Police v Eliassides
[2020] VMC 15
•28th July 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT DANDENONG
Case No. L11351952
| Senior Constable Simon Gunn | Informant |
| v | |
| Andrew Eliassides | Accused |
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MAGISTRATE: | A.G. BURNS |
WHERE HELD: | DANDENONG MAGISTRATES COURT |
DATE OF HEARING: | 14th July 2020 |
DATE OF DECISION: | 28th July 2020 |
CASE MAY BE CITED AS: | Police v Eliassides |
MEDIUM NEUTRAL CITATION: | [2020] VMC 015 |
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CATCHWORDS – Firearms Act 1996 s.3 – Firearm definition – Shot or a bullet or other missile - Gel blaster – Statutory interpretation -
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APPEARANCES: | Counsel | Solicitors | |||
For the Informant | Mr Anthony Albore | Victoria Police | |||
For the Accused | Mr Sai Ranjit | Papa Hughes Lawyers | |||
RULING
His Honour
OVERVIEW
The accused Andrew Eliassides is charged with a number of assault related matters that are alleged to have occurred on 4th June 2020. As part of the investigation into that matter he was found to be in possession of two ‘gel-blaster’ type weapons. Whilst charged with 8 offences, only four charges, numbered 4,5,6 & 7 in the case now filed against him relate to those articles[1] which are charged as ‘firearms’. They are as follows, That at Springvale on 4/6/20 the accused-
[1] I will use the term ‘article’ as a neutral term given the controversy at hand.
Charge 4 – Possessed 2 or more firearms not in accordance with the Act or regulations. (Traffick firearms) -Contrary to s.7C Firearms Act, (Max penalty 1200 PUs or 10 years imprisonment)
Charge 5 – Being a non- prohibited person possess a category A longarm being a gel gun. Contrary to s.6 Firearms Act. (Max penalty 120 PUs or 2 years imprisonment)
Charge 6 – Being a non-prohibited person possess a category A longarm being a gel gun. Contrary to s.6 Firearms Act. (Max penalty 120 PUs or 2 years imprisonment)
Charge 7 – Being a non-prohibited person used a category A longarm being a gel gun. Contrary to s.6 Firearms Act. (Max penalty 120 PUs or 2 years imprisonment)
This ruling relates to these 4 charges only. The accused consented to the jurisdiction of the court and pleads not guilty to those 4 charges.
EVIDENCE
Mr Albore who appeared for the informant called one witness, LSC Watson a firearms and toolmarks expert stationed at the Victoria Police Forensic Services Centre. He described the weapons operation and capabilities and opines that both weapons[2] meet the definition of ‘fireram’ pursuant to the Firearms Act (Vic). The important caveat to his opinion was that it is assumed based on ‘legal advice’ provided to him from Victoria Police Legal Services that the word ‘Missile’ contained in the definition of ‘firearm’ is to be interpreted as per the standard dictionary definition (i.e. Macquarie or Oxford[3] dictionary). A statement to this effect formed the penultimate paragraph in his statement. He was none the less an honest witness whose statement became exhibit 2 in this case. He testified as to the following matters-
[2] A SLR brand CQB model gel gun (photos exhibit 3) and a Lehui brand Kriss vector2 model gel gun (Photos Exhibit 5)
[3] The Oxford definition defines the word ‘missile to mean an ‘object or weapon suitable for projecting at a target’. The Macquarie definition is “an object or weapon that can be thrown, hurled or shot as a stone, a bullet, a lance, or an arrow.
i He examined the SLR Brand weapon which was incapable of firing because it did not have the batter power source required to make it operate but is was designed[4] to discharge hydrolysed gel balls.
[4] Whether capable of discharge or not, it is the intent and application of what it is designed or adapted to do which will determine whether the item is a firearm – See Davies v The Queen [2014] VSCA 284. (There is no suggestion in this case that the items in question were designed or adapted to do anything other than discharge gel balls.
ii He examined the Lehui brand weapon which was operable. It was designed to discharge hydrolysed gel balls.
ii Hydrolysed gel balls come after purchase as hard plastic or polymer spheres about 1mm round. They are incapable of discharge in that form. To be made capable they are soaked in water for 3 to 4 hours where they swell to be around 7 to 8 mm soft gel balls. At this diameter they are of sufficient size to make a seal in the discharge tube so as to be capable of holding air pressure behind them which can push them out at a speed of up to 250 feet per second.
iv The gel balls (produced in a vial for the court and tendered as exhibit 4 in this case) are ultra soft and can be crushed easily between thumb and forefinger. They disintegrate on impact and are essentially water gel.
v In his experience their impact was not capable of causing real harm. He had in fact experimented where he ‘shot’ himself in the fleshy part of his forearm at ‘pointblank’ range. This caused a small red welt which dissipated shortly thereafter leaving no mark after that.
ISSUE FOR DETERMINATION
I must make a finding about whether the articles that are the subject of charges 4,5,6 & 7 are in fact ‘firearms’ as defined in Victorian Firearms Act 1996.
DISCUSSION
The articles, the subject of this case are known as ‘gel blasters.’ It is common ground and consistent with the evidence of LSC Watson that they look like a real gun but use air pressure[5] produced via a battery operated gear mechanism where a spring plunger pushes air through a firing tube. The devices discharge a small gel ball or pellet which is a soft water based projectile. These projectiles are known as ‘hydrolysed gels’ because they are prepared for discharge by being soaked in water for about 4 hours to swell to about an 8mm soft sphere. They are used for game play and widely sold throughout Australia and overseas. The projectile is non- lethal and generally unlikely to cause injury, even when fired at a person from close range[6]. The gel breaks up on impact and can be squashed easily between a person’s fingers. The Prosecution asserts that these items are none the less firearms, but that is the issue in dispute here. There is no doubt that they can look sufficiently real to be an imitation firearm, however where so, a different charge under the Control of Weapons Act[7] would apply. This itself is a serious charge which carries significant gaol penalties of 2 years imprisonment for non-prohibited persons and 10 years imprisonment when possessed by a ‘prohibited person’
[5] It is not to be confused with an air rifle or air handgun, sometimes call an ‘airsoft’. Those are considerably more powerful, are designed to discharge a lead or copper projectile (known as BB’s) and fall within ‘category A’ for longarms or can otherwise be ‘general category’ handguns under the Firearms Act 1996.
[6] See the evidence of LSC Watson at paragraph 2v above and note that CCTV was tendered as part of this case at exhibit 1. It depicts the accused firing the article at the victim’s face from centimetres away on multiple occasions. On one occasion only it does seem to break the skin on the victim’s left cheek and what appears to be blood does seep out. This victim is otherwise subjected to an assault by punches and kicks to the face at different times during the incident that founds related assault charges not dealt with in this ruling, so the extent to which the gel blaster shot alone caused this damage is confused. None the less it appears the device when used improperly is capable of at least breaking the skin.
[7] Control of Weapons Act (Vic) 24/1990 s.5AB
LEGISLATION
The definition of firearm in the Firearms Act[8] is as follows.
[8] Firearms Act 66/1996 (Vic) S.3
firearm means any device, whether or not assembled or in parts—
(a) which is designed or adapted, or is capable of being modified, to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; and or not operable or complete or temporarily or permanently inoperable or incomplete—
and which is not—
(c) an industrial tool powered by cartridges containing gunpowder or compressed air or other gases which is designed and intended for use for fixing fasteners or plugs or for similar purposes; or
(d) a captive bolt humane killer; or
(e) a spear gun designed for underwater use; or
(f) a device designed for the discharge of signal flares; or
* * * * *
(h) a device commonly known as a kiln gun or ringblaster, designed specifically for knocking out or down solid material in kilns, furnaces or cement silos; or
(i) a device commonly known as a line thrower designed for establishing lines between structures or natural features and powered by compressed air to other compressed gases and used for rescue purposes, rescue training or rescue demonstration; or(j) a device of a prescribed class;
It is really only paragraph (a) above which is in contention here and in particular the key phrase within paragraph (a) ‘shot or a bullet or other missile’ as underlined above.
To determine what the legislature intended by the employment of the phrase ‘other missile’ involves statutory interpretation. It’s common ground that the other components of paragraph (a) are here satisfied, so the question to be determined is whether or not a hydrolysed gel ball is a ‘missile’ as that term is employed in the Firearms Act (Vic). If it is not, the articles in question cannot be firearms.
SUBMISSIONS
Mr Albore submits that there is no ambiguity in the definition and I should construe the word ‘missile’ pursuant to its ordinary dictionary meaning.[9] As such I should, in his submission treat the phrase ‘shot or a bullet or other missile’ as really meaning any missile. He does submit that a gel pellet has the capacity to cause harm as evidenced by the CCTV footage which is exhibit 1 in this case showing one gel pellet amongst dozens fired from inches from the victim’s face causing the skin to break and blood to seep out.[10]
[9] See footnote 3.
[10] See footnote 6.
Mr Ranjit who appears for the accused submits that there is ambiguity in the definition and that I should construe the phrase ‘shot or a bullet or other missile’ in accordance with the ejusdem generis rule. As such I should in his submission, find that a gel pellet is not of the same kind as those things envisaged by the words ‘shot or a bullet’ and therefore not a ‘missile’ Ergo, if not a missile, the items can not be firearms.
ANALYSIS
10. Generally, provisions which employ a group of specific words of a particular class or genus followed by a more general phrase will be construed pursuant to the ejusdem generis rule[11]. Meaning that where a genus is created by the words ‘shot or a bullet’ being hard, metal or lead projections capable of significant harm when fired from a firearm, this informs the interpretation of the general words following.
[11] R v Regos & Morgan (1947) 74 CLR 613
11. ‘Shot’ is of course a collection of lead pellets like those found in a shot gun cartridge and a bullet is the metal or lead projectile that discharges from cartridge ammunition. To apply the rule then, having found a genus in the specific words, the general (‘or other missile’) encapsulates items of a similar kind as those in the preceding genus.
12. So the question to be answered is whether a soft water based gel pellet, being generally incapable or causing any real harm, can fit the definition of ‘other missile’ when viewed as an extension against the single class created by the words ‘shot or a bullet’.
13. Of interest is that the legislature has seen fit to include in the definitions under the Firearms Act (Vic), that ‘a paintball marker’ is a firearm that discharges a dye pellet know as a ‘paintball’.
14. On one view, it may be argued, that to give this item its own specific definition, involves a recognition by the legislature that it falls outside the general definition of ‘firearm’. It is important also to note that a “paintball’ is described in the definition as a ‘projectile’ and not a ‘missile’. It is also given its own licence category. The definitions of these in the Firearms Act (Vic) are as follows.[12]
[12] Firearms Act 66/1996 (Vic) S.3
paintball means a projectile that primarily consists of a dye or similar substance designed to mark a person or object;
paintball marker means a firearm that is designed to discharge a paintball;Paintball marker licence means a licence issued under section 9(6);
15.A ‘paintball marker’ is gas operated and shoots a plastic dye filled pellet and is used for game playing. On one view it is not dissimilar to a ‘gel blaster’ although one is far more powerful and will ordinarily cause significant bruising to people struck with the dye pellets. A whole industry surrounds game play using paintball markers where groups pay to play at regulated locations.
There is an argument that ‘paintball markers’ are sufficiently analogous to ‘gel blasters’ that they should be treated in the same way as firearms. Equally there is an argument that the legislature specified paintball markers specifically as firearms to the exclusion of other non-lethal projectile weapons. The latin, “expressio unius est exclusio alterius”: a principle in statutory construction: when one or more things of a class are expressly mentioned, others of the same class are excluded, might then apply.
17.This is an area of controversy Australia wide,[13]where the defintion of firearm from state to state and the treatment of gel blasters in each jurisdiction differs widely. Given that unauthorised possession of ‘firearms’ is usually dealt with by significant gaol terms, the issue is an important one to determine.
[13] They are legal in Queensland and not subject to regulation for ownership or storage. Noting that in that State, the definition of ‘Firearm’ under Schedule 2 of the Weapons Act 1990 QLD requires the weapon to be capable of causing ‘death or injury’ by discharging a projectile…
18.I have been unable to find and have not been provided by the parties, with any authority from a higher court of record directly on point. It appears that no superior Court has analysed the matter.
19.In the NSW District Court, the case of R v Andrew[14] touches upon the issue but the Judge there accepts the ballistics report and doesn’t analyse the definition at all. The case is unhelpful in my view given the very different and much broader definition of ‘firearm’ in NSW.[15] . The NSW definition is as follows-
[14] [2018] NSWDC 381 (24 September 2018) per Haesler SC DCJ
[15]The NSW Firearms Act 46/ 1996 s.4 definitions
“firearm means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker within the meaning of the Paintball Act 2018 or anything declared by the regulations not to be a firearm”
20.Note the use of the unrestricted term ‘a projectile’ rather than a class of projectile formed by the phrase “shot or a bullet or other missile” as employed in the Victorian legislation. It is interesting to note however, even within their broad definition, they have chosen to specifically remove a ‘paintball marker’ from their definition. Paintball marker is defined in NSW[16] as-
“paintball marker means a sporting device for use in the sport known as paintball that can propel, or is designed to propel, a paintball by means of any gas or mixture of gases, including air (but not including a gas or mixture of gases generated by an explosive) and is operated or designed for operation by means of a trigger or similar device, but does not include—
(a) a paintball marker that has been modified to propel something other than a paintball, or
(b) a paintball marker prescribed by the regulations.
[16] Paintball Act 44/2018 NSW s.3 Definitions.
The South Australian District Court has also touched upon the matter in R v Sayers[17]. Whilst not a case dealing with gel blasters, it does consider the phrase ‘shots, bullet or other projectiles’. It considered the meaning of the term “other projectile” as it appeared in the Firearms Act 1977[18] SA. In that case Beasley J gave the term ‘other projectile’ a broad meaning not restricted by the ejusden generis rule, to include such things as tennis balls, oranges and potatoes. I note however, that regulation 5 of the Firearm Regulations 1993 (SA) states:
A toy firearm that is not designed to fire metallic projectiles is not included in the definition of firearm in the Act unless, in the Registrar’s opinion, it should be regulated as a firearm under the Act and is the subject of a declaration to that effect by the Registrar published in the Gazette.
[17] R v Sayers [2006] SADC 123 per Beazley J
[18] Section 5 of that Act relevantly defined “firearm” as: “(a) a device designed to be carried by hand and to fire shots, bullets or other projectiles by means of burning propellant or by means of compressed air or other compressed gas;
On one view, such a broad reading of the term ‘other projectile’, so as to include such things as tennis balls, oranges or potatoes, gives the preceding words of the relevant phrase ‘shots or bullet’ no work to do. It effectively leads to reading the phrase ‘shots, bullets or other projectile’ to really mean ‘any projectile’. Whilst not previously aware of this case, Mr Albore, who appeared for the informant, submitted I should adopt its line of reasoning.
Reading the phrase ‘shots bullet or other projectile’ to really mean ‘any projectile’ seems to me to allow the possibility of results not intended by parliament. What else might be included, ping pong balls, sponge balls, feathers, water? Where does that line end? Further this interpretation seems at odds with South Australia’s Regulations 5 under their Firearms Regulations 1993 as canvassed above.
In Commonwealth legislation, the definition of firearm in the Criminal Code refers the reader either back to the State or Territory definition or otherwise as that defined in The Customs (prohibited Imports) regulations 1956 (Cth).
Under those, Regulation 4F(4) also includes the phrase “shot, bullets or other projectiles” in the definition of “firearm”. Regulation 4F relevantly states:
firearm:
(a) means a device designed or adapted to discharge shot, bullets or other projectiles by means of an explosive charge or a compressed gas, whether that device is fitted with a magazine or other feeding device designed to be used with it or not;Interestingly however, The Department of Home Affairs notice 2017/43 expressly states that for the purposes of Regulation 4F,
“devices that discharge soft and non-dangerous items such as soft darts and hydrolysed super-absorbent polymers (gel balls) are no longer classified as firearms under these regulations.
Where these devices resemble a real firearm, they will be classified as an imitation of a firearm under the Regulations. Police Certification issued by state and territory police firearm registries is required to import an imitation of a firearm.
Gel balls (hydrated and non-hydrated) are not considered ammunition under the Regulations and are not controlled on import into Australia.”I have been provided with a transcript and referred by Mr Ranjit who appears for the accused, to a 2017 decision of the Queensland Magistrates Court that’s supports that position.[19]
[19] Comptroller-General of Custom’s v Clarke CFP Pty Ltd, Brisbane Magistrates Court, 14 December 2017.
In that case the learned Magistrate was not satisfied that gel balls were captured by the term ‘other projectile’ as it’s used in Regulation 4F above. Accordingly, articles designed to discharge them are not firearms. Mr Ranjit submits I should adopt the same reasoning in this case.
CONCLUSION
29.So properly construing the definition of ‘firearm’ in the Victorian Firearms Act, so as to answer the question at hand, requires partly an exercise in statutory interpretation. It is a matter of law and fact but an expert report in the field of ballistics, like the one tendered in this case from LSC Watson, as with all expert opinion is only admissible as to fact. Hence, insofar as any matter is a question of law, an expert report is of no use.
30.The golden rule[20] of statutory interpretation requires that statutes be construed in accordance with their natural and ordinary meaning. Where the words are clear by reference to the context and purpose of the legislation, a construction consistent with the ordinary meaning of those words is to be preferred.[21] However, where there is any ambiguity, as I find there is here, one must resolve any ambiguity in the provisions in such a way that promotes the purpose or object of the underlying statute. This was the position at common law[22] and is now enshrined in statue pursuant to Section 35 of the Interpretation of legislation Act (Vic) 127/1984.
[20] Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311 at 341.
[21] Project Blue Sky Inc v Australian Broadcasting Authority (1998) CLR 355
[22] Miller v Commonwealth (1904) 1 CLR 668 at 674, Mills v Meeking (1990) 91 ALR 16 at 30
31.So to be in a position to resolve the issue for determination, I must assess the purpose or object of the Firearms Act and resolve any ambiguity by applying a construction that best promotes that purpose or object.
32.The stated purpose[23] of the Firearms Act is as follow
[23] Firearms Act (Vic) Section 1 - Purpose
(a) To give effect to the principle that the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace…
33.The Act then sets out in subsequent paragraphs the logistical and administrative arrangements authorised under the Act in furtherance of that primary purpose of ensuring public safety and peace.
34.To that end, when determining the meaning of the phrase ‘shot or a bullet or other missile’ as used in the definition of ‘firearm’, I must adopt an interpretation that promotes the purpose or object of the underlying statute. Given that the purpose then is ensuring public safety and peace with respect to firearms, it seems abundantly clear to me that I must construe the phrase ‘or other missile’ as referring to things that bear upon public safety and peace.
35.Accordingly, I can now draw back to the ejusdem generis principle as canvassed in paragraph 10 above. I’m now satisfied that the inescapable conclusion is that the words “shot or a bullet” as used in the definition of firearm, create a single class or genus of items being hard projectiles, usually made from lead or other metal, capable of causing significant harm to life and limb when fired out of a firearm. In this form, because of their potential to cause real damage or harm, they create a danger to public safety and peace.
36.Having identified the single genus amongst the specific words, I can comfortably construe the balance of the phrase “or other missile’ as being items of the same kind as those specified, that have the potential to endanger the public safety and peace. To construe the phrase ‘shot or a bullet or other missile’ in the way contended for by Mr Albore, that is to mean ‘any missile’, gives the words ‘shot or a bullet’ in the extended phrase, no work to do. I do not imagine parliament was wasting its breath in employing those preceding words as part of that phrase. They must be given some work to do. I’m satisfied that the work that Parliament intended for them, was to restrict the scope of the extension of the phrase ‘or other missile’. A hydrolysed gel ball or pellet therefore, is not a missile as per the definition of firearm.
37.On that basis I find as a matter of fact and law that a gel blaster, given it discharges soft polymer hydrolysed gel balls, generally incapable of causing significant harm, do not impact upon public safety and peace, any more than any imitation firearm or toy dart ‘gun’ could. Gel pellets are not ‘missiles’ and whilst I cannot find they are wholly incapable of causing some minor injury, the same can be said of any projectile toy. Accordingly, I’m of the view that it was not Parliament’s intent to capture these toys under the general definition of firearm. I find therefore that a gel blaster is not a firearm as that term is defined in section 3 of the Firearms Act (Vic). (Although one may, depending on its appearance be an imitation firearm and where so they should be regulated accordingly pursuant to the Control of Weapons Act 1990 (Vic).)
38.Accordingly, I find beyond reasonable doubt that the charges relating to possession, use and trafficking of firearms in this case cannot be proven as a matter of law. Charges 4,5,6 & 7 are dismissed.
Mr T. Burns
Magistrate
Dandenong Magistrates Court
28th day of July 2020
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