Tasmania v Taylor
[2021] TASSC 39
•25 August 2021
[2021] TASSC 39
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Taylor [2021] TASSC 39
PARTIES: STATE OF TASMANIA
v
TAYLOR, Lachlan
FILE NO: 981/2020
DELIVERED ON: 25 August 2021
DELIVERED AT: Hobart
HEARING DATE/S: 21 July, 6 August, 18 August 2021
JUDGMENT OF: Wood J
CATCHWORDS:
Firearms – Offences – Firearms Act 1996 (Tas) – Trafficking in firearms contrary to s 110A – Section 110A provides for a rebuttable presumption as to trafficking.
Firearms Act1996 (Tas), s 110A.
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203; The Queen v Billick (1984) 36 SASR 321; Director of Public Prosecutions (Acting) v Eather [2016] TASCCA 2, considered
Aust Dig Firearms [1043]
REPRESENTATION:
Counsel:
Defendant: M Sheehy
The State: A Chisholm
Solicitors:
Defendant: Tasmanian Legal Aid
The State: Director of Public Prosecutions
Judgment Number: [2021] TASSC 39
Number of paragraphs: 51
Serial No 39/2021
File No 981/2020
STATE OF TASMANIA v LACHLAN TAYLOR
REASONS FOR JUDGMENT WOOD J
25 August 2021
The defendant has pleaded guilty and is due for sentence in relation to a number of summary and related indictable offences, including an indictable offence of unlawful trafficking in firearms contrary to s 110A(1) of the Firearms Act 1996. A question of statutory interpretation arises as to whether the defendant has been correctly charged and can be sentenced for trafficking in firearms.
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.
The only further information advanced by the State is that provided by the defendant during an interview with police that same day.
The uncontroverted facts based on his admissions are as follows. 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.
Giving rise to other charges, during the same search, police found firearm parts, and a quantity of ammunition.
Section 110A creates the indictable offence of trafficking in firearms:
"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) .
(3)Without restricting the generality of the expression "possession", a person is taken to be in possession of a firearm for the purposes of this section so long as it is on any premises owned or occupied by the person, unless the person proves that he or she had no knowledge of the firearm being on those premises.
(4) In this section –
premises includes –
(a) an area of land, whether built on or enclosed; and
(b) a building or a part of a building, whether permanent or temporary; and
(c) a structure or a part of a structure, whether permanent or temporary; and
(d) a vehicle;
registrable firearms means firearms that, by virtue of section 74(1) , a person must not sell, acquire, possess or use unless they are registered;
vehicle means anything capable of transporting people, objects or materials by air, road, rail or water, regardless of how the thing is moved or propelled."
Having regard to these facts presented by the State, I have raised a question about the meaning of the section and in particular the effect of the words "is taken to traffic in firearms without lawful excuse" in subs (2), specifically whether these words are conclusive in their effect, or whether they provide a rebuttable presumption.
The word "traffic" has a well-established ordinary meaning. The Macquarie Dictionary definition of the noun "traffic" includes: "trade; buying and selling; commercial dealings"; "trade or dealing in some commodity or thing, often trade of an illicit kind". It further defines the verb "trafficking" as: "to carry on traffic, trade, or commercial dealings"; "to carry on dealings of an illicit or improper kind"; "to deal or trade in": Macquarie Dictionary, 8th ed (2020) at 1616-1617.
The meaning of "traffic" in the Misuse of Drugs Act 2001 was considered in Roland v Tasmania [2016] TASCCA 20 at 12. The Court of Criminal Appeal approved the trial judge's explanation of trafficking under the Misuse of Drugs Act and also the ordinary meaning of "trafficking". The trial judge had stated:
"The definition is an inclusive definition. An inclusive definition extends, enlarges or amplifies the ordinary meaning of a word; see Pearce & Geddes, Statutory Interpretation in Australia, 8th ed at par 6.60. This definition extends the ordinary and natural meaning of the word 'traffic' to include conduct which may not otherwise fall within that meaning. It reveals a Parliamentary intention to add to the ordinary meaning of the word, the effect of which is to make the crime of 'trafficking' easier to prove. However, it does not displace the word's ordinary meaning. The word 'trafficking' has an ordinary meaning which is to deal in or trade in. In its ordinary meaning, trafficking in a drug is the process by which it runs from the manufacturer to the ultimate consumer. It is a process of movement for commercial gain. Commonly there is a chain of distribution stretching from the manufacturer to the ultimate retail sale to a consumer. Although there may be many steps in that process there may be only a few. Everyone who knowingly plays any part in the process whereby the product gets from one to the next is trafficking".
The meaning of "trafficking" at common law involves participation in the chain of distribution. The ultimate consumer, at the end of the line, is not regarded as engaging in trafficking. Certainly, I have never known the small time purchaser for personal use to be treated by a prosecuting authority in this State or the courts as traffickers. They are the end of the chain not a link in the chain of distribution.
If the ordinary meaning of trafficking were to apply then, on the uncontroverted facts presented by the State, the defendant would be not guilty.
It can be seen that s 110A(2) does not substitute or create a different meaning of trafficking, in the sense of a statutory fiction. Rather, it acknowledges or references the ordinary meaning and then provides for certain conduct to be "taken to be" trafficking. Certain "activities" are taken to be trafficking in firearms without lawful excuse, notwithstanding that the activity need not amount to trafficking within the ordinary meaning. It can be seen that the list of "activities" is particularly broad and includes activities such as receiving (involving taking possession) or conveying firearms.
Here, the State says the defendant falls within subs (2), relying upon pars (ii) "receives" and (iv) "conveys" the firearms from one place to another and also, paragraph (v), "possession" or "conceals". On the facts of this case, it would appear that the defendant's conduct in possessing the two firearms and concealing one of them would not fall within paragraph (v) as he did not do so for, or in connection with an activity referred to in subpars (i),(ii), (iii) or (iv).
The words "is to be taken to be" are a reasonably common drafting device in modern statutes creating a form of deeming provision: Western Australia v Olive [2011] WASCA 25, 57 MVR 269, Buss JA at [122]-[124]. See also Pearce, Statutory Interpretation in Australia, 9th ed (2019), at 4.57. In construing the words it is useful to consider the approach taken by the courts when considering similar provisions. Buss JA referred to a number of authorities at [122]: Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; 122 CLR 49, 65‑67 (Windeyer J); The Council of the Shire of Redland v Stradbroke Rutile Pty Ltd [1974] HCA 4; 133 CLR 641, 655 (Gibbs J); Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203, 207.
In Macquarie Bank Ltd v Fociri Pty Ltd (above) the New South Wales Court of Appeal considered a deeming provision in the Companies (New South Wales) Code. Gleeson CJ at 207-208 made some general observations about the task of construing deeming provisions. It was noted that commonly, there may arise a question of construction which turns upon a view concerning the statutory purpose for which it has been used. It was said:
"Such a question may turn, for example, upon whether the legislature is intending to create a statutory fiction or whether, on the other hand, it is merely making a provision for the removal of doubt which might otherwise exist: see, eg Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696 per Griffith CJ."
Gleeson CJ went on to note, relevantly for this case that:
"There is another issue that sometimes arises where Parliament has enacted a deeming provision. In some cases, a court may conclude, as a matter of construction, that the consequence which is deemed to follow is only in the nature of a rebuttable presumption; a certain state of affairs will be presumed unless and until the contrary is proved: see eg. Consolidated School District of St Leon Village No 1425 v Ronceray (1960) 23 DLR (sd) 32; Credit foncier Franco-Canadien v Bennett (1963) 43 WWR 545."
I add that in relation to such a rebuttable presumption which presumes some matter against an accused person unless and until the contrary is proved, the burden on the accused to prove the contrary is on the balance of probabilities: R v Carr-Briant [1943] KB 607, 29 CAR 76; R v Porter [1933] 55 CLR 182.
The line of Canadian authority referred to by Gleeson CJ endorses the proposition that the test for determining whether a deeming provision is a rebuttable presumption involves consideration of the statutory purpose. In St Leon Village Consolidated SD No 1425 v Ronceray, the Manitoba Court of Appeal stated at [21]:
"I think a consideration of these cases indicates that in deciding whether or not the use of the words "deem" or "deemed" establishes a conclusive or a rebuttable presumption depends largely upon the context in which they are used, always bearing in mind the purpose to be served by the statute and the necessity of ensuring that such purpose is served"
In Credit Foncier Franco-Canadien v Bennett, the British Columbia Court of Appeal held that the word 'deemed' is capable of meaning 'rebuttably presumed', that is, presumed until the contrary is proven. The Court referred to the test in St Leon Village Consolidated S.D. No 1425 v Ronceray in determining whether the deeming provision was a conclusive or rebuttable presumption.
The South Australian case of R v Billick (1984) 36 SASR 321 was concerned with a deeming provision in the Narcotic and Psychotropic Drugs Act 1934 -1978 arising from the possession of a prescribed amount and the purpose of "trading". It was expressed in terms that it was rebuttable, but consideration was given to construing the breadth of the provision. The judgment of King CJ referred to general considerations that apply to the task of construing deeming provisions in penal statutes:
"The word 'deemed' is used in statutes in more than one sense. In the sub-section under consideration it is used to create a rebuttable statutory presumption of the existence of a fact irrespective of the existence of that fact in reality. The result may be a statutory fiction. In construing a provision of that kind, 'it is very important to consider the purpose for which the statutory fiction is introduced': Muller v Dalgety & Co Ltd 7, per Griffith CJ at p 696; In re Coal Economising Gas Company (Gover's Case) 8; Beale on Cardinal Rules of Statutory Interpretation, 3rd ed p 479. Where, as here, the fact which is deemed to exist, is a criminal state of mind, it is particularly necessary, in my view, to ascertain the purpose for which the presumption is created, and to construe the statutory provision in a way which confines the operation of the presumption, to the attainment of that purpose."
Later, in a similar vein, King CJ stated "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.
This line of authority highlights that whether or not a provision, which on its face appears to be deeming, should be construed as creating a rebuttable presumption is one of construction and examination of the intention of the legislature. Whether s 110A(2) creates a rebuttable presumption depends on the proper construction of the statute and the relevant legislative intent and purpose for which the provision was enacted. See s 8A of the Acts Interpretation Act 1931.
The State argues that the deeming section applies in this case and it is conclusive in its effect. There is particular reliance on the objectives of the legislation to criminalise the traffic of firearms. The deeming provision is intended to target behaviour that is involved in all aspects of the illegal trade of firearms, whether it be buying, transporting or selling illegal firearms. It was argued that ultimately, the charge of trafficking is intended to capture the illegal movement of firearms to circumvent authorities and their regulation and registration. The defence argues that the provision creates a rebuttable presumption. It was argued that the breadth of the activities "taken to be" trafficking support the construction that it is a rebuttable presumption.
In this task of statutory construction I am guided by well-established principle. I will have regard to the words of the section and the terms of the statute as a whole and see if there are any indications to be found there, I will have regard to matters of context, including extrinsic materials which may be revealing about the purpose of the Act, and also, the consequences of the competing interpretations.
As noted, the effect of s 110A(2) is that a person is taken to have trafficked 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 activities set out in (i)–(v). It is worth noting that the deeming effect of the provision embraces not only trafficking but also "without lawful excuse".
The list of activities refers to conduct that may be committed on just one occasion and which includes very limited conduct such as conveying or receiving. Plainly, the section is concerned to say it is not necessary that the conduct be extensive, it can be one such activity of a confined nature on one occasion. Whether the section is intended to mean that each of these activities is prima facie trafficking subject to a defendant establishing that he or she was not engaged in trafficking or whether the section was meant to be conclusive in its effect is the question at hand.
It is noted that the deeming section appears not in the interpretation section of the Act, s 3, where terms are defined but in the body of the Act, in Part 7 in which offences are set out as well as related provisions such as provisions to facilitate the prosecution or proof of the charge. This suggests that the provision is facilitative rather than a provision which is definitive. Of course, it is acknowledged that some facilitative provisions are conclusive in their effect. It can be seen that the Act employs other devices to facilitate proof: s 114, proof of certain facts is evidence of intention, s 158, certificate of certain specified matters as evidence.
In s 110A(3) of the Firearms Act, there is a deeming provision with respect to possession and an express reference to it being rebuttable with the use of terms "unless the person proves that he or she had no knowledge of the firearm being on those premises." Here, the meaning of possession reflects the common law requirement of knowledge of the presence of the item in question. It might be argued for the State that this provision can be treated as indicative of the approach that Parliament would take if it was intended that the presumption in subs (2) be rebuttable. However, I do not regard the use of express terms here as telling. There are special factors regarding the expression "possession" arising from its treatment under the Act.
The word "possession" is defined in the interpretation section of the Act in inclusive terms: "possession" includes custody or control. There is also a comprehensive general deeming provision dedicated to "possession" in s 3B that has some complexity to it. The deeming provision prevails unless the court is satisfied that "the person did not know, and could not reasonably be expected to have known, that the firearm was in or on the premises, structure, vehicle, vessel, aircraft or place". The second of the two essential matters the court needs to be satisfied of, departs from the common law meaning of possession which requires actual knowledge. So, it can be seen that the pathway to the meaning of "possession" is complex: an inclusive definition of possession that embraces the common law; a general provision which is a rebuttable deeming provision which provides an exception which does not reflect the common law and, a specific deeming provision in s 110A(3) limited to trafficking which does reflect the common law. There are plainly special reasons why express terms were needed in relation to the term "possession" in subs (3).
An obvious feature of s 110A is that it criminalises trafficking in firearms. Subsection (1) provides that the offence is indictable and the person punishable under the Criminal Code. Consequently, the maximum penalty that may be imposed for this offence is 21 years: Criminal Code s 389(3). The Firearms Act creates a few other indictable offences: aggravated assault involving carrying out an assault using a firearm, threatening to use a firearm or when carrying a firearm, s 115; conspiracy to commit firearms offences in other jurisdictions, s 120A; possess or use a prohibited firearm; s 9(1A), and dealing in firearms without a firearms dealer licence, s 11. Other offences under the Act, are summary but may attract substantive penalties, including terms of imprisonment with a maximum of two years, for example, recklessly discharge a firearm, s 113; and carrying a firearm with criminal intent, s 114. It can be inferred that Parliament regarded these offences as serious but were not regarded as falling into the same heinous category as the indictable class of offending.
A relevant consideration in determining the meaning of the section is the consequences of each of the competing interpretations. In essence, this consideration may be revealing about the statutory purpose. If one of the interpretations leads to a result that is unreasonable or unjust then it may be concluded that the legislature would not have intended such an operation: Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Mason and Wilson JJ 320-1. See also Pearce, Statutory Interpretation in Australia, 9th ed (2019), at 2.57.
If the effect of the deeming provision is rebuttable, it casts the net wide and the provision makes it clear that limited conduct on one occasion of a certain kind is prima facie trafficking. However, the accused would be able to establish that he or she was not in fact engaged in trafficking. If the effect of the deeming provision is conclusive, then not only is the net cast wide but there is no escape. This would have some surprising results. In my view, Mr Taylor's matter is such a case, but it is easy to imagine others where the results would be stark. It would mean anyone who receives registrable firearms or conveys them, from one place to another, when they are not the registrant, or the firearms are unregistered is trafficking regardless of the circumstances and their purpose. This construction may operate in a harsh and draconian way. Some examples serve to illustrate this.
Such an interpretation would mean a person who transports firearms that are not registered, regardless of the reason, has committed the crime of trafficking. The person may have been merely assisting another, the owner and registrant of the firearms, by transporting them to a property for the purpose of safekeeping. Anyone who takes possession of firearms from another person, by the act of receiving them, commits an offence of trafficking. A teacher who takes firearms from a student, is trafficking in firearms without lawful excuse. If the teacher was to convey them to a police station, they are again trafficking in firearms, assuming, the firearms were registrable and the teacher was not the registrant of them. This construction may result in consequences that are not only harsh, but unreasonable and unjust.
It might be thought only sensible that the activity listed in par (2) should be regarded as coloured by the context in which it appears, trafficking in firearms. Yet, given the terms of the section this can only happen if the presumption is rebuttable.
The statutory purpose is evident from the Act. In the decision of Tasmania v Mansell [2020] TASSC 7, Blow CJ discussed the purpose of the Act at [16]:
"It is clear that the purpose of the Act was to promote public safety by restricting the availability of firearms. Its long title is, "An Act to provide for the regulation, registration and control of firearms". It commences with a preamble that refers to "the tragic events which occurred at Port Arthur on 28 April 1996".
Section 110A was introduced by the Firearms Amendment Act 2007. Before that amendment, there was no such crime of unlawful trafficking in firearms. In the second reading speech relating to the bill that introduced these amendments, the Minister for Police and Emergency Management, Mr Llewellyn stated:
"Mr Speaker, in line with the National Firearm Trafficking Policy Agreement this bill provides for indictable offences (research) for unlawfully trafficking in firearms, which will include conspiring to commit firearms offences in a foreign jurisdiction. The Government takes a serious view of these offences, and this is reflected in the substantial penalties for these offences. This will provide a deterrent effect for those who may contemplate this unlawful activity." (House of Assembly, 6 June 2007.)
On the subject matter of the National Policy Agreement, I note that the record of resolutions includes a resolution that all jurisdictions make further provision for the control of the illegal trade in firearms, by including (xiv): "Introducing laws designed to restrict the illegal supply of firearms." The Action Plan mentions an indictable crime of trafficking but in the following terms: "35. All jurisdictions agree to provide that a person who carries on the business of unlawfully trafficking in an illegal firearm is guilty of an offence." (emphasis added). Other resolutions include the establishment of an offence of illegally selling firearms on multiple occasions (resolution 32) and a wide definition of "sell" (resolution 25). A survey of other comparable legislation reveals a lack of uniformity and in fact, there are almost as many different approaches to this Agreement as there are jurisdictions. The relevance of these matters is to point out that the indictable offence of trafficking in firearms in the terms set out in the Tasmanian legislation is not required by the Agreement, but rather, is one approach taken to the Agreement and there is likely to be no guidance from consideration of case-law in other jurisdictions.
The purpose of community safety and deterring trafficking in firearms is undeniable. The State argues that a conclusive presumption would give effect to the statutory purpose. I am not convinced that the question of which interpretation best gives effect to the statutory purpose is resolved on the simple basis of which interpretation is the most draconian.
The section is designed to designate a category of conduct which is to be treated as serious, indictable, warranting trial by jury and attracting the maximum of 21 years' imprisonment. If the presumption is irrebuttable and low level offending is captured by this crime and amounts to trafficking regardless of the actual purpose, it has the potential to diminish the seriousness of the crime in the eyes of the community and undermine the objective of the legislation.
A rebuttable presumption would not detract from the legislative purpose or intent. In fact, it would promote the purpose, but just be more nuanced in its application. The net would still be cast wide and it would mean that an accused person would be considered to be trafficking if engaged in one of the broad list of activities, unless they could demonstrate that they were not trafficking. It is just as effective in sending the message that any involvement in trafficking, whether it be limited or passive, will be treated as trafficking.
It is no answer to concerns about unfair consequences that in such cases the prosecution can exercise its discretion to charge with a lesser offence. The correct approach in construing the section is to presume that the legislation was not intended to act unfairly in the first place and that it would not have been the legislative intention that unfairness resulting from the operation of the statute could be addressed by the exercise of prosecutorial discretion. Additionally, it is contrary to fundamental objectives of law-makers to promote confidence in the law and certainty, that the answer to injustice would be prosecutorial discretion.
Conduct which involves the handling of registrable firearms, which are either unregistered or where the handler is not the registrant, amount to summary offences. It is an offence to sell, acquire or use a firearm that is not registered: s 74. This is not a minor offence; the offence provision provides for a maximum penalty of 2 years' imprisonment. There are other offences such as: possession or use of firearms, s 9, and, acquiring firearms, s 10. The court may impose up to 2 years' imprisonment for these offences too. It is worth noting that here, the defendant could have been charged with two offences of acquiring a firearm that is not registered contrary to s 74, two offences of possession of firearms contrary to s 9, one offence of use a firearm, contrary to s 9 and, likely, there are other provisions that could apply.
According to the Crown's interpretation of s 110A, every person who sells or acquires registrable firearms that are not registered has committed the crime of trafficking in firearms as well as an offence contrary to s 74. Nothing more is required for trafficking except that, at most, it relates to "firearms" plural (noting there are examples of trafficking in a single firearm pressed in this Court, see State of Tasmania v Todd Walker (31 July 2018)). This consequence seems to conflict with the purpose of criminalising certain conduct and treating it as more heinous.
A relevant consideration is that s 110A is a penal provision and there is a rule of statutory construction that if the section is ambiguous it should be construed favourably to accused persons. While this rule points to a rebuttable presumption it is accepted that it is a weak sign, and its effect is limited to cases where the text and context do not provide the answer as to the statutory choice. In an oft-quoted passage, Gibbs J in Beckwith v The Queen (1976) 135 CLR 569 at 576 stated:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort".
During submissions, Crown Counsel helpfully referred me to the case of Director of Public Prosecutions (Acting) v Eather [2016] TASCCA 2 in which the Court of Criminal Appeal considered a provision in the Living Marine Resources Management Act 1995. The provision created an indictable offence of trafficking in fish without lawful excuse. It used the same deeming device and the wording "a person is taken to traffic in fish without lawful excuse" and like s 110A(2) set out conduct that would be taken to amount to trafficking. It is interesting that the amendment introducing this crime was also in 2007. Clearly, the legislative provision is analogous to s 110A.
In the principal judgment Blow CJ, with whom Porter and Pearce JJ agreed, gave consideration to the second reading speech and the purpose of the Act and the amending legislation. The court was hearing an appeal from a ruling of the learned trial judge upholding a no case to answer submission. The ruling was that the section was satisfied only if the fish in question had been "taken unlawfully or possessed unlawfully" by someone other than the accused. This ruling gave rise to a point regarding the construction of this section. There was an argument that otherwise the consequences would be absurd. It can be seen that the only question was whether it was correct for the trial judge to introduce qualifying words to avoid an absurd consequence.
Blow CJ noted that the interpretation adopted by the trial judge would also have absurd consequences. His Honour noted that the approach taken by the trial judge involved departing from the ordinary meaning of the text: [25]. His Honour drew attention to the fact that there was no way of interpreting the section that avoids the situation whereby "trivial non-commercial misconduct" can amount to the crime of trafficking in fish. His Honour concluded that it is an "unavoidable consequence" of Parliament having chosen to define "traffic" without any reference to some belief or intention as to the future sale of the fish.
Critical for our purposes, the meaning of the words "a person is taken to traffic" was not considered. There was no argument presented before the Court of Criminal Appeal that those deeming words created a rebuttable presumption. It is perhaps unsurprising that it was not argued as it would have been unlikely to assist the respondent; the Crown Case was that the respondent possessed, processed, sold and delivered fish to other persons involving 624.95 kg of rock lobster. His Honour was considering a choice regarding the meaning of the section that was unrelated to the meaning of the deeming words. While the legislation in Eather is analogous, the reasoning does not touch on the interpretation issue that arises here. There is no question of importing words here, rather, the question is the meaning of a phrase which is capable of two possible meanings.
The State argued that the reasoning in Eather is binding and compels the conclusion that the words do not create a rebuttable presumption. However, the reasoning in Eather cannot be binding or even, persuasive on a question which was not argued, did not arise, was not addressed in the reasons and when the reasoning, read in context of the issue on that appeal, leaves the question untouched.
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.
As previously noted, 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.
Having reached this conclusion, the plea of guilty on the charge of trafficking in firearms should be vacated and a plea of not guilty entered. I will then hear from the parties as to the proper course to be taken with regard to the disposition of the matter.
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