Granato v Comptroller-General of Customs
[2018] WASC 201
•29 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: GRANATO -v- COMPTROLLER-GENERAL OF CUSTOMS [2018] WASC 201
CORAM: MCGRATH J
HEARD: 16 APRIL 2018
DELIVERED : 29 JUNE 2018
FILE NO/S: SJA 1067 of 2017
BETWEEN: SALVATORE GRANATO
Appellant
AND
COMPTROLLER-GENERAL OF CUSTOMS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE HEATH
File Number : PE 50661 of 2017
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted upon own plea of guilty - Integrity of plea - Appellant unaware of possible defence - Additional evidence on appeal - Evidence of circumstances of plea - Setting aside conviction
Legislation:
Criminal Appeals Act 2004 (WA), pt 2, s 8(2), s 9.2, s 14, s 40
Criminal Code (Cth), s 6.1, s 9.2, s 9.3, s 9.4
Criminal Code (WA), s 24
Customs (Prohibited Imports) Regulations 1956 (Cth), reg 4F(1), reg 4F(4)
Customs Act 1901 (Cth), s 50, s 51, s 233(1)(b)
Result:
Extension of time to appeal granted
Leave to appeal granted
Conviction set aside
Appeal allowed
Matter remitted to the Magistrates Court before a different magistrate to determine the charge according to law
Category: B
Representation:
Counsel:
| Appellant | : | Mr R K Williamson |
| Respondent | : | Ms S J Oliver |
Solicitors:
| Appellant | : | Ross K Williamson |
| Respondent | : | Australian Government Solicitor |
Case(s) referred to in decision(s):
Borsa v The Queen [2003] WASCA 254
Gibson v The State of Western Australia [2017] WASCA 141
Gillespie v The State of Western Australia [2016] WASCA 216
Glover v Reyne [2001] WASCA 305
Ianella v French (1968) 119 CLR 84
Liberti v The Queen (1991) 55 A Crim R 120
Mei Ying Sui v Australian Fisheries Management Authority (No 2) (2008) 251 ALR 135
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Ostrowski v Palmer (2004) 218 CLR 493
Proudman v Dayman (1941) 67 CLR 536
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Vella v The State of Western Australia [2006] WASCA 129
MCGRATH J:
Mr Granato was charged with importing a firearm accessory into Australia in contravention of Commonwealth law. He appeared before a magistrate and pleaded guilty to that charge and was convicted. Mr Granato now wishes to set aside the conviction on the basis that he received erroneous legal advice that excluded an arguable defence.
Mr Granato contends that he had a belief concerning the nature of the item that he imported and that his belief afforded him the defence of mistake of fact under s 9.2 of the Criminal Code (Cth). However, as a consequence of the legal advice that he received, he understood that the defence was not arguable. Mr Granato in those circumstances says that his conviction has given rise to a miscarriage of justice. The Commonwealth contends that Mr Granato's belief was a mistake of law and that therefore a defence of mistake of fact does not arise.
For the following reasons, I have determined that it is arguable that Mr Granato's asserted belief may be one of fact and therefore, contrary to his legal advice, he had an arguable defence with a reasonable prospect of success. Accordingly, an extension of time is granted, leave to appeal is granted and the appeal is allowed.
In these reasons for decision, I will consider the following:
(a)The charge.
(b)The Magistrates Court proceedings.
(c)The grounds of appeal.
(d)The legal principles.
(e)The merits of the appeal.
The charge
The Prosecution Notice dated 3 August 2017 pleads one charge, being that Mr Granato imported into Australia one firearm accessory, namely an unfinished firearm suppressor in contravention of reg 4F(1) of the Customs (Prohibited Imports) Regulations1956 (Cth) and s 233(1)(b) of the Customs Act 1901 (Cth).[1]
[1] Prosecution Notice, Charge No PE 50661/2017.
Section 233 of the Customs Act1901 (Cth) relevantly provides:
(1)A person shall not:
(a)smuggle any goods; or
(b)import any prohibited imports; or
(c)export any prohibited exports; or
(d)unlawfully convey or have in his or her possession any smuggled goods or prohibited imports or prohibited exports.
(1AA)A person who contravenes subsection (1) commits an offence punishable upon conviction:
(a)in the case of an offence against paragraph (1)(a) or an offence against paragraph (1)(d) in relation to smuggled goods - as provided by subsection 233AB(1); or
(b)in any other case - as provided by subsection 233AB(2).
(1AB)Subsection (1AA) is an offence of strict liability, to the extent that it relates to paragraphs (1)(b), (c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
Section 50 of the Customs Act 1901 (Cth) provides that the Regulations may specify goods the importation of which into Australia is prohibited, absolutely or conditionally. Section 51 of the Customs Act 1901 (Cth) provides that goods, the importation of which is prohibited under s 50, are prohibited imports.
Regulation 4F(1) of the Customs (Prohibited Imports) Regulations1956 (Cth) (Regulations) relevantly provides:
4FImportation of firearms, firearm accessories, firearm parts, firearm magazines, ammunition, components or ammunition and imitations
(1)Subject to subregulations (2), (2A) and (2B), 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.
Regulation 4F(4) defines the term 'firearm accessory' as follows:
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;
(f)a firearm part to which a firearm accessory is attached or is integral.
Magistrates Court proceedings
On 19 October 2017, Mr Granato appeared in the Magistrates Court. Both Mr Granato and the Commonwealth were represented by legal practitioners.
The magistrate asked Mr Granato's counsel, Mr Trent Andrews, what is 'the position today' to which he answered 'a plea of guilty today'.[2] His Honour then asked Mr Granato whether he understood the charge against him, though the charge was not read to him, to which Mr Granato answered, 'I do'. Mr Granato was then asked 'And how do you plead to that?' to which he answered 'guilty'.[3]
[2] ts 2 (19/10/17).
[3] ts 2 (19/10/17).
The facts were then read to the court in the following terms:[4]
In or about August 2015, a parcel from the United States arrived in Australia and was delivered to the accused. The parcel was also addressed to the accused and contained one unfinished firearm suppressor, also known as a silencer. On 11 April 2015, Customs Act search and seizure warrants were executed by Australian Border Force investigators at the accused's business address in Malaga. The accused was present during the warrant activity and was cautioned and advised of his rights in accordance with the Crimes Act.
During the course of warrant activity, the accused made, amongst other things, the following admissions under caution. He had two firearms locked up in the premises. Around August 2015, he had ordered a solvent trap cleaner online. He had ordered through the website Prepper's Discounts. He had used his laptop computer to place the order. He was the consigner of the parcel, which was listed as Sam Granato. He collected the parcel from the post office, opened it and then thrown it into his drawer.
The solvent trap had remained in the drawer for the past two years. He had not used it. He used Paypal to pay for the item. The PayPal account is linked to his email address at [email protected]. He didn't make any inquiries regarding permits to import the item. He didn't have any permission to import the firearm accessory into Australia as he didn't know if he needed permission. This was the first time he had imported a firearm related item and usually went through the gun shop for everything firearm related.
On 4 May 2017, information was received by the Australian Border Force from PayPal which showed records in relation to the transaction for the purchase. The email used was Mr Granato's email address. It was sent to Sam Granato, to an address in Malaga. PayPal's records also show the transaction log for his account in respect of a transaction on 29 August 2015. The amount paid was US$201. And the seller was Prepper's Discount.
This transaction related to the purchase of the unfinished firearm suppressor. WA Police records show that Salvatore Granato is also known as Sam Granato. During examination of the data on the accused's laptop, investigators identified that the device had been used to access websites such as Prepper's Discount. The laptop also identified that it had been used to access YouTube links relating to instructional videos titled Solvent Trap, Flashlight Suppressor Silencer (indistinct) Installation, and Solvent Trap (indistinct) Flashlight Suppressor Silencer.
The Customs Prohibited Imports Regulations prohibit import of firearm accessories unless the item is imported in accordance with the requirements in the regulations. Firearm accessory is defined in the regulations to include a silencer or sound suppressor, whether or not it is complete, damaged, temporarily or permanently inoperable or unfinished. The accused had no permission to import the firearm suppressor into Australia.
[4] ts 2 ‑ 3 (19/10/17).
Mr Granato's counsel then made his plea in mitigation outlining Mr Granato's antecedents which were favourable and then proffered an explanation for the offending as follows:[5]
Turning to the offending, he has held a firearm's licence since 2007. He ordered the device from a US-based website called Prepper's Discounts in mid‑2015. The device is listed on that website as a solvent trap cleaning system using German aluminium. The purpose of the device is to provide a catchment for solvent use for cleaning the barrel of a rifle, and that's the purpose for which he imported it. There's actually an explicit disclaimer on the website which provides that:
The buyer understands that these are not suppressors or silencers in any shape or form. All of our products purchased are used for their intended purpose only - cleaning firearms only - and highly discourage any alteration to any of our products ever.
When Mr Granato opened the package, it contained a leaflet with links to two YouTube videos which my friend made reference to. He opened those links on his computer, expecting a tutorial on how to use the device. And instead, to his bemusement, the links took him to an instructional video in converting the device into a suppressor/silencer.
Once he apprehended that the item was capable of being converted into a suppressor/silencer, he thought better of using it so he threw it into his office drawer and it remained there, unused and unmodified for almost two years until customs officers came upon it during the search. There was no sinister motive behind the importation which is evidenced by the fact that the item was imported in his own name and on his PayPal account (indistinct) on his computer and sent to his work address.
He was interviewed at the time of the search and made full admissions in relation to the importation. It's a strict liability offence. So the fact he positively believed that the item was not a suppressor or capable of becoming a suppressor does not (indistinct) defence. He never had any intention of converting the solvent trap into a suppressor/silencer. Consistent with that, of course, is the fact that it was forgotten in a drawer unused and unmodified. Your Honour, there's three references and also a copy of the Prepper's Discount (indistinct) and that has (indistinct) disclaimer on it.
[5] ts 5 ‑ 6 (19/10/17).
His Honour then delivered his sentencing remarks observing that 'there's no suggestion that the device was used in any way and remained in your drawer'[6] and further stated, 'And it's a strict liability. And whilst there's no suggestion that you had any intention to use it in any improper way you get caught by the penalties'.[7] His Honour imposed a fine of $3,000 with costs of $3,533.[8]
[6] ts 7 (19/10/17).
[7] ts 7 (19/10/17).
[8] ts 7 (19/10/17).
Appeal
The ground of appeal is in the following terms:
There has been a miscarriage of justice in that the appellant's plea of guilty was made in reliance upon legal advice that was wrong in material particular: the appellant did not have a viable defence to the charge and he should have pleaded not guilty.
Particulars
•The appellant's lawyer advised him that that the appellant's belief that at the time of importation he believed he was importing a solvent trap (not any other device) did not give him a potential defence as the offence was one of 'strict liability, which means that it is unnecessary for the prosecution to prove that [he] knew or believed that the time was capable of being converted into a suppressor'.
•The correct was advice would have been that the appellant's belief that at the time of importation he believed he was importing a solvent trap (not any other device) did give him a potential defence because the prosecution, in order to convict, would have had to adduce evidence that permitted a magistrate to find beyond reasonable doubt that he (the appellant) did not mistakenly and reasonably believe that he was importing a solvent trap (not any other device).
•The appellant relied on that wrong legal advice when he pleaded guilty.
•Had he got the correct advice he would have pleaded not guilty because he did have an arguable defence.
•His guilty plea has caused a miscarriage of justice.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.
An appeal hearing is not a retrial of the issues that were before the primary court. The appellant must demonstrate that the primary court fell into error in a manner specified in a ground of appeal. The grounds of appeal on which appeals may be brought include that the court of summary jurisdiction made an error of law or fact or both, acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[9] On appeal, the court has the power to make a variety of orders, including to dismiss or allow the appeal, and to set aside or vary the decision of the court below.[10]
[9] Criminal Appeals Act2004 (WA), s 8(1).
[10] Criminal Appeals Act2004 (WA), s 14.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[11] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[12]
[11] Criminal Appeals Act 2004 (WA), s 9(2).
[12] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56].
The legal principles
Setting aside a plea of guilty
Section 8(2) of the Criminal Appeals Act 2004 provides that an appeal may be commenced against a decision, 'even if the decision was made after a plea of guilty or an admission of the truth of any matter'. An appellate court will not set aside a conviction from a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred.[13]
[13] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157; Gibson v The State of Western Australia [2017] WASCA 141, [145] - [155] .
Whilst recognising that the circumstances which will constitute a miscarriage of justice cannot be exhaustively stated, there are three categories in which appellate courts have been prepared to set aside pleas of guilty:[14]
(1)Where the appellant did not understand the nature of the charge or did not intend to admit guilt;
(2)If upon the admitted facts the appellant could not, in law, have been guilty of the offence; or
(3)Where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.
[14] Vella v The State of Western Australia [2006] WASCA 129 [26]; Gillespie v The State of Western Australia [2016] WASCA 216 [34] ‑ [35]; Borsa v The Queen [2003] WASCA 254 [20].
A court will approach any attempt to set aside a conviction upon a plea of guilty with 'caution bordering on circumspection'.[15] It is not enough for the appellant to demonstrate, on appeal, that he was innocent of the charge to which he pleaded guilty.[16] That is because an accused person may enter a plea of guilty for reasons other than a belief as to their guilt. A person may plead guilty for many reasons, for example, to avoid publicity, to protect family, or to obtain the benefits of a discount at sentencing for a plea of guilty.[17]
[15] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [104]; Liberti v The Queen (1991) 55 A Crim R 120, 122.
[16] Meissner v The Queen 141,157; Gillespie v The State of Western Australia [34].
[17] Meissner v The Queen 157; Snook v The State of Western Australia [No 2] [106].
A conviction based on a plea of guilty may be set aside on the basis that an appellant satisfies the court that he had an arguable defence with a reasonable prospect of success.[18] Mr Granato says that he had an arguable defence, being the defence of mistake of fact pursuant to s 9.2 of the Criminal Code (Cth).
[18] Glover v Reyne [2001] WASCA 305.
The merits of the appeal
The legal advice
Mr Granato contends that the defence of mistake of fact under s 9.2 of the Criminal Code (Cth) was available to him as an arguable defence. However, Mr Granato states that he was given legal advice by his counsel that erroneously excluded that defence.
Mr Granato, in his written submissions, refers to the his counsel's plea in mitigation, which Mr Granato contends supports his appeal:[19]
He was interviewed at the time of the search and made full admissions in relation to the importation. It's a strict liability offence. So the fact he positively believed that the item was not a suppressor or capable of becoming a suppressor does not [indistinct] defence. He never had any intention of converting the solvent trap into a suppressor/silencer. Consistent with that, of course, is the fact that it was forgotten in a drawer unused and unmodified.
[19] ts 6 (19/10/17).
Both Mr Granato and the Commonwealth made applications at the hearing of the appeal to rely upon further evidence, in the form of affidavits, pursuant to s 40 of the Criminal Appeals Act 2004. In so granting these applications, I considered the subject matter, scope and purpose of the appeal provisions in the Criminal Appeals Act2004 as well as the issue to be resolved in this appeal.[20] That is, I am required to assess the legal advice given to Mr Granato and determine whether he did not, as a consequence of that advice, avail himself of an arguable defence.
[20] Gibson v The State of Western Australia [50] ‑ [57].
Mr Granato relies upon his two affidavits sworn 3 January 2018[21] and 13 April 2018[22] respectively. The Commonwealth relies upon an affidavit of Mr Trevor Mark Andrews, legal practitioner, sworn 6 April 2018[23] and an affidavit of Mr Trent Andrews, legal practitioner, dated 6 April 2018.[24]
[21] Exhibit 1.
[22] Exhibit 2.
[23] Exhibit 4.
[24] Exhibit 3.
In his first affidavit Mr Granato states that on 27 September 2017 he met with Mr Mark Andrews and that he gave instructions that:[25]
When I ordered the item the subject of the charge from the USA, I believed it to be a solvent trap. A solvent trap is a device used to catch and contain the solvent sprays out of the barrel of a firearm when you clean it with a rod or length of string (to which is attached a brush). On the website from which I bought the item, it was described as a solvent trap. I did not intend to order a firearm suppressor, finished or unfinished. I do not think I did.
[25] Affidavit of Mr Granato sworn 13 April 2018, [3].
In his first affidavit Mr Granato contends that Mr Mark Andrews said that he 'had a good chance of beating the charge and that I should plead not guilty'.[26] Mr Mark Andrews told Mr Granato that Mr Trent Andrews would act for him.[27] On 12 October 2017, Mr Granato stated that he met with Mr Trent Andrews and gave him the same instructions. Mr Granato recalls the following conversation with Mr Trent Andrews:
He said 'You have no choice but to plead guilty, whichever way you go about it you will be found guilty' or words to that effect. I said 'Why is that?' He said 'Because it is a federal offence to order this thing online' or words to that effect. When I finished my meeting with Trent I rang Mark Andrews and said 'What is the go with me having to plead guilty?' or words to that effect. He said 'Trent will look after it.' He referred to some clause and said 'there is no way of getting out of it you will have to plead guilty and that is it' or words to that effect.[28]
[26] Affidavit of Mr Granato sworn 3 January 2018, [4].
[27] Affidavit of Mr Granato sworn 3 January 2018, [4].
[28] Affidavit of Mr Granato sworn 3 January 2018, [5].
Mr Granato in his second affidavit states that:[29]
I thought I was importing a device made for trapping the solvent that is used when cleaning a firearm. When I got the solvent trap I could not figure out how it worked. So I looked at the Youtube links on the paper that came with it. That's when I found out that it could apparently be converted into a suppressor. I did not try to do that.
[29] Affidavit of Mr Granato sworn 13 April 2018, [4].
Mr Granato in his second affidavit says that he showed Mr Trent Andrews an extract from the website of Preppers Discounts, which was the vendor of the item.[30] Mr Granato states that Mr Trent Andrews then stated that the offence 'is a strict liability offence' and then gave advice that he should plead guilty for the reason that 'it did not matter what I thought when I ordered the solvent trap'.[31]
[30] Affidavit of Mr Granato sworn 13 April 2018, [2] - [3].
[31] Affidavit of Mr Granato sworn 13 April 2018, [3].
In reliance on the legal advice Mr Granato determined to plead guilty and did so on 19 October 2017.[32]
[32] Affidavit of Mr Granato sworn 3 January 2018, [6].
Mr Granato was cross‑examined by counsel for the Commonwealth at the hearing of the appeal. Mr Granato confirmed that he told Mr Trent Andrews that he believed that he was importing a solvent trap and not a silencer, and that he did not know that it was capable of being altered to be a silencer.[33] In his testimony Mr Granato confirmed that he was told by Mr Trent Andrews that the Commonwealth did not have to prove that he knew what the item was,[34] and that at the time of the importation he did not know that the solvent trap was capable of being converted into a silencer.[35] That is, it was only after receiving the solvent trap, when he accessed an online video that showed that the solvent trap was capable of conversion that he came to know it could be used in that way.[36] Mr Granato was then asked by counsel in cross‑examination whether at the time of importation 'it was only the question of whether or not it was capable of being converted into a silencer that you were mistaken about?' Mr Granato answered yes to that question.[37]
[33] ts 6 (16/4/18).
[34] ts 6 (16/4/18).
[35] ts 7 (16/4/18).
[36] ts 6 (16/4/18).
[37] ts 8 (16/4/18).
In his affidavit, Mr Mark Andrews agrees that he met with Mr Granato on or about 27 September 2017 to receive instructions on the charge.[38] Whilst he accepted the instructions from Mr Granato he states that due to workload issues Mr Trent Andrews was to act for Mr Granato. Mr Mark Andrews states that he did not familiarise himself with the file, nor conduct any research, and therefore he did not, and would not have given advice about pleading not guilty.[39] Mr Andrews recalled that at a later time Mr Granato contacted him about the advice that he had received from Mr Trent Andrews. Mr Mark Andrews told Mr Granato that 'he would be well served to follow his advice'.[40]
[38] Affidavit of Mr Mark Andrews sworn 6 April 2018, [1].
[39] Affidavit of Mr Mark Andrews sworn 6 April 2018, [4].
[40] Affidavit of Mr Mark Andrews sworn 6 April 2018, [5].
In his affidavit, Mr Trent Andrews states that he explained to Mr Granato that the Commonwealth would need to prove that he imported the solvent trap cleaner into Australia and that the solvent trap cleaner was a prohibited import.[41] Mr Trent Andrews confirmed that he informed Mr Granato that the Commonwealth had sufficient evidence to prove that he had imported the solvent trap cleaner. Mr Trent Andrews advised Mr Granato 'that the offence is one of strict liability and therefore the Commonwealth would not need to prove that Mr Granato knew that the item was a firearm accessory'. [42]
[41] Affidavit of Mr Trent Andrews sworn 6 April 2018, [4].
[42] Affidavit of Mr Trent Andrews sworn 6 April 2018, [4].
In his affidavit, Mr Trent Andrews outlines the advice given to Mr Granato concerning three issues raised by Mr Granato:[43]
5.Mr Granato raised three issues that he had with the charge. The first issue was that the item was a solvent trap cleaner, not a silencer. The second issue was that Mr Granato was not aware that the item was a silencer or capable of being converted into a silencer. The third issue was that Mr Granato was under the impression that the item was legal to import into Australia.
6.In relation to the first issue, I advised Mr Granato that regulation 4F of the Customs (Prohibited Imports) Regulations defines a firearm accessory to include a silencer, sound moderator, sound suppressor or any other device designed to, or capable of, reducing the noise of discharge of the firearm whether or not complete, damaged, temporarily or permanently inoperable or unfinished. I explained that the law is couched in broad terms so as to include a device that is merely an unfinished silencer capable of being converted into a working silencer. I explained that for the purposes of the regulation the solvent trap cleaner would constitute a firearm accessory.
7.I explained to Mr Granato that if the matter proceeded to trial, I expected that the prosecution would call evidence from a firearms expert that the solvent trap cleaner is capable of being converted into a silencer.
8.It was also apparent that the solvent trap cleaner was capable of conversion into a silencer because Mr Granato instructed that he had accessed YouTube video tutorials explaining the process of converting a solvent trap cleaner into a silencer. Customs Officers located the web address of those videos in Mr Granato's browser history.
9.In relation to Mr Granato's instructions that he was not aware that the device was capable of conversion into a suppressor/silencer, I explained to Mr Granato that the offence is one of strict liability, which means that it is unnecessary for the prosecution to prove that Mr Granato knew or believed that the item was capable of being converted into a suppressor/silencer.
[43] Affidavit of Mr Trent Andrews sworn 6 April 2018, [5] - [9].
Mr Trent Andrews was cross‑examined by counsel for Mr Granato during the hearing of the appeal.[44] Mr Trent Andrews confirmed that he was shown the disclaimer that was on the supplier's website. Mr Trent Andrews confirmed that he advised Mr Granato that the words of the disclaimer could not be relied upon in providing a defence. Mr Trent Andrews during his testimony stated that:[45]
I was of the view that it would not avail him of the defence of honest and reasonable mistake of fact, because the contents of the disclaimer, in my view, were equivocal. As you're aware, under section 9.2, he would-he is required to have, before having committed the physical element of the offence, turned his mind to whether a state of facts existed.
[44] ts 9 - 10 (16/4/18).
[45] ts 9 (16/4/18).
Mistake of Fact
Section 6.1 of the Criminal Code (Cth) provides:
(1)If a law that creates an offence provides that the offence is an offence of strict liability:
(a)there are no fault elements for any of the physical elements of the offence; and
(b)the defence of mistake of fact under s 9.2 is available.
Section 9.2 of the Criminal Code (Cth) provides the defence of mistake of fact (strict liability) as follows:
9.2Mistake of fact (strict liability)
(1)A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a)at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b)had those facts existed, the conduct would not have constituted an offence.
The Criminal Code (Cth) expressly provides that mistake or ignorance of statute law or subordinate legislation does not afford a person a defence. Section 9.3 provides:
9.3Mistake or ignorance of statute law
(1)A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.
(2)Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if the Act is expressly to the contrary effect.
Section 9.2 applies the Proudman v Dayman[46] defence of reasonable mistake of fact in respect of strict liability offences. Section 9.2 of the Criminal Code (Cth) is not concerned with mistakes at large. It is not concerned about whether there is a law against conduct of certain kind. Section 9.2 requires that attention be directed to the elements of the offence charged and to the facts relevant to those elements.
[46] Proudman v Dayman (1941) 67 CLR 536.
The objective reasonableness of an accused's belief must be assessed by reference to the subjective circumstances in which the accused was placed, including the accused's personal attributes and the information available to him or her at the relevant time.[47]
[47] Mei Ying Sui v Australian Fisheries Management Authority (No 2) (2008) 251 ALR 135 [102] ‑ [107] (Reeves J).
In Ianella v French, Windeyer J observed that the distinction which our law makes for its purposes between law and fact, between questions of law and questions of fact, and between mistakes of law and mistakes of fact is not as easy as might at first be expected.[48]
[48] Ianella v French (1968) 119 CLR 84, 114 ‑ 115.
In the context of this prosecution the following are the requirements of the defence of mistake:
(1)That Mr Granato considered, at or before the time of the conduct constituting the physical elements of the offence, whether or not certain facts existed. The conduct in question was the action of Mr Granato ordering the item online and thereby causing the importation. The physical element was that the item was a firearm accessory and therefore a prohibited item under the Regulations.
(2)That Mr Granato was under a mistaken belief about the fact that the item imported was a firearm accessory at the time of the conduct constituting the physical element of the offence.
(3)That it was reasonable for Mr Granato to have that mistaken belief about those facts at the time of the conduct.
(4)That had those facts existed, the conduct would not have constituted the offence for which Mr Granato was charged.
In Ostrowski v Palmer the High Court considered the defence of mistake of fact in the context of s 24 of the Criminal Code (WA). Gleeson CJ and Kirby J stated that determining whether a defence of mistake is arguable requires the identification of the act or acts alleged to constitute the offence, and the consideration of the extent to which the accused would have been criminally responsible for such act or acts 'if the real state of things had been such as he believed to exist'.[49]
[49] Ostrowski v Palmer (2004) 218 CLR 493[10].
Therefore on this appeal, it is first necessary to determine with sufficient clarity the state of facts that Mr Granato considered existed. Secondly, it is necessary to determine whether those facts are sufficient for an arguable defence on the basis of mistake of fact under s 9.2 of the Criminal Code (Cth).
Mr Granato states in his affidavit that 'I thought I was importing a device made for trapping the solvent that is used when cleaning a firearm'.[50] He stated that he had the belief that the item was a solvent trap cleaner at the time he completed the order online and that he believed that a solvent trap cleaner is a device used to catch and contain the solvent that sprays out of the barrel of a firearm when you clean it'.[51] He says that he did not know that this specific 'solvent trap' could be converted into a suppressor until he viewed the YouTube links on the document that was within the package.[52] Mr Granato states that he only viewed the YouTube link after the importation was complete and he had received the item.
[50] Affidavit of Mr Granato sworn 13 April 2018, [4].
[51] Affidavit of Mr Granato sworn 3 January 2018, [3].
[52] Affidavit of Mr Granato sworn 13 April 2018, [4].
The Commonwealth says that the defence of mistake of fact under s 9.2 is not available to Mr Granato for two reasons. First, the Commonwealth submitted that the device imported comes within the statutory definition of the items prohibited at law under the rubric of 'firearm accessory'. [53] That is, the item imported by Mr Granato 'is a device designed to, or capable of, reducing the noise of discharge of the firearm (whether or not finished, complete or operable).' Therefore, it was submitted that the mistaken belief, if held by Mr Granato, was a mistake of law and not a mistake of fact. Secondly, during oral submissions counsel disputed the reasonableness of the mistaken belief (if held).[54] That is, if the mistake was one of fact then the mistake was not reasonable for the reason that Mr Granato did not consider whether the item imported was capable of being modified and therefore, the mistake of fact was not reasonable.
[53] Respondent's Submissions, [33].
[54] ts 18 - 22 (16/4/18).
The Commonwealth's primary submission is that because the imported item falls within the definition of firearm accessory, it does not matter that Mr Granato may have had a mistaken (even if reasonable belief) that the item was a solvent trap cleaner and not an unfinished suppressor/silencer. The Commonwealth submitted that even if Mr Granato 'had imported that item honestly believing it to have been a solvent trap, an offence against s 233(1)(b) would have nonetheless been committed, given the item falls within reg 4F.'[55]
[55] Respondent's Submissions, [36].
Mr Granato states that the facts that he knew at the relevant time were that he caused the importation of a solvent trap cleaner for a firearm. He says that he had no knowledge that the solvent trap cleaner could be modified and used as a suppressor. In my view the question that must be asked, to apply the test stated by Gleeson CJ and Kirby J in Ostrowski v Palmer is as follows:
(1)If the solvent trap cleaner that was imported did not have characteristics that were capable, when modified, of reducing noise discharge, would Mr Granato have been guilty or not guilty?
The answer to that question must be not guilty. That is because the law only prohibits the importation of firearm accessories. Based upon the evidence adduced on the appeal there is no basis to conclude that all solvent trap cleaners are 'firearm accessories' as defined in the Regulations. At the hearing of the appeal the Commonwealth accepted that whether all solvent trap cleaners are firearm accessories is a question that would require expert evidence.[56]
[56] ts 18 (16/4/18); Respondent's Submissions, [33].
If Mr Granato believed that he was simply importing a solvent trap cleaner then that stated belief would constitute a mistake of fact for the purposes of s 9.2 of the Criminal Code (Cth).
In order to give rise to a defence, however, Mr Granato's belief must have been a reasonable one. Mr Granato must demonstrate that he turned his mind to whether the mistaken state of facts existed. The Commonwealth submitted that it was necessary for Mr Granato to have positively considered whether the solvent trap cleaner was capable of being modified to become a suppressor.[57] I doubt that it would be necessary for Mr Granato to establish that he considered whether the solvent trap cleaner could be modified into being a firearm accessory. It was necessary for Mr Granato to consider the characteristics of the product that he was importing (which he did) and thereby believed that the item was a solvent trap cleaner. That is, his belief was that the item he imported was a firearm cleaner. Whether that is sufficient to establish reasonableness requires an assessment of all relevant factors bearing on that determination. It is neither necessary, nor appropriate, for me to determine whether Mr Granato's belief would be unreasonable. That would require a trier of fact to hear evidence and to determine the charge on the prosecution notice. All that is necessary for me to decide is whether I am able to find that the defence of mistake of fact was arguable with a reasonable prospect of success, and thus whether it is arguable that Mr Granato held that belief. The evidence adduced on the appeal suggests that that was so. Whether that is established at trial on the evidence adduced at trial is an entirely different question.
[57] ts 18 (16/4/18).
I now turn to the legal advice given to Mr Granato. In my respectful view, Mr Trent Andrews appears to make two errors in his advice to Mr Granato. First, his advice does not specifically address the defence under s 9.2 of the Criminal Code (Cth). I make this finding based upon the contents of Mr Trent Andrew's affidavit. In his affidavit, Mr Trent Andrews confirmed that in his advice he considered strict liability only in the context that the Commonwealth would not need to prove that Mr Granato knew that the item was a firearm accessory. Mr Andrews considered that Mr Granato's belief that he was importing a solvent trap cleaner was irrelevant. This is not so. Although there were no fault elements and therefore, it was not necessary for the Commonwealth to prove that Mr Granato knew that the item was a firearm accessory, it was, nonetheless, still necessary to consider whether s 9.2 of the Criminal Code (Cth) was available in relation to this offence. Mr Granato was not given advice as to the application of s 9.2 to the facts that he believed to be true.
Secondly, during his testimony at the hearing of the appeal, Mr Trent Andrews stated that under s 9.2 it is necessary for the belief to be reasonable and that for that defence to apply Mr Granato had to demonstrate that he turned his mind to whether the state of facts existed.[58] In support of this reasoning Mr Trent Andrews stated that Mr Granato could not avail himself of the defence of mistake because the disclaimer was equivocal.[59] Doubt may attend to that reasoning. As I have observed, it is questionable whether it is necessary for Mr Granato to establish that he considered whether the solvent trap cleaner could be modified into being a firearm accessory. Mr Granato contends that he did consider the characteristics of the product that he was importing, which he understood to be a solvent trap cleaner. I reiterate that whether that is sufficient to establish reasonableness requires an assessment of all relevant factors bearing on that determination. The question of reasonableness requires an assessment of the entire evidence at a trial.
[58] ts (16/4/18).
[59] ts (16/4/18).
Accordingly, the legal advice given to Mr Granato was erroneous in that it did not comprehensively address s 9.2 of the Criminal Code (Cth) and concluded that that defence was not available. The advice had the consequence that Mr Granato did not avail himself of an arguable defence with a reasonable prospect of success.
Accordingly, I do not accept the Commonwealth's submission that Mr Granato does not have an arguable defence under s 9.2 of the Criminal Code (Cth). I am unable to accept the submission that the mistaken belief Mr Granato claims to have had was unarguably a mistake of law. Having regard to the evidence led on the appeal the contended mistake is most likely to be one of fact. However, as I have observed, a trier of fact will determine that question after receiving evidence.
Conclusion
I consider that the belief asserted by Mr Granato raises an arguable defence with a reasonable prospect of success under s 9.2 of the Criminal Code (Cth). Mr Granato pleaded guilty to the charge on the basis of legal advice that erroneously determined the legal significance of Mr Granato's asserted belief regarding the nature of the item imported. That gave rise to a miscarriage of justice. Therefore, I have determined that the conviction should be set aside and that the matter be remitted to the Magistrates Court for the charge to be dealt with according to law. Accordingly, an extension of time is granted, leave to appeal is granted and the appeal is allowed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZT
ASSOCIATE TO THE HONOURABLE JUSTICE MCGRATH29 JUNE 2018
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