for Eastern Suburbs Installations Pty Ltd where he was employed/contracted as an installer of whitegoods. That company was contracted to The Good Guys. This appears to accord with the explanation he gave police, being, 'I open boxes for work every day'. He instructs his contact person was Mr Michael Nallo, who appears to be the director of Eastern Suburbs Installations Pty Ltd. Our inquiries/investigations in relation to Mr Nallo are attached for your reference. As such we intend to submit on behalf of the defendant that he had a reasonable excuse for being in possession of the box cutter at the time of his arrest."
One of the annexures identifies Mr Michael Nallo as a director of Eastern Suburbs Installations Pty Ltd for which he had been a managing director from November 2011 up until that time and had worked as a "installer" for four years commencing in January 2012. There was also a record from ASIC that Eastern Suburbs Installations Pty Ltd was a company registered on 27 July 2016. The appellant had a reason for having the box cutter in his possession. Sometimes he appears to have resided with his grandmother at her home where his partner was also residing. At other times he was residing with his father elsewhere in Glebe. If he was going from one place to the other to sleep overnight at his father's home, one would expect him to take the box cutter with him so that he could go to work on the following day.
I accept that the appellant had a reasonable and lawful excuse for possession of the box cutter at the time that he was found with it on Lyndhurst Street, Glebe, in the early hours of 16 October 2018. For that reason, the conviction in respect of the custody of a knife in a public place, being H69048003, sequence 2, is set aside and any penalty imposed for that alleged offence is also set aside.
[6]
…of the imitation firearm
Implicit in what I have said today about the possession of the cap gun is that it was physically in the appellant's possession. He admitted as much to his mother. He had it for the purpose of disposing of it. The allegation that it was packed into his bag, or must have been packed into his bag, by his grandmother is inconsistent with what his grandmother said, and it is implausible that she would try to wrap it up using blue cloth and duct tape.
[7]
Admissibility of statements of mother and of grandmother
The issue then falls back to the first issue raised in the case as to whether the statements of the mother and grandmother ought to have been admitted into evidence. They were admitted into evidence pursuant to s 65 of the Evidence Act 1995. The relevant provisions of s 65 are these:
"65 Exception: criminal proceedings if maker not available:
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:
(a) was made under a duty to make that representation or to make representations of that kind, or
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable, or
(d) was:
(i) against the interests of the person who made it at the time it was made, and
(ii) made in circumstances that make it likely that the representation is reliable.
Note: s 67 imposes notice requirements relating to this subsection."
The relevant provision in subs (2)(b), that the statements were made by the mother and the grandmother shortly after the asserted facts occurred in circumstances that make them unlikely that the representation is a fabrication.
Clearly, the statements were made about between 6.30 and 7pm on 16 October 2018 and the offences are alleged to have occurred between 1.30am and 1.45am on the same day. The statements are so closely linked in time as to be within the contemporaneity required by par (b). The question then becomes whether the representation is unlikely to be a fabrication. I ask myself, again, as most tribunals of fact would do, and particularly a jury, whether a mother and a grandmother would fabricate evidence against their son or grandson. In my view that is highly unlikely and it served no purpose. There is no evidence, other than what the appellant said, that could incriminate the grandmother of any offence, and nothing that the appellant said would incriminate his mother. In my view, given the relationship between the appellant and his mother and grandmother, it is unlikely that what they told the police is a fabrication. Therefore, the second part of s 65(2)(b) has been made out.
The real question was whether the witnesses were "unavailable". The matter has a very unfortunate curial history. The appellant was first taken before the Local Court at Newtown on the day of his arrest, 16 October 2018, and was given bail. The matter then went before the Court on 30 October when the police were ordered to prepare a brief by 29 November 2018. The matter was next before the Court on 11 December 2018 when it adjourned to the Downing Centre on 18 December 2018 because it would appear there was some problem with bail. There is nothing in the documentation before me to tell me what happened on 18 December 2018. However, a hearing date was apparently fixed for 19 March 2019 but that was vacated on 8 February 2019. The matter was then fixed for hearing on 7 May 2019 but the accused was convicted in his absence and a warrant was issued. On the following day, however, the warrant was recalled because the appellant had a good reason for not appearing before the Local Court on 7 May, because on that day he was appearing before my colleague Jeffreys DCJ. The conviction in absentia was annulled on 9 May 2018.
The matter was again before the Local Court on 20 August 2019. I do not know whether that was for hearing, but it may well have been because there appears to have been a joint application for an adjournment. The matter was then set down for hearing on 29 November 2019 when it was again adjourned until 9 March 2020. On 9 March 2020 the matter was again adjourned for a reason which is unclear to me. It was then, it appears, to have been set down for 9 April 2020 when it was stood over for mention on 7 May 2020. On that day it was adjourned to 6 July 2020 in order to fix a hearing date. The hearing date that was fixed on 6 July 2020 was on 18 August 2020.
On 18 August 2020 it came on before Farnan LCM when the police obtained an adjournment, and it was then adjourned to 27 October 2020 when the hearing commenced before Stewart LCM. In other words, there was a long curial history of many hearing dates being vacated. The magistrate dealt with the application under s 65 on 27 October 2020.
LUNCHEON ADJOURNMENT
Whether a witness is unavailable or not depends upon the meaning of the term "unavailable". The Dictionary to the Evidence Act 1995 Pt 2 contains in cl 4 the following definition of unavailability of persons:
"4 Unavailability of persons:
(1) For the purposes of this Act, a person is taken not to be available about a fact if:
(a) the person is dead, or
(b) the person is, for any reason other than the application of s 16 (Competence and compellability: judges and jurors), not competent to give the evidence, or
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or
(d) it would be unlawful for the person to give the evidence, or
(e) a provision of this Act prohibits the evidence being given, or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact."
The prosecution appears to have relied upon par (c) of the definition and para (g) of the definition to support the assertion that both the mother and grandmother were unavailable to give evidence. I shall deal with the grandmother first. There was in evidence before the Local Court a letter from Dr Sally Roberts of 30 Turner Street, Redfern, writing on the stationary of the Aboriginal Medical Service Cooperative. The opening paragraphs of the letter are these:
"Lorraine Palmans is a patient at Redfern Aboriginal Medical Service. Lorraine has multiple chronic health conditions which prevent her from doing many activities and she requires a carer to help with some activities of daily living.
Lorraine reports she is due in court 27 October 20, however due to her significant health issues she is unable to attend court. Lorraine has chronic pain issues, previous brain surgery for a cerebral aneurysm, osteoarthritis, fibromyalgia, depression/anxiety, diabetes and multiple other chronic conditions which limit her movement and ability to get around. She also suffers short term memory loss which is exacerbated in times of stress."
There is then a list of active conditions which have beset the lady since 1997. In fact, what was diagnosed in 1997 was a depressive anxiety disorder. Relevant subsequent diagnoses appear to me to be hypertension, obstructive sleep apnoea, a cerebral aneurysm in 2010 which required surgery, urge incontinence diagnosed in 2013, chronic kidney disease stage 2 diagnosed in 2019. Inactive conditions as at October 2020 included asthma, gallstone problems, bilateral carpal tunnel syndrome, a periumbilical hernia, an iron deficiency, a fatty liver, which may no doubt have preceded the chronic kidney disease, and lymphocytosis. Exhibit 4 in the Local Court was a notice in accordance with s 67 of the Evidence Act 1995. That document contains this matter:
"Court has been set for hearing on six occasions over 18 months. Witnesses suffer from diagnosed serious medical conditions impeding them attending court, wheelchair bound and carer required. Each hearing witnesses were subpoenaed by prosecution, AVL offered to both witnesses. In response, witnesses provided dated medical certificates. AVL offered to witnesses, however witnesses limited by their severe medical conditions."
That applied to both the witnesses. As far as the mother was concerned, there was a medical certificate made by Dr Shina Dayan which said this:
"This is to certify that Mrs Robyn Lalor is receiving medical treatment for depression and anxiety. She gets panic attack about court attendance. The patient will be unfit to attend on 27/10/2020."
There was also tendered to the Court on this application a statement made by Ms Lalor on 20 December 2019. It contained this matter:
"[3] I have ongoing health issues and I have been diagnosed with severe anxiety, bipolar and depression. I see a psychologist and psychiatrist for my illnesses. I suffer from severe panic attacks because of my anxiety. I am currently medicated for my conditions."
The statement goes on to say that she was first subpoenaed to attend Court on 18 December 2019. She did so but suffered a severe panic attack that day at court. She was then told the matter was adjourned until 7 May 2019, and the police served her with another subpoena to give evidence but she was unable to attend due to her condition and she provided police with a doctor's certificate. The same occurred for a hearing scheduled to take place on 29 November 2019. She was then told by police on 30 November 2019 the matter had again been adjourned until 2020. Her statement concludes with this:
"[8] I am unable to attend Court on this day due to my ongoing
health issues. I am afraid that I will have a severe panic attack as this matter triggers an attack. I have provided police with a doctor's certificate every time I am required to [go to] Court."
On Friday 23 October 2020 Ms Lalor sent this message by email to Constable Fisher:
"I'm having anxiety and panic attacks[,] shakes and tremors now for over three hours seeing doctors[.] This is too much[.] I can't do this anymore[.] I'm not getting no medical certificates[.] You said the last time mum and I saw you at the police station we didn't need to get another certificate[.] You lied[.] I'm not doing anymore[.] You gotta understand this is killing me[.] You show the magistrate what I'm writing to you and tell the magistrate I'm not letting you do this to me no more. I'm done[,] finished."
The inference to be drawn from the medical certificate tendered and what the witness was saying in her email of 23 October 2020 is that the being subpoenaed to attend Court and the repeated need to obtain medical certificates was too much for her to bear causing her great anxiety.
Clearly, each of the mother and the grandmother had medical issues, in particular psychiatric issues, which prevented them from attending Court to give evidence. Perhaps they did not prevent them attending Court so much as doing so in order to give evidence. However, one can understand that the thought of having to give evidence against one's own child or grandchild might in itself cause some anxiety.
It is clear that on each occasion the matter was listed for hearing the police issued the witnesses with a subpoena to give evidence, but, albeit on the first occasion, they were not required to turn up because of an adjournment or they felt that they were unable to turn up if they were not notified in advance of the adjournment application. In those circumstances it was open to the magistrate to find that each of the mother and grandmother was a person who was mentally or physically unable to give evidence and that it was not reasonably practicable to overcome that inability because each had been under treatment for some time and that treatment does not appear to have resolved the problem of the inability to give evidence.
Furthermore, it appeared that the police had taken all reasonable steps to have the witnesses brought before the Court, but they had been not able to successfully compel their attendance by the process of the issuing of a subpoena. In addition, one must bear in mind that the grandmother could not move except in a wheelchair and required a carer. The carer had been at one stage the appellant himself but in more recent times has been the appellant's mother, the daughter of his grandmother.
The learned magistrate said this in his ruling on 27 October 2020:
"I am satisfied on the information available to me that both of those witnesses, Lorraine Palmans and Robyn Lalor, are unavailable within the meaning of cl 4 of the Dictionary in the Evidence Act. I am satisfied that under subcl (1)(c) they are 'mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability'. I am satisfied as to the legitimacy of their issues as referred to either in the email from Ms Lalor or in the medical certificates or both. I am satisfied on the evidence from the police on the night in question that they were satisfied that Robyn Lalor is the carer for her mother, which is why the mother did not come in from the car and the police had to go out to the car to take the statements.
I am not persuaded in the slightest that the grandmother has some criminal liability, is criminally concerned or is attempting to put over her own interests in giving a statement to police. I am not satisfied on the material before me that they are reluctant in the sense that they simply do not want to come to Court. There is material before the Court that they have attended on a previous occasion. The matter has been adjourned numerous times."
I return to the penultimate issue raised by the magistrate, from what I have just quoted. It was asserted by the defence on behalf of the appellant that the grandmother was criminally concerned in the question of the possession of the cap gun and the knife and that she provided a statement to the police to advance her own interests. With the utmost respect, that turns an out of Court unsworn statement by the appellant as positive evidence of the criminality of his own grandmother. The unsworn, untested assertion out of Court to minimise his own liability is something that should be taken with the utmost cynicism. The police, certainly, were not convinced that the grandmother herself was criminally concerned in the matter which was being prosecuted, the possession by the appellant of the cap gun and the box cutter.
As I said, it is implausible in the extreme that a grandmother would give false evidence against her own grandson, or a mother give false evidence against her own son. Some of the submissions that were put before me seem to misapprehend the legislation and what here occurred. True it is that the statements were physically written by Constable Fisher and Constable Sculley. However, they were only acting as an amanuensis, as a scribe or a secretary. Each witness adopted what was written in the policeman's notebook by signing it. Once it was signed by the witness it became the witness's statement insofar as the witness, in particular the mother, was a person to whom the appellant made admissions. Those admissions are admissible under the Evidence Act 1995 s 81. The submissions put before me seem to suggest that the statements were made not by the witnesses but by the police. However, the statements were actually made by the witnesses who adopted what was recorded in the police notebooks by signing them. That is common police procedure. The statements still remain the statements of the witnesses rather than of the police. This is not impermissible hearsay admitted under s 65.
I therefore have no hesitation in upholding the ruling made by the learned magistrate, that the statements were admissible under s 65 of the Evidence Act 1995.
[8]
Result
The three main arguments raised were the admissibility of the statements of Robyn Lalor and Lorraine Palmans, whether the items in question were possessed by the appellant, but in particular the firearm, and also whether the JG Schrödel cap gun was a "children's toy" within the meaning of s 4D(4), of the Firearms Act 1996. As I said, I have set aside the conviction in respect of the knife, but in my view the conviction recorded in respect of the imitation pistol was correctly made. The appeal in respect of that offence is dismissed.
Although the notice of appeal said that this was an all grounds appeal, learned counsel for the appellant disavowed any intention to appeal against the severity of any sentences passed by the learned magistrate.
[9]
Amendments
08 September 2021 - Further particulars on coversheet added.
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: 08 September 2021