Tasmania v Morrison
[2021] TASSC 42
•2 August 2021
[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 7th day of May 2013 and or about the 26th 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 of the operation of s 110A, and in particular, the role of subs (2).
The relevant provisions of the Act
Section 110A is in Part 7 of the Act – Offences. Relevantly, the section provides:
"110A Unlawful trafficking in firearms
(1) A person is guilty of an indictable offence punishable under the Criminal Code if the person traffics in firearms without lawful excuse.
(2) For the purposes of subsection (1), a person is taken to traffic in firearms without lawful excuse if –
(a) the firearms are registrable firearms; and
(b) the firearms are not registered or the person is not the registrant of the firearms; and
(c) on one or more occasions, the person carries out one or more of the following activities:
(i)sells or otherwise disposes of the firearms to any other person (whether or not that other person is in Tasmania);
(ii)receives or delivers the firearms from or to any other person (whether or not that other person is in Tasmania);
(iii)modifies, prepares or packs the firearms for sale or delivery to any other person (whether or not that other person is in Tasmania);
(iv)conveys the firearms from one place to another;
(v)has possession of, or conceals, the firearms for or in connection with an activity referred to in subparagraph (i), (ii), (iii) or (iv).
…
(4) In this section –
…
registrable firearms means firearms that, by virtue of section 74(1), a person must not sell, acquire, possess or use unless they are registered;
…".
Although the references in these provisions are to "firearms", s 110A(3) deals with the concept of possession of a "firearm", but of course s 24(d) of the Acts Interpretation Act 1931 provides that words in the singular shall include the plural and words in the plural shall include the singular.
Section 74 of the Act provides as follows:
"Unregistered firearms
(1) A person must not sell, acquire, possess or use a firearm that is not registered.
Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.
(2) Subsection (1) does not apply to –
(a) an imitation firearm; or
(ab) a firearm that is registered in another State or a Territory and that is possessed and used in accordance with a corresponding licence; or
(b) a firearm imported and acquired by a licensed firearms dealer so long as the firearm is registered within 7 days of the dealer receiving it."
Section 74 is in Part 4 of the Act – "Registration of Firearms" – and more particularly, in Division 1 of that Part which is entitled "Registration Procedure". The balance of the provisions in Division 1 provide for applications for registration, restrictions on registration where the applicant is not the holder of an appropriate licence, the right of the Commissioner of Police to refuse to register a firearm if it is not made available for inspection, the issue of certificates of registration and cancellation of registration.
Prohibited firearms within the meaning of the Act are those specified in Schedule 1. The relevant items in Schedule 1 are:
"1 Any machine gun, submachine gun or other firearm capable of propelling projectiles in rapid succession during one pressure of the trigger.
…
3 Any self-loading centre-fire rifle."
The possession or use of firearms is governed by s 9 of the Act. Prohibited firearms are dealt with in subs (1A). The relevant parts of s 9 are as follows:
"Possession or use of firearms
(1) A person must not possess or use a firearm –
(a) unless the person is the holder of a firearms licence of the appropriate category as specified in Division 2 in respect of that firearm; or
(b) that is a firearm in relation to which a firearms licence may not be issued.
Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.
(1A) If a person possesses or uses a prohibited firearm –
(a) 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 in respect of that firearm; or
(b) that is a firearm in relation to which a firearms licence may not be issued –
the person is guilty of an indictable offence punishable under the Criminal Code."
Section 9 is in Part 2 – "Licences"; Division 1 – "Possession, use, purchase and dealing". Division 2 of Part 2 is entitled "Categories and authority of firearms licences". Sections 14 to 18 inclusive of that division respectively create categories of firearms licences: A, B, C, D, and H. The categories created by ss 14 to 18 are categories of licences that may be issued but which relate to firearms of specific types. (It seems to have become customary to refer to the relevant firearms by way of the category of licence that authorises their possession.) Section 17(1)(a) provides that a Category D firearms licence applies to, among other firearms, any self-loading centre-fire rifle.
"Registrable firearms"
The accused's submission is that as a prohibited firearm under Item 1 of Schedule 1, the particular firearm is not registrable. The argument is that there is no mention in any of ss 14 to 18 inclusive of a fully automatic machine gun, and so there is no provision for a licensee to possess or use one; accordingly, "there is no capacity to register a firearm of that description under Division 2".
At this point I should mention that the Act provides for licences other than categories A to H. Those licences include a firearms dealer licence, a firearms dealer employee licence, a firearms museum licence, a firearm heirlooms licence and a militaria firearms licence: see Part 2, Division 3. Pertinent to this case is that a militaria licence authorises the possession and display of ex-military firearms and ex-military ordinance. It is agreed the Bren gun is a military weapon from the mid-20th century and of possible historic interest.
The State argues that as the firearm is properly described as a "self-loading centre-fire rifle", it can be held under a Category D licence by virtue of s 17(1)(a). This argument is based on a feature of the Bren gun. It is agreed that by use of a lever on the side of the gun's receiver it can be changed from fully automatic mode to semi-automatic or repeater mode, so that it fires a single shot per trigger pull but is self-loading. In that mode at least, the Category D description relied on by the State applies.
Counsel for the State argued that Item 1 of Schedule 2 is confined to firearms which exclusively have the characteristics described in the item, and which do not fall within any one of the other items in the schedule in respect of which a person may obtain a licence to possess. Counsel acknowledged that were the Bren gun capable of being classified only as a machine gun, it simply would not be registered. In support of the proposition that some prohibited firearms can be registered, counsel referred firstly to s 9(1A)(a), noting that the provision contemplates persons having possession or using a prohibited firearm provided it is a firearm in relation to which a licence may be issued.
There was some discussion about s 9(1A)(b) and the use of the word "may" in the phrase "may not be issued". Section 10A(c) of the Acts Interpretation Act provides that the word "may" is to be construed as being discretionary or enabling, as the context requires. In my view, the word as it is used in s 9(1A)(b) of the Act is broadly used in an enabling sense. Paragraph (b) is the opposite of par (a). The section makes it an offence to possess or use a prohibited firearm that is a firearm in relation to which a licence can be issued – without the relevant licence – or to possess or use one in respect of which a licence cannot be issued, because there is no statutory authority to do so.
In any event, it is clear that a licence may issue in respect of certain prohibited firearms. The self-loading centre-fire rifle is a good example, being a firearm in respect of which a Category D licence may be issued under s 17(1)(a).
Counsel for the State also noted s 47 of the Act which provides for special conditions on certain licences. For instance, a licence that authorises the holder to possess firearms for a firearms collection is subject to statutory conditions, including – in the case of a "Category D" firearm – that it is to be "rendered permanently incapable of being fired": s 47(1)(b). (Other firearms manufactured post-1900 must be rendered temporarily incapable of firing: subs (1)(a).) Presumably, a militaria firearms licence is a licence authorising possession for the purposes of a collection. On that basis, the Act allows a licence to be issued in respect of an incapacitated Category D firearm.
Resolution of the question of what are registrable firearms assists in understanding the operation of s 110A, just as clarifying the operation of the section assists in the argument about whether the Bren gun is a registrable firearm. Ultimately, the construction exercise is not to be approached in a piecemeal fashion.
Section 110A(2)
Plainly enough, subs (1) creates the crime of trafficking in firearms when done without lawful excuse. The combined operation of subss (1) and (2) however, may be read in two ways. The first way is the basis on which the primary argument essentially proceeded. It has some immediate attraction, and it is to read subs (2) as a type of deeming provision. That is to say, s 110A does not create the crime of trafficking in registrable firearms. But if the firearms are registrable, and either matter set out in subs (2)(c) is made out, proof of any one of the activities as set out in subs (2)(c), on any one occasion, is taken as proof of trafficking in firearms.
If the relevant firearms are not registrable, and as subs (2) would only operate in relation to registrable firearms, those other firearms would have to be dealt with under subs (1) in accordance with ordinary notions of trafficking: see for instance trafficking in the drug context: Fama v Tasmania [2015] TASCCA 27 at [14]-[15] and the cases cited. In that context, 'trafficking' connotes an activity in a commercial setting; relevant activity is any movement between source and consumer in such a setting.
The second way to read the provisions is so that subs (1) simply creates the crime, while subs (2) defines the crime in the sense of setting out what constitutes it and how it is made out. In that sense the two provisions operate in a like manner to s 125A(2) and (3) of the Criminal Code. Section 125A(2) provides that a person who maintains a sexual relationship with any person who is under the age of 17, and to whom he or she is not married, is guilty of a crime. Subsection (3) provides that an accused is guilty of such an offence if during a particular period when the young person was under the age of 17, the accused committed an unlawful sexual act on at least three occasions, and when they were not married.
Of course, the expression "is taken to traffic in firearms without lawful excuse" is not as definitive on its face as, "is guilty of having committed the [offence]", but it is difficult to see how it achieves a different result.
This way of reading the provisions is supported by the clause notes to the 2007 amending Bill, by which s 110A was inserted. Those notes say; "Trafficking involves the movement of registrable firearms. A charge of trafficking may result from a person carrying out one or more of [the activities set out in subs (2)(c)]."
Resolution
With respect to counsel and the arguments put, it seems to me that the answer to the question of whether the Bren gun is a registrable firearm is simply to be found in the section itself, without any need to go beyond the meaning given to it by subs (4). It will be recalled that by the definition, "registrable firearms" are firearms that, by virtue of s 74(1) a person must not sell, acquire, possess or use unless they are registered. That means all firearms except those specifically excluded by s 74(2). Those firearms are imitation firearms, firearms registered in another State or Territory possessed or used in accordance with a corresponding licence, or a firearm imported and acquired by a licensed dealer so long as it is registered within seven days of its receipt.
Considerations of text, context and purpose are generally required: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [4], [47] and R v A2 [2019] HCA 35, 93 ALJR 1106 at [31]-[37]. Here, the words of the definition in s 110A(4) and of s 74(1) and (2) are clear and unambiguous. There is nothing in their context or the well-known general purpose of the Act that would lead to a qualified meaning by which prohibited firearms somehow become a category of firearm within s 74(2), or somehow sit outside the section, and are therefore non-registrable firearms for the purposes of s 110A.
In my view, the arguments wrongly assume that "registrable firearms" are necessarily firearms in respect of which a firearms licence may be issued. But in strict terms that is not how the scheme operates. The scheme is such that registration of firearms is dealt with separately from the licensing of individuals. The Act does not specifically require registration of firearms in the State, but deals indirectly with the issue by prohibiting their sale, acquisition, possession or use unless registered. The individual is licensed to hold firearms of a particular type. Section 74 requires those firearms to be registered.
It is plainly correct, as the State submits, that s 9(1A) contemplates a prohibited firearm being the subject of a licence. That is a significant matter as it shows that prohibited firearms are not, as a class, incapable of being registered. No doubt a prohibited firearm in respect of which a licence may be issued, as referred to in s 9(1A)(a), would need to be registered because of s 74(1). But just because the firearm was one in respect of which a licence could not be issued – as it is not described in any of ss 14 to 18 or any other licensing section – it does not mean that it is not a firearm within the meaning of s74(1), and thus one to which s 110A applies.
In practical terms, the possession or use of a firearm that is not unlawful by virtue of s 9(1) or s 9(1A) would relate only to registered firearms, but for the purposes of s 110A it is not the question of whether a licence can be issued in respect of a firearm that determines whether the firearm is registrable within the meaning of s 110A. It is simply s 74(1) of the Act that resolves that issue. The Act does not call for any factual enquiry beyond whether a firearm is of a type mentioned in s 74(2).
Before leaving this point, I would mention the State's argument that because the Bren gun, in one of its modes, falls within the description of a firearm which can be the subject of a Category D licence, then it is registrable on that basis. The effect of what I have said means that no resort need be had to this point. I think it unlikely though, that a prohibited firearm that has a capability which makes it a firearm not able to be the subject of a licence, becomes a firearm in respect of which a licence can be issued, simply because it has another capability which, if possessed alone, would enable a licence to granted in respect of it.
The fact that Item 6 in Schedule 1 makes any firearm that substantially duplicates in appearance an Item 1 firearm a prohibited firearm, would support that view. That view might create difficulties in respect of firearms collections given the terms of s 47, but I do not need to decide the point and it can be left for an appropriate occasion.
In terms of the operation of s 110A, given that all firearms other than those referred to in s 74(2) are registrable firearms – thus including prohibited firearms – then it is much more likely that s 110A(2) is a definition type of provision such as s 125A(3) of the Code, rather than a deeming type of one. That is simply because in light of the resultant scope, there is no work for subs (1) to do other than to create the crime itself. Were it to be otherwise of course, trafficking in non-registrable firearms would not be covered by subs (2), and "trafficking" would have its common law meaning.
If it were the case that trafficking in non-registrable firearms is dealt with on that basis, then trafficking in prohibited firearms would arguably be more difficult to prove than trafficking in registrable firearms. That is because many of the activities referred to in s 110A(2)(c) do not require the element of a commercial context, as does any movement which may constitute trafficking in the common law sense. On the other hand, it is hard to imagine any activity that would constitute trafficking in the ordinary sense, assuming a commercial context, that would not be caught by subs (2)(c).
In turn, those considerations make it more likely that Parliament intended that, when dealing with trafficking, prohibited firearms be included within the concept of "registrable firearms". The plain intention behind the section is to criminalise defined activities in relation to a broad category of "registrable firearms" as defined in s 74, but which are not in fact registered or where the person is not the registrant.
Conclusion
I determine that the Bren gun is a registrable firearm within the meaning of s 110A. It follows that it is not strictly necessary for me to decide the broader issue of the operation of s 110A(1) and (2). However, I record my view that because of the definition of registrable firearms, what is encompassed in the crime of trafficking in prohibited firearms– whether they be ones in relation to which a licence may issue or not – is not to be found outside subs (2). The elements of the crime created by subs (1) are to be found in subs (2), and I do not see scope for any residual class of firearm to be the subject of the operation of subs (1)
As it is not at all certain that this trial will continue before me with the empanelment of a jury, I will abort it.