Franks v. Browne
[2007] QDC 373
•28 September 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Franks v Browne [2007] QDC 373
PARTIES:
RICHARD FRANKS
(Appellant)
AND
PAUL JAMES BROWNE
(Respondent)
FILE NO/S:
D3545/06
DIVISION:
Criminal Appeal
PROCEEDING:
Appeal S 222 Justice Act 1886
ORIGINATING COURT:
Southport Magistrates Court
DELIVERED ON:
28 September 2007
DELIVERED AT:
Brisbane
HEARING DATE:
17 September 2007
JUDGE:
Searles DCJ
ORDER:
ORDER
1. APPEAL DISMISSED
2. APPELLANT TO PAY THE RESPONDENT’S COSTS IN THE SUM OF $1200.
COUNSEL:
Appellant – B.W. Farr
Respondent – Hugerford-Symes
The appellant appeals against his conviction on 9 November 2006 in the Magistrates court Southport of the following offence:
“That on the 22nd day of March 2005 at Deagon in the Sandgate Division of the Brisbane Magistrates Court District in the State of Queensland one Richard Franks a licensee under the provisions of the Weapons Act 1990 did contravene a condition of his licence, namely all weapons stored at the premises must be stored in a locked room at the premises that is guarded by a licensed armed security guard 24 hours a day.”
He was found guilty after a trial and fined $500 with no conviction recorded.
The circumstances of the offence were these. At 12.10 pm on Tuesday 22 March 2005 Detective Senior Constable Paul Browne and Senior Constable Andrew Ayres from the Boondall police station called at the appellant’s premises at 166 Braun Street, Deagon, for the purposes of executing a search warrant as a part of a weapons audit of various premises being undertaken by the Boondall police.
Upon arrival at the premises Detective Browne spoke with the appellant’s son, Justin Franks, at the front counter of the premises. Shortly thereafter, the appellant rode up to the premises on a motorcycle. Initially the appellant denied that he was the person on the motorcycle. At trial he admitted that he was that person. That was not an issue in this appeal.
At the relevant time the appellant was the holder of a certificate issued by the weapons licensing branch pursuant to s 163(1)(d)(iii) of the Weapons Act 1990 which certificate was subject to the following terms and conditions:
“999 This licence authorises the licensee to possess a registered weapon, the category of which is endorsed on his licence for the purpose of storing weapons only. This licence does not authorise the licensee to conduct any other business at the premises specified hereunder. The weapons register is to remain at all times at he premises specified unless the prior written consent is obtained from an Authorised Officer. All weapons stored at the premises must be stored in a locked room at the premises that is guarded by a licensed armed security guard 24 hours a day. The trading name of the business is Richard Franks. The specified premises are located at 166 Braun Street, Deagon, Qld (my emphasis).:
There was no issue on the fact that there were weapons on the premises on the day in question, and that they were legitimately held by the appellant as a part of his business.
Much of the evidence at the trial related to matters relevant to two other charges heard at the same time but which the appellant successfully defended. The conviction the subject of this appeal was founded on the learned Magistrate’s finding that the appellant was the licensed armed security guard on the day in question, that he was not on the subject premises when the police arrived and accordingly was not at the premises 24 hours a day as was required by the above certificate. As I have said, the defendant conceded that he was the person who rode up to the premises on the motorcycle after the police were already on the premises.
Despite the detailed written submissions from both parties, the appeal came down to the issue of whether or not there was sufficient evidence to enable the learned Magistrate to be satisfied beyond a reasonable doubt that the subject premises had not been guarded by a licensed armed security guard 24 hours a day.
The appellant argued that the prosecution had failed to prove to the requisite standard that there was no other licensed armed security guard on the premises on the day in question at the time when the appellant was away from the premises on his motorcycle. Mr Farr for the appellant referred me to the following evidence from Detective Browne:[1]
[1]Transcript p 16.
“SGT MATERN: All right. And can you comment whether you spoke to other persons there at the time was there anyone else acting as a security guard or anyone else had licences there-----?--I didn’t speak ---
-----through your enquiries?--I didn’t speak to other persons personally …
Mm-hmm?--But I – at my direction – or in consultation with me, other police officers spoke to the other persons that were present …
Mm’hmm?-----And I’m not aware of any other person that was acting in that capacity of security guard.
Okay?--There were no other armed persons there.”
Mr Farr says that the above evidence is not evidence sufficient to establish the fact that there was no other person acting in the capacity of a security guard at the time in question because he, Browne, did not satisfy himself on that issue. Rather he relied on the fact that other police officers with him had spoken to the other persons present in the building. Because Browne had not done so himself, he was not in a position to give evidence other than hearsay evidence that there were no other armed persons and suitably licensed there acting in the capacity of a security guard.
Mr Hungerford‑Symes for the respondent relied upon the following evidence of a conversation between Detective Browne and the appellant. It is important to set out this conversation in some detail but it should be borne in mind that the police inquiries on the day extended beyond the subject charge to other ones irrelevant to this appeal. At p 9 of the taped interview the following discourse takes place:
“DEF:I want to assist you in your inquiries.
BROWNE:What other measures do you have in place in relation to security of those firearms.
DEF:Well we’re in the process of building a new vault for them.
BROWNE:What about now, what about right now, what’s to stop someone from coming in here and taking one of those firearms and ammunition and leaving.
DEF:Me.
BROWNE:What’s that.
DEF:Well, we’ve got staff here that are licensed and everything else on the premises.
BROWNE:Okay what about after hours.
DEF:I’m here.
BROWNE:You’re here.
DEF:I’ve got a mattress in there, I bring out here, I sit here, watch DVDs all night.
BROWNE:So you’re here for hours.
DEF:Ah there’s been several police officers come here after hours can verify that from Sandgate.
BROWNE:Well, that’s what I’m asking you about.
DEF:Sandgate police drop in, say hello, toot their horn out the front, I go out, say hello how are you. They check all that, not a problem, they do that regularly. Group 4 security come in, they always toot the horn. I go and see them and no worries.
BROWNE:When you’re not here?
DEF:I’ve had several other people come in to take over that.
BROWNE:Who’s done that role?
DEF:Peter Little, a couple of guards off‑duty from Armaguard people like that.
BROWNE:Who?
DEF:I can’t think of all their names but I can find out for you.
BROWNE:Okay. Is there a register, of those security people?
DEF:No.
BROWNE:So if I was to say who was here on Saturday night, last week, last weekend.
DEF:Me.
BROWNE:What about other nights when you weren’t here, though, you, you’ve got no register is what I (sic) getting at.
DEF:No.
BROWNE:You couldn’t tell me who was here on what day?
DEF:No.
BROWNE:Who’s here today in that position.
DEF:Me.
BROWNE:And how are you identifiable as being in control or.
DEF:There’s my security guard licence.”
The respondent conceded it was open to the learned Magistrate to find, in interpreting the appellant’s security licence (guard), that the appellant was authorised by virtue of his licence to be the security guard on the day of the police visit. So, as I have said the only issue is whether, on the day in question, there was such a licensed armed security guard on duty 24 hours a day. At the time of the above interview, the appellant was armed.
I consider that Mr Farr’s submission in relation to the evidence of Mr Browne on p 16 of the transcript outlined above is correct, and that that evidence, on its own, would not have established to the requisite standard that there was no other person on the premises in the capacity of a licensed armed security guard for the period that the appellant was absent.
However, there is further relevant evidence and that is the evidence of the taped conversation between Detective Browne and the appellant as outlined above. To my mind, when that is read with the admission by the appellant that he was the owner of the motorcycle, that is sufficient to establish beyond a reasonable doubt that, on the appellant’s own admission, he was the requisite licensed armed security guard on duty for the 24 hour period during which the police visited the premises and that he was not there continuously during that 24 hour period. When one carefully reads the transcript of that conversation, it is clear that Detective Browne is concerned about the issue of the proper storage of the firearms legitimately on the premises and the security measures in place to protect them from falling into the wrong hands. True it is that the early part of that conversation speaks of the manner in which they were stored and the defendant makes reference to the fact that he was in the process of building a new vault to store them.
Detective Browne then focused on the immediate storage arrangements and asked the pertinent question of the appellant, namely what was to stop someone from coming in and taking one of the firearms and some ammunition and leaving. From there the conversation moved to the topic of the after hours security of the weapons and the appellant, in addressing that issue, told Detective Browne that he lived on the premises after hours and that the Sandgate police regularly visited the premises to check with him that there was no problem.
The appellant then said that when he was not on the premises he had other people fulfil the role of licensed armed security guard and he identified one Peter Little and referred to a couple of Armaguard off-duty guards whose names he could not recall. He conceded that he did not have a register of those people but said he could find out their names.
Against that background, Detective Browne then asked the appellant who was the relevant person in that position that day, the day of the police visit. The appellant replied “me”. Detective Browne then asked him how he would be identifiable as being in control, and the appellant replied – “There’s my security guard licence.”
To my mind the answer given to Detective Browne by the appellant to the effect that he was the then licensed armed security guard of the premises is not equivocal. It is a clear statement he, being an appropriately licensed person, was the person responsible for the guarding of the premises on the subject day.
There was no mention by the appellant of any other persons performing parallel duties on the premises that day. Further, the unequivocal answer given by the appellant to Detective Browne to the effect that he was the person on duty that day was made at a time before the concession was made at trial that the appellant was the person who rode in on the motorcycle after the police had arrived at the premises. The appellant’s answer that he was the person on duty that day must be read with the next following transcript and on the bases that he was, at that stage, denying he was the rider of the motorcycle. At an earlier part of transcript of the taped conversation between the appellant and Detective Browne[2] the following appears involving the appellant, Detective Browne and another police officer Ayres:
“Asked by Ayres if he was the rider of the motorcycle then entered the yard – says no.”
[2]P 1 Exhibit 7.
Further,[3] this exchange takes place:
[3]P 2 Exhibit 7.
“BROWNE:Well that’s what I want to ask you, who rode in on the bike.
DEF:Totally dispute your questions. I’ll get Michael Bosscher my lawyer here and we’ll deal with that.
AYRES:Who is that Harley Davison out there registered to?
DEF:They’re both registered to me.
AYRES:Okay, well who was riding it earlier?
DEF:Well that’s something that we’ll get Michael. We’ll get Michael Bosscher here.
AYRES:You can decline to answer my questions.
DEF:I’m not declining, I’m entitled to have a lawyer present which you have pointed out.
AYRES:All right. Well I’ll you that question when your lawyer gets here.”
None of this evidence was disputed by the appellant and indeed, as I have said, at the trial he admitted that he was the person who rode in on the motorcycle.
In my view from all the above conversations between the appellant and the police officers Browne and Ayres, there was an adequate evidentiary basis to the requisite standard to support the learned Magistrate proceeding on the basis that the appellant, on the day, held himself out as the armed licensed security guard on duty and his finding that the subject premises has not been guarded by a licensed armed security guard 24 hours on that day given the absence of the appellant from the premises in the period leading up to his arrival at the premises on his motorcycle. The irresistible inference from the above exchanges with Browne and Ayres is that the appellant was the requisite licensed armed security guard responsible for the 24 hour security of the premises at the relevant time and no other person.
As to any other competing hypothesis in favour of the appellant open on the facts, Mr Farr submits that the inference is open that one of the other persons on the premises at the time interviewed by the police other than Detective Brown, may well have been a licensed armed security guard and on duty that day as well as the appellant. In my view any such inference has been negatived by the above evidence of the conversations between the police and the appellant. The appellant had every opportunity during the police interview to provide evidence in support of such a hypothesis but did not do so. Whilst there was no obligation on him to do so, in my view the events have overtaken any opportunity for the appellant to rely upon such a hypothesis. The events I refer to are the conversations with the police and the admission at trial that he was the rider of the motorcycle which pulled up at the premises subsequent to the police arriving.
To my mind there was sufficient evidence to found the learned Magistrate’s finding that the appellant as the relevant licensed armed security guard on duty at the time was absent from the premises for a period of time during the 24 hours including the time of the police visit in breach of that condition in his licence. It follows that the conviction must stand.
I order:
(a) That the appeal be dismissed.
(b) That the appellant pay the respondent costs in the sum of $1200.
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