DJC v Taylor - [2019] WASC 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DJC -v- TAYLOR [2019] WASC 235
CORAM:   SMITH J
HEARD:   18 JUNE 2019
DELIVERED          :   5 JULY 2019
FILE NO/S:   SJA 1123 of 2018
BETWEEN:   DJC
Appellant
AND
STEVEN RONALD TAYLOR
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E DE VRIES
File Number            :   KH 2452 of 2017

Catchwords:

Criminal law - Firearms Act 1973 (WA) - Whether to post a firearm constitutes delivery - Whether averment provision applied to the charge - Meaning of approved commercial carrier

Legislation:

Australian Postal Corporation Act 1989 (Cth), s 23, s 24, s 25, s 54
Criminal Appeals Act 2004 (WA), s 9
Criminal Procedure Act 2004 (WA), sch 1 cl 6(2)(a)
Firearm and Guns Act 1931 (WA)
Firearms Act 1973 (WA), s 4, s 8, s 19, s 29, s 30, s 30A
Liquor Act 1978 (NT), s 75(1)(b)

Result:

Leave to appeal is refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr R Williamson
Respondent	:	Mr J D Berson

Solicitors:

Appellant	:	Ross Williamson
Respondent	:	Solicitor for the State of Western Australia

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

Brady v Thornton [1947] HCA 29; (1947) 75 CLR 140
Charlton v Rogers; Ex parte Charlton (1985) 82 FLR 40
Jambajimba v Svikart (1984) 71 FLR 287
Kerney v Lewis (2005) 191 FLR 54
Kuyer v Small [2012] WASC 442
Mohammadi v Bethune [2018] WASCA 98
The State of Western Australia v 'R' [2007] WASCA 42; (2007) 33 WAR 483

SMITH J:

1.0 The appeal and the result

The appellant was convicted of having delivered firearms to an agent of Australia Post (in a specified place in Western Australia) on 21 July 2017, namely a Ruger rifle bolt repeater .22 calibre and a Crosman .177 calibre air rifle, whilst such a person was not the holder of a licence or permit pursuant to the Firearms Act 1973 (WA) (the Act) entitling them to possess the firearms, and was not a person to whom s 8 or s 30(2) of the Act applied; contrary to s 19(2)(a) of the Act.
The charge was heard on 14 June 2018. On 20 September 2018, the appellant was fined $600, ordered to pay costs of $190.85 and granted a spent conviction.[1]
[1] In light of a spent conviction order being made for this offence, the appellant's name and the place of the offence have been anonymised in these reasons.
The appellant applies for leave to appeal the conviction on proposed amended grounds of appeal as follows:[2]
[2] Amended grounds of appeal, filed 28 May 2019.
(1)The learned magistrate erred in law when he held the act of giving to a postal worker at the post office a parcel for posting, containing firearms, was an offence under s 19(2) of the Act.
Particulars of error
(i)His Honour held an element of the offence was 'delivery of the firearms'.
(ii)The relevant element is 'permitting another to take possession'.
(iii)The evidence did not prove that element.
(2)When considering whether there was evidence of the person at the post office who took the parcel containing the firearms from the appellant being a person who was not at the material time the holder of a licence or permit entitling him or her to possess the firearms, the learned magistrate erred in law.
Particulars
(i)His Honour considered the allegation of that fact in the description of offence in the prosecution notice to be an averment under the Act, s 29(1);
(ii)The words relied upon in the prosecution notice did not identify the person who took the parcel.
Leave of the court is required for each ground of appeal. Leave to appeal must not be given on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding.[3]
[3] Criminal Appeals Act 2004 (WA), s 9.
I am not satisfied that either of the proposed grounds have any reasonable prospect of succeeding as the appellant has not demonstrated any error of law in the decision of the magistrate.
Leave should be refused on both proposed grounds and the appeal dismissed.

2.0 The magistrate's findings

The facts found by the magistrate are not in dispute and are straightforward.
The central factual issue found by the magistrate is that the offence occurred when the appellant, a licensed firearms dealer and a retailer of a gun shop, handed two firearms wrapped as one article in brown paper to a person employed in a post office to post to a customer of the appellant in another part of the State who held a licence to possess the two firearms.

2.1 Relevant provisions of the Firearms Act 1973 (WA)

Section 19(1) and s 19(1aa) provide:
(1)Any person who ‑
(a)sells, delivers or disposes of; or
(b)purchases or otherwise comes into possession of; or
(c)is in possession of,
any firearm or ammunition and is not the holder of a licence or permit under this Act entitling him to do so commits a crime unless subsection (1ae) or section 19AA provides otherwise or section 8 applies.
(1aa)A person who is guilty of a crime under subsection (1) committed in circumstances referred to in subsection (1)(a) is liable, on conviction, to imprisonment for 14 years if at the time of the offence the person was selling 3 or more firearms without a licence or permit entitling the person to sell any of them.
Section 19(2)(a) of the Act provides:
(2)A person who ‑
(a)sells, delivers, or disposes of a firearm or ammunition to another person, or otherwise permits another person to take possession of a firearm or ammunition; or
(b)purchases, or otherwise comes into, possession of a firearm or ammunition from another person; or
(c)permits another person to be in possession of a firearm or ammunition,
commits an offence if the other person is not the holder of a licence or permit under this Act entitling him to possession of it unless it is a disposal of ammunition under section 30(2) or section 8 applies.
Penalty:
(a)if the firearm concerned was a handgun or a prescribed firearm, imprisonment for 5 years;
(b)in any other case, imprisonment for 3 years or a fine of $12 000.
Section 8 of the Act provides for a lengthy list of persons and the circumstances under which those persons are exempted by the requirement to hold a licence under the Act. The list includes (among others) a person who is the holder of a permit issued under the Act;[4] a member of the police force who has a firearm or ammunition in his or her possession for (among other purposes) use in the performance of his or her duties;[5] or an employee of an organisation that holds a Corporate licence (as defined).[6]
[4] Firearms Act 1973 (WA), s 8(1)(a).
[5] Firearms Act 1973 (WA), s 8(1)(d).
[6] Firearms Act 1973 (WA), s 8(1)(f).
Section 8(1)(g) of the Act also provides that no licence under the Act is required:
(g)by a person who is an approved commercial carrier or approved warehouseman, or by the servant of any such person, who in the ordinary course of his trade or business as an approved commercial carrier or approved warehouseman ‑
(i)carries, and not by means of a bicycle or motor cycle, unless otherwise approved; or
(ii)stores,
a firearm or ammunition for another person. (my emphasis)
The word 'post' only appears in one provision of the Act. The word 'mail' is not used in the Act.
Section 30A(3) of the Act contemplates that a person may send a firearm by post to a destination outside of the State, subject to certain conditions. Section 30A(3) provides:
(3)A person who sends a firearm by post to a destination that is outside the State ‑
(a)is required to address the firearm to premises at which the business of a dealer may lawfully be carried on; and
(b)is not to send ammunition in the package containing the firearm.
Penalty: $2 000.
The exemption in s 30(2) of the Act deals only with sales of ammunition and is not relevantly engaged in this matter in respect of the facts found.
Section 29 of the Act contains averment provisions. Section 29(1)(a) of the Act relevantly provides that in a prosecution for an offence under the Act an averment in the prosecution notice:
(a)that a person is, or at a particular time was or was not, the holder of a particular licence or permit, or a particular Extract of Licence, under this Act …
is evidence of the matter averred.

2.2 The elements of the offence found by the magistrate

His Honour found the prosecution must prove beyond reasonable doubt three elements of the offence before he could find the appellant guilty of the offence charged. These were that:[7]
(a)the appellant 'delivered' the firearms (particularised in the charge to an agent of the post office at the specified place);
(b)the person to whom the firearms were 'delivered' was not the holder of a licence or permit pursuant to the Act entitling them to possession (of firearms); and
(c)the person to whom the firearms were 'delivered' was not a person to whom s 8 or s 30(2) of the Act applied.

2.3 The facts found by the magistrate

[7] ts 63, 20 September 2018.

The appellant was charged with the offence after he reported to the police, on 11 August 2017, that two firearms (the subject of the charge) had been stolen. He informed the police that he had sent the firearms to a customer at an address in Perth by Australia Post, but the firearms had not arrived at their destination.
The appellant was subsequently arrested on suspicion of permitting an unlicensed person to possess a firearm pursuant to the Act. The appellant readily participated in a video record of interview and cooperated with the police.
The following relevant facts were found by his Honour to not be in dispute:
(a)The appellant took the firearms to the post office around lunch time on 21 July 2017 wrapped in bubble wrap and brown paper with the intention of sending them to the customer in Perth (who had obtained a licence to possess the firearms).
(b)The article was weighed by the person who served the appellant at the post office and the appellant paid for the article to be delivered. The appellant did not inform the post office employee who served him that the article consisted of two firearms.
(c)A subsequent search by an Australia Post officer revealed that the tracking number for the article indicated that the article was lodged at the licensed post office in question at midday on 21 July 2017 and the firearms did not reach their destination.

2.4 The elements found to be proven

The magistrate found the first element of the offence to be proven beyond reasonable doubt. In particular, his Honour found that the appellant delivered the two firearms to an agent of Australia Post at the post office specified in the charge.[8]
[8] ts 67, 20 September 2018.
When considering whether the second element was proven, his Honour rejected an argument, put by counsel on behalf of the appellant, that because the person who took delivery is unknown, it would be impossible for the police to determine whether the person whose identity is unknown had a licence to possess the firearms.[9]
[9] ts 68, 20 September 2018.
His Honour also rejected an argument that the person at the post office who took delivery of the article could not, at law, have been said to have taken 'possession' of the item as the appellant did not tell the person what was inside the package.[10]
[10] ts 68, 20 September 2018.
His Honour found that the gravamen of the offence was the delivery of the firearms and that 'knowledge' (that the package contained firearms) had no application and that 'possession' in this context simply meant taking delivery of.[11]
[11] ts 68, 20 September 2018.
His Honour then went on to find that the second element was taken to be proved because of the effect of s 29(1)(a) of the Act. In particular, his Honour found that the allegation in the prosecution notice that the person to whom the firearms were delivered (by the appellant) was not the holder of a licence or permit to possess the firearms, was prima facie evidence (of the matter averred) unless there was evidence to the contrary; and there was no evidence (before the court) to the contrary.[12]
[12] ts 68, 20 September 2018.
The magistrate then relied upon s 29(1)(b) to find the third element of the offence to be proved and found that there was no evidence to the contrary, namely, that the person to whom the firearms were delivered was a person to whom the exemptions in s 8 or s 30(2) of the Act applied.[13]
[13] ts 69, 20 September 2018.
His Honour went on to observe that s 30A(3) (authorising the sending of a firearm by post to a dealer in another State) had no effect on the averment provisions in s 29 of the Act.[14]

3.0 Proposed ground 1 of the appeal - was 'permitting another person to take possession' an element of the offence?

[14] ts 69, 20 September 2018.

In proposed ground 1, the appellant alleges that the magistrate erred in law in finding the element of the offence, of 'delivery', had been proved to the requisite standard. The appellant also alleges his Honour erred in determining what the elements of the offence charged against the appellant were.
The appellant argues that the act of 'posting' or 'to post' cannot constitute 'delivery' under s 19(2)(a) of the Act.[15]
[15] Appellant's outline of submissions, filed 28 May 2019 [6]; ts 3 ‑ 4, 18 June 2019.
It is argued on behalf of the appellant that an element of the offence is that the offender permits the other person to take possession. It is said that the word 'delivers' in s 19(2)(a) takes its meaning from its context from the words 'sells, delivers or disposes of a firearm or ammunition to another person, or otherwise permits another person to take possession of a firearm or ammunition'. The word 'otherwise' is to be interpreted to have its ordinary meaning to mean 'in a different way'.[16]
[16] Appellant's outline of submissions, filed 28 May 2019 [2]; ts 3 ‑ 4, 18 June 2019.
It is also said to follow that 'sell, delivers or disposes of' are simply illustrative examples of how a person can permit possession to be taken by another person. In this context the act 'to post' is said to be to 'otherwise permit another person to take possession'. That other person being the addressee (who is permitted to take possession) is the person who takes the delivery (not the postal workers whose labour causes the delivery).
It is also argued that the closing words in s 19(2)(a) make it clear that possession is an element of the offence.[17]
[17] Appellant's outline of submissions, filed 28 May 2019 [4]; ts 3 ‑ 4, 18 June 2019.
It is pointed out that when regard is had to the decision of the Court of Appeal in The State of Western Australia v 'R', it is clear that a person does not have possession of something without knowing of its existence.[18]
[18] Appellant's outline of submissions, filed 28 May 2019 [5] citing The State of Western Australia v 'R' [2007] WASCA 42; (2007) 33 WAR 483 [11] - [12], [23] (Steytler P); see also the comments at [192] ‑ [195] (Wheeler JA) [227] - [228] (Pullin JA).
An argument is also put on behalf of the appellant that:
(a)the purpose of s 19(2)(a) is to catch an aider of a person who commits an offence under s 19(1) of being in possession of a firearm without a licence (or without being exempted from being required to hold a licence);[19] and
(b)it is not an offence to 'purchase' or 'sell' a firearm if the person who does so does not have a licence or permit entitling them to possession but who does not have, or take, possession, at any time of the firearm in question.[20]
[19] Appellant's outline of submissions, filed 28 May 2019 [3]; ts 3 ‑ 4, 18 June 2019.
[20] ts 10, 18 June 2019.
It is said to follow that the evidence before the magistrate did not permit a finding that the unknown postal worker who took the parcel from the appellant at the post office 'otherwise took possession' as the postal worker did not know of the contents of the parcel.
The general principles of statutory construction are well known. The Court of Appeal recently in Mohammadi v Bethune observed that:[21]
(a)the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute;
(b)the statutory text is the surest guide of Parliament's intention;
(c)the meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it seeks to remedy; and
(d)the statutory purpose may be inferred from the text and structure of the Act and where appropriate, reference to extrinsic materials.
[21] Mohammadi v Bethune [2018] WASCA 98 [31] ‑ [35] (Martin CJ, Mazza & Beech JJA).
The long title of the Act states that the Act 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, the repeal of the Firearm and Guns Act 1931 (WA), and for incidental and other purposes.
When regard is had to the long title of the Act and the provisions of the Act which deal extensively with the control and regulation of firearms, the context and purpose of s 19 of the Act is to prevent a person who does not have a licence or permit (or a person who is otherwise exempted from the requirement to have a licence or permit under the Act) from taking possession of a firearm or ammunition as that person is not entitled to do so.
I do not agree that no prohibition arises under the Act to prevent a person from purchasing or selling a firearm without a licence or permit (or who is otherwise authorised by the Act) who does not have actual possession of the firearm in question.
The general purpose of s 19(1) is to cast criminal responsibility on a person who sells, delivers, disposes of, purchases or otherwise comes into possession of, or is in possession of any firearm (or ammunition) and (the person charged) is not the holder of a licence or permit under the Act entitling the person (charged) to do so.
Consequently, if a person sells a firearm to another person (who does in fact have a licence or permit) but the person who delivers it does not have a licence or permit, the person commits an offence. This construction is confirmed by s 19(1aa) which expressly provides for a more serious penalty in circumstances where a person sells three or more firearms without a licence or permit entitling the person to sell any of them.
A licence which entitles a person to possess a firearm pursuant to s 16(1)(a) of the Act entitles a person to control the firearm.[22] To control a firearm must necessarily include the authority to sell or deliver or dispose of a firearm (providing the act of selling or delivery complies with the requirements of the Act).
[22] Definition of 'possession': Firearms Act 1973 (WA), s 4.
If 'deliver' is to be confined in its meaning in the manner contended by the appellant, the consequence would be that it would not constitute an offence under s 19(1) of the Act for a person to 'deliver' a firearm to another person by posting a firearm, either by handing the firearm to a postal employee or by placing it in an Australia Post post box, irrespective of whether the person who is delivering the firearm were themselves a holder of a licence or permit under the Act (or is otherwise authorised by the Act) and irrespective of whether Australia Post has been approved as a commercial carrier of firearms pursuant to s 8(1)(g) of the Act.
Consequently, the gravamen of s 19(1) is focused on ensuring that a person who carries out the acts specified in s 19(1) holds a licence or permit under the Act.
I do not agree that the word 'deliver' in s 19(2)(a) should be limited by the other acts of conduct which are prohibited in s 19(2)(a) of the Act. It is clear that the words in s 19(2)(a) create separate elements of the offence by specifying separate particulars in four circumstances as to how an offence under s 19(2)(a) can arise.

A charge under s 19(2)(a) will be made out if the prosecution proves one of the following particulars and necessary elements, namely that the person charged:
(a)sells a firearm (or ammunition) to another person;
(b)delivers a firearm (or ammunition) to another person;
(c)disposes of a firearm (or ammunition) to another person; or
(d)otherwise permits another person to take possession of a firearm (or ammunition).
In each case, where any of the particulars (as charged) are proven beyond reasonable doubt an offence is only committed under s 19(2)(a) if the other person (not being the person charged) is 'not the holder of a licence or permit' under the Act entitling them (the other person) to possession of the firearm or ammunition; as provided for in the proviso to s 19(2)(a).
The status of the other person is emphasised in the proviso to s 19(2)(a). It must be proven that the other person is not a holder of a licence or permit, or falls under any other exemption under the Act. However, the conduct attracting criminal responsibility is on the person charged, who is the person who does the act, specified as either to sell, deliver, dispose of or otherwise permit another person to take possession.
The word 'deliver' in s 19(2)(a) must be construed in the context of the whole Act, including s 8(1)(g) and s 30A and by having regard to one of the principal purposes and objects of the Act which is to ensure the control and regulation of firearms is to restrict possession of a firearm or ammunition unless the person to whom delivery is made has a licence or permit or is otherwise exempted from the provisions of the Act.
In this context, to 'deliver' in s 19(2)(a) should be construed to apply in circumstances where a person relinquishes possession of a firearm by giving the firearm to another person (the second person) in circumstances where the firearm is to be on-delivered to a third person by a commercial carrier. The second person to whom the firearm is delivered must necessarily be the holder of a licence or a permit under the Act or otherwise be authorised to take possession of the firearm. Where that person is a carrier of post, and that person is employed by an approved commercial carrier no offence is committed by delivery to that person by operation of the exemption in s 8(1)(g).
When s 19(2)(a) is read with s 8 of the Act, in particular s 8(1)(g), the precise scenario in this case (where a firearm is provided (delivered) to a person for delivery to another) is contemplated. Section 19(2)(a), when read with s 8(1)(g), provides an exemption in that an offence is not committed if s 8(1)(g) applies.
Section 8(1)(g) relevantly provides that a person who is an approved commercial carrier, or by the servant of such a person, who in the ordinary course of his trade or business as an 'approved' commercial carrier carries a firearm for another person, is not required to hold a licence under the Act. 'Approved' means approved by the Commissioner of Police either generally by notice in the Gazette or specifically by notice in writing.[23]
[23] Firearms Act 1973 (WA) s 8(2).
As the respondent points out, as a result of this, s 19(2)(a) contemplates that 'delivery' of a firearm to another person may be made through an intermediary, but only excludes delivery or disposal to an intermediary from the offence provision if the intermediary is an 'approved commercial carrier' under s 8(1)(g). If the appellant had delivered the firearms to an approved commercial carrier for delivery to his customer s 19(2)(a) would not have been contravened.[24]
[24] Respondent's outline of submissions, filed 4 June 2019 [20].
It is argued on behalf of the appellant that the words 'commercial carrier' can only be construed to refer to private carriers who are in the business of carrying goods for commercial gain and not Australia Post which is a statutory corporation.[25]
[25] Appellant's outline of submissions, filed 28 May 2019 [13], ts 16 – 17, 18 June 2019.
I do not agree. Whilst Australia Post is a statutory corporation, the provisions of the Australian Postal Corporation Act 1989 (Cth) require Australia Post to provide services for profit to enable dividends to be paid to the Commonwealth.[26] Australia Post is established to carry out a number of regulatory functions that include general governmental obligations and community‑sense obligations.[27] It also has commercial obligations,[28] whereby Australia Post is required, so far as practicable, to perform its function in a manner consistent with commercial practice.[29] The Board of Australia Post is required to, among other functions, ensure that Australia Post performs its functions in a manner that is proper, efficient and, as far as practicable, consistent with sound commercial practice.[30]
[26] Australian Postal Corporation Act1989 (Cth), s 54.
[27] Australian Postal Corporation Act 1989 (Cth), s 25, s 26.
[28] Australian Postal Corporation Act 1989 (Cth), s 25, s 26.
[29] Australian Postal Corporation Act (Cth), s 26.
[30] Australian Postal Corporation Act (Cth), s 23.
Section 38 of the Australian Postal Corporation Act, in particular, provides:
In preparing or revising a financial target for inclusion in a corporate plan for Australia Post under section 35 of the Public Governance, Performance and Accountability Act 2013, the Board shall have regard to:
(a)the need to earn a reasonable rate of return on Australia Post's assets; and
(b)the need to maintain the extent of the Commonwealth's equity in Australia Post; and
(c)the expectation of the Commonwealth that Australia Post will pay a reasonable dividend; and
(d)the need to maintain Australia Post's financial viability; and
(e)the need to maintain a reasonable level of reserves, especially to make provision for:
(i)any estimated future demand for postal services; and
(ii)any need to improve the accessibility of, and performance standards for, the letter service; and
(f)any other commercial matters the Board considers appropriate; and
(g)the cost of carrying out Australia Post's community service obligations; and
(h)the cost of performing Australia Post's functions in a manner consistent with any government policy orders that apply in relation to Australia Post under section 22 of the Public Governance, Performance and Accountability Act 2013; and
(j)the cost of implementing any directions given by the Minister under section 49; and
(k)the cost of any other obligations of Australia Post under this or any other Act that require it to act otherwise than in accordance with normal commercial practice.
It is noted that on 17 August 2018 (after the trial of the charge but before the appellant was convicted) Australia Post was approved as a commercial carrier by the Commissioner of Police following an application to that effect.[31] If the appellant had delivered the two firearms in question to the post office agent of the registered post office specified in the charge after 17 August 2018, no offence would have been committed. These facts are, however, not relevant as it remains an offence to deliver a firearm to a commercial carrier if the commercial carrier is not approved to carry firearms or ammunition for a person by the Commissioner of Police.
[31] Parliamentary Debates, Legislative Council, 29 November 2018, 8910-8911.
The appellant was charged with delivery of the two firearms to a person who was not the holder of a licence or permit. The appellant was not charged with permitting another person to take possession of a firearm contrary to s 19(2)(a) of the Act. As his Honour properly found, it was not necessary to find as an element of the offence that the agent of the post office was in possession of the firearm.
All that was necessary to prove was that the post office agent was not entitled (by a licence or permit or otherwise authorised by an exemption) under the Act to have possession.
As his Honour properly and importantly found, it was the delivery of the firearms to a person who was not authorised by the Act to possession that is the gravamen of the offence. It is not the possession per se, but the lack of entitlement to possession.
Section 30A of the Act does not assist the appellant's case. Even if the appellant intended to post the package containing the firearms to a business of a dealer in another State, s 30A(3) would not authorise the appellant to do so by delivering the package to a person employed in an Australia Post post office without Australia Post being approved as a commercial carrier pursuant to s 8(1)(h) of the Act.
For these reasons, when s 19(2)(a) of the Act is properly construed it prohibits the delivery of firearms to an agent of a post office (the second person) for the purpose of sending firearms on to a third person (who is the holder of a licence) in the absence of an approval under s 8(1)(g). This is so irrespective of whether the second person receiving the firearms knowingly receives possession.
As such, the magistrate did not err in law. Accordingly, I am not satisfied that ground 1 has any reasonable prospects of success.

4.0 Proposed ground 2 - did the prosecution notice contain averments of the second and third elements of the offence?

The appellant argues that there are no averments pleaded in the prosecution notice and that it is not open to the prosecution to rely upon an averment when the identity of the person referred to in the averment is unknown.
The ordinary legal meaning of the word 'averment' is a positive allegation of fact or law contained in a charging document such as a prosecution notice or an indictment.[32]
[32] Kerney v Lewis (2005) 191 FLR 54 [43], [47] (Gray J); Brady v Thornton [1947] HCA 29; (1947) 75 CLR 140, 145 (Latham CJ).
The effect of invoking an averment provision is to reverse the burden of proof. Consequently, averments must be drawn with precision.[33]
[33] Jambajimba v Svikart (1984) 71 FLR 287, 292 (Muirhead J); Charlton v Rogers; Ex parte Charlton (1985) 82 FLR 40, 41 (Derrington J); Kuyer v Small [2012] WASC 442 [14] (Beech J).
The appellant argues that, to aver a statement of fact or law in a prosecution notice, the prosecutor is explicitly required to use wording to the effect of 'the prosecution avers (the statement of law or fact)'.
An averment in a prosecution notice need not use any particular form of words. In particular, it is not necessary to specifically use the word 'aver'.[34]
[34] Brady v Thornton [1947] HCA 29; (1947) 75 CLR 140.
Although Muirhead J in Jambajimba v Svikart, when explaining how an averment is to be set out in a prosecution notice or an indictment, used the word 'aver' in the examples his Honour referred to, his Honour explained:[35]
'Averment' is defined in the Concise Oxford Dictionary (sixth ed) as 'positive statement, affirmation'. To aver is to 'assert' or 'affirm'. In arguing the case for the Commonwealth in R v Hush, Ex Parte Devaney (1932) 48 CLR 487, Mr Windeyer KC, as he then was, presented argument on the nature of an averment. He is reported to have said:
'The averments are, for the most part equivalent to particulars. "Aver" means "allege" in the wider sense, that is as including a statement of collateral relevant facts upon which the legal position depends … ; the intention of the legislature being to throw the onus of proof upon the defendant.'
There are useful discussions on this topic to be found in an article by William Paul, 'The "Averment of the Prosecutor" in Criminal Charges' 14 ALJ 4 and 'Averments' by Kevin Anderson, 19 ALJ 102.
In Brady v Thornton (1947) 75 CLR 140 at 145 Latham CJ observed in reference to Commonwealth legislation:
'Section 243 deals with averments not only in criminal proceedings, but in proceedings generally under the Act. The words of s 243(1) relate to averments contained in an information, complaint, declaration or claim. Accordingly it is difficult, and it would be wrong, to apply a conception of averment derived exclusively from either criminal or civil proceedings in the courts. "Averment" must here be understood as meaning allegation contained in the information, complaint, declaration or claim as the case may be.'
See also James v Treloar (1922) SASR 536.
Whilst some authorities suggest a broad classification of what is or is not an averment, the cases on the subject, which mainly deal with the extent to which averments go in proof, refer in the main to initiating proceedings where the averments are specifically set out, for example, R v Hush; Ex parte Devaney (supra). And as is so often the case it is necessary to examine the section in question. It provides the prosecutor's 'averment in a complaint … is evidence'. This is distinguishable, in my view, from a provision, for example, that an allegation in a complaint shall be prima facie evidence of a fact alleged. The word averment has special work to do. The section goes further than providing that the certificate of an authorised person shall be prima facie proof, as we find in other forms of legislation designed to control drugs and road behaviour (see, ss 62 and 62A of the Evidence Act; s 84 Poisons and Dangerous Drugs Act; ss 8J and 56A(3)(b) Traffic Act). To the best of my knowledge averment is a word not often found in contemporary Territory legislation and I consider it has an important function in the scheme of the Liquor Act. I am of opinion therefore that the legislation contemplates and requires that averments shall be specific averments, and shall not be so regarded by the inevitable inclusion of the word 'liquor' in complaints laid under the Act. So to hold has obvious practical advantages as the accused has notice that the prosecution intends to rely on s 124A. No particular form of words should be required but an averment in the following style should be sufficient both as to proof and as providing adequate particulars for the defendant: 'And the complainant avers that liquid in a bottle marked "Hardy's Moselle" in the defendant's possession was liquor within the meaning of the Liquor Act' or perhaps in the case of a large consignment …
[35] Jambajimba v Svikart (1984) 71 FLR 287, 291 - 292.
Consequently, Muirhead J found in Jambajimba v Svikart that for the purposes of s 124A of the Liquor Act1978 (NT), which provided that 'In any proceedings for an offence against this Act or the regulations an averment by the prosecutor in a complaint or information that … a specified liquid is or is not liquor, or is or is not a type of liquor, is evidence of the facts averred', a statement in the information that the defendant did have liquor contrary to s 75(1)(b) of the Liquor Act was not an averment.
The effect of s 29(1)(a) of the Act reverses the onus of proof of a positive allegation in a prosecution notice that a person, or at a particular time was or was not the holder of a particular licence or permit.
When s 29(1)(a) is applied in this matter, the burden of proof in respect of whether the agent of Australia Post at the post office specified was not the holder of a licence or permit, pursuant to the Act, entitling them to possess the firearms was on the appellant. In the absence of evidence to the contrary, his Honour properly found that this element of the offence was proven beyond reasonable doubt.
As to the second issue raised in proposed ground 2 of the appeal, as the respondent points out when identifying a person other than the accused in a prosecution notice, pursuant to cl 6(2)(a) of sch 1 of the Criminal Procedure Act 2004 (WA), it is sufficient to refer to a person by any means that adequately identifies the person.
Therefore, the description of 'an agent of Australia Post at the place specified' was sufficient to provide the appellant with adequate particulars of the identity of the person to whom the averment applied, being the person who received the parcel containing the firearms from the appellant on 21 July 2017.
In these circumstances, the magistrate was correct to rely upon the averment provision in s 29(1)(a) to hold that the person to whom the firearms were delivered was not the holder of a licence or permit authorising the person to possess the firearms.
As a result, ground 2 of the appeal has no prospects of success.

Conclusion

The answer to the question posed in heading 3.0 is no, and the answer to the question posed in heading 4.0 is yes.
Leave to appeal will be refused and the appeal will be dismissed. I will hear the parties as to the orders that should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
5 JULY 2019