_Powell v Chief Executive Officer Of Customs_

District Court of Queensland|2006-06-28|Before: Act J

APPEAL AND NEW TRIAL - duty of court below to give reasons - failure to identify relevant issues and make findings of primary fact - not simple matter

CUSTOMS AND EXCISE - Customs prosecutions - whether summary procedure under Justice Act 1886 available - locality jurisdiction

Bawden v ACI Operations Pty Ltd [2003] QCA 293 - applied.

Beale v GIO of NSW (1999) 48 NSWLR 430 - cited.

Carlson v King (1947) 64 WN (NSW) 65 - cited.

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161 - applied.

Crystal Dawn Pty Ltd v Rudruth Pty Ltd [1998] QCA 373 - applied.

Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 - cited.

Martin v Rowling [2005] QCA 128 - applied.

Mifsud v Campbell (1991) 21 NSWLR 725 - applied.

Olsen v Grain Sorghum Marketing Board, ex parte Olsen [1962] Qd R 580 - cited.

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

Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 - cited.

R v Sheehan [2001] 1 Qd R 198 - cited.

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 - applied.

Von Lieven v Stewart (1990) 21 NSWLR 52 cited.

Australian Government Solicitor on behalf of the respondent

[1] On 23 December 2004 the appellant was convicted of importing a prohibited import contrary to s 233(1) of the Customs Act 1901. A conviction was recorded; he was fined $1,500 and ordered to pay $6,000 costs. He has appealed against the conviction pursuant to s 222 of the Justices Act, on a number of grounds. The first two grounds raise issues as to the jurisdiction of the court, so it is appropriate to deal with them first.

[2] The complaint alleged that the offence occurred "in Sydney in the State of New South Wales". Ordinarily the Magistrates Court at Brisbane would not have jurisdiction to try a summary offence alleged to have occurred in Sydney. Prima facie a complaint for a simple offence or breach of duty is to be heard and determined at a place appointed for holding magistrates courts within the district within which the offence or breach of duty was committed.[1] However, the offence charged was an offence against Commonwealth law and hence one in respect of which the jurisdiction of the Magistrates Court in Brisbane depended on Commonwealth legislation.

[3] Section 68 of the Judiciary Act 1903 provides in subsection (2)(a) that the several courts of a state exercising jurisdiction with respect to the summary conviction of offenders or persons charged with offences against the laws of the state shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. That is made subject to the provisions of s 68 and to s 80 of the Constitution, concerned with the trial on indictment of an offence against the law of the Commonwealth. Section 68(5) provides that the jurisdiction conferred by subsection (2) in relation to the summary conviction of persons charged with offences against the laws of the Commonwealth is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that state. That provision is subject to subsection (5A), which permits the court to decline jurisdiction in relation to an offence against the law of the Commonwealth committed in another state.

[4] There is a similar provision in s 277A of the Customs Act which in subsection (1) provides:

"A provision of the Judiciary Act 1903 by which a court in a state is invested with federal jurisdiction has effect, in relation to matters arising under this Act, as if that jurisdiction were so invested without limitation as to locality other than the limitation imposed by s 80 of the Constitution."

[5] On the face of it therefore, it would appear that there is no difficulty in terms of jurisdiction with the Magistrates Court at Brisbane hearing an offence under Commonwealth law alleged to have been committed in Sydney.[2] It is unnecessary to consider any issue as to whether jurisdiction could have been or ought to have been declined under s 68(5A), that issue not having been raised on appeal, presumably because it was not raised before the magistrate. The appellant's argument, however, was that jurisdiction in relation to a customs prosecution was not conferred on state courts by s 68(2), but was subject to a separate and specific provision in s 245 of the Customs Act. That in turn depends on whether this was a "customs prosecution" as defined in s 244 of the Act. It does not depend simply on whether the appellant was being prosecuted by the respondent.

[6] Relevantly s 244 defines "Customs prosecutions" as "proceedings by the Customs for the recovery of penalties under this Act."[3] The question of whether s 244 should be given a wide or a narrow meaning has produced some difference of judicial opinion. In Wesley-Smith v Balzary (1977) 14 ALR 681 at 649 the conclusion was reached, with some hesitation, that prosecution proceedings for an offence under the Act were proceedings for recovery of a penalty. The matter was considered further in Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649 where Hunt CJ at CL at p 656 was evidently reluctant to give any wider meaning to the term than he had to, and would have excluded those provisions of the Act which then provided for the imposition on conviction of a "fine" rather than a "penalty". Section 33(2) at that time referred to punishment by way of a fine; that section has since been amended to refer to a penalty.

[7] The position has, however, been clarified by the decision of the High Court in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161. Hayne J (with whom Gleeson CJ and McHugh J agreed) referred to the history of the Act and similar earlier provisions in England dating back to the reign of George I. He noted that in all fundamental respects the scheme of the provisions originally enacted in 1901 in the Customs Act had remained unchanged: p 191. There have, however, been some changes.

[8] Initially by s 245 a customs prosecution could be instituted "by action, information or other appropriate proceeding" in the High Court or the Supreme Court of a state or, where the prosecution was for a pecuniary penalty not exceeding ₤500 or the excess was abandoned, could be instituted in any county court, district court, local court or court of summary jurisdiction. Section 247 as originally enacted only applied to prosecutions in the High Court or the Supreme Court of any state which were to be commenced, prosecuted and proceeded with in accordance with (relevantly) the usual practice and procedure of the court in civil cases. Section 248 then made provision for all customs prosecutions before a court of summary jurisdiction in the state. At that stage, therefore, the legislation set up a dichotomy: matters in the High Court or a Supreme Court were dealt with as civil actions, but a matter in a court of summary jurisdiction was dealt with in accordance with the state law relating to summary proceedings before justices. Section 246 gave a defendant in the case of certain summary proceedings the right to require the case to be tried in either the High Court or the Supreme Court (at the election of the prosecutor). The scheme set out by the act was therefore comprehensive, as it needed to be since at the time it was enacted (1901) the Judiciary Act was not in existence.[4]

[9] A narrow interpretation of the definition in s 244 was expressly rejected by Hayne J at [109] who pointed out the "penalties" for which the act provided extended to the conviction of the defendant, as was secured here. His Honour went on to note at [111] that amendments made to the Customs Act after it was first enacted did not permit or require a different conclusion. Customs prosecutions therefore go beyond actions for debt.

[10] In these circumstances and in the light of this history, it is understandable that these provisions should be interpreted as being comprehensive in their operation. This was stated expressly by Gummow J, who delivered a separate concurring judgment, which dealt specifically with the argument relied on by the respondent to reject this analysis. The respondent's submission was that s 248 of the Customs Act still provides that the provisions of the law relating to summary proceedings in force in the state where the proceedings are instituted shall apply to all customs prosecutions before a court of summary jurisdiction in a state. That law was identified appropriately as the Justices Act 1886.

[11] The difficulty is that since 1901 one of the changes that have been made to the scheme is that the dichotomy between proceedings in the High Court and the state Supreme Courts on the one hand and proceedings in courts of summary jurisdiction on the other has been removed. Proceedings can no longer be commenced in the High Court, and s 245(1) now permits customs prosecutions to be instituted in any Supreme Court, in a County Court or District Court of a state, in a local court of full jurisdiction in South Australia or the Northern Territory, or in a court of summary jurisdiction of a state, of the Australian Capital Territory or of the Northern Territory. Section 247 is no longer confined to the High Court or a Supreme Court but refers to "Every customs prosecution in a court referred to in s 245(1)..." That includes a customs prosecution instituted in a court of summary jurisdiction of a state, which is what this one was.

[12] Section 248 begins with the expression "Subject to the provisions of this Act..." As Gummow J said at p 172:

"The opening words of s 248 subject its provisions to s 247. Section 247 applies in its terms to every customs prosecution in any court referred to in s 245(1), that is to say, superior courts and courts of summary jurisdiction. Upon its proper construction, s 247 requires every customs prosecution, whatever the court designated in s 245(1) may be, to be commenced, prosecuted and proceeded with in one of the three modes set out in s 247."

[13] Although his Honour's judgment was not the majority judgment, there was nothing said in the judgment of Hayne J (or for that matter in the judgment of Kirby J) which was inconsistent with what I have just quoted, and indeed it seems to me, with respect, that the overall thrust of the judgment of Hayne J is entirely consistent with it. In view of this, and bearing in mind the great respect properly due to Gummow J, I unhesitatingly apply his Honour's comments to the resolution of this issue in this appeal.

[14] The respondent relied on the use by Fryberg J of the term "elected" in the later Labrador Liquor Wholesale proceeding, [2006] QSC 40 at [38] as indicating that it was a matter of choice for the respondent whether or not to proceed in the civil jurisdiction under s 247. It is not at all clear from his Honour's judgment that this was the result of a consideration of this particular issue, and even if it were, if there is a conflict I prefer the analysis of Gummow J.

[15] It follows that the respondent's submission, that the resolution of the issue as to jurisdiction is to be found in s 248 of the Act, must be rejected. It is difficult to see, in the light of the amendments which have now been made to s 245 and s 247, that s 248 has any work to do.[5] It also seems to follow from his Honour's comments, and indeed from the broader historical analysis in the judgment of Hayne J, that when s 245 provides that a customs prosecution "may be instituted" it is not providing in effect that they can be done this way, although they can also be done in some other way. Rather, the expression was used in order to indicate that the legislature was creating a mechanism by which customs prosecutions could be instituted, and in the absence of any alternative mechanism created by the statute, was effectively prescribing the only mechanism by which such a step was to be taken. The use of the word "may" rather than the term "shall" or "must" was, I expect, because whether a customs prosecution was actually instituted was always a matter of discretion. But the discretion never extended, it seems to me, to one to institute the proceedings by some procedure other than that specified in the Act.

[16] Section 233 provides in subsection (1AA) that a person who contravenes subsection (1) is guilty of an offence punishable on conviction (relevantly) as provided in subsection 233AB(2). That subsection provides (relevantly in this case) that where an offence is punishable by this section "the penalty applicable to the offence is...a penalty not exceeding $100,000." This was therefore a proceeding within s 244 of the Act, giving that provision the broad interpretation required by the High Court.[6] Accordingly, s 245(1) permitted it to be commenced in a court of summary jurisdiction of a state, and s 247 provided that it was to be commenced relevantly "in accordance with the usual practice and prosecution of the court in civil cases..."[7]

[17] The locality jurisdiction of the magistrates court in civil matters is determined by the rules.[8] The UCPR provides in r 35(1) that a proceeding must be started before a court in one of a list of districts, one of which is the district in which the defendant or respondent lives or carries on business. According to the Notice of Appeal the appellant lives or carries on business at an address in Windsor, which is within the Brisbane Magistrates Court district. Accordingly the Magistrates Court at Brisbane had the necessarily locality jurisdiction. It follows that there is no substance in this ground of appeal.

[18] It was further submitted for the appellant that if the Brisbane Magistrates Court did have jurisdiction the proceedings were wrongly brought by way of complaint and summons under the Justices Act; they ought to have been brought by claim under the UCPR, which lays down the "usual practice and procedure of the [Queensland Magistrates] Court in civil cases." For the reasons set out above, in my opinion s 247 did apply to this proceeding, and therefore it was required to be commenced by a claim under the UCPR, rather than by a complaint and summons under the Justices Act.

[19] The question then is what effect this has had on the proceeding. Although in a proceeding to which the Justices Act applies a failure to comply with its requirements may well go to jurisdiction, in a proceeding to which the UCPR applies a failure to comply with the rules does not render the proceeding a nullity: r 371(1). Nevertheless, there was a fairly comprehensive failure to comply with the requirements of the rules. It is I think unnecessary to decide whether r 373 applies to the use of a complaint and summons, or whether that rule is only concerned with a situation where a proceeding was started by one of the types of originating process identified in r 8(2) when it ought to have been started by one of the others.

[20] The point is one which should of course have been taken before the magistrate. It is not apparent from the transcript that I have that it was taken, but there were then submissions in writing put in by both parties which I do not have, and (as will appear below) the magistrate's failure to give proper reasons means that it is not apparent whether he gave any consideration to such a point. However, the respondent did not submit that the point was not open on appeal because of a failure to take it before the magistrate, and I will therefore proceed on the assumption that the submission is available to the appellant.

[21] In my opinion the departure from the procedure required by the rules in the present case was so great that it would be wrong to allow the proceeding to stand. The magistrate ought to have made appropriate directions to require the matter to proceed under the UCPR. Had that occurred, the defendant would have been put in the position of either filing a defence (ie a responsive defence) or allowing the matter to go on default. In those circumstances, what followed in the proceeding could have been quite different from what actually occurred. In my opinion, for that reason alone, the appeal should be allowed and the conviction should be quashed. I will leave for the moment the consideration of further consequential orders.

[22] It is convenient to deal next with the question of whether the item the subject of the charge, a breach bolt, was in the circumstances a prohibited import. The import of the breach bolt as a firearm part was prima facie prohibited by regulation 4F of the Customs (Prohibited Imports) Regulations 1956, subject to the satisfaction of various conditions or requirements set out in Part 2 of Schedule 6 of the Regulations. The respondent's case was that the breach bolt was a part for a firearm which fell within item 12 of the Schedule, so that the bolt as a part fell within item 13, and its importation as prohibited in the absence of the authority of the minister. There was no suggestion that the authority of the minister had been given for the importation. The appellant's case was that on the evidence the breach bolt was a part for a firearm which was within item 9 in the schedule, so that as a part it came within item 10, so that the authority of the minister was not necessarily required, there were other requirements one of which had to be satisfied, and one of them was.

[23] The complaint contained a number of averments[9], including that "the breach bolt is a firearm part for a fully automatic firearm", and further or in the alternative that "the breach bolt is a firearm part for a semi-automatic firearm" and that such a part was listed at item 13 of Part 2 of the Schedule. The case for the respondent as opened was that the part was for a MAC10 firearm or a clone thereof, which resembles in appearance a submachine gun, a machine pistol or a handgun that has a fully automatic firing capability. Evidence was called from Mr Davies, a forensic firearm investigator with the Australian Federal Police: p 5. He gave evidence that the item in question was "a breach bolt and firing pin out of a firearm, in particular a MAC10 firearm, or a clone of a MAC10 firearm": p 6. This was a firearm that resembled in appearance an Ingram submachine gun: p 7.

[24] An example of this weapon was produced to Mr Davies in the witness box, and he demonstrated how it went into it. The particular weapon had a select lever so that it could operate with either semi-automatic or fully automatic fire: p 8. It had a magazine capacity of 30 rounds. Under cross-examination on p 11 he identified a photograph of a Cobray pistol, which he agreed was "similar in appearance to the Ingram".[10] He said he would describe it as a clone, but it had the appearance of a handgun, a pistol.

[25] He was then shown photographs of a series of Glock handguns, and agreed that one of them, the Glock 18, would fall into item 12 because it was capable of automatic fire: pp 12-13. The distinguishing feature, so far as appearance was concerned, between the Glock 18 and the others, was that the Glock 18 had a select lever so that it could be set to fire automatically. At p 14 he conceded that if a Cobray did not have a select lever it would be a pistol. At p 19 he said that if someone wanted to know whether it was legal to import something which fell within the definition of a firearm part, it was appropriate to talk to Customs and the Attorney-General's office and to rely on what they said; I suspect that this evidence was really outside his expertise, and should not have been admitted. At page 21, in answer to a question from the magistrate, he said that the breach bolt would fit the Cobray and the Ingram, that is the Cobray shown in the photograph; he could not say whether or not that was capable of automatic discharge.

[26] The respondent called an officer of the Attorney-General's department responsible for processing applications for import approval of firearms or parts, who said, among other things, that the police authorisation test in relation to firearm parts and accessories can generally be satisfied by obtaining a form B709A from the relevant State police: p 28.

[27] The respondent also put in evidence a taped record of interview of the appellant by a customs investigator: Exhibit 5.[11] The appellant said in the course of that interview that he had obtained a B709A import permit for that part because he believed that was the appropriate test: p 2. He said he was importing it for a semi-automatic pistol, which he owned: p 4. He said that last year he imported parts for an Introtech 9, a semi-automatic pistol, which were released to him after he produced the B709A form: p 5. At p 19 he was shown the breach bolt which became Exhibit 1 in the trial[12] and identified it as a pistol bolt for an SWD Cobray model 10 semi-automatic pistol. He explained on p 20 that the purpose of buying it was to convert the pistol which was of a .45 calibre to a 9mm calibre, but it appeared to him that the bolt may have actually been a .45 calibre bolt. (At this stage the appellant had not had possession of the breach bolt and therefore had not been in a position to determine its calibre.) At the end of the interview he reiterated that he brought in the part for a semi-automatic pistol which he legally owned, and that he was sorry if it had broken any law: p 36.

[28] Another customs officer was called and gave evidence that during 2001 there were other firearms parts imported by the appellant and that they were released to him on the basis of the firearms licence that he held and because he had a form B709A from Queensland police: p 51. One of the parts was a trigger assembly for the appellant's Cobray pistol model 10: p 54.

[29] Another customs officer in a more senior position, Mr Cafun, gave evidence that in 2002 he had dealings with the appellant, because of various parts which the appellant had imported and which had been released to him, in circumstances where it was subsequently determined that some of them fell within item 13. Accordingly the appellant was asked to return them. One of these was described as a dummy barrel for an Uzi, which appellant did return to the department. Once he returned it to Mr Cafun, Mr Cafun determined that it was not something that fell within item 13 after all, and returned it to the appellant: p 84.[13] In respect of the other items he was permitted to arrange for their export again.

[30] At p 89 Mr Cafun said that if the goods were subject to the police authorisation test, the original of a form B709A had to be submitted before the goods would be released to the person importing. At p 106 Mr Cafun said that the form B709A satisfies the police authorisation test in Part 2 of Schedule 6. He said that the determination of whether a particular thing resembled a machine gun or not was undertaken acting on the advice of the Australian Federal Police: p 99. In December 2001 a bolt and a barrel for a Cobray pistol were released by customs to the appellant on the basis of a form B709A: pp 102-3. Mr Cafun suggested that on reconsideration that also occurred in error: p 104.

[31] Whether something is a prohibited import depends on the operation of the Customs (Prohibited Imports) Regulations 1956. The relevant regulation is Regulation 4F. Sub-regulation (1) of this provides:

"Subject to sub-regulations (2), (2A) and (2B), the importation of a firearm, firearm accessory, firearm part, firearm magazine, ammunition, a component of ammunition or a replica is prohibited unless:

(a) the firearm, firearm accessory, firearm part, firearm magazine, ammunition, a component of ammunition or a replica is an article to which an item in Part 2 of Schedule 6 applies; and

(b) the importation is in accordance with the requirements set out in column 3 of the item."

[32] Sub-regulation (3) goes on to provide that the importation of, relevantly, a firearm part is subject to the conditions (if any) set out in Part 3 (other than item 1) of Schedule 6 that relate to the importation. No submissions were directed to any provision of this Part, and I assume there was no relevant condition.

[33] In Part 2 of Schedule 6, item 12 applies to "firearm, not being a firearm to which items 1, 2, 3, 6 or 9 applies." Item 13 is "firearm part of, or for, a firearm, not being a firearm to which items 1, 2, 3, 6 or 9 applies." In respect of item 13, the third column provides:

"The importation must comply with at least one of the following tests:

[34] There was no dispute in the present case that the breach bolt was a "firearm part" for the purposes of this regulation. The term "firearm part" is defined in sub-regulation (4) expressly to include a "breach bolt". It is worth noting that, as the definition itself notes, some items used in a firearm are not treated as "firearm parts" by themselves; for example, a screw, spring, or other minor component of a firearm would not in itself be a "firearm part". The respondent's case was that this firearm part fell within item 13 because it was a part for a firearm which fell within item 12, namely a MAC10 or a clone thereof, which was a copy of an Ingram submachine gun, and thus resembled an Ingram submachine gun. It was not disputed that a MAC10 was a firearm within item 12.

"Any of the following firearms (including complete, but disassembled or unassembled, firearms), unless the firearm:

(b) resembles in appearance a submachine gun, a machine pistol or a handgun that has a fully automatic firing capability.

[36] Item 10 is "firearm part ... of or for a firearm to which item 9 applies." In the case of item 10, column 3 provides:

"The importation must comply with at least one of the following tests:

The appellant's case was that the breach bolt was imported as a part for his Cobray semi-automatic handgun, which he was licensed to posses under Queensland law. His case was that the Cobray was a handgun within item 9, and that the firearm part, being a part of or for a firearm to which item 9 applied, therefore fell within item 10. At the relevant time he had satisfied (or could satisfy) the police authorisation test in respect of the part, by his provision of a form B709A issued by the Queensland Police Service in respect of it: Exhibit 8. Senior counsel for the respondent conceded that the police authorisation test had been satisfied: p 22.

[37] That argument appears to be consistent with the evidence of the respondent's expert, Mr Davies. It seems to me that at p 11 Mr Davies conceded that the Cobray pistol had the appearance of a handgun (he was looking at the photograph at the time), and at p 14 it appears that he conceded that a Cobray would appear to be "a pistol", that is to say a handgun.[14] This was subject to the qualification that the Cobray did not have a select lever, and therefore did not have a capacity for automatic fire. The significance of this qualification is not that it would cease to be a handgun if it had a select lever, but that it would cease to be a handgun within item 9 if it had a select lever. The effect of Mr Davies' evidence at p 14 therefore appeared to be that a Cobray without a select lever was within item 9; in any event, there was no clear evidence from Mr Davies, and it was not submitted on behalf of the respondent, that, treating the part as a part for such a Cobray handgun, it was still within item 13 because such a Cobray handgun was within item 12, not item 9. The respondent's case was, it seems to me, that whether the breach bolt would also fit a Cobray handgun was irrelevant; so long as it was proved that it would fit a firearm within item 12, it fell within item 13.

[38] It was not submitted on behalf of the appellant that, if the part fell within item 13, he satisfied either of the requirements specified in the third column. On the other hand, if the part fell within item 10, his case was that he had complied with the police authorisation test. There was evidence that he had a form B709A from the Queensland police in respect of this part (Exhibit 8), and it was accepted by the respondent's witnesses, and by counsel of the respondent on the appeal (p 22), that possession of this form satisfied the police authorisation test.

[39] The appellant's argument was that the Cobray pistol did not have a selector switch and did not have capacity for fully automatic firing, and that it was therefore not a handgun which had a fully automatic firing capacity, nor did it resemble one. The resemblance was excluded because of the absence of the selector switch, a factor which Mr Davies regarded as a matter of importance in determining resemblance in his evidence in relation to the other types of handguns: pp 12-13. There was evidence that the appellant held a Cobray pistol as a category H firearm under a licence which authorised him to be in possession of a category H firearm: Exhibit 6. Whether or not this was sufficient evidence that the appellant's Cobray was not capable of automatic fire and did not have a selector switch, the effect of Mr Davies' evidence was inferentially that there are Cobray handguns which do not have selector switches and which are not capable of automatic fire, and which would therefore fall within item 9.

[40] When the regulation speaks of a part for a firearm, in my opinion it is not applying a test which depends on the subjective purpose of the importer; it would not be reasonable to interpret the Regulation so that its operation could depend upon the subjective intention of the importer.[15] Whether a part is a part "for" a particular handgun depends on an objective test, whether it is in fact capable of functioning as a part for that firearm. The Regulation on the face of it does not make the question of whether a particular item is prohibited a matter which depends on the interpretation of either someone from the customs department or the Australian Federal Police; rather whether something falls within a particular item, and which item, is a matter of fact and therefore is something which has to be determined, in the case of a prosecution, by the tribunal of fact, though no doubt in practice the tribunal would be guided by appropriate evidence, particularly uncontradicted expert evidence. But ultimately it is a question of fact for the court to decide.[16]

[41] The effect of Mr Davies' evidence was that the breach bolt was capable of fitting the Cobray handgun. It was therefore a part "for" such a handgun. If there was such a Cobray handgun which did not have a selector switch, it fell within item 9. By inference, such firearms exist. It follows that the breach block fell within item 10. That was so whether or not the particular Cobray the appellant owns falls within item 9, because the test is objective, not subjective.

[42] The respondent submitted that, since the breach block had been shown to fall within item 13, the requirements of item 13 had to be satisfied, even if the breach block also fell within some other item which specified different or additional tests: p 21. However, senior counsel for the respondent was unable to point to any provision in the Regulations or the Schedule which required that outcome. It appears to me that Schedule 6, and in particular Part 2, has been drafted on the assumption that any particular thing can fall only within one particular item. It may well be that in the case of a firearm that will be true, because of the way in which the various items are framed. For example, I expect a MAC10 firearm would always fall within item 12. But it seems to me that there is no reason in principle why something which falls within the definition of a firearm part could not be capable of fitting more than one firearm, and therefore capable of fitting firearms which themselves fall within different items in the Schedule. Relevantly, a particular part may fit, and therefore be a part for, both a firearm which fell within item 9 and a firearm which fell within item 12. Although item 12 is defined so as to exclude any firearm which falls within item 9, item 13 is not defined so as to exclude any part which falls within item 10. Nor does item 10 exclude any part which falls within item 13. There is no reason to interpret the schedule so as to read into the item any such exclusion.

[43] The Regulation prohibits the importation of a firearm part unless it is an article to which an item in Part 2 of Schedule 6 applies and the importation is in accordance with the requirements set out in column 3 of the item. If a particular firearm part falls within more than one item, then in my opinion the sub-regulation operates so that, as long as the requirements set out in column 3 of one of the items are satisfied, the importation of the firearm part is not prohibited. That in my opinion is the natural and grammatical interpretation of the provision in the Regulation, and the terms of Part 2 of Schedule 2.

[44] It follows that in circumstances where the appellant had satisfied the police authorisation test, it was necessary for the respondent to prove not only that the part in question fell within item 13, but that it did not fall within item 10. The evidence for the respondent did not prove that; indeed, it seems to me that the respondent was not even trying to prove that. It had adopted a different interpretation of the operation of the Regulations, in my opinion an incorrect interpretation. It follows that on the evidence before the magistrate, the charge was not made out, and the appellant was entitled to be acquitted. Thus, it is not appropriate to send the matter back for a retrial. The appropriate course is simply to enter a verdict of acquittal.

[45] Having reached this conclusion, I can deal briefly with the other matters raised on behalf of the appellant. The first of these was that in any event the appellant had a defence by way of mistake of fact, in that he honestly and reasonably but mistakenly believed that what he was importing was a part for a firearm which met the description for item 10, so that his importation was legal. An offence under s 233(1)(b) is an offence of strict liability: subsection (1AB). Accordingly, there are no fault elements for any of the physical elements of the offence, and the defence of mistake of fact under s 9.2 of the Criminal Code (Cwth) is available: code s 6.1.[17]

"(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:

(a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and

(b) had those facts existed, the conduct would not have constituted an offence.

(2) A person may be regarded as having considered whether or not facts existed if:

(a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and

(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion."

[47] This provision is concerned with the existence of facts, and a reasonable belief in the existence of those facts. The respondent submitted that the relevant mistake was a mistake as to whether the particular object fell within item 13 of the Regulations, which was a mistake of law, not a mistake of fact, and that this was not a defence: Code ss 9.3 and 9.4.

[48] The distinction between a mistake of fat and a mistake of law is by no means a simple one.[18] In Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 Dixon J at p 541 said:

"The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe."[19]

[49] On the other hand, in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Mason J, with whom the other members of the court agreed, said at p 7:

"Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law."

[50] His Honour went on, however, later on the same page:

"However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens[20] was just such a case. The only question raised was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact."

[51] In Von Lieven v Stewart (1990) 21 NSWLR 52 Handley JA (with whom Mahoney JA agreed), said at pp 66-7:

"It is beyond argument that a reasonable but mistaken belief can only furnish an excuse where the mistake is one of fact. Otherwise the general principle applies that ignorance of the law is no excuse. Accordingly a belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse in cases such as this. Nor can inadvertence excuse either. The only excuse is the existence of an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent." (Authority omitted.)

[52] That passage was cited with approval by Gleeson CJ, with whom the other members of the court agreed, in Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 749, and by Pincus JA in R v Sheehan [2001] 1 Qd R 198 at 211. The latter case concerned a charge under the Civil Aviation Act of operating an aircraft in Australian territory for a prescribed commercial purpose otherwise than as authorised by an air operator's certificate. The appellant had in evidence claimed that he was authorised to fly by a certificate issued to someone else. By inference this suggested that if he were not authorised, he honestly and reasonably believed that he was authorised. Pincus JA held that the mistake if it existed was a mistake of law so that it could not afford a defence. The majority noted this view but concluded that, assuming there was a mistake of fact, the matter had been properly left to the jury and the jury's verdict may be taken as having excluded that defence.

[53] The issue was examined further, and was clarified, by the decision of the High Court is Ostrowski (supra). In that case a licensed commercial fisherman was prosecuted for fishing for rock lobster in a particular zone where the taking of rock lobster by commercial fishermen was prohibited. By way of defence he relied on his having made inquiries of the relevant government department and being provided with a copy of a document which purportedly gave information as to the situation, but which apparently was wrong. The High Court (overruling the Supreme Court of Western Australia) held that any relevant mistake was one of law and therefore did not give him any defence.

"The reference in s 24 [of the Western Australian Criminal Code] to 'the real state of things' is a reference to the state of things relating to the elements of the offence in question, not to the state of things as to whether the offence exists, or whether the conduct constituted by those elements is an offence. An example of the application of s 24 may have arisen if, as a result of navigational error, the respondent had been under and honest and reasonable, but mistaken, belief as to his location. In that event, it may have been that, if the real state of things had been as he believed, his conduct would not have contravened Regulation 34, and thus he would have had a defence under s 24. The only mistake that the respondent made was a mistake that resulted from his ignorance of the law."

[55] McHugh J at [50] contrasted the case with one[21] where a rock lobster fisherman was charged with selling undersized rock lobsters, and it was held that he could make out a defence under s 24 if he held an honest and reasonable belief that the lobsters were the correct size. The mistake was as to the actual size of the lobsters, a mistake of fact, not as to the minimum size of rock lobsters permitted by law, which would have been a mistake of law.

[56] There is therefore a distinction between a mistaken belief as to whether particular conduct is prohibited, and a mistaken belief as to whether one is engaging in conduct which is prohibited. It is not a question of whether the appellant believed or did not believe that he was committing an offence, it is a question of whether the appellant believed facts existed which, had they existed, would have meant that he was not committing an offence.

[57] The complicating feature in the application of that distinction in the present case is that, although the correct interpretation of the Schedule of the Regulations is undoubtedly a question of law, whether a particular part fell into one item or another item undoubtedly involves questions of fact, that is facts as to the relevant part. Because parts are classified by reference to the firearms of which they are parts, that in turn involves a further potential for relevant mistakes of fact. For example, if there were an honest and reasonable mistake as to the identity of the part that was being imported, that would give a good defence. In the same way, if there was an honest and reasonable mistake as to the identity, or the physical characteristics, of the firearm of which the thing being imported was a part, that would give rise to a good defence of mistake of fact, if (in this case) the mistake made the difference between a firearm which fell within item 9 and a firearm which fell within item 12. On the other hand, if there was no mistake as to the identity or characteristics of the firearm for which it was a part, but there was a mistake as to whether that firearm fell within one item or the other, that would be a mistake of law.

[58] In the present case there was no consideration of any of these issues by the magistrate. All he said on this subject was "no defence of mistake or any like issue is available to the defendant." If by that he was intending to say that mistake of fact was not available, that was, with respect, a clear error of law. If he was intending to say that there was no relevant mistake, his reasons were, with respect, inadequate. There was no findings as to the relevant primary facts, and nothing to demonstrate there was a proper understanding of the issues relevant to the characterisation of the relevant mistake. Because in my opinion on the evidence there was no offence, it is not helpful for me to attempt to embark upon a characterisation of the relevant mistake; on my analysis there was no mistake. I have dealt with this point principally so as to demonstrate that the reasons of the magistrate were in the circumstances seriously inadequate.

[59] The trial proceeded on 5 and 6 May, and 17 August, at the conclusion of which arrangements were made for each side to put in written submissions. Evidently that was done, though I cannot find the submission of either side on the file sent to this court for the appeal. The court reconvened on 16 December. On that occasion[22] the magistrate, after noting appearances, said:

"Now, this was in some respects, I suppose, an unusual prosecution but then every prosecution has its own unusual aspects but having considered the evidence and having considered the submission I've received, I find for the prosecution beyond a reasonable doubt. No defence of mistake or any like issues is available to the defendant. His defence is largely based on past actions by and advice received from customs officers. He may quite genuinely have believed he did all he had to do so as to import the parts. In so doing, however, in this particular case at least, that is all I have to worry about here today I am satisfied beyond a reasonable doubt that the defendant was in breach of relevant legislation. In those circumstances, I must convict him."

He then referred to submissions he had already received in relation to penalty.

[60] A failure to give proper reasons can amount to an error of law.[23] The question of what is sufficient to amount to proper reasons depends on the nature of the matter, and the extent of the controversy. When a matter turns on a single issue, it may even be possible to give adequate reasons simply by finding for one party or the other. But commonly that will not be the case, and in a matter such as this in my opinion it was important to identify what particular facts were relied on as founding the conclusions that the part fell within item 13, and that there was no relevant mistake of fact. That is necessary in order to enable the unsuccessful party to give proper consideration to an appeal, and for this court properly to decide any appeal.[24] That has not been done in the present case.

[61] It will be apparent from the reasons that I have given in relation to the last two matters that this was a matter of some complexity. No relevant findings of primary fact have been made, no analysis or even identification of the issues arising in respect of those matters (or for that matter any others) was set out, and overall in my opinion the reasons given were seriously inadequate. They certainly amount to an error of law. This was by no means the sort of simple case where reasons were unnecessary, or could be adequately implied from a finding that the offence was proved. This in itself was an error of law which would have justified a new trial, had I not concluded that on the evidence led the respondent had not proved the charge.

[62] As to the defence of "officially induced error", it is I think sufficient to say that there appears to be nothing in the Criminal Code which would provide any defence on that basis, at least in the case of an offence of strict liability. If the error is as to the application or operation of statute law or subordinate legislation, there will be no defence whether the defendant is acting on official advice[25] or indeed any other advice[26], or none. The mere fact that a defendant is acting on official advice will not mean that the mistake is a mistake of fact, although if a defendant makes a mistake of fact on the basis of official advice the defendant may well be able to establish that his belief about the relevant fact or facts was reasonable. Ostrowski (supra) expressly did not deal with officially induced error as a separate defence: [7], [91].

[63] It is unnecessary for me to say anything about the penalty, although it does seem surprising that a substantial fine was imposed in circumstances where the magistrate found, understandably on the evidence that I have seen, that the appellant "may quite genuinely have believed he did all he had to do so as to import the parts." As to this, I will comment on two submissions on behalf of the respondent. The respondent relied on the fact that previously the appellant had imported other parts for other firearms, which were initially released to him but subsequently recalled following reconsideration of their classification, and indeed surrendered by him. But these were for other firearms, and it appears that an earlier importation of a part for this same firearm as this part was intended for was successfully completed on the basis of the same sort of documentation as the appellant had on this occasion, and that had never been challenged, although one of the respondent's witnesses did say when the matter was raised in cross-examination that he now thought it was a mistake.

[64] Reference was also made to the form B709A stating on its face that it did not authorise the importation of the firearm part. But the uncontradicted evidence of a number of the respondent's witnesses was that if that form had been obtained then so far as the customs service was concerned, the police authorisation test would have been satisfied, and that appears to be consistent with the exposition of the police authorisation test in Part 1 to Schedule 6 of the Regulations. The position may simply be that, as far as the Queensland police service is concerned, it is not authorising the importation of the article, but their providing that form does have that effect. If there is no power to record a conviction when a fine is imposed, in circumstances where the appellant had no previous convictions, that is, it seems to me, another reason why a substantial fine should not have been imposed. However, I need say no more about that.

[66] I will hear further submission in relation the costs of the appeal, and the costs of the proceedings in the Magistrates Court.

[1] Justices Act 1886 s 139(1)(a). There are other specific extension provisions in the subsection, none of which is relevant for the present purposes.

[2] The position may have been different prior to the enactment of s 277A: see Tsorvas v Van Velsen (1983) 35 SASR 321

[3] There are immaterial exclusions from this general provision, and a different kind of proceeding is also covered.

[4] It was enacted in 1903. The significance of this was pointed out by Hayne J at [108].

[5] Ordinarily that would be of concern. But it has been recognised that these provisions are, as a result of various amendments, unclear and in a mess, and need comprehensive revision: See at pp 176, 184 and 189 per Kirby J; and see [2001] QCA 280 at [15] per McMurdo P.

[6] This was the submission of the respondent: see transcript of appeal p 8.

[7] As the High Court pointed out, there are no rules of practice established in any court in Australia for Crown suits in revenue matters, and there was no indication that the magistrate gave any relevant directions in this matter.

[9] These are permitted by s 255 of the Act, although it follows from subsection (2)(b) that these should be confined to matters of fact, and some of the averments in this complaint appear to me to be matters of law.

[10] P 11. It is not clear from that cross-examination whether this is a reference to the Ingram submachine gun mentioned by the witness on p 7, or the Ingram model 10A on which he was cross-examined at p 10, but I expect the latter is more likely.

[11] I have not listened to Exhibit 5 but I have read the transcript of it, which was with the exhibit.

[12] Identified by the Australian Federal Police Exhibit number A439025: p 6.

[13] This suggests that the regulations may be difficult to apply in practice.

[14] The term "a pistol" was that used by counsel for the appellant, not counsel who appeared on the appeal. The use of a term other than the term in the regulation was unhelpful, but it is apparent from Mr Davies' answer at p 11 line 21 that he took "pistol" and "handgun" to be the same thing.

[15] Otherwise the importation of the same item would be legal or illegal depending only on the importer's intention as to the use to which it was to be put.

[16] The standard of proof is beyond reasonable doubt: Labrador Liquor Wholesale (supra).

[17] Section 6.2 deals with an offence of "absolute liability" where the defence of mistake of fact under s 9.2 is unavailable.

[18] Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 at [37] per McHugh J.

[19] His Honour was there apparently referring to an evidential onus of raising the issue.

[21] Pearce v Stanton [1984] WAR 359.

[22] The transcript for this day is exhibited to the affidavit of Hanson sworn 10 October 2050 and filed by leave

[23] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Mifsud v Campbell (1991) 21 NSWLR 725; Crystal Dawn Pty Ltd v Rudruth Pty Ltd [1998] QCA 373 at [15]; Bawden v ACI Operations Pty Ltd [2003] QCA 293 at [29]; Martin v Rowling [2005] QCA 128 at [3] per McMurdo P, [80] per Mullins J

[24] Carlson v King (1947) 64 WN (NSW) 65 at 66; Beale v GIO of NSW (1999) 48 NSWLR 430 at 444; Martin v Rowling (supra)

[26] Such as legal advice; Olsen v Grain Sorghum Marketing Board, ex parte Olsen [1962] Qd R 580.

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Cases Cited (12)