Beaton v Wray-Watts - [2003] WASCA 314

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BEATON -v- WRAY-WATTS [2003] WASCA 314

CORAM: PULLIN J

HEARD: 20 OCTOBER 2003

DELIVERED : 15 DECEMBER 2003

FILE NO/S: SJA 1025 of 2003
SJA 1026 of 2003
SJA 1027 of 2003
SJA 1028 of 2003
SJA 1029 of 2003

BETWEEN: WILLIAM FRANCIS BEATON
Appellant
AND
VICKY WRAY-WATTS
Respondent

Catchwords:

Criminal law and procedure - Whether reg 26(1) of Firearms Regulations 1974 ultra vires Firearms Act 1973 - Whether dealer's licence or repairer's licence authorises a person to possess a Category D firearm - Whether appellant had possession of firearm - Whether disabled firearm a firearm within meaning of the Act

Legislation:

Firearms Act 1973, s 6(3), s 19, s 23(5)

Firearms Regulations 1974, reg 26

Result:

Appeals dismissed

Category: B

Representation:

Counsel:

Appellant: Mr R K Williamson
Respondent: Mr C S Bydder

Solicitors:

Appellant: Williamson & Co
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Carlson v Karlovsky [1988] WAR 59
Devries v Australian National Railways Commission (1993) 177 CLR 472
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fox v Percy (2003) 197 ALR 201
Martin v Osborne (1936) 55 CLR 367
R v Bridges [1986] 2 Qd R 391
Williams v The Queen (1978) 140 CLR 591

Case(s) also cited:

Combined State Unions v State Services Co-ordinating Committee [1982] 1 NZLR 742
Grech v Bird (1936) 56 CLR 228
New South Wales v Law (1992) 29 ALD 215
Pledge v Davey [2000] WASCA 20
R v Olsen; Ex parte Vahlberg and Vahlberg (1975) 11 SASR 156

PULLIN J: On 9 October 2001, police from the firearms branch and officers of the Australian Customs Services visited the appellant's premises at Unit 3, 8 Sampson Road, Maddington.
The premises consist of a shop bearing the name "Beaton's Firearms". The shop has an entrance for the public, and within the shop is a public area divided off from the rest of the premises by a counter. Within the building is a sea container used as a safe. A safe was required because s 32 of the Firearms Act 1973 states that the holder of a dealer's licence or a repairer's licence shall keep all firearms and ammunition in a strong room, or otherwise in safe‑keeping securely fastened, during any period when the premises are not open for trade.
The appellant holds a dealer's licence under s 16(d) of the Firearms Act and a repairer's licence under s 16(e) of the Act. These licences allow the appellant to deal in firearms on the premises named and identified in the licence, to receive firearms for the purpose of being dismantled for parts, and to arrange for repair or servicing of firearms by the holder of a repairer's licence, and authorises the holder to have in his possession and to carry in the ordinary course of business for that dealer, any such firearm. Similarly, a repairer's licence authorises the holder to carry in the ordinary course of business of that repairer, firearms.
During the search, the police and customs officers found on the premises two silencers, two category D firearms, and on the floor of the container a rifle which had been cut down into a handgun and which was wrapped up in an opaque Myer's plastic shopper's bag.
Some other items were found which were identified by some means not disclosed, but they belonged to a Damien Mueller. The Court was told that he was charged and pleaded guilty to offences, details of which are not known to me.
At the premises on the day, the appellant was questioned by the officers attending. He did not exercise his right to remain silent. He made various statements to the police, and evidence about these statements was given at the trial. I will refer to this below.
The appellant was charged with five offences, namely:
(a)Without lawful excuse, had in his possession a firearm that had been altered from the design or characteristics of its original manufacture, contrary to s 23(5) of the Firearms Act 1973 (the subject of appeal number 1029 of 2003).
(b)Had in his possession a prohibited firearm namely, unknown make, self loading centre fire 7.62x5 calibre rifle serial number DP 830066, contrary to reg 26(1) Firearms Regulations 1973 and s 6(3) of the Firearms Act 1973 (the subject of appeal number 1026 of 2003).
(c)Had in his possession a prohibited firearm namely, a Swedish Ljungman 1945 self loading 6.5x55 calibre centre fire rifle serial number 640, contrary to reg 26(1) Firearms Regulations 1973 and s 6(3) of the Firearms Act 1973 (the subject of appeal number 1025 of 2003).
(d)Without being exempted by s 7(a) of the Firearms Act 1973, had in his possession a contrivance, commonly known as a silencer, contrary to s 23(7) of the Firearms Act 1973 (the subject of appeal number 1027 of 2003).
(e)Without being exempted by s 7(a) of the Firearms Act 1973, had in his possession a contrivance, commonly known as a silencer, contrary to s 23(7) of the Firearms Act 1973; (the subject of appeal number 1028 of 2003).
The appellant was convicted of all of these offences and then sought leave, and was granted leave, to appeal against all of the convictions.
At the commencement of the appeal, appeals SJA 1027 of 2003 and SJA 1028 of 2003 were abandoned. These appeals concern the convictions relating to possession of the silencers.
I propose to proceed by dealing with each appeal, and where a point is repeated in a subsequent appeal and the result follows from my reasoning on the earlier appeal, I will say so.

Appeal SJA 1025 of 2003 – Possession of Swedish Ljungman 1945 Self Loading Rifle

The grounds of this appeal raise only legal issues. The offence alleges that possession of the firearm was contrary to reg 26(1) of the Firearms Regulations 1974. The appellant argues that reg 26 is ultra vires the Firearms Act 1973. In the alternative, if that argument does not succeed, the appellant argues that the fact that the appellant held a dealer's licence and a repairer's licence, meant that no offence was committed.

The Ultra Vires Argument

The Firearms Act 1973 states in the preamble that it is:
"An Act to make provision for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with, or manufacturing firearms and ammunition … and for incidental and other purposes."
An overall reading of the Act shows that the scheme of the legislation is to prohibit the possession of all firearms unless a person holds a licence under the Act, holds a permit under the Act, or fits within one of the exceptions within the Act. The principal offence provisions in the Act are s 6, which I will refer to in a moment, and s 19, which makes it an offence inter alia to be in possession of a firearm if the person is not the holder of a licence or permit under the Act. Section 23 is a provision creating general offences.
Section 6 reads:
"(1)The Governor, on the recommendation of the Commissioner, may make regulations to prohibit the acquisition, sale, possession, or use of any firearm, silencer or other contrivance of a similar nature, or ammunition, whether licensed under this Act or not, either ¾
(a)absolutely; or
(b)except upon and subject to such conditions, restrictions, and limitations, for such purpose or purposes, and in such place or places, as the Governor considers desirable in the public interest,
having regard to the especial potentially dangerous nature of that kind of firearm, contrivance or ammunition and the need to exercise special precautions in relation thereto, or otherwise in the public interest.
…
(3)Where no penalty is specifically provided, a person who contravenes a regulation made under subsection (1) commits an indictable offence and is liable, on conviction, to imprisonment for 5 years.
Summary conviction penalty: Imprisonment for 18 months or a fine of $6 000."
Pursuant to this section, regulations were made, and in particular reg 26 was made, which reads:
"(1)Subject to subregulations (2) and (2a), the acquisition, sale, possession or use of a firearm or ammunition specified in the Table to this regulation is absolutely prohibited.
(2)This regulation does not apply to a member of the armed forces of the Crown in the performance of his duties, or to any other member of a disciplined force approved by the Commissioner, or to the acquisition or possession of such a firearm or ammunition by The Western Australian Museum for purposes authorised by the Museum Act 1969.
(2a)This regulation does not apply to a firearm of category D if the firearm is licensed under the Act and what is done is in accordance with the licence.
….
Table of prohibited firearms and ammunition
a firearm of category D"
To understand what a "category D" firearm is, it is necessary to turn to reg 6A(1), which provides that for the purposes of these regulations, a firearm is of the category indicated in sch 3. Regulation 6A(2) also provides that if sch 3 specifies a "general need test" for a particular category of firearms, an approval or permit cannot be granted and a licence cannot be issued to a person unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm of that category, and that a person cannot be considered to have a genuine need to possess a firearm of that category unless the test specified in sch 3 is satisfied. Schedule 3 categorises a "self loading centre fire rifle designed or adapted for military purposes …" to be a category D firearm, and specifies the "genuine need test" for category D in these terms:
"The applicant is required to satisfy the Commissioner [of Police] that the firearm is required for Commonwealth or State government purposes."
The Ljungman firearm, the subject of this charge, is a category D firearm, and the appellant held no licence relating to it. It is clear that while reg 26(1) states that possession of a category D firearm is absolutely prohibited, the other provisions of reg 26 contain exceptions to the absolute prohibition. The regulation does not apply, for example, to a person who is a member of the armed forces of the Crown in the performance of his duties, but more relevantly for the present appeal, reg 26(2a) provides that the regulation does not apply to a firearm of category D if the firearm is licensed under the Act and what is done is in accordance with the licence. The respondent therefore submitted that this was a prohibition subject to a condition, restriction or limitation.
The appellant's submission about reg 26 being ultra vires is put in the following terms. It was submitted that if reg 26 is valid, a person in possession of a category D firearm will commit an offence under s 6 in addition to the offence under s 19 which prohibits possession of weapons without a licence. It was submitted that Parliament could not have intended the creation of an offence under regulations made pursuant to s 6 where an element of that offence is the absence of a licence. It was submitted that Parliament has spoken in s 19 about the circumstances in which a person commits an offence of having possession of a firearm without a licence and the same offence cannot be created by regulation.
In my opinion, that submission cannot be upheld. There is nothing wrong with Parliament legislating to confer regulation‑making power on the Governor, which allows the Governor to make a law creating a second offence relating to one set of circumstances. The Sentencing Act, s 11, in fact, provides for what will happen when it comes to sentencing an offender who has committed two separate offences arising out of the same evidence.
The appellant also argued that, where reg 26(2a) provides that the regulation does not apply to a category D firearm if it is licensed under the Act, that this could not be regarded as the imposition of "conditions, restrictions, (or) limitations" within the meaning of s 6(1)(b). Once again, I am obliged to say that I do not agree with that submission. This is, in effect, the same argument which I have already rejected. There is nothing wrong with regulations being made to prohibit the possession of particular firearms unless the person in possession holds a licence (and thereby create an offence), even though this is already an offence under a more general provision (s 19).
True it is that s 19 already contains such a prohibition, but the penalty under s 6 is much greater than under s 19, and so there is good reason for assuming that Parliament has decided that it should give the Governor the power to make regulations prohibiting the possession of some particularly dangerous weapons and that an infringement of the regulations would involve the commission of an indictable offence. The maximum penalty under s 19 is 18 months' imprisonment. Section 6 provides maximum imprisonment of 5 years and makes the offence an indictable offence.
In my opinion, the appellant's argument that reg 26 is ultra vires s 6 must fail.

If reg 26 is not Ultra Vires, the Appellant's Dealer's Licence and Repairer's Licence Affords a Defence

The appellant argues that because he holds a dealer's licence and a repairer's licence, he is entitled to be in possession of firearms. Thus, the appellant says he fits within reg 26(2a). The appellant recognised that he did not fit within the literal meaning of reg 26(2a), because the prohibition in reg 26(1) does not apply to a firearm of category D only if the "firearm is licensed under the Act". The appellant submitted that the firearm was "licensed under the Act" because the appellant held a dealer's licence and a repairer's licence. He submitted that those quoted words should be read as meaning that the regulation would not apply to "a person in possession with a licence entitling him to possession of a firearm".
In my opinion, that is not the correct interpretation of reg 26(2a). It is true that reg 26(2a) uses infelicitous language. "Firearms" are not licensed under the Act. Persons are licensed. However, it can be seen from s 16 of the Act that some licences a person may hold relate only to a specific firearm. Thus, s 16(1)(a) provides that a Firearm Licence may be issued under the Act "which entitles the holder to possess, carry, and lawfully use the firearm named and identified in that licence …". Section 16(1)(b) states that a licence may be issued under the Act in the form of a Firearm Collector's Licence "which entitles the holder to possess, but not to carry or use, the firearm named and identified in that licence".
Thus, the expression in reg 26(2a) "firearm … licensed under the Act" can be seen as a reference to firearms the subject of a licence issued to a person under the Act.
As I have indicated, a person may be licensed to possess a category D firearm but only if the applicant satisfies the Commissioner of Police that the firearm is required for Commonwealth or State government purposes. The appellant does not hold such a licence.
In my opinion, the appellant's argument that the fact that he held a dealer's licence and a repairer's licence under s 16 of the Act, affords him no defence to a charge under reg 26 and s 6 of the Act.
As a result, appeal SJA 1026 of 2003 must be dismissed.

Appeal SJA 1026 of 2003

One of the grounds of appeal in this appeal is the same as the ground I have just dealt with (ie that reg 26 is invalid because it is ultra vires s 6 of the Act, and in the alternative if reg 26 is valid, the appellant held a dealer's licence and a repairer's licence and this provided him with a defence under reg 26). For the reasons given in relation to appeal number 1025 of 2003, this ground is dismissed.
The only other ground of appeal was that this particular firearm, which was described in the proceedings as an L1A1, was not "a firearm" as defined within the Act. Before I refer to the definition, I should briefly summarise the evidence which produces this issue.
The firearm was one which the appellant admitted was once a military weapon. It was manufactured as a military rifle by the Australian Government Small Arms factory at Lithgow. After this type of firearm had been in use for some time in military service, including use by Australian servicemen in Vietnam, a decision was made to withdraw the firearm from military service, and it was then modified so that it would not fire ammunition and so that it could then be used for drill purposes by cadets or trainees. Much of the evidence given was technical. The appellant's expert identified the modifications which had been made when he said:
"… the flash suppressor is welded, the chamber is welded, the breach block is missing, slide welder to prevent positioning of breech block, gas piston missing, gas piston spring missing, barrel drilled through near chamber, shoulder locking missing."
Mr Wray, the appellant's expert, referred to other modifications which had been made. Mr Wray was asked whether it was possible to "reverse that weapon", by which it seems that Mr Wray understood the question to be whether the firearm could be recommissioned. The passage of evidence on this point reads:
"So it is possible to reverse that weapon, isn't it?---As far as this one goes, apart from the receiver, like I said before, you have a functional section here with a trigger unit. The upper receiver, because of the shoulder locking has been drilled out – that's pretty much useless ‑ ‑
Well it's pretty much useless but it's not entirely. It's not welded, as it's described here, is it?---No, it isn't, but the receiver is useless because of the shoulder locking.
But you said that that could be done?---With a lot of work, yes, anything could be done."
Mr Pavlovich was an expert called for the appellant. The following questions were put by the learned Magistrate and answered by Mr Pavlovich.
"Yes. And as it is, that is not an operating firearm?---As it is; no.
No. Well, how easy is it to reverse the things that you've pointed out to make it operational?---Well, if one had a supply of spare parts from other guns, it would be much ‑ ‑
Oh, I see. You can just replace ‑ ‑?--- ‑ ‑ much easier - - - - the part?---It would simply be a drop‑in process ‑ ‑
Okay?--- - - to a very great extent."
At the end of his cross‑examination, Mr Pavlovich said:
"All I can say is that - - I can only give my examination based on what I know now, and the specifications that are available to me now, and the ease of which this can be converted into a working firearm is the basis on which I actually reached the conclusion that 'Yes', it is still a firearm."
With that evidence in mind, I turn to the definition of "firearm" which is contained in s 4 of the Act. It reads:
"'Firearm' includes any lethal firearm and any other weapon of any description from which any shot, bullet, or other missile can be discharged or propelled or which, by any alteration in the construction or fabric thereof, can be made capable of discharging or propelling any shot, bullet or other missile, but does not include anything that is prescribed in regulations under the Weapons Act 1999 to be a prohibited weapon or a controlled weapon;"
This provision has been the subject of a decision of the Full Court in Carlson v Karlovsky [1988] WAR 59. In that case, it was held that a firearm in a dissembled condition and not capable of discharging a shot, is still a firearm. In the main, that does not help decide this case, although I note that, according to Mr Pavlovich, some of the alterations to make the firearm fireable would be to "drop in" some parts. That was the situation in Carlson's case. This case turns on the meaning of the phrase "by any alteration in the construction or fabric thereof". The counsel for the appellant submitted at the trial that the work which had to be done on this disabled firearm was more than an alteration. It was submitted that it amounted to manufacture. Counsel attempted to illustrate this by saying that a pipe could not be regarded as a firearm just because a skilled worker could turn the pipe into a firearm by the work to create all the mechanisms necessary to allow it to fire a bullet. In my opinion, that is not a useful example because, quite clearly, turning a pipe into a firearm would involve the manufacture of a firearm; it would not involve an alteration in the construction or fabric of the pipe. The word "alteration" means the act of altering, and the word "alter" means to make different in some particular, or to modify. Therefore, it becomes clear that it is a matter of fact and degree, and a matter of judgment about whether or not on the particular facts, there has been alteration in the construction or fabric of the object which will make it capable of discharging or propelling a bullet, or whether the changes which have to be made are not mere alteration but, in effect, the manufacture of a firearm. In looking at facts in this case, it is important to bear in mind that this weapon began life as a firearm and alterations were made to it to make it unable to fire. It is not very difficult to accept in those circumstances that changes to make it able to fire bullets again amount to "alteration".

The learned Magistrate heard submissions from counsel for the appellant, which were repeated before me, namely that as a matter of law the definition of "firearm" requires the degree of difficulty in recommissioning the weapon to be considered, and if not considered, an error of law has occurred.
The learned Magistrate said in her reasons:
"The section does not refer to the degree of difficulty required in making that conversion but whether any alteration can be made to make it capable of firing."
Counsel submits that reveals an error in reasoning. In my opinion, it does not. The learned Magistrate is quite correct to say, as is obvious, that the definition does not refer to the degree of difficulty required in making the conversion, and is quite correct to say, as is obvious from a reading of the definition, that the question is whether an alteration can be made in the construction or fabric of the weapon to make it capable of discharging a bullet.
This is not to say that the degree of difficulty will not, on the facts, be relevant to the judgment about whether the changes which have to be made amount to alteration or manufacture.
The learned Magistrate carefully considered the evidence of both experts and noted that both had reached the conclusion that work could be done with required expertise and time to make it possible for the L1A1 to be fired. In my opinion, that reveals no error in reasoning. This was a military firearm. It had been altered in a way which made it impossible to fire and, in effect, these alterations could be undone to make it capable of discharging a bullet. In my opinion, the learned Magistrate made no error, either of law or fact.
That disposes of the grounds in relation to this appeal, and so appeal SJA 1026 of 2003 must be dismissed.

SJA 1029 of 2003

This appeal is about the rifle which had been cut down into a handgun and which was found wrapped up in an opaque plastic bag within the safe during the search of the premises. To prove possession, it was necessary for the prosecution to prove that the appellant had control of the firearm with the knowledge that it was under his control. See Williams v The Queen (1978) 140 CLR 591 at 610‑612. Knowledge is proved by proving the appellant's state of mind, and unless a person admits that they have knowledge of something, then it must be proved by inference from other proven facts. In other words, the fact of knowledge must be proved by circumstantial evidence. That means there is then a superadded requirement, and that is the requirement that the inference of knowledge arising from the evidentiary circumstances must be the only rational inference which can be drawn: Martin v Osborne (1936) 55 CLR 367 at 375; R v Bridges [1986] 2 Qd R 391 at 393.
The learned Magistrate correctly directed herself in relation to the law as I have set it out above.
When the officers found this firearm, it was in the container, on the floor near other articles which the appellant said belonged to Damian Mueller. When the appellant was shown the firearm by the police, he was asked who it belonged to, and he said that he did not know. His defence, as revealed at the trial via his evidence, was this: he had met Damian Mueller in 1998; he met him again in 1999, and then Mr Mueller came to his shop and then did so frequently; at some stage, the appellant began allowing him into the shop behind the counter; Mr Mueller had come in on one occasion and said that he had had an argument with his mother and had been asked to leave home, and he asked the appellant whether he could bring some items to leave at the appellant's premises; the appellant agreed; Mr Mueller had brought some items in to the shop; the appellant did not check them (but some were in gun bags which, although he did not open them, must have suggested by their shape that they contained firearms); Mr Mueller brought some other items at the same time; other people at other times also went behind the counter; the appellant "presumed" that the firearm in question was Mr Muellers.
It might be observed that this is somewhat surprising behaviour for a person who holds a dealer's licence. Nevertheless, that was the evidence. It was then a matter for the learned Magistrate to reach a conclusion about whether or not the appellant did have knowledge that the firearm was on the premises. She concluded that he did have such knowledge.
The law is that the trier of fact may refuse to accept the correctness of evidence, even if it is not challenged by cross‑examination: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 588. In this case, there was cross‑examination which tested the appellant's denial of knowledge.
The High Court has recently cautioned against over reliance on demeanour of a witness in deciding whether to believe the witness' evidence: Fox v Percy (2003) 197 ALR 201 at [30]. Nevertheless, sometimes it is necessary for the trier of fact to decide whether or not evidence given is to be believed based on demeanour. In this case, the learned Magistrate concluded that she did not accept the appellant's denial of knowledge. She found that he did have knowledge of the existence of the firearm. As was said in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, if a finding depends to any substantial degree on the credibility of a witness, the finding must stand unless it can be shown that the Magistrate has failed to use, or has palpably misused, his or her advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable. In my opinion, there has been nothing demonstrated which shows that the Magistrate did misuse her advantage. Her finding was not inconsistent with any other facts. Once the learned Magistrate rejected the appellant's account of how the firearm came to be in his safe, which, in effect, she did, then the only rational inference which could be drawn was that the appellant, a dealer obliged to keep control of what was in his safe by locking it when the shop was not open, knew that the firearm was in the safe.
In my opinion, this appeal must be dismissed.