Ian Taylor v Matthew Gale

[2009] ACTSC 90

IAN TAYLOR v MATTHEW GALE
[2009] ACTSC 90 (10 August 2009)

APPEAL – appeal from Magistrates Court – appeal against conviction – appeal upheld

UNLAWFUL POSSESSION – possession of an unregistered firearm – possession of a firearm without licence or permit – ‘constructive possession’ – control over firearm – whether the request to obtain the firearm went beyond a merely preparatory act – attempt – attempted possession – alternative verdict of attempt – proximity to intended possession – how the criminal code affects offences created under the firearms act – whether there was an error in raising the ‘attempt’ offence – requirement of mens rea

SENTENCE – incorrect penalty for the offence communicated to the Magistrate – whether the penalty imposed was affected by error

The Firearms Act 1996 (ACT) ss4CA, 16, 53, 62, 84A, 93, 98, 99, 104, 124,
Crimes Act 1900 (ACT) s6, 298,
Criminal Code 2002 (ACT) s8, 44

Legislation Act 2001 (ACT) s6, 127

William v Douglas (1949) 78 CLR 521
Xue Zhong Situ v R [2008] NSWCCA 161 (14 July 2008)
Beckwith v R (1976) 135 CLR 569
R v Grant (1975) 2 NZLR 165
R v Prior (1992) 112 FLR 388
Gillis v R [1994] SCWACCA (12 July 1994)
R v Karoly Palaga [2001] SASC 174
Tasmania v David Wei Meng Lee [2006] TASSC 92

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 115 of 2008

Judge:              Higgins CJ
Supreme Court of the ACT

Date:               10 August 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCA 115 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:IAN TAYLOR

Appellant

AND:MATTHEW GALE

Respondent

ORDER

Judge:  Higgins CJ
Date:  10 August 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeals be upheld and the convictions and penalties set aside. 

1. The parties be heard as to the further disposition of the matters and any other orders.

1. This is an appeal from findings and orders made by Magistrate Lalor on 28 November 2008.  The appellant had pleaded not guilty to charges:

That he, …, on 24 March 2008, did without reasonable excuse possess to wit a FN-Browning, 1906 model, self loading pistol chambered for the ACP .25 calibre cartridge, serial number 995594 being an unregistered firearm.

That he, …, on 24 March 2008, a person who possessed a firearm, to wit, a FN-Browning, did not take all reasonable precautions to ensure its’ safekeeping.

That he, …, on 24 March 2008, not being a person approved, licensed or authorised by the registrar, did possess ammunition, to wit five .25 ACP calibre cartridges.

That he, …, on 24 March 2008, did possess a firearm, to wit [FN-Browning (supra)] whilst not authorised by a licence or permit of [sic] the Firearms Act 1996.

1. Those allegations engaged respectively ss 53(1), 62(1)(a), 99(1) and 16(1) of the Firearms Act 1996 (ACT) (F Act).  Those provisions are, in numerical order:

16       Unauthorised possession or use…