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[2012] WASC 211
General information, not legal advice.
Supreme Court of WA
2012-06-13
Kechnie J
Original judgment source is linked above.
1 On 6 September 2010, police went to an address in Marangaroo to help remove Mr Smith from the house of a friend of his. He had only meant to stay for a short time on his way from Mandurah to Broome but ended up staying for about eight weeks. Mr Smith was loading his belongings into his car when police officers asked him if he had any firearms.
2 Mr Smith showed them the boot of the car and the police saw a Ruger and a Clover firearm and some ammunition. The firearms were seized. Inquiries showed that Mr Smith had a valid licence but the firearms were not in a safe, they were in the vehicle.
3 Mr Smith showed the police a firearms extract but it was not a permit to transfer the firearms. Mr Smith was charged under the Firearms Act 1973 (WA) s 23(9)(a) as follows:
Being the person in physical possession or having custody or control of a firearm and ammunition namely Ruger Bolt Repeater Rifle with serial number 828864, Gecado Air Rifle with serial number 682390, and seven SBMC 223 rounds, failed to take all reasonable precautions to ensure its safekeeping.
4 The prosecution notice does not in fact follow the wording of the section. Section 23(9):
A person who -
(a) whilst carrying, or in actual physical possession of, or having the custody of or control otherwise than by way of storage of, any firearm or ammunition, fails or omits to take all reasonable precautions to ensure its safekeeping;
...
commits an offence. (emphasis added)
5 It can be seen, therefore, that the prosecution notice omitted the words 'otherwise than by way of storage of'. Mr Smith was convicted after trial and fined $1,000 with an order for forfeiture of the firearms and ammunition.
6 From that conviction he appeals on three grounds:
7 Grounds 2 and 3 can be disposed of immediately. Under the Firearms Act s 22A the Commissioner may issue an Extract of Licence which relevantly identifies a person who:
(b) is the holder of a licence granted, permit issued or approval given under the Act;
8 The Commissioner may also issue a temporary permit for the purposes of transit: Firearms Act s 17(1)(c). There is no evidence that such permit was issued to Mr Smith. The extract of licence had nothing to do with this matter. Grounds 2 and 3 have no reasonable prospect of success and leave to appeal is refused.
9 As to ground 1, the magistrate's reasons for conviction were succinct. After reciting the charge, and the largely uncontentious evidence I have outlined, he said:
The prosecution case relies on that evidence that the location of the firearms and ammunition in the boot of Mr Smith's car are in those circumstances, constitutes a breach of section 23(9)(a) of the Firearms Act, and clearly it is a breach. The proposition and defence put up by Mr Smith is entirely untenable, and of course, I am very well aware of a decision of the Full Court, nonetheless of the Supreme Court of Western Australia, published on 3 June 2010, that deals with this very point of whether firearms are in transit or not and the thrust of that decision clearly establishes the guilt of Mr Smith in this particular case.
He had been staying with Ms Green for several weeks. He was not therefore in a state of movement and transit. The firearms, it seemed, to have been in the car for a period of time and I can glean from the evidence of Mr Smith, that they had been so stored there for at least for a number of weeks prior to his leaving his Mandurah residence when he assured me in his evidence that the firearms were appropriately stored in Mandurah. It's not relevant as to how they were stored in Mandurah but he assures me that they were at that time appropriately stored.
Clearly they were not appropriately stored in the boot of his car for some weeks in Marangaroo and I have no difficulty in finding the prosecution has proved the charge and established guilt beyond reasonable doubt.
10 Mr Smith argues that he was in transit on the particular day in question, 6 September 2010, because he was leaving Marangaroo. I do not accept that submission. It was abundantly open to the magistrate to conclude that the firearms were not in transit having regard to the length of time they had been stored in the boot while Mr Smith was living at the Marangaroo address.
11 When the police came upon him, the firearms were in the boot and, it appears, had been for some time. Whether the firearms were in transit is a question of fact depending on the circumstances: McGee v Chitty [2011] WASCA 125. No other conclusion than that of the magistrate is reasonably open. I would grant leave on ground 1 but dismiss the appeal.
12 As representing a model litigant, counsel for the respondent quite properly draws attention to what he submits is a miscarriage of justice and an erroneous basis of conviction.
13 Counsel points to an exchange between the prosecution and magistrate before the hearing.
14 The magistrate relied on McGee v Chitty which was a prosecution under a different section, whereas Mr Smith was charged under s 23(9)(a) of the Firearms Act. As I have already pointed out, the prosecution notice does not accurately reflect the section as the words 'otherwise than by way of storage' are omitted from the charge. As counsel submits, the evidence established the firearms were being stored in the boot of Mr Smith's car.
15 However, the section under which he was charged is a section that required proof that the firearms were 'otherwise than by way of storage'. The charge was not amended at trial, and indeed everybody seems to have proceeded on an erroneous basis.
16 Counsel submits that it is open to amend a charge on appeal by use of the power under s 14(1)(i) of the Criminal Appeals Act 2004 (WA) to make any other order the court thinks fit. I respectfully doubt that power includes the power to amend the prosecution notice after appeal. The Criminal Procedure Act 2004 (WA) s 132(1) provides:
The powers in this section may be exercised by a court in relation to a charge at any time before or during a trial.
17 I do not consider that there is a power in the Appeal Court to amend a charge after trial and conviction so that the appellant could in effect be convicted of a different charge which he has never faced.
18 However, I have not heard sustained argument on either side on that question so I do not decide this appeal on that ground alone because in discretion I would not permit an amendment in any event. Mr Smith represented himself at trial and on the appeal. While the evidence is uncontentious, there is an inherent unfairness in fundamentally altering the basis of the prosecution case to correct the manner in which the prosecution notice was framed and the way in which the prosecution was conducted. I find there has been a miscarriage of justice.
19 The appeal is allowed, the conviction set aside and a judgment of acquittal entered.