Madeleine Kubler v Christopher Michael Gunner - [2021] ACTMC 6

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, 5^th 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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACTMC 6
Decision Date: 23 April 2021

CaseChat Overview and Summary

The appellant, Madeleine Kubler, was convicted by the Magistrates Court of the Australian Capital Territory of possessing an unlicensed firearm, namely an airgun, contrary to s 64 of the Firearms Act 1996 (ACT). The respondent, Christopher Michael Gunner, being the Attorney-General for the Territory, appealed the conviction. The central issue in this appeal was whether the definition of "airgun" in the Firearms Act 1996 (ACT) was invalid for the same reasons as the definition of "air weapon" in DPP v Scheele [2016] ACTCA 23. Another issue was whether the appellant's mistake of fact about the airgun being non-prohibited was valid under common law and Criminal Code 2002 (ACT) s 35.

The court held that the definition of "airgun" in the Firearms Act 1996 (ACT) was not invalid for the same reasons as the definition of "air weapon" in Scheele. The court found that the definition of "airgun" was not ambiguous or uncertain, and that the appellant's mistake of fact about the airgun being non-prohibited was not valid under common law or Criminal Code 2002 (ACT) s 35. The court held that the appellant's mistake was a mistake of law, which was not a valid defence under either common law or the statute. The court held that the appellant's belief that the airgun was non-prohibited was based on a misinterpretation of the statutory definition of "airgun", and that this misinterpretation was a mistake of law, not a mistake of fact.

The appeal was dismissed, and the conviction was upheld. The court ordered that the conviction and sentence of the appellant be affirmed. The court also ordered that the appeal be dismissed with costs.

Orders

Orders of the court

See paragraphs [65] and [76]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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