Victoria Police v Lewis
[2021] VMC 13
•21 October 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT DANDENONG
CRIMINAL DIVISION
Case No. L11351952
| VICTORIA POLICE | Plaintiff |
| v | |
| AMANDA LEWIS | Defendant |
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MAGISTRATE: | G.R. Bryant |
WHERE HELD: | Dandenong Law Courts |
DATE OF HEARING: | 18 August 2021 |
DATE OF DECISION: | 21 October 2021 |
CASE MAY BE CITED AS: | Victoria Police v Lewis |
MEDIUM NEUTRAL CITATION: | [2021] VMC 013 |
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CRIMINAL LAW — Statutory interpretation — Accused charged with possession of unregistered Category E longarm — Whether polyvinyl chloride (“PVC”) device used to propel organic fruit or vegetable is a “firearm” pursuant to the Firearms Act 1996 — Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied; R v Sayers [2006] SADC 123 distinguished.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Prosecution | Leading Senior Constable Goldman | Victoria Police |
| For the Defendant | Ms Sikander | Victoria Legal Aid |
His Honour:
Ms Amanda Lewis (“the accused”) is charged with two counts of possessing an unregistered Category E longarm, contrary to section 6(E) of the Firearms Act 1996 (“the Act”), and two additional counts of possessing a firearm whilst a prohibited person, contrary to section 5 (1) of the Act.
Background
On 31 December 2019, a search warrant was executed at 4 Ruben Street, Officer, in relation to the suspected offences of theft from a motor vehicle and obtaining property by deception. Following a search of the property by police, two polyvinyl chloride (“PVC”) pipe guns (“PVC devices”)[1] were located.
[1] The devices have variously been referred to as veggie cannons, spud guns, fruit cannons and lemon bazookas, given the controversy over the nomenclature the neutral term ‘PVC device’ will be used
The dishonesty offences against the accused were later withdrawn by police. The accused has pleaded not guilty to the remaining charges before the Court.
The devices were described by the police as two pieces of connected PVC pipe with one section of larger diameter being described as the combustion chamber, and the other of smaller diameter but longer in length being described as the barrel of the device. Photographs of both devices were tendered to the Court by consent.
The mechanism for operating the device was demonstrated by the police witness Senior Constable Sofkarova, in a video played to the Court. In short compass, a propellant — commonly, hairspray — is sprayed into the combustion chamber and the chamber is then sealed. A projectile — in this case, a potato[2] — is then placed in the barrel of the device closest to the combustion chamber. The propellant is then ignited by use of a sparking mechanism. In this instance, a sparkplug was inserted into the lid of the combustion chamber. Following an audible ‘bang’, the projectile was thus propelled in a forward motion towards an intended target. In the video, a cardboard target some five metres from the device was used. The cardboard showed clear signs of blunt force trauma as a result of being impacted by the potato.
[2] The projectile used was an uncooked potato, no other fruit or vegetable was used in the demonstration
Senior Constable Sofkarova also gave evidence — although not demonstrated in the tendered video — that at a range of 30 metres, a potato on two occasions hit the target and caused the frame holding the cardboard target to fall over, and on two other occasions, it tore through the target.
Issue for determination
At the outset of the hearing, it was agreed between the parties that the threshold issue is whether the PVC device falls within the definition of “firearm” as defined under s 3 of the Act.
The other issues raised by the defence concerning the legality and validity of the search warrant and the knowledge of the accused, would only fall for consideration in the event that the prosecution is able to succeed on the threshold issue.
Meaning of “firearm”
Section 3 of the Act provides for the definition of a “firearm”, as follows:
"firearm" means any device, whether or not assembled or in parts—
(a) which is designed or adapted, or is capable of being modified, to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; and
(b) whether or not operable or complete or temporarily or permanently inoperable or incomplete—
and which is not—
(c) an industrial tool powered by cartridges containing gunpowder or compressed air or other gases which is designed and intended for use for fixing fasteners or plugs or for similar purposes; or
(d) a captive bolt humane killer; or
(e) a spear gun designed for underwater use; or
(f) a device designed for the discharge of signal flares; or
* * * * *
(h) a device commonly known as a kiln gun or ringblaster, designed specifically for knocking out or down solid material in kilns, furnaces or cement silos; or
(i) a device commonly known as a line thrower designed for establishing lines between structures or natural features and powered by compressed air to other compressed gases and used for rescue purposes, rescue training or rescue demonstration; or
(j) a device of a prescribed class;
The definition contains two key elements for any device to fit the definition of a firearm, namely:
(a) It must be designed or adapted to operate by the expansion of gases, produced in the device by the ignition of strongly combustible materials or compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means.
(b) That the device is designed to discharge “shot or a bullet or other missile”.
The central issue for determination in this case is whether organic objects such as a potato or lemon fit the definition of “other missile”.[3]
[3]No other fruit or vegetables were proposed by the prosecution in this case, and so the determination will be based solely on this specific item. As a matter of common sense however, one can see that a small pineapple inserted in the device could cause greater harm, depending on which end was inserted first. The aerodynamics involved in firing such a piece of fruit would, however, be problematic.
Defence have also sought to argue that the device does not fit the first limb of the definition, given that the combustible material was not stored in a pressurised container or produced by mechanical means.
Prosecution case
The prosecution argue that the term “other missile” should as a matter of statutory construction, be given their ordinary and natural meaning, so as to include objects such as tennis balls, oranges and potatoes as “other missiles”.
The prosecution relied on the decision of R v Sayers, of the District Court of South Australia.[4] In that case, a device consisting of three components — a 1.2 metre length of 65 mm common sewerage or gutter down pipe, a plastic chamber of 100mm PVC pipe with a PVC screw and cap with a spark plug inserted in the cap and a cattle prod secured to the 65mm pipe, connected to the spark plug by electrodes — was located by police following their attendance at a residence on 16 January 2006.
[4][2006] SADC 123.
The device appears from the description provided to be very similar to the one seized from the accused in this instance, save for the existence of the cattle prod used in the South Australian variant.
The definition of firearm at the relevant time in South Australia is defined in section 5 of the Firearms Act 1999 (SA) as:
(a) A device designed to be carried by hand and to fire shots, bullets or other projectiles by means of burning propellant or by means of compressed air or other compressed gas….
Beazley J, in finding that the ordinary and natural meaning of the words lead to no ambiguity, said:
In my opinion the expression “other projectiles” ought be construed in its natural and ordinary meaning. In my opinion those words ought not be limited by means of the ejusdem generis rule to metallic items of a similar nature to “bullets” and “shots”. The ordinary and natural meaning of the words leads to no ambiguity. The items including tennis balls, oranges or potatoes fall within the words “other projectiles” ...[5]
[5]Ibid [36].
The prosecution argued that despite the difference in the wording between the South Australian Act referring to “other projectiles” and the Victorian Act referring to “other missiles”, the meaning is similar.
The prosecution relied on the two dictionary meanings of missile in support of this argument. First, the Collins English Dictionary definition of missile as “any object or weapon that is thrown at a target or shot from an engine, gun”. And secondly, that the Australian Concise Oxford Dictionary defines the word “missile” as “an object or weapon suitable for throwing at a target or from discharge from a machine”.
The prosecution submitted that the correct approach to statutory construction is to interpret legislation in a manner that is consistent with the language and purposes of all the provisions in the statute as expressed. Reliance was placed on the remarks of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority, such that:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole.[6]
[6](1998) 194 CLR 355, 381 (citations omitted).
The prosecution argued that the words “other missile” should not be interpreted by using the ejusdem generis rule of statutory interpretation by restricting that phrase to metallic items like shot or a bullet, but rather the term should extend to any everyday item, if such an item was capable of being fired from a firearm.
The prosecution sought to distinguish the approach taken by this Court in Police v Eliassides,[7] where in taking an ejusdem generis approach to the interpretation of the phrase “other missiles”, this Court found that a gel blaster gun was not a firearm.
[7][2020] VMC 15.
The point of distinction agitated by the prosecution was that the gel used by the weapon in Police v Eliassides was found to be non-lethal and generally unlikely to cause injury, even when fired at a person from close range. In contrast, the prosecution argued that a potato or a lemon are more likely to cause an injury if fired at a person.
The defence case
The defence argue that there is an ambiguity in the definition of “firearm” under the Act and accordingly the Court should adopt the approach taken by section 35 of the Interpretation of Legislation Act 1984, namely, to resolve an ambiguity in such a way that promotes the purpose or object of the underlying statute.
The defence argue that consistent with the approach taken in Police vEliassides, the ejusdem generis rule ought to apply in interpreting the phrase “shot or bullet or other missile”
In adopting this approach, the defence contend that in applying this rule of statutory construction to the ambiguity, the term ‘other missile’ will only include items being hard, metal or lead projections capable of significant harm when fired from a firearm where it has the potential to endanger the public safety and peace.
In the alternative, the defence argued that as the PVC device does not “store or produce gases” for the purposes of discharging a projectile or missile, it does not fit the definition of a firearm. This argument will only fall for consideration in the event that the prosecution is successful in arguing that potatoes or lemons are missiles for the purposed of the Act.
Analysis
A brief history of firearms
Since the dawn of time humanity has looked to arm itself with a variety of weapons or tools to inflict serious injury or death on enemies or rivals. From the humble stone or rock, to the advancement of technology leading to the production of swords and spears, humanities thirst for more productive and efficient means to kill or maim has continued apace.
It is widely believed that gun powder was invented in China during the ninth century, and that the first firearm produced was a fire lance invented in the 10th century in China. The mechanism used by the fire lance is curiously very similar to the method employed by the PVC device of today. The lance contained a barrel into which gunpowder and then a projectile were lodged. The lance was then rendered operable by placing a lighted object into a firing hole, which then discharged the projectile.
Over time weapons such as the musket and flintlock rifle were developed using a similar methodology, of muzzle loading a propellant (gun powder) then with a projectile, mostly typically a lead or allied metal object, into the barrel and igniting the powder by means of friction created by the striking of a small hammer on to a metal plate.
In time, the firearm was developed to use projectiles that contained the propellant and the bullet or shot in the one item. These items are what we commonly known as bullets or shotgun cartridges containing multiple shot or small ball bearing like objects.
Universally, these projectiles were manufactured from non-organic substances such as lead or metal, with the sole intended purpose of being discharged by a firearm to kill, seriously injure or cause damage to the intended target. There is no other function or purpose that can be prescribed to their manufacture.
The use of organic matter as a projectile
Throughout history there have been examples of organic matter, being used by weapons in warfare or conflict. In the pre-gunpowder era, in Roman times their armies would employ a giant slingshot known as a Trebuchet in siege situations. This forebearer of the modern-day artillery piece, used a combination of a timber frame with ropes and counterweights to sling objects at the enemy.
These projectiles would include rock or other forms of ballast, however, there have been documented cases of rotting corpses, and livestock being used as projectiles.[8] The use of human remains or diseased livestock to either transmit disease, or in the alternative to cause injury or death by being hit or struck was not uncommon in medieval times, and indeed has been mythologised in both literature and film.[9] In more contemporaneous times, the use of small children or dwarfs being shot from circus cannons was a big drawcard. [10]
[8] Hannibal is alleged to have used venomous snakes in clay jars that were catapulted from one ship to another in a war against King Eumenes of Pergamon in 184BC. In what has been claimed as the first instance of biological warfare, at the siege of Caffra in the Crimean 1348, the besieging Mongol army hurled plague infected cadavers into the besieged fortress thereby transmitting disease to the defenders, and ultimately resulting in victory
[9] See Monty Python and the Holy Grail a movie released 25 May 1975, where the advancing knights of the round table were forced into retreat by the French defenders hurling livestock at them
[10] This form of politically incorrect entertainment has now ceased, and the use of humans or livestock as projectiles has been made redundant
The distinction between the use non-organic and organic ammunition or projectiles, and their historical origins, whilst interesting as a utilitarian exercise, does provide a context and framework to better understand the development of the regulation of firearms and the projectiles used in such weapons, and the underlying public policy concerns that have driven the law in this area.
A brief history of the regulation of firearms
Unlike the Unites States of America, no citizen in Australia has the constitutional right to bear arms. The regulation of firearms has been a State power. Following the Port Arthur massacre in 1996, the Federal government managed to convince the States to agree to a non-binding National Firearms Agreement.[11] This agreement saw a ban on all semi-automatic rifles and handguns and pump action firearms.
[11]National Firearms Program Implementation Act 1996 (Cth), and National Firearms Program Implementation Act 1997 (Cth).
The focus in this legislative change has been on regulating the firearm itself not the projectile used by the firearm. This was as a result of a recognition that weapons capable of firing multiple bullets in quick succession are and would continue to be, a potential threat to public health and safety.
The Firearms Act 1996 does, however, create separate offences for the possession of ammunition, whether it be designed for use by a legal or non-legal firearm. Under s 124(1), a person must not possess cartridge ammunition unless licenced to do so.[12] Section 3(1) defines “cartridge ammunition” as ammunition having a bullet or other projectile, and a priming device fixed to or enclosed in a cartridge case which is composed wholly or partially of material other than paper.
[12]The maximum penalty is 40 penalty units.
This definition clearly envisages a projectile that is fixed to a priming device within a cartridge case. Nowhere in the Act is mention made of any organic projectile.
Analysis of the evidence
On the facts in this case, it is clear from the evidence from the police witness Leading Senior Constable Watson, a ballistics expert, that the PVC device, whilst capable of firing rock or metal, would not discharge the item at any appreciable distance and would do so at much lower velocity. It is not suggested for the purposes of this case that the PVC device was designed to discharge these types of projectiles.
Leading Senior Constable Watson opined that if the device was used with a potato or lemon that fitted snugly in the barrel of the device, the velocity of the potato or lemon would be in the vicinity of 130—140 metres per second.[13] He opined that at that velocity, a raw potato would be unlikely to cause penetrative injuries. The types of injuries that potentially could result depending on the distance from the target and the weight of the potato, would be bruising, fracture of bones and possible damage to blood vessels like arteries.
[13] The great fast bowler Jeff Thompson, was recorded as bowling at 160.6kph. Cricket balls are made from leather and would be considered organic objects
It was conceded in evidence that objects like potatoes could be hurled or throw at speeds commensurate with the PVC device, the distinguishing feature being that the potato ejected from the device was as a result of internal combustion and not human effort, notwithstanding the same result.
In contrast a .22 bullet fired from a firearm would travel at speeds of 330—340 metres per second, and would at that velocity, have the potential to cause serious injury or death by a penetrating wound.
The distinction to be drawn here is the purpose and method by which a projectile is made. Bullets and shot are typically metallic and manufactured for the purposes of being discharged by a firearm to kill, injure or maim. Their manufacture, distribution and sale are tightly controlled and regulated with good reason. The projectiles are inherently lethal when used with a firearm.
In contrast, the humble potato or lemon is not subject to any regulation, unless sold commercially in supermarkets, where certain requirements must be adhered to. Fruit and vegetables are not inherently lethal and are not manufactured, but instead grown by organic means for human consumption.
There are many objects both organic and non-organic, such as tennis balls or cricket balls, that if propelled at sufficient velocity can injure, but the question remains whether the inclusion of these objects would mean that any everyday item capable of being fired from a firearm would be caught by the term “other missile” as it is expressed in the Act.
Approach to statutory interpretation
As a matter of statutory interpretation, statutes are to be construed in accordance with their natural and ordinary meaning.[14] Where the words are clear by reference to the context and purpose of the legislation, a construction consistent with the ordinary meaning of those words is to be preferred.
[14]Australian Boot Trade Employees Federation v Whybrow & Co (1910) 11 CLR 311, 341.
In the event of ambiguity, that ought to be resolved in such a way that promotes the purpose or object of the underlying statute.[15]
[15]See Interpretation of Legislation Act 1984, s 35.
The purpose of the Firearms Act 1996 is as follows
(a) To give effect to the principle that the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace…[16]
[16]Firearms Act 1996, s 1.
The overriding purpose is therefore, to ensure public safety and peace. No mention is made in the purposes of the Act to the specific regulation of projectiles or ammunition.
In determining the extent to which the legislators had intended to include organic projectiles within the definition of ‘shot, bullet or other missile’ as a matter of public safety, it is important to take into account the type of firearm the prosecution argue the PVC device falls under.
The accused is charged with the possession of a Category E longarm, which is defined as follows:
"category E longarm" means any of the following—
(a) a machine gun that is a longarm;
(b) a tear gas gun or projector;
(c) a shotgun or rifle with a length of less than 75 centimetres measured parallel to the barrel;
(d) a mortar, bazooka, rocket propelled grenade or similar large calibre military firearm designed to fire an explosive or projectile or any other similar prescribed firearm;
(da) a cannon which is not a black powder ball firing cannon;
(e) any other firearm prescribed for the purposes of this category;[17]
[17] At present no weapon has been prescribed under this category
(f) any other firearm that is declared under section 3A(1) to be a category E longarm;
(g) any other firearm that is declared under section 3B(1)(b) to be a category E longarm;
It is evident from this definition that the weapons described are of an inherently lethal class, and almost exclusively would if used result in serious injury or death. There is no definition contained in the Act that approaches the characteristics of the PVC device. Leading Senior Constable Watson in his evidence conceded there was no legislative guidance for a device of this type, and so therefore turned to the industry definition of a canon, which is categorized by reference to the diameter of the nozzle the projectiles were fired from.
To assist in determining whether a PVC device ought to be construed as fitting within this particular category, it is instructive to look at the penalties applicable to the offence. In this case the penalty for a non-prohibited person possessing, carrying or using a Category E longarm is 600 penalty units or 7 years’ imprisonment.[18]
[18] See R v Basic [2017 ] VSCA 376
In Markarian v The Queen[19] the High Court said;
Careful attention to the maximum penalties will almost always be required, first because the legislature has legislated them; secondly because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all other relevant factors, a yardstick
[19] [2005]HCA 25; 228 CLR 357,372
It is doubtful, given the lethality of the weapons described in Category E and the significant penalties that apply, that homemade PCV devices, which are largely incapable of a delivering a lethal outcome, were envisaged as falling within this category of firearms.
Proper construction of section 3 of the Act
The ordinary and natural meaning approach to statutory interpretation is to be used where the words are clear by reference to the context and purpose of the legislation. In the circumstances of this case, I am unable to agree that there is sufficient clarity in the phrase ‘shot bullet or other missile’ to adopt this approach to statutory interpretation. I find that the wording used does give rise to an ambiguity requiring a different approach to statutory interpretation.
As a general rule, provisions which contain a group of specific words of a particular class or genus followed by a more general phrase fall for consideration using the ejusdem generis rule of statutory interpretation.
In Police v Elliassides, this Court observed:
Where a genus is created by the words ‘shot or bullet’ being hard, metal or lead projections capable of significant harm when fired from a firearm, this informs the interpretation of the general words following. Shot is of course a collection of lead pellets like those found in a shot gun cartridge, and bullet is the metal or lead projectile that discharges from the cartridge ammunition. To apply the rule then, having found a genus in the specific words, the general (‘or other missile’) encapsulates items of a similar kind to the preceding genus.
I agree with this approach, in that there is a clear ambiguity contained within the definition of a firearm and as such, an interpretation that promotes the purpose or object of the statute ought to be applied as a matter of statutory interpretation
There can be no argument that organic fruit and vegetables such as lemons and potatoes, do not fit within the preceding genus of a shot or bullet. First, they are not metal. Secondly, they were not manufactured to maim or kill, indeed they are grown both organically and non-organically as a food source. Thirdly, they do not possess any inherent lethality. Fourthly, unlike a shot or bullet, their manufacture, sale, possession and distribution is not specifically regulated by the Act. Fifthly, the potato or lemon do not share any of the physical characteristics of a shot or bullet, nor are they capable of being fired at anywhere near the velocity of a shot or bullet.
Accordingly, the term ‘other missile’ must be interpreted as being a non-organic material, typically metallic, or of sufficient density and weight, that either has been manufactured with the purpose to kill or maim or has a recognised and proven capability to do so, and thus constitute a real risk to public safety and peace.
The South Australian case of R v Sayers, whilst of persuasive authority in this jurisdiction, can be distinguished in the same manner it was in Police v Elliassides, namely that such an interpretation of the phrase “any projectile” to include any item that can be discharged from a firearm, is too broad in its manner and scope and could potentially end in results not intended by Parliament.
The touchstone in interpreting the phrase “other missile” is to consider first whether the object fits within the genus of shot or bullet. Is the object metallic or sufficiently dense to be capable of causing death or real and appreciable harm? Secondly, is the object capable of being discharged at a velocity commonly seen with shot or bullet? If the answer is yes to both, then it is likely that a device discharging such an object should rightly be construed as a firearm under the Act.
This approach would be entirely consistent with the stated purpose of the Act, namely the need to ensure public safety and peace. The Act did not intend to extend the word missile to “any object” that is capable of being discharged by means of the expansion of gases produced in the device or by ignition of strongly combustible materials.
Conclusion
Ultimately, I am of the view that PVC devices are not firearms for the purposes of the Act. The charges against the accused are therefore dismissed.
Having determined that the devices are not firearms, it is not necessary to consider the secondary arguments of whether the device does not fit the definition of a firearm by virtue of the argument that it does not ‘store or produce gases for the purposes of discharging a missile’. Similarly, arguments in regard to the validity of the search warrant and knowledge do not fall for consideration either.
This decision should not be interpreted as a green light for the citizens of Victoria to arm themselves with these type of devices for any purpose. They should be the subject of regulation, but they are not properly categorised as firearms under the current law. At a minimum, such devices could be rightly categorised as ‘dangerous articles’ under the Control of Weapons Act 1990.[20]
[20] Section 3(1)
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