Turner v Keegan - [2001] WASCA 9

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TURNER -v- KEEGAN [2001] WASCA 9

CORAM: MILLER J

HEARD: 12 JANUARY 2001

DELIVERED : 31 JANUARY 2001

FILE NO/S: SJA 1114 of 2000

BETWEEN: STEVEN PAUL TURNER
Appellant
AND
TED THOMAS KEEGAN
Respondent

Catchwords:

Criminal law - Offence against Firearms Act 1973, s 23(9)(d)(ii) - Whether regulations prescribing requirements as to security for ammunition related to ammunition "of a prescribed kind" - Whether all ammunition could properly be categorised as "ammunition of a prescribed kind"

Legislation:

Firearms Act 1973, s 8, s 11B, s 23(9)(d)(i), s 23(9)(d)(ii), s 34(2)

Firearms Amendment Act 1996
Firearms Regulations 1974, reg 11A

Interpretation Act 1984, s 5

Result:

Appeal allowed
Decision of learned Magistrate set aside and conviction recorded against respondent
Matter remitted to learned Magistrate for determination of penalty

Representation:

Counsel:

Appellant: Mr R M Mitchell
Respondent: Mr R K Williamson

Solicitors:

Appellant: State Crown Solicitor
Respondent: Williamson & Co

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

MILLER J: The respondent was charged in the Court of Petty Sessions, Fremantle that on 19 October 1999 at White Gum Valley he failed to keep four rounds of ammunition secured separately from a .308 firearm, serial number 3D387, contrary to the provisions of s 23(9)(d)(ii) of the Firearms Act 1973 ("the Act"). In its original form the complaint appears to have alleged a breach of reg 11A of the Firearms Regulations 1974 ("the Regulations") but amendments were apparently made to the complaint on 12 January 2000 to reflect an offence against the provisions of the Act rather than the Regulations. In the end, nothing turns on this, as no point is taken that the complaint was in any way irregular, it being at all material times understood that the offence alleged was created by the provisions of s 23(9)(d)(ii) of the Act when read in conjunction with the provisions of reg 11A(8) of the Regulations.
The respondent pleaded not guilty to the charge and the matter was heard in the Court of Petty Sessions, Fremantle on 12 June 2000. The learned Magistrate then reserved his decision, which was delivered on 19 June 2000, when the charge was dismissed. The essential reasoning of the learned Magistrate which led to the dismissal of the charge was that an element of the offence charged had not been proven, namely, that the ammunition to which the charge referred was not ammunition "of a prescribed kind" as required by the provisions of s 23(9)(d)(ii).
On 17 July 2000 Owen J granted to the appellant leave to appeal the decision of the learned Magistrate. The grounds of appeal (amended at the hearing) contend that the learned Magistrate erred in law in dismissing the complaint for the following reasons:
"(a)[in] finding that the firearm and ammunition which were the subject of the complaint were not 'a firearm or ammunition of a prescribed kind' for the purpose of section 23(9)(d)(ii) of the Firearms Act 1973 (the Act); and
(b)[in] failing to find that -
(i)regulation 11A(1) of the Firearms Regulations 1974 (the Regulations) prescribes 'firearms or ammunition of any kind' as firearms or ammunition of a prescribed kind for the purpose of section 23(9)(d)(ii) of the Act; and
(ii)by storing the firearm and ammunition which were the subject of the complaint other than as prescribed by regulation 11A(1) and (8) of the Regulations, the Respondent failed to ensure that prescribed requirements as to security specified in relation to that firearm and ammunition were observed."
Section 23(9) of the Act was introduced into the Act by the Firearms Amendment Act 1996. The Amendment Act made significant amendments to the Act in the wake of meetings of the Australian Police Ministers' Council relating to national uniform firearm laws. These meetings were consequential upon tragic events that had occurred in Port Arthur, Tasmania during the 1996 year. In introducing the Amendment Bill in the Legislative Assembly the Minister for Police in his second reading speech on 26 September 1996 (Hansard, 26 September 1996, page 6301) said:
"The Firearms Act 1973, among other things, makes provision for the control and regulation of firearms and ammunition and for the licensing of persons possessing, using, dealing in, manufacturing and repairing firearms and ammunition. Since 1973 the Act has been subject to only minor amendment. The Bill makes provision for significant amendments to the Act. In addition to rectifying numerous existing anomalies and inadequacies, the Bill also incorporates resolutions emanating from the special meetings of the Australian Police Ministers' Council relating to national uniform firearm laws. Since first being appointed to the position of Minister for Police, I have publicly announced that it is my intention to make the Act a Statute that meets current community expectations in respect of the regulation and use of firearms and ammunition."
The specific purpose of s 23(9)(d) of the Act is to require proper storage facilities for firearms and/or ammunition. The section is in the following terms:
"(9)A person who, -
(a)…
(b)…
(c)…
(d)being responsible for the storage of any firearm or ammunition, fails -
(i)to provide and use adequate storage facilities to ensure its safety;
(ii)where prescribed requirements as to security are specified in relation to a firearm or ammunition of a prescribed kind, to ensure that those requirements are observed; or
(iii)otherwise, to safeguard it from loss or improper use;
… commits an offence."
That Act contains a regulation making power. Section 34(2) allows the Governor to make regulations for or with respect to a number of matters, including -
"(g)making provision for the safe custody and control of firearms and ammunition by persons entitled to possession and for restricting the amount of ammunition that may be possessed;"
Pursuant to this power the Firearms Amendment Regulations 1996 introduced into the Regulations a reg 11A which is (relevantly) in the following terms:
"Storage security requirements
11A (1) A person entitled to possess firearms or ammunition of any kind is to ensure that the firearms or ammunition are stored in accordance with this regulation.
(2)…
(3)…
(4)…
(5)…
(6)…
(7)…
(8)Ammunition is not to be stored in a cabinet or container in which a firearm is stored unless the ammunition is in another locked metal container in which no firearm is stored and which is securely affixed so as to prevent its removal from the cabinet or container."
The case against the respondent at trial was that on 19 October 2000 police had executed a search warrant at his premises in Whitegum Valley and during the course of a search had located a .308 rifle in a locked firearm cabinet in a shed at the rear of the respondent's premises. Four rounds of .308 ammunition were contained in the magazine of that rifle, the magazine being attached to the rifle. The evidence given by Constable S P Turner in relation to the matter was in the following terms:
"Upon opening the firearm cabinet, what did you find? --- I saw a 308 rifle. I then inspected the rifle. I found what was four rounds of ammunition in the magazine - that's in the rifle - and with Ted Thomas Keegan's assistance, it was unloaded. I then said to the defendant, 'Why are these in the rifle? They should be stored separately.' The defendant looked at the rifle and said, 'No particular reason.' "
At the hearing before the learned Magistrate it was submitted (inter alia) by counsel for the respondent that no offence had been committed against the provisions of s 23(9)(d)(ii) because there was no evidence that the firearm or ammunition of the respondent constituted either a firearm or ammunition of "a prescribed kind" in relation to which there were prescribed requirements as to security. It was this submission which the learned Magistrate upheld, his Worship's reasoning being as follows:
"The next question is whether the defendant has committed an offence under section 23(9)(d) placitum (ii). This depends upon the meaning of 'prescribed requirements as to security being satisfied in relation to a firearm or ammunition of a prescribed kind.' No clue is to be found in either the Act or the regulations as to the meaning of 'prescribed requirements' or 'firearm or ammunition of a prescribed kind'. The Interpretation Act 1984 provides a general description of the expression 'prescribed' as meaning by or under the written law in which the word occurs. It seems clear that the phrase 'or under' refers to regulations under the Act concerned.
It is clear to me that (9)(d) of section 23 is to be read as one provision relating to the duties of people 'responsible for the storage of any firearm or ammunition'. The fact that there is no expressed provision within the Act itself, imposing and describing this responsibility, strengthens the position that it is to be found in the regulations and those envisaged, in particular, by section 34(2)(g). Regulation 11A specifies certain prescribed requirements for 'firearms and ammunition' and casts upon a person entitled to possess 'firearms or ammunition of any kind' a duty to the store them in accordance with regulation 11A.
…
There appears, however, to be no similar reference to 'firearm or ammunition of a prescribed kind' contained in section 23(9)(d) placitum (ii) and it is likely that if the draftsman intended special kinds of prescribed firearms to be catered for in the regulations, then those regulations are yet to be created.
Had the draftsman intended the provisions of section 23(9)(d) placitum (ii) to refer to any firearm, one would have expected him to say so because the concept of any firearm is far wider than that of 'firearm or ammunition of a prescribed kind'. It is for those reasons that I am of a view that an element of the offence charged is missing, in that the firearms, which the defendant possessed and failed to store correctly under regulation 11A, were not firearms or ammunition of a prescribed kind, and for that reason I dismiss the complaint."
In the course of his reasoning the learned Magistrate was influenced by the fact that s 11B of the Act makes reference to "prescribed categories of firearms or ammunition" in the following way:
"11B. Genuine need required in some cases
(1)The regulations may provide that, for prescribed categories of firearms or ammunition, an approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person unless the Commissioner is satisfied that the person has a genuine need to acquire or possess a firearm or ammunition of that category."
His Worship's comment in relation to this provision was as follows:
"It is difficult to accept, in the absence of precise definition, that the meaning of prescribed categories of firearms or ammunition in 11B differs from 'firearm or ammunition of a prescribed kind' in regulation 23(9)(d) placitum (ii)."
The appellant's primary submission is that the learned Magistrate erred in failing to recognise that reg 11A(1) actually prescribes "firearms or ammunition of any kind" as firearms or ammunition "of a prescribed kind" within the meaning of s 23(9)(d)(ii) of the Act. The word "prescribed" in this context was submitted to mean merely "prescribed by the regulations" (Interpretation Act 1984, s 5). The submission was that there is nothing in the Act to prevent the prescription of all kinds of firearms and ammunition for the purposes of s 23(9)(d)(ii). Whilst a more limited group of firearms or ammunition may be prescribed for the purposes of that section, there is (it was argued) no reason why the Regulations must prescribe a limited group.
Counsel for the appellant submitted that to the extent that there is any doubt whether reg 11A makes a prescription for the purposes of s 23(9)(d)(ii), that doubt is dispelled when regard is had to extrinsic material. Reliance was placed upon the Minister's second reading speech of 26 September 1996 (Hansard, 26 September 1996, p6306, where reference was made to proposed Regulations and in particular to a proposed reg 11A. The Minister said that s 23(9)(d) when introduced into the Act would require a person responsible for the storage of a firearm and ammunition to store the firearm and ammunition in accordance with requirements prescribed in reg 11A, those requirements among other things providing the need for ammunition to be locked away in a separate locked metal container, securely affixed so as to prevent its easy removal.
Regulation 11A(1) when introduced into the Regulations required that a person entitled to possess firearms or ammunition of any kind was obliged to comply with the storage security requirements thereafter set out in the regulation. In my view nothing turns upon the distinction between the words "a person who is responsible for the storage of a firearm and ammunition" and "a person entitled to possess firearms or ammunition". As I have pointed out, the regulation‑making power is to make provision for the safe custody and control of firearms and ammunition "by persons entitled to possession" and it was pursuant to this power that reg 11A was introduced into the regulation. Section 23(9)(d) speaks of persons "responsible for the storage of any firearm or ammunition", but it will be observed that reg 11A only requires persons entitled to possess firearms or ammunition of any kind to "ensure that the firearms or ammunition are stored in accordance with this regulation". Whether a person entitled to possess the firearms or ammunition will always be responsible for the storage of a firearm or ammunition, it is unnecessary to decide. It is true that persons are entitled to possess firearms without being licensed (see exemptions in s 8 of the Act) but a person entitled to possess firearms or ammunition may also be a person responsible for the storage of the firearm or ammunition. To the extent that such a person is responsible for the storage of any firearm or ammunition he or she is bound by the provisions of s 23(9)(d) of the Act and by reg 11A.
Counsel for the appellant argued that s 11B of the Act has no relevance to the issue in this appeal. That section makes reference to "prescribed categories of firearms or ammunition" for which an approval or permit cannot be granted unless the Commissioner is satisfied that there is a genuine need. Counsel argued that the word "category" is more apt than the word "kind" to describe a "class or division" which is "less than the whole". The Concise Oxford Dictionary definition of "category" is "a class or division" whereas the same dictionary's definition of "kind" is "class, type, sort, variety". In my view little assistance is actually derived by reference to such definitions. However, it is apparent that the provisions of s 11B of the Act stand independently from those of s 23(9)(d) in that the former section is dealing with the circumstances in which a licence may issue for firearms or ammunition rather than the security arrangements for firearms or ammunition.
The submissions of the respondent contend that reg 11A does not specify requirements in relation to a firearm or ammunition "of a prescribed kind", pointing out that s 23(9)(d)(i) requires the provision and use of adequate storage facilities to ensure the safety of all firearms or ammunition, but s 23(9)(d)(ii) requires only compliance with prescribed requirements as to security which are specified in relation to a firearm or ammunition of a prescribed kind. The argument is that unless firearms or ammunition of a prescribed kind are something less than all firearms and/or ammunition, no good purpose can be served by s 23(9)(d)(i) and s 23(9)(d)(ii) standing together. Counsel for the respondent argued that if it was intended that all firearms and/or ammunition must be secured in the manner prescribed in reg 11A, there was no need for the addition of the words "of a prescribed kind" after the words "firearm or ammunition" in s 23(9)(d)(ii).
Counsel for the respondent had an extensive knowledge of the provisions of the Act and Regulations. He made reference to a number of provisions within the Act in support of the submission that a firearm or ammunition of a prescribed kind is something less than all firearms or ammunition, but in my view no other provision or provisions within the Act afford any real assistance in relation to the question at issue. That discrete question is whether, by the provisions of reg 11A, all firearms and/or ammunition were prescribed for the purposes of s 23(9)(d)(ii).
In my view it was open to the legislature to prescribe by reg 11A all firearms and/or ammunition in the possession of any persons entitled to possession thereof as firearms or ammunition "of a prescribed kind" within the meaning of s 23(9)(d)(ii). Regulation 11A therefore prescribes the requirements as to security required for firearms or ammunition of a prescribed kind within the meaning of s 23(9)(d)(ii) and does so in relation to persons responsible for the storage of firearms or ammunition just as much as it does in relation to persons entitled to possess firearms or ammunition, who are required by reg 11A(1) to ensure that those firearms or ammunition are stored in accordance with the Regulations. To the extent that there is any ambiguity in s 23(9)(d)(ii) I conclude from the second reading speech of the Minister for Police in the Assembly on 26 September 1996 that the clear intention of parliament was that all firearms and ammunition were to be stored in accordance with requirements prescribed in the Regulations then to be introduced in the form of reg 11A. Those Regulations were gazetted on 6 December 1996 which was the date upon which the Firearms Amendment Act 1996 commenced. The Minister's second reaching speech highlighted the concerns within Australia, and particularly within the Australian Police Minister's Council about firearm licensing control and security in Australia in the wake of the 1996 Port Arthur incident, and it is apparent that parliament desired the most stringent requirements for the storage of firearms and/or ammunition. It is therefore not surprising that by reg 11A firearms or ammunition "of any kind" were prescribed for the purposes of s 23(9)(d)(ii) of the Act. Although one might generally expect something of "a prescribed kind" to be less than the whole, there is no reason in law why the total of all firearms and/or ammunition cannot be prescribed as a "prescribed kind" of firearm or ammunition for the purposes of the section.
It follows that in my view the learned Magistrate erred in law in the conclusion he reached that the charge against the respondent had to fail because an element of it had not been proven. In my view the charge was proven and the respondent should have been convicted. He clearly failed to store ammunition in accordance with the provisions of reg 11A(8) which was an offence against the provisions of s 23(9)(d)(ii) of the Act. I would therefore allow the appeal; set aside the decision of the learned Magistrate dismissing the complaint; set aside the order of the learned Magistrate as to costs; direct a verdict of conviction in relation to the respondent on the charge in question and remit the matter to the learned Magistrate for determination of penalty.