R v Zdravkovic (No 2)
[2020] ACTSC 253
•24 September 2020
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 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 authorises the licensee to use a firearm also authorises the licensee, in accordance with this Act or another territory law, to acquire, possess or use the calibre of ammunition made for use in the firearm.
(b)the person is the registered owner, registered principal or a registered user of the firearm, and the firearm is disposed of or destroyed;
(c)the person’s registration as owner or user of the firearm is cancelled.
(3)Also, subsection (1) does not apply—
(a)to a person who has an approved reason for requiring a starting pistol, if the ammunition is a blank cartridge for use in a starting pistol; or
(b)in relation to the surrender of ammunition to a police officer.
NoteApproved reason—see the dictionary.
(4) Strict liability applies to subsection (1) (b).
The Dictionary to the Act provides:
possession—see section 10.
Section 10 then defines possession as follows:
10Meaning of possession
(1)For this Act, a person has possession of a firearm if the person—
(a)has the firearm on his or her person, including in something carried or worn by the person (physical possession); or
(b)has the firearm at premises owned, leased or occupied by the person; or
(c)otherwise has the care, control or management of the firearm.
Example—possession
Simon buys a firearm illegally. He hands it to Penny to look after it for him while he appears in court. Simon still has the care, control or management of the firearm and so has possession of the firearm. Penny holds the firearm and also has possession of the firearm.
Note 1Premises includes vehicles (see dict).
Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2)Also, for this Act, a person has possession of a firearm if—
(a)part of the firearm is in the person’s possession; and
(b)other parts of the firearm are in the possession of 1 or more other people; and
(c)at least 1 of the other people is in possession of the other part or parts for an agreed purpose with the person; and
(d)the parts would make up the firearm if fitted together.
The word “possess” is not defined in the Dictionary.
However, the terms of the offence provisions relating to firearms provide that it is an offence if the person “possesses” the relevant firearms: see for example ss 42, 43, and 45. It is apparent that the legislature intended, for the purposes of these offence provisions, that the meaning of the word “possess” would be consistent with the defined term “possession”.
In the case of ammunition, the difficulty arises because s 249 also refers to a person who “possesses” the ammunition. The definition of “possession”, however, only refers to possession of firearms and not to possession of ammunition. The term firearm does not extend to cover ammunition: see s 6.
How then is s 249 to be interpreted? The accused contended that the section could have no relevant operation because the concept of possession picked up in the section is limited to possession of firearms. He contended that this was an "obvious drafting error" but that it meant that an element of the offence could not be established.
Such an interpretation would only be able to be avoided if there was some reasonable basis upon which to interpret the word “possesses” in s 249 in a way that either picked up the definition in s 10 and applied it as though it was not limited to possession of firearms or, alternatively, to treat the word as not being subject to the definition in the Dictionary.
In my view, the latter approach is the correct one. That is because the Legislation Act 2001 (ACT) provides that a definition in an Act applies except so far as the contrary intention appears: s 155. In this case, a contrary intention does appear because the relevant offence provision would be rendered inoperative if the definition was treated as applying and the offence provision has a sensible operation if “possesses” is given its ordinary meaning. The existence of such a contrary intention is more readily discerned in circumstances where this feature of the Act has been present since its commencement. As enacted, “possession” was separately defined in a manner that limited it to firearms. Section 4(1) contained a definition of possession: ““possession”, in relation to a firearm, includes …”. At the same time, the Act included in s 99 a separate offence of possessing ammunition which necessarily relied upon the ordinary meaning of possession.
Because a contrary intention appears and the definition of “possession” in s 10 does not apply, then the word “possesses” in s 249 is not a defined term. The ordinary meaning of the word “possess” is “to have as property; to have belonging to one”: Macquarie Dictionary, 2nd edition, 1991. It involves both actual physical control and an intention to appropriate the item to one’s exclusive use.
The result of using the term "possesses” in an undefined sense is, in fact, to substantially simplify the offence provision. For reasons which will be disclosed by an examination of the transcript of the proceedings in this case, the provisions relating to the definition of possession of a firearm in ss 10 and 11 of the Act are difficult to understand. In particular, s 11(1)(d) is a provision in relation to which it is difficult to instruct the jury having regard to:
(a)its terms and the fact that an evidential rather than legal onus is borne by the accused in relation to it; and
(b)the potential overlap between the question of whether a person “has” something: s 10(1)(b), and whether the person is “in possession” of it: s 11(1)(d).
These issues are happily avoided as a result of the interpretation that I have adopted above.
Subject to the simplification of the issue of possession, the elements of the offence of possessing ammunition were the same as those which applied in relation to s 43, one of the offences the subject of the jury trial, and the parties agreed on these elements. I will address them in sequence.
Elements of the offence
1. The accused possessed something.
For the purposes of this charge, the relevant time on 30 June 2018 is the time up until the ammunition was discovered and seized by the police. It is therefore the period after midnight on 29 June 2018, up until the point at which it was located and seized by police in the early afternoon of 30 June 2018.
The ammunition was found concealed inside a rubber glove, which was itself concealed within a structural tubular metal beam within a shed located on the residential block where the accused lived with his partner and young child. Although there was not detailed evidence about the use of the shed, the photos that were in evidence were consistent with it being a neatly maintained toolshed. DNA was found on the glove and the ammunition cartridges. That DNA was a partial profile of a single person. Expert evidence in relation to the DNA found on the glove and the outer surface of the ammunition cartridge cases indicated that it was 100 billion times more likely that the accused is the source of the DNA than another person selected at random from the Australian Caucasian population.
The ammunition was ammunition which was suited for use in a rifle which was found hidden in a different part of the premises.
There is no evidence that anyone else knew that the ammunition was there.
The accused was, at the relevant time, the former president or commander of the Comanchero outlaw motorcycle gang. There was, for reasons which were not fully disclosed, significant hostility between continuing members of the gang and himself. That was to such an extent that acts of violence had been committed against him. In March of that year he had been shot and suffered a wound to his scalp. On 28 June 2018 his house had been attacked, he had been shot at and lost a portion of his finger as a result. Three vehicles on the premises had been doused with an accelerant and burnt. There were therefore reasons why the accused would wish to possess the ammunition.
The accused conceded that if his argument as to the definition of “possession” was not accepted, then he “was in possession of bullets consistent with common law principles”.
In those circumstances, I am satisfied beyond reasonable doubt that the accused possessed the ammunition in the sense of having it as property or having it as something that belonged to him. In my view, the fact that following the attack on 28 June 2018 the accused was not at the premises other than briefly at any time on 30 June does not preclude him possessing the ammunition, nor does it cause me to have a reasonable doubt about whether or not he possessed it. Up until the point when police located the ammunition, the accused was the person who knew about it and had placed it there. There was no evidence that anyone else knew about it. No one else is shown as having a better claim to possession than him. The accused intended to continue his possession of the ammunition if it had not been seized by police. In those circumstances, his temporary absence from the premises during 30 June was not such as to deprive him of possession.
2. The accused intended to possess something.
For the reasons given above, I am satisfied beyond reasonable doubt that the accused placed the ammunition where it was found and intended to possess it.
3. The thing possessed is ammunition.
The term ammunition is defined in the Dictionary of the Firearms Act. It is an inclusive definition. The evidence of Clive Roberts, a forensic firearm examiner with the Australian Federal Police, establishes that the items were ammunition. The ammunition was ammunition suited to use in the rifle that was also found at the premises. I am satisfied beyond reasonable doubt that the items were ammunition within the meaning of the offence provision.
4. The accused was reckless as to whether the thing possessed was ammunition.
A person is reckless about whether the thing possessed was ammunition if the person knew that the thing was ammunition or was aware of a substantial risk that the thing was ammunition and, having regard to the circumstances, it was unjustifiable to take that risk.
I am satisfied beyond reasonable doubt that the accused knew that the item was ammunition. There is no other conclusion reasonably open.
5. The accused was not authorised by licence or permit under the Firearms Act 1996, to possess the ammunition.
This requires the Crown to prove that there was no licence or permit under the Firearms Act to possess the ammunition. Exhibit 17 from the jury trial is a certificate signed by a delegate of the Registrar of Firearms that on 30 June 2018 the accused was not authorised by a licence or permit under the Firearms Act to possess ammunition. That certificate is evidence of the fact: Firearms Act s 269. There is no evidence to the contrary. Therefore, I find that this element is proved beyond reasonable doubt.
6. The accused was reckless as to whether he was not authorised by licence or permit under the Firearms Act 1996 to possess the ammunition.
The accused would be reckless as to whether or not he was authorised by a licence or permit under the Firearms Act to possess the ammunition if he knew that he was not so authorised or he was aware of a substantial risk that he was not so authorised and it was unjustifiable to take that risk.
I am satisfied beyond reasonable doubt that the accused knew that he was not authorised by a licence or permit under the Firearms Act to possess the ammunition. That is consistent with the fact that he did not have any licence or permit and must have known of that fact. It is also consistent with the steps taken by him to conceal the ammunition.
Self-defence
For reasons given during the course of the hearing I concluded that self-defence was not a matter that the Crown was required to exclude beyond reasonable doubt: R v Zdravkovic [2020] ACTSC 251. Those reasons are equally applicable to the charge of possession of ammunition.
Conclusion
Because each of the elements of the offence is established beyond reasonable doubt, the charge is proved beyond reasonable doubt. I therefore find the accused guilty on the charge of contravening s 249 of the Firearms Act.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 24 September 2020 |
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