Peter James Shumack v Matthew Lyddiard

[2007] ACTCA 3

PETER JAMES SHUMACK v MATTHEW LYDDIARD
[2007] ACTCA 3(12 February 2007)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 12 - 2006
No. SCA 47 of 2005

Judges:         Higgins CJ, Gray and Madgwick JJ
Court of Appeal of the Australian Capital Territory
Date:            12 February 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 12 - 2006
  )          No. SCA 47 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER JAMES SHUMACK

Appellant

AND:MATTHEW LYDDIARD

Respondent

ORDER

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  12 February 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed;

1. The sentence on both counts be replaced with a non-conviction order with a 12 month good behaviour condition;

1. The Mauser rifle not be forfeited to the Territory; and

1. Leave be granted to apply to a single judge for any incidental orders in relation to the third order.

IN THE SUPREME COURT OF THE       )          No. ACTCA 12 - 2006
  )          No. SCA 47 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER JAMES SHUMACK

Appellant

AND:MATTHEW LYDDIARD

Respondent

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  12 February 2007
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. For my part I have reviewed the reasons given both by the learned magistrate and by Connolly J, and so far as the events leading to the finding of guilt, I am of the same view as Connolly J was, which, in essence, is that there was an issue of fact about it, and one respects Mr Schumack’s different view of it, but the fact is that findings of fact were made.  They do not appear to be out of the range of the scope available to the magistrate and/or the learned judge.  Those findings were made based on credibility and, as has been pointed out by Connolly J, that is something which is very difficult on an appeal to overturn or review.  And for that reason it seems to me that the finding of guilt would have to stand. 

1. The weapon was unsecured.  The mere fact it was missing its bolt does not mean it is not a weapon, for the reasons which Connolly J adverts to.  The ammunition, it is admitted, was unsecured and although there was not a great quantity of it, nevertheless that would constitute the relevant offence.  But in connection with sentence, it does seem to me that there is much to be said for Mr Schumack’s past record.  It is an exemplary record in relation to firearms. 

1. The breaches in question, first of all, as to the Mauser firearm, Mr Schumack did explain that it was not possible to secure it within the locked cabinet because of its length.  He did make the point that, of course, the premises themselves were secured and there was no allegation that the weapon had been misused in any way by anybody, let alone Mr Schumack.  The reason for the police visit had nothing to do with any allegation of misuse of firearms.  True it is that the ammunition was unsecured and that seems to have been an oversight on Mr Schumack’s part.

1. So for my part I would think that, given the circumstances and Mr Schumack’s previous good record, certainly the most appropriate disposition was, and in my view, should be, that no conviction be recorded on either count, that is to say, a non-conviction order, but conditioned upon a good behaviour order, that is to say, an order that Mr Schumack submit to entering into a good behaviour order for a period of 12 months from today.  That means that Mr Schumack during that period must refrain from any breach of the law in relation to crime because any breach would carry with it not only whatever might be the penalty for that breach, but also the liability to be dealt with in this court.

1. I would be proposing that there should be a good behaviour order for a period of 12 months simpliciter.  I would, however, otherwise order in respect of the finding of guilt - just pausing there to say that that would automatically cause the weapon and ammunition to be forfeited to the Territory - but I would direct otherwise in relation to the Mauser rifle.  So that would mean that the Mauser rifle would be available to be returned to Mr Schumack subject, of course, to the usual requirements that there be a safe place of storage for it, current licences, et cetera, as with the other weapons.  And I would then leave it to the provisions of section 116, I think it was, to sort out any details that might need to be sorted out, but I would give either party, if they wished to, liberty to apply to a single judge of this court if there was some need to work out some detail.

1. I will just qualify what I said before about the connection with the guns.  It was unconnected with the misuse of guns.  It was some fear on someone’s part, I think, that there might be some threat that might conceivably involve the use of guns, but there was no actual misuse of guns that was alleged.  In any event, those will be the orders I would propose, so the appeal would be allowed to that extent.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:     12 February 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 12 - 2006
  )          No. SCA 47 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER JAMES SHUMACK

Appellant

AND:MATTHEW LYDDIARD

Respondent

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  12 February 2007
Place:  Canberra

REASONS FOR JUDGMENT

GRAY J:

1. I agree with the disposition of this matter in the manner that the Chief Justice has proposed.

I certify that the preceding paragraph numbered seven (7) is a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date:     12 February 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 12 - 2006
  )          No. SCA 47 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER JAMES SHUMACK

Appellant

AND:MATTHEW LYDDIARD

Respondent

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  12 February 2007
Place:  Canberra

REASONS FOR JUDGMENT

MADGWICK J:

1. I agree too.  I just add two things.  The first is that the Mauser rifle, although not stored in a safe, had been disabled and the bolt mechanism was locked in the safe. 

1. The second is that Mr Schumack had been employed for a number of years in public employment until the late 1990s.  He has apparently been unemployed since then and continues to seek employment in the public sector.  It seems wholly probable that a conviction for a firearm offence would stand against him in these endeavours and, in the circumstances, his good character and the nature of these matters, the

disproportionate effect of a conviction is also a factor that favours the course proposed by the Chief Justice.

I certify that the preceding paragraphs numbered eight (8) and nine (9) are a true copy of the Reasons for Judgment herein of his Honour, Justice Madgwick.

Associate:

Date:     12 February 2007

Counsel for the Appellant:  Self represented litigant
Counsel for the Respondent:  Mr Richard Refshauge SC
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  12 February 2007
Date of judgment:  12 February 2007