Tasmania v Milligan (No 2)

[2021] TASSC 60

[2021] TASSC 60

COURT:                  SUPREME COURT OF TASMANIA

CITATION:             Tasmania v Milligan (No 2) [2021] TASSC 60

PARTIES:  STATE OF TASMANIA
  v
  MILLIGAN, John William

FILE NO:  230/2019
DELIVERED ON:  24 November 2021
DELIVERED AT:  Burnie
HEARING DATE:  22-24 November 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal law – Offences against peace and public order – Offensive weapons – Firearms – Possession – Generally – "Prohibited firearm" – Whether a firearm in respect of which a licence may not be issued.

Firearms Act1996 (Tas), ss 3, 9(1A)(b), Sch 1.

Aust Dig Criminal Law [2581]

REPRESENTATION:

Counsel:
           State:  K Edwards, A Chisholm
           Accused:  J Ker
Solicitors:
           State:  Director of Public Prosecutions
           Accused:  Tasmania Legal Aid

Judgment Number:  [2021] TASSC 60
Number of paragraphs:  11

Serial No 60/2021

File No 230/2019

STATE OF TASMANIA v JOHN WILLIAM MILLGAN (No 2)

RULING DURING TRIAL  BLOW CJ

(EDITED VERSION OF RULING GIVEN ORALLY)  24 November 2021

1. The accused has been charged [on count 1] under s 9(1A)(b) of the Firearms Act 1996 ("the Act"). That makes it an indictable offence for a person to possess a prohibited firearm "that is a firearm in relation to which a firearms licence may not be issued". The regime of the Act does not involve the issuing of licences in relation to individual firearms. Rather, it involves the issue of licences that entitle the holder to possess and use firearms of particular categories. So what the relevant provision must mean is that a person commits an indictable offence if he or she possesses or uses a firearm whose possession may not be authorised by a firearms licence.

2. The Act provides for firearms licences in five different categories, known as Categories A, B, C, D and H. They are provided for in ss 14 to 18. The Crown case is that the accused was found in possession of an item that has been referred during the trial as a "gel blaster". The evidence is that it was an item capable of propelling projectiles by means of compressed air. In s 3 of the Act, "air rifle" is defined as "a firearm that propels or is capable of propelling a projectile by means of compressed gas or air". "Firearm" is defined to include, amongst other things, "an air rifle". That is in par (c) of the definition of "firearm" in s 3. The evidence is that the accused was found in possession of an air rifle.

3. Section 14(1)(a) of the Act provides that a Category A firearms licence applies to any air rifle. Section 14(2) provides that "A Category A firearms licence authorises the holder to possess or use only a firearm referred to in subsection (1) for the particular purpose specified in the licence".

4. The question that I have to decide is whether, by virtue of any other provision in the Act, it would be open to the jury to conclude that the accused's "gel blaster" was a firearm in relation to which a firearms licence may not be issued. The Act says that certain things are "prohibited firearms". Section 3 includes a definition: "prohibited firearm means a firearm specified in Schedule 1".

5. Schedule 1 lists 12 types of prohibited firearms. The relevant items are as follows:

   "1Any machine gun, submachine gun or other firearm capable of propelling projectiles in rapid succession during one pressure of the trigger.

   ...

   6Any firearm that substantially duplicates in appearance a firearm referred to in item 1."

6. The Crown case is that the accused's "gel blaster" was an air rifle that substantially duplicated in appearance a "firearm capable of propelling projectiles in rapid succession during one pressure of the trigger", or that it was a type of item described in item 6. There is evidence that the "gel blaster" is substantially identical in appearance to a weapon known as an M4 rifle.  It is an imitation M4 rifle.

7. However there is no provision in the Act that says that the possession or use of prohibited firearms, as defined, may not be authorised by a firearms licence.[1] The fact that this particular air rifle was also a firearm that substantially duplicated in appearance a firearm referred to in item 1 of Schedule 1, therefore did not prevent the Commissioner of Police or his delegate from issuing a firearms licence authorising its possession. It would seem that there are items in the list of "prohibited firearms" that cannot be the subject of firearms licences of any description. For example, the possession of a machine gun could not be authorised by a firearms licence of Category A, B, C, D or H.

   [1] The principal consequence of a firearm being a "prohibited firearm" as defined appears to be that a charge relating to its possession or use is a charge of an indictable offence: s 9(1A). Charges of possessing or using other firearms are summary charges: s 9(1). Also, the maximum penalties for some summary offences under the Act are higher for "prohibited firearms" than for other firearms.

8. It is also clear that there are some prohibited firearms in respect of which firearms licences may be issued, or the possession of which may be authorised by firearms licences. If that were not the position, s 9(1A)(a) of the Act would have no work to do. That paragraph makes it an indictable offence for a person to possess or use a prohibited firearm "that is a firearm in relation to which a firearms licence may be issued without being the holder of a firearms licence of the appropriate category, as specified in Division 2 [of the Act] in respect of that firearm."

9. The last Crown witness this morning, Sgt Devine, gave evidence to the effect that the police officers responsible for firearms licensing take the view that when possession of a firearm could be authorised by a licence if an exemption were granted under the relevant provision of the Act, s 155(4), then the firearm in question could be the subject of a licence. However, in my view it does not make a difference whether s 155(4) applies or not. Under s 155(4)(b), an exemption may be granted in respect of any firearm. If it were right that the possibility of the granting of an exemption resulted in a particular firearm being one in respect of which a licence may be issued, then s 9(1A)(b) would have no work to do.

10. The result of all this is that, in my view, it would not be open to the jury to conclude that the "gel blaster" was a firearm whose possession may not be authorised by a firearms licence. There is no evidence that it was anything other than an air rifle whose possession could be authorised by a Category A licence.

11. On that basis, I will direct the jury to find the accused not guilty on count 1.