SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2014] ACTSC 317

CRIMINAL LAW - PARTICULAR OFFENCES - Miscellaneous offences and matters - whether replica or imitation firearms covered by offence of unauthorised possession of prohibited firearms.

FIRE, EXPLOSIVES AND FIREARMS - Firearms - whether replica or imitation firearms were prohibited firearms.

STATUTES - ACTS OF PARLIAMENT - Interpretation - Firearms Act prohibited unauthorised possession of prohibited firearms as defined - prohibited firearms relevantly defined as firearms specified in schedule - "firearms" relevantly defined as firearms that are or have been functional to discharge projectiles using explosive force - schedule included replica and imitation firearms - replica and imitation firearms not "firearms" and therefore not "prohibited firearms" despite reference in schedule.

Firearms Act 1996 (ACT), ss 5, 6, 7, 7(1)(a)(i), 7(1)(a)(ii), 7(1)(a)(iii), 8, 9, 10, 11, 12, 31, 42, 42(1)(a)(ii), 42(1)(a)(iii), 273, Schedule 1, item 18

Legislation Act, ss 6(2), 139, 155, 155(1)

Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202

R v Daniel Fromholtz [2011] ACTSC, Penfold J, 16 February 2011

Legal Aid ACT (Offender)

1. Paul Scheele was charged with offences arising under s 42 of the Firearms Act 1996 (ACT) and said to have been committed on 18 October 2013. The first charge was of possessing three prohibited firearms (s 42(1)(a)(ii)) without authorisation, and there was an alternative charge of possessing one prohibited firearm (s 42(1)(a)(iii)) without authorisation. Mr Scheele pleaded not guilty in the Magistrates Court, and the matter was committed to the Supreme Court for trial.

2. Before the trial, the matter came before me for rulings on the exclusion of parts of Mr Scheele's taped record of interview with police. This raised, among other things, questions of relevance.

3. The prosecution case statement indicated that the evidence was likely to be that at least two of the items concerned were imitation or replica firearms and were not capable of being operated as firearms. Counsel also advised that the position in relation to whether the third item was a replica or imitation was not so clear, in that after seizing the item and making a minor modification to it, police had managed to operate it to discharge a bullet.

The Firearms Act 1996

4. In the Firearms Act as in force on 18 October 2013, s 6 sets out a definition of "firearm", as follows:

1. Meaning of firearm
   • (1) In this Act:

(a) means a gun, or other weapon, that is, or at any time was capable of propelling a projectile by means of an explosive force, however caused; and

(i) a blank fire firearm; and

(ii) an airgun; and

(iii) a paintball marker; and

(iv) something declared to be a firearm under section 31; and

(v) a modified item.

(a) something prescribed by regulation not to be a firearm; or

(b) something declared not to be a firearm under section 31.

modified item means something that would be a firearm if -

(a) it did not have something missing from it, or a defect or obstruction; or

5. That is, the definition of "firearm" describes a functioning firearm, an item that has, or has had, the capacity to be used as a firearm, and includes an item that would be a functioning firearm except that there is something missing from it or there is a defect or obstruction in it.

6. Prohibited firearms are defined, for the purposes of the Act, as follows:

(iii) something declared to be a prohibited firearm under section 31; and

Note A prohibited firearm includes a prohibited pistol (see sch 1, items 19 to 21).

(2) However, prohibited firearm does not include something declared not to be a prohibited firearm under section 31.

(a) adding the name or description of a firearm; or

(b) amending a name or description of a firearm to more accurately describe the firearm; or

(c) omitting the name and description of a firearm.

modified firearm means a firearm that would be a prohibited firearm if -

(a) it did not have something missing from it, or a defect or obstruction; or

7. There is no claim that the items the subject of the current charges are prescribed in regulations, or declared under s 31. The prosecution relied on them being referred to in s 7(1)(a)(i), "a firearm described in schedule 1".

8. Schedule 1 at the relevant time contained 23 items, most of which described particular kinds of firearms. Item 18, however, referred to replicas or imitations of firearms, as follows:

An imitation or replica of any firearm (including an imitation or replica pistol, blank fire pistol, paintball marker, shortened firearm, machine gun or submachine gun) unless it is of a type approved by the registrar

Application of Firearms Act to replicas and imitations

9. Section 7 does not refer to "items" described in schedule 1. It refers to "firearms" described in schedule 1. Accordingly, I consider that the items described in schedule 1 only fall within the definition of "prohibited firearm" if they are also "firearms" as defined in s 6. That is, prohibited firearms are a subset of the firearms dealt with by the Firearms Act, not an independent set of items some but not all of which may happen to be firearms as well as prohibited firearms.

10. The prosecutor submitted that ss 6 and 7 could be read as creating independent definitions of the relevant items, such that the reference in s 7 to a firearm described in schedule 1 did not rely on the definition of firearm in s 6 but was instead simply a shorthand reference to everything described in schedule 1. Otherwise, the prosecutor said, item 18 in the schedule would be simply ineffective, and the legislation ought to be interpreted to give meaning to it.

11. This submission, while ingenious, has a number of weaknesses.

12. Section 6 is identified as giving meaning to the term firearm "in this Act". Under s 155(1) of the Legislation Act 2001 (ACT), the application of that definition in the Act is subject to a contrary intention.

13. Section 155 itself can be displaced expressly or by a manifest contrary intention (Legislation Act s 6(2)), but neither an express displacement of, nor a manifest contrary intention to, s 155 has been identified in this case.

14. Nor can I identify any contrary intention to the explicit terms of s 6 (ie that "firearm" in the Firearms Act has the meaning given by s 6); the argument that s 7 is intended to apply to the items listed in item 18 of schedule 1, being replica or imitation firearms, and that therefore "firearm" when used in s 7 must extend to such items even though they are not within the definition of "firearm" in s 6, simply begs the question.

15. As well, there are several more substantial reasons why s 7 should not be interpreted as using "firearm" to mean something different from that set out in s 6.

16. First, if "firearm" in s 7 does not have the defined meaning given in s 6, then there is no particular meaning given to it by the Act. The word as used in s 7(1)(a)(i) might be read as simply referring to the material set out in schedule 1. However, that same word as used in subparagraph 7(1)(a)(ii) appears to be intended to determine the scope of the regulation-making power given by that subparagraph; the general regulation making power set out in s 273 of the Firearms Act does not explicitly refer to the prescription of prohibited firearms, so it seems likely that the definition of "firearm" in s 6 is intended to provide the content of this regulation-making power. It is notable that s 7(1)(a)(iii) does not use the expression "firearm" at all, but refers to "something" (in a context in which the definition in s 6 would in fact be problematic if relied on).

17. Secondly, if "firearm" in s 7 does not rely on the definition in s 6, then the application to prohibited firearms of many of the other core provisions of the legislation would also be problematic. For instance, ss 8, 9, 10, 11 and 12 of the Act define "acquire", "dispose of" and "possess" in relation to firearms. If the basic definition of "firearm" did not apply in s 7, then the application of all those provisions in relation to prohibited firearms would depend on whether the prohibited firearm happened also to fit the description of firearm in s 6. There would be no provision defining acquisition, disposal, and possession in relation to prohibited firearms that did not fall within the s 6 definition (including replicas and imitations in particular).

18. Finally, s 5 of the Firearms Act as in force at the relevant time set out the principles and objects of the Act as follows:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety; and

(i) by imposing strict controls on the possession and use of firearms; and

(ii) by promoting the safe and responsible storage and use of firearms; and

(c) to facilitate a national approach to the control of firearms.

(a) to prohibit the possession and use of all automatic firearms, self-loading rifles and shotguns (including pump action shotguns), except in special circumstances;

(b) to establish an integrated licensing and registration scheme for all firearms;

(c) to require each person who possesses or uses a firearm under the authority of a licence to establish a genuine reason for possessing or using the firearm;

(d) to provide strict requirements that must be satisfied in relation to the licensing of firearms and the acquisition and sales of firearms;

(e) to ensure that firearms are stored and conveyed in a safe and secure manner;

(f) to provide for an amnesty period to enable the surrender of certain prohibited firearms.

19. The provision refers repeatedly to "firearms". It does not mention prohibited firearms. If prohibited firearms are not simply a subset of firearms as defined in the Firearms Act, then it seems that the principles and objects of that Act are not necessarily applicable to prohibited firearms, only to those that happen to be also firearms as defined in s 6.

20. Furthermore, not only does s 5 not mention replica or imitation firearms, but the principles and objects do not seem to have any particular significance for replica or imitation firearms (for instance, public safety is not directly enhanced by regulating replica and imitation firearms in the way it is enhanced by regulating functioning firearms). There are in fact very good reasons for controlling such items; see, for instance, my comments in R v Daniel Fromholtz [2011] ACTSC, Penfold J, 16 February 2011 (a matter involving a guilty plea to a possession offence in which the operation of the Act to replica firearms was criticised, but not challenged on grounds of the kind raised on behalf of Mr Scheele), as follows:

such items may be used to good effect in criminal activity against victims who have no way of being sure they are not real, and may also lead to potentially dangerous responses by police officers who are unsure of the nature of the items.

21. However, neither of those reasons appears to have been significant in the enactment of s 5 of the Firearms Act.

22. Thus, accepting the prosecutor's submission would involve accepting that the Firearms Act generally applies to firearms as defined in s 6 of that Act, but that the provisions relating expressly to prohibited firearms apply to a different class of items, which may but need not be firearms as defined in s 6, such that most of the other provisions of the Act would apply to some but not necessarily all prohibited firearms.

23. Noting among other things the uncertainty as to the operation of the Firearms Act as a whole that would be produced thereby, I do not consider that it would be appropriate to accept the construction of s 7 proposed by the prosecutor.

24. It seems likely that the legislative intention was to include the relevant replica and imitation firearms within the definition of prohibited firearms, but a presumed legislative intention to include those items is not sufficient to override the legislature's failure to do so, especially since that failure is, in my view, clear on the face of the legislation. This is not a question of legislative ambiguity, it is a question of the clear operation of the words of the Act.

25. In Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 at [62], McHugh J said:

A court should not disregard clear words and interpret a legislative provision so as to extend the scope of criminal liability even if it thinks that, by inadvertence, the legislature has failed to deal with a matter. That is so even if the court thinks that the legislature would probably have dealt with the matter if it had been drawn to the legislature's attention. Jordan CJ put the relevant principle succinctly in delivering the judgment of the Full Court of the New South Wales Supreme Court in Ex parte Fitzgerald; Re Gordon [(1945) [1945] NSWStRp 2; 45 SR (NSW) 182 at 186]:

"If conduct of a particular kind stands outside the language of a penal section, the fact that a Court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits."

26. Finally, as already mentioned, s 5 of the Firearms Act describes the principles and objects of the Act by reference to firearms without reference to replica or imitation firearms, and while some of those principles or objects could sensibly apply to replica or imitation firearms, none of them is clearly referable to replica or imitation firearms in particular. Among other things, this in my view means that it would be inappropriate in this case to invoke s 139 of the Legislation Act, in reliance on any assumed purpose of the Firearms Act in relation to the regulation of replica and imitation firearms, to justify reading s 7 as extending, beyond firearms mentioned in schedule 1, to replica or imitation firearms mentioned in that schedule.

27. For these reasons, I indicated to counsel that I would not put to the jury in Mr Scheele's trial that s 42 of the Firearms Act created an offence of unauthorised possession of prohibited firearms that could be committed by possession of replica or imitation firearms mentioned in item 18 of schedule 1 of that Act.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.