Tasmania v Morrison - [2021] TASSC 42

[2021] TASSC 42

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Morrison [2021] TASSC 42

PARTIES:  STATE OF TASMANIA
  v
  MORRISON, Andrew Stewart

FILE NO:  147/2019
DELIVERED ON:  2 August 2021
DELIVERED AT:  Hobart
HEARING DATE:  20 May 2021
JUDGMENT OF:  Porter AJ

CATCHWORDS:

Criminal Law – Offences against peace and public order – Prohibited and controlled weapons – Trafficking in registrable firearms – Whether a prohibited firearm a "registrable firearm" – Where the particular firearm prohibited as a machine gun – Where the firearm convertible to a mode of operation putting it in a category in respect of which a licence may be issued – Firearm a "registrable firearm" in any event.
Firearms Act 1996 (Tas), ss 74, 110A.

Aust Dig Criminal Law [2587.5]

REPRESENTATION:

Counsel:
             State:  S Wilson
             Accused:  G Barns SC, L Edwards
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Friend & Edwards Lawyers

Judgment Number: [2021] TASSC 42
Number of paragraphs: 37

Serial No 42/2021
File No 147/2019

STATE OF TASMANIA v ANDREW STEWART MORRISON

REASONS FOR JUDGMENT PORTER AJ

2 August 2021

Introduction

This is a determination of a question of law before a jury is empanelled, pursuant to s 361A(1)(b) of the Criminal Code.
The accused is charged on indictment with ten counts of unlawful trafficking in firearms contrary to s 110A(1) of the Firearms Act 1996 (the Act). He is also charged with a number of counts of dealing with the proceeds of crime contrary to the Crime (Confiscation of Profits) Act 1993, but it is the crime of trafficking in firearms with which I am concerned. The point of law arises in respect of the first count on the indictment to which the accused has pleaded not guilty.
The particulars of that count read as follows:
"ANDREW STEWART MORRISON at Ulverstone in Tasmania between on or about the 7^th day of May 2013 and or about the 26^th day of August 2013, trafficked in firearms without lawful excuse namely by selling or otherwise disposing of an Inglis Bren fully automatic 303 calibre machine gun serial number 6T3795 to David Bush, which was a registrable firearm and not registered."
It is an agreed fact for the purposes of this determination that the firearm described in count 1 (the Bren gun) is a machine gun capable of propelling projectiles in rapid succession during one pressure of the trigger. As such, it is a prohibited firearm because it falls within the description of Item 1 of Schedule 1 to the Act. There are further agreed features of this firearm to which I will later refer.
What I have to determine relates to s 110A and to prohibited firearms. The primary question is whether as a matter of law the Bren gun, as a prohibited firearm, is a "registrable firearm" within the meaning of the Act. (That question assumes, of course, that it was not registered.) But the question gives rise to a broader question…

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 Tasmania v Morrison

Details

AGLC: Tasmania v Morrison [2021] TASSC 42
Case: [2021] TASSC 42
Decision Date: 2 August 2021

CaseChat Overview and Summary

Tasmania brought a case against Morrison, contesting whether a specific firearm was a "registrable firearm" under the Criminal Code Act 1995 (Cth). The dispute arose from Morrison's alleged involvement in trafficking a prohibited weapon, a matter that fell under the purview of the Federal Court of Australia. The core issue was whether a firearm, prohibited because it functioned as a machine gun, could be classified as a "registrable firearm" if it was also convertible to a mode of operation for which a licence could be issued. This distinction was pivotal in determining the applicability of specific regulatory and licensing provisions within the legislative framework.

The court needed to dissect the statutory language and legislative intent to ascertain whether a firearm's dual characteristics—being both a prohibited weapon and convertible to a licensable mode—meant it fell under the definition of "registrable firearm." The primary challenge was reconciling the prohibition on machine guns with the potential for licensing of firearms that could be converted to a licensable configuration. The court examined the statutory definitions, the legislative history, and the broader objectives of the firearms regulatory scheme to determine if such a firearm should indeed be classified as "registrable."

After thorough analysis, the court concluded that the firearm in question, despite being prohibited as a machine gun, was indeed a "registrable firearm." The reasoning hinged on the legislative intent to ensure that all firearms capable of being converted to a licensable mode, even if currently in a prohibited configuration, should be subject to the regulatory framework for registrable firearms. This classification ensures comprehensive oversight and adherence to licensing requirements, aligning with the overarching legislative goals of public safety and firearm regulation.

The court's decision was definitive, providing clarity on the classification of such firearms within the statutory scheme. This ruling established that a firearm that is both prohibited and convertible to a licensable mode must be considered a "registrable firearm."

Orders