Gough v Rankin
[2014] WASC 148
•30 APRIL 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GOUGH -v- RANKIN [2014] WASC 148
CORAM: LE MIERE J
HEARD: 16 OCTOBER 2013
DELIVERED : 30 APRIL 2014
FILE NO/S: SJA 1073 of 2013
BETWEEN: GUY BRYAN GOUGH
Appellant
AND
JAMES PATTERSON RANKIN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE L J ATKINS
File No :MM 4 of 2013
Catchwords:
Appeal - Firearms Act 1973 (WA), s 23(9)(a) - Appellant had control otherwise than by way of storage - No failure to take reasonable precautions - Miscarriage of justice occurred
Legislation:
Firearms Act 1973 (WA), s 23(9)(a)
Result:
Leave to appeal granted
Appeal allowed
Conviction set aside
Verdict of acquittal substituted
Category: B
Representation:
Counsel:
Appellant: Mr P J Marsh
Respondent: Mr J F Bennett
Solicitors:
Appellant: HFM Legal
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Western Australian Planning Commission v Mount Lawley Pty Ltd [2004] WASCA 149
LE MIERE J: On 25 December 2012 the appellant was driving north on Great Northern Highway. At about 9.00 pm his vehicle broke down about 65 km south of Mount Magnet when a tyre blew. He had three licensed firearms and ammunition in the vehicle. The appellant waited for several hours for someone to come along. At about 12.30 am or 1.00 am a truck driver came past. The truck driver gave the appellant a lift to Mount Magnet but did not allow the appellant to take the firearms with him. In the early hours of the morning another truck driven by Mr Napier stopped at the broken down car. Mr Napier observed personal effects scattered around the vehicle and the three firearms in the front of the car and an amount of loose ammunition. One of the firearms appeared to have been interfered with. The appellant was charged with the offence that whilst in control of firearms and ammunition he failed to take all reasonable precautions to ensure their safekeeping contrary to s 23(9)(a) of the Firearms Act 1973 (WA). After a trial in the Magistrates Court the appellant was convicted of the offence. The appellant now applies for leave to appeal against the conviction.
Magistrate's reasons
The magistrate's findings were as follows. The issues are whether the appellant was in control of the firearms and whether he took all reasonable precautions to ensure their safekeeping. The appellant was in control of the firearms when the vehicle broke down. The appellant removed the bolts from the two rifles and left the rifles and shotgun together with a quantity of ammunition covered on the front seat of the car. The appellant climbed out of the car window because it could not be opened from the inside and left the window down. The appellant had control of the firearms and ammunition from the time his car broke down until another truck driver, Mr Napier, who was driving south along Great Northern Highway stopped at the appellant's broken down car. Mr Napier removed the firearms and took them in his truck. Mr Napier delivered the firearms to police. The appellant left the firearms on the front seat of an unsecured vehicle and had done nothing whatsoever in relation to the firearms. The appellant failed to take reasonable precautions. The window was down on the vehicle and the car was unsecured. The appellant did nothing to advise anybody of what was going on. The appellant failed to take all reasonable precautions as required by Firearms Act 1973 s 23(9)(a).
Ground of appeal
The grounds of appeal were amended at the hearing of the appeal. There is a single ground of appeal:
The Magistrate erred in law and a miscarriage of justice occurred when the Magistrate convicted the Appellant of an offence against s 23(9)(a) of the Firearms Act 1972 (WA) when in relation to the time the Appellant was in control of the firearms the Magistrate:
(a)made no finding that the Appellant's control of the firearms 'was otherwise than by way of storage';
(b)made no finding identifying a reasonable precaution;
(c)made no finding that that precaution, if taken, would ensure the safe keeping of the firearms;
(d)made no finding the Appellant failed to take that precaution
with the result that the findings of fact by the magistrate did not provide a lawful basis for the conviction, each one of those facts being necessary elements of the offence.
Appellant had control otherwise than by way of storage
The appellant says that the magistrate erred in that she made no finding that the appellant's control of the firearms was otherwise than by way of storage. It is an element of the offence that the appellant had control of the firearms otherwise than by way of storage. The magistrate found that the appellant was:
'in control of the firearms whilst driving up from Perth, when the tyre blew, when [the appellant] removed the bolts from the two firearms, when he left the firearm and ammunition covered on the front seat of the car, when [he] climbed out of the car window leaving the window down.
The magistrate went on to find, in effect, that the appellant remained in control of the firearms until Mr Napier came on the scene. The magistrate made no finding that the appellant was in control of the firearms 'otherwise than by way of storage'.
Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter: Western Australian Planning Commission v Mount Lawley Pty Ltd [2004] WASCA 149 [29].
The evidence before the magistrate was sufficient to determine this issue. In his record of interview the appellant stated that he was traveling up from Perth, where he had gone to visit his children for Christmas, and was driving back to Mount Magnet where he lived. The firearms were in the car. The only finding open is that the appellant had control of the firearms otherwise than by way of storage.
Particulars of and findings of failure to take reasonable precautions
At the commencement of the trial the appellant's counsel requested particulars of the precautions to ensure the safety of the firearms that the prosecution alleged the appellant had failed to take. The prosecution gave two particulars:
(1)the appellant left the firearms and ammunition in an unsecured vehicle; and
(2)the appellant failed to take any action to advise authorities of the firearms and ammunition left in the unsecured vehicle.
The magistrate's findings were:
[The appellant] failed to take the reasonable precautions at the time that [he was] in control of … those firearms ‑ at the time [he] left those firearms and walked away, at the time [he was] still in control of the … firearms.
The window was down on [his] vehicle, [his] car was insecure, [he] did nothing to advise anybody of what was going on. In doing that I am satisfied beyond reasonable doubt [the appellant] failed to take all reasonable precautions as required by the section.
In effect, the magistrate found that the appellant failed to take all reasonable precautions to ensure the firearms' safekeeping in that:
(1)he left the firearms in a vehicle that was not secure; and
(2)he did not advise authorities of the firearms and ammunition left in the unsecured vehicle.
Leaving firearms in unsecured vehicle
Adequate reasons required the magistrate to identify the reasonable precautions to ensure the safety of the firearms and ammunitions that the appellant failed to take. The first finding ‑ that the appellant left the firearms in an unsecured vehicle ‑ fails to identify any reasonable precaution that the appellant should have taken. In some circumstances it might be a sufficient finding to find that the firearms were left in an unsecured car. However, that is an inadequate finding in the circumstances of this case for a number of reasons. First, the car could not be secured. It could not be locked and there is no evidence, or even any suggestion, of how the car may otherwise have been secured. Secondly, there is no evidence that the appellant could have put the firearms somewhere other than leaving them in the car. The car broke down at a remote place. The appellant waited by the vehicle before a truck driver came by about three hours later. The truck driver would not allow the appellant to take the firearms in the truck with him when the truck driver gave the appellant a lift to Mount Magnet.
Counsel for the respondent submitted that the appellant should have done more to conceal the firearms within the car. However, there is no evidence that the appellant could have taken more effective steps to conceal the firearms. He covered them up with some shirts thrown over them in the front seat. Counsel for the respondent suggested that the appellant could have put the firearms under the seat. There is no evidence that they would have fitted under the seat. In any event, the firearms were covered up and were only visible to someone who entered the vehicle and removed the shirts thrown over them. There is no evidence that if the firearms had been placed under the seat they would not have been readily discovered by someone who entered the vehicle and rummaged around in it.
Failing to inform police
The thrust of the respondent's case is that the precaution which the appellant should have taken was to contact the police and arrange for them to take possession of the firearms and ammunition. The respondent submitted that even if the court is satisfied that the ground of appeal is made out, it is open for this court to conclude that the appellant was, in any event, guilty of the offence charged. The respondent submitted that the appellant failed to take the reasonable precaution of contacting authorities while he was in control of the firearms and ammunition to alert them to the fact they had been left on the side of the road in an unsecured vehicle. Therefore, it was submitted, no substantial miscarriage of justice has occurred.
The evidence does not support the respondent's contention. There is no evidence that the appellant could have made any phone call from the location where his car broke down. There is no evidence that he had a mobile phone or that there was network coverage at that place. In his interview the appellant said that after his car broke down:
I sat there for several hours waiting for someone to come along so I could get back into town or get someone to come out and pick me up or bring me a new tyre or tow me back, whatever, ya know, just to get me out of the position I was in.
The inference to be drawn from that is that he did not have the means to contact anyone from the location where the vehicle broke down.
Next, it is suggested that the appellant could and should have telephoned the police when he arrived at Mount Magnet at about 3.00 am. The appellant went to somebody's house where he slept for a few hours before one of the persons at the house, Todd Seivart, drove the appellant back to his car at about 9.00 am. There is no evidence that there was a telephone available to the appellant to make a phone call between the time he arrived in Mount Magnet at about 3.00 am and the time when Mr Napier arrived at the broken down car and the appellant ceased to be in control of the firearms. There is no evidence of the precise time at which Mr Napier arrived. It was before dawn and it was still dark. It must have been around or perhaps some time before 5.00 am. There is no evidence that if the plaintiff had telephoned the Mount Magnet police station at that time of the morning that anyone would have responded. There is no evidence that, assuming the appellant had access to a telephone, he could have contacted police in Perth who could reasonably be expected to have travelled to the scene of the broken down car and taken possession of the firearms before Mr Napier came upon them.
The following question and answer occurred during the appellant's interview:
Q: Did you think of contacting the police to organise the security of the firearms or anything like that?
A: I did, and Todd mentioned on several times to contact 'Dan' is there a policeman here 'Dan' to make him aware of what was going on.
By then I realised I was in the shit anyway.
I didn't really want the police to know that I had three guns in the car. I was just praying hoping they were still there.
It cannot be inferred from that evidence that the appellant could reasonably have contacted the police between about 3.00 am and 5.00 am. The appellant was not asked about contacting the police by telephone. It cannot be inferred that he had the means to do so.
Conclusion
The ground of appeal is made out. The magistrate made no finding identifying a reasonable precaution, made no finding that that precaution, if taken, would have ensured the safekeeping of the firearms and made no finding that the appellant failed to take that precaution. A miscarriage of justice occurred. The evidence did not enable the magistrate to make a finding that the appellant failed or omitted to take any reasonable precaution to ensure the safekeeping of the firearms and ammunition. Leave to appeal should be granted in respect of the amended ground of appeal, the appeal should be allowed, the conviction should be set aside and a verdict of acquittal substituted.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GOUGH -v- RANKIN [2014] WASC 148 (S)
CORAM: LE MIERE J
HEARD: 30 APRIL 2014
DELIVERED : 6 AUGUST 2014
FILE NO/S: SJA 1073 of 2013
BETWEEN: GUY BRYAN GOUGH
Appellant
AND
JAMES PATTERSON RANKIN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE L J ATKINS
File No :MM 4 of 2013
Catchwords:
Practice and procedure - Costs - Turns on own facts
Legislation:
Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 (WA)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
Appellant: Mr P J Marsh
Respondent: Mr J F Bennett
Solicitors:
Appellant: HFM Legal
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Gough v Rankin [2014] WASC 148
LE MIERE J: On 30 April 2014 I delivered reasons for judgment in which I determined that the appeal should be allowed, the conviction should be set aside and a verdict of acquittal substituted: Gough v Rankin [2014] WASC 148.
Magistrates Court costs
The appellant is entitled to his costs in the Magistrates Court. The amount of costs must be in accordance with the scale fixed by the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 (WA). The appellant claims costs in the sum of $6,625. The respondent agrees that that sum is reasonable. The respondent should pay the appellant's costs of his trial in the Magistrates Court fixed in the sum of $6,625.
Appeal costs
The appellant claims costs in the sum of $8,411, in accordance with table B of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) calculated as follows:
23(a)
Single Judge Appeal
Prepare appeal notice, proposed grounds of appeal and service certificate.
[$]319.00
23(f)
Preparation of case appeal for hearing
Preparation of case for appeal including drafting outline of submissions and authorities and review of respondent's documents.
$1,595.00
34
Disbursements
Counsel's actual fee on appeal hearing including preparation (item 23(g)) and attendance on reserved decision (including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders (item 23(1)).
$6,497.00
TOTAL
$8,411.00
The respondent submits that the amount claimed is unreasonable for a number of reasons.
The disbursements claimed consist of fees rendered by counsel. That is not a disbursement for the purposes of Table B. Counsel's fee is item 23(g) of Table B. The fee rendered by counsel includes an amount of $451 for drawing the notice of appeal and grounds of appeal. That is the amount allowed under the scale for the appeal notice. The appellant may only claim that sum once.
The respondent says there is duplication in the appellant's claim of $1,595 for 'preparation of case appeal for hearing' and fees rendered by counsel for advice on obtaining transcript ($150) and attending hearing of appeal and preparation ($5,445). The sum of $1,595 for 'preparation of case appeal for hearing' is for work described as 'preparation of case for appeal including drafting outline of submissions and authorities and review of respondent's documents'. It is not clear whether that is for work done by the appellant's solicitor or for work done partly by the appellant's solicitor and partly by counsel. Any work done by counsel in preparing for the hearing is properly part of the counsel fee which is charged separately. The amount of $1,595 is excessive because the appellant was represented by the same solicitors and counsel at trial and on appeal, the issue on which the appellant succeeded on appeal was identified by counsel at trial and the appellant was represented by counsel on the appeal. I would allow an amount of $1,276, being four hours at the rate of a junior practitioner.
The amount charged by counsel is $6,497. I deduct from that amount $451 for 'drawn notice of appeal and grounds of appeal', which I have allowed under item 23(a) of the scale. I would also deduct $150 for 'advice on obtaining transcript' which is part of item 23(f) ‑ preparation of case appeal for hearing. The counsel fee includes $451 for 'drawn minute of proposed orders and attend delivery of reserved decision'. That amount is properly allowable under item 23(l). I would allow $5,445 for counsel fee on hearing (including preparation) and $451 for attending on reserved decision (including drawing a minute of proposed orders).
After making those adjustments, the appellant's costs are as follows:
Appeal notice
$451
Preparation of case appeal for hearing
$1,276
Counsel fee on hearing (including preparation)
$5,445
Attending on reserved decision (including drawing minute of proposed orders)
$451
Total
$7,623
The respondent further says that the appellant's costs should be reduced because the appellant raised issues on which it failed. The appeal was originally commenced with six appeal grounds. One week prior to the hearing the appellant notified the respondent that those grounds would be abandoned and replaced by a new ground of appeal. The counsel fee should be reduced because the fee rendered by counsel was for work including work on the abandoned grounds of appeal. The respondent incurred costs in considering and responding to the abandoned grounds of appeal. Because of the late amendment to the grounds many of the costs incurred by the respondent were thrown away. The respondent estimates costs thrown away to be in the order of $1,500 to $2,500. The respondent says that any award of costs to the appellant should be reduced by a like amount. I will reduce the costs payable to the appellant to $6,000 to take account of those issues on which the appellant was not successful, that is the abandoned appeal grounds.
Conclusion
The respondent should pay the appellant $6,625 in respect of the costs of the trial in the Magistrates Court and $6,000 in respect of the appeal.
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