Comptroller-General of Customs v Leggo
[2019] VSC 501
•19 July 2019 (ex tempore – revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 01468
| COMPTROLLER-GENERAL OF CUSTOMS | Appellant |
| v | |
| JASON LEGGO | Respondent |
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JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 July 2019 |
DATE OF JUDGMENT: | 19 July 2019 (ex tempore – revised) |
CASE MAY BE CITED AS: | Comptroller-General of Customs v Leggo |
MEDIUM NEUTRAL CITATION: | [2019] VSC 501 |
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ADMINISTRATIVE LAW – Statutory interpretation – Appeal from the Magistrates’ Court on a question of law under s 109 of the Magistrates’ Court Act 1989 (Vic) – Whether Magistrate misconstrued definitions of ‘firearm’ and ‘imitation’ in Customs (Prohibited Imports) Regulations 1956 (Cth) – Whether Magistrate’s conclusion that imported handgun was not a ‘blank-fire firearm’ involved errors of statutory interpretation – Whether Magistrate failed to give an adequate statement of reasons – Error shown – Appeal allowed – Proceeding remitted to Magistrates’ Court for rehearing – Magistrates’ Court Act 1989 s 109 – Customs (Prohibited Imports) Regulations 1956 (Cth) r 4F(4) (definition of ‘firearm’ and ‘imitation’).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Z E Maud and A M Haban-Beer | Australian Government Solicitor |
| For the Respondent | B Kennedy (Pro Bono Counsel) |
HIS HONOUR:
This is an appeal under s 109 of the Magistrates' Court Act 1989 from an order made by the Magistrates' Court sitting at Broadmeadows on 24 August 2018. As s 109 requires, the appeal is brought on a question or questions of law. The appellant is the Comptroller-General of Customs and the respondent is an importer, Jason Leggo.
Before the Magistrates' Court, the Comptroller-General was seeking a declaration that certain handguns imported by Mr Leggo were 'special forfeited goods', within the meaning of the Customs Act 1901 (Cth), and that they were forfeited to the Crown accordingly.
The Magistrate refused the application. The Magistrate gave oral reasons. He declined a request for written reasons. His oral reasons have been transcribed. What His Honour said lacks clarity to a certain extent. However, I am satisfied that his Honour erred in law in at least the two of the respects suggested by the appellant in this appeal.
The central question before His Honour was whether or not each gun was a 'blank-fire firearm' within the meaning of that expression as it appears in subparagraph (b)(ii) of the definition of ‘firearm’ in regulation 4F(4) of the Customs (Prohibited Imports) Regulations 1956 (Cth) (as amended) and as it appears in paragraph (d) of the definition of ‘imitation’ in the same regulation. The salient parts of regulation 4F(4) are as follows:
firearm:
(a) means a device designed or adapted to discharge shot, bullets or other projectiles by means of an explosive charge or a compressed gas, whether that device is fitted with a magazine or other feeding device designed to be used with it or not; and
(b) includes the following devices:
(i) a deactivated firearm;
(ii) a blank‑fire firearm;
(iii) any flare gun or signalling device, except a flare gun or signalling device mentioned in subparagraph (c)(iii); and
(c) does not include the following devices:
(i) a nailing or stapling gun;
(ii) an explosive‑powered fixing tool;
(iii) a flare gun or other signalling device, designed for emergency or life‑saving purposes;
(iv) a line‑thrower;
(v) a hand‑operated device that uses blank cartridges to propel objects for retrieval in connection with the training of dogs;
(vi) a tranquilliser gun;
(vii) a gun that operates a captive bolt for the slaughter of animals;
(viii) a device for the casting of weighted nets;
(ix) large calibre armament, weapons, launchers, throwers and projectors, designed for grenades, bombs, rockets or any other missile, ammunition or substance, to which item 1 of Part 2 of Schedule 13 applies;
(x) a sidewall core gun designed for geological purposes, mining purposes, or both;
(xi) an expandable casing perforation gun designed for geological purposes, mining purposes, or both.
…
imitation means an article, of any material or colour:
(a) that:
(i) is a copy or reproduction of a firearm; or
(ii) has the appearance of a firearm; and
(b) that is not capable of discharging shot, bullets or other projectiles by means of an explosive charge or a compressed gas; and
(c) that could reasonably be taken to be a firearm; and
(d) that is not a blank‑fire firearm.
The Magistrate’s first error of law was to interpret the expression ‘blank-fire firearm’ as only extending to a thing which had previously been able to discharge a shot but which had been modified so as to be unable to do so. Before me, counsel for the respondent properly conceded that if the Magistrate had in fact taken that view, he would have erred in law. Counsel submitted that his Honour should not be taken to have proceeded in that way.
However, that is my reading of what the Magistrate said. I do not accept the respondent’s submission to the contrary, to the effect that in the relevant part of his reasons the Magistrate was merely canvassing the evidence. In my view that is not a proper interpretation of what the Magistrate said.
The Magistrate introduced his reasons by saying that he did not think that the relevant items were caught by the definition of ‘blank-fire firearm’ on ‘a number of bases’. He then invited attention to the definition of ‘firearm’ in the regulations. He continued as follows (as recorded in the transcript):[1]
Firearm is a device designed or adapted to discharge shot, bullets, or other projectiles by means of explosive charge or a compressed gas, whether the device is fitted with magazine or other feeding device designed to be used with it or not.” So a firearm is something that discharges shot or projectiles. A classic blank-fire firearm, and as Mr Bennett has informed us, is a genuine firearm that is adapted not to discharge a shot. So a firearm is one that discharges shot. The definition goes on to say: “And includes”, so the general words - to give the words purpose or legs, as they say, the general words are being informed by the subsequent words so it includes a deactivated firearm. So in other words something that previously could discharge shot but is no longer capable of it, say maybe Mr Bennett would agree or disagree with me, but something where the firing mechanism is removed, so it’s a still a firearm. So a blank fire - so it can discharge shot but includes the following devices “a blank-fire firearm”. So in other words something that previously could but is now used as a blank-fire firearm. So you can't argue, "Well, here's my machine gun but I've only got blank bullets for it". It is a firearm and always remains a firearm. So on that basis and on the basis that indeed it is a component I believe, the cap which is unavailable but it's not the firearm. The firearm - the ammunition is different from the firearm, just as the sling or the scope is different from the rifle. So the actual ammunition that goes in it, the brass bit that goes in it is not capable – sorry, the brass bit that goes in it is what makes it a cap gun. So to my mind it's not a blank-fire firearm. It's presumably imitation. Even more so. It's not sold as such and I take Mr Bennett's point, and it's very well made, that a shotgun that is imported is no more or less a shotgun because it doesn't have the projectiles, but I don't – Mr Leggo's argument is further buttressed by I think he volunteered to say well he doesn't have to import the brass bits and how then could it be a blank-fire arm because he can't get the blanks for it? So I'm against you I'm afraid.
[1]The references in the Magistrate’s reasons to ‘Mr Bennett’ were references to a firearms expert who had been called by Customs.
I acknowledge that the Magistrate’s oral ex tempore reasons should be read fairly and with due regard to the issues in the case and to the whole of the record of the proceeding, including the whole of the transcript. Particular phrases or sentences in the reasons should not be taken out of context. Nonetheless, it emerges clearly enough from his Honour’s reasons, read in the context of the whole of the relevant material, that the Magistrate considered that a thing could not be a ‘blank-fire firearm’ unless it had been modified from a firearm that had previously been able to fire shot or other projectiles.
In his reasons, as set out above, the Magistrate said, among other things:
So a firearm is something that discharges shot or projectiles. A classic blank-fire firearm, and as Mr Bennett has informed us, is a genuine firearm that is adapted not to discharge a shot.
Then, his Honour indicated that he regarded the items listed in sub-paragraph (b)(i) and (ii) of the definition of ‘firearm’ (items which include ‘blank-fire firearm’) as being merely informative of the meaning of the general words of the definition. Counsel for Mr Leggo properly conceded before me that if and to the extent that the Magistrate did not treat sub-paragraphs (b)(i) and (ii) as independent extensions of the scope of the definition of the firearm, his Honour was mistaken. Again, in my view, his Honour did indeed make this mistake. It was a mistake which contributed to his Honour forming the view that a thing could not be a ‘blank-fire’ firearm unless it had been modified from a standard firearm.
That his Honour did arrive at this view is further confirmed by what his Honour went on to say, as follows:[2]
So a blank fire - so it can discharge shot but includes the following devices “a blank-fire firearm”. So in other words something that previously could but is now used as a blank-fire firearm.
[2]See above.
There can be no doubt that the view which I consider the Magistrate adopted in this respect was erroneous. On the Magistrate's reading of the regulations, there would be excluded from the scope of ‘firearm’ anything that was designed from the outset to fire blanks. There is simply no warrant at all in the legislation for that interpretation of the expression. I note that Mr Leggo, who was self-represented at the time, did not advance it before the Magistrate.
It is an interpretation that would involve reading into a legislative expression words that are not there, and, as Lord Mersey once said in the House of Lords: ‘It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do’.[3]
[3]Thompson v Goold [1910] AC 409, 420. See Dennis Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Australia, 8th ed, 2014) [2.32]-[2.36] (‘Pearce and Geddes’). Generally speaking, the same principles apply to the interpretation of regulations and other delegated legislation: see Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (Lexis Nexis Australia, 4th ed, 2012) [30.1].
Further, the Magistrate’s interpretation is contradicted by the presence in the definition of ‘firearm’ of a separate category of a ‘deactivated firearm’ in sub-paragraph (b)(i). On the Magistrate’s interpretation of the relevant regulation, subparagraph (b)(ii) would add nothing to the scope or reach of sub-paragraph (b)(i), whereas it is a fundamental principle of statutory interpretation that the court should strive to give some effect to all of the provisions of an enactment.[4]
[4]Pearce and Geddes (n 3) [2.26].
The expression 'blank-fire firearm' has for many years been used in several pieces of state or territory legislation relating to the control of firearms.[5] In each case, its meaning as used in those instances has extended to things that were designed to fire blanks and has not been restricted to things that have been adapted so as to fire blanks. Indeed, in some of those enactments, the expression is specifically defined to mean 'a device that is designed for firing blank cartridges only'.[6] Those definitions are sometimes supplemented by words along the following lines: 'such as a starting pistol'. It is legitimate to have regard here to such usages, with a view to achieving consistency of interpretation in like fields.[7]
[5]See, eg Firearms Act 1996 (ACT) Dictionary (definition of ‘blank-fire firearm’); Firearms Act 1996 (NSW) pt 1 s 4 (definition of ‘blank fire firearm’); Weapons Act 1990 (Qld) sch 2 (definition of ‘blank-fire firearm’).
[6]See, eg Firearms Act 1996 (ACT) Dictionary (definition of ‘blank-fire firearm’); Firearms Act 1996 (NSW) pt 1 s 4 (definition of ‘blank fire firearm’).
[7]Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29, 44 (Latham CJ); Pearce and Geddes (n 3) [2.38].
Nevertheless, in this case I need not and do not venture a definition or paraphrase of my own for the expression ‘blank-fire firearm’. In relation to the relevant ground of appeal, I need only say that the Magistrate erred by excluding a category of things – namely, things originally designed to be unable to fire shot or projectiles – from the scope of the definition of firearm.
The second error made by the Magistrate was to take into the account the fact that the caps specially designed to be used in the cartridges which (without such caps) were imported into Australia with these guns could not at present be legally exported to Australia. Overseas, the same suppliers supply the guns and the cartridges, including the special caps. The current unavailability of the special caps says nothing about the characteristics of the guns themselves. Plainly, it is not impossible that the special caps will find their way to Australia, legally or illegally, in future. These guns are designed to fire cartridges into which such caps are to be placed. Video evidence from overseas showed that, if the special caps were used, the effect of firing would be to eject the cartridge from the gun, as well as to make noise and, possibly, to emit smoke. In any event, there was evidence that the blank cartridges that were imported with these guns could be fired by the guns – albeit not with exactly the same consequences – using other less powerful caps that are legally available in Australia at present.
It is unnecessary for me to express any view as to whether the fact that caps (as distinct from some other kind of device) are to be used in the cartridges is significant in relation to whether these guns do or do not answer the statutory description. What is clear is that the Magistrate erred when he said that the absence of the specially designed caps from Australia at present had the effect that the guns themselves were not ‘blank-fire firearm(s)’.
The third ground raised by the Comptroller-General is to the effect that the Magistrate’s statement of reasons was inadequate. Certainly, the Magistrate’s oral reasons are not well expressed. In my view, if the Magistrate did not mean the two things that I have referred to, each of which I regard as erroneous in law, then it is impossible to understand what he did mean. In that event, his Honour’s reasons for refusing the application made by the Comptroller-General would be unintelligible. Hence the statement of reasons would be inadequate. For that reason the decision would have to be set aside. However, I do not proceed on that basis. I consider that I have been able to fathom sufficiently from what he said, what the Magistrate meant.
This is not a suitable case for this Court to determine the application that was made to the Magistrates' Court for a declaration. That is acknowledged on all sides. The evidence was not completed. Mr Leggo’s witnesses were not called, and, indeed, the Magistrate did not permit counsel for the Comptroller-General, or Mr Leggo, to advance final submissions. The matter was simply uncompleted at the Magistrates’ Court. That is the main reason why, as already indicated, I do not think that it would be appropriate for me to venture a definition or paraphrase of ‘blank-fire firearm’ in this appeal.
The only avenue available is to set aside the decision of the Magistrates’ Court and to remit the matter for rehearing and reconsideration by the Magistrates’ Court. Because of the way in which the hearing proceeded in the Magistrates’ Court, I consider that the Court should be differently constituted for the rehearing. That is the order that will be made.
I therefore allow the appeal and order that the determination of the Magistrates’ Court be set aside and direct that the proceeding brought by the Comptroller-General be reheard and re-determined by the Magistrates’ Court of Victoria, differently constituted.
[Discussion ensued as to costs]
The parties’ costs of this appeal are to lie where they fall. There will be a certificate under s 4 of the Appeal Costs Act 1998 in respect of costs.
The Court expresses its gratitude to Mr Kennedy of counsel who, in the best tradition of the Victorian Bar, appeared pro bono for the respondent, Mr Leggo.
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