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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DOUCAS

Details

AGLC: R v Doucas [2009] SADC 92
Case: [2009] SADC 92
Decision Date: 31 August 2009

CaseChat Overview and Summary

In the District Court of South Australia, the accused, Mr. Douca, was charged with possessing a firearm without a licence, an offence under s 11(1) of the Firearms Act 1977. The accused pleaded not guilty and elected for a trial by judge alone. During a police search of the accused's home, a homemade "spud gun" was discovered. The central issue in this case was whether the spud gun constituted a "firearm" as defined by the Act. The accused argued that the spud gun, being a toy, was excluded from the definition of "firearm" by regulation 5.

The court had to determine if the spud gun met the criteria of a firearm under the Act and whether it could be classified as a toy firearm exempt from regulation. The court considered the definition of "firearm" as a device designed to fire projectiles by burning propellant or compressed gas. The evidence established that the spud gun was capable of firing projectiles using flammable gas, thus fitting the definition of a firearm in terms of its operational mechanism. However, the court also needed to assess if it qualified as a "toy firearm" under regulation 5, which would exempt it from the definition of a firearm. The accused claimed the spud gun was made for fun and amusement rather than serious use, and the court found this to be true based on the accused's statements and the nature of the device.

After careful consideration, the court concluded that while the spud gun operated as a firearm, it was primarily intended for amusement and thus qualified as a "toy firearm." Consequently, it did not fall under the definition of a firearm in the Act. As a result, the prosecution failed to prove the accused possessed a firearm without a licence, leading to a verdict of not guilty.

Orders