Dolby v Ah-Quee[2001] QCA 347

COURT OF APPEAL

McMURDO P

WILLIAMS JA

HOLMES J

CA No 131 of 2001

MICHAEL CHARLES DOLBY

v.

AJAY AH-QUEE

BRISBANE

DATE 17/08/2001

JUDGMENT

THE PRESIDENT:  The applicant was charged with one count of possession of a weapon whilst not licensed under s 50 Weapons Act 1990 (Qld) and one count of failing to securely store a weapon under s 60 Weapons Act 1990 (Qld).  The offences were said to have occurred on 6 August 1999.  On 7 December 1999 in the Magistrates Court at Atherton, he was convicted and fined $300 on both offences.  The applicant together with his co-accused, Pamela Vawdrey, appealed against those convictions under s 222 Justices Act 1886 (Qld) to the District Court at Cairns.  On 6 April 2001 the District Court dismissed the appeal and confirmed the orders made in the Magistrates Court.

On 24 May 2001 the applicant applied for leave to appeal from the District Court decision under section 118(3) District Court Act 1967 (Qld) and for an extension of time within which to apply for leave to appeal.  The application was about 18 days out of time.  The applicant has not provided in sworn form any explanation for the delay but in his application states that in order to find out his reasons for losing his appeal it was necessary for him to phone and fax various entities about Australian design rules and to contact the Commonwealth Small Arms Factory and the Australian Defence Industry Museum.

This is, of course, no valid explanation for his failure to file the application for leave to appeal within time.  The applicant's proposed ground of appeal is primarily that the weapon was not a weapon as defined under the Weapons Act 1990 (Qld) but was an antique firearm which is not a weapon under that Act.  This issue, although not the primary issue before the District Court Judge, was fully canvassed in the District Court appeal. 

The learned District Court Judge allowed both the applicant and the respondent to call fresh evidence on the appeal as to what category the weapon was under the Weapons Act.  The subject rifle was identified by Mr Knowlton, a licensed armourer, as a 1943 or 1944 Lithgow make firearm, which had been re-barrelled to a 303.25 calibre.  Mr Knowlton said that ammunition is currently manufactured and available for the firearm and that he sold it, and that the firearm could not be described as an antique or heirloom firearm under the Weapons Act 1990 (Qld).  It is a category B weapon which requires anyone in possession of it to be the holder of a weapons licence.  That evidence was not successfully challenged by the applicant during cross-examination where Mr Knowlton said that particular identifiable features of the weapon, the subject of the charges, demonstrated the rifle was not a pre-1901 firearm.

The applicant's primary contention, both at the appeal and in the Magistrates Court, was that he had no knowledge of the weapon and was not in possession of it.  The District Court Judge found on the appeal that the Magistrate was, on the evidence, entitled to reject the applicant's evidence and that of his co-accused Ms Vawdrey and to convict them of the offences. 

The applicant and Ms Vawdrey produced a bundle of documents to the District Court Judge, the relevance of some of which is not entirely clear.  But, like the further material produced to this Court today, it seems to be aimed at establishing the firearm was not a weapon under the Weapons Act but was an antique firearm.  In the bundle of material produced to the District Court Judge a Mr Bruce, a firearm specialist from Cairns, said that he had not carried ammunition for a 303.25 rifle for over 12 months.  But he could not say it was not available from other suppliers.

That material, which was not evidence in admissible form, did not prevent the learned District Court Judge from accepting Mr Knowlton's evidence and reaching the conclusions she did.  The applicant has today suggested that further evidence is available by freedom of information or by order of this Court which would show that the rifle was an antique firearm.  But he has failed to persuade me that such further evidence exists or that it should be or it could be accepted at some future time by this Court.

The applicant has failed to establish any clear error on the part of the learned District Court Judge or indeed on the part of the original trial Magistrate.  Any prospective appeal is therefore not at all promising.  If an extension of time were granted the case is not one in which leave to appeal should be given.  In any case, the applicant has given no proper reason to explain his delay in filing the application within time.

I would refuse the application for an extension of time within which to apply for leave to appeal. 

WILLIAMS JA:  The basic contention of the applicant is that the firearm in question was not one which was required to be registered pursuant to the provisions of the Weapons Act 1990.  That is said to be so because it was an antique firearm - that is, one manufactured before 1900 for which ammunition is not commercially available.  That issue was clearly raised in the District Court.  A Mr Knowlton, a licensed armourer and the proprietor of a retail and sporting shop in Cairns, gave evidence. 

His evidence was to the effect that the rifle in question was manufactured at Lithgow around about 1944 and that ammunition was still commercially available for it in its re-barrelled form.  The learned District Court Judge accepted that evidence and expressly made a finding that the firearm in question was not an antique firearm within the meaning of the Weapons Act.

The applicant before this Court has indicated that there is further evidence he would like to place before a Court suggesting that the firearm was an antique one.  However, that material is not in admissible form and I cannot see that it takes the matter beyond the evidence that was before the District Court.  I agree with the reasons of the President and with her order, namely that the application for an extension of time to appeal should be refused.

HOLMES J:  I agree with the reasons of both the President and Justice Williams and with the order proposed by the President.

THE PRESIDENT:  The order is, the application for leave to appeal is refused.