R v Papps - [2010] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v PAPPS
[2010] SADC 139
Reasons for Ruling of His Honour Judge Millsteed
11 November 2010
CRIMINAL LAW
APPLICATION - STAY OF PROCEEDINGS
Applicant charged with possessing a "prescribed firearm" without a licence contrary to s 11(2) of Firearms Act 1977 - at time of alleged offence subject firearm was recorded on the Firearms Register not as a prescribed firearm but as a class H firearm for which the applicant held a licence - application to stay proceedings as an abuse of process on the grounds that the charge was foredoomed to fail and the proceedings were unfair and would bring the administration of justice into disrepute - application refused.
Firearms Act 1977 s 11(2), referred to.
Offe v Police (2002) 84 SASR 1; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Rogers v The Queen (1994) 181 CLR 251; Barton v The Queen (1980) 147 CLR 75; Williams V Spautz (1992) 174 CLR 509; Ridgeway v The Queen (1995) 184 CLR 19; Gray v Police (2003) 85 SASR 1; Walton v Gardiner (1993) 177 CLR 378; DPP v Shirvanian (1998) 44 NSWLR 129; Maxwell v The Queen (1995) 184 CLR 501; Johnson v Registrar of Firearms (2001) 79 SASR 353; Jago v District Court (NSW) (1989) 168 CLR 23; Grills v The Queen (1996) 70 ALJR 905; Proudman v Dayman (1985) 157 CLR 523; Jiminez v The Queen (1992) 173 CLR 572; State of Western Australia v GBT [2006] WADC 210; Hutton v Kneipp unreported CA (Q) 29 of 1995, considered.

R v PAPPS
[2010] SADC 139
Introduction

The applicant Michael Papps is charged on an information presented by the Director of Public Prosecutions (SA) with the offence of possessing a firearm without a licence contrary to s11(2) of the Firearms Act 1977. The particulars of the charge are that on 12 May 2007, at North Adelaide, the applicant was in possession of a “prescribed firearm”, namely a 9 millimetre calibre semi-automatic repeater rifle, without being the holder of a firearms licence authorizing possession of that firearm.
The applicant has been arraigned and has pleaded not guilty. He now applies, before trial, for an order permanently staying proceedings on the ground that they constitute an abuse of process. The applicant’s argument has several limbs all of which are founded on the undisputed fact that for a period of 9 years before the applicant acquired the firearm, and throughout the time the firearm was in the applicant’s possession, it was registered under the Firearms Act 1977 as a “class H firearm” in the form of a self loading pistol, a class of firearm for which the applicant held a licence.
The legislation
Before I canvass the factual background and the particulars of the applicant’s argument, it is appropriate to summarise the key features of the Firearms Act 1977 (“the Act”) and the Firearms Regulations (“the Regulations”) as they applied at the time of the relevant events.
The Act came into operation on 1 January 1980. It was designed to introduce stricter controls upon the possession and use of firearms due to the rapid increase in the number of serious offences involving the use of firearms and the proliferation of extremely dangerous weapons.[1] As part of the national response to the Port Arthur shootings the Act was amended in 1996 to provide even tighter means of gun control.[2] Overall the provisions of the Act and the Regulations provide close regulation of the acquisition, possession, use, registration and transfer of firearms for the primary purpose of ensuring public safety.[3]
Administration
[1]    Hansard 14 April 1977 p3448
[2]    Offe v Police (2002) 84 SASR 1 Gray J at [23]
[3]    Registrar of Firearms v Gitsham (2002) 84 SASR 72 Mullighan J at [23]; Johnson v Registrar of Firearms (2001) 79 SASR 353 Gray J at [16]
The Act provides for the Commissioner of Police to be the Registrar of Firearms (s6) and creates the Firearms Consultative Committee the members of which are appointed by the Governor (s7). The Registrar is empowered to grant applications for the registration of firearms (s22) and to issue firearms licences (s12), dealers licences (s17) permits to acquire firearms (s15) and permits to acquire ammunition (s21B).
The Registrar is required to maintain a register of licences issued and firearms registered under the Act (s6A).
Classification of firearms
The Act creates different classes of firearms, namely class A, B, C, D and H firearms and prescribed firearms. The classes of firearms are defined in s5(1) as follows:
5-Interpretation
(1) In this Act, unless the contrary intention appears-
class A firearms means—
(a)air rifles, air guns and paint-ball firearms; and
(b).22 rim fire rifles (not being self-loading rifles); and
(c)single or double barrel shotguns (not being self-loading or pump action shotguns),
and includes receivers of firearms defined as class A firearms by a preceding paragraph;
class B firearms means—
(a)muzzle loading firearms (not being handguns); and
(b)revolving chamber rifles; and
(c)centre fire rifles (not being self-loading centre fire rifles); and
(ca)double barrel centre fire rifles that are not designed to hold additional rounds in a magazine; and
(d)break action combination shotguns and rifles; and
(e)all other firearms (not being prescribed firearms, handguns, self-loading firearms or pump action shotguns) that are not class A firearms,
and includes receivers of firearms defined as class B firearms by a preceding paragraph;
class C firearms means—
(a)self-loading rim fire rifles having a magazine capacity of 10 rounds or less; and
(b)self-loading shotguns having a magazine capacity of five rounds or less; and
(c)pump action shotguns having a magazine capacity of five rounds or less,
and includes receivers of firearms defined as class C firearms by a preceding paragraph but does not include revolving chamber rifles or receivers of revolving chamber rifles;
class D firearms means—
(a)self-loading rim fire rifles having a magazine capacity of more than 10 rounds; and
(b)self-loading centre fire rifles; and
(c)self-loading shotguns having a magazine capacity of more than five rounds; and
(d)pump action shotguns having a magazine capacity of more than five rounds,
and includes receivers of firearms defined as class D firearms by a preceding paragraph but does not include revolving chamber rifles or receivers of revolving chamber rifles;
class H firearms means handguns;
…
prescribed firearm means a firearm of a class prescribed by regulation for the purposes of this definition;
…
A prescribed firearm constitutes “a firearm of a class prescribed by regulation”. The Regulations relevantly state:
8 (1) The following firearms are prescribed firearms:
…
(f) firearms having an overall length of less than 750millimetres (but not ` handguns or power heads);
(g)firearms (but not handguns) designed to be reduced in overall length by folding, telescoping or any other means to a length of less than 750 millimetres and then to be capable of being fired;
…
and receivers of firearms referred to in a preceding paragraph.
Possession and use of firearms
A firearms licence issued by the Registrar may authorize possession of a particular firearm or class of firearms, and must be endorsed by the Registrar with the purpose or purposes for which that firearm or class of firearms may be used by the holder of the licence (s13).
The Act prohibits the possession, or use of firearms, in circumstances where such possession or use is not authorized under a licence issued by the Registrar. Section 11 relevantly provides:
(1)A person who has possession of a firearm without holding a firearms licence authorizing possession of that firearm is guilty of an offence.
(2)A person who has possession of a firearm, or who uses a firearm, for a purpose that is not authorized by a firearms licence held by that person is guilty of an offence.
(3)If, in proceedings for an offence against subsection (2), the evidence gives rise to a reasonable inference that the purpose for which the defendant had possession of the firearm, or used the firearm, was not authorised by the licence, the onus shifts to the defendant to establish that the purpose for which he or she had possession of the firearm, or used the firearm, was authorized by the licence.
…
Prescribed firearms are viewed more seriously than others and attract a higher penalty for offences involving their possession or use (s11(7)).[4]
[4] Offe v Police (2002) 84 SASR 1 Gray J at [15].
Section 11(7) states:
Subject to this section, the maximum penalty for an offence against this section is as follows:
(a) where the firearm is a prescribed firearm-$50,000 or imprisonment for 10 years;
(b) where the firearm is a class C,D or H firearm-$35,000 or imprisonment for seven years;
(c) where the firearm is any other kind of firearm-$20,000 or imprisonment for four years.
An application for a licence must be made to the Registrar (s12(1)), contain prescribed information and be in a form approved by the Registrar (s12(1), reg11). The Registrar may request the applicant to provide further information or to verify by statutory declaration information furnished in relation to the application (s12(2)). The Registrar is not permitted to issue a firearms licence unless satisfied as to the identity, age and address of the applicant and that the applicant intends using the firearm, or a class of firearm, for the purpose or purposes endorsed on the licence (s12(5)) and may refuse an application if the applicant is not usually resident in South Australia (s12(5a)).
If an application for a licence for a firearm, other than a prescribed firearm, is properly made the Registrar may only refuse the application if one of a number of specific matters set out in s12 (6)(a) is established and the Firearms Consultative Committee agrees that the application should be refused (12(6)(b)). However, in relation to prescribed firearms the Registrar’s discretion to refuse to grant a licence is greater.[5] Pursuant to s12(7) the Registrar cannot grant such a licence unless satisfied that the firearm will be used for a purpose authorized by the regulations and that the applicant is a fit and proper person to have possession of such a firearm.
Acquisition of firearms
[5] Johnson v Registrar of Firearms (2001) 79 SASR 353 Gray J at [16]
A person who acquires a firearm without a permit is guilty of an offence (s14(1)) unless the firearm was acquired by a licensed dealer in the ordinary course of his or her business (s14(2)). The maximum penalty for such an offence is greater if a prescribed firearm is involved (s14(6)).[6] An application for a permit must be made to the Registrar (s15(1)), contain prescribed information and be in a form approved by the Registrar (s15(1), reg 24).The Registrar may require an applicant to furnish further information or to verify by statutory declaration information furnished in relation to the application (s15(2)). The Registrar may refuse to grant the application on various grounds (s15A).
Transfer of firearms
[6]    Section 14 (6) provides:
Subject to subsection (7),the maximum penalty for an offence against this section is as follows:
(a)     where a firearm is a prescribed firearm-$75,000 or imprisonment for 15 years;
(b)     where the firearm is a class C,D or H firearm- $50,000 or imprisonment for 10 years;
(c)     where the firearm is any other kind of firearm-$35,000 or imprisonment for seven years.
The Act regulates the transfer of possession of firearms. The sale, gift, loan or hire of firearms must take place through the agency of a licensed dealer or be witnessed by a licensed dealer, a police officer or an authorized officer of a recognized firearms club (s15B).
Recording and reporting obligations are imposed on such witnesses. The person must satisfy himself or herself by inspecting the relevant permit and licence that the transferee is entitled to acquire and possess the firearm and record, inter alia, the names and addresses and firearms licence numbers of the transferor and the transferee and the class, make, calibre and serial number or other identification of the firearm. The witness is also required to provide the Registrar with the information no more than one month after the transfer (s15C(1)). A dealer or authorized officer who contravenes or fails to comply with those requirements is guilty of an offence attracting a maximum penalty of $5,000.
Dealing in firearms
A person who carries on the business of dealing in firearms or ammunition without a dealers licence is guilty of an offence (s16). An application for such a licence must be made to the Registrar (s17(1)) contain prescribed information and be in a form approved by the Registrar (s17(1), reg 14). Where an application is properly made the Registrar may only refuse to grant a permit if the Registrar is not satisfied of one of a number of matters specified in s17(3). A dealers licence does not authorize dealing in class C or D firearms unless it is endorsed to that effect (s17(3)) and is subject to the condition that the licensee must not deal in prescribed firearms and any other conditions prescribed by regulation or imposed by the Registrar (s17(4)).
The Regulations require firearms dealers to maintain certain records. A dealer is required to compile, in a form approved by the Registrar, records of firearms purchased or sold by the dealer (reg 15), records of firearms transferred from one person to another through the agency of the dealer (reg 15A) and records of firearms received by the dealer for repair, consignment or safekeeping (reg 16). The forms approved by the Registrar for those purposes are called “Records of Incoming Firearms” and “Records of Outgoing Firearms”.
Registration of firearms
The Act provides for the registration of firearms and further provides that a person who has possession of any unregistered firearm is, subject to certain exceptions, guilty of an offence (s23(1)). An application for registration of a firearm must be made to the Registrar (s24(1)) contain prescribed information and be in a form approved by the Registrar(s24(1), reg 25). The Registrar has a discretion to refuse an application having regard to the matters set out in s24(2).
The Registers
In accordance with the legislative intention to impose strict controls on the possession and use of firearms in the interests of public safety, the Registrar is obliged, as earlier noted, to keep a register of licences issued and firearms registered under the Act. It is evident from the scheme of the legislation, which I have sought to summarise, that the accuracy and effectiveness of the registers is substantially dependent upon the accuracy of the information provided to the Registrar in support of applications for licences and the registration of firearms. For the purpose of ensuring the accuracy of the registers, the Act imposes heavy penalties for the provision of false information.
Section 28 states:
(1)A person who provides information to the Registrar or any other person under this Act that is false or misleading in a material particular is guilty of an offence.
Maximum penalty: $10,000 or imprisonment for two years.
(2)It is a defence to a charge under subsection (1) to prove that the defendant believed upon reasonable grounds that the information was true.
The power to stay proceedings
Before turning to the present application it is also convenient to set out the general principles relating to abuse of process.
It is well settled that a criminal court has an inherent power to grant a permanent stay of proceedings to prevent an abuse of its process. The circumstances in which an abuse of process may arise are extremely varied and not limited to fixed categories.[7] The power to stay proceedings may be invoked to ensure that proceedings will not result in an unfair trial,[8] to stop proceedings instituted for an improper purpose,[9] and to prevent proceedings that will necessarily fail[10] or are “clearly seen to be foredoomed to fail”.[11]
[7]    Rogers v The Queen (1994) 181 CLR 251 Mason CJ at 255; Rona v District Court of South Australia (1995) 63 SASR 223 King CJ at 226.
[8]    Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23
[9]    Williams v Spautz (1992) 174 CLR 509
[10] Ridgewayv The Queen (1995) 184 CLR 19 at 41, 43
[11]     Walton v Gardiner (1993) 177 CLR 378 Mason CJ, Deane and Dawson JJ at 493.
However, the jurisdiction to stay proceedings on the ground of abuse of process is not limited to such cases and may be invoked whenever the relevant act or omission would diminish public confidence in the administration of justice[12] or the court as an institution.[13]The broad nature of the doctrine was explained in Ridgeway v The Queen by Toohey J:[14]
The concept of abuse of process is not a precise one. Nor can it be; it gives effect to a concern on the part of courts that may arise in a variety of circumstances…
Generally, abuse of process derives from a concern that judicial process be not invoked for an improper purpose (the issue in Williams v Spautz) and that the process be not abused in a way that interferes with the conduct of a fair trial (the issue in Jago v District Court (NSW) and Walton v Gardiner). There are distinct aspects of abuse of process in that proceedings may be stayed if it appears that they have been brought for an improper purpose even though there is no reason to doubt that the accused will receive a fair trial. Equally, an accused may not receive a fair trial, by reason of delay for instance, though there is no improper purpose in bringing the proceedings. But the power of a superior court to stay its proceedings on grounds of abuse of process is not confined to those situations (Walton v Gardiner). A stay of criminal proceedings gives effect to the view that it “would offend the courts’ sense of justice” (R v Mack (1988) 44 CCC (3d) 513 at 525) if the accused had to stand trial in those circumstances. In the more precise terms articulated by Lord Diplock in Hunter v Chief Constable:
It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.”
[12] Ridgeway v The Queen (1995) 184 CLR 19 Toohey J at 60-61
[13] Gray v Police (2003) 85 SASR 1 Gray J at [22]
[14] (1995) 184 CLR 19 at 60-61
In PNJ v R [15] the High Court said: [16]
It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:
(a)     the invoking of a court’s processes for an illegitimate or collateral purpose;
(b)     the use of the court’s procedures would be unjustifiably oppressive to a party; or
(c)     the use of the court’s procedures would bring the administration of justice into disrepute.
[15] (2009) 193 A Crim R 54
[16] (2009) 193 A Crim R 54 at [3]
The power to stay proceedings is discretionary and involves a consideration of competing considerations.[17] As Mason CJ, Deane and Dawson JJ observed in Walton v Gardiner: [18]
[T]he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
[17] Jago v District Court ( NSW) (1989) 168 CLR 23 Mason CJ at 30
[18] (1993) 177 CLR 378 at 395-396

Though discretionary, the power to permanently stay proceedings should be exercised only in exceptional circumstances because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional function of determining disputes.[19]
[19] DPP v Shirvanian(1998) 44 NSWLR 129 Mason P at 134; see also Jago v District Court (NSW) (1989) 168 CLR 23 Mason CJ at 34; Williams v Spautz (1992) 174 CLR 509 Mason CJ, Dawson, Toohey and McHugh JJ at 529
Factual background
The hearing of the application proceeded on the basis that all of the statements of the prosecution witnesses were in evidence. This material was supplemented by agreed facts, the tender of various documents by both the prosecution and the defence, and oral evidence from Senior Constable Sheridan, a prosecution witness. The applicant did not give evidence or call any witnesses.
The evidence established the following facts.
The applicant conducted business as a firearms dealer at 215 Melbourne Street, North Adelaide. In his capacity as trustee for the “MGP Family Trust”, he held a firearms dealers licence (No 297841F) for class A,B,C,D and H firearms. He also held a personal firearms licence (No 185207R) for A and B class firearms. Neither licence authorized his possession of prescribed firearms.
The firearm which is the subject of the charge was manufactured by “Australian Automatic Arms” as a 9 mm calibre semi-automatic carbine with a detachable shoulder stock, serial number “SAC O80037”. A carbine has been defined as “a rifle of short length and light weight originally designed for mounted troops”.[20]
[20] Association of Firearm and Toolmark Examiner’s Glossary (4th ed)- statement of Sergeant Rex William DeLaine dated 11 February 2009
The present classification of firearms was introduced by an amendment to the Act which came into effect on 9 September 1996[21]. Prior to the amendment the firearm was registered to one Andrew James Dodsworth (“Dodsworth”) as a self-loading rifle.
[21] Firearms (Miscellaneous) Amendment Act 1996 (No 70 of 1996)
On 13 March 1997 the Registrar granted a written application by Richard Alan Harris (“Harris”) to register the firearm in his name (exhibit P5). The application was in a form approved by the Registrar pursuant to s24(1) and reg 25. The application contained a signed declaration by Harris that the particulars given by him in the application were true and correct. The particulars provided included the names and addresses of Harris and the previous owner (Dodsworth) and their firearms licence numbers. In a section headed “Firearms Details”, Harris specified the “make”, “type” and “action” of the firearm as “Australian Auto SAP”, “Pistol”, “Self-load”, respectively.
The application also contained the following:
·a section completed and signed by a police officer at the Hindley Street Police Station wherein he or she indicated, by ticking a box, that the firearm, Harris’s licence and the permit to acquire the firearm had been “sighted” and that the details provided by him were correct; and
·a section headed “Police Station Use Only” in which a police officer wrote “H” to indicate that the firearm was a “class H firearm”.
On 15 September 1999, the Registrar granted an application by Dodsworth for a permit to acquire the firearm (exhibit P4). The application was made in a form approved by the Registrar pursuant to s15(1) and reg 24. The form contained a signed declaration by Dodsworth that the particulars given by him in the application were true and correct. Those particulars included the names and addresses of Dodsworth and the person transferring possession of the firearm (Harris) and details of their firearms licence numbers. In a section headed “Firearms Details” Dodsworth described the firearm’s make, type, action and class as follows: “ATS”, “Pistol”, “Self loader” and “H”.
On 15 October 1999 Dodsworth acquired possession of the firearm from Harris. On the same day the Registrar granted an application by Dodsworth to register the firearm in his name. The application was made, as required by the Registrar at that time, on the same form as the application for a permit to acquire the firearm (exhibit P4). The application for registration contained the following undertaking:
WITNESS TO TRANSFER – FOR OFFICIAL USE ONLY:
I have witnessed the transfer of the firearm described in this form and have satisfied myself by inspecting this permit and the licence of the person acquiring the firearm that he/she is entitled to acquire and possess it. I undertake to comply with the recording and reporting requirements under the Firearm’s Act 1977.
The undertaking was signed R.B. Midworth, Firearms Dealer, 289 Morphett Street, Adelaide.
On 6 March 2004, Domenico De Guglielmo, a firearms dealer, received the firearm from Dodsworth. As required, DeGuglielmo recorded in his Record of Incoming Firearms (exhibit P7) the date of the transaction, the serial number of the firearm and the firearms details. He recorded the firearm’s “make”, “description” and “class” as follows: “Australian Arms”, “Pistol self-loading” and “H”.
On 26 November 2005 the applicant received the firearm from Deguglielmo. He recorded in his Record of Incoming Firearms that he had received it from Deguglielmo for safekeeping and that the “make” and “description” were as follows: “AAA”, “Semi Auto Pistol”. He failed to stipulate the firearm’s class.
On 12 May 2007 Senior Constable Sheridan, and other members of the South Australia Police Firearms Investigation Section, attended the applicant’s business premises at North Adelaide and conducted an audit of firearms held by him. The police seized the subject firearm suspecting that it was a “prescribed firearm”.
On 18 May 2007 the firearm was examined by Sergeant Rex De Laine, an accredited firearms examiner attached to the Ballistics and Armoury Section of the South Australian Police Forensic Services Branch. He concluded that the firearm was an “Australian Automatic Arms” (manufacturer), 9mm calibre semi-automatic carbine, serial number SAC-080037. Such firearms were manufactured with a detachable shoulder stock and a detachable magazine. However, at the time of the firearm’s seizure and examination the stock and magazine were missing. So too was the firing bolt. Without those parts the firearm weighed 2.54kg and had an overall length of 565mm. The length of the barrel was 345mm.
Sergeant De Laine concluded that the firearm was not a “handgun” as defined in s5. Although the length of the barrel was less than 400 mm he considered that the firearm had not been “designed or adapted for aiming or firing from the hand” nor was it “reasonably capable of being carried about the person” for the following reasons:
·The manufacturer’s designation on the firearm “SAC” indicated that the firearm was a semi-automatic carbine namely a “rifle of short of length and light weight” and that such a weapon is designed to be fired from the shoulder with the stock attached to it.
·The firearm was not “reasonably capable of being concealed about the person” because it had an overall length of 565 mm.
·The weight of the firearm (2.45kg without the bolt, magazine and stock) was too great for the weapon to have been designed or adapted for “aiming and firing from the hand”. [22]
[22] By comparison an unloaded South Australian Police issue “Smith and Wesson” .357 Magnum calibre revolver weighs 1.04 kgs, a “Glock” 9mm calibre semi- automatic pistol with an unloaded magazine weighs .72 kilogram and a “Desert Eagle” .50 calibre semi-automatic pistol with an unloaded magazine weighs 2.02 kilograms .
Sergeant DeLaine further concluded that the firearm, not being a handgun, constituted a “prescribed firearm” because (without the stock) it had an overall length less than 750 mm (reg 8(1)(f)). Furthermore, it had been designed so that its overall length could be reduced by detaching the stock to a length of less than 750 mm (reg 8(1)(g)).
On 9 June 2007, Senior Constable Sheridan conducted a video taped interview with the applicant. The applicant described the firearm that he had received from Deguglielmo as the “basic frame” or the “barrelled action” of a 9mm carbine rifle. He said that Deguglielmo had removed and retained the stock, the firing bolt and magazine.
In the course of the interview the applicant suggested that he was unaware that the firearm, in the state in which he received it, was a “prescribed firearm”:
…Were you aware that it was a prescribed firearm?
I didn’t accept it as a prescribed firearm. I accepted it as a barreled action. If you look at my Marlin 9 millimetre camp carbine rifle and .45 calibre Marlin camp carbine rifle, they have comparable barrel lengths and a wooden stock, but if you take the wooden stock out and just have the barreled action, you have the same situation. So it’s a question of definition.
(my emphasis)
Later in the interview the applicant made statements that the prosecution contends indicate that he was aware that the firearm was not a handgun for the purposes of the Act. In particular the prosecution relies on the following passages:
QHe [Deguglielmo] gave it to you on the 26/11/05, and you’ve written it in your book here [Records of Incoming Firearms], as an AAA semi-automatic pistol with no explanation.
AWhen I first saw it, well it looks like a pistol. The way that the stocks gone. That was the way I described it so that it wouldn’t be thought of as a full length rifle. Because it wasn’t a full length rifle. But I think I could have called it a carbine with the stock detached. He had detached everything that he could from it.
QSo at the moment it is, like I say, it is a prescribed firearm.
AWhat does that mean in terms of er ….
QI’ll put in a report.
AHave I accepted something that probably …
QThat’s another grey area. What would have happened if you didn’t accept it? The fact is, with prescribed firearms and stuff that is illegal, our policy is that you’re supposed to accept these things and then get straight onto the phone to us. You let us know about anything that you think is a bit ‘Sus’.
AI didn’t think there was anything ‘Sus’ in it because I know what it is. The firearm has not been substantially altered in any way. All he’s done is removed the stock. Can I put it to you this way? If the stock were (sic) to go back on it and it was received with the butt stock on it, what would be the situation there?
QThat would be a rifle. But the thing is, Domenic.
ADomenic has got the stock.
QHe actually put it in his book as a pistol as well. He got it off someone and put it into his book as a pistol.
AI wouldn’t describe it as a pistol. If I’ve entered it as a pistol, well I don’t know, that’s not technically correct. I have to admit that. But I did it for no other reason than to identify it as the firearm that it is. Not to change its category and say, ‘Oh look, no that’s not the one that Domenic had. He had something else.’ Really, to keep it consistent, I wouldn’t describe it as a pistol.
QWouldn’t it have made sense to put it in as what it was with a notation of, ‘stock missing’.
AIn hind sight, yes.
(my emphasis)
Towards the end of the interview the applicant made further statements which the prosecution contends amount to a concession that he was, or may have been, aware that the firearm was in fact a prescribed firearm:
Q    Have you ever seen the stock for this one?
A    Yes
Q    Deguglielmo has actually got it has he?
A.     “Yes”. And he’s got all the bits and pieces as well. I just accepted the barrelled action. I thought, the stock, well it’s just a piece of plastic. Whether I have that or not is not crucial to the weapon operating. Although it might be. If you have an AR15 and take the stock off, it doesn’t work. But that’s different. Even in America they’d probably have trouble with that because the stock is of a detachable type where you can actually use the weapon and it can be fired like that which puts it into that ‘prescribed firearm category’.
(my emphasis)
The applicant was subsequently charged with possessing a prescribed firearm without a licence contrary to s 11(1).
There is no dispute that between 13 March 1997 (the day on which the firearm was registered in the name of Richard Alan Harris) and 12 May 2007 (the day on which it was seized from the applicant) that the firearm was recorded on the Register of Firearms as a class H, self loading pistol. Indeed, it was still registered as a class H firearm at the time of the hearing of the application.
The application
On 19 July 2010 the applicant filed a Notice of Application to Stay Proceedings pursuant to Rule 8 of the District Court (Criminal and Miscellaneous) Rules 1992. The Notice particularized the applicants’ complaint as follows:
1. The Registrar of Firearms must maintain a register of firearms registered under the Firearms Act 1977 pursuant to section 6A of the Act;
2.   The Registrar of Firearms registered the subject firearm and recorded the subject firearm on the register as a self loading pistol on or about 13th March 1997,10 years before the firearm came into the possession of [the applicant];
3.   The Registrar of Firearms now appears to be of the view that the subject firearm is not a self loading pistol but a prescribed firearm;
4.   The Registrar of Firearms, some 10 years after recording the subject firearm on the register as a pistol self loading, now seeks to use the processes of the court to prosecute [the applicant] who unwittingly had possession of the subject firearm at the time the Registrar of Firearms changed his view as to the classification of the firearm;
5.   The prosecution is an abuse of the processes of the court and should be stayed.
It soon became apparent on the hearing of the application that the particulars contained in the Notice were poorly expressed. For example, it is clear from the applicant’s record of interview, and Mc Carron’s submissions, that the applicant does not dispute that he was knowingly in possession of the firearm at all material times (compare [4] of particulars). Furthermore, it was erroneous to assert in the Notice that the Registrar of Firearms had “changed his view as to the classification of the firearm”. The firearm for the past 10 years has been, and as far as I am aware continues to be, registered as a class H firearm in accordance with the information provided to the Registrar in the applications for registration made by Harris and Dodsworth dated 13 March 1997 and 15 October 1999 respectively.
In the course of McCarron’s argument, he refined the applicant’s complaint. In essence, he contended that the present proceedings were an abuse of process for the following alternative reasons:
1.   The charge was foredoomed to fail because the registration of the firearm as a class H firearm at the time of the alleged offence prevented the prosecution from asserting that it was in fact a prescribed firearm.
2.   The prosecution was unfair because the applicant was entitled to believe by reason of the firearm’s registration details that it was one for which he held a licence.
3.   The proceedings involve a selective prosecution of the applicant that bring the administration of justice into disrepute.
Consideration
First argument: charge foredoomed to fail
The applicant is charged with possessing a prescribed firearm without a licence authorizing possession of that firearm contrary to s11(1). Prescribed firearms and other classes of firearms are defined in s5. Section 5(1) expressly provides that in the Act they are to be given those meanings “unless the contrary intention appears”. There is nothing in s11(1), or in any other provision, that suggests that a “prescribed firearm” should be given a meaning different to the one contained in s5.
Furthermore, while s6 obliges the Registrar to maintain a register of firearms it is clear that the register is not an infallible record of the details of firearms listed on the register. As earlier noted the accuracy of the register is dependent upon the accuracy of the information provided to the Registrar and for that reason the legislature considered it necessary to make it an offence to provide false information to the Registrar. An acceptance of McCarron’s argument would mean that a person who had deliberately and dishonestly registered a prescribed firearm as a firearm belonging to a class for which he held a licence could not be prosecuted for a breach of s11(1) though he or she had duped the Registrar as to the firearm’s true classification. That could not be the law.
The question of whether the firearm seized from the applicant constitutes a prescribed firearm must be determined by reference to the definition contained in s5. The evidence of Sgt Delaine, if accepted, indicates that the firearm falls within that definition. Accordingly, it cannot be said that the charge is foredoomed to fail. The applicant’s first argument must be rejected.
Second argument: prosecution unfair
The contention that the prosecution is unfair is founded on the assertion that the applicant was entitled to believe, by reason of the firearm’s registration details, that it was not a prescribed firearm but rather a class H firearm for which he held a licence.
At the outset it should be observed that there is no evidence that the applicant in fact entertained such a belief. The applicant did not give oral evidence or tender affidavit material in support of his application. The statements made by the applicant during his record of interview with police constitute the only evidence relating to his state of mind at the time of the alleged offence. As earlier canvassed, those statements contain a mixture of denials and possible admissions or concessions in relation to whether the applicant believed that the subject firearm was a prescribed firearm. Furthermore, at no stage during the interview did the applicant assert that he considered the firearm to be a class H firearm by reason of its registration details. Rather he said that he recorded the firearm as a “pistol” in his Record of Incoming Firearms so as to be consistent with the way Deguglielmo had dealt with the firearm.
It is not necessary to dwell on this issue because even if the applicant held a genuine belief that the firearm was not a prescribed firearm, such a belief would not constitute a proper basis for a stay of proceedings. Rather the existence of such a belief is an issue for trial. If the applicant genuinely believed, for any reason, that the firearm was not a prescribed firearm then he would not have intentionally breached s11(1). In those circumstances the applicant would be entitled to seek to rely upon the statutory defence contained in s36A..
That section states:
36A General Defence
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
If the defendant fails to establish the matters necessary for a successful defence under s 36A there would be no relevant unfairness even if he genuinely believed by reason of the firearm’s registration details that it was one that he was entitled to have in his possession. To argue otherwise would involve an attack on the policy of the legislation and the requirements of s36A. To avoid conviction for a breach of s11(1) a person found in possession of a prescribed firearm must prove not only that he or she did not intentionally commit the offence but also that he or she took all reasonable care to avoid the commission of the offence. It is important to remember that it is not open to a court to decline to exercise its jurisdiction only because it forms the view that a law enacted by Parliament is unfair.[23]
[23] Grills v The Queen (1996) 70 ALJR 905

I should mention that in the course of the application the question arose whether s36A by implication excluded the common law defence of honest and reasonable mistake of fact. Where an accused person is charged with an offence of strict liability such a defence may arise where the accused entertains an honest and reasonable belief in a state of facts, which if they existed, would make the accused’s act innocent.[24]When such a defence is raised the burden on the accused is evidentiary only. The prosecution must prove beyond reasonable doubt that the defence does not apply.[25] It seems to me that there is a strong argument that by reason of the considerable overlap between the statutory and common law defences that Parliament intended to exclude the latter. However, it is not necessary to determine this issue for the purposes of the present application because if the common law defence does apply its application could only further dilute the applicant’s complaint of unfairness.[26]
Third argument: Prosecution could bring the administration of justice into disrepute
[24] Proudman v Dayman (1985) 157 CLR 523
[25] Jiminez v The Queen (1992) 173 CLR 572 at 582
[26] See Gould v Austral Tree & Stump Services Pty Ltd and Another (2008) 101 SASR 1 (Vanstone J) and on appeal to Full Court Austral Tree & Stump Services Pty Ltd and Another [2008] SASC 230 where the question was left open as to whether an identical statutory defence contained in s 40 of the Native Vegetation Act 1991 excluded by implication the defence of honest and reasonable mistake of fact.
Mr McCarron submitted that the present proceedings should be stayed because they would serve to bring the administration of justice into disrepute. He argued that the applicant had been singled out for prosecution because there is evidence that both Harris and Dodsworth had also breached s11(2) by registering the subject firearm as a class H firearm [27] when in truth it was a prescribed firearm. Mr McCarron argued that the selective prosecution of the applicant had the capacity to diminish public confidence in the administration of justice.
[27] see [ 33 ] - [ 36 ]
I reject this argument.
Save as to prevent an abuse of process a trial judge as no power to review the prosecution decision making process. As Gaudron and Gummow JJ observed in Maxwell v The Queen:[28]
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.
(footnotes omitted)
[28] (1995) 184 CLR 501 at 534
In my view, the mere fact that it has been suggested in argument by counsel that Harris and Dodsworth could have been prosecuted for breaches or potential breaches of s11 (2) does not render the proceedings against the applicant an abuse of process. There is no suggestion that the applicant will not receive a fair trial or that the decision to prosecute the applicant was tainted by mala fides or any form of impropriety. Nor do I accept that the so-called selective prosecution of the applicant would cause an erosion of public confidence in the administration of justice. For all I know there may be difficulties of an evidentiary nature or logistical nature that render impossible or impractical the prosecution of Harris and Dodsworth. Also it must be remembered that if Harris and Dodsworth breached s11 (2) then their offences were committed many years ago-13 years in the case of Harris and 11 years in the case of Dodsworth. The police and the prosecuting authorities have limited human and financial resources. Discretion in the allocation of resources to prosecute offences, especially stale offences, is necessary.
Furthermore, the primary purpose of the Act is to ensure public safety. The penalties provided for by the Act indicate that the Parliament intended the offence of possession of a prescribed firearm without a licence to be viewed more seriously than other offences. In my view the public interest in the proper administration of the Act and the need to maintain public confidence in the administration of justice require that the present proceedings not be stayed.
In Hutton v Kneipp[29] the Queensland Court of Appeal rejected a similar argument to that presented by the applicant. The appellant was convicted of the offence of possessing marijuana. He was one of a number of persons who participated in a demonstration outside Parliament House in Brisbane. He was arrested for the offence in the course of the demonstration. On appeal he complained that there were other participants in the demonstration who committed the same offence and that no action had been taken against them.
[29] Unreported judgment CA (Q) 29 of 1995
The Court of Appeal accepted that selective prosecution can be a material factor in determining whether proceedings should be stayed on grounds of abuse of process but concluded that there was no substance in the appellant’s complaint because there was nothing to indicate any bad faith or impropriety in the decision to prosecute the appellant.
Fitzgerald J said: [30]
It is unnecessary in this case to discuss the extent of the Court’s discretion to dismiss or stay proceedings, or to reject the proposition that selective prosecution could support such a decision: the judgment of Mason CJ, Deane and Dawson JJ in Ridgeway v R (1995) 129 ALR 41 accepts that selective prosecution can be a material factor. Nonetheless, there is no substance in the appellant’s complaint. There is nothing to indicate any bad faith or other impropriety in the selection of those who were charged, or in a decision of the senior police officer present at the protest that no further arrests be made. There were obviously many factors to be considered, including public safety and the orderly dispersal of the protestors.
[30] CA (Q) 29 of 1995 at 1
Pincus J said:[31]
Whether or not a provision resembling the United States’ Fourteenth Amendment (s1) right to equal protection is to be read in our Commonwealth Constitution, it must I think be conceded in favour of the appellant that it is arguable that a process of selective prosecution of offenders, resulting in the obtaining of evidence by improper conduct on the part of police, may give rise to a discretion to exclude evidence so obtained.
But it does not appear that impropriety on the part of the police was shown in the present case. The appellant, in addressing the court below, did not submit there was any; he disclaimed any implication that the police officers present should be subject to censure and said that he believed that they acted “with appropriate restraint and discipline”. It is unclear how many persons were present at the demonstration – the estimates ranged up to about 2,000 – and it is not known how many of those persons were smoking marijuana; some of the evidence was to the effect that nearly all of them were. On any view there were a considerable number of persons smoking marijuana; it could hardly be contended that it was improper not to attempt to detain all those who were doing so. Only a few people were arrested and there was no evidence on which it could have been held that those particular arrests were improper because, for example, the selection of those to be arrested was made on a wrong basis, such as on the ground of some private grievance against the person arrested.
[31] CA (Q) 29 of 1995 at 3-4
Mc Pherson JA said:[32]
Under our system of constitutional separation of powers, the function of instituting prosecutions to enforce the law is in general committed to the executive and not to the judicial branch of government. It is therefore something over which the judiciary has, before a prosecution is instituted and in someway brought before a court, only an indirect measure of control. Once it is before the court, the judge or the court has an inherent but limited power to stay proceedings where they involve an abuse of process; Jago v District Court of New South Wales (1989) 168 CLR 23. That means, however, that there is a power to stop a prosecution. It does not mean that the courts can compel a prosecution to be instituted against any person or persons.
In the present instance the appellant’s complaint is not so much that the prosecution against him should have been stopped, but rather that it should have been stopped if other known offenders were not also being prosecuted. In effect, he submits that he should have not have been singled out as a target of the law enforcement function. There may be circumstances in which the power to stay a prosecution as an abuse of process would be exercised to halt what is described by Pincus JA as selective prosecution of offenders. It is however, difficult to discover any such abuse of process in what took place here. If many of the assembled multitude were engaged in smoking marijuana, it would not have been easy for the relatively small number of police on hand to have arrested and charged all of them. To have attempted to do so might well have increased the difficulties of ensuring that such a large crowd of people continued to act with restraint. To have employed a much larger contingent of police would no doubt have meant taking them from more pressing duties of law enforcement.
The executive function of law enforcement is governed ultimately by the need to preserve the “peace order and good government” of the society which it is designed to serve. Some discretion in the allocation of the resources of government is necessarily inherent in fulfilling that function. There is no reason to suspect it was improperly exercised in the present case.
[32] CA (Q) 29 of 1995 at 4
I respectfully adopt the above remarks. They are apposite to the present case. See also State of Western Australia v GBT.[33]
[33] [2006] WADC 210
The applicant’s argument is rejected.
Order
Application for stay of proceedings refused.