R v Sayers - [2006] SADC 123

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SAYERS
Criminal Trial by Judge Alone
[2006] SADC 123
Reasons for the Verdict of His Honour Judge Beazley
5 October 2006
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Particular offences - statutory offences - firearm offence - effect of particular words - "home-made firearm".
Trial by judge alone - accused charged with one count of possessing a firearm without a licence - accused elects not to give evidence - limited scope of evidentiary aids - verdict of aquittal.
Firearms Act 1977 s 5, 11 and 36; Firearms Regulations 1993 Regs 4, 5, 6, 7 and 8, referred to.
Kalmar v Ballantyne [2006] SASC 160; Dyers v R (2002) 210 CLR 285; Cody v J.H. Nelson Pty Ltd (1947) 74 CLR 629; Hall v Collins [2003] WASCA 74 at [23]; Waterhouse v PAS (1998) WA Supreme Court - B.C. 9804410; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384; Brewarrana Pty Ltd v Commissioner of Highways (1973) 6 SASR 541; Azzopardi v R (2001) 205 CLR 50 at [34]; Hudson Resources Ltd v Melville (1988) 164 CLR 234 at [25], considered.

R v SAYERS
[2006] SADC 123
Introduction

The accused is charged on Information dated 22 September 2006 with the following offence:
Statement of offence
Possessing a firearm without a licence (Section 11(1) of the Firearms Act 1977).
Particulars of offence
David John Sayers on the 16^th day of January 2006 at Elizabeth, had in his possession a prescribed firearm, namely a PVC home-made gas operated “spud Gun” whilst not holding a firearms licence authorising possession of the firearm.
Procedural Matters
Trial by Judge Alone
The accused pleaded not guilty to the count and elected to be tried by a judge without a jury pursuant to s 7 of the Juries Act 1927.
Background
On 16 January 2006 the police attended at premises leased by the accused at 207 Woodford Road Elizabeth North. They located an object in the laundry of the house. It was universally described by witnesses as a “spud gun”. The object consisted of three sections as follows: -
·a 1.2 metre length of 65 mm common sewerage or gutter down pipe.
·a plastic chamber of 100mm PVC pipe with a PVC screwend cap. Inserted in the cap was a spark plug.
·finally a cattle prod; secured to the 65mm pipe, and connected to the spark plug by electrodes.
The accused was not the holder of any Firearms Licence authorising him to possess any class of firearm.
The Prosecution case
In opening, the Prosecution described the matters in issue as being whether the object found in the possession of the accused is a “firearm” for the purpose of s 11(1) of the Firearms Act 1977; and whether the object, if such a firearm, is a “home-made firearm” within the meaning of Regulations 4 and 8 of the Firearms Regulations 1993.
The Firearms Act 1977
A firearm is defined in section 5 of the Act as : -
“(a) a device designed to be carried by hand and to fire shots, 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. … but does not include …a device of a kind excluded by Regulation from the provisions of the Act”.
Regulation 7 of the Firearms Regulations 1993, excludes as “firearms”, various objects including “dog retrievers – (being) firearms designed to fire a projectile for a dog to retrieve”.
Regulation 8 includes as a “prescribed firearm”, - “home – made firearms”.
A “home-made firearm” is defined in Regulation 4 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”.
Whilst a “barrel” is not defined in the Act, a “receiver” is defined 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 evidence
The evidence in the trial consisted of a series of statements of the Prosecution witnesses tendered by consent and the evidence of Brevet Sergeant Peter Alan Lawrence. The statements were tendered on the basis that they represented the evidence which would have been given by those witnesses had they been called. The accused elected not to give evidence. He was entitled to remain silent, leaving it to the DPP to satisfy all of the elements of the charge beyond reasonable doubt. The right to remain silent is a right which the law confers on every citizen. I accordingly draw no adverse inference against Mr Sayers by virtue of the fact that he exercised his right to silence.
Summary of evidence
Three certificates were tendered pursuant to section 36 of the Firearms Act, 1977. I am satisfied that on 16 January 2006, the accused was not the holder of any licence which could authorise him to possess any class of firearm. Further I am satisfied that the accused was not on 16 January 2006 the holder of a Firearms Dealers Licence.
Mervyn Eric Kowald by statement dated 19 January 2006 deposed to entering the premises of the accused at Woodford Road at Elizabeth North on 16 January 2006 pursuant to a warrant of possession. His evidence was directed to his observations of matters unrelated to the count to which the accused has pleaded not guilty.
Phill Jason Mallett by statement dated 3 March 2006 deposed to attending at the accused’s premises on 16 January 2006. He relevantly observed in the rear laundry room the “spud gun” (Exhibit P2), which he described as a white pipe about one metre in length with a cattle prod taped to the side, and “it had the appearance of a small Bazooka”.
Jennifer Susan Gray by statement dated 12 March 2006 deposed to attending with Mr Mallett at the accused’s premises on 16 January 2006 and being made aware of a “home-made gas powered Bazooka that had been located in the laundry at the rear of the premises”. She was present while the accused was interviewed by Mr Mallett. Despite the fact that this, and other Statements were tendered by consent, the ultimate question whether Exhibit P2 is a home made firearm is for the Court to determine.
Andrew John Murphy by statement dated 8 March 2006 deposed to taking various photographs of the house rented by the accused. He relevantly deposed to seeing a white PVC plastic home-made object, (Exhibit P2), commonly known as a “spud-gun”, lying up against the wall of the laundry.
Record of Interview
The accused’s record of interview dated 16 January 2006 was also tendered by consent. The accused was relevantly asked about “this pipe device in your laundry”:
"Q“Is there anything you want to tell me about that pipe?
ANo
QWhat is it?
AIt’s for fishing.
QExplain to me how that’s used for fishing?
AI’m probably better not saying anything now mate.
QIs it yours?
AYeah.
QAnd you use it for fishing do you?
AYeah.
QWould that be some form of gas fired firearm or projection device?
AI don’t want to say anything about it”.
Brevet Sergeant Lawrence described a “spud-gun” as one fabricated from lengths of PVC sewerage or water pipe. He opined that (Exhibit P2) was a “spud gun”; with the 1.2 metre length of 65 mm PVC pipe being the barrel section. He pointed out that the barrel was glued to a plastic chamber constructed of 100 mm PVC pipe. The rear section of that chamber contains an end cap, similar to the inspection point of a PVC down pipe. It has an adapter which allows the end cap to be fitted to the pipe forming a closed chamber. He identified, at the side of the chamber, a spark plug, which was attached by electric wires to a cattle prod. Once the button on the cattle prod was pushed, he opined that a spark would be produced by the spark plug in the closed chamber. Although Sergeant Lawrence did not test (Exhibit P2) to determine whether it could be fired, he opined that by squirting a small amount of hydrocarbon based propellant into the opening, and then screwing the end cap in place, an explosion would occur by pressing the button on the cattle prod, thereby forcing the projectile up the length of the barrel. The device is one which is capable of firing and indeed designed to fire items such as tennis balls, potatoes or oranges. In Sergeant Lawrence’s experience such devices are capable of firing such items up to 200 metres. In cross-examination Sergeant Lawrence was asked about an object described in the Regulations as a “dog retriever”, and simply defined as being a firearm designed to fire a projectile for a dog to retrieve. Such an object is an exempt firearm. He had had limited experience with such objects. The only commercial brand observed by him was one, which contained a spring loaded firing pin, and a blank cartridge, which has the effect of ejecting a “furry can sized object” which is chased by a dog. He conceded that (Exhibit P2) is an unconventional type of firearm, and “not what people would commonly refer to or commonly think of, if you mention the word firearm”.
He conceded that the PVC products contained in (Exhibit P2) are exceptionally common, and in use throughout the world.
Submissions of counsel
The Prosecution
Mr Handshin, counsel for the DPP, submitted that I should find that (Exhibit P2), is a “firearm” as defined in section 5 of the Act.
He submitted that I should not construe the words “other projectiles” within the expression “fire shots, bullets or other projectiles” by reference to the ejusdem generis rule of construction so as to limit those words to effectively, balls or pellets of lead or metal-like substances. He submitted that the words should be given their ordinary and natural meaning so as to include objects such as tennis balls, oranges and potatoes as “other projectiles”.
He then submitted that on any view, (Exhibit P2) was a firearm “that incorporates a barrel”; and that I should infer that it “was made in Australia by a person who is not a licensed dealer in firearms”. Accordingly he submitted that I should find beyond reasonable doubt that (Exhibit P2) is a “home-made firearm” as defined in Regulation 4 of the Firearms Regulations 1993, and thereby a “prescribed firearm” within Regulation 8(j) thereof.
He submitted that as the accused was not on the relevant date the holder of a relevant licence that I should be satisfied beyond reasonable doubt that the accused was guilty of the offence with which he has been charged under section 11(1) of the Firearms Act 1977.
Mr Handshin properly conceded that the only evidence as to whether the “firearm” fell within the definition of a “home-made firearm” was the admission by the accused that (Exhibit P2) was his, and that it was located in his laundry. He further conceded that there was no evidence to establish whether the object (Exhibit P2) was made or not made by a licensed dealer.
Finally he conceded, again quite properly, that if I were to find that (Exhibit P2) was a “firearm” but that I could not be satisfied on the evidence that it was a “home-made firearm”, that the accused must be acquitted of the charge.
The accused
Mr Henchliffe, counsel for the accused, directed my attention to the quite limited scope of the evidentiary aids contained in section 36 of the Act. It contains no presumption that “home-made firearms” were made in Australia.
He quite properly conceded that the Prosecution had established beyond reasonable doubt that the accused was on 16 January 2006 in possession of (Exhibit P2), and that he was not the holder of any relevant licence at that time. He submitted however that the DPP had not established that (Exhibit P2) was a firearm, and further that even if it were a firearm, that it was a “home-made firearm” as defined in the Firearms Regulations, 1993.
While not conceding that (Exhibit P2) was “designed to be carried by hand”, Mr Henchliffe submitted that I should construe the definition of “firearm” by the use of the ejusdem generis rule. Accordingly he submitted that “other projectiles” should be qualified by the words “fire shots, bullets”. He submitted that, as so qualified, tennis balls, oranges and potatoes do not fall within that description, and that as (Exhibit P2) was designed to fire those items, it does not fall within the definition of “firearm”.
He acknowledged that the Regulations included as “firearms” various objects which fired projectiles of a much wider description than “bullets” or “shots”. He submitted, quite correctly, in my opinion, that it is not permissible to interpret a statute by reference to the Regulations, particularly where they have not been contemporaneously prepared. See Hudson Resources Limited v Melville (1988) 164 CLR 234 at [25].
Finally Mr Henchliffe submitted that irrespective of whether (Exhibit P2) is a firearm, I could not be satisfied on the evidence that it was a “home-made firearm” as defined.
In particular, no evidence had been led that it was made in Australia, nor did it exclude that it had been made by a licensed dealer in firearms. Exhibit P2 had the appearance of an object which had been well constructed. He pointed further to the ambiguity in the definition of “home-made firearm”. In so far as it is the barrel which must be made in Australia, one could not even draw an inference about where the PVC pipe was made.
He submitted that the accused was not even questioned by the investigating officers as to whether he had made (Exhibit P2) or where it had come from. By inference he submitted that this was not one of those cases where I could more readily infer in the absence of evidence from the accused that (Exhibit P2) was made in Australia by someone other than a licensed dealer. See Dyers v R (2002) 210 CLR 285, and Azzopardi v R (2001) 205 CLR 50 at [34].
He also submitted that I could not exclude (Exhibit P2) from being a “dog retriever”; namely an exempt firearm designed to fire a projectile (a tennis ball) for a dog to retrieve.
Assessment of submissions and conclusions
I accept the evidence of all of the witnesses. Indeed there was no dispute about the evidence which they gave. At issue is whether (Exhibit P2) falls within the definition of a “prescribed firearm” for the purpose of section 11 of the Firearms Act 1977. There is no doubt that that if it be such a “prescribed firearm” that the accused was in possession of it on 16 January 2006, and that he was not the holder of the relevant firearms licence. At issue is whether (Exhibit P2) is a “prescribed firearm”. The question involves the proper construction of the Firearms Act 1977, and whether there was sufficient evidence to infer whether (Exhibit P2), if a firearm, was a “home-made firearm” as defined.
Proper construction of the Firearms Act, 1977
(a) Firearm
The principles of statutory construction which govern this case are well established. In Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 381 at [384], the High Court of Australia expressed them as follows:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. … The duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.
In my opinion the expression “other projectiles” ought be construed in its natural and ordinary meaning. In my opinion those words ought not be limited by means of the ejusdem generis rule to metallic items of a similar nature to “bullets” and “shots”. The ordinary and natural meaning of the words leads to no ambiguity. The items including tennis balls, oranges or potatoes fall within the words “other projectiles”. See Waterhouse v Pas (unreported decision, Miller J., WA Supreme Court, 1/9/98) BC- 9804410; Brewarrana Pty Ltd v Commissioner of Highways (1973) 6 SASR 541 and Cody v JH Nelson Pty Ltd (1947) 74 CLR 629.
Further, in my opinion, despite its bulk, (Exhibit P2) was “designed to be carried by hand”. Irrespective of whether it had been tested by Sergeant Lawrence, in my opinion it was “designed to fire … other projectiles by means of burning propellant”.
Accordingly I find beyond reasonable doubt that the object, (Exhibit P2) is and was on 16 January 2006 a “firearm” as defined in section 5 of the Firearms Act, 1977.
(b) “Home-made firearm”
It is apparent that the various types of “firearms” in Regulation 4 of the Firearms Regulations have been defined broadly. Similarly the items referred to in Regulation 7 as “exempt firearms” are broadly defined.
A “home-made” firearm falls within the most serious class of firearm, namely the “prescribed firearms” in Regulation 8 in the Firearms Regulations, 1993.
It is somewhat unfortunately defined in those Regulations. It is unclear whether it is intended that it is the firearm which must be made in Australia by someone other than a licensed dealer, or whether it is the barrel or receiver (or both). It seems that Parliament was restricting “home-made firearms” to those which have a barrel or receiver.
I accept Mr Henchliffe’s submissions that the “home-made firearm” as defined must incorporate a barrel or receiver that was made in Australia. Further it must be proved that it was so made by a person who is not a licensed dealer in firearms. The Prosecution asked me to infer that the object was made in Australia, and that it was not made by a licensed firearm’s dealer. The question of course in drawing such an inference is whether such an inference is the only rational and reasonable inference reasonably consistent with innocence.
In this case, both the barrel and the receiver are made of common PVC piping. Although the Prosecution does not have to establish that the accused made it, it must establish that at least one or the other was made in Australia, by someone other than a licensed dealer.
In my opinion the evidence of the Prosecution which consists only of the (Exhibit P2), and the admissions of the accused that the object was his, does not constitute proof beyond reasonable doubt that the object is a “home-made firearm”, namely that it is a firearm that incorporates a barrel or receiver that was made in Australia by a person who is not a licensed dealer in firearms.
It was not suggested by the Prosecution that this is one of the types of cases referred to in Dyers v R [2002] 210 CLR 285 or Azzopardi v R (2001) 205 CLR 50 where the facts as to the origin of (Exhibit P2) are peculiarly within the knowledge of the accused. See further Kalmar v Ballantyne [2006] SASC 160.
The High Court in Azzopardi v R (2001) 205 CLR 50 at [34] restated the general principles applicable in cases where an accused elects not to give evidence:
“The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the Prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. It is, therefore, clear beyond reasonable doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct, it cannot fill in any gaps in the Prosecution case; it cannot be used as a make-weight in considering whether the Prosecution has proved the accusation beyond reasonable doubt. Further, because the process is accusatorial, and it is the Prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial. In this respect, a criminal trial differs radically from a civil proceeding….
There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the Prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence”.
Conclusion

In my opinion the evidence called by the Prosecution does not enable me to find beyond reasonable doubt that (Exhibit P2) is a “home-made firearm” as defined. Accordingly in light of the quite proper concession of the DPP the count on the Information has not been proved to my satisfaction beyond reasonable. I find the accused not guilty of the count in the Information.