Madeleine Kubler v Christopher Michael Gunner
[2021] ACTMC 6
•23 April 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Madeleine Kubler v Christopher Michael Gunner |
Citation: | [2021] ACTMC 6 |
Hearing Date(s): | 19 April 2021 |
DecisionDate: | 23 April 2021 |
Before: | Magistrate Morrison |
Decision: | See paragraphs [65] and [76] |
Catchwords: | STATUTORY INTERPRETATION – STATUTORY DEFINITIONS – whether definition of “airgun” in Firearms Act 1996 (ACT) is invalid for same reasons as in DPP v Scheele [2016] ACTCA 23 CRIMINAL LAW – MISTAKE OF FACT – whether mistake asserted by defendant is a mistake of fact, a mistake of law or a mistake of mixed fact and law – analysis of asserted mistake – consequences under both common law and Criminal Code 2002 (ACT) s 35 |
Legislation Cited: | Firearms Act 1996 (ACT), ss 6, 23A 42, 223 Criminal Code 2002 (ACT), s 35 |
Cases Cited: | Comptroller-General of Customs v Woodlands Enterprises Pty Ltd [1996] 1 Qd R 589 DPP v Scheele [2016] ACTCA 23; 12 ACTLR 1 He Kaw Teh v The Queen (1985) 157 CLR 523. Ostrowski v Palmer (2004) 218 CLR 493 Proudman v Dayman (1941) 67 CLR 536, 540 R v Lavender [2005] HCA 37; 222 CLR 67 Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 Thomas v The King (1937) 59 CLR 279 |
Texts Cited: | Colin Howard and Brent Fisse, Howard’s Criminal Law (Law Book Company, 5th ed, 1990) |
Parties: | Madeleine Kubler (Informant) Christopher Michael Gunner (Defendant) |
Representation: | Counsel S Bargwanna (Prosecution) M Kukulies-Smith (Defendant) |
File Numbers: | CC 12275-76 of 2019 |
MAGISTRATE MORRISON:
The defendant has faced hearing on two charges under the Firearms Act 1996 (ACT) (‘the Act’) The first is that he possessed a prohibited firearm, namely a black M4A1 Carbine 5.56mm rifle, whilst not authorised to do so under the Act. The second is that he, without reasonable excuse, carried that prohibited firearm on premises in a manner likely to cause reasonable fear of the infliction of injury. Both offences were allegedly committed on 12 November 2019.
It is appropriate to deal first with the question of statutory construction raised by the defendant. Section 6 of the Act defines a firearm by way of a two-part definition.
It is in the following terms:
firearm –
(a) means a gun, or other weapon, that is, or at any time was, capable of propelling a projectile by means of an explosive force, however caused; and
(b) includes—
(i) a blank fire firearm; and
(ii) an airgun; and
(iii) a paintball marker; and
(iv) something declared to be a firearm under section 31; and
(v) a modified item; and
(vi) a firearm frame or firearm receiver that does not form part of a firearm.
The dictionary defines airgun in these terms:
airgun means a firearm, other than a paintball marker, that—
(a) can propel, or is designed to propel, a projectile by means of—
(i) any gas or mixture of gases, including air but not including a gas or mixture of gases generated by an explosive; or
(ii) a spring; and
(b) is operated or designed for operation by means of a trigger or similar device.
The defendant argues that the combined effect of definitions in those terms suffers from the same type of drafting difficulties which were before the Court of Appeal in DPP v Scheele,[1] with the same consequence – that is, that the definition is in effect invalid.
[1] [2016] ACTCA 23; 12 ACTLR 1 (‘Scheele’).
I do not accept that submission. Mr Kukulies-Smith accepts that it requires the two parts of the definition to be read in a way which he describes as conjunctively.
I have concluded that the definition ought to be read as not requiring that the things listed in paragraph (b) of the definition also be a gun or other weapon capable of propelling a projectile by means of an explosive force as per the general description in paragraph (a). Rather, section 6 should be read as defining a firearm to be something falling within the general description in subsection (a) or comprising one of the specific items in subsection (b). The drafting technique is commonplace enough despite the use of the words “and” and “includes”.
It follows that the definition of “airgun” is not bedevilled by the same sort of difficulties which were before the Court in Scheele.
There is obviously some circularity in the definitions. Despite that, the combined effect of section 6 and the definition of airgun in the dictionary is that the defined term (airgun) can sensibly (and consistently with principles of statutory construction) be read as, in effect, saying that a firearm is (amongst other things) an airgun which can propel or is designed to propel a projectile et cetera as set out in the dictionary.
It follows that I am satisfied beyond reasonable doubt that the item found in the defendant’s possession is a firearm within the meaning of the Act. It is not in contest that it was capable of firing in an automatic fashion, and it is also therefore a prohibited firearm.
The second of the defence arguments revolves around the concept of mistake of fact. Prosecution and defence accept that the Criminal Code 2002 (ACT) applies to the possession offence, but not to what I will call the improper carrying offence under section 223, and that the latter is a strict liability offence.
Section 35 of the Code deals with mistake or ignorance of fact. It speaks of a belief in or ignorance of a fact which ‘negates a fault element applying to a physical element of an offence.’
The equivalent provision in the Criminal Code1995 (Cth) (section 9.1) – has been the subject of analysis which describes it as a superfluous provision, because if the mistake of or ignorance about a fact negates a fault element it follows that the prosecution is unable to prove that fault element to the required standard and so the defendant is entitled to an acquittal regardless of the provision.
I am not aware of any Supreme Court authority in this jurisdiction on the point, but the logic appears impeccable and I adopt it.
In practical terms that means that the defendant’s argument in relation to the possession offence is that the evidence does not establish that the defendant was reckless as to the circumstance that the item he possessed was a prohibited firearm. In relation to the improper carrying offence, it means that the prosecution has not proved beyond reasonable doubt that the defendant did not have an honest and reasonable but mistaken belief that the item he possessed was not a prohibited firearm.
The defendant gave evidence in the defence case. I have more to say later about his evidence. What is relevant for present purposes is that he said in his evidence that he believed that the item he acquired was what was described in the evidence as a “gel blaster”. He also said, in effect, that he did not believe that it was a prohibited firearm. (Given the reference in section 35 to both mistake of and ignorance about facts it does not appear to be of any consequence whether the latter is described as believing that the item was not a prohibited firearm or not believing that it was a prohibited firearm.)
The defendant also makes reference in his evidence to the item he possessed as a toy. That term – that is “toy” - appears in section 23A of the Act dealing with imitation firearms. In context it appears in section 23A(4) which sets out what the expression “imitation firearm” does not include. The definition of imitation firearms expressly excludes “firearms” as defined in section 6. Given my conclusion that the item seized was in fact a firearm, the defendant’s description of the item as a toy is not relevant for the purposes of engaging any exception in section 23A. It seems to me that its relevance lies in its effect as a descriptive term supporting his testimony that he did not believe that the item was a prohibited firearm.
The defendant points to several aspects of the evidence in support of his submission as to the failure to prove recklessness and to disprove mistake of fact. I deal with them later.
For his part, the prosecutor’s preliminary submission is that the defendant’s belief that he was acquiring a gel blaster may be a mistake of fact, but that it does not relieve him of criminal liability because, in accordance with the expert evidence, even if the item had been a gel blaster, it still would fall within the relevant definition and so would be both a firearm and prohibited firearm for the purposes of the Act. In other words, even if the facts which the defendant believed to exist did exist – that is that what he possessed was a gel blaster – he had still committed the offence.
In response to this submission, Mr Kukulies-Smith submitted that the defendant’s mistake was both that the item he possessed was a gel blaster and that it was not a prohibited firearm. According to the submission that is a question of mixed fact and law and, in essence, the same considerations apply as if it were a question of fact.
I questioned the existence of authority on that point. It was raised at the end of the day’s hearing and the lawyers had not had the opportunity to research the point. I invited both prosecution and defendant to make further short written submissions with reference to authorities. Written submissions from both prosecution and defence were received.
Those submissions and my own enquiries reveal authority supporting the proposition that mistake of fact principles can apply to mistakes of mixed fact and law.
A question does arise, however, as to what constitutes a question of mixed fact and law.
In Ostrowski v Palmer,[2] McHugh J considered that section 24 of the Criminal Code1913 (WA) (the corresponding honest and reasonable mistake of fact provision) applied to mistakes of mixed fact and law. In reaching this conclusion, his Honour relied upon statements of judicial principle of Dixon J in Thomas v The King[3] and McPherson JA in Comptroller-General of Customs v Woodlands Enterprises Pty Ltd.[4]
[2] (2004) 218 CLR 493 (‘Ostroswki’).
[3] (1937) 59 CLR 279, 306 (‘Thomas’).
[4] [1996] 1 Qd R 589, 597.
What McHugh J said was this:
No doubt section 24 may protect mistaken belief concerning an event or matter which involves a mixed question of fact and law. This is consistent with the suggestion by Dixon J in Thomas that such a mistake should be characterised as one of fact. His Honour said:
‘‘[I]n the distinction between mistakes of fact and of law, a mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law.’’ [5]
Similarly, McPherson JA in Comptroller-General of Customs v Woodlands Enterprises Pty Ltd, after referring to Dixon J’s observation in Thomas, said:
‘‘Because it refers to a mistaken belief in the existence of any ‘state of things’ . . . section 24 of the Criminal Code (Q) is capable of comprehending a mistake about a matter of mixed fact and law.’’ (footnotes omitted)
[5] Ostrowski (2004) 218 CLR 493, 510 [35] (McHugh J).
The statement of Dixon J included in the extract above was also cited with approval by Callinan and Heydon JJ in Ostrowski.[6]
[6] Ibid 527-8 [87].
The statement of McHugh J just referred to was in obiter, as his Honour ultimately found that the circumstances of that case did not involve such a mistake:[7]
[7] Ibid 515 [51] (McHugh J).
In the footnotes to his reasons in Ostrowski, McHugh J also refers to the decision of Gleeson CJ in Strathfield Municipal Council v Elvy[8]. In that case the New South Wales Court of Criminal Appeal found that a mixed question of law and fact did not permit the defendant to assert a successful defence, adopting a process of purposive statutory construction. The offence concerned a failure of a councillor to disclose a pecuniary interest in the course of council proceedings, where there was a likelihood of financial loss or gain. What Gleeson CJ said was this:
Having regard to the subject matter involved, I cannot accept as a matter of construction of section 46C that the legislature contemplated that members of councils, being aware of the relevant primary facts giving rise to a pecuniary interest in a particular subject matter, could then sit in judgment upon that issue for themselves, and make out a defence to a charge of a breach of section 46C based upon giving themselves the benefit of the doubt. It is one thing (leaving aside questions of onus of proof) to accept that a member C of council has made an honest and reasonable mistake about a matter of primary fact. It is another thing to treat as decisive the member's judgment upon matters of opinion or degree which may be involved in proceeding from a premise as to the existence of certain primary facts to a conclusion as to the existence of “pecuniary interest”. Once one goes past the relevant primary facts, such questions of opinion and degree will often be closely bound up with a view as to what kind of interest one is obliged by the statute defendant to disclose; these may be mixed questions of fact and law. Mistakes on matters of that kind would not ordinarily constitute mistakes of fact.[9]
[8] (1992) 25 NSWLR 745.
[9] Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745, 751 (Gleeson CJ, Clarke JA and Lee AJ concurring) (‘Strathfield’).
The learned author of Howard’s Criminal Law deals with the distinction between mistakes of fact and law in these terms:
“a mistake of fact occurs when the defendant is mistaken as to what actually are the facts. A mistake of law occurs when the defendant is mistaken as to the legal relevance of facts.” [10]
[10] Colin Howard and Brent Fisse, Howard’s Criminal Law (Law Book Company, 5th ed, 1990) 506.
Some support for that approach can also be found in the decision in R v Lavender.[11]
[11] R v Lavender [2005] HCA 37, 222 CLR 67.
A preliminary question which arises from the authorities is how to correctly categorise what the defendant says was his mistake.
Accepting the defendant’s testimony for present purposes, the logical analysis is that he in fact made two mistakes. The first was that the item he possessed was a gel blaster; the second was that a gel blaster was not a prohibited firearm. Viewed in that way, the circumstances of his mistakes are outside the “compound event consisting of law and fact” described by Dixon J in Thomas.[12] They are redolent of a distinction between a primary fact and a subsequent judgment based upon it, as described by Gleeson CJ in Strathfield.
[12] Thomas (1937) 59 CLR 279, 306.
Authority for the approach of identifying with precision the separate components of what is said to constitute a single mistake of mixed fact and law is to be found in the reasons of the majority in Power v Huffa.[13]
[13] (1976) 14 SASR 337.
In that case, the appellant faced a charge of loitering in the vicinity of what was a protest by a group of Aboriginal Australians. She said that she had spoken to Senator Cavanagh (the then Federal minister for Aboriginal Affairs) and that she had his authority to remain at the site. Her defence to the charge included that she had a mistaken belief that she was acting under the lawful authority of the Minister in remaining at the site.
The third of the questions of law reserved for the Full Court was in these terms:
Did the learned Special Magistrate fall into error in failing to consider (if he did so fail) whether there was a reasonable possibility that the appellant was acting under a belief which amounted to a mistake of fact or alternatively of a mixed fact and law that she was acting under the lawful authority of Senator Cavanagh and if so in either case does that amount to a defence to the charge? [14]
[14] Ibid 340.
In dealing with this question, Bray CJ said:
The belief posed by the third question is the belief that the appellant was acting under the lawful authority of Senator Cavanagh. That resolves itself into two parts: (a) a belief that she was acting under his authority, (b) a belief that that authority was lawful. Expressed in that way, I think that if her second belief was mistaken the mistake was clearly one of law. Therefore I think that a vital part of the alleged mistaken belief was a mistake as to the law. The defence is not open.[15]
and later:
If the appellant had been mistaken about the identity of the person to whom she spoke on the telephone, that would have been a mistake of fact; if she had been mistaken about the rank or office which he held, that would have been a mistake of fact; if she had misapprehended the nature of the orders or instructions of Senator Cavanagh, that would probably I think have been a mistake of fact; but if she was mistaken as to his legal authority to order or empower her to remain in the street, or so to remain irrespective of any contrary request or order of a police officer, that, in my view, could only be a mistake of law. I think the third question should be answered accordingly.[16]
[15] Ibid 345.
[16] Ibid 346.
On that reserved question the reasons of Jacobs J included the following:
There is, however, a third possibility, namely that the appellant was mistaken, both as to the purported exercise of the power, and as to the power itself. Then as it seems to me she has made two mistakes, one a mistake of fact, and one a mistake of law, and the form of the question, as a single question, cannot justify the assertion that there is but a single mistake, being one of mixed fact and law. Neither Thomas v. The King, nor any of the other cases relied on in argument, is authority for such a proposition. Indeed, in that case there was no mistake of law, as such. There was but one mistake, a mistake of fact. The question which the Court had to determine was "how far a belief in a state of facts, which, if correct, would mean that the prior marriage was void, affords an answer to a charge of bigamy" (per Dixon J. at p. 299). It was the operation of the law upon a mistaken view of the facts that had to be considered, and in that sense only was it a mixed question of law and fact: there was but one mistake, and that a mistake of fact. So here, the authority (if any) which the appellant had from Senator Cavanagh to be present afforded an answer to the charge if, but only if, the legal consequence of such authority as she believed herself to have was such as either to prevent the appellant from being a loiterer, in which case she could not lawfully be ordered to move on, or to override the statutory power of the police constable with respect to persons loitering. If, however, that was not the legal effect of the authority which she had, or believed she had, she is mistaken as to the law, and such a mistake is no answer to the charge.[17]
[17] Ibid 356-7.
Accepting for present purposes the defendant’s testimony, my conclusion is that the circumstances are more properly described as him having made two mistakes - a mistake of fact followed by a mistake of law.
His belief he had acquired a gel blaster leads to the conclusion that he made a mistake of fact – resulting in a mistaken belief that what he possessed was a gel blaster and what he described as a toy. That mistake of fact has no legal effect. Even if the item was a gel blaster (and/or a toy), it was still a prohibited weapon.
His belief that the item was not a prohibited firearm was a mistake of law. He cannot have been mistaken as to any of the characteristics of the item he possessed which made it a prohibited firearm. He had loaded and used it. He knew it was air powered, that it propelled projectiles by that air power, that it was capable of automatic fire and that it was operated by means of a trigger. His mistake was, in effect, his opinion or judgment that an item with those characteristics was not a prohibited weapon.
In the circumstances that mistake can only be a mistake of law and not one of fact. It has no effect on his criminal responsibility.
I mention for the sake of completeness the defendant’s reliance on the decision in Powell v Chief Executive of Customs[18]. Judge McGill in the Queensland District Court decided the appeal before him without determination of any mistake of fact claim. In His Honour’s own words:
Because in my opinion on the evidence there was no offence, it is not helpful for me to attempt to embark upon a characterisation of the relevant mistake; on my analysis there was no mistake. I have dealt with this point principally so as to demonstrate that the reasons of the magistrate were in the circumstances seriously inadequate.[19]
[18] [2006] QDC 184.
[19] Powell v Chief Executive of Customs [2006] QDC 184, 15 [58].
I turn to consider the elements of the possession offence which remain in contest following my conclusion that the item possessed was a prohibited firearm.
The prosecution case is that the defendant was reckless as to whether or not the item he possessed was a prohibited firearm. The defendant submits that the recklessness test is not met.
Recklessness is defined in the Criminal Code relevantly in these terms:
A person is reckless in relation to a circumstance if—
(a) the person is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. [20]
[20] Criminal Code 2002 (ACT) s 20.
I accept that that the defendant was not cross-examined directly about his awareness of risk that the item was a prohibited firearm. He should have been. Nevertheless, the questions he was asked were such that any potential conclusion to that effect is not a denial of procedural fairness or an injustice, and awareness of risk may be inferred from other evidence.
In the end result I am satisfied that the defendant was aware of a substantial risk that the item he possessed was a prohibited weapon.
In his testimony the defendant said that he had seen a video on YouTube and that it had influenced his thinking. That video was played in the defence case. It is a public statement by a South Australia Police officer delivered in a press conference type environment with journalists present. He refers to gel blasters on several occasions as toys, and makes clear that ownership and possession of them is not an offence. He does go on to say that owners must exercise common sense, in case others – including police – get the impression that they are real firearms. Nonetheless, his message is clear: South Australia Police regard the items as toys.
Superficially the video supports the defence case, but there are several points to be made about it.
The first is that it is apparent that there is on display at the press conference a gel blaster about which the police officer is talking, but the item is not shown at any time in the video. To the extent that the video influenced the defendant’s thinking, that influence was derived entirely from what was said in the video and not by any impression gained from seeing any item being spoken about. The officer does refer to the item on display as looking like an assault rifle, although at a later point in the video he says, speaking of the item on display – “that is made of plastic”.
The next point is that the material prominently displayed as the backdrop to the video makes clear that the speaker is in South Australia and speaking on behalf of South Australia Police. In addition, the officer expressly says in effect that gel blasters are regarded as toys and that it is not illegal to possess a toy gun in South Australia. He is asked a question by a journalist in these terms – “is it illegal in other states?” – and he answers that question, directly and plainly saying, “yes it is” – before going on to talk in general terms about laws dealing with replica firearms laws in other jurisdictions. In that context – that is, speaking of other jurisdictions, he says – “other states have appearance-based firearms legislation, so if something looks like a firearm it’s deemed to be a firearm”.
At another point in the video a journalist asks, “is it just Queensland and South Australia where they are legal?”, to which the officer replies “yes”.
Mr Kukulies-Smith makes a number of valid submissions about matters going to whether the defendant was aware of the relevant risk. They include what the defendant says was the fact that the item was purchased via a public website from a company which also produced toys; that it was delivered to him via the ordinary postal system; that the gel balls were acquired from a Queensland company which had the word “toys” incorporated in its name; and that according to the defendant the item fired gel balls, as well as the defendant’s responses to police questioning.
They are, as I have said, valid submissions, but they must be weighed against the evidence supporting a conclusion that the defendant was aware of the relevant risk.
The defendant said in evidence that he had watched the South Australia Police video. It runs for about seven minutes. There is no basis to conclude that he did not watch all of it. There are several occasions where the South Australia Police officer says that gel blasters are toys, and he does say that it is not illegal to possess a toy gun in SA. But the video also expressly makes a number of things clear:
(a) First, that the officer is speaking of the position in South Australia;
(b) Next, that the item he is speaking about “is illegal in other states”;
(c) Next, that other states have appearance-based laws – such that if something looks like a firearm it is deemed to be a firearm;
(d) Finally, that it is only in Queensland and South Australia where the items he is speaking about are legal.
Some comments about the officer’s reference to appearance-based laws are called for. My conclusion that the item the defendant possessed was a prohibited firearm excludes the operation of the provisions of the Act dealing with imitation firearms, but that does not mean that the officer’s comments are irrelevant to the defendant’s awareness of risk.
That brings me to another aspect of the evidence – that is the physical appearance of the item possessed.
Photographs of the item form part of the expert’s report, at page five of the report of 29 November 2019. It is photographed with a “real” Colt M4 self-loading rifle.
In addition, the item itself was received in evidence. The photographs do not do justice to the striking similarity between the item and a functioning firearm. The item and its magazine are made of metal. It has the heft, feel and appearance of a functioning firearm in all respects.
The fault elements attaching to the offences charged against the defendant are to be assessed at the time of the alleged offences – that is, as at 12 November 2019 when he had the item in his possession. The defendant may not have been fully aware of the striking similarity to which I refer when he saw the item on a website for sale, but there can be no doubt that he was aware of it by the time he used it on 12 November 2019. The frequency with which military-style rifles are seen on popular television means that such a conclusion does not require the defendant to have had any personal familiarity with functioning firearms.
The striking similarity to which I refer can be seen as supporting a conclusion that the defendant was aware of the relevant risk, even in the absence of the information in the South Australia police video. In conjunction with the contents of that video it is more persuasive.
On the basis of the contents of the South Australia police video and the striking similarity to a functioning firearm to which I have referred, I am persuaded beyond reasonable doubt that the defendant was aware of a risk that the item he possessed was a prohibited firearm.
The second aspect of the test is that having regard to the circumstances known to the defendant, it was unjustifiable to take the risk.
The same evidence to which I have referred largely determines this question. I am satisfied beyond reasonable doubt that it is made out.
On the basis of the conclusions to which I have referred, I find the offence of possessing a prohibited firearm proved.
I turn now to the second charge – that of the improper carrying offence.
I have concluded that the item was a prohibited firearm.
The offence is one of strict liability.
What remains to be determined is whether the common law “defence” of mistake of fact is available to the defendant.
The test is expressed by Dixon J in Proudman v Dayman[21] in these terms:
An honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.
[21] (1941) 67 CLR 536, 540.
In He Kaw Teh v The Queen[22], the High Court made clear that there was no onus on an accused to prove the existence of mistake. If it is raised on the evidence, the onus is on the prosecution to disprove mistake beyond reasonable doubt.
[22] (1985) 157 CLR 523.
The prosecutor accepts that mistake is raised on the evidence.
The difficulty for the defendant is again that insofar as his mistake of fact about the item being a gel blaster is concerned, even if that that state of facts existed, his act would not have been innocent because gel blasters are also prohibited firearms.
My conclusion is that what the defendant says about being mistaken about the item being a prohibited firearm is a mistake of law, and therefore outside the application of the Proudman v Dayman defence.
Mr Kukulies-Smith concedes that the conduct of the defendant amounts to carrying the item on premises in a manner likely to cause reasonable fear of the infliction of injury.
In the circumstances I find that offence proved also.
| I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Morrison Associate: Samuel Cass Date: 23 April 2021 |
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