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

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…

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.

Continue reading Martino v Green

Details

AGLC: Martino v Green [2001] WASCA 181
Case: [2001] WASCA 181
Decision Date: 24 MAY 2001

CaseChat Overview and Summary

In the matter of Martino v Green, the appellant contested a conviction under section 23(9)(d)(iii) of the Firearms Act 1973, which pertains to the offence of a person failing to safeguard a firearm from improper use. The case involved the appellant, Martino, who was found to have delivered possession of a firearm to an unauthorised individual, Green. The crux of the dispute lay in the interpretation of the term "being responsible for storage of a firearm" and whether such responsibility included preventing the delivery of the firearm to an unauthorised person.

The primary legal issue that the court had to determine was the extent of the responsibility of a person in possession of a firearm under the Firearms Act. Specifically, the court needed to clarify if a failure to safeguard a firearm from improper use encompasses the act of delivering the firearm to an unauthorised person. This required an analysis of the statutory language and its implications in the context of firearm regulation and public safety.

The court examined the statutory language and found that the term "being responsible for storage of a firearm" implied a broader obligation than merely physical possession. It included the duty to ensure that the firearm was not improperly used, which necessarily involved preventing its transfer to unauthorised persons. The court concluded that delivering a firearm to an unauthorised individual constituted a failure to safeguard it from improper use, thereby upholding the conviction. The decision emphasised the importance of strict compliance with firearm regulations to prevent misuse and protect public safety.

Orders