R v Chapman - [2008] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHAPMAN
Criminal Trial by Judge Alone
[2008] SADC 158
Reasons for the Verdicts of His Honour Judge Rice
14 November 2008
CRIMINAL LAW
Trial by Judge alone - charge of possessing a firearm without a licence - accused possessed an 8 millimetre starting pistol that had been cut down and modified - once modified the pistol was capable of firing a projectile by means of a burning propellant - whether or not a Class H firearm (handgun) because, as originally designed, it was not capable of firing a projectile.
Held: "designed" embraces an original design and modified design - verdicts of guilty.
Firearms Act 1977 ss 5 and 11(1), referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 381, considered.

R v CHAPMAN
[2008] SADC 158
Introduction

This is a trial by Judge alone for the alleged offence of possessing a firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (“the Act”). Two other summary charges relating to the alleged weapon hinge upon the verdict. The two other charges are possession of an unregistered pistol and a failure to properly secure it.
All of these charges and others for which Mr Chapman has already been sentenced stemmed from police investigations on 2 August, 2007. At the time of sentencing on those other matters, I indicated that a guilty verdict was to be entered on the major charge and the two minor charges. Being of that view, Mr Chapman has now been sentenced upon all charges. I indicated that I would publish reasons, which I now do.
Particulars of the charge
Particulars of the charge of possessing a firearm without a licence are:
Geoffrey Norman Chapman on the 2nd day of August 2007 at Milang, had in his possession a Class H firearm, namely a modified Kamir (sic) Semi Automatic Pistol, without holding a firearms licence authorising possession of that firearm.
Briefly by way of background, Mr Chapman was stopped by the police on 2 August, 2007 when he was driving towards Wistow, near Strathalbyn. A charge relating to his possession of methylamphetamine arose from that questioning. Following that incident, the police searched a property that he was renting about eight kilometres from Milang.
The search revealed the further offences of production and possession of cannabis for supply, possession of a stun gun and OC spray, and various charges relating to a sawn-off single barrel shotgun, shotgun cartridges and a Kimar semi-automatic Model 92 pistol. The trial related to this alleged pistol. In fact, the police seized two Kimar brand 8 millimetre semi-automatic pistols which are a full size replica of a Beretta Model 92 semi-automatic pistol. In short, as originally designed and manufactured, both pistols were starting pistols for use in sport or similar. One of those pistols remained as originally manufactured and was not the subject of any charge. The major charge relates to the other pistol which was the subject of significant modifications.
The modifications
Referring to the statement of Brevet Sergeant De Laine, those modifications were as follows. The barrel, which consisted of an alloy metal, was sawn off to a length of 29 millimetres. The remainder of the integral fixed barrel had been drilled to a depth of 8 millimetres and a width of 8 millimetres. The chamber was not drilled, but was of 8 millimetre diameter. The obstructed section of the barrel was removed as part of the sawn off section of the barrel. The gas ports remained at the top of the chamber to provide the semi-automatic function as part of the original design.
The chamber of the Kimar was designed only to fire an 8 millimetre blank cartridge. Also found was .22” Long Rifle Rimfire calibre ammunition which, as manufactured, could not be fired from the Kimar pistol. However, a live 8 millimetre blank round, normally used in the Kimar, had been modified by removing the green plastic end cap of it and adhering (possibly with glue) a .22” calibre hollow point projectile inside the neck of the cartridge case.
In the view of Brevet Sergeant De Laine, a recognised expert relating to firearms, the modifications of the Kimar pistol were such that it was then capable of discharging a projectile by means of a burning propellant. In his view, the pistol was capable of discharging a projectile of the type adhering to the modified 8 millimetre blank round. There was no attempt to discharge that round in the pistol.
Normal tests were undertaken to ascertain whether the pistol would fire a normal 8 millimetre blank round (as if being used as a conventional starting pistol). The pistol would not even discharge a normal blank because of what was described as “light strike”, that is, there was insufficient force of the firing pin to the bottom of the round to cause it to discharge. There was simply a fault with the firing mechanism. However, when working properly, it would have been capable of discharging a normal blank round. The fact that, as tested, it could not be made to discharge is not to the point. If it was in working order, I am satisfied that it would have been able to discharge (see definition of “firearm” below).
The argument at trial was whether the Kimar pistol, as modified, was a Class H firearm. No question arose about possession, but I was, nonetheless, satisfied that he was in possession. He certainly did not have a licence and I was satisfied as to that.
A Class H firearm means a handgun (s 5 of the Act). A handgun is defined (s 5):
handgun means a firearm the barrel of which is less than 400 millimetres in length and that is designed or adapted for aiming and firing from the hand and is reasonably capable of being carried concealed about the person and includes a receiver of such a firearm;
The barrel of this pistol was cut down to 29 millimetres.
“Firearm” is defined (s 5):
firearm means―
(a) a device designed to be carried by hand and to fire shot, bullets or other projectiles by means of burning propellant or by means of compressed air or other compressed gas; or
(c) a device of a kind declared by regulation to be a firearm for the purposes of this Act,
and includes a receiver of a firearm and any device which, if in working order, would be a firearm within the meaning of this definition (except such a device that has been rendered unusable in a manner stipulated in the regulations or by the Registrar) but does not include an antique firearm, or a device of a kind excluded by regulation from the provisions of this Act;
The evidence was that, when being used in the normal manner, the pistol would discharge by means of a burning propellant after the firing pin strikes the bottom or base of the round.
Discussion
The question can be reduced to asking whether “designed” in the definition of “firearm” means “as originally designed” or, on the other hand, “as designed by means of this modification.” The argument on behalf of Mr Chapman was that “designed....to fire....projectiles by means of burning propellant....” means as designed originally, that is, to fulfil its intended purpose as a starting pistol. The prosecution argues that “designed” embraces a “modified design”.
It is principally a question of statutory interpretation. There is no reason, on the face of the legislation, to give it a narrow or restricted interpretation. The High Court has expressed the appropriate principles of construction in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 381 at [384]:
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. ... The duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.
The first question relates to whether the word “designed” relates solely to the words “to be carried by hand” and not to the words “and to fire shot, bullets or other projectiles by means of burning propellant....” In other words, the object being referred to is “a device” which includes two features, one, a design whereby it is to be carried by hand and, secondly, the ability to fire shot, bullets etc. Although that is a potential interpretation of the words, it is not necessary to decide the case on that basis.
It is sufficient for the purposes of this case to decide it on the basis upon which it was argued. In my view, “designed” should not be limited to the physical design and purpose of the device as manufactured. This device was re‑worked and modified such that it was capable of firing a projectile. That modification was designed to bring about that ability.
The design of a device should not be limited to the original design. It should extend to a later design or modified design that brings about the crucial feature of the ability to fire a projectile. After all, that is the purpose of the legislation. The legislation regulates and prohibits certain devices according to their features, here one of them being the ability to fire a projectile by means of a burning propellant. A person could not be shot by this device as originally designed and manufactured, but it had that capability once modified.
I find Mr Chapman guilty of the major and minor offences. Sentence has already been imposed.