Sleight v Torresan; Ex Parte - [1992] QCA 415

IN THE COURT OF APPEAL [1992] QCA 415
QUEENSLAND

Appeal No.167 of 1992

BETWEEN:
MICHAEL DAVID SLEIGHT
Appellant

- and

LORENZO TORRESAN
Respondent
Ex parte: MICHAEL DAVID SLEIGHT

REASONS FOR JUDGMENT OF THE COURT

Delivered the first day of December, 1992

This is an application to review the decision of a Stipendiary Magistrate who, on 3 July 1992 in the Magistrates Court at Beenleigh, dismissed a charge against the respondent that, on 21 February 1992, he, without reasonable excuse, had in his possession a weapon, in a place, namely 572 Redland Bay Road, Carbrook, in a manner likely alone to cause alarm to any other person.
     The sole basis for the Magistrate's decision was that the prosecution had not proved beyond reasonable doubt that a shotgun which the respondent was carrying at the time was a "weapon" within the meaning of the Weapons Act 1990. The relevant definition of "firearm" includes "any gun or other weapon ... that is capable of propelling a projectile by means of an explosion or by any other means which, if used in a normal manner, is capable of causing bodily harm". It is unnecessary for present purposes to decide whether a "gun" or only another "weapon" must be capable of propelling a projectile etc..
     The Magistrate found that, when two women entered the respondent's property to retrieve horses which had strayed there, the respondent commenced yelling at the women to get off his property as they were trespassing or he would shoot. The two women walked towards the respondent's house, which he entered and returned with a shotgun, and again told the women to get off his property or he would shoot them.
     One of the women informed the respondent that the police had been called and that all she wanted to do was to retrieve her horses, which the respondent would not allow. He became more agitated and commenced pointing the shotgun, which was broken at all times. As he did this, he repeated words to the effect of "I'll shoot you. These are real bullets. Get off my property. You are trespassing." According to the Magistrate's findings, the threat to shoot was repeated at least ten times. Further, the Magistrate said:
"He was holding the butt of the shotgun under his right arm and the barrel in his left hand. The defendant was pointing towards the breech as he said, `these are real bullets'."

Later, the Magistrate said that, taking the evidence of the women in conjunction with the evidence of the two police officers, "wherein the defendant admitted to them that he loaded the gun, I find that the gun was loaded at the time, although in the broken position."
The Magistrate also referred to evidence given by the respondent in which he said that he had obtained the gun to shoot dogs on his property which were chasing his cattle. Further, there was evidence that the respondent had a license for the gun which, if sub-s.2.2(b) of the…

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 Sleight v Torresan; Ex Parte

Details

AGLC: Sleight v Torresan; Ex Parte [1992] QCA 415
Case: [1992] QCA 415
Decision Date: 1 December 1992

CaseChat Overview and Summary

The appeal by Michael David Sleight against the decision of a Stipendiary Magistrate dismissing a charge against Lorenzo Torresan under the Weapons Act 1990 was heard by the Queensland Court of Appeal. The appeal sought a review of the decision that Torresan's possession of a shotgun, which he had pointed at two women on his property, did not constitute a weapon under the Act as it was not proven that the shotgun was capable of being fired and thus causing harm. The Court of Appeal was required to determine whether the Magistrate erred in finding that the prosecution had not proved beyond reasonable doubt that the shotgun was a weapon.

The Court of Appeal found that the Magistrate was in fundamental error in concluding that there was no evidence that the shotgun was capable of being fired. The Court held that the respondent's conduct and statements provided ample evidence that the shotgun was operational and capable of propelling a projectile, thus falling within the definition of a weapon under the Act. The Court emphasised that the respondent's repeated threats to shoot the women, while pointing the shotgun at them, constituted admissions that the weapon was operational. Therefore, the Court held that the Magistrate's dismissal of the charge was incorrect.

The Court of Appeal made the order to review absolute, returning the matter to the Magistrates Court at Beenleigh to enter a conviction and proceed according to law. The respondent was ordered to pay the taxed costs of and incidental to the proceedings in the Court of Appeal. The application for an indemnity certificate under the Appeal Costs Fund Act 1973 was refused.

Orders