Police v Anderson
[2025] SASC 35
•19 March 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
POLICE v ANDERSON
[2025] SASC 35
Judgment of the Honourable Justice McIntyre
19 March 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - GENERALLY
MAGISTRATES - ORDERS AND CONVICTIONS - ACQUITTAL
This is an appeal from a Magistrate Court decision acquitting the respondent of the offence of aggravated possession of a category H firearm for a purpose not authorised by his firearms license contrary to s 9(2) of the Firearms Act 2015 (SA).
The respondent collapsed in a carpark whilst carrying a loaded Category H firearm which was discovered when he received medical treatment. The contentious issue related to the respondent’s possession of the firearm outside his premises and whether that was authorised by his licence.
The appellant appeals on two grounds. First that the trial Magistrate failed to consider the operation of s 9(3) of the Firearms Act, thereby applying the wrong burden and standard of proof when assessing whether the charge was made out. Second and that the trial Magistrate committed an error in both fact and law in finding that the respondent was in possession of the firearm for a purpose authorised by his licence
Held in dismissing the appeal
1.Section 9(3) of the Act is concerned with an evidential onus and not with the legal burden of proof. The issue for the trial Magistrate was, having regard to the whole of the evidence, including the evidence given by the respondent, whether the prosecution had proved beyond reasonable doubt that his possession of the firearm was for an unauthorised purpose.
2.Section 9(2) of the Act does not prevent a person who is in possession of a firearm whilst transporting it for the purpose of testing or repair, stopping en route to the testing range or the repair shop.
3.Whether a stop constitutes a change in the lawful purpose or a secondary purpose is a question of fact and degree.
Firearms Act 2015 (SA) ss 3, 9; Firearm Regulations 2017 (SA) reg 24, sch 1 reg 28; Magistrates Court Act 1991 (SA) s 42; Official Secrets Act 1911 (UK) s 1; Police Offences Act 1953 (SA) s 15, referred to.
Police v Anderson (Magistrates Court of South Australia, Magistrate Browne, 15 October 2024); Robinson Helicopter co Inc v McDermott (2016) 90 ALJR 679; Fox v Percy (2003) 214 CLR 118; Police v Baker [2015] SASC 110; Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116; Evans v Benson (1986) 46 SASR 317; Hollick v Police [2012] SASC 11; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Momcilovic v The Queen (2011) 245 CLR 1; Construction, Forestry, Mining and Energy Union (CFMEU) v Hadgkiss [2007] FCAFC 197; R v Pringle [2017] SASCFC 9; R v Singh [2019] SASCFC 51; Cameron v Holt (1980) 142 CLR 342; Chandler & Ors v Director of Public Prosecutions [1964] AC 763; Holmes v Hatton (1978) 18 SASR 412, considered.
POLICE v ANDERSON
[2025] SASC 35Magistrates Appeal: Criminal
McINTYRE J: The respondent was charged with possessing a category H firearm for a purpose not authorised by his firearms licence under section 9(2) of the Firearms Act 2015 (‘the Act’). The offence was charged as an aggravated offence because the firearm was loaded. The prosecution elected to prosecute summarily under s 9(6) of the Act and the trial proceeded before a Magistrate. On 15 October 2024, the respondent was acquitted.
The appellant appeals on two grounds. The first is that it is contended that the trial Magistrate failed to consider the operation of s 9(3) of the Act and applied the wrong standard of proof in assessing whether the charge was made out and second, it is said that the trial Magistrate committed an error in fact and law in finding that the respondent was in possession of the firearm for a purpose authorised by his licence.
For the reasons that follow I dismiss the appeal.
Background
The respondent was, and had been for many years, the holder of a dealers’ firearm licence. The conditions of that licence are regulated by Regulation 24 of the Firearms Regulations2017 (‘the Regulations’) which relevantly provides as follows:[1]
[1] Firearms Regulations 2017 (SA) (‘the Regulations’) reg 24.
(1) Subject to this regulation, a category 11 (dealer) licence authorises the licensee to possess and use firearms, firearms partes and ammunition of a category or kind specified on the licence for the purpose only of the business of a dealer.
(2) …
(6) A category 11 (dealer) licence is subject to –
(a) except as provided for in subregulation (7), a condition that the licensee may only have possession of a firearm, firearm part or ammunition under the licence at the premises specified in the licence;
…
(7)Aa dealer may possess a firearm, firearm part or ammunition under the licence other than at the premises specified in the licence –
(a) for the purpose of testing or repairing a firearm;
…
The respondent was charged under s 9(2) of the Act which states as follows:[2]
A person who has possession of or uses a firearm for a purpose that is not authorised by a firearms licence held by the person is guilty of an offence.
[2] Firearms Act 2015 (SA) (‘the Act’) s 9 (2).
It was necessary for the prosecution to prove three elements beyond reasonable doubt. The first two elements, that the respondent was in possession of the firearm and that the firearm was a category H firearm, were not in dispute. The contentious issue was the third element. Specifically, whether the respondent’s possession of the firearm was for a purpose outside that permitted by his firearms licence.
The evidence at trial was largely uncontentious. The undisputed evidence is summarised in the judgment as follows:[3]
[3] Police v Anderson (Magistrates Court of South Australia, Magistrate Browne, 15 October 2024) (‘Magistrate Browne’s reasons’) at [7].
a) At about 11:00 am on Thursday 23 June 2022, police responded to an SA Ambulance request to attend Mount Barker Road at Stirling.
b) The defendant had collapsed in the car park area of the Stirling Shopping Centre.
c) Ambulance officers were treating the defendant for a cardiac arrest when they found a firearm in his right-hand trouser pocket.
d) Police attended and located the firearm in a leather holster and immediately placed it in the police vehicle.
e) The defendant was conveyed to the hospital.
f) The defendant was later interviewed by police on 16 November 2022 at 1.00 pm. The defendant admitted to being in possession of the firearm and gave his explanation. The explanation will be addressed later in this judgment.
g) On the 23 June 2022, the defendant was the holder of a current Dealer’s firearm licence 309795P for firearm categories: A, B, C, D, H and Z (P2). He was also the holder of a current Collector’s firearms licence 302614T (P3) and current firearms licence 156812J (P1).
h) The firearm in question was a firearm registered under the Dealer’s firearm licence.
i) The firearm was loaded at the time of defendant’s possession.
The contentious issue of fact related to the respondent’s possession of the firearm outside his premises. The respondent gave evidence that he had inserted ammunition into the firearm prior to attending a shooting club for the purpose of test firing the weapon. When he attempted to remove the ammunition in order to travel to the shooting club, he discovered that it had become jammed. He did not wish to make things worse by continuing his efforts to remove the ammunition and accordingly intended to convey the firearm to his usual repairer.
General principles
The appellant’s right of appeal arises under s 42 of the Magistrates Court Act 1991 and is by way of rehearing. It is not an appeal de novo and usually proceeds on the documents albeit with the power to receive further evidence. In this case, no additional evidence was called. The facts are, as I have said, largely uncontentious. The matter proceeded by way of submissions concerning the law and facts based upon the transcript and the exhibits.
A court hearing an appeal is required to conduct a real and independent review of the evidence put before the trial Magistrate and to come to its own conclusions. The court must, however, make due allowance for the advantage of the Magistrate in seeing and hearing the evidence given at trial. The court should bear in mind that it did not hear or see the witnesses, and it should not interfere with the Magistrate’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or “contrary to compelling inferences”.[4] As the plurality stated in Fox v Percy:[5]
In some, quite rare, cases although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to the, its own conclusion”. Finality in litigation is undesirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden nor in the face of the statutory requirement could it be. By ritual incantation about witness credibility, or by judicial reference to the desirability of finality in litigation or abiders of the general advantages of the trial over the appellate process.
[citations omitted]
[4] Robinson Helicopter co Inc v McDermott (2016) 90 ALJR 679 at [687].
[5] (2003)214 CLR 118 at [128 – 129].
A prosecution appeal from an acquittal should only be allowed in the clearest and most compelling circumstances, for the purpose of correcting manifest error. It will only be set aside where the acquittal sought to be impugned was plainly wrong on any reasonable interpretation of the evidence and the inferences which patently arise from it. Where there has been an error of law, a court might be more willing to interfere.[6]
Did the trial Magistrate fall into error in identifying the burden of proof?
[6] Police v Baker [2015] SASC 110 at [6] - [8] and [25] - [28].
The arguments
Ground 1 of the appeal contends that the trial Magistrate failed to consider the operation of, and apply, s 9(3) of the Act thus applying the wrong standard of proof in assessing whether the charge was made out.
Section 9(3) provides as follows:
(3)If, in proceedings for an offence under subsection (2), the evidence gives rise to a reasonable inference that the purpose for which the defendant had possession of or used the firearm was not authorised by the licence, the onus shifts to the defendant to establish that the purpose for which he or she had possession of or used the firearm was authorised by the licence.
The evidence at the conclusion of the prosecution case plainly gave rise to a reasonable inference that the respondent’s possession of the firearm at the relevant time was not authorised by his dealers’ licence. He was not at the premises stipulated in the licence. He was in a public car park. In those circumstances, the onus shifted to the respondent to establish that his purpose for possessing the firearm at that location was authorised under the terms of his licence. The question is whether that onus is solely an evidentiary burden or whether it also includes a persuasive or legal burden.
The appellant contends that trial Magistrate fell into error in identifying the burden of proof in her written reasons as follows:[7]
The defendant is presumed to be innocent of the charge. He does not have to prove anything or explain anything. The general rule is that the burden of proof lies on the prosecution, which has the onus of proving each essential element of the charge beyond reasonable doubt.
…
I find beyond reasonable doubt that the ATM stop does not constitute a diversion from the authorised purpose as defined by his dealer’s licence.
…
Considering the evidence presented, including expert evidence on the firearms condition, the credibility of the Respondent and supporting witness evidence the court finds that the prosecution has not met its burden of proof beyond reasonable doubt concerning the charge of possession of a firearm for an unauthorised purpose.
[7] Magistrate Browne’s reasons at [6], [53] and [57].
The appellant contends that the onus was on the respondent to establish, on the balance of probabilities, that the purpose he had for possession of the firearm was authorised by his licence, and that it was not for prosecution to prove beyond reasonable doubt that he had it for an unauthorised purpose. Specifically, the appellant contends that it was for the respondent to prove that he was in possession of the firearm in that particular place at that time for the purpose of repair.
The respondent accepts that the trial Magistrate did not refer to s 9(3) of the Act in her reasons for judgment but says that this is not demonstrative of error. The respondent says that there is a distinction in law between the legal burden of proof and an evidential onus. It is contended that, upon its proper construction, s 9(3) of the Act is concerned with an evidential onus and not with the legal burden of proof.
The appellant on the other hand contends that the use of the phrase “onus shifts to the defendant to establish” in s 9(3) of the Act places both an evidentiary burden and a persuasive burden on the respondent. The appellant submitted that the use of the word “establish” was significant and could be likened to the expression “in the absence of proof to the contrary” which has been found to reverse the legal onus of proof and to impose a persuasive burden on a defendant.[8] As Hogarth J said in Crawford Earthmovers Pty Ltd v Fitzsimmons:[9]
When the section makes the allegation in the complaint proof of the fact alleged “in the absence of proof to the contrary”, I think that this requires something more than evidence which merely raises a reasonable doubt in the mind of the Court. Once the allegation is made in the complaint, then in relation to the fact alleged the onus is case upon a defendant to provide, on the balance of probabilities, that the truth is different from the facts as alleged.
[8] Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116; Evans v Benson (1986) 46 SASR 317 at 319; Hollick v Police [2012] SASC 11 at [25].
[9] (1972) 4 SASR 116 at [149].
Discussion
A provision such as s 9(3) of the Act should be construed having regard to the text, context and purpose of the Act.[10]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[citations omitted]
[10] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
The Act contains a comprehensive, integrated and strict system of regulation of firearms and the people who possess them in order to protect the community. The principles and objects of the Act are set out in s 3. The underlying principles include that possession of a firearm is a privilege and is conditional on the overriding need to ensure public safety. The objects include strict requirements on licence holders such as the respondent including the safe and secure storage and transport of firearms in order to prevent the use of firearms for criminal purposes.
Section 9 of the Act sets out various criminal offences related to the possession and use of firearms and the penalties for those offences. The trial Magistrate correctly identified that the “general rule” in criminal matters is that the burden of proof lies on the prosecution. The presumption of innocence is a fundamental precept of our legal system. A statute is not to be construed as affecting or altering fundamental rights unless there is a clear legislative basis for that construction. The respondent referred, in this context, to the comments of French CJ in Momcilovic v The Queen:[11]
The common law “presumption of innocence” in criminal proceedings is an important incident of the liberty of the subject. The principle of legality will afford it such protection, in the interpretation of statutes which may affect it, as the language of the statute will allow. A statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment. On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings will ordinarily be construed as imposing the evidential burden.
[11] (2011) 245 CLR 1 at [44].
I accept that the expression “in the absence of proof to the contrary” reverses the usual onus of proof in a criminal matter. The question is whether this expression is, as contended by the appellant, analogous to the language used in s 9(3) of the Act. I do not consider that it is.
The expression “in the absence of proof to the contrary” is used elsewhere in the Act.[12] The fact that a different form of words is used in s 9(3) suggests that there is a different meaning intended. In Construction, Forestry, Mining and Energy Union (CFMEU) v Hadgkiss the Court said:[13]
A fundamental rule of construction is that unless a contrary intention appears the words in a statute are used consistently: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 per Hodges J. Mason J also said in Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618, “It is a sound rule of construction to give the same meaning to the same words appearing in different parts of the statute unless there is reason to do otherwise.” The corollary of that proposition must be that where in an Act the same words are used differently the words must have a different meaning. In the Act the legislature has expressly provided in a number of sections that knowledge is a requirement of the prescribed conduct in making a false or misleading statement and only on one occasion in the same Act, which is in a later enacted provision, has not included knowledge as a requirement of the prescribed conduct.
[12] The Act ss 44(10), 56(2) and 74.
[13] [2007] FCAFC 197 at [53].
More fundamentally, in the formulation “absence of proof to the contrary” there is a presumed fact that will, absent evidence to the contrary, be proven. If that presumed fact is an element of the charged offence, then that element will have been proven. In s 9(3) the change in onus arises if the evidence gives rise to a “reasonable inference”. A “reasonable inference” is however a different thing to a presumed fact. A reasonable inference would not be sufficient to prove an element of an offence unless it was proven beyond reasonable doubt.[14]
[14] R v Pringle [2017] SASCFC 9 at [88] – [89]; R v Singh [2019] SASCFC 51 at [86] – [88].
In this case, as I have said, the evidence raised a reasonable inference that the respondent’s possession of the firearm was not authorised by his licence. The facts related to his possession in these circumstances were peculiarly within his knowledge. It is therefore explicable that the Act placed an evidential onus upon him to explain his possession of the firearm. This does not, however, relieve the prosecution of the burden of proving the elements of the offence beyond reasonable doubt. There is nothing in the language of the Act to suggest that the burden of proof shifts to the respondent. I note the obiter comments of Barwick CJ in Cameron v Holt:[15]
Thirdly, it is unnecessary to discuss those cases in which shifting of the burden of proof has been spoken of. It suffices to say that for my own part I agree with Lord Diplock that, after Woolmington v Director of Public Prosecutions [1935] AC 462 ; [1935] All ER Rep 1, it always remains for the Crown to establish guilt, however much during the course of a trial what has been referred to at times as an evidentiary burden of proof has shifted to the accused, that is to say, in cases where the Crown's evidence raises a sufficient prima facie case to lead to the expectation, particularly where the facts are in the possession of the accused, that the accused would provide evidence to negate or weaken the case which theretofore has been made by the Crown. But, in the long run, the Crown must establish guilt.
[15] (1980) 142 CLR 342 at 347.
It is theoretically possible for a trial magistrate to reject the evidence of a defendant as to his purpose and nonetheless acquit on the basis that the prosecution had failed to prove an unlawful purpose. A reasonable inference may not amount to proof beyond reasonable doubt. The evidence may suggest other, equally reasonable inferences, consistent with innocence.
Accordingly, the issue for the trial Magistrate in this matter was, having regard to the whole of the evidence, including the evidence given by the respondent, whether the prosecution had proved beyond reasonable doubt that his possession of the firearm was for an unauthorised purpose.
The trial Magistrate did not mention s 9(3) of the Act in her reasons. Her reasons must however be read in context and as a whole. The transcript[16] indicates that there was a discussion about a number of matters after the prosecution closed its case and immediately prior to the respondent giving evidence. The transcript notes, inter alia, that there was “discussion re onus shifts on defence”. It is contended, correctly in my view, that this could only be a reference to a discussion about s 9(3) of the Act.
[16] MCCRM-23-017797, 16 May 2024 T27.
The respondent gave evidence as to his purpose for possessing the firearm. His evidence was accepted by the trial Magistrate who found him to be a “credible, honest and reliable witness”.[17] In those circumstances, although s 9(3) of the Act is not mentioned in the judgment, it is apparent that the trial Magistrate in fact applied it. She found that the respondent satisfied the evidential onus placed upon him by s 9(3) of the Act to demonstrate his purpose and that the prosecution had not proven the third element of the offence beyond reasonable doubt. There has been no error demonstrated in the Magistrate’s approach.
Did the trial Magistrate commit an error of fact and law in relation to her findings concerning possession?
[17] Magistrates Browne’s Reasons at [27].
Ground two of the notice of appeal relates to the appellant’s contention that that the trial Magistrate erred in three respects when she made the following findings:
a.that the respondent was in possession of the firearm at the relevant time for the purpose of taking it to a repairer;
b.that taking a firearm to a bank in the circumstances of this case can be appropriately characterised as being for the purpose of repair; and
c.that taking the firearm to the bank was incidental to the primary purpose of taking the firearm to the repairer.
The appellant also contends that the trial Magistrate erred in not finding that at least one of the purposes of possession of the firearm at the relevant time was for the purpose of attending a bank which is a purpose not authorised by the respondent’s dealer’s licence.
The appellant says that the trial Magistrate should not have found that the respondent intended to go to the repairer and that his evidence as to how he came to be carrying a loaded weapon on the main street of Stirling was “glaringly improbable” for the reasons set out in the written submissions.[18] I do not agree. The trial Magistrate found the respondent to be reliable and credible. She considered that his narrative surrounding his circumstances of possession was plausible.[19] She made this assessment having seen and heard the defendant give his evidence. She had proper regard to the character evidence called on the defence case. She had regard to the fact that the respondent had no prior convictions, that he was 79 years of age and had possessed a firearm licence for some 60 years. It is clear from the transcript of his evidence that the respondent was alive to the significant dangers posed by the fact he had a loaded handgun in a public place. It is also clear that he was aware of his obligations and endeavoured to comply with the Code of Practice for the Security Storage and Transport of Firearms.[20] The respondent’s evidence disclosed that, in hindsight, he would have dealt with matters differently, but he maintained that his intention at all times was to take the firearm to his repairer. Having considered the evidence I agree that the respondent’s evidence was plausible. Further, there was no evidence on the prosecution case that made the respondent’s version “glaringly improbable” or contrary to compelling inferences. I note that the appellant’s written submissions, in a different context, describe the evidence as to whether the gun was in fact jammed as “equivocal at best”.[21] I agree with that characterisation. The fact that the police ballistics expert experienced no difficulty in removing the ammunition from the firearm does not render the respondent’s evidence “glaringly improbable”. The respondent explained that he was not a gunsmith or armourer and did not want to tamper with the firearm to remove the ammunition preferring instead to take it to his usual repairer.
[18] FDN 5 at [28] - [30].
[19] Magistrate Browne’s Reasons at [52].
[20] The Regulations, Schedule 1.
[21] FDN 5 at [20].
The appellant further contends[22] that, even if it was open to the trial Magistrate to accept that the respondent did intend to go to the repairer, she erred as a matter of law and fact by finding that he was in possession of the firearm for the purpose of repair submitting that the Respondent was going to the ATM and his purpose at that time and in that place was to do banking. This was not a purpose authorised by his licence.
[22] FDN 5 at [41] – [42].
The respondent says there is nothing in s 9(2) of the Act that supports the construction contended for by the appellant and that Regulation 24(7) supports a construction that a person may:[23]
… travel and stop en route because it permits possession for the purpose of taking from one premises to another for the purpose of testing or repairing or exhibiting at auction. That is, both purposes contemplate the carriage of the firearm to a location other than at the premises specified in the licence and it does not say that a dealer must only travel to and from the premises to that other location and must not stop en route.
[23] FDN 8 at [24].
These submissions raise a further question of statutory interpretation; specifically, whether s 9(2) of the Act is to be construed as preventing a person who is in possession of a firearm whilst transporting it for the purpose of testing or repair, stopping en route to the testing range or the repair shop. I will not repeat the principles of statutory interpretation set out above. They are equally applicable here. It is however convenient to deal with this issue together with the final argument raised by the appellant, that an accused person may have multiple purposes when carrying out any particular action or conduct. It is said that if one of those purposes is not authorised then an accused will commit an offence. The appellant relies upon a number of cases to make good that proposition as set out in the written submissions.[24] The respondent, on the other hand, contends that the authorities relied upon by the appellant do not support the argument advanced but in any event:[25]
Here, the Magistrate found that the purpose for which the respondent was in possession of the firearm was for the purpose of transporting it for repair and that stopping to attend the ATM was not a change in the defendant’s intention {J[52]-[53]}. That factual finding was open on the evidence given. It meant that the respondent had only one purpose in mind – that of taking the firearm to the repairers.
The appellant’s submission at [52] should be rejected for three reasons: (1) it is inconsistent with the magistrate’s factual findings; (2) it imputes to the respondent and conflates a reason for his possession with his purpose; and (3) the appellant’s reasoning is not supported by the two authorities relied upon. That the respondent was in possession of a firearm was not in dispute. But, as the magistrate found, after hearing all of the evidence, he was in possession of it for the purpose of taking it to the repairers - which is an authorised purpose.
[24] FDN 5 at [44] to [52].
[25] FDN 8 at [30] – [31].
The first case relied upon by the appellant is Chandler & Ors v Director of Public Prosecutions,[26] an English case which concerned breach of s 1(1) of the Official Secrets Act which relevantly provided that:[27]
If any person for any purpose prejudicial to the safety or interests of the State
(a) enters any prohibited place within the meaning of this Act…he shall be guilty of a felony.
[26] [1964] AC 763.
[27] Official Secrets Act 1911 (UK) s 1(1).
The appellants in Chandler were members of the Campaign against Nuclear Disarmament who were charged with conspiring to enter an airfield with the purpose of preventing aircraft they understood to be armed with nuclear weapons from taking off. The appellant contends in the written submissions that:[28]
Lord Reid found a person can have two different purposes in doing a particular thing and even if their reason or motive for doing what they do is called the purpose of influencing public opinion that cannot alter the fact that they had a purpose to immobilise the base. The latter purpose was considered prejudicial to the safety and interests of the State thus the offence had been committed.
Here even if it is accepted that the Respondent ultimately intended to go to the repairer, this does not mean his purpose in attending the bank to do banking did not exist and was therefore authorised.
[28] At [46] - [47].
I do not accept these submissions. Chandler dealt with a specific legislative provision that was cast in different terms to the section under consideration here. In that case, the appellants’ purpose was to be assessed objectively, and it was found that they had the unlawful purpose of entering the air force base for the purpose of disruption. The relevant section used the words “for any purpose”. It was sufficient for the purposes of s1(1) of the Official Secrets Act that the appellants had at least one unlawful purpose.
The second case relied upon was Holmes v. Hatton[29] dealing with the offence of carrying an offensive weapon without lawful excuse contrary to s 15 of the Police Offences Act 1953 (SA). In that case the trial Magistrate acquitted the accused of carrying a machete having accepted on the balance of probabilities that the accused was carrying the machete “primarily” for camping purposes. The appellant quoted the following passages from the judgment of Wells J:[30]
The learned Special Magistrate certainly found that the primary or predominant reason for carrying the machete was that it constituted an important item of camping equipment. So much is clear. But I am puzzled by the passage “I am satisfied on the balance of probabilities that whilst the Respondent may have had resort to the machete for the purposes of self-defence had the occasion arisen that was very much an after-thought on his part.”
One construction that springs to mind is that the learned Special Magistrate was intending to convey that camping was the principal purpose in the defendant's mind and that self-defence was a secondary or subsidiary purpose. Another is that was what was uppermost in the defendant's mind when spoken to by police was camping, and he was prompted by their questions to think of self-defence as a possible purpose; if he had not been questioned (the implication seems to be) he would not have contemplated using the machete for self-defence against other human beings. The correct interpretation is important because on the one view of the law, a finding in terms of the first alternative would lead probably to a conviction, while a finding in terms of the second alternative would lead to an acquittal.
…
The purposes or reasons for which an alleged offender was carrying a weapon are to be examined and assessed having regard to the united force of all the circumstances put together. If the sole purpose or reason for which the weapon is carried is plainly unlawful or is otherwise contrary to the section, the carrier cannot claim lawful excuse. Where the sole purpose or reason is lawful, there will be lawful excuse. Where there is a duality of purpose or reason no hard and fast rule can provide a solution. The court, in determining the issue, must, in my opinion, decide a question of fact and degree, and must, in particular, ask whether that which, ex facie and taken in isolation, may be regarded as an unlawful purpose or reason, was, in the circumstances, so transient, so remotely related to the defendant’s conduct, so speculative so unlikely to become translated into action, so is subsidiary - in short so unimportant or insignificant, as to leave the alleged offender with lawful excuse.
[29] (1978) 18 SASR 412.
[30] Ibid at 417; 419-420.
Relying upon these passages the appellant contends as follows:[31]
In other words and by analogy, even if it is accepted that the primary purpose for possession at that relevant time and place was for the purpose of repair (which was authorised) if a secondary or subsidiary purpose was to attend the bank to do banking (which was unauthorised) an offence is still committed.
…
If such a test is used in this case, it cannot be said that the Respondent’s sole purpose for possessing the firearm in the main street in Stirling was for repair. Neither can it be said that attending the bank to do banking amounted to a purpose so transient, so remotely related to the Respondent’s conduct in attending the repairer, so subsidiary, so unimportant or insignificant that possession at that time and place could be appropriately characterised as possession for the purpose of repair.
[31] FDN 5 at [50] and [52].
I do not consider that these contentions are supported by the decision in Holmes. If a person has two or more purposes in mind when in possession of a firearm, and one of those purposes is or may be an unlawful purpose, then it is a question of fact and degree as to whether an offence has been committed. In the case of an unlawful secondary or subsidiary purpose an assessment must be made as to the nature of that purpose. As Wells J said, that unlawful purpose may be so negligible or unconnected to the defendant’s conduct that the lawful purpose predominates.
In any event, I do not consider that the Magistrate fell into error when she found that the respondent’s purpose was the repair of the firearm notwithstanding the stop at the ATM. The trial Magistrate set out her findings on this topic as follows:[32]
The next question is whether stopping to attend the ATM acted as a sudden change in the defendant’s intention. The answer is no. The situation would be the same if the defendant stopped to use a toilet on the way to the gunsmith. The initial intent remains, and the stop is considered incidental thereby not altering the primary purpose of transporting the firearm for repair. Had the defendant stopped for lunch and shopping would, in my view, create a diversion from the original intention. I find beyond reasonable doubt that the ATM stop does not constitute a deviation from the authorised purpose as defined by his dealer’s licence.
[32] Magistrate Browne’s Reasons at [53].
The Magistrate identified that the factual issue to be decided was respondent’s intention. The magistrate accepted that his intention was to take the firearm to a repairer. She found that stopping at the ATM did not alter that intention and that the ATM stop was incidental to that purpose. She likened it to a toilet stop en route saying that the position would have been otherwise if the stop had involved a (presumably lengthier) stop for lunch or shopping. Her finding was, in effect, that the respondent had only one purpose which was not altered by a minor interruption to his journey.
The Regulations permit a dealer to have possession of a firearm other than at the licensed premises for the purpose of repair or testing. The Regulations contemplate transport of the firearm to a place of repair or a testing facility. The Act and Regulations do not preclude a stop en route to the repairer. Indeed, the obligations of the licence holder as to the security, storage and transport of firearms set out in schedule 1 of the Regulations[33] suggest otherwise clearly contemplating that it might be necessary to stop during the course of transportation.[34]
[33] The Regulations, Schedule 1- Code of Practice for the Security Storage and Transport of Firearms, Ammunition and Related Items (‘the Regulations, Schedule 1’).
[34] The Regulations, Schedule 1 reg 28.
Whether the stop constitutes a secondary purpose is a question of fact requiring a consideration of all the evidence. A stop at a petrol station to refuel would likely not be a secondary purpose; in the usual course it would form part of the purpose of transporting the firearm. A substantial interruption of the journey for a purpose unconnected with the purpose of transporting the firearm in accordance with the Act may well constitute a secondary purpose. In the latter situation, it would be necessary to consider the whole of the evidence as to the nature and extent of the stop in the context of the lawful purpose to establish whether it became a secondary purpose that overtook the primary lawful purpose. The trial magistrate considered the respondent’s stop at the ATM carefully in the context of the whole of the evidence and made her findings accordingly. No error of principle or of fact has been established that would justify appellate intervention.
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