Heywood v Commissioner of Police
[2020] QCA 226
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Heywood v Commissioner of Police[2020] QCA 226
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Heywood v Commissioner of Police[2020] QCA 226
Heywood v Commissioner of Police[2020] QCA 226
[2020] QCA 226
COURT OF APPEAL
FRASER JA
McMURDO JA
MULLINS JA
CA No 50 of 2020
DC No 31 of 2018
HEYWOOD, Philip Bruce Applicant
v
COMMISSIONER OF POLICE Respondent
BRISBANE
FRIDAY, 16 OCTOBER 2020
JUDGMENT
FRASER JA: A magistrate acquitted the applicant of an alleged contravention of s 60 of the Weapons Act 1990 (charge 1) that he, a licensee who had control of a weapon, failed to keep the weapon in secure storage facilities when there was no person in physical possession of the weapon. The magistrate convicted the applicant of an alleged contravention of regulation 93 of the Weapons Regulation 2016 (charge 2) concerning a different weapon, that he, having a firearm under his control, failed to ensure that the firearm was unloaded other than when it was being used to shoot. The applicant’s appeal to the District Court against the conviction on charge 2 was dismissed on 15 January 2019.
On 12 March 2020 the applicant filed an application for an extension of time within which to apply to this Court for leave to appeal from the District Court judge’s decision under s 118 of the District Court of Queensland Act 1967. In deciding whether to grant an extension the Court examines whether any good reason has been shown to account for the delay and whether it considers it is in the interests of justice to grant the extension. Even where there is no satisfactory explanation for the delay, the Court may grant an extension if a refusal to do so would produce a miscarriage of justice. See R v Tait [1999] 2 Qd R 667 at 668 and R v CAP (No 2) [2014] QCA 323.
The prosecution case at the trial comprised the evidence of Sergeant Weimar and Senior Constable Green. The applicant did not give or call evidence. It is necessary here to refer only to evidence relevant to charge 2.
Sergeant Weimar gave evidence that he and Senior Constable Green arrived at the applicant’s property at about 6 pm on 19 January 2018. Sergeant Weimar activated his voice recorder. The applicant met the officers at the front of the property and said he was cooking dinner. After identifying both officers, Sergeant Weimar informed the applicant of his intention of conducting a storage inspection of the applicant’s firearms. That was acknowledged by the applicant. The applicant then invited the officers into his property. The applicant took the officers to his gun safe in a detached garage or shed next to the applicant’s house. The applicant opened the safe. In the safe was a bolt action rifle. It was one of two firearms registered on the applicant’s firearms licence. The applicant “made statements in relation to being aware that the firearm wasn’t being stored technically correct” and specifically that the bolt was in the rifle and there was a loaded magazine in the rifle. Sergeant Weimar gave the rifle to Senior Constable Green, who unloaded the weapon and inspected it. The applicant did not challenge any of that evidence or ask any question about it in his cross-examination of Sergeant Weimar.
Senior Constable Green gave evidence that after he and Sergeant Weimar arrived at the applicant’s residence and Sergeant Weimar had a conversation with the applicant the three of them walked into a shed. The applicant opened the safe and removed a firearm. Senior Constable Green noticed that a magazine was in the weapon’s magazine well and the bolt was attached to the weapon in a forward position as though the weapon was ready to fire. Senior Constable Green took possession of the weapon from the applicant. He pulled the bolt back and a bullet was ejected from the rifle. By the time Senior Constable Green had picked up the round, put it back in the magazine and made sure the weapon was safe to move, the applicant and Sergeant Weimar had walked towards the house. A short time later Sergeant Weimar left the house with a different firearm and had a further conversation with the applicant.
The applicant suggested to Senior Constable Green in cross-examination that there was nothing in the weapon’s firing chamber. Senior Constable Green replied that he remembered a bullet being ejected. The applicant asked whether it came out of the firing chamber or whether it was possible it came out of the magazine. Senior Constable Green replied that the bullet was ejected when he pulled the bolt, indicating that the bullet was in the chamber ready to fire.
When the applicant referred to charge 2 during his closing submission to the Magistrate, he said he admitted that there probably was a bullet in the firearm chamber, that was unforgivable almost, there should not have been a bullet in that firearm chamber, that was mad.
In relation to charge 2 the magistrate accepted the evidence of both police officers, referred to the applicant’s concession, and found that the charge had been proved beyond reasonable doubt.
In dismissing the applicant’s appeal to the District Court, Burnett DCJ observed that it was apparent upon the facts that the weapon was not being used to shoot, it being locked in a safe. His Honour referred to Senior Constable Green’s evidence and the absence of any cross-examination of either police officer to suggest an error or an issue about the reliability of the evidence. His Honour concluded that the evidence demonstrated that the rifle was in a loaded condition when it was inspected by the police officers, there was no error in the process before the magistrate, the applicant was afforded natural justice and every opportunity to put his case, and no error had been demonstrated in the magistrate’s decision to convict the applicant of charge 2.
One of the applicant’s arguments is to the effect that there is a doubt about his guilt because he needed ready access to a firearm to deal with problems he encountered in the rural area in which he lived, including vermin menacing a domestic cat entrusted to his care. It is difficult to reconcile that argument with the applicant’s frank acknowledgements at the trial that the rifle in the safe should not have been loaded. I had originally considered that the applicant might have intended the argument to be confined to the shotgun the subject of charge 1 upon which he was acquitted, although he repeated a similar argument at the hearing today. It hardly needs to be said that upon no reasonable view could it be thought that whilst the applicant was cooking dinner and the rifle was locked in the safe, it was “being used to shoot” in terms of regulation 93 of the Weapon Regulations 2016.
The applicant submitted that the police did not give him any forewarning of the weapons audit they undertook and that evidence given by Sergeant Weimar that he had unsuccessfully attempted to contact the applicant before attending was wrong. That topic is irrelevant to the question whether he committed the offence of which he was convicted.
The applicant’s additional submission that he did not consent to the police officers entering his property to conduct an audit of his firearms is inconsistent with the evidence given by the police officers. During the applicant’s cross-examination of Sergeant Weimar, the magistrate referred the applicant to an answer given by the officer that he was not entitled to enter a dwelling to conduct a weapons inspection without permission and to the officer’s evidence that the applicant gave such permission. The magistrate said to the applicant that he did not seem to be challenging the officer’s evidence that he gained the applicant’s consent to enter and look around, but the applicant was instead saying there was a procedure requiring police to contact the applicant before going to the property. The applicant did not suggest to Sergeant Weimar that he was mistaken in his evidence that the applicant had given the officers permission to enter his property to conduct their weapons inspection. Nor did the applicant make any such suggestion to Senior Constable Green. Their evidence justified the magistrate in being satisfied beyond reasonable doubt that they entered and conducted their weapons audit with the applicant’s consent.
The applicant challenges Burnett DCJ’s conclusion that in the absence of such consent, the police officers were empowered by sections 22 and 23 of the Police Powers and Responsibilities Act 2000 to enter the applicant’s property and conduct their inquiries about the applicant’s weapons. In light of my conclusion that the prosecution proved that the applicant did consent it is not strictly necessary to decide that point. I note, however, that those sections apply only in relation to a “relevant law”, the definition of which in schedule 2 of the Police Powers and Responsibilities Regulation 2012 does not comprehend the Weapons Act 1990 in relation to a place used only as a residence; but if consent had not been given s 19 of the Police Powers and Responsibilities Act 2000 may have authorised the officers’ entry and presence on the applicant’s land, including in the detached shed or garage but not the dwelling house.
The applicant attacked Sergeant Weimar’s credibility. None of his submissions on this topic have a basis in the evidence adduced at the trial. The applicant seeks to rely upon additional evidence which he described as a “secret police file”. The only potentially relevant evidence is a purported copy of a “Supplementary report” attributed to “Hilton, S” and described as a “Sanitised Copy”. If the document is a true copy – and there is no evidence that it is – some of its content is consistent with it being a copy of a police report of some description. Under the heading “Original Information” are remarks attributed to police about the applicant’s mental health and his suitability to hold a weapons licence. Much of the applicant’s argument was directed to challenging those remarks, but success on that challenge would have no bearing upon the legitimacy of the applicant’s conviction.
The only statement in the document of potential relevance in the present context is a statement attributed to the police officers who gave evidence at the applicant’s trial that the applicant’s rifle was “stored with loaded 5 shot magazine in weapon, no round in chamber”. The statement “no round in chamber” is not inconsistent with Sergeant Weimar’s evidence, which the applicant seeks to challenge, but it is inconsistent with Senior Constable Green’s evidence, which the applicant did not seek to challenge, at least in his written material. Although the applicant submits that this document was emailed to “a family member” from “Firearms Licensing Section” in April 2019, he has not supplied any evidence capable of justifying that submission. For that reason alone the Court should not admit the document as evidence in the present application.
The applicant supplied the Court with many other documents which appear to concern the status of his weapons licence or one of his children’s weapons licence, proceedings in QCAT, and other matters. None of those documents are relevant to the present application. They too should not be admitted as evidence.
There being no apparent merit in the proposed appeal, the application for an extension of time within which to apply for leave to appeal should be refused.
McMURDO JA: I agree.
MULLINS JA: I agree.
FRASER JA: The order of the Court is that the application for an extension of time within which to apply for leave to appeal is refused. Thank you. Adjourn the court.