R v Vawdrey

[2001] QCA 509

[2001] QCA 509

COURT OF APPEAL

McMURDO P
DAVIES JA
WILLIAMS JA

CA No 225 of 2001

THE QUEEN

v.

PAM VAWDREY  Applicant

BRISBANE

..DATE 15/11/2001

JUDGMENT

THE PRESIDENT:  This is an application for an extension
of time within which to apply for leave to appeal under
s 118(3) District Court Act 1967 (Qld) from a decision of a District Court Judge dismissing the appeal from the Magistrates Court order convicting the applicant and her
co-accused of one count of possession of a weapon whilst not licensed under s 50 Weapons Act 1990 (Qld) and one count of failing to securely store a weapon under s 60 Weapons Act 1990 (Qld).

The applicant made this application jointly with Mr Ah-Quee, her co-accused, but unfortunately the application was misunderstood and came before this Court originally only as an application by Mr Ah-Quee and not as a joint application with Miss Vawdrey.

Mr Ah-Quee's application was heard by telephone link in this Court on 17 August 2001.  When the confusion was realised the applicant's application was brought before the Court.  As the Court noted in Mr Ah-Quee's application, no valid explanation has been given for the failure to file the application for leave to appeal within time.

The applicant's proposed grounds of appeal are the same as those of Mr Ah-Quee, namely that the weapon was not a weapon as defined under the Weapons Act 1990 (Qld) but was an antique firearm which is not within the definition of weapon as defined under that Act.

This issue was not the primary issue before the District Court judge but was considered and dealt with by her Honour. 
The applicant has provided a copy of a transcript of a taped conversation between the applicant and police on 6 August 1999 when she and Mr Ah-Quee were first charged with the offences. She relies on this to establish that one of the investigating police officers described the rifle, the subject of the charges, as a 303.25 and points out that the prosecutor, in submissions to the Magistrate, contended that this demonstrated that, because Mr Ah-Quee corrected the Bench charge sheet as to the type of gun, this suggested he had some knowledge of it.  This point did not feature in the learned Magistrate's reasoning process in finding the applicant responsible for this offence. 

The applicant also complains about the Magistrate's reference to the cross-examination of her as to her knowledge of weapons.  In her cross-examination she admitted having some knowledge of guns and owning some guns (see appeal book, page 22) and it was clearly this which was referred to, and properly referred to, by the learned Magistrate in his decision.

The points made by the applicant do not advance the matter in her favour. As the Court noted in Mr Ah-Quee's application, the learned District Court Judge allowed the applicant and the respondent to call fresh evidence on the appeal as to the rifle's categorisation under the Weapons Act 1990 (Qld). The rifle was identified by Mr Knowlton, a licensed armourer, as a 1943 or 1944 Lithgow make firearm rebarrelled to a 303.25 calibre. Mr Knowlton's evidence was that ammunition is currently manufactured and available for the firearm, that he sold such ammunition and that the firearm could not be described as an antique or heirloom firearm under the Weapons Act 1990 (Qld). It is therefore a category B weapon under the Weapons Act 1990 (Qld) and anyone in possession of it is required to be the holder of a weapon's licence. That evidence was not successfully challenged by the applicant or Mr Ah-Quee during cross-examination when Mr Knowlton said that identifiable features of the rifle demonstrated it was not a pre-1901 firearm.

The District Court Judge was entitled to accept Mr Knowlton's evidence rather than the contents of a letter from a firearms specialist from Cairns, Mr Bruce, handed to the Judge by Mr Ah-Quee. 

At the District Court appeal and in the Magistrates Court and again today the applicant's primary contention is that she had no knowledge of the weapon and was not in possession of it.

She emphasises that whilst the property was found in her house wrapped in a blanket under the bed, the house was unlockable; there had been drug-using prowlers around the premises leaving dirty syringes; these people could have been responsible for leaving the gun in her premises; she knew nothing about the gun and she and Mr Ah-Quee were set up by people involved with drugs.

As the learned District Court Judge found, the Magistrate was not compelled to accept the applicant's account of these matters; there was ample evidence from which he could have concluded, as he did, that the applicant was in possession of the weapon and had not stored it as required under the Weapons Act 1990 (Qld).

The applicant has failed to establish any clear error on the part of the learned District Court Judge or indeed on the part of the original trial Magistrate.  She has already had one appeal to the District Court.  The prospects of success of any appeal to this Court are, to say the least, not promising.  Even if the extension of time were to be granted, the case is not one in which leave to appeal should be given.  In any case, no proper reason has been given to explain the delay in filing the application within time.

I would refuse the application for an extension of time within which to apply for leave to appeal.

DAVIES JA:  I agree.

WILLIAMS JA:  In my opinion the material does not establish any sufficient reasons for extending time or granting leave to appeal.  For those and the other reasons given by the President the application should be refused.

THE PRESIDENT:  Yes.  The application is refused.

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