R v Johnson

[2023] NSWDC 428

District Court

New South Wales

Medium Neutral Citation:

R v Johnson [2023] NSWDC 428

Hearing dates:

25 August 2023

Date of orders:

29 September 2023

Decision date:

29 September 2023

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The accused is found guilty of counts 1, 2 and 3.

Catchwords:

CRIMINAL PROCEDURE — Trial — Judge alone

CRIME — Firearm — when is a home made item a firearm — s 4 Firearms Act 1996 — statutory construction — the purposive approach — consideration of the statute as a whole — “capable of propelling” a projectile — Interpretation Act 1987

Legislation Cited:

Crimes Act 1900

Evidence Act 1995

Firearms Act 1996

Interpretation Act 1987 (NSW)

Cases Cited:

Director of Public Prosecutions (DPP) (NSW) v Morgan [2013] NSWSC 1474

Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98

Mills v Meeking (1990) 91 ALR 16

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

R v A2 [2019] HCA 35

Texts Cited:

Legislative Assembly Hansard 19 June 1996

Category:

Principal judgment

Parties:

Rex (Crown)
Duncan Johnson (Accused)

Representation:

Solicitors:
Director of Public Prosecutions (Crown)
Aboriginal Legal Service

File Number(s):

2021/102585

JUDGMENT

1. On 25 August 2023, Mr Johnson was arraigned before me in a judge alone trial. He pleaded not guilty to the following counts:

1. On 10 April 2021 at Rankins Springs in the State of New South Wales did possess a loaded firearm, namely a homemade firearm capable of discharging a .22 calibre ammunition round in a public place, namely Naradhan Road, Naradhan contrary to s 93G(1)(a)(i) of the Crimes Act 1900.

2. On 10 April 2021 at Rankins Springs in the State of New South Wales did possess a firearm that was not registered, namely a homemade firearm capable of discharging a .22 calibre ammunition round contrary to s 36(1) of the Firearms Act 1996.

3. On 10 April 2021 2021 at Rankins Springs in the State of New South Wales did possess a firearm, namely a homemade firearm capable of discharging a .22 calibre ammunition round not being authorised to do so by a licence or permit contrary to s 7A(1) of the Firearms Act 1996.

2. Tendered in the Crown case was an agreed statement of facts dated 25 August 2023 (Exhibit 4).

3. On 10 April 2021, the accused parked a motor vehicle near the intersection of Blackers Lane and Naradhan Road and walked away from it. Approximately 400 metres west of the intersection of Naradhan Road and Harts Lane the accused left the shirt he was wearing on the ground. The accused partially buried the “item” (which is the subject of this trial) which was in his possession approximately 50 centimetres from his shirt. The item had a live .22 calibre ammunition inside the “barrel.”

4. The shirt and the item were seized and placed in individual exhibit bags. The accused’s shirt and the item were tested for the accused’s DNA. The accused’s DNA was found on the shirt and the item. The accused has at no time held a licence or permit to possess a firearm. The item has never been registered under the Firearms Act.

5. The Crown contends that the item found is a firearm as defined in the Firearms Act and the accused is guilty of the three counts alleged. The accused submits that as a matter of statutory construction the item is not a firearm, and the Crown cannot prove the counts beyond reasonable doubt.

The Evidence

6. The Crown tendered the following in the trial:

1. Crown written submissions (Exhibit 1).

2. Expert certificate of Senior Constable Stephen Greening, a forensic firearms examiner (Exhibit 2).

3. Proof only firearms examination sheet (Exhibit 3).

4. Agreed facts pursuant to s 191 of the Evidence Act 1995 (Exhibit 4).

7. Senior Constable Greening gave evidence and was cross-examined.

8. The defence tendered a folder of materials (Exhibit A) which included written submissions; R v A2 [2019] HCA 35; Director of Public Prosecutions (DPP)(NSW) v Morgan [2013] NSWSC 1474; ss 8, 33 and 34 of the Interpretation Act 1987 (NSW); and Legislative Assembly Hansard 19 June 1996.

Legal Directions

9. I give myself the following legal directions:

1. Onus of proof is on the Crown, that onus never shifts.

2. Proof must be beyond reasonable doubt.

3. Mr Johnson is presumed to be innocent.

4. I must give separate consideration to the counts and the evidence relevant to those counts.

The Crown Case

10. On 4 October 2022, Senior Constable Greening conducted an examination of the item. He described the item as a .22 calibre homemade single shot firearm without serial number. The item is comprised of a brass threaded section of pipe fixed to a timber frame by a hose clamp. The exhibit is fitted with a metal hammer which pivots about a screw on the frame. The hammer is connected to a small spring. A small rubber band was wrapped around the hammer and a screw on the frame. Tension from the rubber band pulled the hammer forward.

11. For safety reasons, no attempt was made to test fire the exhibit with ammunition. Primed cartridge cases were used to test the functionality of the exhibit. The spring and rubber band did not provide enough force to the hammer to discharge the primed cartridges. Additional rubber bands were added to the mechanism and it was tested. Even with ten rubber bands, the hammer was unable to discharge a primed cartridge case. With ten bands fitted, the mechanism could not be manipulated by hand.

12. The item was placed in a vice and a hammer was used to strike the hammer mechanism to discharge the primed cartridge case. Two cartridge cases were discharged using this method. The officer used a hammer to strike the hammer mechanism while it was resting on the rim of the chambered primed cartridge case. This method was not ideal as the amount of force required to discharge a cartridge was usually sufficient to slide the barrel forward in the hose clamp. Once the barrel had slid forward, it had to be repositioned by loosening and retightening the hose clamp before another attempt could be made. The item could not be raised and fired with one hand.

13. In oral evidence, it was his opinion that the item was a firearm as defined in s 4(1) of the Firearms Act 1996. In cross-examination, he conceded that to fire the item one would need a vice and hammer. The use of rubber bands did not allow the projectile to discharge. It was impractical to add more than ten rubber bands which he tried. It was put to him that the item was not a firearm to which he disagreed.

Legislation

14. The relevant legislation is contained in s 4(1) and (2) of the Firearms Act. Section 4(1) of the Firearms Act provides that the term “firearm”:

"means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker within the meaning of the Paintball Act 2018 or anything declared by the regulations not to be a firearm."

15. Subsection (2) provides:

“For the purposes of this Act -

(a) anything that would be a firearm if it did not have something missing from it, or a defect or obstruction in it, is taken to be a firearm, and

(b) any firearm that would be a prohibited firearm--

(i) if it did not have something missing from it, or a defect or obstruction in it, or

(ii) if it were not for the fact that something has been added to it,

is taken to be a prohibited firearm, and

(c) any collection of the component parts of a thing that if assembled would be a firearm or prohibited firearm (or would be a firearm or prohibited firearm if it did not have something missing from it, a defect or obstruction in it or something added to it) is taken to be a firearm or prohibited firearm (as appropriate).”

Crown Submissions

16. Mr Kerr submits the Court should apply the literal approach. He relies upon Mills v Meeking (1990) 91 ALR 16 at 30-31 per Dawson J. Nowhere in his written submissions did he refer to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. The High Court made it clear that the modern approach to statutory interpretation requires consideration of context and purpose rather than a literal approach to the interpretation of the words of the statute. The modern approach (“the purposive approach”) places a greater emphasis on the context of the text. The statute must be considered as a whole.

17. The contextual approach may assist in reviewing the purpose of a statutory provision within an Act. However, considering the wider purpose still means that the task of statutory interpretation nonetheless requires finding the meaning of the words actually used. Therefore, although the purposive approach is to consider the legislation as a whole and look at the legislation’s context, the interpretive journey nonetheless begins with a consideration of the words of the provision itself and ends with those words: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 at [39].

18. Mr Kerr submits that the intent of the NSW Parliament when the Firearms Act 1996 was drafted and enacted was multifaceted. First and foremost, the Crown submits that the primary purpose of the Act was to create a safer and effective regulatory environment for the possession and use of firearms.

19. Mr Kerr submits that the definition was intended to include, and it can be inferred from the Act itself, that a homemade firearm, whether or not some defect or void in its design existed that prevented it from “propelling a projectile by means of an explosive” was irrespective of that defect or void to be considered as being a firearm for the purposes of the Act. He says one should reject the accused’s contention that the words “as built” or “as designed” be read into the definition in s 4 of the Act.

20. Finally, he relies upon the opinion evidence of Senior Constable Greening that the item is a firearm as defined in s 4(1) of the Act. He submits there is no contradicting opinion evidence.

Accused’s submissions

21. Mr Penning, solicitor advocate, submits the item is not capable of discharging a primed cartridge case by means of a rubber band or bands (“the rubber band mechanism”). The item was only capable of discharging a primed cartridge case when Senior Constable Greening put it in a vice and struck it with a hammer and the hammer and vice were never part (or parts) of the item. These things were added to the item by Senior Constable Greening.

22. The accused submits that in the particular circumstances of this case the item is not a firearm and s 4 properly construed does not extend to an item that is only capable of propelling a projectile by means of an explosive when the police added things to it that were never part of it, or, to put it differently, it does not extend to an item that is only capable of propelling a projectile if an external aid or aids which are not part of its design or build or manufacture are used.

23. He relies upon what was said by the High Court about the purposive approach in R v A2 [2019] HCA 35 at [32] to [37]. He contends that the construction contended for by the Crown properly applying the principles of statutory construction is not open and that the purposive approach to construction cannot be used to give the words in s 4 of the Firearms Act a meaning they cannot reasonably bear.

24. He submits that the language used in s 4(1) and (2) is clear and that the definition of a firearm does not extend to an item that is only capable of propelling a projectile by means of an explosive when the police added things to it that were never part of it. He points to the use of a vice to hold the “item” and the hammer used by the police officer to force a projectile to be fired.

25. Mr Penning submits that one of the purposes of s 4(2) is to expand the definition of a firearm so that some items which in their own right are not capable of propelling a projectile (e.g. because a part is missing) are taken to be a firearm for the purposes of the Firearms Act. Section 4(2) comprehensively and exhaustively sets out the circumstances when this will occur. It does not include the words, “Anything that would be a firearm if you added something to it…is taken to be a firearm.” Mr Penning submits that the fact that the legislature did not include this suggests that this is not covered by the definition in s 4.

26. Mr Penning further submits that the construction contended for by the Crown would result in unlikely and unreasonable consequences. In conclusion he submits that the construction contended for by the accused in contrast with the Crown’s construction accords with the natural and ordinary meaning of the words used in s 4. It does not involve implying any words into the provision, promoting the purposes of the Firearms Act. It eschews “unreasonable consequences” and, to the extent they are relevant, accords with the principles that apply when construing penal provisions.

Determination

27. A Court cannot construe the meaning of a specific provision in an Act without considering the sections that surround it and the structure and meaning of the Act as a whole. The Act should be construed so as to operate coherently, consistently, and harmoniously as a whole. The Court’s statutory interpretation of the proper meaning of a firearm under s 4 of the Firearms Act 1996 must be construed so that it is consistent with the language and purpose of all of the provisions of the Act.

28. As such, one can turn to the words contained in the given section, the surrounding provisions, and the Act’s structure and meaning to ensure that the interpretation of the term operates consistently and harmoniously with all other parts of the legislation. If the meaning is still not yet clear, one can turn to external materials in order to reveal the purpose of the statute including parliamentary materials, reports of royal commissions and other materials referred to in the statute. This contextual approach to statutory interpretation is reflected in s 34 of the Interpretation Act 1987 (NSW).

29. One must be cautious not to adopt an interpretation that unduly expands the scope of the words beyond their textual limits. In other words, interpreters of the law must not mould the legislation to fit with a desirable policy: see s 33 of the Interpretation Act 1987 (NSW).

30. Section 3 of the Firearms Act sets out the principles and objects of the Act. One of the main purposes of the Act is to protect the community by controlling the possession and use of firearms thereby promoting safety in the community: Director of Public Prosecutions (DPP)(NSW) v Morgan [2013] NSWSC 1474 at [52].

31. Mr Whelan, the Minister for Police, introduced the Bill for the Firearms Act to the NSW Legislative Assembly on 19 June 1996. He said:

“The Firearms Bill represents the toughest controls on firearms ever enacted in New South Wales. The underlying principles and aims of the proposed Act are that possession and use of firearms is a privilege not a right and is conditional on the overriding need to ensure public safety.

The proposed Act will improve public safety by imposing strict controls on the possession and use of firearms, promoting the safe and responsible storage and use of firearms, and facilitating a national approach to the control of firearms.”

32. The word “capable” appears in s 4(1) of the Act. It is an adjective meaning “having the ability, fitness, or quality necessary to do or achieve a specific thing.” Section 4(1) reads, “…a gun or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive…”

33. At the heart of the present matter lies the interpretation of the term “capable” within the Firearms Act. Looking to the words surrounding the provision is essential as words often take their meaning from the context in which they appear. The term “capable” must be read alongside “or at any time was.” When considered within its contextual framework it becomes apparent that the “item” may retain its classification as a firearm even when its current condition renders it incapable of propelling projectiles.

34. Put differently, this provision can be construed as promoting the characterisation of an object which in its current form necessitates the operation of external force. It may be argued that extreme measures were taken to fire the item (placing it in a vice and hitting it with a hammer). This may be so, but the item was capable of propelling a projectile. Thus, the homemade “item” would qualify as a firearm based on the surrounding language in s 4 of the Firearms Act.

35. The term “capable” must be considered with s 4(2) of the Act which provides that a firearm with something “missing” or with a “defect or obstruction” is still taken to be a prohibited firearm. The hammer and vice are not items that are “added” to the instrument. Rather, they are necessary and are a fundamental aspect of its operation.

36. The homemade item is constructed in a way that it can only launch projectiles when external force from the item’s hammer is applied. This design is intentional. The external force requirement is thus a fundamental aspect of its operation. Taking the statute as a whole; force to the item’s hammer is not a modification to the homemade item. It is merely giving external assistance to the weapon thereby allowing it to fulfil the purpose for which it was built, namely, to propel a projectile.

37. It is paramount to recognise that the Firearms Act places a premium on public safety and the prevention of unauthorised access to potentially dangerous devices. This legislative intent necessitates a broad interpretation that encompasses firearms with the potential to pose risk to the community even if they require external assistance to operate. A strict interpretation of “capable” to exclude firearms that require external force would create a potential loophole enabling individuals to circumvent the Act by simply arguing that their weapons are non-operational without the aid of external force.

38. Within the realm of statutory interpretation guided by a purposive approach, it is important for interpreters to adopt a comprehensive perspective. This entails considering the statutory framework as a whole including the surrounding provisions.

39. The Act seeks to regulate imitation firearms under s 4D highlighting its broad approach to preventing public harm and promoting safety. The deliberate inclusion of imitation firearms within the purview of the Act underscores the legislature’s expansive vision for regulation. It goes beyond simply targeting conventional firearms and expands its regulatory reach to encompass objects that closely mimic firearms even if they do not function as firearms in the conventional sense.

40. Interpretation of the provisions considering the broader context of the Act supports the view that the statute intends to regulate firearms that need additional force to be “capable” of actual use as a weapon. This is underscored by s 4D which illustrates the Act’s commitment to safeguarding public safety and preventing harm.

41. Based on the language and intent of the Firearms Act, even though the accused’s homemade item was not in working order at the relevant time, I am satisfied beyond reasonable doubt that it is a “firearm” under s 4(1) of the Act. The Act’s expansive definition of a firearm captures devices that can with reasonable external assistance be made “capable of propelling a projectile.”

42. Accordingly, it is a firearm.

ORDERS

43. Count 1, I find the accused guilty.

44. Count 2, I find the accused guilty.

45. Count 3, I find the accused guilty.

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Decision last updated: 16 October 2023