Alfred Gunther Reimann v SA Police No. SCGRG 96/2328 Judgment No. 6115 Number of Pages 4 Criminal Law Firearms Offences

[1997] SASC 6115

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE, CJ

Criminal law - firearms offences - appeal against sentence and conviction - failure to keep firearms secured as required by Firearms Act - consideration of whether Firearms Regulations within power - appeal against conviction allowed - appellant not heard properly on matters of penalty.

ADELAIDE, 7 April 1997 (hearing and decision)

#DATE 7:4:1997

#ADD 28:4:1997

Counsel for appellant: Mr T Rymill

Solicitors for appellant: Thomas Rymill and Co.

Counsel for respondent: Ms A Andrews

Solicitors for respondent: DPP (SA)

Order: appeal allowed.

DOYLE CJ

1. This is an appeal against conviction and sentence. The convictions were recorded by the Magistrates Court at Millicent on 15 May 1996.

2. The appellant did not appeal until 10 December 1996. The appellant was present at the hearing in the Magistrates Court but was unrepresented. There is no very clear reason for the overall delay in appealing, but the delay does appear to be related to the appellant's inability to afford legal representation, a failure to realise for some time that convictions had been recorded and delays caused by the making of an application for legal aid. With some hesitation I'm prepared to extend the time for the institution of the appeal to 10 December 1996. I do so on the basis that the appellant did not understand the rights of appeal he had, on the ground that the appellant did not understand for some time that convictions had been recorded, and on the further ground that much of the delay was due to the attempts to obtain legal aid.

3. The appellant pleaded guilty to three counts, a fourth count was then withdrawn.

4. The first count charged that being in possession of class A, B, D and E firearms he failed to keep them secured as required by regulation 29(1) of the Firearms Regulations. The items, the subject of this charge, comprised, as best can I ascertain, six rifles and a shotgun.

5. Count 2 charged that being in possession of class C firearms the appellant failed to keep them secured as required by regulation 29(2). This count related to three pistols and two revolvers.

6. Count 4 charged that the appellant failed to store ammunition separately from firearms contrary to regulation 32. This count related to a large quantity of ammunition found at the appellant's home.

7. The circumstances of the offences were as follows. Acting upon information police went to the appellant's home. There they found the firearms and ammunition. Some were in a room which appeared to be a gun and ammunition storage room, others were located in a bedroom. The appellant was absent from the property and seems to have been absent for some hours. His wife was at home. The firearms were apparently not properly secured. The ammunition was found loose in the same rooms.

8. The appellant was later interviewed at length by the police. His answers to the questions are at times confusing but overall can be understood. All that appears to be relevant in his answers, as best I can tell, is that he thought the weapons were secure because he had two German Shepherd guard dogs and because they were inside his house. There were various excuses for not locking the firearms away or otherwise securing them in the terms of the regulations, but none of them seem to me to have been of any great substance. The same comment applies to the ammunition. The house itself would not have been difficult to break into, apart from the presence of the guard dogs, and if someone did so the firearms and ammunition would have been readily accessible because they were simply left lying around in the house. Granted the appellant did have two guard dogs, but the regulations clearly do not contemplate security being provided by such means.

9. The appellant pleaded guilty to three counts. On each count he was convicted without penalty. An order was made, presumably under s.34A of the Firearms Act for the forfeiture of the firearms and ammunition.

10. Although an application was made that the appellant be declared not a fit and proper person to have possession of a firearm or ammunition, the magistrate declined to make any such order. The magistrate accepted that the firearms were kept by the appellant because firearms were his hobby. The appellant was 66 years of age, or thereabouts, he had no previous convictions.

11. In support of the appeal against conviction the appellant advances three main points. First, that the hearing date was brought forward one day and that the appellant was denied the chance of using an interpreter. It appears that on 13 March 1996 the matter was fixed to proceed on 16 May. It, in fact, proceeded on 15 May, having been brought forward a day only a day or so earlier.

12. I mention in this context that the tape recorded interview with the police indicates that while the appellant did ramble somewhat he was able to understand what was put to him and to explain his position reasonably well. I also record in relation to this point that in his affidavit Mr Reimann says he was refused legal aid on the basis that he was not at risk of imprisonment and that on that basis he told his then solicitor that he did not require his services. However, quite apart from that, there was the difficulty which Mr Reimann was facing in raising the required fees.

13. The next ground upon which the conviction is attacked is that he was persuaded by discussion with the prosecutor and with the police officer at the court or the police station to plead guilty. That is what Mr Reimann says in his affidavit, although this is dealt with very briefly and with no real detail. The police prosecutor filed an affidavit in which she denies what the appellant says and says that he told her he wanted to plead guilty to get the matter over with. Neither party sought to cross-examine on the affidavits.

14. I have considered carefully the material on this point, and I have to say that what the police prosecutor says, to me, has the ring of truth in light of the circumstances leading up to the hearing and in light of material in her affidavit. I do not accept that the plea of guilty was induced or influenced by any advice or persuasion from the prosecutor or any other police officer.

15. The third point was that there were good grounds for contesting guilt. This is a matter which can be relevant in relation to a plea of guilty by an unrepresented person who complains that he or she did not fully understand what he or she was doing. The arguments on this point seem to me to lack any real substance.

16. It was suggested that the firearms were still in use and therefore need not be secured. That I consider, under the circumstances, to be a tenuous argument. The appellant had, as I have already mentioned, been absent from his home for some hours. It was suggested that in some respects some of the firearms were, in fact, secured as required by the regulations. Again to the extent that that argument went to detail it did not strike me as at all compelling. It was argued that under the Act, as it then stood, there was no power to seize the ammunition in question. That argument, which the respondent does not now contest, appears to be sound but doesn't appear to lead anywhere as the ammunition was returned to the appellant not long after it was seized. More to the point however, s.34A of the Act, as it then stood, did not provide for forfeiture of ammunition upon conviction of an offence. That part of the order must, at least, be set aside.

17. In relation to the conviction it was again argued that the regulations went beyond power. In my opinion that argument has no substance at all. I consider that s.39(2)(ad) of the Act clearly authorises the relevant regulations.

18. In relation to the plea of guilty then, the case comes down to this. The appellant was unrepresented, not being able to afford a solicitor. He might have been disadvantaged by the absence of an interpreter, but I'm not satisfied that he was significantly disadvantaged. He identifies some possible grounds for contesting his guilt but they do not cause me to have any real doubt about the soundness of the plea.

19. I have already dealt with the allegation relating to the question of advice from the prosecutor. I'm simply not satisfied that the appellant did not understand what he was doing, nor am I satisfied that he did not know that he was acknowledging his guilt.

20. The court does, of course, have power to set aside a conviction based upon a plea of guilty, but only when there is a real reason to apprehend a miscarriage of justice. I am not so satisfied in this case.

21. I turn then to the question of penalty. Here I do have concerns. The court did not enquire, as far as I can tell, whether the appellant was disadvantaged in relation to penalty by the change of date and by the absence of the interpreter. There is no indication that matters relevant to the decision to record a conviction were put forward by the appellant, and, in contrast with the question of guilt, I consider that there were matters of substance to be brought to the magistrate's attention. I have already touched on a number of them and I will mention some of them again. Briefly, they include the appellant's age, his good record, the fact that he had kept firearms for a hobby and not for any possibly improper purpose, his reasons for leaving the firearms as they were and so on.

22. Although I have said that the arguments against guilt were tenuous it is another thing to say that these were not matters relevant to penalty. There is also the question of whether forfeiture by sale, the proceeds being paid to the appellant, was an appropriate way to proceed in this case. There is no indication whether the magistrate considered that, and I think I can safely assume that the appellant, in his position, did not bring that to the magistrate's attention.

23. Although I am not satisfied that the appellant failed to understand what he was doing in pleading guilty and made anything other than his own decision to do so, I do have concerns about whether he was properly heard on the question of penalty. I think the magistrate probably should have done more to ensure that relevant matters were brought out before him. Accordingly, I propose to quash the penalty imposed including the decision to record a conviction. This will enable the matter to be remitted for reconsideration of the penalty upon the plea of guilty, which plea of guilty I do not propose to set aside. That will leave it open to the Magistrates Court to reconsider all aspects of the penalty, including the question of whether a conviction should be recorded, but it will not lead to a trial on the question of guilt.

24. For the guidance of the Magistrates Court at the further hearing I make the following points. If an order is made for forfeiture of firearms, the firearms to be forfeited should be identified as far as possible. Certainly one would think by reference to make and calibre and, if possible, by reference to serial numbers. In the present case it appears, as I have said, that the ammunition was not open to forfeiture, although in theory that question can be reargued before the Magistrates Court at the further hearing. If there is no real contest on that issue then the ammunition should be returned without delay. Again, if in other cases a forfeiture order is made, and such orders can now be made under the Act, once again some particularity, at least brand, number of rounds, and so on should be attempted. In relation to the ammunition, the order made by the magistrate was sufficiently lacking in certainty, in my opinion, for it to be extremely difficult to enforce and almost certainly void.

25. Accordingly, I make the following orders: 1. Extend the time for the filing of the notice of appeal to 10 December 1996.

2. Appeal against conviction allowed.

3. Remit the matter for further hearing before the Magistrates Court upon the appellant's plea of guilty which plea of guilty is not set aside by this order.

4. I order the respondent pay the appellant's costs of the appeal fixed at $150.