Martino v Green - [2001] WASCA 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: MARTINO -v- GREEN [2001] WASCA 181

CORAM: McLURE J

HEARD: 9 MAY 2001

DELIVERED : 24 MAY 2001

FILE NO/S: SJA 1071 of 2000

BETWEEN: MICHAEL SHAUN MARTINO
Appellant
AND
TREVOR GREEN
Respondent

Catchwords:

Criminal law - Offence against Firearms Act 1973, s 23(9)(d)(iii) - Meaning of a person "being responsible for storage of a firearm" - Whether delivering possession of a firearm to an unauthorised person is a failure to safeguard a firearm from improper use

Legislation:

Firearms Act 1973 s 23(9)(d)(iii)

Firearms Amendment Act 1996
Firearms Regulations 1974
Security and Related Activities (Control) Act 1996

Security and Related Activities (Control) Regulations 1997

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr R K Williamson
Respondent: Ms C J Thatcher

Solicitors:

Appellant: Williamson & Co
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Crowe v Graham (1968) 121 CLR 375
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Horsman v Bishop [2000] WASCA 316
Purdon v Dittmar (1972) 1 NSWLR 94
Turner v Keegan [2001] WASCA 9

Case(s) also cited:

R v Phillips (1971) 45 ALJR 467

McLURE J: The appellant was charged in the Court of Petty Sessions that between 2 March 1999 and 3 March 1999 at Perth, he being responsible for the storage of a firearm namely a self‑loading pistol, Browning make, Serial number 245PZ44460 9mm Calibre, failed to safeguard it from loss, or improper use contrary to s 23(9)(d)(iii) of the Firearms Act 1973 ("Act").
The appellant pleaded not guilty to the charge and the matter was heard in the Court of Petty Sessions, Perth, on 7 April 2000. The learned Magistrate found the appellant guilty and fined him $400 and ordered he pay costs of $57.70.
On 20 February 2001, McKechnie J granted the appellant leave to appeal on the grounds that the Magistrate made an error of law:
"(a)... when he held that the applicant's act of giving the firearm to another person, so that person could use it, could be characterised as a failure to act, namely, to safeguard the firearm from loss or improper use.
(b)... in holding that relevant to whether such an act could be characterised as such an omission was whether the act was lawful."

Facts

The appellant was at the material time the holder of a security agent's licence on behalf of Protective Services International Pty Ltd ("Company") pursuant to the Security and Related Activities (Control) Act 1996 ("Security Act"). It was common cause at the trial, and the evidence established, that at the material time the Company was the holder of a Corporate licence pursuant to s 16 of the Act for the firearm the subject of the charge ("firearm") and the appellant was an executive director of the Company.
The appellant's security agent's licence held on behalf of the Company authorised the appellant to supply licensed security officers in accordance with the provisions of the Security Act and subject to the condition that the licensed security officer only possess or carry a firearm with the appropriate endorsement on the officer's licence. Darren Folland was an employee of the Company and a licensed security officer pursuant to the Security Act. Mr Folland's security officer's licence was also held on behalf of the Company and was endorsed as follows:
"FIREARMS
You are authorised to possess firearms while engaged in:
(a)the escort of money or articles of value but NOT otherwise."
On 2 March 1999, the appellant asked Mr Folland and Mr Folland agreed, to act as the after hours call‑out officer for that day. The Company provided a 24‑hour service and the person on call, usually the appellant,was expected to respond to after hours requests for escort services. The Company's firearms' register shows that on 2 March 1999 at 1800 hours Mr Folland received possession of the firearm. It was provided to him by the appellant. The firearms' register also shows that earlier on 2 March 1999 Mr Folland had taken possession of and subsequently returned a firearm. There were no call-outs after 6 pm on 2 March 1999 to which Mr Folland was required to respond.
Mr Folland took the firearm to a house in West Leederville. Later that night he left the house in West Leederville to visit a friend. Mr Folland left the firearm rolled up in clothing in an unlocked bag in a room of the house. The house was unsecured. An occupant of the house, Mr S Aimes, stole the firearm. Mr Folland was charged with breaching s 23(9)(d)(iii) of the Act and s 64 of the Security Act. The charges against the appellant and Mr Folland were heard together.
The parties conducted the case (and the appeal) on the basis there was no relevant distinction between the Company and the appellant. This approach is reflected in the Magistrate's reasons.

The Learned Magistrate's Reasons and Findings

The Magistrate held that Mr Folland had failed to comply with a condition of his security officer's licence in that he was in possession of the firearm while not engaged in the escort of money or articles for value in breach of s 64 of the Security Act. Mr Folland was also convicted of breaching s 23(9)(d)(iii) of the Act.
As a result of the charges against the appellant and Mr Folland being heard together, and both men being charged with a breach of s 23(9)(d)(iii) of the Act, it is difficult to be entirely satisfied as to which part of the Magistrate's reasoning is intended to apply to both men. The Magistrate said at AB93:
"And the simple answer to the defendants' case here is, he didn't keep it safe because he allowed Mr Aimes to steal it. Left it in that position where he could steal it and that wasn't safe. And he didn't keep it safe. It's not quite an absolute strict liability, because one would have to - - although it is printed as it's - it's enacted as a strict liability, he must take proper precautions - - every precaution to ensure that the thing is not lost or otherwise improperly used.
That is almost strict, but the court would have to say, he's only got to do those things that are reasonably necessary. ...
It is a strict obligation against anything except the fanciful possibility of being lost or stolen. That is backed up by the requirements of the Regulations as to storing these things. And Mr Martino knew what was required, it was brought back to his place of business and he carefully put it in a safe and locked it. And I take it he would have control of the key. And he knew that; and he knew that had to be done.
So its idle for him to say, well it's okay for me just to give it to my employee and say, 'You go and look after it, you've got a safe at home. Off you go.' when, he knows the requirement is so strict in his own place of business. And that is the requirement that Mr Martino had. He had the requirement that it be delivered to him promptly and he must put it in his safe and keep it there safely. And, he didn't do that, he gave it to Mr Folland; and Mr Folland took it off somewhere and it was not fanciful possibility that Folland might do something he shouldn't have done about keeping the thing.
For a start, Mr - - at that point Mr Martino had the responsibility for its safe‑keeping and he knew he should have put it in his safe. And that is safe‑keeping. He knew that. And by giving it to Folland, could in no way - - to take out - - be considered to be safe‑keeping. He knew that he only had the right to give it to Folland when he was engaged in the escort of money and one would expect that every other time Folland had taken this firearm, that it's come back immediately; as it did on the 3rd of - - 2nd of March - - come back immediately and be placed in the safe.
...
So, I'd have to find that at the time when Martino gave it to the defendant, he was the person responsible for the - - responsible for the firearm and he did not do - or he failed to safeguard it from loss, by just allowing Folland to take it. And he must have known it was contrary to the Regulations.
...
As far as - - the charge against Mr Martino is made out. I'm satisfied beyond reasonable doubt that he was the person responsible for the storage of the firearm and he didn't - - and he failed to safeguard it from loss or improper use, by simply giving it to Mr Martino ... (on tape) ... for terms outside the terms for which he had it. That is, for the escort of money."
In the course of considering the charge against Mr Folland for breach of s 23(9)(d)(iii) of the Act, the Magistrate said:
"As far as being responsible for the firearm, the term being responsible for the storage of the firearm, is not defined, nor is the term being responsible, is not defined in the Act at all. And so then one has to look at it, as whether it's a question of actual responsibility or physical responsibility or legal responsibility. And if the defendant has been given the firearm and it's in his possession; being given it to him by the - - Mr Martino; lawfully or unlawfully, it's in his possession and anyone in possession of a firearm must do those things, that a person in possession of a firearm must do.
And he's got a responsibility when it's not being used lawfully to keep it - - to store it. And he certainly did not do that. The fact that Mr Aimes could get it so easily is evidence of that fact. The likelihood of Aimes taking it, is really not the issue. He put it somewhere, where it was possible for someone else to take it. And, reasonably possible. He didn't store it in the way the Regulations in the Firearms' Act require you to. So, he also is a person responsible and he failed to safeguard it from loss."

The Act, Firearms Regulations, Security Act and Regulations

The Act was extensively amended by the Firearms Amendment Act 1996 as a result of meetings of the Australian Police Ministers Council following events that occurred in Port Arthur, Tasmania during 1996. The Amendment Act introduced obligations in relation to storage of firearms and ammunition by inserting pars (d) and (e) of s 23(9) and effected consequential amendments to par (a) of s 23(9) of the Act.
Section 23(9) of the Act materially provides:
"A person who, -
(a)whilst carrying, or in actual physical possession of, or having the custody or control otherwise than by way of storage of, any firearm or ammunition, fails or omits to take all reasonable precautions to ensure its safekeeping;
(b)...;
(c)...;
(d)being responsible for the storage of any firearm or ammunition, fails -
(i)to provide and use adequate storage facilities to ensure its safety;
(ii)where prescribed requirements as to security are specified in relation to a firearm or ammunition of a prescribed kind, to ensure that those requirements are observed; or
(iii)otherwise, to safeguard it from loss or improper use;
(e)being responsible for the storage of any firearm or ammunition, refuses to permit a member of the Police Force to inspect the storage facilities provided, at a reasonable time after such an inspection is requested in writing by the member of the Police Force,
commits an offence."
The regulation‑making power is contained in s 34 of the Act. Pursuant to s 34(2)(g), the Governor may make regulations for or with respect to:
"making provision for the safe custody and control of firearms and ammunition by persons entitled to possession and for restricting the amount of ammunition that may be possessed."
The term "possession" is defined in the Act as:
" ... in addition to actual physical possession of a firearm ... , means the custody or control of it, or having and exercising access to it in any place either alone or in common with others."
Regulation 11A of the Firearms Regulations 1974 is headed "Storage security requirements" and subregulation (1) provides:
"A person entitled to possess firearms or ammunition of any kind is to ensure that the firearms or ammunition are stored in accordance with this regulation."
The firearms are to be stored in a locked cabinet that meets the specifications described in schedule 4 or in such other way as is approved (reg 11A(2)). The specifications deal with how the storage cabinet is to be constructed, locked and anchored.
In introducing the 1996 Amendment bill in the Legislative Assembly, the Minister for Police in his Second Reading Speech on 26 September 1996 (Hansard, 26 September 1996, page 6306) said:
"Clause 25(g)(v) [of the Amendment Act] will in section 23(9)(d) require a person who is responsible for the storage of a firearm and ammunition to store the firearm and ammunition in accordance with requirements prescribed in regulation 11A. ...
In order to determine how a licence applicant intends to comply with the requirement, and what facilities an existing licence holder has, a person may be required, pursuant to regulation 11C, to supply the commissioner with a statutory declaration as prescribed in form 17A.
Where a person fails to comply with any of the storage requirements, including the tendering of the declaration, the commissioner may, pursuant to clause 12, in respect of an applicant, refuse to issue a licence or, if the person is an existing licence holder, pursuant to clause 21(a)(iii) either not renew or revoke the licence."
The Second Reading Speech insofar as it deals with par (d) of s 23(9) is confined to matters relating to storage.
The Act provides for a variety of licences relating to firearms. This case concerns a Corporate licence. Pursuant to s 16(1)(c) of the Act, a Corporate licence may be issued in the corporate or trading name of an organisation approved by the Commissioner of Police and entitles that organisation to possess the firearms named and identified in that licence. Further, subject to s 16A of the Act, a Corporate licence authorises that organisation to permit any person to whom s 16(2) applies to possess, carry and use any such firearm either
(i)on the premises of the organisation; or
(ii)in the course of carrying out a function approved by the Commissioner and authorised by that organisation,
in accordance with the terms, restrictions, limitations and conditions applicable to that licence.
Section 16(2) of the Act provides that an organisation which holds a Corporate licence may permit a person who is an employee or agent of that organisation to possess, carry or use a firearm in accordance with that licence. However, s 16A of the Act provides:
"A Corporate Licence referred to in s 16(1)(c) authorises an organisation for which a security agent's licence is held under the Security and Related Activities (Control) Act 1996 to permit an employee to possess a firearm or ammunition to the extent only that the employee is authorised to do so by a security officer's licence endorsed under s 24 of that act."
Section 24 of the Security Act is in terms that a security officer's licence may be endorsed to authorise the security officer to be in possession of a firearm while engaged in the escort of money or articles of value but not otherwise. That endorsement was on Mr Folland's security officer's licence.
Further, s 63(1) of the Security Act provides that Regulations may prescribe conditions and restrictions that are to be taken to be attached to a security agent or security officer's licence unless otherwise provided by the licence or endorsement of the Security Act.
Regulation 21 of the Security and Related Activities (Control) Regulations 1997 ("Security Regulations") provides that for the purposes of s 63 of the Act, the conditions and restrictions set out in Schedule 1 Divs 1 and 2 apply to all security agents' licences and security officers' licences respectively.
Condition 5 of Div 1 of Sch 1 makes it a condition of a security agent's licence that:
"A firearm used in the business must be kept, while not being used, at the place of business specified in the security agent's licence in storage facilities which are adequate to ensure its safety and to safeguard it from loss or improper use."
Condition 10 of Div 2 of Sch 1 relating to a security officer's licence provides:
"A security officer who is in possession of a firearm while performing a licensed activity must, at the end of the activity, promptly return the firearm to the security agent in whose business he or she is employed."
Section 8 of the Act lists a number of persons entitled to possession of a firearm without a licence. The effect of s 8(1)(f) is that a licence is not required under the Act by a person who has a firearm in his possession, or carries or uses it, in accordance with the permission given under s 16(2) by an organisation licensed by the Commissioner under s 16(1)(c) of the Act. However, s 16(2) is subject to s 16A of the Act which incorporates the restrictions imposed under the Securities Act.

The Appeal

The appellant's contentions in the appeal were that:
(a)Section 23(9)(d) applies to a person having custody or control of the firearm by way of storage because s 23(9)(a) otherwise applies to a person carrying, or in actual physical possession of, or having the custody or control otherwise than by storage of, any firearm.
(b)Responsibility for storage of a firearm falls on the person who is in actual physical possession of the firearm, whether the possession be lawful or unlawful and then converts actual physical possession to custody or control by way of storage;
(c)The word "otherwise" in par (iii) means the obligations in that paragraph are in the alternative to the obligations in par (ii) in the event regulations are not made or do not apply to the firearm in question;
(d)The appellant's act of delivering the firearm to Mr Folland, even if Mr Folland was not entitled to possession of the firearm was not a failure (in the sense of an omission) to safeguard a firearm from loss or improper use.
The appellant interpreted the Magistrate as concluding that the breach occurred only as a result of the appellant's act of giving the firearm to Mr Folland.
The respondent's contention was that s 23(9)(d)(iii) of the Act is not confined to storage requirements. Rather, the person with responsibility for storage is required to safeguard the firearm from loss or improper use. On the facts before the Magistrate, the appellant had breached s 23(9)(d)(iii) of the Act because:
(a)As the holder of the Corporate licence for the firearm, the appellant was a person with responsibility for storage;
(b)The appellant had failed to safeguard the weapon from improper use by Mr Folland as he had permitted or given possession of the firearm to Mr Folland in circumstances where he was not entitled to possession;
(c)The appellant had an obligation to ensure that while the firearm was in Mr Folland's custody it was safeguarded from loss or improper use by others (and there was no evidence that the appellant had taken steps to ensure Mr Folland would or would be able to safeguard the firearm from loss or improper use).
The first question of construction relates to the identification of the person or persons "being responsible for the storage of any firearm". Surprisingly, the Act does not expressly deal with who is responsible for the storage of a firearm or in what circumstances the obligation to store arises.
The appellant's contention that a person "being responsible for storage" under s 23(9)(d) of the Act is limited to the person who, being in actual physical possession, lawful or otherwise, converts his or her physical possession of the firearm to custody or control by way of storage is inconsistent with the scheme and protective purpose of the Act: Turner v Keegan [2001] WASCA 9; Horsman v Bishop [2000] WASCA 316.
The starting point in determining the meaning of the opening words of s 23(9)(d) is to consider the obligations in subparagraphs (i) and (ii) of s 23(9)(d). The obligations are to:
(a)provide adequate storage facilities to ensure the safety of the firearm;
(b)use such facilities to ensure safety; and
(c)ensure that the prescribed storage requirements are observed.

Having regard to the nature and extent of the obligations in s 23(9)(d)(i) and (ii) and on a proper construction of the Act as a whole, "a person responsible for storage" would include the holder of the licence for the firearm. This conclusion is supported by s 11(7)(b) of the Act which provides that the Commissioner may refuse an application for a licence if satisfied that the applicant has:
"(b)failed to give the Commissioner, when requested in writing by a member of the Police Force to do so, a statement in the prescribed form as to what the applicant has done, or intends to do, to ensure that any firearms or ammunition in the applicant's possession are stored in accordance with this Act;"
The Commissioner may refuse to renew or may revoke a licence on the same ground: s 20(1) of the Act. Further, s 31(2) of the Act in combination with reg 18(1)(a) imposes on the holder of a Corporate licence an obligation to compile and maintain a firearm's register containing details relating to, inter alia, possession of the firearm by employees. The fact that s 23(9)(d) does not in terms place the obligation on the licence holder is not determinative. It is to be expected that the obligations relating to storage would apply to the persons (or some of them) who are exempt from the licensing requirements under to s 8 of the Act. The statement is qualified because it is not entirely clear what the position is when a person's right to possession of a firearm is derivative (in the sense the entitlement only exists when the person is relevantly authorised by the holder of a Corporate licence) and limited.
Common to both licence holders and exempt persons is their legal entitlement to possession of the relevant firearm. In addition, the regulation‑making power in support of s 23(9)(d)(ii) of the Act refers to "making provision for the safe custody and control of firearms ... by persons entitled to possession ...". I interpret the word "entitled" in s 34(2)(g) of the Act to mean legally entitled. Thus, prima facie, on a proper construction of the Act, a person responsible for storage is a person who is entitled to possession of the firearm.
As a result of the width of the statutory definition of "possession", the derivative nature of some entitlements and the potential for multiple licence holders for a single firearm, a number of people (but not necessarily all who are entitled to possession) may on the facts of a particular case, commit a breach of s 23(9)(d) of the Act. I do not regard that outcome as inconsistent with the legislative intention or purpose or unworkable. A similar outcome is achieved, albeit by a different route, for holders of a Dealers, Repairers or Manufacturers' licence: s 32; s 21A and s 21B of the Act.
However, it is necessary to give further consideration to the position of persons whose entitlement to possession derives from the licence and permission of a Corporate licence holder. Whilst it is to be expected that such persons would be obliged to use appropriate storage facilities as required in s 23(9)(d)(i) and (ii), the appropriateness of the obligation to "provide" storage facilities is not immediately obvious. However, the word "provide" would include a person who had an arrangement whereby he or she had access to conforming storage facilities.
That being so, a further distinction may have to be drawn between persons having a derivative entitlement to possession by way of storage and other persons whose entitlement to possession does not extend to possession by way of storage, such as licensed security officers. However, in view of the difficulties of construction of the Act, I do not intend to go any further than is necessary to determine the appeal in this case.
On a proper construction of the Act as a whole, a person responsible for the storage of a firearm under s 23(9)(d) of the Act includes a person (or persons) entitled to possession (as that term is defined in the Act) of a firearm by way of storage. "Entitled" in this formulation means legally entitled under the Act and would include the holder of a relevant licence and an appropriately authorised agent or employee of a Corporate licence holder.
Thus, the Company was a person responsible for the storage of the firearm for the purposes of s 23(9)(d) of the Act. Further, as the appellant was in (lawful) custody and control by way of storage of the firearm at the material time, he was also a person responsible for the storage of the firearm under s 23(9)(d) of the Act. The appellant's authority derives from the Company and his security agent's licence.
Subparagraphs (i), (ii) and (iii) of s 23(9)(d) are separate and alternatives in which case a failure to comply with any subparagraph is an offence: Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 133. Further, the word "otherwise" is not usually read as "likewise" in which case the ejusdem generis rule would not apply: Crowe v Graham (1968) 121 CLR 375 at 388; Purdon v Dittmar (1972) 1 NSWLR 94 at 96. However, as the obligations in the subparagraphs are placed on the person responsible for storage, it is reasonable to construe subparagraph (iii) as an obligation relating to or connected with storage.
In my opinion, the Magistrate was correct in finding that the appellant failed to safeguard the firearm from improper use. Section 23(9)(d)(i) imposes an obligation to use adequate storage to ensure safety (and safety of the firearm is not co‑extensive with loss or improper use of the firearm: Condition 5 of Div 1 of Sch 1 of the Security Act). On its proper construction, subparagraph (iii) imposes an obligation in broad terms to safeguard by way of storage a firearm from loss or improper use. It is to be inferred from these subparagraphs and the Act as a whole that a firearm is to be stored unless it is lawfully in a person's possession otherwise than by way of storage. Further, in this case it was a condition of the appellant's security agent's licence that the firearm be in storage at the Company's place of business when not in lawful use. Accordingly, the appellant was under a duty to store the firearm. He was in breach of that duty and thus failed to safeguard the firearm from improper use when on 2 March 1999 he removed it from storage and delivered it to Mr Folland who was not in the circumstances entitled to be in possession of the firearm.
In view of my conclusion it is unnecessary to deal with the third element of the respondent's argument. I propose to order that the appeal be dismissed.