Whelan v Kallane - [2021] WASC 74

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WHELAN -v- KALLANE [2021] WASC 74
CORAM:   TOTTLE J
HEARD:   15 MARCH 2021
DELIVERED          :   24 MARCH 2021
FILE NO/S:   SJA 1069 of 2020
BETWEEN:   MATTHEW ANTHONY HOWARD WHELAN
Appellant
AND
MARCEL KALLANE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   DEPUTY CHIEF MAGISTRATE E WOODS
File Number            :   PE 53596 of 2019

Catchwords:

Criminal law - Appeal against conviction - Mistake of fact defence - Whether mistake one of law or fact - Whether appellant acted under an honest and reasonable but mistaken belief as to a state of things - Whether relevant state of things was capable of altering appellant's criminal responsibility

Statutory construction - Firearms regulation - Offence creating provisions - Whether offence created by description of items that are not firearms - Where regulations prohibit items by description

Legislation:

Criminal Code (WA), s 24
Firearms Act 1973 (WA), s 6(1)
Firearms Regulations 1974 (WA), reg 26

Result:

Leave to appeal on grounds 1 and 2 granted
Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered

Category: B

Representation:

Counsel:

Appellant	:	Mr R K Williamson
Respondent	:	Mr J Johnston

Solicitors:

Appellant	:	Ross Williamson
Respondent	:	Commonwealth Director Of Public Prosecutions

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

Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Bailey v Doncon [2007] WASC 252
Binns v Gardiner [2002] WASCA 337
Buckingham v Nuttall [2021] WASC 35
Denton v Bodycoat [2000] WASCA 424
Granato v Marsh [2018] WASC 201; (2018) 335 FLR 49
McGee v Chitty [2010] WASC 67
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Stackhouse v Curulli (unreported, WASC, Library No 920251, 30 April 1992)
Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 189 A Crim R 23

TOTTLE J:

Introduction

On 27 August 2020, following a trial in the Magistrates Court, the appellant was convicted of one charge that he was in possession of a prohibited firearm, namely a 'forward venting' blank firing imitation pistol, contrary to s 6(1) of the Firearms Act 1973 (WA) (the Act). The appellant was fined $800 and granted a spent conviction order. The appellant was ordered to pay the respondent's costs.
The appellant seeks leave to appeal against this conviction and seeks orders setting aside the conviction and substituting a judgment of acquittal.

Background

In 2008 the appellant purchased a 'forward venting' blank firing imitation pistol (the imitation pistol) from a retail store in the Perth CBD. At the time the imitation pistol was purchased it was not a prohibited firearm under reg 26(1) of the Firearms Regulations 1974 (WA) (the Regulations).
At trial an expert witness for the prosecution, Mr Milonas, explained the nature of a forward venting blank firing imitation firearm as follows:[1]
Forward venting blank firearms have a partial obstruction within the [bore] in the form of a crucifix. The intention is so that it can't fire ammunition from the chamber out the barrel. So it's in the form of a crucifix, which still allows the gasses to vent forward through the muzzle or through the - down the barrel and out through the muzzle; muzzle being the end of the firearm. So the gasses have to vent forward. There's no other way that the gasses can escape.
[1] ts, 3 August 2020, 13.
Mr Milonas explained that although live ammunition could not be fired from the chamber, a bullet could be loaded into the muzzle of the firearm and propelled by the escaping gasses from the discharge of a blank cartridge.[2]
[2] ts, 3 August 2020, 13 - 14.
On 16 April 2019 the appellant went to Perth Airport where he intended to board a plane. He had with him a backpack containing the imitation pistol. The appellant handed over the backpack for X-ray screening at a pre-boarding security checkpoint. The backpack was searched and the imitation pistol subsequently seized.
The appellant's evidence is a matter to which I will return in more detail later, however it is sufficient to record that the appellant explained that he had not intended to bring the imitation pistol on board the flight. Rather, he had used it as a prop in an emergency training scenario after which he had put it in his backpack and forgotten about it.

Magistrate's findings

The trial took place on 3 August 2020. The magistrate reserved her decision until 27 August 2020. This appeal is concerned with the magistrate's conclusion that the appellant had not established a defence under s 24 of the Criminal Code (WA) (the Code). It is to that part of the reasons that specific attention is required.
The relevant passages of her Honour's reasons are as follows:[3]
[3] ts, 27 August 2020, 5 - 7.
Mr Whelan gave evidence in this matter. He indicated that he had purchased this when he was a younger person. He didn't purchase it for any particular reason otherwise, other than he thought it was a pretty cool thing to have. He said at that time he didn't turn his mind to this issue about whether it was actually a firearm. He said he didn't have any general expertise in relation to that and this particular firearm, and he was not aware of the capacity to operate it as a muzzle-loading firearm. Obviously Mr Milonas, with his expertise, was able to do that and make the firearm shoot the projectile.
Mr Whelan indicated that the first time that he was aware that this could fire anything was as a result of these proceedings, and that he - when he saw that the barrel itself had been - had an obstruction - a partial obstruction in it - that that allayed his concern that it could fire at all, and as far as he was concerned it was like a prop or something like that, that only made a noise when you pulled the trigger, and so it was used in his training role as a desensitising item, in terms of some sort of roleplaying of scenarios that he was involved in in this training with his friend.
In relation to the firearm itself, he indicated that he had not done any research about it, obviously, until this all came up and he had been spoken to by the officers concerned. He hadn't made any inquiries about it since he purchased it in 2008 and, although he held a licence for other firearms that were registered, he hadn't inquired about needing a licence for this or hadn't kept up to date with the regulations that relate to these items.
In relation to the item itself, clearly, it was not tendered to the court. The court did not receive it as an exhibit, but there were photos produced to the court of the firearm concerned. They were taken, I think, by Mr Milonas and certainly, for the purposes of the exercise, it looks for all intents and purposes like a handgun, but with the obstruction. Unless you knew something about firearms and specifically looked at that aspect, it - to the naked eye and to the uninitiated and unfamiliar - would look like a handgun.
…
In relation to the honest and reasonable mistake, certainly, Mr Whelan had an arguable case that he had a mistake as to fact in relation to this item, and it's to be noted that when he purchased it in 2008 this item was not part of the regulation 26. That was added subsequent to his purchase, in 2009, I think.
…
Obviously, if this is a mistake of law, then the matter goes no further. He says that he had a mistake of fact and it was honest and reasonable to hold that belief, because it couldn't shoot a projectile and, as far as he was concerned, that was what made something a firearm. In relation to that, that is simply incorrect on his part.
He did not make any inquiries in relation to this item. He was unaware that it could, in fact, be loaded as a muzzle-loading item. Its status changed from 2008, when he purchased it, to 2009. The nature of the item itself is one that is very dangerous, and that is borne out by the report and the video demonstration and the comments and evidence given by the expert, Mr Milonas.
Whilst the accused may have had this mistake of fact as to the nature of this item, it is not my view that that mistake is one of fact that is reasonable in all the circumstances, because he simply did not turn his mind to it. Once he had purchased the item, he took it out from time to time. He took it to this training session and he did not, at any stage, make any further inquiries.
He did not check any of the regulations. He was familiar with those. He had other firearms. He had a capacity to do that and he did not. In those circumstances, whilst he held this belief and he may have held it honestly, it is not, in my view, an honest and reasonable belief for him to have held, having made no inquiries. In those circumstances, I intend to find the charge to be proven and to enter conviction.

Grounds of appeal and leave to appeal

The appellant relies on three grounds of appeal. They are:
(1)The learned magistrate erred in law by failing to acquit on the grounds that the prosecution had not negatived the exculpatory effect of s 24 of the Criminal Code.
Particulars
(a)Section 24 was enlivened by the appellant's belief that the imitation pistol the subject of the charge was not a device that could discharge a projectile.
(b)Had the real state of things been as he believed them to be the appellant would not have possessed a firearm.
(c)In that case, he should have been acquitted.
(2)The learned magistrate erred in law and fact by holding the appellant's failure to keep track of changes of the law relating to firearms was relevant to her Honour's assessment of the reasonableness of the appellant's belief about the physical characteristics of the imitation pistol.
(3)The learned magistrate erred in law and fact by employing reasoning that wrong [sic] assumed the appellant bore the onus of proving the application of the defence under s 24.
Pursuant to s 9(1) of the Criminal Appeals Act 2004 (WA), leave of the court is required for each ground of appeal.
For the reasons that follow I will grant leave to appeal on grounds 1 and 2 and allow the appeal. I will set aside the conviction of the appellant, and will substitute a judgment of acquittal. It is unnecessary to consider ground 3.

Applicable principles

The grounds of appeal allege that the magistrate made express errors of law or fact (or both). Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[4] As Archer J recently observed:[5]
Generally, an immaterial or inconsequential error will not give rise to a substantial miscarriage of justice. Where an error could not have affected the outcome, an appeal court will generally be able to conclude that there has been no substantial miscarriage of justice. (footnotes omitted)
[4] Criminal Appeals Act 2004 (WA) s 14(2).
[5] Buckingham v Nuttall [2021] WASC 35 [26].
Section 24 of the Code provides:
24.Mistake of fact
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
The nature of the defence under s 24 of the Code was explained by the High Court in Ostrowski v Palmer.[6] Gleeson CJ and Kirby J explained:
The common law applicable to a case such as the present was stated by Jordan CJ in R v Turnbull, in a passage quoted by Brennan J in He Kaw Teh v The Queen, as follows:
' … it is also necessary at common law for the prosecution to prove that [the accused] knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged.'
What Jordan CJ referred to as 'the ingredients necessary to make the act criminal' are what we have earlier called the elements of the offence. Sections 22 and 24 must be read together. The reference in s 24 to a belief in the existence of a state of things must be, and can be, understood in the light of s 22, and of the common law principle reflected in ss 22 and 24. In a case such as the present, the key to such understanding is in Jordan CJ's reference to 'the facts constituting the ingredients necessary to make the act criminal'. Section 24 is not concerned with mistakes at large. In particular, it is not concerned with mistakes about whether there is a law against conduct of a certain kind. Section 24 requires that attention be directed to the elements of the offence charged, and to the facts relevant to those elements, understood in the wider sense explained at the commencement of these reasons. It requires identification of the act or acts alleged to constitute the offence, and consideration of the extent to which the accused would have been criminally responsible for such act or acts 'if the real state of things had been such as he believed to exist'. Section 24 applies to mistakes about the elements of the offence, not mistakes about the existence of the law creating the offence.
[6] Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493.
The defence involves both objective and subjective considerations. The objective reasonableness of an accused's belief is assessed by reference to the subjective circumstances in which the accused was placed, including the accused's personal attributes and information available to him or her at the relevant time.[7] Whether a mistake is honest and reasonable is a question of fact. Assessment of the reasonableness of a belief requires attention to the protective policies of the Act. The assessment is not made with the benefit of hindsight.[8]
[7] Granato v Marsh [2018] WASC 201; (2018) 335 FLR 49 [41], citing Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 189 A Crim R 23.
[8] Bailey v Doncon [2007] WASC 252 [76].
In Aubertin v The State of Western Australia,[9] McLure JA, with whom Roberts-Smith and Buss JJA agreed, stated at [43]:
For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element) … The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive.
[9] Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87.
It has been observed that the distinction between a mistake of law and a mistake of fact cannot always be readily drawn. It is necessary to determine with precision what the mistake truly was.
In Bailey v Doncon, the appellant was convicted of consigning a type of totally protected fish (setose western rock lobster). An inspection of a consignment made by the appellant discovered 39 rock lobsters considered to be setose. The appellant had delegated the task of checking the consignment to deckhands he employed. On appeal, Beech J observed that:[10]
It should be observed at the outset that the relevant mistaken belief, for the purposes of s 24, is a belief that every lobster consigned was not setose or otherwise illegal. The question of reasonableness is directed to the belief that every lobster was legal. It is not directed to the reasonableness of the system in general or to the reasonableness of the appellant's conduct as a whole: Starling v Ostrowski at [25], [26]; Ferrari v Neenan at [12], [13], [21]; O'Brien v Ostrowski [1999] WASCA 184 at [111]. (emphasis added)
[10] Bailey v Doncon [57].
His Honour concluded that in the circumstances found by the magistrate the belief was reasonably held and the appeal should be allowed.
In Granato v Marsh, McGrath J considered the defence of mistake of fact as it stands under s 9.2 of the Criminal Code (Cth). Mr Granato was convicted on his plea of importing a firearm accessory, namely an unfinished firearm suppressor, contrary to the Customs (Prohibited Imports) Regulations 1956 (Cth) and the Customs Act 1901 (Cth). 'Firearm accessory' was defined by those regulations to mean:
Firearm accessory means any of the following devices, whether or not complete, damaged, temporarily or permanently inoperable, or unfinished:
(a)a silencer, sound moderator, sound suppressor or any other device designed to, or capable of, reducing the noise of discharge of the firearm;
(b)a device designed to modify, or capable of converting, a firearm to give it any of the following capabilities:
(i)burst fire;
(ii)semi-automatic operation;
(iii)fully automatic operation;
(f)a firearm part to which a firearm accessory is attached or is integral.
Mr Granato appealed to this court on the basis that a miscarriage of justice occurred when he pleaded guilty on the basis of incorrect legal advice. Mr Granato had been advised that he did not have any viable defence to the charge. On appeal it was contended that Mr Granato did have a viable defence to the charge on the basis that (a) he believed he was importing a 'solvent trap' and not any other device; and (b) that this mistaken belief was a mistake of fact as to a material element of the charge.
A solvent trap is a device that can be fitted to the barrel of a firearm to catch solvents used while cleaning a firearm. It was apparently common ground on appeal that a solvent trap was capable of being converted into a device akin to a silencer.[11] McGrath J made the following observations:[12]
Mr Granato states that the facts that he knew at the relevant time were that he caused the importation of a solvent trap cleaner for a firearm. He says that he had no knowledge that the solvent trap cleaner could be modified and used as a suppressor. In my view the question that must be asked, to apply the test stated by Gleeson CJ and Kirby J in Ostrowski v Palmer is as follows:
(1)If the solvent trap cleaner that was imported did not have characteristics that were capable, when modified, of reducing noise discharge, would Mr Granato have been guilty or not guilty?
The answer to that question must be not guilty. That is because the law only prohibits the importation of firearm accessories. Based upon the evidence adduced on the appeal there is no basis to conclude that all solvent trap cleaners are 'firearm accessories' as defined in the Regulations. At the hearing of the appeal the Commonwealth accepted that whether all solvent trap cleaners are firearm accessories is a question that would require expert evidence.
If Mr Granato believed that he was simply importing a solvent trap cleaner then that stated belief would constitute a mistake of fact for the purposes of s 9.2 of the Criminal Code (Cth).
[11] There was not however any expert evidence, such as in the present case, to assist the court in this regard.
[12] Granato v Marsh [49] - [51].

His Honour continued in respect of the reasonableness of such a belief as follows:[13]
The Commonwealth submitted that it was necessary for Mr Granato to have positively considered whether the solvent trap cleaner was capable of being modified to become a suppressor. I doubt that it would be necessary for Mr Granato to establish that he considered whether the solvent trap cleaner could be modified into being a firearm accessory. It was necessary for Mr Granato to consider the characteristics of the product that he was importing (which he did) and thereby believed that the item was a solvent trap cleaner. That is, his belief was that the item he imported was a firearm cleaner. Whether that is sufficient to establish reasonableness requires an assessment of all relevant factors bearing on that determination. It is neither necessary, nor appropriate, for me to determine whether Mr Granato's belief would be unreasonable. That would require a trier of fact to hear evidence and to determine the charge on the prosecution notice. All that is necessary for me to decide is whether I am able to find that the defence of mistake of fact was arguable with a reasonable prospect of success, and thus whether it is arguable that Mr Granato held that belief. The evidence adduced on the appeal suggests that that was so. Whether that is established at trial on the evidence adduced at trial is an entirely different question.
[13] Granato v Marsh [52].

Legislative scheme

In Stackhouse v Curulli,[14] commenting on the Act, Owen J observed:[15]
The Act has a number of features to it. It is essentially a regulatory enactment and its purpose is to ensure that firearms are controlled. This seems to have two aspects. The first is the ability to register and trace weapons. The second is the protection of the public. Offences against the Act must be treated with some seriousness.
[14] Stackhouse v Curulli (unreported, WASC, Library No 920251, 30 April 1992).
[15] Stackhouse v Curulli, 9.
The protection of the public as a policy of the Act was reinforced by Hasluck J in Binns v Gardiner.[16]
[16] Binns v Gardiner [2002] WASCA 337 [61], [65]. See also McGee v Chitty [2010] WASC 67 [43].
Section 6(1) of the Act provides:
6.Prohibition
(1)The Governor, on the recommendation of the Commissioner, may make regulations to prohibit the acquisition, sale, possession, or use of any firearm, silencer or other contrivance of a similar nature, or ammunition, whether licenced under this Act or not, either -
(a)absolutely; or
(b)except upon and subject to such conditions, restrictions, and limitations, for such purpose or purposes, and in such place or places, as the Governor considers desirable in the public interest,
having regard to the especial potentially dangerous nature of that kind of firearm, contrivance or ammunition and the need to exercise special precautions in relation thereto, or otherwise in the public interest.
Section 8 provides an enumeration of persons who are exempt from the need for a licence under the Act. It was not contended that the appellant was a person exempt under s 8.
'Possession' is defined in s 4 of the Act to mean:
in addition to actual physical possession of a firearm or ammunition, means the custody or control of it, or having and exercising access to it in any place either alone or in common with others.
'Firearm' is defined as follows:
Firearm includes any lethal firearm and any other weapon of any description from which any shot, bullet, or other missile can be discharged or propelled or which, by any alteration in the construction or fabric thereof, can be made capable of discharging or propelling any shot, bullet or other missile, but does not include anything that is prescribed in regulations under the Weapons Act 1999 to be a prohibited weapon or a controlled weapon.
Regulation 26(1) of the Regulations provides that 'the acquisition, sale, possession or use of a firearm or ammunition specified in the Table to this regulation is absolutely prohibited'. The relevant table includes, inter alia, a 'forward venting' blank firing imitation firearm.
Under the Weapons Act 1999 (WA), s 7(1) it is an offence to possess a controlled weapon without lawful excuse. Controlled weapons are specified in Sch 2 of the Weapons Regulations 1999 (WA). Item 10 of Sch 2 is as follows:
10.Imitation firearm
An article, not being an article that is clearly a toy, that has the appearance of being a firearm but is not capable of discharging a missile. (emphasis added)

The parties' submissions

The parties' submissions on grounds 1 and 2 were straightforward and can be easily summarised.

Appellant's submissions

The appellant advanced the following propositions.
First, on a proper construction of the Act and the Regulations, s 6(1) and reg 26(1) in combination create an offence in respect of (relevantly) firearms, as that term is defined in the Act. It is therefore necessary for the prosecution to establish as an essential factual element of the charge that the item possessed by the appellant was a firearm and that the item was a type of firearm prohibited by the table in reg 26. In this regard the appellant submitted that the table in reg 26 provides a list of descriptions of types of firearms and ammunition which are absolutely prohibited. The appellant accepted that the prosecution established the necessary elements of the offence at trial and pointed to the fact that the prosecutor called expert evidence to establish that the imitation pistol was capable of discharging a bullet or missile as supportive of his construction.
Secondly, the appellant was mistaken in a relevant sense because he did not believe that he was in possession of a lethal firearm or any other weapon from which any shot, bullet, or other missile could be discharged or propelled. To the contrary the appellant honestly believed that he was in possession merely of an imitation or replica weapon, incapable of discharging or propelling any form of projectile. The appellant submitted that if the real state of affairs had been such as he believed then he would not have possessed a firearm and would not have committed any offence. On that basis the appellant submitted that his mistake was plainly one of fact and not of law.
Finally, on a proper assessment of the facts as a whole, it was reasonable for a person in the appellant's circumstances to hold that belief. The appellant draws the court's attention to the following conclusion of the magistrate:[17]
He did not check any of the regulations. He was familiar with those. He had other firearms. He had a capacity to do that and he did not. In those circumstances, whilst he held this belief and he may have held it honestly, it is not, in my view, an honest and reasonable belief for him to have held, having made no inquiries.
[17] ts, 27 August 2020, 7.
The appellant contends that the magistrate erred by assessing the reasonableness of his belief by reference to the appellant's failure to ensure that he was aware of the amendment to Regulation 26(3). The appellant relies on the following circumstances as demonstrating the reasonableness of his belief:
(1)The imitation pistol was designed and manufactured as an imitation. The obstruction in the barrel made clear that the ʽbarrelʼ does not accommodate a projectile.
(2)Throughout the course of the dealings with this item during the investigation, as revealed in the evidence, and in the course of the trial, it is described as a replica or imitation. The meaning of those words excludes real firearms.
(3)The circumstances of the purchase of the device suggest everyone involved (seller and buyer) thought that the device was not a real firearm. The appellant bought it in a well-known retail shop in the central business district of the capital city of the jurisdiction without paperwork. The possessor of a real firearm has to have a firearms licence. The shop would need a firearms dealerʼs licence and the buyer would need a firearms licence.
(4)The appellant’s friend had an identical device, without a licence. Another friend had a similar one. No-one told him that any of these things are regulated by the Act.
(5)People were buying imitation firearms without licences at retail shops before the relevant Gazette was published. No doubt, after then, Wellington Surplus and other retail shops were told by police to stop selling them.
(6)The description of the item unambiguously suggests it is an imitation.

Respondent's submissions

For the purposes of the appeal the respondent did not contest the appellant's belief that the item was incapable of being used to propel a bullet or other missile. The respondent defended the appeal on the basis that such a belief went to a state of things that is irrelevant to a charge under s 6(1) of the Act.
The respondent submitted, simply, that s 6(1) allowed for the making of regulations absolutely prohibiting the possession of certain things, and one of the things prohibited by the table in reg 26 was, and continues to be, a 'forward venting' blank firing imitation firearm.
From this base the respondent advanced the following two contentions.
First, the appellant was well aware that he possessed a 'forward venting' blank firing imitation firearm, he was not mistaken as to the physical characteristics of what he possessed. In the respondent's submission the question to be answered is whether the appellant possessed something prohibited by the regulations and not whether the thing prohibited by the Regulations also met the definition of 'firearm' under the Act. The respondent drew attention to the fact that the grounds of appeal did not allege that the Regulations were ultra vires or otherwise not valid for the purpose of s 6(1).
Second, the respondent submitted that in truth the appellant was mistaken as to a question of law, the relevant mistake being that the item he possessed was not prohibited by the Regulations. The respondent relied on the decision of Ostrowski v Palmer and Denton v Bodycoat[18] as providing a useful analogy to the present case.
[18] Denton v Bodycoat [2000] WASCA 424.
The respondent sought to explain that he did not adduce expert evidence of the firing capabilities of the imitation pistol to establish that it was a firearm under the Act, but rather that this evidence was led in relation to the reasonableness of the mistake if it was made.
Finally, the appellant accepted that 'there may have been some error' in the magistrate's consideration of the reasonableness of the appellant's mistaken belief but that for the reasons given in relation to ground 1, no substantial miscarriage of justice could have occurred by way of such error.

Consideration

It is convenient to consider grounds 1 and 2 together. My analysis is as follows:
(1)For an article to constitute a 'forward venting' blank firing imitation firearm it must be capable of discharging a shot, bullet or other missile (for short, a bullet) - this is the essential feature of a firearm under the Act. It is the capacity to discharge a bullet that distinguishes a firearm from an 'imitation firearm' as defined in the Weapons Regulations.
(2)The imitation pistol in the possession of the appellant was a 'forward venting' blank firing imitation firearm falling within the list of 'prohibited firearms and ammunition' listed in the table to reg 26(3). It was a firearm within the meaning of s 4 of the Act.
(3)The appellant's evidence at trial supported the conclusion that he believed that the imitation pistol was not capable of discharging a bullet. This was a mistaken belief as to the capacity of the imitation pistol, a matter of fact. Put another way, the appellant's evidence was to the effect that he did not regard the imitation pistol as a firearm because it was not capable of discharging a bullet.
(4)The word 'imitation' in the term 'forward venting' blank firing imitation firearm does not bring articles that are not firearms (that is articles that do not satisfy the statutory definition of a firearm) within the class of 'prohibited firearms and ammunition' specified in the table to reg 26. I agree with the magistrate who held that the word was simply used to describe the article and make it clear that even though it may be referred to (inaccurately) as an imitation and have the appearance of being an imitation (because of the obstruction in the bore) it is nevertheless a firearm. Read in its wider context this method of identifying prohibited firearms is unsurprising, for example, reg 6(1a) allows the Governor to make regulations in respect of a type for firearm or ammunition which 'is named, or falls within a description given in, or is otherwise identified by' the Regulations. The construction I prefer is supported by the plain wording of s 6(1) which allows for the making of regulations to prohibit the 'acquisition, sale, possession, or use of any firearm … or ammunition' and reg 26(1) which provides 'the acquisition, sale, possession or use of a firearm or ammunition specified in the Table to this regulation is absolutely prohibited.'
(5)If the 'state of things', that is, the capacity of the imitation pistol, had been as the appellant believed them to be (that is, the imitation pistol had no capacity to discharge a bullet), he would not have been guilty of the offence with which he was charged, because on the basis of that state of things the imitation pistol would not have been a firearm.
(6)The magistrate was prepared to accept that the appellant had an honest belief that the imitation pistol was not capable of discharging a bullet, though, her Honour stopped short of making a positive finding to this effect but concluded that any such mistake of fact was not reasonable in all the circumstances. The circumstances identified by the magistrate were that the appellant did not turn his mind to whether the imitation pistol could discharge a bullet and did not check the Regulations even though he was familiar with them and had the capacity to do so. In my view the appellant's evidence established that he had an honest belief that the imitation pistol did not have the capacity to discharge a bullet. With respect I disagree with the magistrate's reasoning that this was not a reasonable mistake. The status of the imitation pistol under the Regulations did not bear upon its physical characteristics and capacity. Put another way, the Regulations would not have informed the appellant that the imitation pistol was capable of discharging a bullet. Moreover, the circumstances relied on by the appellant and set out above,[19] are such that the appellant would have had no reason to suspect that there may have been a change in the regulatory regime that meant that his possession of an imitation pistol purchased over the counter would be illegal. These factors lead me to the conclusion that it was objectively reasonable for a person in the appellant's circumstances to hold the belief that he did. In light of these conclusions I am of the view that the prosecution failed to negative the defence under s 24 beyond reasonable doubt.
[19] See above [38].
I grant leave to appeal in relation to grounds 1 and 2 and allow the appeal on those grounds. As I have said, it is unnecessary to consider ground 3. The judgment of conviction should be set aside and a judgment of acquittal substituted.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
24 MARCH 2021