Bird v Comptroller General of Customs
[2019] WASC 240
•5 JULY 2019
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) of the Customs Act 1901 (Cth).
Attachment 8 – particulars Rodney David Bird –
And the prosecutor avers under section 255 of the Customs Act 1901 at paragraph 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 2 of 4.
6.On an unknown date in 2016 a parcel sent from the United States arrived in Australia.
7.The parcel contained two (2) incomplete and unfinished firearm suppressors.
8.The accused caused the parcel to be imported into Australia
Leave to appeal
The appeal is brought under s 8(1)(a)(i) Criminal Appeals Act 2004. Leave to appeal is required, and the court must not give leave unless it is satisfied the ground has a reasonable prospect of success.[1]
[1] Criminal Appeals Act s 9(1) and s 9(2)
That is, an appellant must show the proposed ground of appeal has a rational and logical prospect of success, or a real prospect of success.[2]
[2] Samuels v State of Western Australia [2005] WASCA 193 [56].
Grounds of appeal
Mr Bird appealed on the following grounds.
In respect of charge PE 49374/2017:
1.The learned magistrate erred in law to hold that metal cups and thread adapters in a package comprise a sound suppressor which was 'not complete or unfinished'.
In respect of charge 49375/2017:
2.The learned magistrate erred in law to find the appellant was guilty of importation of two incomplete and unfinished suppressors when the evidence:
(a)did not prove he imported the items the subject of the charge on one occasion; and
(b)raised the inference the appellant imported the items in the course of three separate acts of importation, two of which may have not happened in 2016 (only photo AW‑RB01 (in exhibit 5) is identified by the appellant in the interview as being 'brought in… summer last year'.
3.The learned magistrate erred in law to hold that the things the appellant imported comprised two sound suppressors which were 'not complete or unfinished'.
The relevant legislation
Section 233(1)(b) of the Customs Act creates the offence:
(1)A person shall not:
(b)import any prohibited imports;
The expression 'prohibited imports' refers to s 50(1) of the Customs Act: 'The Governor‑General may, by regulation, prohibit the importation of goods into Australia'.
The relevant regulations are the Customs (Prohibited Imports) Regulations 1956. The relevant clauses of the regulation is 4F which provides:
(1)…, the importation of a firearm, a firearm accessory, a firearm part, a firearm magazine, ammunition, a component of ammunition or an imitation is prohibited unless:
(a)the firearm, firearm accessory, firearm part, firearm magazine, ammunition, a component of ammunition or an imitation is an article to which an item in Part 2 of Schedule 6 applies; and
(b)the importation is in accordance with the requirements set out in column 3 of the item.1
(4)In this regulation:
component of ammunition means a projectile, cartridge casing or primer designed or adapted for use in ammunition.
firearm accessory means any of the following devices, whether or not complete, damaged, temporarily or permanently inoperable, or unfinished:
(a)a silencer, sound moderator, sound suppressor or any other device designed to, or capable of, reducing the noise of discharge of the firearm;
(b)a device designed to modify, or capable of converting, a firearm to give it any of the following capabilities:
(i) burst fire;
(ii) semi-automatic operation;
(iii) fully automatic operation;
(c)a firearm part to which a firearm accessory is attached or is integral.
firearm magazine means a magazine designed or intended for use with a firearm, whether or not complete, damaged, temporarily or permanently inoperable, or unfinished.
firearm part, for a firearm, means any of the following items, whether or not complete, damaged, temporarily or permanently inoperable, or unfinished:
(a)a gas piston, friction ring, action bar, breech bolt or breech block;
(b) a firearm ban-el;
(c) a trigger mechanism;
(d) a frame or receiver;
(e) a slide;
(f) an upper receiver;
(g) a lower receiver;
(h) a revolving cylinder;
(i) a bolt carrier;
(j) an adjustable, detachable or folding stock;
(k)something, other than a complete firearm, that includes one or more of the items mentioned in paragraphs (a) to U).
Note: The effect of the definition is that some items used in a firearm are not treated as 'firearm parts' by themselves, including the following items:
(a)a firearm accessory, a firearm magazine or ammunition;
(b) a screw, spring, or other minor component, of a firearm
The dictionary meanings
The Shorter Oxford English Dictionary relevantly contains the following definitions:
Device
3A thing designed for a particular function or adapted for a purpose; an invention, a contrivance.
Complete
1.Having all its parts or elements; entire, full, total.
Incomplete
1.Not complete; not fully formed; unfinished; not whole or through; lacking something, imperfect
Unfinished
1.Not finished; incomplete.
Designed
1.Planned, intended.
Designed - the authorities
In Brendan Davies v R [2014] VSCA 284 the Victorian Court of Appeal (Redlich and Weinberg JJA and Sifris AJA) considered s 3 of the Firearms Act 1996 as it stood at the relevant time:
firearm means any device, whether or not assembled or in parts and whether or not operable or complete or temporarily or permanently inoperable or incomplete ‑
(a)which is designed or adapted to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; or
(b)which has the appearance of such a device…
The Court of Appeal stated:
[132]… The Crown's alternative submission was that it was incorrect to direct the jury that the device could not satisfy the definition of a 'firearm' unless it was capable, once fully assembled according to its design, of discharging a missile. The Crown argued, as the prosecutor did before the trial judge, that a device may satisfy the definition of a 'firearm' even if it is not capable of discharging a missile, so long as it is 'designed or adapted' to do so. That construction seems to us to be correct.
[133]The words 'designed … to discharge … a missile' do not require that the device in question is actually able to discharge a missile. The word 'design' is relevantly defined in the Macquarie Dictionary (5th ed) to mean 'to intend for a definite purpose'. The word 'adapted', which is used in the definition disjunctively with 'designed', also implies a purposive inquiry.
[134]The trial judge directed the jury that if a device has a flawed design such that it cannot discharge a missile, the device cannot be a firearm. Such a direction incorrectly conflates inoperability with the design of the device. The former relates to capability; the latter, to intended purpose. The qualifying language in the definition ‑ 'whether or not assembled or in parts and whether or not operable or complete or temporarily or permanently inoperable or incomplete' ‑ ensures that a device which is not at the relevant time able to discharge a missile (because it is incomplete or inoperable) may none the less satisfy the definition.
[135]In short, where a device, though inoperable, is designed for the purpose of discharging a missile by the expansion of gases produced in the device, it is a firearm for the purposes of the Firearms Act. The relevant inquiry is directed to the objective purpose of the device, as disclosed by its design. Therefore, the issue for the jury was whether the device was designed for the purpose of discharging a missile.
Mr Bird's submissions
Mr Bird submitted that the items were, at most, components of a suppressor and were not caught by the relevant provision.[3]
[3] Appellant's Submissions par 7.
In Mr Bird's submissions he described the items the subject of charge 1 as follows:
The items the subject of the charge are depicted in the photo marked AWRB03. They were "two bags each comprising eight aluminium cups, 1 stainless steel cup, 1 muzzle attachment cap and one undrilled end cap." An expert witness described the two bags as a kit to make a silencer by using the body of a Maglite torch [not in any bag] and drilling holes in the aluminium caps. The muzzle attachment screwed to one end of a Maglite torch and with (the other end of the muzzle attachments screwing onto the firearm. The aluminium cups are drilled (using the scoring at the bottom of each cup to assist with accuracy of the holes) to the size of the ammunition calibre desired and the undrilled end cap is drilled for the required firearm and screwed to the other end of the Maglite torch. Her Honour found as follows:
47.5while any rigid tube could be used for the purposes of the body of the silencer the supply kits are usually specifically threaded to fit to the threading of a Maglite torch (also located at the accused's house and seized by ABF officers).
47.6further, once an aluminium cup is drilled it becomes a baffle and is inserted with other baffles into the tube of the Maglite torch.
47.7thus once these items are assembled as described, the item can be attached to the desired firearm used as a silencer or sound suppressor.[4]
[4] Appellant's Submissions par 5.
Her Honour's findings were:
67.1.the items in the parcel were specifically designed to fit a Maglite torch tube to connect to the end of a firearm to reduce the sound upon discharge;
67.2.a number of Maglite torches were located in a tool box with items the accused identified as using to make a silencer or sound suppressor
67.3.a recipient of the items need only drill designated holes in the aluminium cups and the end cup, put them into a torch tube and attach it the end of the firearm to complete the assembly. The accused's submission that significant labour akin to manufacturing was required to make the sound suppressor was a gross overstatement. All that was required was a relatively simple modification to a specifically designed product to be carried out in someone's home, consistent with the tool box of other hatch patch items located and seized on 11 April 2017;
67.4.notwithstanding the marketing as "solvent traps" on the Prepper's Discount website of similar items to that which was in the parcel, the items purpose was for assembly to make a silencer or sound suppressor;
67.5.it is not to the point the accused or anyone else can go to shops in Australia and randomly purchase items that may eventually make a silencer or suppressor. This is not what happened in relation to charge 1 as it related to the accused, albeit he may have purchased similar items in Australia for a similar purpose; and
67.6.the accused purchased an on line kit that when holes were drilled into cups and put into a particular torch tube, the threading of which conveniently matched the threading to a muzzle attachment and end cup completed the device, being a silencer or sound suppressor.
In the course of argument counsel for Mr Bird submitted 'there's no doubt whatsoever that the items the subject of count 1 are components or parts of firearms suppressors'.[5]
Construction of the relevant provisions
[5] ts 5, 30 May 2019.
The appellant submits the evidence proved the objects to be no more than components of suppressors; and components are not caught by the inclusionary words in the regulation.[6]
[6] Appellant's Submissions par 7.
Mr Bird submitted:[7]
The drafting of the relevant provisions of s 1(1) of the Customs (Prohibited Imports) Regulations 1956 reveals an awareness of the difference between components (or parts) of a manufactured device or article and the device or article itself. For example, the regulations distinguish between:
•ammunition and components of ammunition; and
•a firearm and a part of a firearm.
[7] Appellant's Submissions par 8.
Mr Bird submitted:
8.The drafter elected to not refer to the components (or parts) of a "silencer, sound moderator or sound suppressor." Instead the drafter opted to extend "device" to include (still) a device that was "not complete" or which may be "damaged, or temporarily or permanently inoperable, or unfinished" (in this Outline, called "the inclusionary words").
9.None of the inclusionary words derogate from the concept of the integrity of the device. A device which is "not complete" is still a device and would be recognisable as that. For example, a rifle without a trigger or a bolt is still be a rifle; a torch without the lens is still a torch. A car without wheels or a steering wheel is not complete but still is a car.
10.The words "damaged, temporarily or permanently inoperable" emphasise the integrity of the device. Damage connotes a state of a thing that is still that thing. A thing that is inoperable is still recognizable as that thing.
11.The word "unfinished" suggests a degree of finish. Finish connotes a point in time well past the start of the manufacture process. That process starts after the component parts are put together.
12.The inclusionary words denote a singular object 'device'. But, here, the evidence relates to a number of items. Those items are not a single item (by definition).
13.The intention behind the possession of the parts, or the importation of them, does not convert those parts into that intended object. The offence is not the importation of things with intent to make a suppressor.
14.It would have been easy for the drafter to make clear an intention extend the ambit of the regulation to the components of a sound moderator or to items that are intended to be used to make one. But that was not done. And for good reason. If any and everything that could be used to make a sound moderator were a prohibited import then innumerable things would be caught, things which were made for, and are commonly used for, innocuous purposes, such as torches, pvc pipe, freeze plugs, washers.
Mr Bird submitted:
24.The magistrate erred in para 32 by reasoning that as the inclusionary words "import something less than the whole of an object or thing constituting a device" it is therefore the case those words include a component of the object or device. The appellant understands that to be what her Honour meant when her Honour says the words of inclusion are "capable of meaning something less that a whole device including a device which may require some form of other modification or assembly to be completed or finished".
25.The reasoning conflates "less than whole" with "component of whole." It presumes that the words of inclusion actually mean components. If that was the intended meaning a much shorter form of words would have been used, such as "'Firearms accessory' means a device [etc] or parts of the device." The words actually used are rendered otiose by her Honour's construction.
26.The magistrate's reasoning conflates the object of preventing the importation of the suppressors (whether complete or not) with the object of preventing the manufacture of them in Australia from things imported. The drafter was aware of the difference and drafted accordingly. The evident purpose of the provisions is the regulation of the importation of a device that is or was a sound suppressor. The apparent intended effect of limiting the prohibition to an item that is a device that is a sound moderator - and not to items that may well be used for making one - is the reasonable one of not catching innocuous, everyday items.
The Comptroller submitted:
16.The appellant's primary submission in relation to this issue appears to be that components or parts of a firearm suppressor that may require some form of assembling, as opposed to a complete and recognisable firearm suppressor are not covered by the definition of firearm accessory in reg 4F because reg 4F refers to "components of ammunition" and "firearm parts". The appellant submits that an incomplete or unfinished device has to be recognisable as the complete or finished device, however he provides no proper basis for that submission. At AS 24 the appellant states that her Honour erred at [32] by reasoning that "as the inclusionary words 'import something less than the whole of an object or thing constituting a device' it is therefore the case those words include a component of the object or device". The appellant goes on, at AS 25, to state that the reasoning conflates "less than whole" with "component of whole", and "it presumes that the words of inclusion actually mean components".
17.This reasoning is flawed for a number of reasons. Firstly, the mere fact that "components of ammunition" is referred to in reg 4F does not reflect a general legislative intention that where various parts of a prohibited device are imported in an unassembled state, or in multiple packages, that such parts cannot constitute an unfinished or incomplete device. Components of ammunition is specifically defined.1 The same applies to the term 'firearm parts' - it is a single defining word relating to specifically identified items, 2 which includes a combination of those specifically defined items.
18.The inclusion of 'components of ammunition' and 'firearm part' in reg 4F does not detract from the broad drafting of the definition of 'firearm accessory', which includes incomplete and unfinished devices.
19.The appellant seems to accept that something less that a complete suppressor can fall within the reg 4F definition. He uses the example of a rifle without a trigger and a car without wheels or a steering wheel. He submits that the word "unfinished" suggests a degree of finish. His primary objection appears to be that one or more items that require assembly, and which may require an additional part, cannot constitute an unfinished or incomplete 'device'.
20.However, her Honour was not invited to, nor was she required to, make a determination that a device might meet the statutory definition of an incomplete or unfinished because it was 70% complete, 80% or 90% complete. Nor was she invited to, or required to, determine that a device that was 50% complete might, or might not meet the definition. Her Honour accepted that the wording of reg 4F covered something which may not be complete or finished, and included a device that might be lacking some part. Her Honour found, correctly in the respondent's submission, that something less than a whole device is contemplated by the definition of 'firearm accessory' in reg 4F. Her Honour concluded that the word 'device' in the context of the definition of firearm accessory in reg 4F is capable of meaning something less than a whole device, including a device which may require some form of other modification or assembly to be complete or finished, and "implicit in this is that a device can include something that is in disassembled form and requires being put together, with or without modification".
21.Contrary to the Appellant's submission at AS 24, at no stage did her Honour state that the importation of a single component part of a firearm suppressor, without something more, would meet the definition of an unfinished or incomplete firearm suppressor. A singe metal cap, by itself, is unlikely to satisfy the definition, however, each case must be determined on its own facts. As her Honour notes at [43], "the facts and circumstances of the assembly and modifications to any component parts becomes important". Here, the items that were the subject of Charge 1 did not consist of a single component, but rather the items imported were purchased as a kit, which, when combined with a particular sized Maglite torch body, could easily be modified and turned into a device capable of, reducing the noise of discharge of the firearm.
22.There is no basis to read into the language of the Regulation that the device must reach a certain level of completeness, or that it needs to be partially assembled. Given the broad wording of the definition and the mischief that it is designed to remedy, there is no basis to read the words "not complete" and "unfinished" narrowly so as to exclude devices which have not been assembled or are missing a part (which might be imported or purchased locally). This is reinforced by the other words in the definition - "damaged or temporarily or permanently inoperable". Those words are clearly intended to have a wide reach.
23.Most importantly, the interpretation which the appellant urges, which would allow the importation of components of firearm suppressors in separate parcels which, once all parcels are received, could be easily modified and/or assembled into a firearm suppressor. Such an interpretation does not support the objects and purposes of the Act. Such an interpretation is not to be preferred over an interpretation based on the clear meaning of the words in the legislation, taking into consideration the object and purpose of the Act and Regulations and the history of the provisions (and surrounding provisions).
30.The respondent submits that her Honour was correct in finding at paragraph 42 that the word 'device' in relation to a silencer is not confined to mean a whole device, and that an incomplete or unfinished device can include a device "that is in disassembled form and requires being put together, with or without modification". Her Honour was correct in not reading down the words "not complete" or "unfinished" so as to exclude a device that requires some form of assembling or modification in order to be considered complete, finished and/or operable.
Analysis
In essence Mr Bird argues that the components of a device do not constitute a device.
It is clear that the regulations prohibit the import of less than a complete device. They also prohibit the importation of an unfinished device.
The use of the words 'whether or not complete' and 'unfinished' do not require a complete device in order to prove the charge. The question is therefore to what extent, if any components, of a device can be said to be a device 'whether or not complete' or 'unfinished'.
The use of the words 'whether or not complete' indicates that not every part of the device must be present in order to conclude that it is relevantly a device. The need to supply a further part, such as the body of a Maglite torch, to complete the sound suppressor is consistent with the use of the word 'whether complete or not'.
Similarly the use of the word 'unfinished' indicates that some assembly might be required. It is very difficult to accept that all the components of a sound suppressor would not be a sound suppressor for the purposes of regulation 4F because those components were not assembled.
It may be that of degree of work required to assemble particular components may be such that it can no longer be said to be a device. For example if the components required extensive manufacturing. However, that is not the case here. Her Honour's findings was that the assembly required was relatively simple.
The regulations do not support Mr Bird's contention that a device 'must be recognisable as such' before it can be said to be a device.
Contrary to Mr Bird's submissions the use of the words 'damaged temporarily or permanently inoperable' do not emphasise the integrity of the thing. They simply reflect a condition which a device may be in but which still breach regulation 4F.
Contrary to Mr Bird's submissions the word 'unfinished' do not suggest a degree of finish. The process of finishing does not begin after the component parts are put together. There is nothing in regulation 4F to suggest that that is the proper interpretation.
Mr Bird's submission that if the Comptroller's submissions were correct 'innumerable things would be caught, things which are made for and commonly used for, innocuous purposes, such as torches, pvc pipe freeze plugs, washers' etc would breach the act is not sustainable. It will always be a matter of fact and degree. There is a world of difference between a single torch and the components to make a sound suppressor appearing in one package.
The purpose of the legislation is to prevent the importation of a firearm accessory. That purpose would not be achieved if all the components of a firearm accessory could be imported and assembled relatively simply. How would the purpose be achieved if a kit could be obtained which required a simple process of assembly or the provision of one readily obtainable part?
The use of the word 'component' and the word 'parts' in other parts of regulation 4F does not mean that parts or components are excluded from what constitutes a firearm accessory. Neither 'firearm part' nor 'component of ammunition' use the terms 'whether or not complete' or 'unfinished'.
Her Honour did not make an 'error' of logic as submitted by Mr Bird.
Purpose of manufacture of imported objects
Mr Bird submitted:
There was no evidence as to the original purpose of the making of these imported objects. Other objects, which were components of suppressors, were the subject of Charge 2. The expert witness said the objects that could be used as baffles in a suppressor were "freeze plugs like you could buy at Supercheap Auto." He agreed that metal discs that could be used in suppressors were "just washers … of the sort you buy at Bunnings'. He agreed, in respect of "spacers," "they are made of PVC pipe ... of the sort you buy at Bunnings." [8]
[8] Appellant's Submissions par 6.
The Comptroller submitted:
11.The term 'device' is not defined in the Regulations. Her Honour considered the ordinary meaning of that word and found that, when used in reg 4F(4), the word 'device' is used in the sense of "a thing made or adapted for a particular purpose, especially a piece of mechanical or electrical equipment" (J 28).
12.Contrary to the appellant's submission at AS 6, in order for a device to meet the definition of 'firearm accessory' in paragraph (a) of reg 4F, it need only be designed to, or be capable of, reducing the noise of discharge of a firearm. The original purpose for which a device was designed is not of determinative of whether the device falls within the definition of 'firearm accessory' for the purposes of the Act. For this reason, it is not necessary that evidence going to the design and purpose of the item be given by the manufacturer at any trial. The evidence that is relevant to the determination of whether a device falls within reg 4F is evidence as to whether the device is designed to, or is capable of, reducing the noise of the discharge of a firearm.
13.In this case, Mr Bennet, a firearm and tool mark examiner with the Australian Federal Police, gave expert evidence as to whether the relevant devices were capable of reducing the noise of the discharge of a firearm. Mr Bennet described the items which are the subject of Charge 1 as being "two bags of items as a kit to make a silencer". Her Honour noted the undisputed evidence of Mr Bennet to the effect that by assembling the imported items with the body of a Maglite torch in the manner described by Mr Bennet, "the item can be attached to the desired firearm and used as a silencer or sound suppressor" (J 47.1 -47.7).
14.Her Honour concluded (at J 67.4) that despite the marketing of the items as "solvent traps" on the Prepper's Discount website, the purpose of the items the subject of Charge 1 was "for assembly to make a silencer or sound suppressor".
15.This is not a case in which there was no evidence to support a finding that the items being the subject of Charge 1 were an unfinished or incomplete silencer, sound moderator, sound suppressor, or other device designed to reduce the noise of discharge of a firearm. In addition to the evidence of Mr Bennet, the Court also had before it the evidence of Mr Ross Rackham, an officer of the Australian Border Force with expertise in firearms, as to
(1)the process of cleaning of firearms;
(2)whether a solvent trap is required when cleaning a firearm;
(3)what could be used as a solvent trap if one was required; and
(4)whether the devices in the present case would operate effectively as solvent traps.
In order to prove the charge it is not necessary to prove the original purpose of the device. The requirement is that device is designed to, or capable of reducing the noise of discharge of the firearm. The evidence is that once assembled the device is capable of reducing the noise of the discharge of the firearm.
Further, 'the relevant inquiry is directed to the objective purpose of the device, as disclosed by its design'. The objective purpose of the device as disclosed by its design is reducing the noise of discharge of the firearm.
Proof of the objective purpose does not require evidence as to the original purpose of the designer in order to prove the charge.
At paragraphs 16 ‑ 23 of Mr Bird's submissions he referred to the Magistrate's alleged error in relying on extrinsic materials. In reaching its conclusion the Court has not relied on those materials and it is unnecessary to deal with that part of the submisions.
Ground 1 is not made out.
Count 2 ‑ Charge 2 of 4 (PE 49375/2017)
In relation to charge 2 the Comptroller correctly summarised the facts as follows:
4.4The accused imported from the United States of America the following items (J 47.12, 47.24, 47.27 and 82):
4.4.1a fourteen (14) Piece D-Cell Maglite Solvent trap Cleaning System (Exhibit 5, printout labelled 'AW-RB 01') (J 47.14);
4.4.2a Mini "C" Sized Solvent Trap Cleaning System for 17HMR,22LR and similar (Exhibit 5, printout labelled 'AW-RB 02') (J 47.15 and 76);
4.4.3"D" - "C" - "Black mamba" - "King Cobra" - "C-Mini" - "Twist" and "Titanium" Tubes (Exhibit 5 printout labelled AW-RB 05) (J47.18 and 77)
4.5The Court found that the contents of 'AW-RB 01' and "AW-RB o5' combined contain the complete components to assemble one suppressor (J 78 and 81) and 'AW-RB 02' by itself contains the complete
4.6The examination of both suppressors confirmed, when tested, that each item significantly reduced the sound of discharge when the firearm was fired (J 47.28 and 76-77)
Mr Bird submitted:
27.The evidence adduced in respect of this charge described at least three acts of importation. The prosecutor conceded this when responding to defence counsel's no case submission:
My friend's complaint about no evidence of the one thing coming in at once, that is the case. If the court was concerned about that aspect of it, then perhaps the charge could be unrolled into separate counts for each item which would be able to be done [under] s 132 of the Criminal Procedure Act.
28.But no application was made to do that. When defence counsel sought clarification as to which act was the subject of Count 2 (after the no case submission was rejected) the prosecutor alleged a single act (but in a way that contradicted the evidence):
Your Honour, the averments make it clear that we say one parcel arrived in relation to count 2. Based on the admissions that have been made and the items that were seized we say the two incomplete suppressors are made up of the items in AWRB0l; AWRB02, which is in fact one of its own - complete; and then the tube in AWRB05. So when the components in 01 are combined with 05, it becomes another suppressor as, of course, 01 only needs the addition of a tube.
29.The evidence proved the items in AWRB01 and AWRB-02 and AWRB-03 were the subject of three separate acts of importation respectively. This is reflected in her Honours reasons. At 47.12 "he admitted ordering items on line . .. and had placed four orders in total" . At 47.14:·"he identified AWRB-01 saying he got a similar item ... last year which was located in a cabinet inside." At 47.15 "he identified AWRB-02 saying it was the same as AWRB01 save this item included the tube [Maglite torch] saying he placed the order". At 47.18 "he identified AWRB05 as a tube [for a suppressor]".
30.The magistrate's reasons for conviction reproduce (without criticism) this flaw in the prosecution case:
[At Reasons for Decision:] 80. I accept the prosecution's submissions and I find beyond reasonable doubt that silencer was assembled from an online order on Preppers Discount website consistent with the items in AWRB02 and these items were received by the accused on an unknown date in 2016.
Further, I find beyond reasonable doubt that silencer was assembled from an online order on Preppers Discount website consistent with the items in AWRB01 and AWRB05 and these items were received by the accused on an unknown date in 2016.
I am satisfied the prosecution have proven beyond reasonable doubt that on an unknown date in 2016 in Perth the accused placed the online orders for the items described above, paid for the items and arranged for the items to be mailed to his home address in Australia.
31.Paragraph 81 in the above quoted passage refers to a single act of importation (in 2016). Para 82 refers to two acts of importation (in 2016).
32.As the evidence referred to "a number of distinct offences" (not the "one parcel.. in relation to count 2" alleged by the prosecutor) the prosecution notice gave rise to latent duplicity.
33.So Charge 2 was bad for duplicity and should have been dismissed. The conviction is uncertain. It cannot legitimately refer to more than one transaction, contrary to the findings of the learned magistrate.
The Comptroller submitted:
31.Ground 2 alleges the Charge 2 was "bad for duplicity". The appellant submits that the conviction should be set aside as a count cannot legitimately refer to more than one transaction, contrary to the findings of the learned Magistrate.
32.In Walsh v Tattersall (1996) 188 CLR 77, Dawson and Toohey JJ set out (at 84) the essence of duplicity as follows:
The proscription against duplicity is succinctly stated by Archbold:
The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences... This rule though simple to state is sometimes difficult to apply... Duplicity in a count is a matter of form, not evidence.
33.Further, Kirby J stated:
...what is presented is a question of fact and degree for decision in each case. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constituted separate offences. The indicia include (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct (108).
34.His Honour went on to say:
Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature; and in other anomalous cases (109).
35.The issue of whether Charge 2 was duplicitous was raised without notice by the appellant's counsel at the trial. This was despite the fact that, on 14 September 2018, the respondent had written to the appellant asking him to identify any legal issues he wanted to raise at trial, and no such issues were raised (T p104).
36.Her Honour accepted that during 2016 the accused caused the importation of two (2) unfinished or incomplete firearm suppressors based on the following evidence and findings:
Two incomplete suppressors
(1)The contents of 'AW-RB 01' and 'AW-RB 05' combined contain the complete components to assemble one (1) suppressor (J 78 and 81); and 'AW-RB 02' by itself contains the complete components to assemble one silencer (J 80).
Importation of Exhibit 5, printout labelled 'AW-RB 01' and 'AW-RB 05'
(2)The accused made admissions that he ordered a similar item to the 'AW RB-01' in 2016 (J 47.14) and that the kit was used to make one of the four suppressors located during the warrant, being silencer 4 of Exhibit 9 (J 77 and 78);
(3)The accused identified 'AW-RB-05' and admitted this was one of four silencers located during the warrant (J 77).
Importation of Exhibit 5, printout labelled 'AW-RB-02'
(4)The accused made admissions that he ordered 'AW-RB-02' (J 47.15) and that the kit was used to make one of the four suppressors located during the warrant, being silencer 4 of Exhibit 9 (J 76);
Time of importation
(5)The accused made admissions that he ordered a similar item to the 'AW RB-01' in 2016 (J 47.14); and
(6)Emails from the appellant to the supplier of 'AW-RB 01', 'AW-RB 012' and 'AW-RB 05' in 2016 inquiring as to the location of his order (Exhibit 7).
37.Contrary to the appellant's statement at AS 29, the evidence did not establish or refer to three separate acts of importation. The appellant admitted to having placed four orders in total with Prepper's Discount, however he made no admissions as to the specific date (or dates) in 2016 when the orders were placed or the specific date (or dates) on which the suppressor kits arrived in Australia.
38.At the trial, the prosecution relied upon a number of averments pursuant to section 255(1) of the Act. Those averments were pleaded in the initial Prosecution Notice and no issue regarding duplicity was raised until the trial.
39.Section 255(1) of the Act provides that, in any Customs prosecution, the averment of the prosecutor contained in the information, complaint, declaration or claim shall be prima facie evidence of the matter or matters averred.
40.The following averments were made relevant to Charge 2:
(1)On an unknown date in 2016, a parcel sent from the United States arrived in Australia.
(2)The parcel contained two (2) incomplete and unfinished firearm suppressors.
(3)The accused caused the parcel to be imported into Australia. [Emphasis in bold added]
41.The respondent submits that the absence of evidence conclusively establishing the exact date for the importation of the items identified as being 'AW-RB 01', 'AW-RB 02' and 'AW-RB-05' does not render the charge defective for duplicity. In the absence of any evidence rebutting the averments, then the averments stood as prima facie evidence that the items the subject of Charge 2 were imported in the one transaction.
Analysis
The major issue between the parties is whether the evidence establishes one act of importation of three acts of importation.
As the Comptroller submitted:
40.The following averments were made relevant to Charge 2:
(1)On an unknown date in 2016, a parcel sent from the United States arrived in Australia.
(2)The parcel contained two (2) incomplete and unfinished firearm suppressors.
(3)The accused caused the parcel to be imported into Australia. [Emphasis in bold added]
The prosecution relied on s 255 of the Act. The averments are prima facie evidence. Her Honour specifically referred to s 255(1) of the Act in relation to the averments.[9]
[9] Reasons for decision par 62.
The starting position in reliance upon the averments is that there was one parcel. If that is the case then the charge is not bad for duplicity.
The Court does not accept that counsel for the Comptroller made a concession that there were three acts of importation. The fact that the Comptroller continued to allege one act of importation is apparent from what is set out in par 28 of the Appellant's submissions.
The charge is one of 'importing' not 'ordering'. The evidence is arguably capable of establishing that there was more than one order. However, it is not capable of establishing that there was more than one act of importation having regard to the averments.
At the hearing of the appeal Mr Bird submitted an extract from the transcript of the execution of the warrant. That transcript was submitted on the day without notice to the Comptroller. That process is unsatisfactory. If Mr Bird sought to rely on the transcript notice should have been given to the Comptroller.
Insofar as Mr Bird sought to rely on the transcript her Honour found Mr Bird to be an unreliable witness and did not accept his evidence.[10]
[10] Reasons for decision par 54 – 56.
Charge 2 is not bad for duplicity.
Ground 3 - Charge 2 of 4 (PE 49375/2017) - only components imported
In relation to ground 3 Mr Bird submitted:
34.None of the importations proven by the evidence resulted in any more than the importation components. See submissions above relating to Ground 1.
In relation to ground 3 the Comptroller submitted:
The third ground of appeal raised by the appellant is essentially the same as the first ground but in relation to Charge 2, and the respondent relies on the same submissions at [6] to [3029] above.
Ground 3 fails for the same reasons as ground 1.
Orders
The Court orders:
1.Leave to appeal is refused.
2.The appeal is therefore dismissed.
3.The appellant pay the respondent's costs of the appeal to be taxed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MDM
Associate to the Honourable Justice Curthoys5 JULY 2019
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