Bird v Comptroller General of Customs - [2019] WASC 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BIRD -v- COMPTROLLER GENERAL OF CUSTOMS [2019] WASC 240
CORAM:   CURTHOYS J
HEARD:   30 MAY 2019
DELIVERED          :   5 JULY 2019
FILE NO/S:   SJA 1003 of 2019
BETWEEN:   RODNEY DAVID BIRD
Appellant
AND
COMPTROLLER GENERAL OF CUSTOMS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S D SCADDAN
File Number            :   PE 49374/2017
PE 49375/2017

Catchwords:

Prohibited import - Firearm accessory - Device - Sound suppressor - Incomplete - Unfinished - Duplicity

Legislation:

Criminal Appeals Act 2004
Customs (Prohibited Imports) Regulations 1956
Customs Act 1901 (Cth)

Result:

Leave to appeal dismissed

Representation:

Counsel:

Appellant	:	R K Williamson
Respondent	:	S Oliver

Solicitors:

Appellant	:	R K Williamson
Respondent	:	Australian Government Solicitor

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

Brendan Davies v R [2014] VSCA 284
Samuels v State of Western Australia [2005] WASCA 193

CURTHOYS J:

On 30 August 2017 Rodney David Bird was charged with four offences contrary to s 233(1)(b) of the Customs Act 1901 (Cth). Following a trial he was convicted of those four offences on 20 December 2018. He now appeals against two of those convictions.
The convictions he appeals against arise from charges PE 49374/2017 and PE 48375/2017. He was fined $4,000 on each of the convictions and ordered to pay the Comptroller's costs of $20,850.
Charge PE 49374/2017 was:
On or about 23 August 2016 at the Perth Gateway Facility in the State of Western Australia Rodney David Bird imported prohibited imports into Australia being firearm accessories namely two (2) incomplete and unfinished firearm suppressors in contravention of Regulation 4F(1) and Item 14 of Part 2 of Schedule 6 to The Customs (Prohibited Imports) Regulations 1956 (Cth) an offence under paragraph 233(1)(b) of the Customs Act 1901 (Cth).
Attachment B particulars – Rodney David Bird
And the prosecutor avers under section 255 of the Customs Act 1901 at paragraphs 1 – 13 and 17.
1.The said Andrew William Watson is an officer of Customs and an authorised delegate of the Comptroller‑General of Customs to issue this prosecution notice. Charge 1 of 4.
2.On or about 23 August 2016 a parcel sent from the United States was intercepted by officers of the Australian Border Force (ABF) at the Perth Gateway Facility in Western Australia.
3.The Parcel was addressed to Rod Bird 10 Piper Court Greenwood WA 6024 Australia.
4.The parcels consignors details were state as Tyler Carpenter TYCA Industries 2230 Gaston Webbs Chapel Rd Lincolnton NC 28092.
5.The parcel was examined by ABF Officers and found to contain two (2) incomplete and unfinished firearm suppressors.
Charge PE 49375/2017 was:
On an unknown date in 2016 at Perth in the State of Western Australia Rodney David Bird imported prohibited imports into Australia being firearm accessories namely two (2) incomplete and unfinished firearm suppressors in contravention of Regulation 4F(1) and Item 14 of Part 2 of Schedule 6 to The Customs (Prohibited Imports) Regulations 1956 (Cth) an offence under paragraph 233(1)(b)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASC 240
Decision Date: 5 JULY 2019

CaseChat Overview and Summary

The case of Bird v Comptroller General of Customs involved the import of a device intended to be a sound suppressor for firearms. The device was incomplete and unfinished, leading to questions about its classification under Australian customs laws. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the incomplete and unfinished device qualified as a "prohibited import" under the Customs Act 1901. Specifically, the court had to determine whether such a device, when not fully operational, could still be considered a firearm accessory, thereby falling under the category of prohibited items.

The court considered whether the duplicity in the description of the device as both incomplete and potentially a sound suppressor could be resolved in a way that did not contravene the spirit of the legislation. It examined the purpose and intent behind the Customs Act and the broader regulatory framework governing firearm accessories. The court held that an item intended to function as a sound suppressor, even in an incomplete state, still retained its potential to be used as a prohibited import. The device's incomplete nature did not negate its intended use, thus classifying it as a prohibited import under the Customs Act.

In conclusion, the court found that the device in question was indeed a prohibited import, despite its unfinished state. The decision emphasised the importance of the intended use of an item in determining its classification under customs law. The court's ruling reinforced the need for stringent controls on the importation of firearm accessories to ensure compliance with Australian regulations.

Orders