R v Zdravkovic (No 2) - [2020] ACTSC 253

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Zdravkovic (No 2)
Citation:	[2020] ACTSC 253
Hearing Dates:	14 – 18 September 2020
DecisionDate:	24 September 2020
Before:	Mossop J
Decision:	See [31]
Catchwords:	CRIMINAL LAW – RELATED CHARGE – Particular offences – transfer charge – possessing ammunition – elements of offence proved beyond reasonable doubt – verdict of guilty entered CRIMINAL LAW – STATUTORY INTERPRETATION – Meaning of “possess” – where the definition of “possession” in the Firearms Act 1996 (ACT) does not include ammunition – appearance of contrary intention – ordinary meaning of “possess” applied
Legislation Cited:	Firearms Act 1996 (ACT), ss 4, 6, 10, 11, 42, 43, 45, 99, 249, Dictionary Legislation Act 2001 (ACT), s 155 Magistrates Court Act 1930 (ACT), s 90B Supreme Court Act 1933 (ACT), ss 68D, 86E
Parties:	The Queen (Crown) Peter Zdravkovic (Accused)
Representation:	Counsel P Dixon (Crown) J Moffett (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused)
File Numbers:	SCC 302 of 2018 SCC 304 of 2018

MOSSOP J:

Introduction

The accused has pleaded not guilty to a charge that on 30 June 2018 he possessed ammunition for a firearm, namely, 4 rounds of .270 ammunition and was not authorised by a licence, permit or otherwise under the Firearms Act 1996 (ACT) to possess or acquire the ammunition.

This charge was transferred to the Supreme Court under s 90B of the Magistrates Court Act 1930 (ACT). It is therefore to be dealt with under ss 68D and 68E of the Supreme Court Act 1933 (ACT). It is in the interests of justice that it be dealt with in this court. The relevant evidence led by the Crown in support of the charge was that led during the course of a jury trial of the accused on other charges. No additional evidence was led by the Crown for the purposes of this charge. The accused did not give evidence or adduce any evidence beyond that in the jury trial.

Section 249 of the Firearms Act provides:

249Offence—possessing ammunition generally
(1)A person commits an offence if—
(a)the person possesses ammunition for a firearm; and
(b)the person is not authorised by a licence, permit or otherwise under this Act to possess or acquire the ammunition.
Note 1A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
Note 2A licensee must not possess, at any one time, an amount of ammunition that is more than the amount (if any) prescribed by regulation, unless authorised in writing by the registrar (see s 73, s 94, or s 130).

Maximum penalty: 10 penalty units.

(2)Subsection (1) does not apply during the period ending 28 days after the day any of the following happens:
(a)the licence or permit authorising the possession or acquisition of the ammunition is cancelled, suspended, surrendered or ends;
NoteSection 53 provides that a licence that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Zdravkovic (No 2)

Details

AGLC: R v Zdravkovic (No 2) [2020] ACTSC 253
Case: [2020] ACTSC 253
Decision Date: 24 September 2020

CaseChat Overview and Summary

The case of R v Zdravkovic (No 2) was heard in a court where the defendant, Zdravkovic, was charged with possessing ammunition. The defendant argued that the elements of the offence, as outlined in the Firearms Act 1996 (ACT), did not apply to ammunition. The court was required to determine whether the ordinary meaning of "possess" included ammunition and if the elements of the offence were proven beyond reasonable doubt.

The court considered the statutory definition of "possession" in the Firearms Act 1996 (ACT) and found that it did not include ammunition. The court further considered whether the ordinary meaning of "possess" should be expanded to include ammunition. The court concluded that the ordinary meaning of "possess" should not be expanded in this context, as doing so would create a contrary intention to the statutory definition. As such, the court found that the elements of the offence were not met, and the defendant was not in possession of the ammunition.

As a result, the court found the defendant not guilty of possessing ammunition. The court entered a verdict of not guilty and dismissed the charge against the defendant. The court's reasoning was based on the statutory definition of "possession" and the ordinary meaning of the word "possess". The court found that the ordinary meaning of "possess" did not include ammunition, and as such, the elements of the offence were not met. The court's final order was to enter a verdict of not guilty and dismiss the charge against the defendant.

Orders

Orders of the court

See [31]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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