R v Smith [2023] NSWDC 254 | Case summary

GENERAL DIRECTIONS

In compliance with s 133 Criminal Procedure Act 1986 (NSW) and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.
As the accused has pleaded not guilty and elected to trial by judge alone, it becomes my duty and my responsibility to consider whether the accused is guilty or not guilty of each of the charges and to return a verdict in accordance with the evidence. It is for me to assess the various witnesses and decide whether they are reliable. However, I can point out that there was very little dispute in respect of the witnesses, certainly so far as credibility was concerned.
I have had the benefit of submissions both from the Crown and also Mr Korn, counsel for the accused. I have considered those submissions and given them such weight as I think they deserve. I note that in no sense are those submissions evidence in this case.
I note that as the tribunal of fact, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and also my common sense. I acknowledge that I have important matters to decide in this case, important not only to the accused, but also to the whole community. I am asked as a judge of the facts to act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. As sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact in accordance with the evidence that has been presented during the course of the trial.
I now turn to give myself a direction in relation to the onus of proof. The onus rests on the Crown in respect of the elements of each of the charges. As it is a criminal trial, the onus remains on the prosecution, from the beginning of the case until the end of the case. It is not for the accused to prove his innocence, but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.
It is and has always been a critical part of our system of justice that persons tried in this court are presumed to be innocent unless and until they are proved beyond reasonable doubt to be guilty. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If at the end of my deliberations, having taken into account the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and also having taken into consideration the submissions made on behalf of the Crown and the accused, if after that I am not satisfied that the Crown has established any one of the essential matters beyond reasonable doubt, then it will be my duty, as I have said, to bring in a verdict or verdicts of not guilty because the Crown would have failed to do what the law requires it to do.
The next direction to which I must have regard revolves around the accused having given evidence in the trial. The fact that he chose to give evidence in this case does not mean that he assumes any onus; it changes nothing at all. He, of course, as I have already indicated, does not have to prove anything and the onus remains on the prosecution. But having chosen to give evidence, that evidence does not fall into any special category either. I have to go about assessing his evidence in the same way as I assess the evidence of all the witnesses in the case.
The next direction which I will give myself is in respect of witnesses who fall into the category of expert witnesses. In this case, expert evidence has been called and tendered. An expert witness is one who has specialised knowledge based on their training, study, or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.
The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training, and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness's specialised knowledge.
Expert evidence is generally admitted to provide the tribunal of fact with information and an opinion on a particular topic which is within the witness's expertise, but which is likely to be outside the experience and knowledge of the average lay person. It will be apparent when I go to the evidence that the expert witnesses here - and I am firstly referring to Mr Cole and Mr Waszczuk, police witnesses - that they have examined all of the articles the subject of the various charges and Dr Siddhpura, whose report was tendered by the defence, has commented in respect of his analysis of those items and he has proffered an opinion as to whether those items should be caught by the firearms legislation.

THE EVIDENCE IN THE TRIAL

I will now turn to the evidence in the trial.
Following opening addresses, the Crown called the following witnesses: 1. Mr Andrew Cole, Crime Scene Officer and Forensic Firearm Examiner, 2. Joel Robert Waszczuk, Crime Scene Officer and Firearm Examiner, and 3. Detective Inspector John Bamford.
The following exhibits were tendered in the Crown case: 1. Exhibit A, a 36-page document entitled, "Exhibit and Offence Summary", 2. Exhibit B, two statements of Joel Waszczuk dated 17 February 2021 and 23 November 2021, 3. Exhibit C, two statements of Andrew Cole dated 27 July 2022 and 19 August 2022, 4. Exhibit D was a video demonstrating the mechanical workings of a gel blaster, 5. Exhibit E was the search warrant video, 6. Exhibit F were two documents from the New South Wales Police Firearms Registry site, 7. Exhibit G, two certificates under ss 48 and 87 Firearms Act, and 8. Exhibit H were two sales tax invoices for gel blasters dated 29 November 2019 and 18 September 2019.
In the defence case, the following witnesses were called: 1. Bradley James Towner, and 2. The accused, Adam James Smith.
The following exhibits were tendered in the defence case: 1. A toy pistol, 2. A red plastic gun with two cannisters of gas propellant, 3. The report of Dr Milind Siddhpura, a mechanical engineer and that report was dated 30 January 2023, and 4. Page 6 of the report of Thomas Tully (dated 30 January 2023).
The evidence was that on 9 December 2020, police applied for and were granted a search warrant for the accused's premises, to search for prohibited weapons and prohibited firearms. On the afternoon of that day, police attended the accused's home at 132 Hartley Valley Road, Vale of Clwydd, where he resided with his partner. During the subsequent search, police located and took possession of all objects now the subject of the counts on the Indictment. During the search, police asked the accused if he knew it was illegal to possess gel blasters in New South Wales; he replied, "No."
At the outset and to assist my understanding of some of the issues, the defence produced a folder containing reports from three persons being Dr Milind Siddhpura, Mr Thomas Tully and Mr Brad Towner. I read that material and it was marked MFI 1.
The first two witnesses called by the prosecution were Andrew Cole and Joel Robert Waszczuk, both crime scene officers and forensic firearm examiners. Their qualifications are set out in detail in their statements and I was satisfied that each had specialised knowledge based on their training, experience and study of forensic ballistics. I was satisfied their expertise extended to being able to examine the various items subject to the counts on the Indictment and give evidence as to the mechanisms and workings of each item.
Andrew Cole, as I have indicated, was the first witness called and his two statements were dated respectively 22 July 2022 and 19 August 2022. Those statements became Exhibit C. Mr Cole gave evidence in accordance with those statements. His evidence was in respect of his examination of the gel blasters the subject of Counts 11 to 15, 17, 20 to 22, 24 to 28, 30 and 33. In respect of Count 11, he described the objects as a gas-powered grenade launcher and gas-powered grenade. He said the grenade was charged with gas and loaded with hydrated gel pellets. This was discharged in the grenade launcher. When combined, the grenade launcher and grenade are capable of propelling projectiles by means of gas. He also said that the grenade was also capable of propelling projectiles by means of gas without the launcher. He was of the opinion it fitted the description of an airgun and also fell within the definition of a pistol, as it did not exceed the prescribed dimension of 65 centimetres in length.
In respect of Counts 12 to 15, each gel blaster had a similar working mechanism. Specifically, in respect of Count 13, he described the working mechanism as follows: 1. Hydrated gel balls are loaded into the shell holders, which are in turn placed into the cylinder. 2. When the hammer is cocked, a pistol and spring is compressed and held under spring tension via a sear. 3. When the trigger is pulled, the sear disengages and the piston is propelled upwards via the compressed spring. 4. The piston compresses the air in the compression cylinder which is forced out through the air nozzle. 5. The compressed air compels the hydrated gel pellet through the barrel.
In respect of Counts 12 to 15, each fitted the description of an air gun as well as the definition of a pistol. That was the opinion of Mr Cole.
In respect of his examination of the gel blasters the subject of Counts 17 and 20 to 22, he found that all had similar working mechanisms which he described as follows: 1. When the trigger is pulled an electrical circuit is completed. This energizes the electric motor. 2. The electric motor turns a series of gears, and a sector gear engages a rack on the underside of the piston. This causes rearward movement of the pistol, which is under spring tension. 3. After the sector gear disengages from the rack, the piston is propelled forwards by the compressed spring. 4. The piston compresses the air in the cylinder, which is forced out through the air nozzle. A hydrated gel pellet can be positioned in front of the air nozzle by the hopper. 5. The compressed air propels the hydrated gel pellet through the barrel.
The gel blaster is capable of propelling projectiles in rapid succession during one pressure of the trigger. His evidence was that these gel blasters propel projectiles by means of air and a spring operated by a trigger mechanism. Accordingly, he was of the view that the gel blasters were airguns as defined, that they were pistols and, as a result of their capability of propelling projectiles in rapid succession, each fell within the definition of a prohibited firearm as per Sch 1 of the Act.
In respect of Counts 24 to 28, Mr Cole described each as battery‑powered, automatic gel ball airguns. Each had a similar working mechanism. He was of the opinion that each fell within the description of an airgun and, as each was capable of propelling a projectile in rapid succession, each was a prohibited firearm.
Mr Cole stated that the gel ball airgun in Count 30 was also a battery‑powered select fire gel ball airgun. This airgun was fitted with a folding stock and was also a prohibited firearm as defined in Sch 1.
Concerning Mr Cole's examination of the item the subject of Count 33, he said it was a gel ball airgun, not in working order due to it missing the internal working mechanisms, barrel and battery. However, he said it looked like a real firearm and, as the housing substantially duplicated a firearm, a licence or permit was required. His evidence was that it was an imitation firearm, as described in s 4D(3) Firearms Act.
The second witness called by the prosecution was John Robert Waszczuk, crime scene officer and forensic forearms examiner. His two statements dated 17 February 2021 and 23 November 2021 respectively became Exhibit B. He examined the items in respect of Counts 6 and 8 and the gel blasters the subject of Counts 18, 19, 31 and 32.
Mr Waszczuk gave evidence that he identified the Count 6 item as a conducted energy weapon. His statement indicated that it was a hand‑held device designed to administer an electric shock on contact with a target. He said it takes specifically-manufactured, taser‑style cartridges that contain a pair of probes with trailing wires attached. When a cartridge is fitted to the device it can be discharged by activating the trigger of the weapon. He was of the view that the taser and cartridges were prohibited weapons as described in Sch 1 of the Weapons Prohibition Act.
Mr Cole also gave evidence of actually conducting the testing of those items. This was at transcript p 25 line 40. He said, "I fitted one of the cartridges to the taser and discharged it. Two probes were propelled from the cartridge and an electrical spark could be heard." He said, based on his previous examinations and knowledge of these types of items, he concluded the noise indicated it was electricity being discharged from the two prongs.
At transcript p 94 line 17, Mr Cole was cross-examined in respect of the noise that he heard. He conceded that he did not further test the item. He conceded that it was possible that it was a "noise" that was designed to replicate the sound of an electrical current. However, I am more than satisfied on the evidence that the taser and cartridges the subject of Count 6 constituted a prohibited weapon. I also make comment that Mr Tully, after his analysis of the item, was of the same view. I saw his opinion about this item when I was invited to read his report, MFI 1.
Both Mr Cole and Mr Waszczuk gave evidence in respect of the body armour in Count 8. Mr Waszczuk stated that the vest was of nylon material with a metal plate inserted within the front panel. In his statement of para 5C in the report dated 23 November 2021, he said, "It is designed to be worn on the chest and protect the user from suffering a fatal injury as a result of a gunshot." Mr Cole fired two .22 long rifle calibre bullets into the vest, followed by 2 x 9mm Parabellum‑calibre bullets. They were fired at a range of five to ten metres. The metal plate was not penetrated.
In respect of this Count 8, the defence tendered p 6 of the report of Mr Thomas Tully that was formerly part of MFI 1 and now is Exhibit 4. Mr Tully's occupation was as a ballistics engineer, a weapons engineer and weapons armourer. I was satisfied as to his expertise to undertake analysis of these items. He referred to "hard body armour" as being where there is a plate insert designed to increase the ballistic resistance of "soft body armour." His opinion was stated this way: "The vest having no ballistic protection would not fit the definition of body armour, but the plate may. The metal plate found inside the Velcro pouch of the vest does have ballistic protection. The metal plate was square and unformed to any body shape, unlike traditional armour inserts. Flat cut metal armour plate can be purchased for BISALLOY or Armax without any restriction. All armour sold to defence or law enforcement must have an NIJ, HOSOB or STANAG verification tag to be considered armour resistant and verified by a third-party laboratory. This plate did not have any certification markings."
I note that it is no part of the prosecution case that the vest with the plate insert the subject of Count 8 was an object meant for defence or law enforcement. The fact that the vest and plate were not manufactured by a professional ballistic armour manufacturer is, in my view, irrelevant. I have earlier referred to Clause 4 of Sch 1 of the Weapons Prohibition Act. It provides for body armour vests (or other similar article) as those being designed for anti‑ballistic purposes or similar purposes.
In my view, the testing undertaken by Mr Cole firing the .22 long rifle calibre bullets and the two 9mm Parabellum calibre bullets into the vest and plate, resulting in no penetration, is a clear indication that the vest and plate were designed with ballistic protection in mind.
In respect of what I have referred to as the "gel blaster" counts, I will now deal with the report of Dr Milind Siddhpura.
No issue was taken in respect of his expertise. He is an engineering academic with the Engineering Institute of Technology, Australia. Dr Siddhpura stated that in respect of airguns, gel blasters and the like, there are two main types of basic operating mechanisms commonly used in these guns. He set out each of those mechanisms: 1. he said most of these guns used the basic mechanism of "a spring‑pistol air cylinder," where usually the cocking of the gun can be done manually or electrically, which would have some gears and compressor spring attached to an air cylinder. When the trigger is activated, the spring decompresses and the compressed air in the cylinder launches the projectile from the gun barrel, and 2. another type of operating mechanism uses pre-charged air or gas. The compressed air or gas is introduced into the barrel via a regulator, which essentially eliminates the need of any mechanical (spring gear) or electrical (battery) components.
He then stated: "I reviewed the videos sent to me in which the officers have shown that the gel blaster guns have the above-mentioned mechanisms and air compressed inside the cylinder is responsible for launching the projectiles..."
Accordingly, there is no dispute between Dr Siddhpura and the Crown experts concerning the gel blaster mechanisms where "air compressed inside the cylinder is responsible for launching the projectiles." However, Dr Siddhpura was of the belief that the gel blasters have been "misclassified." He stated, "[T]hese do not have the capacity of an airgun and therefore cannot be grouped under the Firearms Act."
Under the heading of "Key Findings Following a Comparison of Guns Using a Range of Relevant Parameters," he said this at 1.5: "Having performed the necessary analysis as an expert, I conclude that the gel blaster should be identified as a toy rather than classified as an air gun which has the capacity to be lethal. It follows, therefore, that the gel blaster should not be regulated under the Firearms Act."
With respect to Dr Siddhpura, there is nothing in the legislation that requires for an object/gun to fall within the definition of a "airgun" that it should have the capacity to be lethal.
The accused gave evidence that he did not dispute his possession of the various items and acknowledged that he did not have a licence or permit for their possession. He said that he had purchased the items at various times and thought that they were toys. He confirmed that the police asked him if he knew it was illegal to possess the items and he responded in the negative. He said that in the course of his employment with Corrective Services he "never saw anybody charged with gel blasters."
He made reference to seeing an Instagram video from Tactical Edge Hobbies highlighting what was then an upcoming trial of Mr Brad Towner involving gel blasters. He said, "and then subsequently I followed that trial and it was deemed not guilty. One would assume that all gel blasters are not prohibited."
One of the matters the Crown must prove beyond reasonable doubt was that the accused was knowingly in possession of the objects, and he knew the nature of the objects. I agree with the Crown submission that "mistake of fact" simply does not arise in this case.
At the conclusion of the evidence, counsel for the Crown and counsel for the accused addressed the court. I have had the opportunity of reviewing the submissions advanced as those addresses have been transcribed and appear at pp 132 to 155 of the trial transcript.
Mr Korn, counsel for the accused, conceded that in respect of the gel blasters, each is capable of being caught by the definition in s 4 of the Firearms Act. However, he submitted that if the court was to so find, that would not be determinative of the issue.
On pp 143 and 144, Mr Korn advanced an argument on the construction of the relevant provisions of the Firearms Act. He referred to the definition section when it says, inter alia, "an airgun means a gun." He said that the Act does not define the term "gun." Accordingly, he referred to the Oxford Dictionary definition of a "gun" to mean a "weapon."
I confess to having some difficulty following the argument as it progressed on pp 143 and 144. However, I believe it crystallised on p 145. At the top of that page Mr Korn submitted as follows: "...we say it's appropriate for your Honour, as your primary function, to construe and apply the legislation in accordance with what we say is the intent of Parliament, and the intent of Parliament, everyone agrees, is set out in s 3. It is the safety of the community, and once you wrap your head around those things together, you arrive at the proposition that weapons in the nature of a gun, that are intended to be caught by the provisions of the Firearms Act, include the specific provision about an air gun, must be properly regarded as a weapon capable of being dangerous to and/or if not including being capable of being lethal to members of the public."
I then posed the question in these terms, that it cannot be said that anywhere in the Act is a requirement for an object to fall within the definition that it has to have lethal capacity. Mr Korn responded, "Your Honour, the word 'weapon' does. The Firearms Act itself talks about a gun or other weapon." However, at p 145 of the transcript at line 30, Mr Korn clarified his position this way: "I'm not making a submission that a gun - it only qualifies as a gun or a weapon if it is in fact lethal or capable of being lethal. I don't have to go that far. I'm entitled to rely upon s 3 which talks about 'possession of a firearm is a privilege that is to be construed in terms of the prime consideration which is the safety of the public."
He then said, "safety in terms of being injured, to whatever level, but clearly seriously injured by a weapon."
By way of conclusion, he said at p 146 line 8 of the transcript: "Going right back to the definition, an airgun means a gun and a gun means a weapon, gel blasters are not weapons."
I agree with counsel that s 33 Interpretation Act 1987 (NSW) provides an interpretation of legislative provision that would promote its underlying purpose or object is to be preferred to one that would undermine it.
Section 3(1) Firearms Act provides as follows: 1. The underlying principles of this Act are - 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety - 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms, and 1. To facilitate a national approach to the control of firearms.
Upon a consideration of the evidence of the three experts, being Mr Cole, Mr Waszczuk and Dr Siddhpura, there is simply no doubt that gel blasters fall clearly within the definition of an airgun. However, Mr Korn has, in effect, argued that Parliament could not have intended that gel blasters be caught by this legislation.
There was an accurate observation made by the Crown that since the Firearms Act was enacted back in 1996 it has been subject to many amendments. For example, in 2018 the Paintball Act caused an amendment to the s 4 definition of a firearm in the Firearms Act. A paintball gun is exempt from the firearms legislation, but only as provided for in the Paintball Act. Under that Act, it is permissible for a paintball gun to discharge only paintballs, and there are numerous and specific controls as to their use. However, if something other than a paintball was used, it would not fall within the definition of a paintball marker and it would still remain as an airgun under the Firearms Act.
This is a significant matter, that is, as recently as 2018 the Parliament has specifically given consideration to airguns. Additionally, the firearms regulations allow for items to be classified as not firearms. I agree with the Crown submission that the definition of an airgun is undoubtedly a wide one; wide enough to cover items that may well be seen by many as children's toys. I also agree with the Crown submissions that it is irrelevant that there may well be items that are more obviously children's toys that could come under the airgun definitions and could be charged.
Accordingly, I regard the introduction of the Exhibits 1 and 2 by the defence as being irrelevant to my determination of the real issues here, involving the specific items the subject of the counts on the Indictment.
Ultimately, I am satisfied that the gel blasters are airguns as defined in s 4 and that Parliament intended this type of gun to be subject to the firearms legislation.
When reading Dr Siddhpura's report, I did note that on the 7th page (in the top paragraph) he made reference to a recent research study on the type and level of injury caused by gel blasters. The study was not attached to his report, but he said that it had concluded that injury was possible "a minor recoverable ocular (eye) injury and accordingly safety goggles are recommended." Of course, the level of injury to one's eye would be affected by the distance of the gel blaster from the eye of the individual struck.
Controlling the use of gel blasters in the hands of children would be difficult indeed. Accordingly, public safety does become an issue. In respect of each count involving gel blasters, I am satisfied that each item is caught by the firearms legislation and, further, that it was intended to be caught by that legislation.
The only matter left to consider now is in respect of Count 33 and this has been referred to as, "the imitation firearm count." The object in question could not fall into the category of an airgun as the various internal working mechanisms were missing. Accordingly, the Crown relies on s 4D(3) which provides as follows: 1. 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 that is not a firearm. 2. However, an imitation firearm does not include any such object that is produced and identified as a children's toy.
Mr Cole gave evidence that the design of the item in Count 33 was based upon an actual firearm, a Fabrique Nationale SCAR. On transcript pp 59 to 61, Mr Cole detailed the various features which indicated that it was a replica of an actual firearm.
Mr Towner was called by the defence. He is based in Queensland where he is a retailer of "gel blasters and toys and some sporting equipment." His evidence was that all of these items, being the gel blasters, are produced as a children's toy. At transcript p 106 line 36 in evidence-in-chief he was asked this question: Q. These items are meant to duplicate or replicate or be very similar in appearance to real items, do you agree with that?"
He said: "A. I do agree with that, yes."
I did indicate to counsel that I was troubled by the fact that the charge of possession of an imitation firearm was possible absent a consideration of circumstances in which the possession was undertaken. I clearly had in mind the possession of an imitation firearm in a course of other criminal offending. I was provided with two decisions, being the Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981 and Darestani v R [2019] NSWCCA 248.
In the matter of Howard Silvers & Sons, police took possession from a display cabinet in a toy shop a number of items being suspected firearms. The case ultimately turned on whether the question of whether the objects seized were in fact "imitation firearms" as defined by s 4D(3) Firearms Act or children's toys as defined by s 4D(4) of the Act. With reference to s 4D, Wilson J said at para 44, "The purpose of the provision is plain: to prevent the unauthorised possession of imitation firearms in the same way as the possession of firearms is restricted, as a means of ensuring public safety. Only those objects produced and identified as a children's toy are exempt."
At para 50, Wilson J said: "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."
At para 53, Wilson J determined that: "In focusing on the productions of the items as children's toys, and failing to separately consider their identification by reference to qualities intrinsic to them the magistrate misconstrued s 4D(4), that being an error of law."
In Darestani v R, the court was dealing with the appellant's possession of two plastic pistols, after it was alleged that one was used in the commission of a criminal offence. The evidence was that the two plastic pistols were located in the appellant's travel bag.
The Court of Criminal Appeal referred to the trial evidence that: "[t]he exhibits...whilst not imitating any particular brand of self‑loading pistol, each displayed similar external features in the form of size and appearance, that are common to this class of firearm." (That being a Norinco Model 1911A1).
In that case it was accepted that the contextual meaning of "produced" was to "bring into existence" or to "manufacture." However, at para 61 the court noted that if an object was being used at the time of the possession, then the use of the object and the intention of the person using it can be taken into consideration on the question of whether an object has been identified as a toy. But at para 67 the court held that, "[t]he 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." As in Darestani, the Crown in the present matter is obliged to exclude as a reasonable possibility that the item in Count 33 was produced and identified as a children's toy.
In Darestani, the Court of Criminal Appeal ultimately concluded that the Crown did not exclude as a reasonable possibility that each plastic pistol found in his possession was produced and identified as a children's toy. The reason for the court so finding appeared to result from an examination of the intrinsic qualities of the plastic pistols in question. At para 87 the court said, "Mr Waszczuk expressed the opinion that the plastic pistols displayed visual similarities to a Norinco model 1911A1 self-loading pistol but agreed that there was a large difference in weight between exhibit D and the Norinco, that the width of the Norinco was larger than the exhibit and the trigger guards were different. He further agreed that the exhibit did not replicate any particular brand of pistol."
At para 88 of that judgment, it followed this way: "A particular feature of exhibit D was the orange cap on the muzzle. Although stating that was an 'American thing' … Mr Waszczuk opined that the orange cap was on the muzzle to indicate that it was not a real gun, it was not dangerous and possibly a toy."
In respect of the Count 33 item, the intrinsic qualities of the weapon, as I have earlier indicated, are set out in the transcript pp 59 to 61. It was Mr Cole who gave evidence in respect of the comparison to the weapon the subject of Count 33 and to what he said would be the real Fabrique Nationale SCAR.
He referred to the butt stocks being moveable so as to adjust the firing position. He agreed that there were some hinges where the butt stock meets the body of the rifle. He agreed that that was for folding the butt stock away when it is going to be used in a vehicle or something like that. He acknowledged that those particular characteristics are found on the real SCAR rifle.
He referred to the top of the exhibit, running the full length of the body, there was a rail with what looks like little teeth. He acknowledges that they were known as Picatinny rails. He said they are used for mounting different devices such as telescopic sights or torches or night vision devices. He acknowledged that there was, at the front of the exhibit, a black Picatinny rail and that that would normally be used for mounting things like torches or lasers.
He acknowledged that there were two black plates above the trigger and he acknowledged that the real SCAR weapon was said to be ambidextrous, so that one of those would be the ejection port. That was also observed on the item the subject of Count 33 in this case.
He referred to there being, on both sides of the item in Count 33, a little black plate and he was asked if that was the blast deflector and he said yes. He was referred to forward of that blast deflector, there being a little black knob, and he agreed that that would be where the charging handle would be on the real SCAR. He was referred to underneath the item the subject of Count 33 where there could be seen another Picatinny rail. He acknowledged that would also be the same as the real firearm.
He referred to something as being a "gas port". That was apparent on the real SCAR and the item in Count 33. He referred to there being a flip-up front iron sight. He said that would also be present on the real SCAR. He was referred to a pistol grip and what is referred to as the selector lever. He agreed that the selector lever is in respect of this being "an ambidextrous weapon." He explained that this could be used on either side. This was a feature apparent on a real SCAR as well as the item in Count 33. He referred to the magazine release which he said was the same as that on a real SCAR. He also referred to the detachable magazine which he would also find on the real SCAR.
Upon my consideration of those intrinsic qualities set out on those pages of the transcript, I am ultimately satisfied that the item did not identify as a children's toy, and that the item substantially duplicated in appearance a firearm but was not in fact a firearm.
I have found the interpretation of this part of the firearms legislation a particularly difficult exercise. I am concerned that the past, present or future use of the item is not a matter essential to the consideration of whether the weapon was produced and identified as a children's toy. However, that is not the test imposed by the legislation. I believe that that was made clear in respect of the decision in Howard Silver & Sons, which was a case which had nothing to do with the use of the weapon or object.
I believe the reason for my concern is probably an obvious one, that is, does the present provision create the possibility for the charging of such an offence when, for example, police come across such items in a child's bedroom when investigating some other alleged criminal offending. However, my concern about the legislation is not relevant to my determination of the charges on the Indictment.
Of course, in respect of my concerns, as I have attempted to articulate, there would remain a prosecutorial discretion; sadly, something which would appear to be seldom exercised these days.

R v Smith

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Judgment (7 paragraphs)

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