R v Grosser - [2015] SADC 122

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GROSSER
Criminal Trial by Judge Alone
[2015] SADC 122
Reasons for the Verdict of Her Honour Judge Davey
27 August 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
The accused is charged with possessing a firearm without a licence in contravention of the Firearms Act 1977 - the firearm in question is a toy cap gun - the accused elected for trial by judge alone.
Verdict: Not guilty.
Firearms Act 1977 ss 5 and 11; Firearms Regulations 2008 Reg 5; Criminal Law Consolidation Act 1935 , referred to.

R v GROSSER
[2015] SADC 122

Jake Riley Grosser is charged with possessing a firearm without a licence in contravention of s11(1) of the Firearms Act 1977. It is alleged that on 22 December 2013 at Murray Bridge, the accused was in possession of a Class H firearm, namely a Victory model imitation handgun without holding a firearms licence authorising its possession. The item was a toy cap gun.
The accused elected for trial without jury. The matter proceeded before me by way of short trial and submissions. Most of the evidence was tendered by consent. The principal issue in contention was whether or not the prosecution had proved beyond reasonable doubt that the object found in the accused’s possession was a firearm within the meaning of the Firearms Act. For the reasons set out hereunder I find the accused not guilty of the offence.
General background circumstances
On 22 December 2013 the police attended at a house at Murray Bridge. A search of the premises was conducted including a search of two large sheds. A box was located inside one of the sheds. Inside the box was the toy cap gun alleged to be a firearm.[1] The box also contained other items including some large knives, pocket knives and a single shotgun round.
[1] Exhibit P3.
The accused was arrested and later interviewed on 22 December 2013 at the Murray Bridge Police Station in the presence of his mother and father. He was born on 8 April 1992. He was 21 years old. The accused admitted that he lived at the house at Murray Bridge and had done so for the past 12 months. He said he was the only occupant of the address. He agreed that he did not have a firearms licence. The accused said that the item alleged to be a firearm was probably a toy that he had had since he was a child and that it had been in a box of items that had been brought to the address when he moved in about 12 months earlier.
There appears to be no dispute that the item in dispute is a cap gun originally sold or distributed as a child’s toy. It has not been altered or adapted. Evidence was adduced by the prosecution and the defence concerning the examination of and opinions as to the toy gun. I note the evidence and declaration of Mr Andrew Plummer dated 3 February 2014 and the reports of Mr Michael T Hudson.[2]
[2] Exhibit D8.
In my view, whilst a court may be assisted by expert evidence as to particular observations and characteristics of items under the Firearms Act, for the purposes of these criminal proceedings no expert evidence is relevant as to whether or not the object in question is a firearm (or regulated imitation firearm) within the meaning of the Firearms Act. The declarations and evidence of Messrs Plummer and Hudson primarily concerned the potential for adaptation of the toy gun to become a working firearm. There was no dispute that the item was originally a child’s toy; in my view whether or not it could be adapted or altered within the meaning of Regulation 5(3) of the Firearms Act is irrelevant.
A toy may contain a mechanism that imitates the loading or firing mechanism but that does not make a children’s toy a firearm or regulated imitation firearm.
The prosecution does not dispute that the item seized was originally a child’s toy. As I understand the prosecution submission, it is to the effect that the context in which a toy may be located or used may determine whether or not the object is a firearm within the meaning of the Act and that in this case the location of the item in a box with other items that could be used as weapons proved that it was not a toy gun but, rather, a weapon and therefore a firearm within the Firearms Act.
The legislative provisions
The accused is charged with an offence against s11 of the Firearms Act. Section 11(1) provides:
11—Possession and use of firearms
(1)A person who has possession of a firearm without holding a firearms licence authorising possession of that firearm is guilty of an offence.
Section 5 of the Firearms Act defines firearm.
5—Interpretation
(1)     In this Act, unless the contrary intention appears—
…
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;
Regulation 5 of the Firearms Regulations 2008 provides:
5—Certain imitation firearms included within definition of firearm
(1)     Pursuant to paragraph (c) of the definition of firearm in section 5(1) of the Act, a regulated imitation firearm is declared to be a firearm for the purposes of the Act.
(2)     A regulated imitation firearm is—
(a)an item that contains a mechanism that imitates the loading mechanism or firing mechanism of a firearm; or
(b)an item that is an imitation of the receiver of a firearm,
other than—
(c)an item that is a children's toy or a novelty item; or
(d)an item determined by the Registrar under subregulation (3) not to be a regulated imitation firearm.
(3)     The Registrar may, on application or on the Registrar's own initiative, determine that a particular item is not a regulated imitation firearm if satisfied that the item cannot readily be adapted to function as a firearm.
(4)     The Minister may, by notice in the Gazette, declare an item of a specified class to be a regulated imitation firearm (and such a notice has effect according to its terms despite subregulation (2)).
(5)     The Minister may, by subsequent notice in the Gazette, vary or revoke a notice made under this regulation.
The term ‘children’s toy’ is not defined in either the Act or Regulations. ‘Toy’ is defined by the Oxford Dictionary to include ‘a material object for children or others to play with (often an imitation of some familiar object); a plaything; …’.[3]
[3] John A Simpson, The Oxford English Dictionary (Oxford University Press, 2^nd ed, 1989), 329.
The prosecution contends that the context in which the item was found or used determines whether the item is a toy within the meaning of Regulation 5(2). There is no reference to use or purpose in the definition. The prosecution have not referred to any authority in support of that contention.
During submissions and in further written submissions[4] the DPP referred to a speech made in the Legislative Council by the Hon. B V Finnigan[5] with respect to Firearms Act Regulations. There are two points to be made about this submission. Firstly, the speech made does not refer to this issue, namely the meaning of ‘child’s toy’. Secondly, I note that the Council disallowed the regulations supported by Mr Finnigan.[6] I do not have regard to the speech.
[4]    Prosecution Further Submissions dated 24 July 2015.
[5]    Hansard, Legislative Council, 2 December 2009 at p4276.
[6]    Hansard, Legislative Council, 2 December 2009 at p4278.
In considering the proper construction of Regulation 5 it is important to note that not all objects that look like or imitate firearms are declared to be firearms. Regulation 5(2)(a) and (b) require that the object have either a mechanism imitating loading or firing or that imitates the receiver of a firearm. Children’s toys and novelty items are excluded. Those items are excluded whether or not they imitate or look like a firearm. The regulation does not refer to the intended use or purpose. This is to be contrasted with the definition of ‘offensive weapon’ in the Criminal Law Consolidation Act 1935 which provides:
offensive weapon means—
(a)an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including—
(i)    a firearm or imitation firearm (ie an article intended to be taken for a firearm); or
(ii)     an explosive or an imitation explosive (ie an article or substance intended to be taken for an explosive); or
(b)     an article or substance that a person has—
(i)    for the purpose of causing personal injury or incapacity; or
(ii)     in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity;
In my view a proper construction of Regulation 5 does not include consideration of the use or purpose of the possession of the item. This is different from the definition of ‘offensive weapon’. The item was created as a child’s toy and is a toy.
If I am wrong about the proper interpretation of Regulation 5 I would nonetheless acquit the accused. In my view the presence of the item with other items capable of being used as weapons is not, in the circumstances, sufficient to prove the offence beyond reasonable doubt.