Wheeley v The State of Western Australia - [2007] WASCA 168

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WHEELEY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 168

CORAM: WHEELER JA
McLURE JA
BUSS JA

HEARD: 18 APRIL 2007

DELIVERED : 10 AUGUST 2007

FILE NO/S: CACR 142 of 2006

BETWEEN: ROBERT JOHN WHEELEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MARTINO DCJ
File No  :GER 114 of 2003

Catchwords:

Criminal law - Appeal against conviction - "Explosive substance"

Legislation:

Crimes Act 1958 (Vic), s 317
Criminal Code (WA), s 299, s 557
Explosive Substances Act 1883 (Imp), 46 Vict, c. 3

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Ms G A Archer
Respondent: Mr D Dempster

Solicitors:

Appellant: Altorfer & Stow
Respondent: State Director of Public Prosecutions

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

R v Fyffe [1991] 2 VR 72
R v Tween [1965] VR 687

WHEELER JA:

The offences

The appellant was charged, in the alternative, with breaches of s 299 (count 1) and s 557 (count 2) of the Criminal Code ("Code"). As particularised in the indictment, the counts alleged that on or about 22 February 2003 he:
"(1)… wilfully and unlawfully made an explosive substance, namely a home‑made explosive device containing 11 sticks of ORICA Magnum 365 Powergel explosive attached to a battery and a quantity of steel ball bearings, with intent by means thereof to endanger the life of a person unknown in Western Australia.
[alternatively,]
(2) … knowingly had in his possession an explosive substance, namely a home‑made explosive device containing 11 sticks of ORICA Magnum 365 Powergel explosive attached to a battery and a quantity of steel ball bearings, under such circumstances as to give rise to a reasonable suspicion that he did not have it in his possession for a lawful object."
Section 299 and s 557 of the Code relevantly provided:
"299. Attempting to cause explosion likely to endanger life
Any person who wilfully and unlawfully -
(1)Does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion in Western Australia of a nature likely to endanger the life of any person; or
(2)Makes or has in his possession or under his control, any explosive substance with intent by means thereof to endanger the life of any person in Western Australia; or
(3)Puts any explosive substance in any place whatever with intent to do any bodily harm to any person;
… is guilty of a crime …
The term 'explosive substance' in this section includes any materials for making any explosive substance; also, any apparatus, machine, implement or materials, used or intended to be used or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also, any part of any such apparatus, machine, or implement.
…
557.Making or possession of explosives under suspicious circumstances
Any person who makes, or knowingly has in his possession or under his control, any explosive substance under such circumstances as to give rise to a reasonable suspicion that he is not making it, or does not have it in his possession or under his control for a lawful object, unless he can show that he made it, or had it in his possession or under his control for a lawful purpose, is guilty of a crime, and is liable to imprisonment for 14 years, and forfeiture of the explosive substance.
In this section 'explosive substance' includes any materials for making any explosive substance; also any apparatus, machine, implement, or materials used or intended to be used or adapted for causing or aiding in causing any explosion in or with any explosive substance; also any part of any such apparatus, machine, or implement."
Following a trial by jury, the appellant was acquitted of count 1 and convicted of count 2. The appellant appeals against the conviction on the second count on the basis that the trial Judge erred in directing the jury as to the meaning of "explosive substance" (ground 2) and that the jury verdict was unreasonable because it was not demonstrated that the device was unsafe and capable of exploding (ground 3). Ground 1 was abandoned prior to the hearing.

The prosecution case

The evidence against the appellant was as follows. The appellant is a fitter and machinist by trade and has worked in the mining industry for many years, during which time he became familiar with explosives. He also had some training in explosives during his time as a member of the Army Reserves.
On 21 February 2003, the appellant had an altercation with his wife at their Mount Magnet home. At some later stage in the evening, the appellant's wife walked into the living room to find the appellant fiddling with some white plastic tubing and some ball bearings.
On 22 February 2003, the police executed a search warrant of the appellant's home. During the course of the search, the appellant was asked whether there was an explosive device in the house. He responded that there was, but that it was not active.
After a period of searching the house, the relevant device was found beneath the cushion of a lounge chair. There was a plastic folder to which a quantity of steel ball bearings had been glued. Eleven cartridges of Magnum 365 Powergel ("Powergel") were individually cable‑tied to the folder and a six‑volt battery was also taped to the device.
Although no detonators were attached, two were found in a nearby room. According to Senior Constable Roper ("Roper"), a bomb technician present during the second search, "[t]hey were number 8 detonators which require 0.6 of an amp to detonate or to function them" (AB 71). There was evidence that the six‑volt battery was capable of providing the requisite electric charge.
At trial, it was accepted that the device could not have exploded without a detonator attached. While Roper suggested that the Powergel cartridges could conceivably explode if "a short, sharp pressure" was applied (AB 79), the cartridges were brought into the courtroom, handled and tendered as evidence. The witness Roper clarified his comments during the course of cross‑examination (AB 79):
"And it is perfectly safe?‑‑‑I can't say perfectly safe, but it's as safe as you can get, yeah. I would be happy to drop it here now, yeah."
However, the evidence was that the device could easily have been made unsafe. According to Roper (AB 80),
"[a]ll that was needed was for a detonator to be inserted into one of the cartridges, or put in very close proximity, in physical contact, and for one lead to be connected to one side of the battery, and all you had to do was touch the other side and it would have functioned"
That task would have taken a very short time to execute (AB 83).
Roper also said that Powergel becomes less sensitive as it deteriorates, eventually becoming inert. He was unable to ascertain the age of the Powergel cartridges attached to the device and it appears that no analytical tests were conducted to ascertain its potency. He was of the view that such tests might exist, but this appeared not to be a subject within the scope of his expertise.

No case submission

At the conclusion of the State case, counsel for the appellant submitted that there was no case to answer in relation to either of the alternatives on the indictment. It is plain from the transcript of that application that the primary thrust of the submission was that the State was unable to prove that the items particularised constituted an explosive device, because the detonator was not attached to those items and, without the attachment, the items were incapable of exploding. The submission, repeated a number of times, was that an explosive device was a device which "will explode", the silent premise of that submission being that it was necessary for the device to be capable of explosion on its own and without further work, or further attachments. There was, however, reference made in passing to the evidence of Roper that the Powergel would deteriorate over time and that it had not been tested.
In ruling on the submission, his Honour considered that the jury could be satisfied, potentially in a number of ways, that the device was an explosive substance. The first was that it "could be materials for making an explosive substance". Alternatively, it could be an apparatus used or intended to be used or adapted for causing or aiding in an explosion in or with any explosive substance. Finally, it could be part of such apparatus, machine or implement.
It is to be noted that the submissions of counsel did not assist his Honour by suggesting what meaning should be assigned to any of the individual elements of the inclusive definition of "an explosive substance" contained in s 299 and s 557. The issues raised in the appellant's appeal, as argued before us, were not agitated at trial.

The appellant's evidence

Following the failure of the no case submission, the appellant gave evidence. As already noted, the appellant had some experience with explosives, both in the course of his work and in the course of his time in the Army Reserves. He was the person, of course, who obtained the Powergel. He explained that he had purchased it "for entertainment". By that, he meant that he had some intention of emulating other people he knew who would occasionally go out to the bush for the weekend, camp, barbecue, and entertain themselves by blowing up rusty old vehicles or whitegoods that they might find. He could not recall exactly when he had purchased the Powergel, but it was "a number of months" - perhaps five or six - prior to the date of the alleged offence, and during that time the Powergel had been buried in his back garden. He had purchased it from someone who lived in the town, in exchange for a small quantity of marijuana.
Although he said, in evidence‑in‑chief, that he did not know whether the Powergel was "active", nothing in his evidence suggested that he had any reason to believe that the substance was so old, or had been kept under such conditions, that it was unlikely that it would explode. On the contrary, his evidence in cross‑examination was that if the device had been completed and detonated, "it would destroy the house". He also agreed that it was quite possible that it would harm, if not kill, people in a fairly large radius, if exploded in the open air. That evidence was, of course, consistent with his evidence about his purpose in purchasing the Powergel, which was to blow things up. It was significant evidence about the ability of the Powergel to explode, given that he was the person who either knew, or was in a position to know, the provenance of the Powergel and the conditions under which it had been kept.

The direction at trial

His Honour's only directions about the meaning of the expression "explosive substance" were these. In relation to count 1, his Honour said:
"Second, the state must prove that Mr Wheeley made an explosive substance. The term 'explosive substance' is defined in that definition that I gave to you this morning. It includes any materials for making any explosive substance, also any apparatus, machine, implement or materials used or intended to be used or adapted for causing or aiding in causing any explosion in or with any explosive substance or also any part of any such apparatus, machine or implement. The word 'explosion' is used in its ordinary meaning of a sudden, violent, forceful expansion."
The reference to a definition was to the statutory definition, which his Honour had provided to the jury in written form. Whether it was punctuated as in s 299 or s 557 is not clear.
In relation to count 2, he said:
"Now, 'explosive substance' is defined in section 557. It's very similar, virtually identical, to the definition in 299 and I have given you a copy of that definition in the paper that I gave you this morning and that is the definition that applies in this section, and the word 'explosion' again is used in its ordinary meaning of a sudden, violent and forceful expansion."
His Honour reminded the jury of the evidence of Roper that Powergel became less explosive over time, eventually becoming totally harmless, reminded the jury of the submission of the prosecutor that the device made was an explosive substance, and reminded them of the submission made in the address by counsel for the appellant that there was no evidence that the materials found could in fact explode. He did not explain the significance, if any, of any of those matters. Counsel did not appear to see them as particularly significant, since, at the end of his Honour's direction, both advised his Honour that they had no matters which they wished to raise with him.

The issues on appeal

It is to be noted that the appellant’s oral submissions at the appeal hearing diverged to a considerable degree from the grounds and written submissions filed with the Court. The tenor of the appellant’s oral submissions can be summarised as follows.
The appellant submitted that the definition of an "explosive substance" in s 557 of the Code comprises four limbs. The first limb is not expressly contained in the wording of the definition, but is rather to be implied as a matter of common sense. It is intended to encompass devices which are actually capable of exploding, such as bombs. The second limb covers materials which can be used for making an explosive device and which are in themselves capable of causing an explosion under the right conditions. According to the appellant, this would include things such as petrol and fertiliser. The third limb extends to any apparatus, machine, implement or materials used or intended to be used or adapted for causing or aiding in causing any explosion in or with any explosive substance. The appellant contends that this limb requires there to be a subjective intention to use the relevant item for the purpose of causing an explosion; that is, that the word "intended" governs all the following words. The fourth limb relates to parts of any of the items contained in the third limb and thus also incorporates the element of subjective intention.
The appellant submitted that, given the wording of the indictment, the jury was required to be satisfied that the "home‑made explosive device containing 11 sticks of ORICA Magnum 365 Powergel explosive attached to a battery and a quantity of steel ball bearings" was an explosive substance within the meaning of s 557. Both parties appeared to agree that the device described in the indictment did not satisfy the first limb at least because the detonator had not been connected. I note that it may be arguable that a substance such as Powergel is an "explosive substance" in its core or ordinary meaning (since it is normally used as an explosive, and has no other purpose), even if the particular substance in question will not explode because, for example, there is an insufficient quantity or it has some defect. However, that question was not argued, and it is not necessary to deal with it.
The appellant argued that the "second limb" would apply only if the State could prove that the plastic tubes that formed part of the device contained active Powergel. However, in the absence of such evidence, the appellant submits that the device could not come within the scope of s 557 because the remaining "limbs" required a subjective intention to cause an explosion. The fact that the appellant was acquitted of the first count of the indictment meant, it was said, that the jury was satisfied that the appellant did not possess such an intention. The acquittal demonstrates that the jury was not satisfied that he intended to "endanger life", but for the purposes of this appeal I will assume that the jury was, or might have been, persuaded that he had not been proven to have intended to explode the device at all.
It is the appellant's case that the trial Judge erred in two respects. Firstly, the trial Judge did not assist the jury with fundamental questions of law - namely, whether the State had to prove that the Powergel was functional and whether the State had to prove that the substance was capable of exploding "as it was". Secondly, the trial Judge erred in failing to specifically direct the jury that they needed to be satisfied beyond reasonable doubt that the accused intended the materials to be used to cause an explosion.
There are, I think, two legal issues raised by the appellant's submissions. They are:
(1)In the expression "materials used or intended to be used" in the definition of "explosive substance", does the word "used", where it first appears, refer only to materials which have actually been used for the purpose of causing any explosion, rather than to materials which one might describe as "normally used" for such a purpose?
(2)In the expression "intended to be used or adapted for causing … any explosion", does the word "intended" govern both "used" and "adapted", rather than only "used"?
The appellant submits that the answer to both questions is in the affirmative. That is, it is submitted that the Powergel could not be regarded as a material "used" for causing an explosion, since it had not in fact been detonated. Further, none of the other materials referred to in the indictment were intended (or had been proved to have been intended) by the appellant to be either used or adapted for causing any explosion.
Because of the evidence of Roper, it is contended that the Powergel could not be regarded as an "explosive substance" in the common meaning of the term - that is, something which will actually explode under appropriate conditions (which I understand to be the appellant's "second limb" in the construction for which he contends), or, alternatively, this had not been put before the jury as a matter which it had to determine.
It is convenient to deal with the last submission first. I accept that, if it was necessary to prove that this Powergel was in fact capable of exploding, the evidence was not all one way. Had the issue been squarely raised with the jury, it appears to me that it might well have been the case that the jury would have found that, given that the appellant was the person who knew the most about the provenance and storage of the Powergel, his assertion that its detonation would have destroyed the house, would have been sufficient to satisfy them beyond reasonable doubt that it was in fact live, notwithstanding the theoretical possibility that it had deteriorated. However, this was a question which was never squarely put before the jury. I accept therefore that, if the only way that the State could prove the existence of an explosive substance was by proving that the Powergel was in fact capable of exploding, it would be necessary to quash the appellant's conviction and remit the matter for a retrial.
Before I consider the appellant's submissions in relation to the two questions I have identified at [26], it is convenient to refer to a number of unusual features of s 557 and s 299, to the legislative history, and to what I would regard as the natural construction of the definitions, against the background of that legislative history.
The first thing to note about the definitions in s 557 and s 299 is that they are differently punctuated. Although the words are the same, the legislature has in s 557 inserted a comma after the word "implement" which is missing from s 299. However, to compensate, s 299 has three commas which are not to be found in s 557, being the commas which mark off the expression "or aiding in causing" and the comma after "also". I have not attempted to trace the history of these commas. Each section has been amended in the past. None of the commas I have identified seems to me likely to affect the meaning of any of the aspects of the definition in issue in these proceedings. It seems likely that the variations stem from no more than oversight, or different fashions in punctuation, and I would regard the definitions as, for the purposes of the present examination, identical.

The second thing to note about both sections is the role which intention and knowledge play in each of them. So far as s 299 is concerned, an essential element of the offence created by it is the possession of the intent described in pars (1), (2) or (3), being the intent to cause an explosion likely to endanger life, the intent to endanger life or the intent to do bodily harm. So far as s 557 is concerned, it is not enough to have the dangerous or explosive substance in possession. Rather, unusually for an offence created in a Code jurisdiction, it is expressly provided that the person must "knowingly" have it in possession. Further, the circumstances must be such as to give rise to a reasonable suspicion about the object for which the person has it; that is, that he or she does not have it for a lawful object. Further, there is a defence available to a person under that section if the person can show (no doubt on the balance of probabilities) that he or she had a purpose which was lawful. It is, I think, important to the proper construction of the expression "explosive substance" to note that liability is not established merely by the proof that such a substance exists and is in a person's possession, but only if the various other mental states I have described have either been proved to exist or that there is a reasonable suspicion that they exist, as the case may be.
Finally, the first impression of the definition, which is that it is an intentionally broad one, is reinforced by an understanding of the legislative history. Although the punctuation in each case is different, the words of the definition are, in each case, relevantly identical with those in s 317(1) of the Crimes Act 1958 (Vic). That provision is, in turn, relevantly identical (although again the punctuation is different) with the definition of "explosive substance" in the Explosive Substances Act 1883 ((Imp), 46 Vict, c. 3). The history of the 1883 Act in England is colourfully set out in the reasons of Brooking J in R v Fyffe [1991] 2 VR 72 at 95 ‑ 97. The legislation was inspired by a fear that terrorists were planning the imminent destruction of public buildings. It was therefore, it appears, intentionally "drastic", as Brooking J described it.
Against that background, which to my mind confirms what would appear to be the natural construction, it seems to me that the definition of "explosive substance" includes the following matters. In the paragraphs which follow, the words in italics, if any, are the statutory terms which I consider ground the meaning set out.
(a)An "explosive substance" as commonly understood; anything which is capable of exploding, without further treatment, such as sticks of nitro‑glycerine. This is not mentioned expressly in the definition, but is plainly the core natural meaning. "Exploding" in that sense I would understand to encompass the two meanings first mentioned in the Macquarie Dictionary, being those of expanding with force and noise because of rapid chemical change or decomposition, and that of bursting, flying into pieces, or breaking up violently (the dictionary example being a boiler bursting from excessive pressure of steam);
(b)any materials for making any explosive substance; that is, the ingredients which can be used to make such a substance. For example, as I understand it, nitro‑glycerine is itself manufactured by a chemical process and the ingredients necessary for that process would be encompassed by the expression "any materials for making any explosive substance";
(c)any apparatus, machine, implement or materials used … for causing or aiding in causing any explosion; any materials normally used for causing or aiding an explosion; that is, timers, detonators, casings, etc which are of a type normally used for causing or aiding an explosion when "in or with any explosive substance";
(d)any apparatus, machine, implement, or materials … intended to be used … for causing or aiding in causing any explosion; any apparatus, etc or materials which, although not normally used for the purpose of aiding or causing an explosion, are intended to be used for that purpose. Leaving aside for the moment difficulties of proof, it would appear at least theoretically possible for this portion of the definition to encompass materials which were as a matter of fact never capable of being used for the purpose, provided that the intention existed;
(e)any apparatus, machine, implement, or materials … adapted for causing or aiding in causing any explosion; any apparatus, machine, implement, etc, which is adapted, in the sense of fit or suitable for the purpose, of causing or aiding in causing any explosion in or with any explosive substance; and
(f)any part of any such apparatus, machine or implement [as is described in pars (c), (d) and (e) above].
It can be seen that my reading at pars (c) ‑ (e) above is inconsistent with the appellant's proposed answers to the two questions I have identified in [26]. In contending for the answers she proposed, the appellant's counsel placed weight on two matters. The first was that, it was submitted, if the expression "explosive substance" was to be read as widely as I have suggested, then there would be a real danger of conviction of a person who merely possessed an item, such as a clock, or a timer, or a piece of wire, or a bag of fertiliser, which was an entirely innocent substance. That proposition does not survive an examination as a whole of each of the sections of which the definition is part. As I have pointed out, s 299 requires proof of one of three very specific types of intent before a person can be convicted. Section 557, while it does not require proof of intent, does require proof of knowledge of possession of the substance, together with circumstances giving rise to a reasonable suspicion of an other than lawful object, and a satisfaction that the person accused has not demonstrated that his or her purpose was lawful. Indeed, in those contexts, it seems to me that to interpret the expression "explosive substance" in a way which requires the demonstration of an intention to cause an explosion would be to render redundant, in many cases, the other parts of those sections which deal with intention, knowledge and object.
Second, the appellant's counsel relied particularly on certain passages from the Victorian case of R v Fyffe (supra). In that case, Murphy J expressed the view that the expressions "used" and "intended to be used" were directed respectively at use in the past and intended use in the future, rather than common or normal use as distinct from intended use. The reason given for that was (at 80):
" … the juxtaposition of 'used' with 'intended to be used', in the definition does suggest that the expressions complement one another and I think that 'intended to be used' has a future sense, in which 'used' is synonymous with 'employed' or 'put to use'."
However, in my view, the expressions equally complement one another if one understands one to be referring to material which is commonly or normally or usually used for a particular purpose, and the other to be referring to material which, while not commonly or normally or generally used for that purpose, is intended in the particular case to be so used.
As to the other reasons in Fyffe, it is not entirely clear to me what view McGarvie J took of the meaning of "used", although certain observations of his Honour's at 86 of the report suggest that he, too, accepted the future/past dichotomy. However, his Honour did not give a reason for doing so. Brooking J at 99, on the other hand, was attracted to the view expressed by Pape J in the earlier case of R v Tween [1965] VR 687, which was to the effect that "used" referred to the normal use of an object.
As to the expression "adapted", Brooking J in Fyffe noted, in my respectful view correctly, that there was an interrelationship between the question of what was meant by "intended to be used" and what was meant by "adapted". His Honour was attracted to the view of Pape J that "adapted" meant, not altered in some way, but simply suitable (at 100). There were some differences in the way in which Murphy J and McGarvie J dealt with the expression "adapted". Murphy J was clearly of the view that the expression "intended" did not govern the word "adapted" (at 79) and that view was shared by McGarvie J (at 86). However, each of their Honours seems to have taken the view, in the passages to which I have referred, that an item would only be "adapted" for causing or aiding in causing an explosion if it had been altered for the purpose of making it suitable, rather than falling within that description if it was fit or suitable for that purpose, whether altered or not. Murphy J, in that connection, referred to the construction given to the word "adapted" in other contexts, but acknowledged that the requirement for modification or alteration for a purpose would appear to introduce a subjective element of intent, which might be thought to be somewhat redundant in a context where the Crown was required to prove circumstances giving rise to a reasonable suspicion that there was no lawful object (at 81). In my respectful view, that redundancy is an unlikely consequence, and the reasons of Brooking J in that respect are to be preferred.
For the reasons given above, I am not persuaded that the matters referred to by counsel for the appellant should displace what I would regard as the natural construction of the expression "explosive substance" in the context of s 557 and s 299, which I have set out above at [34]. Turning again to the facts of this case, it must be conceded that the jury was not directed in those terms. Rather, they were left, unaided, to understand the definition for themselves. As I have noted, that is perhaps not surprising having regard to the way the trial was run. However, the question now arises as to whether, had the jury been properly instructed, there was any view of the evidence which might have been taken which might have led to a reasonable doubt in their minds concerning whether a device containing 11 sticks of Powergel attached to a battery and a quantity of steel ball bearings constituted an "explosive substance".
In my view, the device described must have constituted an explosive substance, for either of two reasons. First, the Powergel was itself material normally used for causing an explosion (my par (c) at [34] above). There was no evidence to suggest that it had or could have had any other use or purpose. In my view, it is necessary for the State only to prove that the material in question falls within the category of materials normally used for such a purpose. That is, it is necessary to prove that it is gelignite, or that it is a timer of a type normally used in explosive devices, or something of that kind. It is not necessary to prove that the particular device is not, by reason of some manufacturing fault, or some past careless storage, or for some other reason, in fact incapable of exploding. Of course, if there was some evidence which might lead to a reasonable possibility that an accused person in possession of such material knew or believed that it suffered from such a defect, or had been stored in such a way as to be inactive, it might well be open to a jury to form a view that those circumstances therefore did not give rise to a suspicion that he or she did not have it for a lawful object.
The only potential difficulty with this view, when one considers the Powergel, is that the definition refers to "materials used … for causing … any explosion in or with any explosive substance" (emphasis supplied). This expression reads oddly if the material is itself normally material which is an explosive substance. The definition is, however, an inclusive one, and the words which I have emphasised are added, in my view, only to avoid any doubt which might otherwise have arisen in relation to materials which could not explode on their own, for example, a completed bomb casing, timer and detonator, which lacked only the explosive.

Alternatively, the battery and steel ball bearings, arranged in the way in which the appellant had arranged them, were inevitably either themselves an apparatus, machine or materials adapted (in the sense of fit or suitable) for aiding in causing an explosion, or alternatively a part of such apparatus or machine. As I have noted, in its ordinary meaning, "to explode" includes to burst or fly into pieces or to expand with force. The evidence was that the battery was adequate to produce power for the detonators which were found in the house to function. The evidence as to the ball bearings was that detonation of the Powergel would have caused the ball bearings to travel with considerable force in all directions, thereby plainly increasing the force of any explosion. Indeed, as I have noted, the evidence of the appellant himself was that he had created what in his view was an explosive device which he did not intend to detonate, but which would have caused a considerable explosion if he had done so. Even if the Powergel had proved not to be "live", the rest of the apparatus which he had rigged up (that is, the ball bearings and the battery) if put together with a detonator and live Powergel (that is, if put together "with any explosive substance") would have caused an explosion of considerable force. No other view was open, on the evidence.
I would dismiss the appeal.
McLURE JA: I have had the advantage of reading in draft form the reasons for judgment of Wheeler JA. I agree that the appeal should be dismissed. However, I wish to make some short observations on the proper construction of s 557 of the Criminal Code (WA). The facts are set out in the reasons of Wheeler JA.
The definition of "explosive substance" in s 557 has four limbs being:
1.explosive substance in its natural and ordinary meaning;
2.materials for making any explosive substance;
3.any apparatus, machine, implement or materials:
(i)used; or
(ii)intended to be used; or
(iii)adapted
for causing or aiding in causing any explosion in or with any explosive substance;
4.any part of any such apparatus, machine or implement.

The appellant's oral submissions (which did not reflect the written submissions or the submissions made to the trial Judge) were to the effect that:
(1)for powergel to be an explosive substance, it was necessary for the prosecution to establish that it was capable of exploding;
(2)to fall within the third limb of the definition, it was necessary for the prosecution to establish that the appellant was in possession of any apparatus, machine, implement or materials with the intention of causing an explosion and further:
(i)the trial Judge erred in failing to give a direction to that effect; and
(ii)in any event, a finding of intention was foreclosed by the not guilty verdict on count 1;
(3)based on the way the charge was particularised and the conduct of the prosecution case, the prosecution had to establish that the device was capable of exploding;
(4)the prosecution had not relied at trial on the second limb of the definition of explosive substance and was precluded from doing so on appeal.
The term "explosive substance" in its natural and ordinary meaning is a kind of material that is able to explode. I do not agree that it must be capable of exploding without anything being done to it. Powergel Magnum 365 is a plastic explosive and an explosive substance notwithstanding that it ordinarily requires a detonator to cause it to explode. Where such a substance is part of a device commonly referred to as a bomb, it is the substance not the bomb that is the explosive substance within the first limb of the definition. That is consistent with the natural and ordinary meaning of the word "substance" and with the reference in the third limb to causing an explosion "in or with any explosive substance".
I accept the appellant's contention that the prosecution was required to establish that the powergel in the possession of the appellant retained the capacity to explode. I agree with Wheeler JA for the reasons she gives that it was reasonably open on the evidence for the jury to conclude that the powergel remained active but that the trial Judge would need to direct the jury in relation to the issues.
The second limb of the definition, being the materials for making any explosive substance, is self explanatory. So, for example, sugar, potassium chlorate and sulphuric acid together can produce an explosive substance (R v Fyffe [1991] 2 VR 72 at 99). It follows from my view of the meaning of the term "explosive substance" that the various components of a bomb do not fall within the second limb. The various components of a bomb (other than the explosive substance which is within the first limb), come within the third limb of the definition of explosive substance.
Much attention in the appeal was focussed on the third limb of the definition. The appellant's primary submission was that because of the breadth of the definition of explosive substance, which encompasses many items used primarily for benign or lawful purposes, the legislature must have intended that the person make or be in possession of the apparatus etc with the intention of causing or aiding in causing any explosion in or with any explosive substance. The elements of the offence in s 557 contradict the requirement for any such intention. A person is guilty of a crime under s 557(1) if that person:
(1)makes, or knowingly has in his possession or under his control
(2)any dangerous or explosive substance
(3)under such circumstances as to give rise to a reasonable suspicion that he is not making it, or does not have it in his possession or under his control for a lawful object,
(4)unless he can show that he made it, or had it in his possession or under his control for a lawful purpose.
The evident legislative intention is to rely on proof of a suspicion of an unlawful object to give rise to an onus on the defendant to establish the lawfulness of his purpose. That intention is undermined if all aspects of the third limb of the definition require proof of an intention to cause an explosion. The offence in s 557 is to make or be in possession of an explosive substance. The offence is not to make or be in possession of an explosive substance for the purpose or with the intent of causing an explosion. Moreover, the breadth of the definition of explosive substance is kept within reasonable bounds by the third element of the offence requiring reasonable suspicion of an unlawful object.
Thus, I agree with Wheeler JA for the reasons she gives that the word "used" in limb 3(i) means "commonly used" not "had been used" and that the words "intended to be" in limb 3(ii) only qualify the word "used" not "adapted". The remaining question is the meaning of the expression "apparatus [etc] adapted for causing or aiding in causing any explosion in or with any explosive substance".
The natural and ordinary meaning of the word "adapt" includes fit, adjust (one thing to another), or modify. In my assessment, the word "adapted" in the third limb is intended to have corresponding meanings, none of which require proof of intention or purpose. Rather there must be an objective connection between the item as adapted and its capacity or suitability for causing an explosion. The present case provides an excellent example. As counsel for the appellant put it in his closing address to the jury (at T 160) the appellant constructed the device by gluing ball bearings to a plastic board, then fitting 11 sticks of powergel to the back of the plastic board, each individually tied to the board, and finally using tape to fix the torch battery to the plastic board. The battery was capable of functioning a detonator causing powergel to explode. The attachment and placement of the ball bearings and battery in relation to each other and to the powergel mandates a conclusion that at least the battery was "adapted for causing any explosion". No other view was open on the evidence. It is unnecessary to determine whether the ball bearings were adapted to aid in "causing" any explosion with the powergel. As I understand the evidence, the ball bearings would become part of the explosion thereby magnifying its destructive force. Counsel for the appellant conceded, correctly in my opinion, that it was unnecessary to prove that the relevant items are capable of exploding in order to come within the third limb of the definition.

The final matter is the appellant's claim that as a result of the way the charge was particularised and the trial conducted, the prosecution had to prove that the device itself was capable of exploding. The defence case at trial was that the device was not an explosive substance because it was incapable of exploding in the absence of detonators which had not been affixed to the device. That reflects a misunderstanding of the definition of explosive substance. The charge is ambiguously framed and leaves open the possibility of reliance on the individual components of the device as explosive substances. Further, it is apparent from the prosecutor's closing address to the jury that, in addition to relying on the device as the explosive substance, the prosecution also relied on the individual items comprising the device as materials used or intended to be used or adapted

for causing an explosion (T 146). There was no objection to that course. I would dismiss this ground and the appeal.

BUSS JA: I agree with McLure JA.