Pollitt v Police

Case [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

  1. 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

  2. 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.

  3. The appellant pleaded guilty before a Magistrate to two offences: failing…

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Pollitt v Police [2007] SASC 382
Case
[2007] SASC 382
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CaseChat Overview and Summary

In the matter of Pollitt v Police, the appellant, Ian Gerald Pollitt, appealed against a decision of a Magistrate to order forfeiture of his firearms, while the respondent, the Crown, cross-appealed seeking an order that the appellant be disqualified from holding or obtaining a firearms licence. The dispute arose when police discovered three firearms in the appellant’s home that were not secured in accordance with the Firearms Regulations. The appellant argued that these firearms were rare and valuable. The Magistrate ordered the weapons to be forfeited to the Crown, but made no order regarding the appellant’s firearms licence. Subsequently, the appellant was convicted in separate proceedings of indecent behaviour and attempted abduction. The Court of Criminal Appeal upheld the indecent behaviour conviction but ordered a retrial on the attempted abduction charge, which has not yet occurred.

The primary legal issues before the court were whether the Magistrate erred in ordering the forfeiture of the appellant’s firearms, whether the appellant was a fit and proper person to hold a firearms licence, and whether evidence of the appellant’s conviction of indecent behaviour and pending trial for attempted abduction was relevant and admissible to the question of fitness to hold a firearms licence. The court held that the Magistrate did not err in ordering forfeiture of the firearms, the evidence of the separate conviction was relevant and admissible, and the appellant was not a fit and proper person to hold a firearms licence. The court emphasised the overarching policy of the Firearms Act to protect the public from the unsafe or criminal use of firearms. It held that the appellant’s conduct and subsequent conviction demonstrated a lack of fitness to hold a firearms licence.

The court reasoned that the overriding policy of the Firearms Act is to protect the public from unsafe or criminal use of firearms. The legislative scheme was considered in prior cases, which established that the Act was designed to introduce stricter controls on the possession and use of firearms to safeguard the community. The court noted that the Firearms Act and Regulations provide close regulation of the acquisition, possession, use, registration and transfer of firearms in the interests of public safety. The primary purpose of forfeiture orders is to protect the public rather than impose penalties. The court concluded that the appellant’s conduct and conviction for indecent behaviour were sufficient to establish that he was not a suitable holder of a firearms licence. The appeal was dismissed, and the cross-appeal was allowed, resulting in the appellant’s firearm licence being revoked and the appellant being disqualified from holding a firearm licence.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.