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 Act had been complied with, meant that the respondent had an adequate knowledge of the operation of the weapon (to paraphrase).
     However, the Magistrate said:

"I have no evidence before me that the shotgun has been fired or otherwise tested.  There is no evidence that it is capable of being fired, such as to fall within the above definition.  There is absolutely no evidence upon which I could even draw an inference."

In these observations, the Magistrate was in fundamental error. There was ample evidence in the conduct and statements of the respondent amounting to admissions that the shotgun was operational and capable of propelling a projectile.
     The order to review should be made absolute and the matter returned to the Magistrates Court at Beenleigh to enter a conviction and proceed according to law.
     The respondent must pay the taxed costs of and incidental to the proceedings in this Court. The application for an indemnity certificate under the Appeal Costs Fund Act 1973 is refused.

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 167 of 1992

Before the Court of Appeal

The President

Mr Justice McPherson

Mr Justice Derrington

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

MINUTE OF ORDER:   The order to review is made absolute.

The matter is returned to the Magistrates Court at Beenleigh to enter a conviction and proceed according to law.

The respondent must pay  the taxed costs of and incidental to the proceedings in this court.  The application for an indemnity certificate under the Appeal Costs Fund Act 1973 is refused.

CATCHWORDS:   Appeal and new trial. Findings of fact.

Applicant seeks review of decision of Magistrate dismissing charge of possession of weapon - whether Magistrates erred in concluding no proof that shotgun capable of being fired and a "weapon" within the Weapons Act.

Counsel:Mr P. Ridgeway for the appellant

Mr S. Hough for the respondent

Solicitors:Director of Prosecutions for the appellant

Messrs. Gavan Duffy and Associates for the respondent

Hearing Date: 24th November, 1992

IN THE COURT OF APPEAL

QUEENSLAND  Appeal No. 167 of 1992

BETWEEN:

MICHAEL DAVID SLEIGHT
  Appellant

- and

LORENZO TORRESAN

Respondent
         Ex parte: MICHAEL DAVID SLEIGHT

The President
         Mr Justice McPherson
         Mr Justice Derrington

Judgment of the Court delivered on the first day of December, 1992

THE ORDER TO REVIEW IS MADE ABSOLUTE.  

THE MATTER IS RETURNED TO THE MAGISTRATES COURT AT BEENLEIGH TO ENTER A CONVICTION AND PROCEED ACCORDING TO LAW.

THE RESPONDENT MUST PAY  THE TAXED COSTS OF AND INCIDENTAL TO THE PROCEEDINGS IN THIS COURT.  THE APPLICATION FOR AN INDEMNITY CERTIFICATE UNDER THE APPEAL COSTS FUND ACT 1973 IS REFUSED.