Lloyd-Groocock v Police - [2008] SASC 313

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LLOYD-GROOCOCK v POLICE
[2008] SASC 313
Judgment of The Honourable Chief Justice Doyle
20 November 2008
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Appellant proprietor of a general store – appellant held a firearms dealer’s licence – part of the business of the store to sell firearms – firearms stored in an upright drinks display fridge – glass windows of doors of fridge removed and replaced with two layers of shockproof glass and a layer of steel mesh – large steel bar installed across the front of the doors – key required to unlock the padlock attached to bar to open the fridge – Firearms Regulations 1993 (SA) reg 29 and reg 31(1) required firearms to be stored in ‘safe made of steel’ – appellant convicted of offences relating to the contravention of storage requirements imposed by Regulations – appeal against conviction – whether fridge a ‘safe made of steel’ for the purposes of firearms storage requirements.
Held: fridge made of steel and glass – glass doors a substantial part of the surface area of fridge – a container could only be described as a ‘safe made of steel’ if wholly or almost entirely made of steel – fridge not a ‘safe made of steel’.

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - STATUTORY PROVISOS AND EXEMPTIONS - PARTICULAR MATTERS - OFFENCES
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DEFENCES
Appellant proprietor of a general store – appellant held a firearms dealer’s licence – part of the business of the store to sell firearms – firearms stored in an upright drinks display fridge – appellant convicted at trial of failure to comply with relevant storage requirements imposed by regs 29 and 31(1) of Firearms Regulations 1993 (SA) – store inspected while open for business – appellant not present during inspection – store employee present at the time of inspection not the holder of a dealer’s licence – under reg 31(3) dealer not required to comply with relevant storage requirements if premises on which firearms dealership conducted open to the public, provided firearms are not accessible to the public and stored in a manner approved by Registrar – neither party adduced evidence as to whether appellant complied with manner of storage of firearms approved by Registrar – whether store ‘open to the public’ at the time of inspection so that reg 31(3) storage requirements available to appellant – whether reg 31(3) storage requirements an exception to storage requirements so that under s 56 Summary Procedure Act 1921 (SA) appellant bore burden of proving storage of firearms was in accordance with manner of storage approved by Registrar.
Held: premises open to the public at the time of inspection and reg 31(3) storage requirements available to appellant.
Held: reg 31(3) provides an exception and matters of fact identified in reg 31(3) are matters to be proved by defendant – no evidence adduced at trial or on appeal by defendant in relation to compliance with manner of storage approved by Registrar – appeal against convictions dismissed.

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appellant conducted a firearms dealership pursuant to a licence – appellant convicted of failure to comply with storage requirements relating to firearms – facts as found gave rise to two offences: breach of storage requirements and breach of condition of dealer’s licence – Magistrate recorded convictions on both counts and imposed single fine – appeal against sentence.
Held: two offences have distinct aspects despite arising from the same facts – open to Magistrate to record convictions in respect of each offence – Magistrate not in error in exercising discretion to record convictions – fine not manifestly excessive – appeal against sentence dismissed.
Firearms Act 1977 (SA) s 16, s 17, s 21; Firearms Regulations 1993 (SA) reg 15A, reg 19(1)(c), reg 19(A)(1), reg 19(A)(2), reg 29, reg 29(2)(a), reg 29(3), reg 31(1), reg 31(2), reg 31(3), reg 33, reg 34, reg 53; Summary Procedure Act 1921 (SA) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 18A, referred to.
R v Edwards [1975] 1 QB 27; Chugg v Pacific Dunlop Limited (1990) 170 CLR 249; Rowbottom v Nicolitsi (1986) 41 SASR 576; Daire v O'Malley (1986) 41 SASR 583; Dowling v Bowie (1952) 86 CLR 136, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"safe made of steel", "safe"

LLOYD-GROOCOCK v POLICE
[2008] SASC 313
Magistrates Appeal: Criminal

DOYLE CJ: Ms Lloyd‑Groocock appeals against convictions recorded against her in the Magistrates Court, and against the sentence that the Magistrate imposed.
The appeal raises the interpretation of provisions of the Firearms Act 1977 (SA) (“the Act”) and of the Firearms Regulations 1993 (SA) (“the Regulations”). The appeal also raises an issue (not raised before the Magistrate) as to the application of s 56 of the Summary Procedure Act 1921 (SA) (“the SPA”).
Facts
Ms Lloyd‑Groocock holds a dealer’s licence granted under s 17 of the Act. A person who “carries on the business of dealing in firearms or ammunition or both…” in South Australia without holding a dealer’s licence authorising that business is guilty of an offence: s 16 of the Act. This case is concerned only with dealing in firearms.
Dealing in firearms is closely regulated by the Act. The Act also regulates the possession, use and sale of firearms. It applies to persons other than dealers. The Registrar of Firearms has authority to grant a dealer’s licence under the Act. The Registrar has power under a number of provisions of the Act and of the Regulations to impose conditions on a licence, to approve or not to approve various matters relating to dealing in firearms, and generally to regulate the licensing of dealers. The Registrar’s role is central to the administration of the Act and of the Regulations.
Ms Lloyd‑Groocock operates a mixed retail business called the Mintabie Trading Post, at Mintabie in the north of South Australia. This is a remote location. She holds a dealer’s licence issued under the Act, and carries on her business as a dealer in firearms at the Mintabie Trading Post. There is no suggestion that she is in breach of any provision of the Act or of the Regulations in conducting her dealer’s business from the same premises as those in which she conducts her mixed retail business.
Part 6 of the Regulations deals with securing firearms. The first count on which Ms Lloyd‑Groocock was convicted is based on the provisions of Part 6. The relevant provisions are regs 29, 31, 33 and 34. They provide as follows:
29    Security of firearms
(1)     A person (not being a dealer) who has possession of a class A or B firearm must keep the firearm secured by—
(a)securely attaching and locking it to part of the building in which it is kept; or
(b)keeping it in a locked cabinet made of hardwood or steel that is securely attached to the building in which it is kept; or
(c)keeping it in a locked safe made of steel that is securely attached to the building in which it is kept; or
(d)keeping it in a locked steel and concrete strong room; or
(e)such other method as is approved by the Registrar.
(2)     A person (not being a dealer) who has possession of a class C, D or H firearm must keep the firearm secured by—
(a)keeping it in a locked safe made of steel that is securely attached to the building in which it is kept; or
(b)keeping it in a locked steel and concrete strong room; or
(c)such other method as is approved by the Registrar.
(3)     A cabinet or safe referred to in subregulation (1) or (2) must—
(a)be fitted with fittings and locks that prevent it from being easily forced open; and
(b)be made of material of sufficient thickness to prevent it being easily broken, opened or destroyed.
(4)     Despite subregulations (1)(c) and (2)(a), a safe need not be attached to the building if its mass when empty is 150 kilograms or more.
…
31    Possession of firearms by dealers
(1)     Subject to this regulation, a person who has possession of a class A, B, C, D or H firearm in his or her capacity as a dealer must keep the firearm secured by one of the methods set out in regulation 29 in respect of the relevant class of firearm.
(2)     A dealer is not required to comply with subregulation (1) during periods that his or her premises are open to the public in respect of class A or B firearms that are on display to members of the public entering the premises if the public does not have access to the firearms.
(3)     A dealer is not required to comply with subregulation (1) during periods that his or her premises are open to the public in respect of class H firearms that are on display to members of the public entering the premises if—
(a)    the public does not have access to the firearms; and
(b)    the firearms are secured in a manner approved by the Registrar.
33    Security of dealer's building
A dealer must ensure that the premises at which he or she carries on the business of dealing in firearms is properly secured against unlawful entry whenever the premises are unoccupied.
34    Exemption
The Registrar may exempt a person from compliance with this Part subject to such conditions as he or she thinks fit and may vary or revoke an exemption at any time.
By reg 53 of the Regulations, it is an offence to contravene or to fail to comply with a provision of the Regulations. The maximum penalty is $2,500.
By reg 19(1)(c) of the Regulations, it is a condition of a firearms licence that a licence holder must comply with the provisions of Part 6 that apply to or in relation to firearms held pursuant to the licence. Accordingly, a failure to comply with the provisions of Part 6 will give rise, ordinarily, to an offence against reg 53 and to a breach of a condition of the relevant licence. Section 21 of the Act makes it an offence to contravene or to fail to comply with a condition of a licence.
The Act and the Regulations contemplate that members of the public will come to a dealer’s premises to sell or to buy or to exchange firearms.
On 31 May 2006 two police officers visited the Mintabie Trading Post. It was open for business at the time. Ms Lloyd‑Groocock was not present. There is no suggestion that any business was being conducted, or immediately contemplated, that fell within the scope of her dealer’s licence. The police officers inspected the premises, and in particular the manner in which Ms Lloyd‑Groocock had secured the firearms that she had for sale at the Trading Post. These firearms included two handguns, which are class H firearms. At this stage it suffices to note that all of the firearms were in the same locked container.
Arising from this inspection, Ms Lloyd‑Groocock was charged with two offences.
Count one was that on 31 May 2006 she had in her possession class H firearms that she failed to keep secured in accordance with reg 29 of the Regulations contrary to reg 31(1) and reg 53.
The second count was that she failed to comply with a condition of her licence contrary to s 21 of the Act. The failure to keep the firearms secured as required by the Regulations was relied upon as the failure to comply with a condition of her licence.
The Magistrate’s decision
The Magistrate found that the container in which the firearms were kept, including two class H firearms, was not “a locked safe made of steel” for the purposes of reg 29(2)(a). It is not suggested that any other provision of reg 29 governed the manner in which the firearms were secured. This finding is challenged on appeal.
The Magistrate found that reg 31(3) did not provide Ms Lloyd‑Groocock with a defence. The Magistrate said that as Ms Lloyd‑Groocock was not present when the police inspected the Trading Post, “…the defendant’s firearm dealing business was not open for business”. The Magistrate appears to have proceeded on the basis that the premises could be open to the public for the purposes of reg 31(3) only if Ms Lloyd‑Groocock was present.
Accordingly, the Magistrate convicted Ms Lloyd‑Groocock on count one.
The Magistrate said nothing about count two. But the endorsement on the Magistrates Court file indicates that she recorded a conviction on each count. Although the Magistrate made no findings relating to count two, her findings on count one lead to the conclusion that Ms Lloyd‑Groocock was guilty on count two.
In an apparent exercise of the powers conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) the Magistrate imposed a single fine in respect of the two counts in the sum of $1,000.
Appeal against conviction on count one
I agree with the Magistrate that the container in which the class H firearms were displayed did not meet the requirements of reg 29(2)(a). I mention that there is no suggestion that any other method of securing the firearms had been approved by the Registrar for the purposes of reg 29(2)(c).
Unsurprisingly, neither the Act nor the Regulations contain a definition of “safe”. I do not consider that reg 29(3) states exhaustively the characteristics of a safe for the purposes of reg 29. It is understandable that the Regulations would emphasise and specify the matters set out in reg 29(3), because merely to describe something as a safe does not, in itself, require that it not be able easily to be forced open or broken open.
The container in question was a glass fronted cabinet on wheels. It had formerly been used to display bottled cold drinks. It is of a kind commonly seen in shops selling cold drinks. It is about two metres high and about 60 centimetres wide. The top, bottom, back and sides are made of steel. It had been modified by Ms Lloyd-Groocock’s partner. The front comprises two full length glass doors, hinged on either side of the container. Each door opens outward from the centre. The hinges are on the inside of the cabinet, to make it more difficult to obtain entry to it. Each door is covered with what appears to be substantial steel mesh. Each door, which I gather has a steel frame, comprises two sheets of shockproof glass. The container is locked by sliding a metal pole into position across the two front doors and through some brackets attached to those doors, and then by padlocking it into position. The whole unit weighs over 150 kilograms. A photograph of the container was tendered before the Magistrate.
I have no doubt that the container is a solid and strong container. It appears to be securely padlocked. Although the Magistrate did not make a specific finding, I am prepared to accept that it cannot be “easily forced open” and cannot be “easily broken, opened or destroyed”. In other words, it meets the requirements of reg 29(3).
But in my opinion the container is not a “safe made of steel”.
First of all, it is made of steel and glass. The glass doors are a substantial part of the surface area of the container. The steel mesh across the doors does not alter the fact that the doors are predominantly made of glass.
In my opinion one could only describe the container as a “safe made of steel” if it was wholly made of steel, or almost entirely made of steel. It is relevant to note that reg 29(1) distinguishes between a cabinet made of steel and a safe made of steel. While the distinction might not be easy to draw in all cases, if anything I would call the container in question a cabinet made of steel and glass.
In short, having regard to the description and to the photograph of the container, I agree with the Magistrate that it did not meet the requirements of reg 29(2)(a).
However, I do not agree with the Magistrate’s conclusion that the premises could not be said to have been open to the public at the time in question. On appeal, Mr Stratton-Smith, counsel for the respondent, more or less conceded this point, without formally conceding it.
There is no provision in the Act or in the Regulations that, in terms, requires a dealer to be present whenever the premises at which the dealer carries on business are open to the public.
There are a number of provisions that make it clear that if firearms are sold, purchased or exchanged on the premises, or if the possession of firearms is transferred from one person to another on the premises, then the licensed dealer who conducts business at the premises must be present. I refer in particular to reg 15A, reg 19A(1), reg 19A(2) and reg 33. The scheme of the Act and of the Regulations is one that requires the personal attention of a licence holder to a transaction conducted in reliance on a licence. It is also clear that, subject to quite limited exceptions, a dealer may carry on business as a dealer only at the premises authorised by the licence: reg 19A(1)(e). The dealer’s licence must be displayed at those premises: reg 19A(1)(h).
But, as I have already said, there is no express requirement in the Act or Regulations that the licence holder must always be present when the authorised premises are open to the public. Nor can I find any provision of the Act or Regulations that necessarily implies that the licence holder must always be present when the authorised premises are open to the public. It would be difficult to manage a business if the business premises could be open to the public only at a time when the relevant licence holder was present. If the Act or Regulations so require, the premises would have to be locked up, or the firearms in them appropriately secured, if and whenever the licence holder left the premises for a short time. Of course, I accept that transactions involving firearms (and ammunition) could not take place in the absence of the licence holder, but it does not follow that the premises cannot be open to the public in the absence of the licence holder.
It follows that, in my respectful opinion, the Magistrate erred in finding that the premises were not open to the public at the time when the police officers went to the Mintabie Trading Post.
On the evidence before the Magistrate, when the police officers went to the Mintabie Trading Post the firearms were secured, although on display, and secured in a manner such that the public did not have “access to the firearms”, and so the requirements of reg 31(3)(a) were met.
There was no evidence at all before the Magistrate on the question of whether the Registrar had approved a manner of securing class H firearms for the purposes of reg 31(3). If it was incumbent on Ms Lloyd‑Groocock to establish that the class H firearms were so secured she did not do so, and was rightly convicted. If it was incumbent on the prosecution to establish that the class H firearms were not secured in an approved manner, it did not do so and Ms Lloyd‑Groocock is entitled to have the conviction set aside.
It appears that the matter escaped the attention of all parties before the Magistrate. On appeal, neither Mr Boucaut for Ms Lloyd‑Groocock, nor Mr Stratton‑Smith asked me to receive further evidence on the matter, although I indicated that I was inclined to allow further evidence if asked to do so.
Section 56 of the SPA provides as follows:
56Exceptions or exemptions need not be specified or disproved by the complainant
(1) No exception, exemption, proviso, excuse, or qualification (whether it does or does not accompany in the same section the description of the offence in the Special Act or other document creating the offence) need be specified or negatived in the complaint.
(2) Any such exception, exemption, proviso, excuse, or qualification as aforesaid may be proved by the defendant, but, whether it is or is not specified or negatived in the complaint, no proof in relation to it shall be required on the part of the complainant.

Mr Stratton-Smith relies on s 56 in support of a submission that it was incumbent on Ms Lloyd-Groocock to establish that she fell within the exception to reg 31(1) that is created by reg 31(3). He submits that Ms Lloyd-Groocock did not lead any evidence that could support a conclusion that the class H firearms were “secured in a manner approved by the Registrar”, and that accordingly it was not shown that the exception applied. Accordingly, the conviction should be sustained.
This submission was made almost in passing by Mr Stratton-Smith, when I raised the question of the burden of proof in relation to the requirements of reg 31(3). As neither counsel appeared ready to argue the issue, I allowed counsel to supplement their oral submissions by written submissions.
In his written submission Mr Stratton-Smith maintained the position outlined above. Mr Boucaut argued that the requirements of reg 31(3) were part of the definition of the offence, raising a matter on which the prosecution was required to produce proof to the contrary, and not a matter by way of exception or qualification. He submits further that whether the firearms were secured “in a manner approved by the Registrar” is a matter peculiarly within the knowledge of the Registrar, and so is something to be proved by the prosecution.
Section 56 of the SPA reflects a common law principle. In R v Edwards [1975] 1 QB 27 the Court of Appeal considered the English equivalent to s 56. Speaking for the Court, Lawton LJ said at 39-40:
In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is both done to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception.
In our judgment its application does not depend upon either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment. As Wigmore pointed out in his great Treatise on Evidence (1905), vol. 4, p. 3525, this concept of peculiar knowledge furnishes no working rule. If it did, defendants would have to prove lack of intent. What does provide a working rule is what the common law evolved from a rule of pleading. We have striven to identify it in this judgment. Like nearly all rules it could be applied oppressively; but the courts have ample powers to curb and discourage oppressive prosecutors and do not hesitate to use them.
In Rowbottom v Nicolitsi (1986) 41 SASR 576, Cox J said of the South Australian provision (at 579):
The Justices Act provision may be traced back to s. 14 of the Summary Jurisdiction Act 1848 (U.K.) by which the Parliament of the United Kingdom sought to apply the common law doctrine about exceptions and provisos to summary courts. The extent to which s 14 also qualified or extended the common law rules is discussed in the interesting judgment of Lawton L.J. in Reg v Edwards… However, most of the modern authorities that deal with summary prosecutions rely indiscriminately upon cases relating to the common law rule or the statutory provision or both, and the case law on the subject of exceptions generally is sufficient to provide the answer to the present problem.
The basis of the principle that is reflected in the statutory provision was considered by Dixon CJ in Dowling v Bowie (1952) 86 CLR 136 in the course of reasons agreed to by Fullagar J and Kitto J (at 152). He said (at 139-140):
The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification… The distinction has been criticized as unreal and illusory and as, at best, depending on nothing but the form in which legislation may be cast and not upon its substantial meaning or effect. The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it. …
(citations omitted)
The High Court had cause to consider the equivalent Victorian provision in Chugg v Pacific Dunlop Limited (1990) 170 CLR 249. In their reasons Dawson, Toohey and Gaudron JJ said at 257:
For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an “exception”), which serves to take a person outside the operation of a general rule. See Vines v. Djordjevitch. The distinction does not depend on the rules of formal logic: Dowling v. Bowie. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention “to impose upon the accused the ultimate burden of bringing himself within it”: Director of Public Prosecutions v United Telecasters Sydney Ltd. The intention may be discerned from express words or by implication. See Reg v. Edwards and Reg v. Hunt.
(citations omitted)
Having referred to the statutory provision, they added at 258:
Section 168 of the Magistrates (Summary Proceedings) Act and like legislative provisions leave the question whether the matter in issue is an exception to be answered by the ordinary process of statutory construction. See the discussion of s. 14 of the Crimes Act 1914 (Cth) in Dowling v. Bowie. And, despite the language of s 168 and like legislative provisions, if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.
Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined “upon considerations of substance and not of form”; Dowling v Bowie.
(citations omitted)
The other members of the Court agreed with their reasons: Brennan J at 251 and Deane J at 253.
I approach the construction of the Act and of the Regulations bearing these principles in mind. I have as well considered a number of reported cases dealing with the application of equivalent provisions in other jurisdictions. However, as Cox J said in Daire v O’Malley (1986) 41 SASR 583, the application of s 56 and its equivalents depends upon a postulated legislative intention that is to be considered by reference to all of the relevant circumstances, and so it is difficult, as he said, “to state any general rule on the subject”, beyond what appears in the passages set out above. For much the same reason, little is to be gained by comparing one case with another, because each case turns on the particular terms of the legislation in question.
I return to the regulations.
By the operation of reg 53 the offending conduct is the contravention of or failure to comply with the requirement of reg 31. The obligation in question is found, in my opinion, in reg 31(1). The obligation or requirement is, relevantly, to keep class H firearms in the possession of the dealer secured by one of the methods set out in reg 29 in respect of class H firearms.
That can fairly be said to be the obligation or requirement created by reg 31.
I consider that reg 31(2) and reg 31(3) each introduce circumstances which, by way of exception to that obligation, or by way of qualification of that obligation, take a particular case outside the obligation or general rule established by reg 31(1).
The application or availability of the exception or qualification depends upon the existence of further facts. Those further facts are that at the time at which it is alleged there is a contravention or failure to comply with reg 31(1), the premises were open to the public, that the public did not have access to the class H firearms in question, and that the firearms were secured in a manner approved by the Registrar. The application or availability of the exception or qualification turns on a conclusion in relation to those matters of fact. I put the matter this way to avoid introducing at this stage the question of burden of proof. If the exception or qualification operates, then the obligation or requirement found in reg 31(1) ceases to apply for the time being.
This suggests to me, having regard to the principles stated above, that the matters of fact identified in reg 31(3) are matters to be proved by the defendant.
Returning to the reasons of Dixon CJ, in my opinion reg 31(1) defines a ground of liability and sub-reg (2) and sub-reg (3) then introduce “by some distinct provision a matter of exception or excuse”. The “grounds of liability” do not contain within themselves the statement of the exception or qualification. They are found in the further sub regulations. This approach is supported by the reasons of Dawson, Toohey and Gaurdon JJ in Chugg v Pacific Dunlop. In particular, in the second passage from their reasons set out above, they make the point that one indication that a matter is a matter of exception is “that it sets up some new or different matter from the subject matter of the rule”: Chugg v Pacific Dunlop at 258. That is the case when one compares reg 31(1) with the content of sub-reg (2) and sub-reg (3).
I am conscious of the need to avoid allowing matters of form to dominate over matters of substance. I have endeavoured to observe that injunction.
It is theoretically possible to express the relevant requirement in a compendious form embracing the content of sub-reg (1) and sub-reg (3) of reg 31. The obligation would then be expressed as being an obligation on the part of a dealer who has possession of a class H firearm, to keep the firearm secured by one of the methods set out in reg 29(2) provided that during a period that the premises of the dealer are open to the public, in respect of class H firearms that are then on display to members of the public entering the premises, the dealer must ensure that the public does not have access to the relevant firearms and that they are secured in a manner approved by the Registrar. But I do not consider that it is allowing form to dominate over substance to say that the obligation is one more naturally expressed in the terms of reg 31(1), with the provisions of sub-reg (2) and sub-reg (3) treated as exceptions or qualifications to that obligation.
I do not place any reliance on the circumstance that the facts in issue are matters on which the defendant will have “peculiar knowledge”. In some cases that may be a reason for treating such a matter as one that the defendant must prove. Here, however, one would expect that ordinarily the prosecuting authority would be able to prove whether or not the premises were open to the public, whether the class H firearms were on display to the public, whether the public did or did not have access to the firearms and whether they were or were not secured in a manner approved by the Registrar.
For those reasons I conclude that the burden lay on Ms Lloyd-Groocock to bring herself within the exception or qualification created by reg 31(3). She did not do so. She did not present any evidence on which a finding could be made that the class H firearms were secured in a manner approved by the Registrar.
Accordingly, the appeal against the conviction on count 1 must be dismissed.
Appeal against conviction on count 2
The second offence is a breach of s 21 of the Act. The breach of s 21 is made out because it was a condition of the licence that Ms Lloyd-Groocock comply with the provisions of Part 6 in relation to class H firearms held by her pursuant to the licence. For the reasons already given, a failure to comply with the provisions of Part 6 was proved. A conclusion that Ms Lloyd-Groocock had contravened or failed to comply with the requirements of reg 31(1) leads to the conclusion that she failed to comply with the condition of her licence.
The appeal against the conviction on count 2 must be dismissed.
Appeal against penalty
A breach of reg 53 attracts a maximum penalty of $2,500. A breach of s 21 of the Act attracts a maximum punishment of a fine of $10,000 or imprisonment for two years. It is clear that this is a serious offence.
It was open to the Magistrate to record a conviction on each offence. Although the same circumstances give rise to each offence, the offences have distinct aspects. The offence under Part 6 of the Regulations focuses on the manner in which firearms are secured. The offence against s 21 of the Act focuses on the breach of a condition of the licence. However, in considering the appropriate penalty one must bear in mind that the two offences arise from the same facts.
In support of the appeal against the sentence, Mr Boucaut made a number of pertinent points. They are matters that the Magistrate acknowledged. Ms Lloyd‑Groocock is a person of good character. There is no suggestion of any relevant prior offending conduct. She provides a service to a remote community. Her premises had previously been inspected in relation to the requirements of the Act and of the Regulations. She had not been told that the container did not meet the requirements for the securing of class H firearms. The container was secure. The Registrar indicated to the Magistrate that he did not propose to take any steps to revoke Ms Lloyd‑Groocock’s licence. Although Mr Boucaut emphasised this latter point, I consider that in itself it is not of any particular significance. It was incumbent on the Magistrate to make her own decision as to the appropriate penalty, without regard to the approach that the Registrar might take.
In my opinion it cannot be said that the Magistrate erred in failing to exercise the power conferred by s 16 of the Criminal Law (Sentencing) Act 1988 (SA) and to refrain from recording a conviction. The Magistrate was entitled to have regard to the importance of general deterrence, and to the importance of strict compliance with the legislative regime controlling dealings with firearms. The importance of this legislative regime needs no emphasis.
I am not persuaded that the offences could properly be described as trifling. But even if they could, and even if it was open to the Magistrate to exercise the power to refrain from recording a conviction, I am not persuaded that she was wrong in failing to exercise that power.
As to the fine imposed, although the two offences arose from the one set of circumstances, I am far from persuaded that the fine is manifestly excessive. I consider that it is within an appropriate range.
I dismiss the appeal against the penalty that the Magistrate imposed.