Victoria Police v Shaun Cousens
[2014] VMC 35
•30 OCTOBER 2014
| IN THE MAGISTRATES’ COURT OF VICTORIA |
AT MELBOURNE
CRIMINAL DIVISION
Case No. D13668414
| VICTORIA POLICE | Prosecution |
| v | |
| SHAUN COUSENS | Accused |
---
| MAGISTRATE: | M MACCALLUM |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 AUGUST 2014 |
| DATE OF DECISION: | 30 OCTOBER 2014 |
| CASE MAY BE CITED AS: | VICTORIA POLICE v SHAUN COUSENS |
| MEDIUM NEUTRAL CITATION: | [2014] VMC035 |
---
REASONS FOR DECISION
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Leading Senior Constable M.T. Donoghue, Victorian Police, Frankston Prosecutions | |
| For the Defence | Ms Deanna Caruso | Chiodo Madafferi |
HER HONOUR:
Questions for determination
- Three issues arise for determination in this proceeding, the second issue having two components.
Question 1: Does the firearm barrel found in the possession of the Accused satisfy the definition of ‘firearm’ in section 3 of the Firearms Act 1996 (the Act), making it a `general category handgun’ for the purposes of section 7 of the Act?
Question 2:
(a)Is a silencer a firearm part pursuant to section 3 of the Act?
(b)Do the silencers and the barrel found in Mr Cousens’ possession together constitute firearm `parts’ and thereby satisfy the definition of `firearm’ in section 3?
- If the answer to the first question is `yes’, it is not necessary for the Court to make a finding in relation to the second question.
Summary of background facts and charges
- The parties agreed with the following summary of background facts.
- At approximately 3:55 PM on 29 November 2013, police executed a search warrant at Mr Cousens’ home premises. Mr Cousens lives alone at that address and was not present at the time of the execution of the search warrant. A search was conducted in the bedroom occupied by Mr Cousens. In a blue toiletry bag in the walk-in wardrobe, police located two silencers and a barrel from a semi-automatic Phoenix handgun (the barrel).
- Mr Cousens does not have, and has never applied for, a firearms licence or a permit to possess a firearm or silencer. Possession of the above three items by Mr Cousens was not disputed.
- Counsel for the Accused did not contest the proper execution of the search warrant.
- Evidence was led by the Prosecution through an expert witness, Leading Senior Constable Belinda Howard, a Victoria Police firearms and tool mark examiner, that the barrel was a part of a firearm and in particular a part of a handgun. The type of handgun identified by Leading Senior Constable Belinda Howard was a `.22 long rifle calibre Phoenix Arms brand model 22 HP semi-automatic pistol’. This evidence was not disputed by the Counsel for the Accused.
- Mr Cousens is charged with three offences under the Act, namely:
(i)One charge of being a non-prohibited person in possession of a registered general category handgun for purposes other than the purpose of collecting handguns, when he was not the holder of a licence issued under the Act, in contravention of section 7 of the Act. The maximum penalty for this offence is 240 penalty units or four years imprisonment;
(ii)Two charges of being a non-prohibited person in possession of a silencer without a permit, contrary to section 57(1) of the Act. The maximum penalty for each charge is 120 penalty units or 2 years imprisonment.
- Mr Cousens pleads guilty with respect to the unlawful possession of the silencers. He disputes, however, that the barrel constitutes a firearm for the purposes of section 3 of the Act.
Charge 1 - Unlawful possession of a registered general category handgun - relevant legislative provisions
- Section 7 of the Act provides as follows:
`Offence for non-prohibited person to possess, carry or use a handgun without a licence
A non-prohibited person must not possess, carry or use a registered general category handgun for purposes other than the purpose of collecting handguns, unless that person does so under and in accordance with a licence issued under Division 3 or 5 of this Part.
Penalty: 240 penalty units or 4 years imprisonment.’
- The elements of the provision are:
(i)First, the requirement that a person be a `non-prohibited person’. A non-prohibited person is defined in section 3 of the Act as `a person who is not a prohibited person’. Pursuant to section 3 of the Act, prohibited persons include persons who are or have served certain terms of imprisonment or are subject to specified intervention orders or other court orders. Mr Cousens is a non-prohibited person.
(ii)Second, the non-prohibited person person must not possess, carry or use (emphasis added). The definition of `possession’ is set out in section 3:
`possession in relation to a firearm, includes-
(a) actual physical possession of the firearm; or
(b) custody or control of the firearm; or
(c) having and exercising access to the firearm, either solely or in common with others.’
The definition of ‘carry’ is also set out in section 3:
`carry in relation to a firearm, includes the carriage of that firearm either as a whole or in parts and either by one person or more than one person’.
(iii)
Third, the prohibition relates to registered general category handguns.
Pursuant to section 3 of the Act, a `general category handgun’ means `a handgun that is not a category E handgun’. Section 3 in turn defines a ‘category E handgun’ to mean any of the following:
(a) a machine gun that is a handgun;
(b) any handgun prescribed for the purposes of this category;
(c) any other firearm that is declared under section 3A(1) to be a category E handgun.
Police submitted that the `.22 long rifle calibre Phoenix Arms brand model HP semi-automatic pistol’, which the barrel was identified to be a part of by Leading Senior Constable Belinda Howard, is not a ‘Category E handgun’. This type of pistol is according to the Prosecution, a `general category handgun’ for the purposes of the Act. The Defence did not dispute this characterisation of the barrel or the handgun.
(iv)Pursuant to section 3 of the Act `handgun’ means a firearm that:
(a) is reasonably capable of being carried or concealed about the person; or
(b) is reasonably capable of being raised and fired by one hand; or
(c) does not exceed 65 centimetres in length measured parallel to the barrel.
(v)Pursuant to section 3 of the Act `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 …..”
Charges 2 and 3 – Unlawful possession of a silencer – relevant legislative provisions
- Section 57 of the Act provides:
`Permits to possess, carry or use silencers or prescribed items
(1)A non-prohibited person must not possess, carry or use a —
(a) silencer; or
(b) prescribed item -
unless that person does so under and in accordance with a permit issued under this section.
Penalty: 120 penalty units or 2 years imprisonment.’
- A `silencer’ is defined in section 3 to mean `any instrument or thing by means of which the sound caused by the discharge of a firearm is rendered less audible, whether the instrument or thing forms part of the firearm or is or can be affixed or attached to the firearm’.
Evidence of Leading Senior Constable Belinda Howard
- The Prosecution called Leading Senior Constable Belinda Howard, a firearms and tool mark examiner from the Victoria Police Forensic Management Unit. She said that she had received the two silencers and the barrel for examination. She undertook the following examinations of these items and made the following findings, which were uncontroverted, and which I accept.
- First, she measured and photographed the items and described them as follows.
(i)Homemade silencer: A .22 rimfire calibre, aluminium, home-made silencer, no serial number, length 158mm. This home-made silencer was made to fit onto the barrel. When it was fitted to the barrel and placed with a suitable firearm, it rendered the sound of discharge of the firearm less audible.
(ii)Generic silencer: this is also a .22 rimfire calibre silencer but is a `Gold Dot’ brand. This is a specific brand of silencers that are available on the market. It had not been stamped with a serial number. It was designed to be fitted with a standard thread that would fit any firearm of that calibre that is `threaded’ for a silencer. A thread is an internal screw for that firearm that allows a silencer to be screwed onto the firearm barrel. It was 148mm in length. When fitted to a firearm that was `threaded’ for a silencer, it rendered the sound of discharge less audible.
(iii)Firearm barrel: the barrel was marked `.22 Long Rifle’ on the side. It was not stamped with a serial number. It was part of a Phoenix Arms brand model .22 calibre HP semi-automatic pistol (hand-gun). The muzzle end had been shortened and turned down into a round diameter at the end of the barrel. At the rounded end, there was a sleeve placed on the end of the barrel, and inside the sleeve was an internal thread. This sleeve was made to house the home-made silencer. The overall length of the barrel was 68mm and the sleeve placed on the end was 11mm. The barrel was then fitted to a Phoenix Arms brand model 22HP semi-automatic pistol to test the firearm. It produced test fires.
- Leading Senior Constable Howard was then asked to describe the identification process for the barrel. She said that Victoria Police maintain and keep at the ballistics unit a library of firearms. She went into the firearms reference library and identified the barrel to this particular firearm as being a .22 calibre Phoenix Arms brand model 22HP semi-automatic pistol. Although the calibre itself was marked on the barrel, she also measured the internal diameter of the barrel to confirm the calibre.
- With respect to her observation about the shortening and the modification of the barrel, Leading Senior Constable Howard was asked to explain how she identified these modifications. She said that the barrel was shortened, in that the end had been physically machined down. The end of the barrel which was originally square had been ‘turned down’ to a round shape.
- Leading Senior Constable Howard was asked to explain what process has been undertaken to cause the modification. She said that the barrel would have been placed in a machine called a lathe. A lathe could be used to physically turn the barrel down and round it in shape. She said that other machinery could have been used to produce the rounded shape, but most likely a lathe had been used. With respect to the home-made sleeve containing a thread, she said that it was custom made to house the silencer.
- Leading Senior Constable Howard was asked to explain what process was undertaken to create the sleeve to cause it to be able to fit the home-made silencer. She said that within the rounded sleeve there is an internal thread. The sleeve could have been `turned down’ in the lathe and a thread created in the head of it with a piece known as a `tapping head.’ She said that she had placed the home-made silencer on the end of the sleeve and screwed it in, and it fit within the thread and so was able to be mounted onto the end of that firearm.
- Leading Senior Constable Howard was further asked to explain, based on her observation of the barrel and the modifications to it, what findings she had made regarding the generic and home-made silencers. She said that the thread on the homemade silencer was the same size and dimension as the thread in the sleeve and could be screwed into the sleeve. She said that the generic silencer had a standard thread that would fit any other firearm manufactured to fit it. The home-made silencer had a different size, dimension and the composition. That is to say, the barrel and the homemade silencer were custom made to fit each other as the thread was not the standard thread used on other silencers, and she thought it highly unlikely that the homemade silencer would fit another barrel.
Definition of firearm – statutory construction
- What is in dispute is whether the possession of the barrel as a single part of a firearm constitutes unlawful possession of a firearm, and thereby unlawful possession of a handgun for the purposes of section 7 of the Act.
- The Prosecution contends that possessing the firearm barrel alone is enough to be in possession of a firearm, that is, the word `parts’ in section 3 should be interpreted to include a singular part alone. Alternatively, the Prosecution states that the homemade silencer is a firearm part and therefore Mr Cousens, in possessing both the barrel and the silencer, was in possession of `parts’ of a firearm and therefore in possession of a firearm.
- Counsel for the Accused contends that:
(a)a single part of a firearm does not amount to possession of a firearm as the legislation requires `parts’ in the plural; and
(b)a silencer is an accessory to a firearm and is not part of a firearm.
- The parties agreed that there was no relevant case law that considers the definition of `parts’ in section 3 of the Act. Therefore, the legal meaning of the word ‘parts’ in section 3 needs to be determined in accordance with principles of statutory construction.
The Prosecution submissions
- I have reproduced the Prosecution’s written submissions with respect to the first question for determination below.
“For the purpose of determining this case, I respectfully submit that the following aspects of those definitions are of particular significance. Firstly, in relation to the initial descriptive terminology of a firearm meaning any device, whether or not assembled or in parts.
Part is defined by the Oxford Dictionary as “An amount or section which, when combined with others, makes up the whole of something”.
In this case I would therefore respectfully submit that as a matter of logic, reason & the ordinary construction of the English language as per: the Oxford Dictionary definition, that any item that is not assembled is therefore in parts.
The first line of that definition, when read in its entirety, makes clear that a device that fits the other preconditions & requirements to be defined as a firearm continues to fit that definition whether or not it is assembled, which if it is not, would therefore comprise of a number of parts capable of being assembled into a complete device. It is clear then that subsection (b) of the definition provides for and anticipates the possibility that that device may not be complete or operable either permanently or temporarily, but still allows for the part or parts of that device to fall within the definition as long as it fits the remaining requirements of that definition.
In particular, the requirements of subsection (a) are clearly highly relevant to the question of which part or parts of a device can constitute the definition of a firearm. In my submission, the particular relevance of this subsection & its importance to the assessment of the type required in this case is that it clearly defines that the device whether or not assembled or in parts – which is designed or adapted, or is capable of being modified, to discharge shot or a bullet or other missile, etc. This subsection creates a requirement that the device must be at least a part of the firearm which is integral to the discharge of shot, a bullet or other missile. Therefore if it is any other part of a firearm that by its own nature & purpose is not encapsulated by that definition, it on its own could not be considered a device for the purpose of defining a firearm.
However in this case, the Prosecution allege that the device in question, being the barrel of a firearm, in this case a .22 calibre pistol, is a highly integral device that clearly has no purpose other than to be used in the discharge of a bullet. The court has heard evidence from Leading Senior Constable Belinda HOWARD that once this barrel was fitted to a .22 Long Rifle calibre, Phoenix Arms brand, model 22HP semi automatic pistol, test fires were produced. Even though subsection (b) allows for the device to be inoperable or complete or temporarily or permanently incomplete, this evidence shows that despite being incomplete, this device is an operable part of the firearm that is physically capable discharging a bullet by the ignition of strongly combustible material, namely in this case the gunpowder contained in the .22 calibre Long Rifle cartridge & is not an item described in subsections (c) through (j).
It also the case in this matter, that even though the Prosecution respectfully disagree with the defence submission that the relevant definition of firearm in Section 3 of the Act creates a requirement that there be parts in the plural, that based on the evidence of L/S/C HOWARD that the court could find that there are in fact parts of a firearm. The court has heard evidence that the item referred to as Item 5A in HORWARD’s statement and evidence being a .22 rimfire calibre aluminium home made silencer, 158 millimetres in length, not serial numbered, was in fact an item that could be attached to the firearm barrel via a sleeve that had been affixed to the barrel by modification caused to that item by mechanical means via a lathe or similar device.
In my submission the critical aspect of the evidence of HOWARD with respect to the relationship between the two items, being silencer Item 5A & firearm barrel item 5C is that the matching of the threads on the silencer and firearm barrel not only matched each other, but were tooled in such a way to make it highly unlikely that the silencer would fit any other firearm barrel. It is that uncontroverted aspect of HOWARD’s evidence that the Prosecution would seek to rely on assert that notwithstanding that the silencer remains a prohibited device despite its relationship to the firearm in question, that in these circumstance [sic] that it can also be considered to be a device which when affixed to the barrel also becomes part of that firearm rather than being a generic accessory capable of being attached by a standardised thread to any suitably tooled and manufactured firearm designed to accept such an attachment.
In the course of formulating this submission, I have also reviewed the case referred to be Your Honour at the conclusion of the hearing of this matter, being Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28. Whilst understanding how that case entered considerations at that point regarding the question of the determination and application of certain phrases in the course of statutory interpretation, I do no [sic] seek to cite that case in this submission or apply the propositions espoused in that case in my submission for this matter.
Ultimately I would submit that with respect to the proposition raised by the defence assertion that definition of a firearm contained in Section 3 of the Act creates, by virtue of the use of the phrase any device, whether or not in parts, creates a requirement for more than one part to in the possession of the accused, the Prosecution rely squarely on the following provision of the Interpretation of Legislation Act 1984, contained in s.37 of that Act:
“Gender and Number
In any Act or subordinate instrument, unless the contrary intention appears-
(a) words importing a gender include every other gender; and
(b) words in the singular include the plural; and
(c) words in the plural include the singular.”
In this case, the Prosecution respectfully submits that in the absence of any specific reference or any apparent contrary intention of the Act, that the relevant provision being the definition of a firearm contained in Section 3 of the Act therefore requires no specific quantity greater than any singular part. Given that a reference to any device that is otherwise applicable to and meets the requirements of the remaining subsections of that definition by virtue of this provision means both a part or parts fall inclusively within the definition, they are in effect one and the same. Therefore, the defence assertion regarding a requirement for the existence of parts must fail.”
The Defence submissions
- The written submissions of Counsel for the Defence on the first question for determination are reproduced below.
By necessity, should the wording of an Act or Instrument contain some ambiguity, focus then turns to the principles of statutory interpretation. The accused submits that in his case that significant ambiguity occurs with regard to the possession of a single part or possession of many parts.
Section 37 of the Interpretation of Legislation Act (Vic) 1984 seeks to provide assistance as to the interpretation of plural and singular. Section 37 states:
In an Act or subordinate instrument, unless the contrary intention appears –
(a) words importing a gender include every other gender; and
* * * * *
(c) words in the singular include the plural; and
(d) words in the plural include the singular.
However, it is submitted that - in a case where the interpretation falls within a definition - it is particularly important to be careful as to how that interpretation is construed.
As the majority stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384:
“the duty of the court is to give the words of a statutory provision the meaning the legislature is taken to have intended them to have. Ordinarily that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal grammatical meaning.”
It is submitted that there is significant ambiguity in what parliament intended in this section of the Act. By submission if, as the Prosecution contends, that “parts” should be read as “a part” as per section 37 of the Interpretation of Legislation Act then parliament would have made that clear.
In short, it is submitted by the accused that the legislature would not have intended that possession of a single part be punished by the criminal law.
The Purpose of the Act.
It is respectfully submitted that to determine, should the contrary intention appear, the purpose of the Act and the intention of the legislature should be closely analysed. Section 35 of the Interpretation of Legislation Act (Vic) 1984 assists and states as follows:
“Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument—
(a)a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
(b)consideration may be given to any matter or document that is relevant including but not limited to—
(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation
(ii) reports of proceedings in any House of the Parliament;
(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.
The purpose of the Firearms Act is found in section 1:
“Purpose
The purposes of this Act are—
(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 by—
(i) establishing a system of licensing and regulating the possession, carriage and use of firearms and related items which does not allow for self defence to be used as a reason for obtaining a licence to possess, carry or use a firearm; and
(ii) establishing a system of licensing and regulating the carrying on of the business of dealing in firearms; and
(iii) establishing a system of permitting and regulating the acquisition and disposal of firearms and related items; and
(iv) establishing a system of registering firearms; and
(v) establishing requirements for the secure storage and carriage of firearms; and
(vi) establishing a Firearms Appeals Committee to hear applications for review of decisions of the Chief Commissioner under the Act; and
(vii) making provision for the education of the community in the safe and responsible use of firearms; and
(viii) making other related provisions; and
(b) to repeal the Firearms Act 1958 ; and
The Second Reading speech delivered to the Legislative Assembly on 31 October 1996 provides further clarification as to Parliament’s intention when they enacted this legislation. In particular, the reforms were brought about by the tragic events in Port Arthur earlier that year.
Clearly from the Act’s second reading speech and from the Purpose of the Legislation that public safety and regulation of firearms are the primary purpose of the Act. It appears, however, that parliament did not intend that being in possession of a single part of a firearm would attract the criminal law. This is particularly so when the barrel alone - a non-functioning piece of metal - does not in itself present a risk to public safety. Indeed, the legislature has clearly considered the possibility of a firearm in parts – this is to logically prevent a firearm being disassembled and then an argument being put forward that those parts are not a firearm. Further Parliament has further considered the firearm being incomplete or inoperable.
It is submitted that, had parliament intended that possession of a single part of a firearm attract the same penalty as possessing a firearm, it would have included the words similar to “or part thereof” after the words “parts”.
In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 Dixon CJ stated:
“Consistency and fairness in a statute or provision is surer guide to meaning than the logic with which a statute is constructed.”
It is submitted that the logical and fair conclusion is that possession of a single part of a firearm should not equate to possession of a firearm.
Furthermore, a long held principle of statutory interpretation is that legislation creating a penalty will, in circumstances of ambiguity, be strictly construed in favour of the accused person. As Murphy J stated in Beckwith v The Queen (1976) 135 CLR 569 at 585:
“when parliament imposes a very heavy criminal penalty it should be taken as speaking plainly and not as creating offences which can only be understood if at all with great difficulty.”
It is submitted that the plain meaning of the text in the definitions section of the Act is that a firearm should be in parts in the plural and consist of more than one part. It is submitted that in this case there is, with possession of a “part” or parts” of a firearm a clear ambiguity and that the court should find that the offence of Possessing a Handgun not made out.”
Analysis and findings
- I have concluded that the barrel found in the possession of Mr Cousens on its own constitutes a `firearm’ for the purposes of section 3 of the Act. I have also found, on the basis of the evidence lead by the Prosecution, that the barrel is part of a handgun which Mr Cousens was not authorised to possess under the Act, and that he is therefore in breach of section 7 of the Act.
- The High Court of Australia in Project Blue Sky[1] established that the correct approach to statutory construction is to construe legislation in a manner that is consistent with the language and the purpose of all of the provisions in the statute, and which presumes that provisions are intended to give rise to harmonious goals. The first step is to begin with the text of the provision by focussing on the plain meaning of the words. Second, those words should be read in their context, that is, `by reference to the language of the instrument viewed as a whole’.[2]
[1](1998) 194 CLR 355 at [69]-[78].
[2]Ibid, p. 381, [69]
- Section 3 of the Act, which provides the definition of ‘firearm’ is set out in paragraph 11(v) above. Grammatically, the word `parts’ is used in reference to where the `device’ is disassembled. As a matter of grammatical necessity, as soon as the device is disassembled there has to be ‘parts’ rather than `part’. On a strict reading of the text, it would be grammatically incorrect for the statute to refer only to `part’. The definition can only make sense being drafted in that manner.
- One must then read the first line of the definition of firearm in section 3 as a whole. When read as a whole, the provision makes it clear that it is the device that must fit the other preconditions and requirements to satisfy the definition of ‘firearm’. This is the case whether the device is assembled or not assembled, and would therefore comprise of parts as opposed to a `part’. Subsection (b) contemplates that the device, whether or not assembled or in parts, may `be operable or complete or temporarily or permanently inoperable or incomplete.’ As I will explain later, this flexible and extended definition of firearm has an important policy objective, and the text is consistent with that policy objective.
- The Prosecution argues for the following interpretation of the provision, with which I agree.
a)The device must fit the other preconditions and requirements of the section to be defined as a firearm.
b)Subsection (b) contemplates that the device may be incomplete or inoperable, or may be either permanently or temporarily inoperable or incomplete. It still allows for the part or parts of the device to fall within the definition as long as it fulfils the remaining requirements of the definition.
c)Those requirements are as follows. The device must be part of a firearm, which is designed or adapted, or capable of being modified to discharge a shot or a bullet or other missile by the expansion of gases produced in the device. The Prosecution states that the device must be part of the firearm that is integral to the discharge of shot, a bullet or other missile. Conversely, if it is any other part of a firearm that by its own nature and purpose does not meet this requirement, it could not be considered a device for the purpose of owning or possessing a firearm.
d)The barrel is a `highly integral device that clearly has no purpose other than to be used in the discharge of a bullet.’
- With respect to this latter argument, the Prosecution led evidence from Leading Senior Constable Howard that once the barrel was fitted to a .22 Long Rifle calibre Phoenix Arms brand, model 22HP semi-automatic pistol, test fires were produced. The Prosecution then points out that although subsection (b) allows for the device to be inoperable or incomplete or temporarily or permanently inoperable or incomplete, the device in this case was an operable part of the firearm that is physically capable of discharging a bullet by the ignition of strongly combustible material. This physical capability was demonstrated by Leading Senior Constable Howard, by the insertion of gun powder contained in the .22 calibre Long Rifle cartridge during examination and testing.
- Sub-sections 37(c) and (d) of the Interpretation of Legislation Act1984 support the Prosecution argument. They provide as follows:
`Gender and Number
In an Act or subordinate instrument, unless the contrary intention appears—
(a)words importing a gender include every other gender; and
* * * * *
(c)words in the singular include the plural; and
(d)words in the plural include the singular.
- There is no contrary intention expressed in the Act.
- In addition to the submissions by the Prosecution which I accept, the definition of `possession’ in section 3 includes: (a) actual physical possession of the firearm; or (b) custody or control of the firearm; or (c) having and exercising access to the firearm, either solely or in common with others. Thus, the definition of `possession’ contemplates a situation where several people may have access to a firearm, and pursuant to the definition in section 3, the device, provided that it satisfies the remaining requirements of the definition, may be assembled or in parts. Furthermore, the definition of `carry’ in relation to a firearm, includes the carriage of that firearm either as a whole or in parts and either by one person or more than one person.
- The next step, after examining the text of the provision and the legislation, is to consider the purpose of the provision, or the mischief which the legislation was designed to remedy.
- The High Court stated in Project Blue Sky, citing Commissioner for Railways (NSW) v Agalianos per his Honour Chief Justice Dixon (as he then was), that `the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.[3]
[3] Ibid, p. 381, [69]
- The common law purposive approach to statutory construction is further supported in section 35 of the Interpretation of Legislation Act (Vic) 1984, which provides:
`Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument -(a)a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
(b)consideration may be given to any matter or document that is relevant including but not limited to—
(i)all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii)reports of proceedings in any House of the Parliament;
(iii)explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv)reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.’
- The purposes of the Firearms Act 1996 are set out in section 1. The full provision is:
`The purposes of this Act are—
(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 by—
(i)establishing a system of licensing and regulating the possession, carriage and use of firearms and related items which does not allow for self defence to be used as a reason for obtaining a licence to possess, carry or use a firearm; and
(ii)establishing a system of licensing and regulating the carrying on of the business of dealing in firearms; and
(iii)establishing a system of permitting and regulating the acquisition and disposal of firearms and related items; and
(iv)establishing a system of registering firearms; and
(v)establishing requirements for the secure storage and carriage of firearms; and
(vi)establishing a Firearms Appeals Committee to hear applications for review of decisions of the Chief Commissioner under the Act; and
(vii)making provision for the education of the community in the safe and responsible use of firearms; and
(viii)making other related provisions; and
(b) to repeal the Firearms Act 1958 ; and
(c) to make various consequential amendments to other Acts.’
- The above provision highlights the chief purpose of the legislation of establishing a regulatory system for the possession, carriage, use, acquisition and disposal of firearms to ensure public safety and peace. The legislation was enacted as a response to the tragic events of Port Arthur, as indicated by the Second Reading Speech delivered to the Legislative Assembly on 31 October 1996.[4]
[4] Firearms Bill, Second Reading Speech, Legislative Assembly, 31 October 1996, p.1002 at 1003.
- Counsel for the Accused submitted that Parliament did not intend that being in possession of a single part of a firearm would be an offence, and that is particularly so when the barrel, as a `non-functioning piece of metal’, does not by itself constitute a risk to public safety. It was further submitted by Counsel for the Accused that had Parliament intended for the possession of a single part of a firearm to attract the same penalty as possession of a firearm, it would have so provided.
- I disagree. First, the ‘firearm’ definition itself contemplates that the device may be either assembled or in parts. The definitions of `possession’ and `carry’ specifically contemplate the situation where a person has access to a firearm solely or in common with others. It may be inferred from this, that one of the legislative purposes to be fulfilled by these provisions was to avoid the situation, which prosecuting authorities may be frequently faced with, where a group of people by each possessing a different single part of one firearm, avoid compliance with the Act.
- Second, as stated above, the evidence from Leading Senior Constable Belinda Howard was that once the barrel was fitted to a .22 Long Rifle calibre, Phoenix Arms brand, model 22HP semi-automatic pistol, test fires were produced. Furthermore, the home-made silencer when fitted to the barrel and a suitable firearm was effective to render the sound of discharge less audible. In cross-examination, Leading Senior Constable Howard said that when she tested the barrel with the silencer on, it became a fully functional firearm. The barrel cannot in my opinion, be said to be a `non-functioning piece of metal’ that does not pose a risk to public safety. Such an interpretation has the potential to undermine not only public safety, but one of the other chief purposes of the legislation, that of `establishing a system of licensing and regulating the possession, carriage and use of firearms and related items.’ Conversely, the preferred interpretation of the provision that the barrel found in the possession of Mr Cousens on its own constitutes a firearm for the purposes of section 3 of the Act, fulfils the policy objectives of the legislation.
- I therefore find the charge proven beyond reasonable doubt. I also find the charges of possession of two silencers without a permit proven.
Conclusions
- Question 1: does the barrel found in the possession of the Accused, Mr Cousens, satisfy the definition of ‘firearm’ in section 3 of the Firearms Act 1996, and therefore also the definition of `general category handgun’ for the purposes of section 7 of the Act? Answer: yes.
- As I have answered the above question in the affirmative, finding that the barrel found in the possession of Mr Cousens does, on its own, constitute a firearm for the purposes of section 3 of the Act (and is therefore a general category handgun for the purposes of section 7 of the Act), it is not necessary to answer questions 2(a) and (b).
Magistrate MacCallum, 30 October 2014
0
3
0