Wilton v McKenzie
[2004] TASSC 117
•11 October 2004
[2004] TASSC 117
CITATION: Wilton v McKenzie [2004] TASSC 117
PARTIES: WILTON, Robert George
v
McKENZIE, Andrew Graeme (Constable)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 61/2004
DELIVERED ON: 11 October 2004
DELIVERED AT: Hobart
HEARING DATES: 11 October 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Fire, Explosives and Firearms – Firearms – Other matters – Failure to take all precautions – Gun safe – Location of safe and key.
Firearms Act 1996 (Tas), s84(a).
Aust Dig Fire, Explosives and Firearms [17]
REPRESENTATION:
Counsel:
Applicant: J E Green
Respondent: L A Mason
Solicitors:
Applicant: John Green
Respondent: Director of Public Prosecutions
Judgment Number: [2004] TASSC 117
Number of Paragraphs: 17
Serial No 117/2004
File No LCA 61/2004
ROBERT GEORGE WILTON
v CONSTABLE ANDREW GRAEME McKENZIE
REASONS FOR JUDGMENT BLOW J
(DELIVERED ORALLY) 11 October 2004
There are two proceedings before the Court which concern a conviction imposed by a magistrate upon the applicant on 7 January 2004 on a charge under the Firearms Act 1996 ("the Act"). The first is a motion to review. The second is an application for an extension of time under the Justices Act 1959, s107(3), in respect of that motion. The conviction was imposed on 7 January, but the notice to review was not filed until 20 July.
The applicant was charged on one complaint with four charges contrary to the Act. The motion to review concerns count 1, a charge of failing to take all precautions to ensure the safe-keeping of certain firearms, contrary to the Act, s84. The applicant was convicted of all four charges and was fined $300 by the learned magistrate. In consequence of his conviction, the firearms were forfeited to the Crown pursuant to the Act, s149(3)(a), and became liable to destruction under s149(3)(b). It is evident from the submissions of counsel for the applicant that the applicant is concerned more with the future of his firearms than with his conviction and fine.
The evidence concerning count 1 was that the applicant had certain firearms at his home in a gun safe in the bedroom. There was evidence that, when the bedroom door was open, the gun safe was visible, though perhaps not conspicuous, from the lounge room where visitors were routinely entertained, and that the key to the gun safe was on the applicant's key ring which was on a hook in the lounge room, above the front door, about three metres from the gun safe. It seems the learned magistrate took one of the witnesses, a police constable, to have said in evidence the gun safe was visible from outside the residence, and that that was not what the constable meant at all. However, if the learned magistrate did make a mistake as to the evidence in relation to that point, that mistake was inconsequential. The learned magistrate found count 1 proven on other bases.
The relevant provision of the Act reads:
"84 ¾ A person who possesses a firearm must take all precautions to ensure that the firearm ¾
(a) is kept safely".
The learned magistrate made findings to the effect that the firearms in the gun safe were not kept safely because the gun safe was visible from the lounge room when the bedroom door was open, and because the key to it was in a conspicuous place in the lounge room. He made comments to the effect that a gun safe should be sited so that it is not readily visible from inside or outside the house. However in his reasoning he did not rely upon any finding of fact to the effect that the gun safe was visible from outside the residence.
The conviction on count 1 is the subject of four grounds of appeal, but ground 4 was abandoned. The grounds that are pursued read as follows:
"1The Learned Magistrate erred by holding that the Applicant was obliged to conceal the presence of the gun safe in his residence.
2The Learned Magistrate erred by holding that the Applicant was obliged to store his firearms in a gun safe that could not be seen by anyone in his residence.
3The Learned Magistrate erred by holding that the Applicant was obliged, when he was present in the house, to store the keys in a place unknown to anybody apart from himself or another person licensed to use those firearms."
It seems to me that the three grounds of appeal involve two sorts of contentions: firstly, a contention that the learned magistrate erred in law in adopting too strict a test as to the meaning of the requirement of s84 that a person who possesses a firearm "must take all precautions to ensure the firearm … is kept safely", that is to say, a contention that too strict a test was adopted in relation to the meaning of the words "take all precautions"; and, secondly, that the verdict of the learned magistrate was unsafe and unsatisfactory.
So far as the meaning of the critical words in s84 is concerned, it is evident that the purpose of the legislation is to stop firearms from falling into the wrong hands, particularly the hands of thieves and of children. It is clear, in my view, that Parliament intended very strict precautions to be taken by those who possess firearms. I do not think Parliament can be taken to have intended that a person possessing firearms was to go to absurd or ridiculous lengths in ensuring that they were kept safely. But the fact that the word "all" is not watered down in any way, even by the addition of the adjective "reasonable", suggests that Parliament intended very strict precautions to be taken.
Mr Green submitted that s84 was not applicable in this case. He submitted that s85 was applicable and that the operation of s84 was therefore excluded. Section 85 imposes requirements upon the holder of a Category A firearms licence or a Category B firearms licence. It requires such licensees to store firearms and ammunition in a locked receptacle, in effect a gun safe, subject to an exception provided for in s85(2) in relation to alternative arrangements. Mr Green relied upon the maxim Generalia specialibus non derogant and referred me to a judgment of Megarry J (as his Lordship then was) in No 20 Cannon Street Ltd v Singer & Friedlander Ltd [1974] 1 Ch 229 at 235. That case concerned the interpretation of some provisions in some subordinate legislation concerning rent control, but his Lordship made some comments of general application, saying this:
"Put formally it seems to me that the proper principle to apply if an enactment contains two similar prohibitions, one wide and the other applying only to a limited class of cases wholly within the wide prohibition, is to treat the prohibition as not applying to cases within the limited prohibition, especially if the limited prohibition is made subject to some exception and the wide prohibition is not."
On the facts of that case, it is obvious that the approach taken by his Lordship was the correct one. However I would distinguish that case from this. If the specific provisions of s85 were the only firearms safety provisions applying to the storage of firearms by Category A and Category B firearms licence holders, then the result would be absurd. The storage receptacle required by s85 could be located anywhere and the key to it could be kept anywhere, even in the lock. A gun safe could be bolted to the wall and floor of an outside verandah and kept locked with the key left in the lock and s85(1) would still be complied with. That would be an absurd result. It is apparent therefore that Parliament did not intend s85(1) to supersede the requirements of s84 when firearms were stored by the holders of Categories A and B firearms licences.
It follows therefore that s84(a) applied to the applicant, and it follows that my task is to consider whether the learned magistrate erred in adopting too strict an interpretation of s84(a) or whether he reached a verdict that was unsafe or unsatisfactory.
I have already referred to the evidence as to the siting of the gun safe in the bedroom and to the location of its key. The applicant gave evidence to the effect that he normally kept the gun safe key on his key ring with his car keys, so that he normally took the key with him if he went out. He also gave evidence that he was about to have a shower, and that the key ring was on the hook for that reason. It is also clear from the evidence that he had a son of school age living in the house.
The learned magistrate said the following things in his reasons:
"Now I don't know anything about the detail of the construction of this particular gun safe, but I must say that in my opinion, it is a basic obviously precaution to take, to store a gun safe in a place where it cannot be seen. Not just from outside the house but also from within it, because everybody has visitors and if a casual visitor can become aware of the placement of a gun safe, that visitor might become tempted, that visitor might pass on the information to someone else inadvertently and the house could be the subject of a burglary with the obvious outcome as a risk or possibility. So, mere storage in a room, unless that room can't be seen into from both within and without the house, I think that the requirements of s84 are breached, specifically 84(a). It reflects on the safekeeping of a firearm, and in my opinion, a person has not taken all precautions to ensure that the firearm is kept safely if a gun safe is kept in a position where it can be seen.
…Keys to gun safes need to be kept in a safe place, a private place, a non obvious place, I think probably, unknown to anybody apart from people who have lawful business to access the gun safe ie other licensed gun owners inside the household. It might seem to be a stringent requirement, but I think that's what it means, certainly not on a key rack."
I am inclined to think that the applicant was less careful in hanging his key on the key rack than he was in siting the gun safe in his bedroom where a visitor might see it. In my view, however, the comments of the learned magistrate do not indicate that he took an unreasonably strict view as to the interpretation of s84(a). To the extent that he suggested that hiding the key from the applicant's wife if she did not hold a firearms licence, it may be that his worship went a little too far, but I do not think that that is critical to the outcome of the proceedings before the learned magistrate or the proceedings before me. I think that it was open to the learned magistrate to make the findings that he did, and I do not think that he erred in his approach to s84(a) or his interpretation of it. He certainly did not suggest that it was necessary for someone lawfully in possession of firearms to go to the sorts of absurd lengths suggested by Mr Green in argument when he spoke of secret panels and the like.
I do not think it can be said therefore that the verdict of guilty in respect of count 1 is unsafe and unsatisfactory. It is clear from authorities such as Richardson v Shipp [1970] Tas R 105 and Kelly v O'Sullivan (1995) 4 Tas R 446 that on the hearing of a motion to review the verdict of a magistrate should be treated in the same way as the verdict of a jury. On that basis I think that no error has been demonstrated on the part of the learned magistrate, and that therefore grounds 1, 2 and 3 should fail.
That brings me back to the application for an extension of time. I think it should be refused, not just because the grounds of appeal have no merit, but also because of an inordinate delay between the conviction and the filing of the notice to review, a delay of over six months. The sequence of events during that period was as follows. On 21 January, the applicant consulted Mr Green. On 28 January, the time for filing a notice to review expired. On 29 January, Mr Green gave the applicant certain advice. On 17 February, the applicant wrote to the Commissioner of Police requesting the return of his firearms. They had become the property of the Crown and the Crown had a legal right to destroy them. On 3 March, Mr Green apparently received an audiotape of the proceedings before the the learned magistrate. On 29 March, the Commissioner of Police wrote refusing to return the firearms. On 20 April, Mr Green received a transcript apparently prepared from the tape. On 10 May, Mr Green gave some advice in relation to an appeal. On 21 May, Mr Green wrote to the Commissioner of Police requesting the preservation of the firearms, pending the outcome of the appeal. On 17 June, the Commissioner wrote back saying that they would be preserved for a certain period. On 2 July, the applicant managed to raise sufficient funds to pay Mr Green in advance for a lower court appeal. On 20 July, the notice to review was filed. It is a matter of controversy as to whether the applicant delayed even seeking advice as to the merits of an appeal because of some hope of getting the firearms returned by the Commissioner. Whatever the situation is in relation to that, it is my view that the impecuniousity of the applicant is not a sufficient reason for such a lengthy delay in the filing of a notice to review.
It is true that it has not been shown that there is any prejudice to the respondent in the sense that nothing has happened that has interfered with the respondent's ability to have a fair hearing of the motion to review, but in my view the grounds of appeal have no merit and there has been an inordinate delay. The proper course therefore is to dismiss the application for an extension of time and to dismiss the motion to review. The interlocutory application and the motion to review are therefore dismissed.
I order that the applicant pay the respondent's costs of and incidental to the motion to review and the interlocutory application.
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