Ward v Cook - [2023] WASC 277

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WARD -v- COOK [2023] WASC 277
CORAM:   HOWARD J
HEARD:   24 JULY 2023
DELIVERED          :   27 JULY 2023
FILE NO/S:   SJA 1014 of 2023
BETWEEN:   COLIN DAN WARD
Appellant
AND
MARIE COOK
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE K TAVERNER
File Number            :   WU 11/2022

Catchwords:

Criminal law - Single judge appeal - Application for leave to appeal against conviction - Whether the appellant safeguarded the firearm from loss- Whether the firearm was in storage at the relevant time - Whether the firearm was in 'transit' at the relevant time - Whether the magistrate erred in law and fact - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA)
Firearms Act 1973 (WA)

Result:

Leave to appeal dismissed

Representation:

Counsel:

Appellant	:	Mr R K Williamson
Respondent	:	Ms S J K Teoh

Solicitors:

Appellant	:	Ross Williamson
Respondent	:	State Solicitor's Office

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

Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337
Martino v Green [2001] WASCA 181; 123 A Crim R 301
McGee v Chitty [2011] WASC 125
Samuels v The State of Western Australia (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190

HOWARD J:

The appellant's conviction

Following a short trial on 25 January 2023 the appellant was convicted on 7 February 2023 of a single offence against s 23(9)(d)(iii) of the Firearms Act 1973 (WA) (Act) by a magistrate. Unless otherwise indicated, all statutory references from here are to the Act.
It was alleged that on 10 - 11 February 2022, being responsible for the storage of a firearm, namely a .22 Ruger Rifle (Rifle), the appellant failed to safeguard it from loss.
The learned magistrate delivered short reasons, fined the appellant $1000 and granted him a spent conviction.

Relevant provisions for this appeal

The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a)(i) of the Criminal Appeals Act 2004 (WA). His conviction is a 'decision' which may be appealed.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave. By s 9(2) of the Criminal Appeals Act, leave must not be granted unless this Court is satisfied that the ground has a reasonable prospect of succeeding. I will return to the question of leave after considering the merits of the appeal.

Ground of appeal

The sole ground of appeal is that the learned magistrate erred in law and fact in failing to acquit.
There are then three 'Particulars of error' stated; being:
(1)It was an error to reason the firearm was 'storage' when it was in the cabin of a work vehicle during an overnight stay in Wiluna in the course of a work trip, at the start of which the appellant took the firearm out of storage in a steel cabinet at his homestead 300 kms away and at the end of which he would have put it back in that storage facility.
(2)It was an error to hold that as the firearm was not 'in transit' (a word not in the offence creating provision) it was therefore … in the appellant's possession 'by way of storage'.
(3)The magistrate should have held the firearm was in the appellant's possession not by way of storage but that he was 'carrying, or in actual physical possession of [it], or [had] custody or control [of it] otherwise then by way of storage' per s 23(9)(a) of the Firearms Act 1973 in which case he would commit an offence if he 'fails or admits to take all reasonable precautions to ensure its safe keeping' (an offence he was not charged with).
As I understand it, the three particulars are not put as separate grounds of appeal.
As I understand the appellant's submissions, the first and second particulars are directed to the learned magistrate's reasoning and assert an error by the learned magistrate focussing on whether the Rifle was 'in transit', rather than focussing on the relevant statutory language.
The third particular is to the effect that the storage obligations under s 23(9)(d) had not been engaged.

Facts found

The following facts were found by the learned magistrate. They were not in dispute at trial and, as I understand it, are not disputed on appeal.
The appellant lived on his parents' station 275 km from Wiluna.
He had driven to Wiluna for non-station related work and had stayed overnight. He had left the Rifle behind the seat of his single cab Toyota Landcruiser utility (Ute) covered by some clothes overnight.
He had left the passenger window open by 5 cm, but had otherwise locked the Ute.
The Ute was parked in a large backyard near the house the appellant was staying at, and that yard was surrounded by a 1.5 metre Colorbond fence.
There was no vehicle access from the front of the house (to that yard) and there were locked double swinging gates at the back of the property.
The appellant had stored ammunition for the Rifle at another location that night. He had not removed the bolt or the magazine from the Rifle.
The next day the appellant realised the Rifle had been stolen from the Ute and reported the matter to police at the Wiluna Police Station.
It appears that the Rifle was later handed in to police.

The Trial and Reasons

At the trial, two police officers were called for the prosecution and the appellant gave evidence in his defence.
At the trial, counsel for the appellant relied on the decision in McGee v Chitty [2011] WASCA 125 (Mazza J, Pullin & Newnes JJA agreeing) and essentially advanced one proposition by way of defence. That was that the appellant had not been responsible for the storage of the Rifle within the meaning of s 23(9)(d) because the Rifle (and the appellant) remained 'in transit'. It was contended that transit would have come to an end when the appellant returned to his home station.
That was the sole issue in the trial.
In his Reasons, the learned magistrate on 7 February 2023 (quoting from McGee v Chitty) stated that:
The question of whether something is in transit is a matter to be decided on the particular facts of the case, bearing in mind the very stringent requirements of the Act:[1]
[1] Magistrate's Reasons, 7 February 2023 at [9].
The learned magistrate then said:
Here, the defendant had driven from his station to Wiluna; he had reached his intended destination. At this point, on any reasonable view of the circumstances, the firearms [sic] were no longer in transit. It was uncertain (and optional) as to how long he intended to stay in Wiluna, the suggestion being overnight. However, his journey, to Wiluna, was complete upon arrival at his lodgings. He may have left the next day, or not; but he was no longer in transit, and was required to comply with the legislation.[2]
[2] Magistrate's Reasons, 7 February 2023 at [10].
Having held that the Rifle and the appellant were no longer in transit, the learned magistrate held that the appellant was responsible for the storage of the firearm, and found that the appellant had failed 'to safeguard [the Rifle] from loss', in contravention of s 23(9)(d)(iii).[3]

Consideration

[3] Magistrate's Reasons, 7 February 2023 at [14] - [15].

As noted, by the first two particulars the appellant contends that the learned magistrate fell into error by considering that the crucial issue was whether or not the appellant and the Rifle remained 'in transit' after they arrived in Wiluna. At the appeal it was said that the focus on whether the Rifle was still in transit led the learned magistrate into the error of considering whether the Rifle had come to a physical stop or rest.[4]
[4] Appeal ts 3 - 4.
That criticism, however, must be seen in light of the way the matter was conducted at trial, where, in essence, the only issue was whether the storage obligations in s 23(9)(d) had been engaged, or whether the appellant (and Rifle) remained in transit so the storage obligations had not been engaged.
It was submitted that the storage obligations in s 23(9)(d) could not have been engaged because the gun was in the possession of the appellant otherwise than by way of storage and, in particular, as submitted by counsel for the appellant at trial, the gun remained in 'transit'.[5]
[5] Trial ts 17.
In my view, both counsel for the appellant (at trial) and the learned magistrate used 'in transit' as a shorthand expression as to whether the storage obligations in s 23(9)(d) had been engaged. With respect it appears to me to be a little unfair to criticise the learned magistrate for, effectively, adopting a shorthand expression used by the appellant's own counsel at the trial.
In the circumstances, I do not think that the learned magistrate's consideration of whether the Rifle was 'in transit' took him away from the central issue at trial and I see no error in this respect: see Strahan v Brennan [2014] WASC 190 [92] (Martin CJ); Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337 [44] - [45] (Archer J).
As I understand it, the appellant's case by the third particular is that it was not open on the facts for the learned magistrate to conclude that the appellant was responsible for the storage of any firearm within the meaning of s 23(9)(d). As I understand the appellant's position, s 23(9)(d) was not engaged as the Rifle was in a state described in s 23(9)(a) which precluded the storage obligations arising.
Consequently, the appellant contends that if he committed an offence then it was against s 23(9)(a), rather than s 23(9)(d)(iii) (the latter being the charge bought against him and for which he was convicted).
The appellant and the learned magistrate at the trial focused on the Court of Appeal's decision in McGee v Chitty and whether the appellant here, had 'possession' of the gun 'otherwise than by way of storage'.
In McGee, Mazza J (as he then was) (for the Court) set out the following applicable to the interpretation of s 23(9)(a) and s 23(9)(d):
(1)the purpose of the Act is to protect the public by imposing the most stringent requirements for the security and storage of firearms [41];
(2)sections 23(9)(a) and 23(9)(d) contemplate that a firearm may be in a state of storage or in a state other than by way of storage [42];
(3)the phrase [in s 23(9)(a)] 'otherwise than by way of storage' captured all of the many states that a firearm can lawfully can be in other than when it is stored; including when the firearm is in transit between places [44];
(4)section 23(9)(d) imposes several separate duties on a person who is responsible for the storage of a firearm (including that in s 23(9)(d)(iii)) [47]; and
(5)a firearm must be stored unless it is in a person's possession otherwise than by way of storage [50].
As may be seen, Mazza J used the example of a gun being in transit between places as an example of a state which was 'otherwise than by way of storage'. As the appellant correctly noted, the word 'transit' does not appear in s 23(9) and the word itself is not defined in the Act.[6]
[6] McGee [56].
In McGee, as in this case, the accused person contended that the relevant firearms were in transit and so the storage provision of s 23(9)(d) had not been engaged. In McGee, the Court of Appeal held that the relevant firearms were no longer in transit as they had reached their intended destination [59].
In McGee, Mazza J said:
The question of whether something is in transit is a matter to be decided on the particular facts of the given case, bearing in mind the very stringent requirements of the Act. It may not always be easy to identify when something is in transit and when it is not [58].
As noted above, the learned magistrate here had used the same words in his Reasons at [9]. The appellant accepts that statement of principle is correct. The appellant's written submissions accepted there may be circumstances 'when a car does come to a stop then the storage obligation arises'.[7]
[7] Appellant's submissions dated 31 May 2023 [13].
For the appellant to succeed, he needs to establish that it was not open to the learned magistrate to find that the storage obligation in s 23(9)(d)(iii) had been engaged.
The appellant contends and contended that the storage obligation only was re-engaged when he arrived 'home' at his station.
In my view, it was open to the learned magistrate to conclude that relevantly the appellant and the Rifle were not in transit and that the storage obligations under s 23(9)(d) had been engaged.
At the appeal, it was contended by the appellant that the obligation imposed by s 23(9)(d)(ii) was the dominant storage obligation.[8] It is unclear what the consequence is for the appeal of accepting that proposition. In any event, in Martino v Green [2001] WASCA 181; 123 A Crim R 301, McLure J, (as she then was) stated: 'Subparagraphs (i), (ii) and (iii) of s 23(9)(d) are separate and alternatives in which case a failure to comply with any subparagraphs is an offence' [41]. The appellant's submissions were to the contrary.
[8] Appeal ts 9.
In any event, I did not understand the appellant to be seriously contending that a failure to comply with s 23(9)(d)(ii) somehow rendered non-compliance with s 23(9)(d)(iii) something other than an offence in itself.
The learned magistrate held, as was open, that the storage obligations in s 23(9)(d) were engaged.
As I understand the appellant's position, if s 23(9)(d) was engaged, no complaint is then made as to the learned magistrate's findings that the appellant:
(1)was responsible for the storage of the Rifle;[9] and
(2)had failed to 'safeguard' the gun from 'loss' within the meaning of s 23(9)(d)(iii).[10]
[9] Appeal ts 9.
[10] Appeal ts 9.
The appellant has, in my judgment, identified no error. It follows that the appeal is to be dismissed.
Returning to the question of whether leave should be granted, I note the Court of Appeal's explication of s 9(2) of the Criminal Appeals Act in Samuels v The State of Western Australia (2005) 30 WAR 473 [56] - [61].
In my view, the ground of appeal advanced did not have reasonable prospects within the sense explained in Samuels and so leave to appeal must be refused by s 9(2) of the Criminal Appeals Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
28 JULY 2023