Abela v State of New South Wales

[2000] NSWCA 140

Reported Decision: 49 NSWLR 171

New South Wales

Court of Appeal

CITATION:	Abela v State of New South Wales [2000] NSWCA 140
FILE NUMBER(S):	CA 40977/98
HEARING DATE(S):	31/05/00
JUDGMENT DATE:	6 June 2000
PARTIES :	Joan Frances Abela (First Appellant) Horsley Park Gun Shop Pty Ltd ACN 003 914 850 (Second Appellant) The State of New South Wales (Respondent)
JUDGMENT OF:	Mason P at 1; Meagher JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	30035/98
LOWER COURT JUDICIAL OFFICER :	McInerney J

COUNSEL:	D.F. Jackson QC / J.S. Van Aalst (Appellant) A.S. Bell / N. Beaumont (Respondent)
SOLICITORS:	Lacey Speiser & Co (Appellant) Crown Solicitor's Office (Respondent)
CATCHWORDS:	Statutory Interpretation - whether an offence under the Firearms Regulation 1990 is a 'prescribed offence' for the purposes of cl 5(a) of the Firearms (General) Regulation 1990 - whether a conviction for failure to secure firearms related to the 'possession or use' of a firearm - D
LEGISLATION CITED:	Firearms Act 1990 Firearms (General) Regulation 1990
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40977/98
SC 30035/98

MASON P
MEAGHER JA
FITZGERALD JA

TUESDAY 6 JUNE, 2000

ABELA v STATE OF NEW SOUTH WALES

JUDGMENT

1   MASON P: I agree with Fitzgerald JA. 2   MEAGHER JA: I agree with Fitzgerald JA. 3   FITZGERALD JA: On 1 October 1997, a pistol and firearms dealer licence and a shooter licence, which had been issued to the first appellant under the Firearms Act 1989 and Firearms Regulation 1990, were revoked under s 12 and s 13 of the Firearms Act 1996 and her application for a firearms dealers licence was refused under s 11 of that Act. The appellants’ claim to declaratory and injunctive relief in respect of those decisions was refused by a judge in the Administrative Law Division on 23 November 1998. The appellants have appealed against that decision. 4 It is common ground that the decisions of which the appellants complained were based solely on the first appellant’s conviction on 21 March 1996 of two offences against reg 37 of the Firearms Regulation 1990. Contrary to that regulation, the first appellant was a dealer who displayed two rifles at her premises which were neither under the immediate supervision and control of her or her employees nor secured in such a manner as would reasonably prevent their removal otherwise than by her or those employees. 5 The question for decision is whether those offences are prescribed offences for the purpose of reg 5(a) of the Firearms (General) Regulation 1997. It is common ground that, if the offences of which the first appellant was convicted are “prescribed offences” for the purpose of that Regulation, the appeal must fail and that, if the offences are not “prescribed offences” for the purpose of that Regulation, the appeal must succeed. 6 It is also common ground that the offences of which the first appellant was convicted are “prescribed offences” for the purpose of cl 5(a) of the Firearms (General) Regulation 1997 only if they are offences “relating to the possession or use of a firearm” within the meaning of that Regulation. 7 It is not submitted that the offences of which the first appellant was convicted related to the “use” of a firearm. See the definitions of “use” in s 3(3) of the Firearms Act 1989 and 4(1) of the Firearms Act 1996. The question for decision is whether they are offences “relating to the possession … of a firearm” for the purpose of reg 5(a) of the Firearms (General) Regulation 1997. Subsection 4(1) of the Firearms Act 1996 defines “possession” to include:

“any case in which a person knowingly:
a. has custody of the firearm, or
b. has the firearm in the custody of another person, or
c. has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.” Subsection 3(1) of the Firearms Act 1989 contained a similar definition.

8 The crux of the appellants’ submission was that “possession” in reg 5(a) of the Firearms (General) Regulation 1997 refers only to unlawful possession. It was submitted that lawful possession could not constitute an offence, and asserted that the first appellant’s possession of the rifles was lawful because of the licenses which she held. 9 It is unnecessary to consider whether or not the first appellant’s possession of the rifles was lawful at the time when she committed the offences. Were it necessary to do so, it might be important to consider the conditions to which the licences which she held were subject. 10 The circumstance that reg 5(a) encompasses the offence of unlawful possession of a firearm does not necessarily mean that it is confined to that offence. Indeed, one might expect Reg 5(a) to refer specifically to offences of unlawful use or unlawful possession if that was intended. There is no reason why the manner or circumstances of possession of a firearm of which a person knowingly has lawful possession should not be made the subject of an offence. The offences of which the first appellant was convicted were of that character. 11 It remains necessary to decide whether such offences are offences “relating to the possession ..” of a firearm. The written submissions for the appellants contain the statement that the “…whole purpose of possession of a firearm dealers’ licence under the 1989 Act and the 1990 Regulations was to allow lawful possession…”. The error in that submission provides some insight into the difficulties which confront the appellants. The legislative scheme, including the licensing provisions, were intended not merely to permit, but also to control, lawful possession of firearms to ensure that they were safely secured. 12 Likewise, it does not assist the appellants to say that, when Regulation 37 of the Firearms Regulation 1990 is read in the context of lawful possession by reason of a licence, “it created an offence related to security of firearms … and not related to possession.” The dichotomy asserted is false. The “security” referred to is “security” of “possession”. That is an obvious subject for legislative concern. In its argument, the respondent drew attention to the legislative statement of the principles and objects in s 3 of the Firearms Act 1996 which emphasise that intent. 13 Another submission made by the appellants was that, in Reg 5(a) of the Firearms (General) Regulation 1997, “relating to” is broadly equivalent to “concerned with” and that “possession” (or “use”) must be an element of an offence “concerned with” possessions. However, the two propositions again do not mesh. An offence which is “concerned with” the safekeeping of firearms in the course of their lawful possession is “concerned with” the possession of the “firearms”. 14 The appellants’ final submission was that the legislation and regulations deal separately with the possession and safekeeping of firearms. Accepting that to be so without pausing to consider the detail, it does not follow that an offence relating to the safekeeping of firearms in a licensed person’s lawful possession is not an offence relating to the possession of the firearms. 15 In the course of argument, reference was made to the width of the phrase “relating to”. It is unnecessary to give “relating to” a wide meaning in the present matter. The offences of which the appellant was convicted were directly concerned with the unlawful manner in which her otherwise lawful possession of the firearms was exercised. As such, the offences related to her possession of the firearms. 16 The appeal should be dismissed with costs.