R v DOUCAS - [2009] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOUCAS
Criminal Trial by Judge Alone
[2009] SADC 92
Reasons for the Verdict of His Honour Judge Clayton
31 August 2009
CRIMINAL LAW
Accused charged with possessing a firearm without a licence.
Spud gun not a firearm within definition of the Act.
Verdict: Not Guilty
Firearms Act 1977 s 11(1), s 36; Firearms Regulations 1993 reg 4, 5 & 8, referred to.
R v Sayers [2006] SADC 123, considered.

R v DOUCAS
[2009] SADC 92

The accused is charged with the offence of possessing a firearm without a licence contrary to s 11(1) of the Firearms Act 1977. The accused pleaded not guilty to the charge and elected for a trial by judge alone.
On 16 May 2007 the police attended the home of the accused in relation to another matter and searched the house. The accused was present at the time. An item, described as a homemade ‘spud gun’, was discovered by a police officer in the kitchen area.
The issue is whether the spud gun is a ‘firearm’ for the purpose of s 11(1) of the Firearm Act 1977. The accused contended that the item does not fall within the definition of a firearm because it is a toy firearm within reg 5 and is therefore excluded from the definition of ‘firearm’ in the Act.
The evidence for the prosecution was by way of statements as to which there was no dispute.
The item was described in the statement of Brevet Sergeant Rex William De Laine from SA Police Forensic Services Branch. He said that the item was made entirely of plastic construction, fabricated from sections of PVC storm water pipe. He stated that:
…The ‘barrel’ was 360mm (14”) length of 70mm diameter storm water pipe inserted into a diameter ‘reducer’ flange from the 100mm diameter end cap ‘body’ connection. This joint, acting as the ‘breech’, was taped heavily by silver coloured adhesive tape (Duct tape) externally, as was the ‘Body’ taped by black coloured electrical tape….
A female threaded ‘Vinidex’ brand 100mm diameter end cap was screwed onto the ‘Body’ with a push button piezoelectric gas stove igniter adhered centrally in place, so the button was on the external side of the cap and the spark terminal was on the internal side of the cap…
The pipe gun had a barrel length of 360mm and an overall length of 660mm (26”). The gun is in evidence. The igniter was operational and had a strong visible spark. Brevet Sergeant De Laine gave the following evidence about the operation of the item:
To fire these devices, a firm fitting projectile of similar diameter to the bore, is fitted into the breech or muzzle end of the barrel, a spray of flammable gas is directed into the chamber (via the open ‘Body’ end) and the end cap then screwed back into place. When the gas igniter is activated by the operator, the flammable gas explodes and propels the projectile from the barrel…
He examined the barrel and came to the conclusion that the firearm had been fired on previous occasions and that the pipe gun was in working condition. This conclusion is consistent with the evidence of the accused.
In a record of interview conducted at the Elizabeth Police station on 16 May 2007 the accused admitted he had made the spud gun which was his.
I am satisfied beyond reasonable doubt that the accused was in possession of the item on 16 May 2007. I am also satisfied that the accused made the item.
Two certificates tendered by the Prosecution pursuant to s 36 of the Firearms Act 1977 establish that the accused was not the holder of any licence authorising him to possess a firearm of any class.
The Act provides:
Section 11(1)
A person who has possession of a firearm without holding a firearms licence authorising possession of that firearm is guilty of an offence.
The Act defines “firearm” as:
(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,…
There is no relevant declaration in any regulation. However reg 5 provides:
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.
Regulation 8 of the Firearms Regulation 1993 contains a list of prescribed firearms, one of which is a “home made device”. Regulation 4 defines ‘home made firearm’ as “a firearm that incorporates a barrel or receiver that was made in Australia by a person who is not a licensed dealer in firearms”.
The Act defines “receiver” as “the metal or plastic body or frame of the firearm that is designed to hold the firing mechanism or the loading mechanism or both in place but does not include the stock or barrel of the firearm”.
The Act does not define the terms ‘projectile’ or ‘barrel’.
The accused did not dispute that the evidence established that he had possession of the item.
I accept that the device was designed to be carried by hand. That is obvious from the dimensions and characteristics of the object. The evidence establishes that the device fires projectiles by means of burning propellant.
Mr Henchliffe, who appeared for the accused, raised three arguments. First, he argued that the Crown have not proved that the item was a firearm, secondly, he argued that the item did not meet the definition of a "home-made firearm" in the regulations, and third, that the item should not fall within the definition of a "firearm" because it is a toy firearm within the meaning of reg 5 and therefore excluded from the definition.
In R v Sayers [2006] SADC 123 His Honour Judge Beazley ruled that the expression "other projectiles" in the definition of firearm ought to be construed in its natural and ordinary meaning and that those words ought not to be limited by the ejusdem generis rule to metallic items of a similar nature to shot and bullets.[1]
[1] Paras 35 and 36.
Mr Henchliffe argued that I should not follow the decision of Judge Beazley. In my respectful opinion the decision of Judge Beazley was correct. I follow His Honour's ruling and hold that the expression "other projectiles" is not limited to items of the same genus as shot and bullets and does include items such as tennis balls, oranges and potatoes.
In connection with his third argument Mr Henchliffe referred to the definition of the word "toy" in the Australian Concise Oxford Dictionary namely: "A thing to play with, especially for child; a thing meant for amusement rather than for serious use;...".
I accept the submission of Mr Henchliffe that the spud gun falls within the definition of a toy. When asked why he had the spud gun the accused told the police officers:
Erm, just for fun, I made it up with a couple, like a couple of my brothers, and I haven’t really used it, may be shot at something near a paddock, or may be shot it at my back fence once.
The accused said in his record of interview that he had never used it against any one, he was very careful with it and he had seen how to make it on Mythbusters, a television programme. He said "You know what I mean, people just have fun, you know kids make things like that, or peg guns." He also said "I've never had any intention of using it on anyone. I had it as fun which is obviously a silly thing to do but". He said it just shoots potatoes but did not think it would shoot a potato 100m.
I accept that the spud gun was something to play with, something for amusement and not for serious use.
I find that the device was primarily intended for fun and was a "toy firearm" within the definition in reg 5. It is therefore excluded from the definition of "firearm" in the Act.
In these circumstances it is unnecessary to consider the other limb of Mr Henchliffe's argument.
In my opinion the prosecution has not established that the device was a firearm within the meaning of the Act. Accordingly a verdict of not guilty must be entered.