Tasmania v Taylor
[2022] TASSC 57
•27 July 2022
[2022] TASSC 57
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Tasmania v Taylor [2022] TASSC 57 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| TAYLOR, Lachlan | |
| FILE NO: | 981/2020 |
| DELIVERED ON: | 27 July 2022 |
| DELIVERED AT: | Burnie |
| HEARING DATES: | 27 July 2022 |
| JUDGMENT OF: | Wood J |
EDITED REASONS FOR RULING DELIVERED ORALLY
CATCHWORDS:
Firearms – Offences – Firearms Act 1996 (Tas) – Trafficking in firearms contrary to s 110A – Section 110 provides for a rebuttable presumption.
Firearms Act 1996 (Tas), s 110A.
Aust Dig Firearms [1043]
REPRESENTATION:
Counsel:
State: J Shapiro Accused: T Kovacic, M Edwards
Solicitors:
State: Director of Public Prosecutions
| Judgment Number: | [2022] TASSC 57 |
| Number of paragraphs: | 29 |
Serial No 57/2022 File No 981/2020
STATE OF TASMANIA v LACHLAN TAYLOR
EDITED REASONS FOR RULING
| (Delivered orally during trial) | WOOD J |
27 July 2022
1 Lachlan Taylor is on trial for a charge of unlawful trafficking in firearms contrary to s 110A(1) of the Firearms Act 1996. The particulars of the charge are:
"[the accused] at Gawler in Tasmania, between, on or about, the 3rd of January, 2020 and the 8th of October, 2020, did without lawful excuse, traffic in firearms, namely, a .177 calibre air rifle and a .22 homemade calibre single shot pistol."
2 Initially he pleaded guilty but, after I had heard the facts, plea in mitigation and legal submissions, I vacated the plea of guilty and substituted a plea of not guilty. My reasons for doing so are published in Tasmania v Taylor [2021] TASSC 39. It can be seen that I held that a deeming provision in s 110A(2) of the Firearms Act was rebuttable and not conclusive.
3 The Crown argues that I should revisit my decision as my decision was wrong, and that I should direct the jury in terms that subs (2) defines the elements of trafficking for the purpose of s 110A of the Firearms Act. Subsection (2) provides:
"(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 The evidence at the trial is largely the same as the facts presented at the sentencing hearing. Those facts are set out at [2] and [4] of Taylor:
"On 8 October 2020 police officers searched the defendant's home at Turners Beach. He was 20 years of age and living with his family. Police officers found various items including one .177 air rifle in the garage and a homemade .22 pistol in his car.
…
2 No 57/2022
About five days before, the defendant acquired the .22 pistol from a male at Riana, he did not identify that person. It cost him two packets of cigarettes. He put it in a plastic case and hid it in the centre console of his car. At an unknown time he purchased the .177 air rifle for $50 from a person. He put it in a bag and drove it to a location past Bakers Beach, loaded it with a pellet and tried to shoot with it but it did not work. He took it home and wrapped it in a towel to disguise it before hiding it in his garage."
5 Having considered those facts, I later remarked at [50]:
"The facts presented by the State are that the defendant purchased each of the two firearms and conveyed them in his car with the plain, obvious and only inference that they were for his own purposes and with no suggestion he did so to distribute them, sell them or pass them on to someone else. Evidently, on the facts, he could have been charged with a number of summary offences with serious penalties but, the charge of trafficking in firearms was laid, and is unsupported by any factual assertions."
6 Crown counsel has most fairly declared that the only evidence the Crown relies upon of trafficking is the conduct that triggers the presumption of receiving and conveying the firearms. There is no suggestion of a commercial context.
7 In some respects the evidence on the trial is more favourable to the defence than the facts presented at the sentencing hearing. Mr Taylor maintained in his police interview that he planned to keep the firearms for ornamental purposes. He was going to weld a part or parts of them and then mount them on the wall. Those facts were not before me at the sentencing hearing.
8 There is evidence on the trial that he had other firearm parts and ammunition found during the search. He has pleaded guilty to assorted summary offences and an indictable offence of possession of a prohibited pistol, that is, the same pistol the subject of this charge. This evidence is relied upon by the Crown as context and as demonstrating his interest in firearms. It is not suggested that the evidence reveals an intention or preparedness to engage in distributing firearms.
9 There is additional evidence in his record of interview that he had given a friend six rounds of ammunition but, again, this is merely relied upon as context and demonstrating his interest in firearms and not as revealing an intention or preparedness to engage in trafficking of firearms or the distribution of firearms. His interest in firearms and ammunition is consistent with his intention to keep the two firearms and display them.
10 In light of the above, the evidence on the trial is for all intents and purposes the same as the facts presented at the sentencing hearing and thus, if my decision in Taylor is correct, then it has application and is not distinguishable on the evidence.
11 The State contends that my ruling is in error, in light of a number of considerations. First, because of a decision of Tasmania v Morrison [2021] TASSC 42, which I did not consider in my reasons as it was published on 8 September 2021 after Taylor was delivered. I have now considered Morrison.
Morrison was concerned with a different point which was whether a prohibited firearm, a Bren gun, was a "registrable firearm" within the meaning of the Act. Porter AJ concluded that it was. Relevantly, for our purposes, his Honour also considered s 110A and two potential interpretations that may be given to subs (1) and (2). His Honour noted at [21] that the first way the sub-sections may be read is that subs (2) is 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."
13 His Honour stated at [22]:
3 No 57/2022
"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:.."
14 His Honour noted at [23] that the second way of reading the subsections 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."
15 Porter AJ regarded this way of reading the provisions as supported by the clause notes to the
2007 amending Bill.
16 It seems his Honour did not express a final view about the correct way to interpret s 110A. At
[33] his Honour noted:
"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."
17 At [34] and [35] his Honour addressed the fact that prohibited firearms fall within trafficking
in registrable firearms.
18 His Honour considered two possible interpretations but did not consider a third, that the deeming provision was rebuttable. If rebuttable, then necessarily it is not a definition type of provision. The clause notes referred to at [25] of his Honour's judgment are entirely consistent with the conclusion I reached that the presumption is rebuttable. The reasons of his Honour do not, in my respectful view, speak to or undermine my reasons that the presumption is rebuttable.
19 It was contended by Crown counsel that the words of the section, "a person is taken to traffic in firearms without lawful excuse", should be given their ordinary meaning. However, the ordinary meaning of the words is silent about the effect of the section. As noted in Taylor, there is a question of whether the legislature was intending to create a statutory fiction or remove doubt which might otherwise exist, and whether the effect or consequence of the words is a presumption until the contrary is proved. The correct meaning turns on the proper construction of the statute and the relevant legislative intent and the purpose for which the provision was enacted: Taylor at [21].
20 It was argued that the construction contended for by the Crown is more consistent with the context and purpose of the legislation. I dealt with this argument fully in my reasons: Taylor at [35]– [40].
21 It is argued that the phrase "person is taken to" should be given a consistent meaning throughout the Act. The existence of this phrase elsewhere in the Act and this argument was not overlooked by me: Taylor at [27].
22 I would add that the sections referred to, such as ss 3A, 56(1), 56(2) and 96A(6) are not penal provisions, but have a different purpose and are concerned with stream-lining the licencing regime. A deeming provision pertaining to guilt is a very different statutory provision: See Taylor at [19] and [20].
23 The force of the comments by King CJ quoted in my reasons at [20], seems to have been overlooked and I take this opportunity to repeat them:
4 No 57/2022
"When a legislature creates a presumption of fact having possible penal consequences, it takes a serious step. It attributes to a citizen some act or state of mind possibly contrary to the truth of the matter. This point and the discussion that continued, reinforces the need to restrict the operation of the presumption to the purpose attributed to the legislature."
24 In Taylor, I gave particular consideration to ss 110A(3) and 3B of the Act. Section 110A(3) is a deeming provision pertaining to guilt which uses express terms to create a rebuttable presumption. For the reasons I gave at [27]-[28], there are special factors regarding the expression "possession" arising from its treatment under the Act.
25 Another argument for the contention that Taylor is wrong is that one of the activities set out in s 110A(2) coincides with the common law meaning of trafficking: "selling or otherwise disposing of the firearms to any other person." It is contended that it would be a strange result if the section required juries to be directed that an accused who sells firearms is deemed to be trafficking when that conduct would amount to trafficking at common law in any event. It is argued that this suggests that Parliament did not intend to create a presumption that was rebuttable.
26 I do not accept that this consideration weighs in favour of a conclusive presumption. The common law does not pronounce that one sale transaction necessarily amounts to trafficking. The deeming provision puts it beyond doubt that this can be sufficient and facilitates the prosecution of such cases. It can be seen that s 110(2) covers a spectrum of conduct some of which would be thought, generally, to amount to trafficking at common law and other activity which would turn on its facts.
27 It is argued that Director of Public Prosecutions (Acting) v Eather [2016] TASCCA 2, demonstrates that the fact that an offence provision can capture benign conduct does not displace the ordinary meaning of the words of the provision viewed in context and with regard to the purpose of the legislation. I have already commented on the ordinary words of the provision. In Taylor, I dealt with the authoritative force of Eather in the context of this case, [47]-[48] and its concern with a different point altogether, [45]. The submission made by the Crown suggests an over-reliance in Taylor on the consequences of the construction argued for by the Crown. However, it is plain from my reasons that this was just one of the considerations bearing on the construction of the provision. At [49], I stated:
"In conclusion, it has been seen that as a matter of legal principle the words in deeming provisions, such as the one here, may create a rebuttable provision and the test of whether that is the meaning depends on the statutory purpose. Having regard to the fact that a rebuttable presumption is entirely consistent with the statutory purpose, the text of the section and the statute as a whole, and that to construe the words in this way avoids unjust and unreasonable consequences that would result if the presumption was conclusive, I conclude that the words should be construed as providing a rebuttable presumption."
28 Having said that, the breadth of the net cast by s 110A is surprising on any view, as is a lack of any connection between some of the activities, involving trifling handling of a registrable firearm, and a commercial context. There is force in this point alone.
29 The argument has not persuaded me that I was wrong and the presumption is not rebuttable. For these reasons and the reasons in Taylor, I hold that the presumption is rebuttable.
Postscript
30 The reasons for this ruling were delivered during the trial. In summing up, Wood J directed the jury in accordance with the ruling. The memorandum to the jury was in the following terms:
5 No 57/2022
"MEMORANDUM TO THE JURY
STATE OF TASMANIA v LACHLAN TAYLOR1 General
1.1 The accused is deemed to be innocent unless and until the jury is satisfied beyond reasonable doubt as to guilt.
1.2 The Crown (State of Tasmania) has the burden of proving the guilt of the accused beyond reasonable doubt.
2 Unlawful Trafficking in Firearms
2.1 To find the accused guilty of unlawful trafficking in firearms, the jury must be satisfied beyond reasonable doubt that between on or about the 3 January 2020 and the 8 October 2020 the accused did, without lawful excuse, traffic in firearms, being a .177 calibre air rifle and a .22 calibre homemade single shot pistol.
2.2 Trafficking means to 'deal' in or 'trade' in. Trafficking is the process of movement from the manufacturer or source to the consumer for commercial gain. Everyone who knowingly participates in the chain of distribution is trafficking. If the accused was the purchaser of the firearms and he intended to keep them then he was not trafficking.
2.3 If the jury is satisfied beyond reasonable doubt that: (i) the two firearms were registrable firearms; and
(ii) the two firearms were not registered or, the accused was not the registrant of the firearms; and
(iii) on one or more occasions, the accused carried out one or more of particular activities namely that he:
• received the firearms from any other person; • conveyed the firearms from one place to another
then the accused is taken to have trafficked in firearms without lawful excuse unless the accused, on the balance of probabilities, proves he was not trafficking. For the meaning of trafficking see above at 2.2.
3 'Registrable firearms'
3.1 Firearms are registerable if they are: • 'firearms' as defined in the Firearms Act. This definition includes a gun or other weapon that is capable of propelling anything wholly or partly by means of an explosive or an air rifle. 'Air rifle' is defined as a firearm that propels, or is capable of propelling, a projectile by means of compressed gas or air; • and, if the firearms are not one of the following: an imitation firearm; or a firearm that is registered in another State or a Territory and that is possessed and used in accordance with a corresponding licence; or a firearm that is imported and acquired by a licensed firearms dealer so long as the firearm is registered within 7 days of the dealer receiving it."
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