Pollitt v Police - [2007] SASC 382

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLLITT v POLICE
[2007] SASC 382
Judgment of The Honourable Justice Gray
1 November 2007
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS
Appeal against a decision of a Magistrate ordering forfeiture of the appellant’s firearms - cross-appeal seeking an order that the appellant be disqualified from holding or obtaining a firearms licence - police found three firearms in appellant's home not secured in accordance with Firearms Regulations - appellant claims that these firearms are rare and valuable - Magistrate ordered that weapons be forfeited to the Crown - Magistrate made no order in relation to appellant's firearms licence - appellant then convicted in separate proceedings of indecent behaviour and attempted abduction - court of criminal appeal upheld indecent behaviour conviction but ordered retrial on attempted abduction charge - retrial has not yet occurred - whether Magistrate erred in ordering that the appellant's firearms be forfeited to the Crown - whether appellant a fit and proper person to hold a firearms licence - whether evidence of appellant's conviction of indecent behaviour and pending trial for attempted abduction is relevant and admissible to the question of whether he is a fit and proper person to be holding a firearms licence - Held: Magistrate did not err in ordering forfeiture of the firearms - evidence of separate conviction of indecent behaviour relevant and admissible to question of whether appellant a fit and proper person to hold a firearms licence - appellant not a fit and proper person to hold a firearms licence.
Magistrates Court Act 1991 (SA) s 42; Firearms Act 1977 (SA) s 21, s 34A; Firearms Regulations 1993 (SA) r 29 and r 53, referred to.
Mulholland v Mitchell [1971] AC 666; R v Pollitt (2007) 97 SASR 332; Johnson v Registrar of Firearms (2001) 79 SASR 353; Offe v Police (2002) 84 SASR 1; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Golding v Police [2007] SASC 159; Police v Losapio [2007] SASC 112, considered.

POLLITT v POLICE
[2007] SASC 382
Magistrates Appeal
GRAY J

This is an appeal, pursuant to section 42 of the Magistrates Court Act 1991 (SA), against a decision of a magistrate ordering forfeiture of the appellant’s firearms. The respondent, the Crown, cross-appealed, seeking an order that the appellant be disqualified from holding or obtaining a firearms licence.
Background
On 29 June 2005, police attended the property of the appellant, Ian Gerald Pollitt. The appellant’s house was locked. The police gained entry under a general search warrant. During the search of the premises police located three firearms, registered in the appellant’s name, on a table under a blanket in the house. The three firearms were an SKB shotgun, a Remington rifle and an Anschutz rifle. All firearms contained either bolt or semi-automatic actions, and were not securely stored. The firearms were seized by the police.
The appellant pleaded guilty before a Magistrate to two offences: failing to comply with a condition of the firearm licence that he held, contrary to section 21 of the Firearms Act 1977 (SA); and failing to keep firearms that were in his possession secured in accordance with regulation 29(1) of the Firearms Regulations 1993 (SA), contrary to regulations 29(1) and 53 of the Firearms Regulations.
Section 21 of the Firearms Act provides:
The holder of a licence who contravenes, or fails to comply with, a condition of the licence is guilty of an offence.
Regulation 29 of the Firearms Regulations, which sets out the conditions for the security of firearms, relevantly provides:
(1)A person (not being a dealer) who has possession of a class A or B firearm must keep the firearm secured by—
(a)     securely attaching and locking it to part of the building in which it is kept; or
(b)     keeping it in a locked cabinet made of hardwood or steel that is securely attached to the building in which it is kept; or
(c)     keeping it in a locked safe made of steel that is securely attached to the building in which it is kept; or
(d)     keeping it in a locked steel and concrete strong room; or
(e)     such other method as is approved by the Registrar.
…
(3)     A cabinet or safe referred to in subregulation (1) or (2) must—
(a)     be fitted with fittings and locks that prevent it from being easily forced open; and
(b)     be made of material of sufficient thickness to prevent it being easily broken, opened or destroyed.
(4)Despite subregulations (1)(c) and (2)(a), a safe need not be attached to the building if its mass when empty is 150 kilograms or more.
Regulation 53 provides:
A person who contravenes, or fails to comply with a provision of these regulations is guilty of an offence.
On 22 May 2006, the Magistrate ordered forfeiture of the firearms and fined the appellant $200.00. No order was made in relation to the appellant’s firearms licence. The Magistrate observed:
The offending suggests to me that your approach to safe storage of your firearms was on this occasion, at best, casual. It was put to me that the firearms are otherwise securely stored and it was fortuitous that the police happened to attend on a day when they were not being securely stored. Be that as it may I take the view that the public interest in safe storage of firearms is high and will generally require the discretion I have to be exercised in favour of forfeiture and nothing I have heard from your counsel persuades me that I should do other than order forfeiture. I will however not make any order in relation to your licence.
On 9 June 2006, the appellant appealed to this Court on the grounds that the forfeiture order was excessive in the circumstances. It was contended that the Magistrate did not consider other alternatives allowed by section 34A(1) of the Firearms Act, and in doing so, took no account of the monetary and sentimental value of the firearms.
On 9 October 2006, the respondent cross-appealed on the grounds that the Magistrate erred in failing to order disqualification of the appellant’s firearms licence. The respondent sought leave to extend the time within which to cross-appeal, on the basis that the appellant had been convicted on 15 September 2006 for the offences of attempted abduction and indecent behaviour, and that those convictions were entered outside of the appeal period. It was said that as a matter of public interest the time within which to cross-appeal should be extended. The respondent also sought leave to adduce fresh evidence of the appellant’s convictions for attempted abduction and indecent behaviour entered on 15 September 2006. It was submitted that this evidence was relevant to the appellant’s fitness to hold a firearms licence.
The further evidence should be admitted. It is fresh evidence. It is a relevant matter of public interest. It has a direct relevance to the appropriate orders to be made. It is well settled that fresh evidence can be admitted on appeal when to refuse it would affront common sense or a sense of justice.[1]
[1] Mulholland v Mitchell [1971] AC 666 at 679-680 (Lord Wilberforce).
The convictions for the offences of attempted abduction and indecent behaviour were the subject of an appeal. On 29 March 2007, the Court of Criminal Appeal, by majority, ordered a retrial on the attempted abduction charge.[2] The conviction of indecent behaviour was affirmed. The circumstances of the indecent behaviour were summarised as follows:[3]
The complainant was a 16-year-old schoolgirl who lived in Tanunda but attended Kapunda High School. It was customary for her boyfriend to drop her at a bus stop in the main street of Greenock at about 7.15 am. She would then wait for a bus, which arrived at about 8 am, to take her to Kapunda.
The complainant’s evidence was that at about 7.30 am on Wednesday, 29 June 2005, she was waiting at the bus stop in Greenock when the appellant stopped his sedan adjacent to the bus stop with the front passenger door nearest to her. The appellant leant across from the driver's seat, wound down the front passenger window and asked if she would like a lift. She declined. The invitation was repeated more than once with the appellant saying words to the effect that he would take the complainant to where she was going and she, on each occasion, declining. The appellant then demanded forcibly that the complainant get into the car (“Get in the fucking car”). He then got out of the driver's door, walked around the car and stood at a position near the rear passenger door. While he was doing this the complainant said that she removed some scissors from a pencil case in her school bag and put them in her pocket.
While standing near the rear passenger door, the appellant again told the complainant to get into his car. She declined. The complainant said that the appellant then undid the belt and zip of his trousers and exposed his penis and testicles for about 15 seconds. She then moved to her left but was still within the bus shelter. When she did this the appellant grabbed her bag by its handle and threw it against the back of his car. He took a step towards her and was then only a few metres from her. The complainant then produced the scissors and said words to the effect that the appellant should leave or she would stab him (“Fuck off or I will stab you”). Detecting some indecision, the complainant took a step towards the appellant, waving the scissors at him. The appellant, it was said, then “put his private parts away” and got back into the driver’s seat of his car and moved away, saying as he left “I will be back to get you, you little slut”. The complainant was able to see the registration number of his car.
[2] R v Pollitt (2007) 97 SASR 332.
[3] R v Pollitt (2007) 97 SASR 332 per White J at [76]-[78].
The appellant is due to be retried on the charge of attempted abduction in February 2008. He has yet to be re-sentenced with respect to the indecent behaviour offence.
The Appeal and Cross-Appeal
Submissions
Counsel for the appellant submitted that the forfeiture of the appellant’s firearms, together with his conviction, created a disproportionate penalty for the degree of offending in this particular case. The appellant tendered evidence on the value and importance of the firearms to the appellant’s family. It was submitted that the SKB shotgun had a special black engraved stock, with a gold trigger fitted with swivels and sling in a padded bag. The firearm is no longer manufactured, is of high quality, and is valued at $2,400. The Remington rifle is fitted with a telescopic scope and mounts which were made in the United States of America. The scopes are no longer made in the United States of America and their replacements are of lesser quality. The rifle is fitted with a trigger shoe and adjusted free floated barrel, swivels, lens covers and padded bag. It was said that Remington no longer manufacture this rifle in this calibre, and it is valued at $2,738. The Anschutz rifle is fitted with a variable telescopic scope and mounts from the United States of America, a trigger adjusted and free floated barrel, swivels, lens covers, and is valued at $2,360. Counsel for the appellant submitted that the firearms and fittings are unique and collectable, and that they are of great sentimental value to the appellant.
The appellant claimed that he had left the firearms on his table in the lounge room following cleaning. He covered them with a blanket and left the house locked. He then went to work. The appellant submitted that his house, located outside Kapunda, is not in the near vicinity of other dwellings other than his parents’ house. The house was locked and secure, and was under the ready supervision of the appellant’s parents.
The appellant, while accepting his failure to comply with the strict requirements of the Firearms Regulations, submitted that he did not leave his firearms in a situation of risk. The premises in which they were located were secure. They were out of view of any casual passer-by. They were in premises subject to surveillance from trusted adults. The appellant’s house was not frequented by children. He is single, has no children, and there is no cause for children to visit.
The appellant said that the three firearms were important to him. He has held a firearms licence since May 1979 and has never had a problem with the police regarding firearms. He has had possession of the firearms since he has held his licence. The firearms have all been in his family for approximately 50 years and were given to the appellant by his grandfather when he was a child. A fourth firearm that he owned was locked away and was not seized.
The appellant stated that he used firearms on the farm where he lives to control vermin, mainly foxes. There are a number of sheep on the property and there have been problems with foxes taking young lambs.
Counsel for the appellant contended that, while acknowledging the need for deterrence and the importance to the community of the safe handling of firearms, the penalty of forfeiture of the firearms, and the resulting cost and emotional distress to the family, was excessive in all the circumstances.
The Court’s discretion to direct an alternative to the forfeiture of the firearms was said to derive from section 34A(1)(a) of the Firearms Act, which provides:
(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;
[emphasis added]
Counsel for the respondent submitted that the Magistrate did not err in ordering forfeiture of the firearms. Further, the respondent submitted on the cross-appeal that, having regard to the further evidence, the appellant should be disqualified from holding any firearms licence.
Consideration of the Issues
The overriding policy of the Firearms Act is to protect the public from the unsafe or criminal use of firearms. The legislative scheme was considered in Johnson v Registrar of Firearms,[4] and in Offe v Police.[5] The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included the provision of community protection through the licensing and regulation of firearms. Parliamentary debates indicate that the Act was:[6]
designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.
[4]    Johnson v Registrar of Firearms (2001) 79 SASR 353.
[5]    Offe v Police (2002) 84 SASR 1.
[6]    South Australia, Parliamentary Debates, House of Representatives, 14 April 1977, 3448 (Hugh Hudson).
In 1996 amendments were made to the Act, introducing stricter gun laws throughout Australia:[7]
In an historic move on 10 May 1996 the Australasian Police Ministers' Council agreed to a series of resolutions to introduce national uniform gun laws. The underlying thrust of those resolutions is that gun ownership is not a right, it is a conditional privilege.
[7] South Australia, Parliamentary Debates, House of Representatives, 10 July 1996, 1919 (S.J. Baker).
The legislation aimed to ensure that only responsible persons with appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.
These observations were affirmed by Mullighan J in Registrar of Firearms v Gitsham:[8]
In Johnson v Registrar of Firearms (2001) 79 SASR 353, Gray J had occasion to consider what he described as the scheme of the Act which, he said, was a comprehensive scheme which deals with gun control and the aim of the Act is to ensure public safety: at 357. I agree with those observations. The provisions of the Act and the Regulations provide close regulation of the acquisition, possession, use, registration and transfer of firearms in the interests of public safety.
[8] Registrar of Firearms v Gitsham (2002) 84 SASR 72 at 76. – see also Golding v Police [2007] SASC 159 at [18].
On this basis, the primary purpose of forfeiture orders is to protect the public rather than to impose penalties. All of the orders available to the courts under section 34A of the Firearms Act are protective in nature and purpose. This becomes evident when one considers that the use of powers under section 34A(2) does not require that the party should have been convicted of an offence in criminal proceedings. It is sufficient if the court forms the view that the party has possession of a firearm and is not a fit and proper person to have such possession.
In my view, the Magistrate did not err in ordering that the firearms be forfeited. Ordering forfeiture was well within his discretion. Any status that the firearms may have as rare and valuable family heirlooms is outweighed by the public interest in ensuring that firearms are stored safely and securely. I do not accept the submission of counsel for the appellant that the firearms were secure, in the sense that the house that they were in was locked and was under surveillance by adults. The conduct of the appellant in covering the weapons with a blanket demonstrates his awareness that the weapons were not secured as well as a deliberate decision to leave them unsecured. The firearms were not secure in accordance with the safeguards prescribed in regulation 29 of the Firearms Regulations, and requiring strict compliance with this provision is important to ensure that Parliament’s clear intention is served.
I turn now to consider the Magistrate’s decision not to make any order with respect to the appellant’s firearms licence. As earlier noted, the respondent, with leave, adduced fresh evidence of the appellant’s convictions for attempted abduction and indecent behaviour entered on 15 September 2006. These convictions were entered after the Magistrate’s orders, made on 22 May 2006.
The appellant’s convictions are plainly relevant to the determination of his suitability to hold a firearms licence. As David J observed in Police v Losapio:[9]
The possession of firearms is a privilege and a serious responsibility. It is entirely consistent with the legislative scheme that the holders of firearms licences be carefully scrutinised to ensure they are of appropriate character to bear this responsibility.
As earlier observed, the conviction for attempted abduction was set aside by the Court of Criminal Appeal and a retrial ordered.[10] However, the conviction for indecent behaviour was affirmed.
[9] Police v Losapio [2007] SASC 112 at [21].
[10] R v Pollitt (2007) 97 SASR 332.
Section 34A(2) of the Firearms Act empowers this Court to revoke the appellant’s firearms licence. That section provides:
Where, in the course of proceedings before a court, the court forms the view that a party to the proceedings who has possession of a firearm, mechanism, fitting or ammunition is not a fit and proper person to have possession of the firearm, mechanism, fitting or ammunition, the court must make one or more of the following orders:
(a)that the firearm, mechanism, fitting or ammunition be disposed of in such manner as the court directs;
(b) that a licence held by the party is subject to specified conditions;
(c)that a licence held by the party is suspended for a specified period or until further order;
(d) that a licence held by the party is cancelled;
(e)that the party is disqualified from holding or obtaining a licence for a specified period or until further order.

Having regard to all of the circumstances, and the appellant’s subsequent conviction for indecent behaviour, I consider that the appellant is not a fit and proper person to have possession of a firearm.
Although the appellant is yet to stand re-trial on the attempted abduction charge, the jury in his previous trial returned a guilty verdict on the charge of indecent behaviour and so must have accepted the complainant’s version of events.
The fact of the appellant’s conviction of indecent behaviour is sufficient, in my view, to establish that the appellant is not a suitable holder of a firearms licence.
Conclusion
It is important that the provisions of the Firearms Act and Firearms Regulations are complied with. The community should be reminded of the need for careful and strict compliance, as the legislative scheme for gun control requires compliance for its efficacy. I dismiss the appeal until further notice.
I allow the cross-appeal, and order that the appellant’s firearm licence be revoked and the appellant be disqualified from holding a firearm licence.