Police v Franco - [2008] SASC 268

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v FRANCO
[2008] SASC 268
Judgment of The Honourable Justice Bleby
8 October 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT
Appeal from decision of Magistrate to rehear matter and impose orders in lieu - relevant information not provided to first Magistrate - whether it was in the interests of justice for Magistrate to rehear matter pursuant to Summary Procedure Act 1921 s 76A - whether exceptional or special circumstances required - consideration of circumstances in which s 76A may properly be invoked - appeal dismissed.
Firearms Act 1977 s 34, s 34A, s 35; Firearms Regulations 1993 reg 29(1), reg 53; Summary Procedure Act 1921 s 76A, s 76B; Justices Act 1921 s 163, s 76a, referred to.
Maider v Dancis (1985) 39 SASR 136; Muscat v Magistrates Court (1996) 66 SASR 367, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Interests of justice"

POLICE v FRANCO
[2008] SASC 268
Magistrates Appeal
BLEBY J.
Introduction

On 25 March 2008 the respondent, Mr Franco, appeared before a Magistrate (“the first Magistrate”) charged with various offences against the Firearms Act 1977 (SA). The essence of all the offences was that he failed to secure four firearms contrary to regulations 29(1) and 53 of the Firearms Regulations 1993 (count 2), and that he failed to secure ammunition separate from the firearms, contrary to regulations 32(1) and 53 (count 4).
On the day of his first appearance, Mr Franco pleaded guilty to the charges, and the Magistrate imposed a fine of $150. He then ordered that the four firearms and the ammunition be forfeited to the Crown.
Mr Franco subsequently applied for a rehearing of the matter before another Magistrate (“the second Magistrate”) pursuant to s 76A of the Summary Procedure Act 1921 (SA). The application was undated, but no point was taken as to the time of filing of the application. On 16 April 2008 and 7 May 2008 the second Magistrate heard submissions on the issue of whether the Court had power to rehear the matter. On 7 May 2008 the second Magistrate delivered a ruling that the matter could be reheard. A rehearing took place, and on 26 June 2008 the second Magistrate set aside the order of the first Magistrate for forfeiture of the four firearms and ammunition. The second Magistrate, instead, imposed an order that the ammunition be forfeited to the Crown, and that it was to be a condition of Mr Franco’s firearms licence that he not possess ammunition. The order of the first Magistrate imposing a fine was not disturbed.
The Police now appeal against the second Magistrate’s orders alleging that the second Magistrate erred in conducting a rehearing; that the second Magistrate had no power to set aside discretionary orders of the first Magistrate, and that the interests of justice did not require interference with the original orders of the first Magistrate.
The Facts
Before referring to the relevant legislative provisions, it is necessary to refer in more detail to the facts that were before each of the Magistrates.
Mr Franco is an aged pensioner. He has a very poor command of the English language. He was only able to give instructions to his solicitor through his daughter, who acted as an interpreter. When he appeared before the first Magistrate he was not legally represented and his daughter was not present. Another male person acted as interpreter.
Through the interpreter, the first Magistrate asked Mr Franco how he intended to deal with the matter. He replied that he wished to enter a plea of guilty in relation to each of the charges. Through the interpreter, the Magistrate then informed Mr Franco of the applicable penalties and asked him whether he still wished to enter a plea of guilty. Mr Franco confirmed that he wished to do so. The charges were then formally read and translated by the interpreter. Mr Franco entered a plea of guilty in relation to each charge.
The prosecutor informed the first Magistrate that on 26 October 2007 police from the Firearms Investigations Section were conducting a random security check and audit of firearms. They called at Mr Franco’s home. They asked to see his firearms and were shown to a wooden wardrobe in a bedroom. There were two firearms standing upright on the floor of the wardrobe, not secured in any way. Mr Franco also produced two other firearms standing upright against a wall behind a door, also unsecured. On the floor of the wardrobe was a quantity of 12-guage ammunition. This was not locked in any container. Mr Franco produced his firearms licence and participated in a recorded audio tape interview in the presence of his daughter, who acted as interpreter. Police seized the firearms and ammunition.
Mr Franco told the police that he was not aware of the regulations in relation to the security of the firearms. He thought that his firearms were safe, as he was the only one who knew where they were. He was unaware that it was an offence to have unsecured firearms. He was also unaware of the regulations in relation to the storage of ammunition, and was unaware that it was an offence to keep that unsecured. The prosecutor informed the first Magistrate that Mr Franco had no prior convictions.
According to his affidavit filed in these proceedings, the prosecutor made an application pursuant to s 34 of the Firearms Act for an order of forfeiture of the firearms and ammunition, referring particularly to s 34(2)(d) of the Act. If that is what in fact occurred, it was a misleading submission, as s 34 of the Act only applies to proceedings where the Registrar of Firearms has instituted proceedings for forfeiture of firearms or ammunition which have been seized. The only relevant forfeiture power available to the Magistrate upon conviction of Mr Franco was that contained in s 34A(1) of the Firearms Act. However, that probably does not matter. The significant fact is that the prosecutor made an application for an order of forfeiture.
Through the interpreter, Mr Franco informed the first Magistrate that he was a pensioner, aged 82 years, and had limited financial means. He provided to the Court some photographs of a firearms safe which, according to the affidavit of the prosecutor, he said that he had either now purchased or intended to purchase. Through the interpreter he expressed a wish to have the firearms returned to him. In particular, one of them had significant sentimental value.
The first Magistrate then recorded convictions for each of the offences and sentenced Mr Franco by imposing the fine of $150. He ordered forfeiture of the firearms and the ammunition. His remarks on penalty were not recorded, but according to the prosecutor, the Magistrate referred to Mr Franco’s personal circumstances and his limited financial means, and informed Mr Franco that for that reason he would impose a lower penalty than otherwise would be the case. The Magistrate acknowledged that Mr Franco was a person of good character who had led a productive life.
Upon his application for a rehearing of the matter before the second Magistrate, Mr Franco did not seek to challenge either his conviction or the fine that was imposed. His application related solely to the order of forfeiture. He was legally represented before the second Magistrate.
Upon the hearing before the second Magistrate, a number of additional facts were placed before the second Magistrate which had not been disclosed to the first Magistrate. Those facts included what follows.
As a result of the conversation with the police on the day that the firearms were seized, Mr Franco, rightly or wrongly, formed the belief that if he obtained a steel locker in which to store the firearms, they would be returned to him. In the record of interview, the police officer said, “He has to go to Court in relation to it because it is a firearms offence. But, as we discussed, depending on the Court, he may be able to keep these firearms. They may not be destroyed. [This] will be the likely scenario.”
Consistent with his belief, Mr Franco in fact purchased a firearms cabinet on 29 October 2007. That afternoon, his daughter sent an email on his behalf to the police officer with whom they had been dealing. She informed the police officer of the purchase, described the cabinet, and asked whether the ammunition had to be kept in a separate cabinet. The next day the police officer replied, saying:
These style (sic) of gun safes are quite common, we at firearms branch believe they meet legislative requirements relating to the security of ammunition. As long as the key to the top of the safe were kept in a separate location.
It will be noted that the purchase of the gun cabinet was made within three days of the random security check by the police and well before any complaint and summons was issued.
Having heard nothing, Mr Franco’s daughter sent another email to the police officer on 8 January 2008 in the following terms:
I would like to communicate on behalf of my father that the gunsafe has been installed and is perfectly operational.
Thus far we have had no response and I would like you to advise us as to what the procedure is as I don’t know whether your department is waiting to be contacted by us with the advice that gun safe has been installed, or do we wait for contact from yourselves?
Please advise.
That was consistent with a genuine belief on the part of Mr Franco that, if he acquired and installed a secure gun and ammunition cabinet, the firearms would be returned to him.
The reply to that email was dated 9 January 2008:
Your father should receive a summons to attend court, which usually occurs approximately 6 months after the report is put in. We spoke to you and your father in late October I believe – so the summons should arrive about March or April.
Regarding the safe, photograph it and take the picture with you to court. If you have a digital camera you could email a picture to me and I will make a note on our computer system.
In addition to that information, the second Magistrate was told that Mr Franco was 82 years of age; that he had no prior criminal history; that the firearms had always been registered; that Mr Franco had not fired the firearms for over 25 years; that one of the firearms in particular had been brought from Italy when he emigrated to Australia shortly after World War II; that the firearms had great sentimental value to him; that he now had a full appreciation of his obligations as a licensed holder under the Firearms Act; that he had no intention to use the firearms in the future; that the steel locker had been purchased and properly fitted; and that on 9 May 2008 the police had attended the premises and verified that the steel cabinet was in place.
In deciding to set aside the order of forfeiture of the first Magistrate, the second Magistrate made the following findings:
The Firearms Branch of SAPOL in its communications with the defendant’s daughter gave clear expectation to the defendant that the firearms would be returned and there would not be an application for forfeiture. It would appear that information was not communicated to prosecution because at the hearing before me on 16 April 2008, the prosecutor had no knowledge of those emails.
Those emails combined with the defendant’s personal circumstances, namely that he is elderly, was unrepresented on 25 March 2008 and was reliant upon an interpreter clearly, in my opinion, give rise to a situation where it is in the interests of justice that I set aside the forfeiture order.
In deciding what orders, if any, should be made instead, the second Magistrate made the following observations:
The primary purpose of forfeiture orders is to protect the public rather than impose penalties. S.34A of the Act is protective in nature and purpose.
I do not ignore the very inappropriate and dangerous manner in which the defendant stored his firearms.
However, his early actions after detection are very relevant to whether a forfeiture order should be made. He took all steps, in consultation with the Firearms Branch, to set up a cabinet ready for use upon the return of the firearms. I also take into account that the defendant is a man of previous good character without an offender history.
I consider that the protection of the public would be satisfied by an order other than forfeiture of the firearms.
I make the following orders:
(1) The ammunition the subject of count 4 is forfeited.
(2) Pursuant to s.34A(1)(b) that the licence held by the defendant be subject to the condition that the defendant not possess any ammunition.
The forfeiture provisions
Section 34A of the Firearms Act, under which the first Magistrate made the order of forfeiture, relevantly provides:
34A—Forfeiture of firearms by court
(1)Where a court convicts a person of an offence against this or any other Act and the court finds that a firearm, mechanism, fitting or ammunition was involved in the commission of the offence the court must make one or more of the following orders:
(a)     where the firearm, mechanism, fitting or ammunition was owned by the convicted person—that the firearm, mechanism, fitting or ammunition be forfeited to the Crown or be disposed of in such other manner as the court directs;
(b)     that a licence held by the convicted person is subject to specified conditions;
(c)     that a licence held by the convicted person is suspended for a specified period or until further order;
(d)     that a licence held by the convicted person is cancelled;
(e)     that the convicted person is disqualified from holding or obtaining a licence for a specified period or until further order.
It will be noted that the requirement to make one or more of the orders referred to is mandatory upon conviction in circumstances such as those of the present. According to the evidence before me, the information before the first Magistrate as to the provision of an appropriate storage cabinet was equivocal. Although photographs of a firearms safe were produced, there was no evidence that it had been purchased or had been installed. Without firm evidence that Mr Franco then had the facility to store the firearms in accordance with the requirements of the regulations, it would have been irresponsible of the Magistrate not to have made a forfeiture order. No doubt it was open to Mr Franco to have given evidence that he had purchased and installed the cabinet, and to have demonstrated that he could now safely store firearms and ammunition in accordance with the requirements of the regulations. However, given his poor command of English, his possible less than complete understanding of what was being said and the expectation referred to below, it is not surprising that the proceedings took the course that they did.
In the proceedings before the second Magistrate the convictions remained, and it would have been inappropriate for the second Magistrate to have made no order at all under s 34A of the Firearms Act. Subsection (1) required that some order be made. The obligation of that subsection was fulfilled by the orders forfeiting the ammunition and directing, pursuant to s 34A(1)(b), that Mr Franco’s licence be subject to the condition that he not possess any ammunition.
It is also necessary to draw attention to s 35 of the Firearms Act. Subsection (3) of that section provides:
35—Disposal of forfeited firearms etc
…
(3)Where a court makes an order confiscating a firearm to the custody of the Registrar but does not make an order as to the manner in which the firearm should be disposed of or dealt with, the Registrar must, subject to a further order of the court or the order of any other court, keep the firearm for one year and must then sell or otherwise dispose of it as he or she thinks fit.
The expression “an order confiscating a firearm to the custody of the Registrar” does not appear elsewhere in the Act. In my opinion, it can only relate to orders of forfeiture made by a court in accordance with the provisions of the Act, including s 34A. In this case, the first Magistrate did not make any order as to the manner in which the firearms should be disposed of or dealt with. In those circumstances, s 35(3) contemplates the possibility of a further order of the Court after the conviction has been entered and the forfeiture order made.
The power to re-open
Section 76A of the Summary Procedure Act provides:
76A—Power to set aside conviction or order
(1)The Court may, on its own initiative or on the application of any party, set aside a conviction or order.
(2)An application to set aside a conviction or order under this section must be made within 14 days after the applicant receives notice of the conviction or order.
(3)The Court may set aside a conviction or order under this section if satisfied—
(a)     that the parties consent to have it set aside; or
(b)     that the conviction or order was made in error; or
(c)     that it is in the interests of justice to set aside the conviction or order.
(4)Where the Court sets aside a conviction or order under this section it may, without further formality—
(a)     proceed to re-hear the proceedings in which the conviction or order was made; or
(b)     adjourn the proceedings for subsequent re-hearing.
Prior to its amendment by Act No 72 of 1991, s 76a of the then Justices Act 1921 provided:
76a.(1)     Subject to this section, a person against whom a conviction or order is made by a court of summary jurisdiction may apply to the same or some other court of summary jurisdiction for an order setting aside the conviction or order.
(2)     An application under this section must be made within fourteen days of the day on which the applicant receives notice of the conviction or order to which the application relates.
(3)     Where a court of summary jurisdiction is satisfied, upon an application under this section, that –
(a)the applicant did not receive notice of the proceedings in which the conviction or order was made, or not in sufficient time to enable him to attend the hearing;
or
(b)the applicant failed to attend the hearing for reasons that render it desirable, in the interests of justice, that the conviction or order should be set aside and the proceedings re-heard,
the court may set aside the conviction or order to which the application relates.
(4)     Where a court of summary jurisdiction sets aside a conviction or order under this section it may, without further formality –
(a)proceed to re-hear the proceedings in which the conviction or order was made;
or
(b)refer the proceedings for re-hearing by some other court of summary jurisdiction.
It can be seen that the previous section was much more limited in its operation and only applied where, for various reasons, the applicant did not attend the hearing. The present section confers a much wider discretion upon the Court. It goes further then the operation of the slip rule provided for in s 76B of the Summary Procedure Act. As Lander J noted in Muscat v Magistrates’ Court,[1] it was enacted at the same time as Parliament constituted the Magistrates Court of South Australia a court of record. Authorities decided under the previous section will therefore be of limited assistance. Nevertheless, some observations of Cox J in Maider v Dancis[2] are relevant to the operation of the present section:
The court that hears an application under s. 76a will properly have regard to the attitudes expressed in the cases that have been decided under s. 163,[3] but those cases do not establish inflexible categories that will determine the success or failure of these applications. Where a discretion is given by Parliament in unqualified terms, a pattern will often emerge after a time from the reported decisions, and this may give guidance in future cases. Discretions are not to be exercised capriciously, and it will often be useful to see what attitude was taken in earlier cases having some resemblance to the matter in hand. However, there are obviously limits to the deductions that may be drawn from such cases. Dicta from ad hoc decisions, however useful they may be, are not to be applied like the words of a statute. Certainly, convictions and orders are not to be set aside on grounds that are unmeritorious or otherwise inadequate. The rights and interests of the respondent are to be considered, not only those of the applicant. There will be times when it will be appropriate to have regard to the substantial merits of a proposed defence, and times when it will not. There may be other useful ways of probing the merits of an application. But in the end, as it seems to me, it will be a matter of doing what the justice of the case in hand requires.
[1] (1996) 66 SASR 367, 378.
[2] (1985) 39 SASR 136, 142.
[3] Section 163 of the (then) Justices Act 1921 provided for appeals from a court of summary jurisdiction to the Supreme Court.

It is not appropriate to attempt to identify the wide variety of circumstances in which the discretion conferred by s 76A may be exercised. It is not an unfettered discretion. However, it does enable the Magistrates Court to make orders where it would otherwise have been functus officio.[4]
[4] Muscat v Magistrates Court (1996) 66 SASR 367, 378.
It is not suggested in this case that the order of forfeiture was made in error. Indeed, as I have already observed, the first Magistrate probably had little choice but to make a confiscation order upon the facts as then apparently presented to him. The ground on which the second Magistrate acted was that contained in subsection (3)(c), namely that it was in the interests of justice to set aside the order.
An order under that paragraph does not require, as the respondent submitted, proof of exceptional or special circumstances. Such a requirement would necessitate reading words into subsection (3) which are not there. On the other hand, I consider that it would be an inappropriate use of the section to argue for some lesser penalty merely because the applicant considered that the penalty imposed was excessive or was unexpected.
The Magistrates Court, although a court of record, is also a court of summary jurisdiction. Where an error has been made or relevant facts have been withheld from or mistakenly omitted from being placed before the Court, either through no want of diligence on the part of the applicant or because of a genuine misunderstanding on the applicant’s part, which has resulted in an injustice, or where material circumstances have changed which justify the reconsideration of an order of this nature and the interests of justice require it, resort to s 76A of the Summary Procedure Act is entirely appropriate. Within the constraints imposed by s 76A(3) it is a convenient summary remedy for an injustice which otherwise could only be cured by the much more cumbersome and expensive procedure of an appeal to this Court.
In my opinion there were three grounds in this case which would have justified the second Magistrate acting under s 76A. The first was the expectation, as found by the second Magistrate, that Mr Franco had, based on the exchanges that had taken place between him and his daughter with the Police, that the Police would not make an application for forfeiture, and that it was likely that the firearms would be returned to Mr Franco if he had storage facilities that complied with the requirements of the regulations. It was no doubt because of that expectation that Mr Franco was unrepresented before the first Magistrate, believing that, as he then had the appropriate facilities installed, the firearms would be returned. As the second Magistrate held, it was the combination of that expectation, induced by the action of the Police, and Mr Franco’s age and lack of English which required that, in the interests of justice, the order of forfeiture should be set aside. There was ample justification for that finding. Mr Franco had been told by the Police that the “likely scenario” was that he would be able to keep the firearms. The subsequent emails were consistent with that understanding. Mr Franco was never told that the Police would apply for an order of forfeiture. He did not come equipped to resist an application for forfeiture of which he had no notice and which was contrary to his understanding of what would occur.
The second ground is that the relevant facts were well known to the Police but were not disclosed to the Magistrate. It is not suggested that the information was deliberately withheld. The Police prosecutor was obviously unaware of the email exchanges which had taken place and had no reason to have listened to the record of interview. The prosecutor’s instructions were no doubt limited to the information contained in the police apprehension report which disclosed no more than the circumstances of the offences. However, in all the circumstances, that information was incomplete. Information relevant to the making of an order under s 34A(1) of the Firearms Act was apparently not supplied to the prosecutor, and hence to the Court. Mr Franco, with his limited understanding of English and of court procedures, was entitled to assume that it would be or would have been.
In the third place, even if, when the case first came before the first Magistrate, Mr Franco had not acquired the firearms locker and the first Magistrate had no alternative but to make the forfeiture order, the Firearms Act itself contemplated the possibility of a re-opening of that order during the period that the firearms were required to be held by the Registrar before selling or otherwise disposing of them. Having produced evidence of the acquisition and installation of the appropriate locker, and given the circumstances of the offending and Mr Franco’s then understanding of his obligations under the Firearms Act and the regulations, it would have been open to a magistrate, if it was considered to be in the interests of justice to do so, to revoke the forfeiture order and to impose the conditions which in fact the second Magistrate imposed. No-one suggested that Mr Franco’s lack of understanding of his obligations was other than genuine or that at all times he did not hold a genuine desire to comply with the law. There was never any risk of misuse of the firearms or of their causing any danger to anyone if they were properly stored. In circumstances such as those, the provisions of s 76A of the Summary Procedure Act can be seen as being complementary to the provisions of s 35 of the Firearms Act. However, I do not suggest that that is the only situation where s 76A can operate.
This was not a case of substituting a discretionary order for an earlier one merely because the applicant was dissatisfied with the first one. The second Magistrate was not merely acting as a de facto appeal court, although the same result may have been achieved by an appeal. There were good and cogent reasons in the interests of justice why the second Magistrate should take the course that she did. She was acting on evidence that was not before the first Magistrate but which, if it had been, would probably have resulted in the order that was in fact made by the second Magistrate. It was not, as the respondent suggested, a case of having to demonstrate error on the part of the first Magistrate, although that is a possible ground for acting under s 76A. All that had to be shown, and was shown, was that it was in the interests of justice to set aside the order.
For these reasons the appeal must be dismissed