DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal under s 222 of the Justices Act against the decision of an acting magistrate in Nanango on 19 March 2004 when the appellant was convicted after a summary trial of a charge under the Weapons Act and fined $650.  A conviction was recorded, he was allowed nine months to pay, and disqualified from holding or obtaining a weapons licence for three years.  Numerous points were raised by the appellant, who was not legally represented, in the course of his argument or in written submissions.

2. [2]
   The appeal is against conviction and sentence. So far as the appeal against conviction is concerned, however, it is doomed, because on the appellant’s own version of events he was guilty of the offence charged. The charge was possessing two category H weapons other than in accordance with the authority of a licence and without other lawful authority, justification or excuse. The appellant had a licence for the weapons at the relevant time (Exhibit 3), but the licence was subject to a condition that the licence authorised the appellant to have possession and use of category H weapons at an approved shooting range, and all weapons were to remain in secure storage unless otherwise authorised, justified or excused by law:  Exhibit 4.  This indicated that when the firearms were not in use at the approved shooting range they were required to be kept in secure storage.  The issue was therefore whether at the relevant time the respondent was in possession of the weapons which were not at an approved shooting range, and were not in secure storage.

3. [3]
   The prosecution case was that on 24 November 2000 the appellant and two other men were engaged in cultivating a marijuana crop when the appellant observed that he was under surveillance from a police officer:  page 9.  He drew a pistol and pointed it at the officer, who drew his service pistol and there was a short stand off before the appellant discarded his firearm and was taken into custody:  page 10.  He was found in possession of the other firearm.  The police case was that both firearms were capable of being fired, and were loaded.  The appellant did not dispute that on that day he had possession of the firearms:  page 143 line 20.  He said  that he had taken them out of the secure storage at his home where they were normally kept in order to take them to a shooting club, where he was going to use one of them at an approved shooting range:  page 135.  However, before doing so he was joined by a person whom he did not want to take to the club, and instead went looking for a missing horse, taking the firearms with him:  page 136.  He claimed that he was looking for the horse at the time when the police came upon him in the bush.

4. [4]
   It may be that on the proper interpretation of the condition of the licence it was an offence to be in possession of the firearms when they were not in secure storage anywhere other than at an approved shooting range. But assuming that they could be taken to and from his home, on the appellant’s own account at the trial, he was not in fact in the process of proceeding to the shooting range at the time. Rather, he was wandering around the bush looking for a horse. Manifestly, the firearms were not at a shooting range or in secure storage at the time when he was found in possession of them, on either version, and therefore the condition of the licence was not satisfied and he was guilty of the offence charged. If the acting magistrate had accepted the evidence of the appellant at his trial, he still ought to have been convicted of the offence charged^[1].  There is therefore necessarily no substance to the appeal against conviction.

5. [5]
   The acting magistrate, however, did not accept the appellant’s version of events; he accepted the police version. More importantly, for present purposes, the appellant was presumably sentenced on the basis of the police version. On that basis, a fine of $650 was a modest penalty for such an offence, but the magistrate may well have been influenced by the appellant’s submission that he had already spent an extra five months in gaol because the charge was pending against him. This came about in the following way.

6. [6]
   Apart from the offence under the Weapons Act, the appellant and two other men were charged with unlawful production of in excess of 500 grams of cannabis sativa.  They were convicted after a trial in the Supreme Court; the appellant and one of the others appealed to the Court of Appeal, but on 14 March 2003 the appeal was dismissed, as was an application by the appellant for leave to appeal against the sentence of three years imprisonment:  [2003] QCA 99.  Because of this, although a notice to appear in relation to the Weapons Act charge was issued on 24 November 2000, the summary trial was delayed, and attempts were not made to list it for hearing until after the dismissal of the appeal.  By then the appellant was serving his sentence.  He claims that but for the fact that the Weapons Act charge was still pending against him, he would have been released on parole some five months earlier than he was in fact ultimately released.  There was some delay in hearing the trial, caused by two factors which were not entirely under the control of the appellant.

7. [7]
   On 20 February 2002 the appellant was convicted of another summary offence by the resident magistrate in the Nanango Magistrates Court. An appeal to the District Court against that conviction was allowed on 28 October 2002 and the conviction quashed.  In the meantime, this charge was transferred on 24 July 2002 to the magistrates court at Brisbane.  I suspect this was because by then the appellant was in custody following his conviction in the Supreme Court trial, since he was remanded in custody on 24 July 2002.  There were further mentions later in 2002 in Brisbane, but on 9 April 2003 an acting magistrate remanded the appellant to the Nanango Magistrates Court on 30 April 2003 for setting a hearing date.  The endorsement on the bench charge sheet indicates that this order was made by consent, but I doubt that, since the appellant said that he sought to appeal against that order under section 222, but nothing came of that appeal^[2], and the matter remained in the magistrates court at Nanango.

8. [8]
   If the appellant objected to the matter going back to Nanango, it was in my opinion an inappropriate order to make. The prosecution witnesses were all police officers who had no connection with the district, the appellant was in custody in Brisbane, and he did not want the matter heard in Nanango. In those circumstances, given that the matter had already been transferred to the magistrates court at Brisbane, in my opinion it ought to have been left there.

9. [9]
   After it was transferred back to Nanango the resident magistrate decided, apparently on 5 June 2003, to disqualify himself from hearing the matter; it is not entirely clear whether this was on the application of the appellant, but from his remarks to me I gather the appellant would not have been keen on that magistrate’s hearing the charge.  The endorsement on that day refers to the hearing date which had been earlier fixed for 11 July 2003 being vacated, with the matter to be mentioned again in September “due to unavailability of outside magistrates”.  Evidently, those difficulties continued.  The matter was mentioned again on 3 September and 26 November 2003, and eventually the trial commenced on 6 February 2004 before an acting magistrate, who was ordinarily the registrar of the court.  The trial was not completed on that day, and continued on 19 March 2004, when it was completed.

Ought the acting magistrate have disqualified himself?

10. [10]
    The appellant submitted that it was inappropriate for him to have been tried by the acting magistrate, for two reasons. The first was that the acting magistrate was ordinarily the registrar and effectively the “offsider” of the regular magistrate, who had disqualified himself, and who had sworn in the registrar as acting magistrate, and would therefore simply do what the regular magistrate told him to do. The second was that there had at an early stage of the proceeding been an occasion when the acting magistrate was dealing with a bail application, when he had behaved unreasonably towards the appellant in relation to a reporting condition.

11. [11]
    At the commencement of the trial the appellant, when asked if he was ready to proceed, said (page 2):

“I would like to just have a few words with you yourself, your Honour, because you may remember back in 2000 we had a few words, you and I.”

12. [12]
    The magistrate said that that was not something that caused him any difficulty, and the appellant then pointed out the other magistrate had disqualified himself from hearing the matter, of which the acting magistrate said he was not aware. There was then some discussion about how long the matter had taken to come to trial, but then the appellant pleaded not guilty and the magistrate outlined the procedure that would be followed. There was some discussion about whether the police were calling all the relevant witnesses, and the prosecutor then proceeded to call his first witness.

13. [13]
    It is apparent from the transcript that there was no application for the acting magistrate to disqualify himself from hearing the matter at that stage. The matters that were relied on by the appellant were both matters of which he was aware at that stage; the situation is not that as a result of something that happened later during the hearing the appellant became aware of anything which might be relevant to an application to the magistrate to disqualify himself. But there was no application to the magistrate to disqualify himself. In these circumstances, it is well established that it is not open to raise on appeal for the first time that the magistrate ought to have disqualified himself: Vakauta v Kelly (1989) 167 CLR 568, particularly at 572.

14. [14]
    Apart from this, I do not consider that the first matter raised either demonstrates actual bias or would give rise to a reasonable apprehension of bias on the part of fair‑minded and informed members of the public.  It is a common enough practice away from the metropolitan area for the local registrar to act as a magistrate from time to time, and the position would really be no different from where there were two or a small number of resident magistrates.  No doubt they would all know each other and so on, but that is not a reason to think that one of them would bring some predisposition towards a particular trial because of the knowledge that another magistrate had disqualified himself or herself from hearing it.  I do not consider the first matter raised provided any justified grounds for concern about apparent bias.

15. [15]
    The other matter that the appellant complained about to me was that when he had appeared at a mention before the same acting magistrate on 24 January 2001 the acting magistrate had refused to vary bail conditions which included reporting conditions.  The appellant complained about the difficulty he said he was experiencing in complying with the reporting condition because the local police station was often either closed or just not answering its telephone.  He said that after the hearing on 24 January 2001 he wrote to the then chief magistrate, and provided me with a copy of a letter which he sent on 30 January 2001 complaining about the conduct of the acting magistrate.  The letter is rambling and difficult to follow at times, but it appears that what he was actually complaining about at the time was that the acting magistrate would not fix a date for the committal hearing until the defendants had legal representation, which he said he was not proposing to arrange.

16. [16]
    The letter also reveals that on that occasion the appellant was attempting also to address the court on behalf of the two co-accused, or at least one of them, his son, and the magistrate was objecting to that course. The appellant was entitled to appear for himself if he wanted to, but he was not entitled to appear on behalf of anyone else, and if he was insisting on speaking on their behalf it was appropriate for the magistrate to have him removed from the court room while he was dealing with the other defendants. In these circumstances, in my opinion that conduct on the part of the magistrate could not give rise to any legitimate grievance on the part of the appellant.

17. [17]
    As to whether there was some delay in the committal proceeding, it is not possible to tell from the file that I have in relation to the summary offence when committal proceedings commenced, but it may be that it was not thought appropriate by the acting magistrate to be setting a matter down for what may have promised to be a lengthy committal proceeding in the absence of the regular magistrate. I have no material which demonstrates that at that time it was appropriate to set the matter down for a committal hearing, and I am not persuaded that there was anything inappropriate undertaken by the acting magistrate on that occasion. There therefore cannot be anything which could give rise to a legitimate grievance on the part of the appellant.

18. [18]
    The appellant told me that in response to the letter 30 January 2001 the then chief magistrate came to Nanango the next time the matter was mentioned. He saw her there and she told him that he no longer had a problem with bail. That is not consistent with what appears on the file. The file records the mention before the acting magistrate on 24 January 2001, and notes that on that occasion he did refuse to vary bail conditions. The previous endorsement on 30 December 2000 recorded that the appellant appeared before a magistrate who allowed bail on his own undertaking, and the endorsement includes “reporting conditions”.  The next appearance was on 7 March 2001 before Magistrate Dowse, not the chief magistrate.  This file does not record the result of that appearance, but there is on the file a bail undertaking signed by the appellant on 7 March 2001 which does not include any reporting conditions.  It appears that what happened on 7 March 2001 is that Magistrate Dowse dealt with the matter so that the new bail undertaking was signed.

19. [19]
    The mere fact that this acting magistrate refused to vary the bail conditions but subsequently a magistrate did deal with the matter by removing the reporting conditions does not in my opinion give rise to any legitimate concern about bias or ostensible bias. It is not something which would give rise to a reasonable apprehension in the mind of a fair-minded and informed member of the public that this acting magistrate has prejudged or might prejudice a summary trial of the appellant^[3].  It is well established that the mere fact that a litigant has previously been unsuccessful in other proceedings before the same judicial officer is not sufficient ground for securing the disqualification of that judicial officer on the ground of ostensible bias^[4].  In my opinion the mere fact that an adverse decision by the particular judicial officer was subsequently reversed on appeal would not be a ground for subsequently requiring that judicial officer to disqualify himself or herself on the ground of ostensible bias.  Even if this ground were open to the appellant, I would reject it.

Suggestion to plead guilty

20. [20]
    Another complaint of the appellant was that the magistrate had suggested that he plead guilty to the charge. In circumstances where, on the appellant’s own version of events, he was guilty of the charge, that might not have been an unreasonable suggestion to have made, but in fact the transcript reveals that the acting magistrate never made any such suggestion. What happened was that at the end of the first day of the trial when the matter was not completed the acting magistrate noted that because he was only an acting magistrate a special arrangement had to be put in place for him to be able to continue the trial. That was true, though it ought not to have given rise to any difficulty in practice. In response, the appellant said (page 123):

“I’m in an awkward position here, but is a guilty plea in order at this stage?  Because, the way I see it, the evidence is – there was bullets there and this and that, and it’s very awkward for you to – it’s going to take a lot of time.  And I think it – if Mark was interested in that, it would save the court a lot of time and it would be over and I’m doing it on my own free will.  There’s no ---”

21. [21]
    The magistrate heard the prosecutor and pointed out that there had been a vigorous defence and cross-examination and allegations of perjury, to which the appellant responded, “Well, I’m not saying that I’m – I am guilty of the offence, but I’d ---”. It is apparent from what followed that the guilty plea was not accepted and the trial was adjourned. At the beginning of the second day there was an application by the appellant for witnesses to be recalled for further cross-examination, which was refused. The magistrate then said (page 130):

“Now, Mr Rodgers, at the end of the proceeding on the earlier date you – you indicated that you were – well, there’s a – there were a number of things going on and that the record will indicate, there was an attempt by you to – to plead guilty on an alternative charge.”

The appellant responded by withdrawing that, and there was no further mention of it by the magistrate. 

22. [22]
    That was not an attempt by the magistrate to suggest the appellant plead guilty to the charge. On the first day when the plea of guilty had been offered, on the basis that the appellant was not really guilty of the offence, the plea was properly refused by the acting magistrate, and all he was doing was mentioning, correctly, that that had occurred as the last thing that happened on the previous day. In my opinion there is no basis for the complaint by the appellant that the magistrate suggested that he plead guilty to the charge.

Prosecution evidence

23. [23]
    Sergeant Smith said that at 4 am on 24 November 2000 he went to some Crown land that he identified where he conducted surveillance on a plantation:  page 8.  At 10.27 am the appellant arrived at the plantation site with another male person, wearing a knapsack and a holster on his right hip which had something silver in colour in it.  Across his chest was what appeared to be a leather belt with another holster which had something silver in it:  page 9.  Soon afterwards a third person entered the plantation site.  He saw the appellant and the others tilling the ground with mattocks, and as he came closer saw what appeared to be a semi‑automatic pistol in the holster on his hip.  The appellant pushed over a dead tree, and later threw some rubbish that he had collected as a result of his tilling in the direction of Sergeant Smith, and appeared to see him.  The appellant drew his pistol from the holster with his right hand, Sergeant Smith stood up, yelled “Police,” and pointed his service semi-automatic pistol towards the defendant:  page 10.  He saw the defendant had a semi-automatic pistol drawn and was pointing it in his direction. 

24. [24]
    Then the appellant dropped the pistol, and Sergeant Smith ordered the appellant and the other two male persons down to the middle of the plantation site.  He was there met by three other police officers.  They had a video camera, the tape from which was produced and became Exhibit 5:  page 21.  Sergeant Smith said he picked up the firearm which had been dropped by the appellant, emptied the magazine which contained about five rounds, and ejected a live .45 calibre round from the chamber:  page 10.  He later collected a leather belt with a holster hanging on a tree containing a .22 calibre target pistol:  page 11.  The .22 pistol also had live rounds in the magazine and one in the chamber.  He said he did not have any conversation with the appellant about the firearms, except such as was on the videotape.  He produced the two firearms which became Exhibits 1 and 2, and documentation showing that the appellant had a licence, Exhibit 3, and showing the condition on the licence, Exhibit 4:  page 16.

25. [25]
    Detective Sergeant O'Brien gave evidence that on 24 November 2002 he went with two other police officers, one being Sergeant Graham from Blackbutt, to this site.  He came to a point where he could see two men working with what looked like mattocks:  pages 89-90.  He heard the sound of a dead tree being chopped down, and soon after that heard, “Police,” called.  He saw Sergeant Smith with his firearm in his hand and the appellant with what he thought was a handgun in his right hand.  He saw it lowered but did not otherwise see what happened to it.  He said that he and Sergeant Graham were met by Sergeant Smith and three men including the appellant, and there was conversation that was videotaped.  There was a conversation about an ejected cartridge, and he saw a weapon hanging in a tree:  page 91.  He said that the appellant told him that the gun that was hanging in the tree was not loaded.  Later he said he could not recall whether he had removed the weapon from the backpack and hung it in the tree or whether it was already there:  page 94.

Cross-examination curtailed

26. [26]
    The appellant complained that his cross-examination was inappropriately restricted. The notice of appeal notifies one of the grounds of appeal as, “My cross-examination was curtailed soon after cross-examination started.” It is apparent from the transcript that there was in fact lengthy cross‑examination of the first witness, Sergeant Smith.  His evidence‑in‑chief ran for 14 pages, and his cross-examination for 53 and a half pages; after two pages of re-examination there was then three pages of further cross‑examination.

27. [27]
    As the third question of the cross-examination it was put to him that he would not deny the evidence he gave at the previous trial under oath was false: page 22.  This was a reference to the Supreme Court trial on the drugs charge, where Sergeant Smith had also been a witness.  Objection was properly taken to this question which was too wide, and there were then some further questions which really amounted to general assertions about inconsistency in evidence.  There was reference to the video tape Exhibit 5, which had been played:  page 20.  There was some argument from the appellant as to what could be seen on the video, and there was then some cross-examination about whether there was any tall grass and where it was, in the course of which it was put to the witness that he was lying (page 24) in gratuitously offensive terms.  There was some cross-examination about whether the gun had a magazine and bullets in it, and it was suggested that the gun was inoperative.  At this point the police prosecutor offered to call a police firearms expert to give evidence about the gun:  page 27.  There was some further, rather unfocused cross-examination, and the appellant then applied to the magistrate for a view:  page 29.  There was a submission from the police prosecutor pointing out that this had happened a long time ago and it was part of a state forest and it was unlikely to be in the same condition as it was at the time, and the application was refused.  There was some cross-examination about when one gun was hung in a tree.

28. [28]
    At page 33 the acting magistrate objected to the presence of a lady at the Bar table; I assume this was the appellant’s wife.  The acting magistrate ruled that if she did not have legal qualifications she was not entitled to sit at the Bar table to assist the appellant.  A person present in court beside a litigant in person assisting him by prompting, taking notes and quietly giving advice is referred to as a McKenzie friend, from the English case^[5] where this was first recognised.  There it was spoken of as a right, but whether it is to be allowed in a particular case, particularly to an accused person in a criminal trial, has been said to be a matter of practice and procedure within the discretion of the trial judge or magistrate to decide^[6].  In Smith, Gibbs CJ, with the agreement of most of the other judges present, said that it would be far too absolute to say that an application to have a McKenzie friend should always be refused.  However, if the accused had been offered legal aid and refused it, it would be inappropriate to have a barrister appear as a McKenzie friend.  There may be other good reasons why the particular individual nominated would be inappropriate^[7].

29. [29]
    The important consideration here, however, is that there is a discretion about the matter which ought to be exercised judicially. It is not at all clear to me that the acting magistrate was appropriately considering the relevant factors in peremptorily refusing to allow the appellant’s wife to sit beside him at the Bar table in order to assist him. The position appears to be, further, that there was no objection to her assisting him^[8], the objection was rather to her sitting at the Bar table^[9].  If that was the acting magistrate’s attitude, it was in my opinion misconceived.  There is, however, no reason to think that this ruling on the part of the acting magistrate resulted in a miscarriage of justice^[10].

30. [30]
    It was just after that that the acting magistrate put the appellant on notice that his cross-examination of the witness would be concluded by 1 o’clock:  page 34.  It is not clear at what time this was said, but it appears that the court adjourned for lunch at 1 o’clock (page 74), and if the court started at 10, it was probably only about half way through the morning.  So the appellant was given adequate notice.

31. [31]
    The cross-examination up to that point had been slow and unfocused and there had been a good deal of time wasted. The magistrate was entitled to put limits on the cross-examination; a defendant cannot simply keep cross-examining a witness forever^[11].  My impression from reading the transcript up to his point was that it was not a case where the appellant was trying his best to cover a lot of ground and just having difficulty with it; rather it was a time wasting, unfocused, inefficient cross-examination with a large number of inappropriate questions.  In my opinion, the fact that there was a limit put on this cross‑examination does not show that there was any miscarriage of justice.

32. [32]
    Almost immediately there was some further time wasted with an inappropriate submission by the appellant that the witness had committed perjury on some occasion: page 35.  The point is somewhat difficult to follow, because the appellant had put to the witness that in the earlier criminal trial he had been asked the question, “It must have, Constable, because I’m suggesting to you at no point in your evidence, in the last three days, have you ever [said you] saw Mr Rodgers hanging those things up, have you?”  To which he gave the answer, “No.”:  page 34.  It was then suggested that he had committed perjury by stating he saw the appellant hang it up, but two pages earlier at page 32 he had said precisely the opposite, that he did not see the appellant hang the firearm up:  line 9.  I have not been able to find any reference in Sergeant Smith’s evidence-in-chief at the magistrates court to his having said he saw the appellant hang the firearm in the tree.  I suspect this was another example of the sort of time wasting questioning which led the acting magistrate to impose the time limit.

33. [33]
    There was a further example of offensive questioning at page 36, which produced a justified rebuke from the acting magistrate.  At page 38 the acting magistrate pointed out, with it seems to me some justification, that the appellant was wasting his time given that he was not getting to his questions.  Later at page 41 he appeared to be attempting to cross-examine Sergeant Smith on the basis of evidence given at the Supreme Court trial by another witness; that was not an appropriate course, and strictly speaking ought not to have been allowed^[12], although in fact the acting magistrate did not intervene.  There was then cross‑examination about the earlier summary matter, where the appeal to the District Court was upheld, in which Sergeant Smith was apparently also involved.  Nothing emerged from that questioning to suggest that that had any relevance to the present trial.  There was then some further cross-examination apparently on the transcripts of the earlier proceedings, which appears to me to be pointless, before at page 51 the magistrate pointed out that the appellant had one hour to complete his cross-examination.

34. [34]
    Some indication of the approach the appellant adopted in cross‑examination emerges from a passage at pages 54-5:  the appellant read from some evidence apparently during the Supreme Court trial by another police officer about how, after a transcript of a tape which had been made at the time had been prepared by the State Reporting Bureau, it was returned and, “We then went through it to put the names and voices and assisted where we could, put more in than they could hear.”  The witness was not even asked whether he accepted that that had occurred, but it was put to him that that amounted to tampering with the evidence, and that line was pursued for a couple of questions.  Obviously it did not amount to tampering with the evidence, and this part of the cross-examination was a waste of time.

35. [35]
    There was then some point taken about where the offence was committed, which led to some argument on which the acting magistrate declined to rule at that stage: page 56.  I have read through the rest of the cross-examination until it was stopped at 1 o’clock, and it remained unfocused and generally irrelevant.  It was certainly not a case where useful or appropriate cross-examination was stopped by the acting magistrate.  I am not persuaded that there was any miscarriage of justice in curtailing the cross-examination of Sergeant Smith.

36. [36]
    Under cross-examination the appellant put to Sergeant O'Brien that he had previously admitted to planting evidence on him:  page 94.  That was denied.  It emerged that the witness’s explanation was that at some stage, apparently at the original committal proceeding, the witness had spoken of taking the video camera from the police car and putting it on the property, in circumstances where the appellant was actually asking about something different:  page 95.  The appellant did not put in evidence any part of the relevant transcript in an attempt to counter that explanation.  At page 96 Sergeant O'Brien denied planting evidence at all.  There was further cross-examination on some evidence that the witness had given on previous occasions, all of which it seems to me the witness was able to explain.

37. [37]
    Sergeant O'Brien conceded that he did not see any bullets in the .22 gun himself, but he did not examine it:  page 104.  At page 109 the acting magistrate indicated that he would be terminating the cross‑examination at half past 4.  Unfortunately I do not know at what time this warning was given, or for that matter at what time the court finally adjourned that day, but at page 119 the acting magistrate warned that time was drawing near, and just after that the appellant stopped cross-examining, there was no re‑examination and the witness was excused.  It appears that ultimately it was not the case that the appellant was prevented from cross-examining further, though it may be that he was deterred by the fact of the time limitation from cross‑examining further.

38. [38]
    Sergeant O'Brien was cross-examined about what he saw of the confrontation between the appellant and Sergeant Smith: page 110.  He conceded that there was no videotape of that incident, but said that he had prior to then handed the video camera to Sergeant Graham.  He was cross-examined with a view to establishing that he could not have seen that incident, and indeed that it had not happened, but he did not resile from his evidence.  The questioning of Sergeant O'Brien on this subject became somewhat repetitive, and at the foot of page 114 the acting magistrate said he would not allow any further questioning on that topic.  There was some further cross-examination where it was put to the witness that his evidence of having sent the confrontation between the appellant and Sergeant Smith was fabricated, which was denied.  There was then some further cross-examination about the times when various things happened later that afternoon, which does not appear to me to be of any relevance, and it was at that point that the acting magistrate gave the warning that the appellant was running out of time, and cross‑examination ceased.  That was the end of the police evidence.

39. [39]
    The position with Sergeant O'Brien is even clearer, since ultimately the appellant was not stopped from cross-examining him.  My earlier comments apply again; there was no miscarriage in curtailing cross-examination.

The evidence of the appellant

40. [40]
    The appellant gave evidence himself. He began by referring to documents produced by the police, two QP9s, which he claimed were inaccurate and inconsistent with police evidence; it is not immediately obvious how this was relevant or indeed admissible, though the acting magistrate did receive them. There was then simply an assertion that things which were stated in these documents were inconsistent with the evidence, though it is not clear whether this was evidence which was before the acting magistrate. His actual account began on page 135 where he said that on 24 November 2000 he was preparing to go to a gun club.  He had a new gun, the .22, with which he intended to have some shots.  The .45 had a broken spring, was inoperable and could not be used; he intended to see if he could get it repaired at the club.

41. [41]
    The appellant claimed that at his earlier trial he had not been cross-examined on whether the gun was inoperable, and it had not been put to him by the prosecutor that it was operable. That may well be so, but whether or not the .45 was inoperable was irrelevant to the charges before the Supreme Court. The failure of the prosecutor to cross-examine on them, or indeed to dispute the proposition that that gun was inoperable, was of no consequence in the proceedings in the magistrates court. It did not give rise to any estoppel or anything else. It was still open to the prosecution in the magistrates court to seek to prove the firearm was operable. However, because the magistrate had ruled that the appellant could not cross‑examine on that issue, because it was irrelevant to the question of whether it was a category H weapon,^[13] the prosecution evidence that the firearm was operable was also irrelevant.

42. [42]
    The appellant said at page 136 that he was going to go to the gun club with his son, and then his cousin George arrived.  He made some derogatory remarks about cousin George, and said he would not take him to a gun club, so suggested that they go and look for the horse and repair the fence, and go to the club later.  He claimed that he was looking around for the horse on the property.  He said he was having a look around but did not have a gun hanging around his neck and did not hang a gun in the tree:  page 137.  He said (page 140) that he had one in his bag and one around his waist, and the guns had no bullets in them.  He admitted that he had at the site possession of the gun that was in his bag:  page 154.  His evidence then wandered off into a complaint about the police giving false evidence.  He then said that he did not ultimately go to the gun club because he was arrested at the crop site:  page 138.  He said that he took the guns with him when he got out of the car because his car could not be properly locked, and he knew he could not leave his guns in an unlocked car:  page 140.

43. [43]
    Under cross-examination the appellant did not dispute that the guns produced at the court were his guns: page 143.  At page 144 he identified the club that he was going to as the Toogoolawah Gun Club, but he could not say where it was since he had only just joined it.  He was planning to go to Toogoolawah and ask for directions.  He admitted that at one time he was asked why he was carrying a firearm and his reply to the police officer was, “I expected all sorts of wild animals.”:  page 146.  The appellant said that when spoken to by police about the guns at the time, he had lied to them:  page 145.  At page 146 he repeated the proposition that he was carrying the guns because he did not want to leave them in an unlocked car.

44. [44]
    The appellant said he already had the guns in his car ready to go before George turned up, but he made a decision in his own mind not to take cousin George to the gun club: page 151.  He then drove off looking for a horse, and then parked his car and went off on foot to look for it:  page 151.  At page 152 he conceded that his direct intention when he drove away from his home was to go to his lease to look for a horse and repair some fences.  He claimed that the guns in the car were in secure storage, one was locked in the glove box and the case had combination locks on it:  page 152.

Locality jurisdiction

45. [45]
    After the luncheon adjournment Sergeant Smith gave some further evidence in relation to the question of jurisdiction. He said that, after looking at the magistrates court districts, where the relevant area was was right on the boundary of the Ipswich and Kingaroy districts: page 74.  At page 77 under further cross‑examination he said that the site was inland from the D’Aguilar Highway and probably about the same distance between Blackbutt and Moore.  It was not put to him that the incident occurred anywhere else.

46. [46]
    This raised the issue of whether the proceeding was in the correct magistrates court. There was no evidence from the appellant that the relevant place was anywhere other than where Sergeant Smith put it^[14].  Under the Justices Act 1886 section 139(1) a complaint of a simple offence or breach of duty shall be heard and determined:

“(a) at a place appointed for holding magistrates courts within the district within which the offence of breach of duty was committed; or

2. (b)
   at a place appointed for holding magistrates courts within the district within 35 kilometres of the boundary of which the offence or breach of duty was committed …”

47. [47]
    On the evidence the offence or breach of duty was committed either within the Kingaroy Magistrates Courts district, or at a place which was within 35 kilometres of the boundary of that district.  Nanango is a place appointed for holding magistrates courts within that district.  Accordingly, the matter was properly proceeding in that court.  The acting magistrate in his reasons referred to section 23 of the Act as conferring jurisdiction.  Section 23C deals with the situation where there are different divisions within a magistrates court district. That was not the provision relevant to the issue before the magistrate, but I do not consider that this slip produced any practical consequences.  The magistrate clearly had jurisdiction to determine the matter.  The fact that the complaint describes the offence as having been committed at “Blackbutt” was not a problem; the place where the offence was committed was in the general vicinity of Blackbutt.  If some other place name were more accurate, the appropriate course would have been for the magistrate to amend the complaint.  In my opinion no reason to set aside the decision on this basis has been made out.

Recall of witnesses

48. [48]
    The next matter which was challenged was the refusal of the acting magistrate to recall two witnesses, one of whom was said to be available at court. At the beginning of the second day the appellant told the acting magistrate:

“I’d like to recall Mr Smith who – to prove some more points on this case to – search for the truth.  I would like to recall the weapons expert as we have no authorisation as to his academic credentials – who he is or where he – what he was or where he come from.”

49. [49]
    He went on then to make some critical remarks about the way in which the weapons expert had attempted to pull the gun apart on the previous day of the trial. This was a reference to Sergeant Bruce, a witness who had given evidence on the previous day of the trial, as a person with six years’ experience examining firearms. He was an approved officer for that purpose, which had some evidentiary effect under the Weapons Act section 163^[15].  When he was called, he gave his qualifications as a Bachelor of Science degree with honours from the University of Queensland and six years’ experience examining firearms, and said that he was approved under the Weapons Act:  page 81.  On the face of his evidence-in-chief, he was adequately qualified as an expert to give the evidence that he gave, which was in any event of no real importance.  If his expertise was to be challenged then it ought to have been challenged at the time when he gave his evidence.  There was no such cross-examination at that time.  The witness had been excused, and was not immediately available, and the prosecution had closed its case.  In my opinion, the magistrate was quite entitled to refuse the recall of that witness at that time for the purpose of cross‑examination as to his expertise. 

50. [50]
    The only evidence given by Sergeant Bruce was that he test fired both of the pistols and they were capable of discharging a projectile causing death or injury: page 81.  Because they are under 75 centimetres in length they fall within category H:  page 82.  The only cross-examination was as to whether one of the firearms had been repaired, before the witness had tested them earlier this year, by the replacement of a spring in the trigger mechanism.  It appeared at page 88 that the magistrate ruled that it was unnecessary to pursue that point because even if the spring had been defective previously, it was still a category H for the purposes of the Weapons Act, and it was still an offence.

51. [51]
    It is correct that a firearm could then be a category H firearm even though it was inoperable, unless it has been rendered permanently inoperable:  section 6A(1)(b)^[16].  It was not suggested in the present case that any deficiency with the spring rendered the firearm permanently inoperable^[17].  A firearm will still be a firearm even if it is temporarily inoperable or incomplete:  see paragraph (c) under the definition of “Firearm” of section 5 of the Act.  The magistrate was therefore correct in ruling that it was irrelevant whether or not the firearm was operable at the time the appellant had it in his possession.  However, once he adopted this approach, it was not appropriate to make the finding, as he did on page 5 of his reasons, that both weapons were operable at the time when Sergeant Smith took possession of them.  It was inappropriate for him to make that finding in circumstances where he had prevented cross‑examination in relation to that issue on the ground that it was irrelevant to consider whether or not the weapons were operable at that time.

52. [52]
    The finding that the weapons were operable therefore is one that the acting magistrate ought not to have made. For reasons I have already given, this error did not affect the validity of the conviction. As to whether it affects the sentence, I will consider that further below.

53. [53]
    With regard to the recall of Sergeant Smith, he was available, but the defendant did not initially identify any reason why it was appropriate for him to be cross‑examined further.  A time limit on his cross-examination had earlier been imposed, and had expired.  Accordingly it was not just a question of whether Sergeant Smith should be recalled, it was necessary to show that an extension of the time limited by the earlier direction should be made.  No proper basis for taking those courses was established simply by saying that the appellant wanted to prove some more points in this case, or to search for the truth.  In circumstances where there had already been a lengthy cross‑examination of Sergeant Smith, to very little effect, in my opinion the acting magistrate was quite entitled to refuse to recall him for further cross-examination at that point. 

54. [54]
    Later at page 129 the appellant said he wanted to cross-examine Sergeant Smith about whether one gun had been repaired between the time when it was taken from the appellant and the time when it was tested by Sergeant Bruce.  Consistent with the earlier ruling, that did not provide a ground for reopening cross-examination of Sergeant Smith.  The only other matters identified by way of reply were that, “There’s a few other matters that I have to cross-examine him on on times about this gun at the crop site.”  (page 129)  Again nothing specific was identified, and indeed nothing specific has been identified before me.  That does not provide a proper basis to justify having a witness recalled for further cross-examination, after the close of the prosecution case, nor does it provide any justification for extending the previously imposed time limit on cross-examination of the witness.  In my opinion no basis has been shown for challenging the decision on this ground.

Unqualified expert

55. [55]
    The next matter raised by the appellant at the end of his notice of appeal was that “unknown expert gave evidence without academic credentials”. As I have just pointed out, the expert witness, who gave his name, rank and the fact that he was attached to the ballistics unit in the scientific section in Brisbane, gave at page 81 at the beginning of his evidence-in-chief his academic qualifications.  There is obviously no substance to this ground.

Inconsistencies in the evidence

56. [56]
    One matter which was a matter of assertion by the appellant a number of times during the appeal was that the evidence upon which he was convicted in the magistrates court was very different from the evidence that the same witnesses had given at the earlier trial in the Supreme Court in Brisbane.^[18]  The difficulty with that submission is that there was never a proper evidentiary basis laid for it.  If a witness at a trial says something different from what that witness has said at an earlier trial, in cross-examination it should be put to the witness that at that earlier trial he said something different from what he has said in his evidence at this trial, namely, whatever it was.  If he does not distinctly admit that, the cross-examiner is entitled to prove the earlier statement, by putting in evidence the transcript or at least the relevant part of it from the earlier trial^[19].

57. [57]
    It is not enough simply to assert that inconsistency has occurred, or to put to the witness in general terms that inconsistency has occurred, particularly if the witness in response denies that proposition. This was generally all that was done by the appellant; therefore unsurprisingly he is unable to establish by reference to passages in the transcript where the inconsistencies were exposed in cross-examination, so that there was before the acting magistrate evidence of such inconsistencies as ought to have given rise to a reasonable doubt in his mind as to the reliability of the evidence of the witness. Necessarily, therefore, there is nothing in this ground.

Failure to call witness

58. [58]
    It was submitted that the prosecution had wrongly withheld a witness, another police officer Sergeant Graham who had given evidence in the Supreme Court trial, whose evidence was inconsistent with that of the other witnesses. The difficulty with this is that there is no evidence of what Sergeant Graham said at the earlier trial.  There was a complaint at the beginning of the trial about the police not calling all the witnesses who were there (page 6), but the acting magistrate correctly pointed out that it was for the police to run their case.

59. [59]
    The appellant submitted to the magistrate that it was within his power to call additional witnesses who were relevant to the case. The High Court in R v Apostilides (1984) 154 CLR 563 held that, although the power existed, it should only be exercised in the most exceptional circumstances:  page 575.  In that case it was also pointed out that the calling of a witness by the judge would be rare, and that more would be required than a refusal of a prosecutor to call a witness even for reasons which the judge thought insufficient:  page 576.

60. [60]
    That case also laid down the test that the failure of a prosecutor to call a particular person as a witness would only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it was seen to give rise to a miscarriage of justice: page 575. In the present case there can be no criticism of the acting magistrate for failing to call the additional police officer himself, and the question is whether the failure of the prosecutor to call the officer resulted in a miscarriage of justice. There is nothing more than the mere assertion of the appellant to that effect. No proper evidentiary basis has been laid with that submission, and it must be rejected.

Delay

61. [61]
    It was also submitted by the appellant that the prosecution involved an abuse of process, because of the delay in having the complaint tried. It is true that there was considerable delay, but in circumstances where the appellant was also charged with offences which were dealt with in the Supreme Court, it was appropriate to wait until the offences in that court had been tried, and I suppose to wait until the appeal from the conviction had been heard and determined, before proceeding with the summary offence. There seems to have been some delay associated with the transfer of the matter back to the Nanango court. I have already said that I think it was a mistake sending it back to Nanango in the circumstances, but the delay associated with that transfer arose initially because of the unsuccessful attempts of the appellant to appeal against that decision. It would not have been appropriate to proceed with the hearing of the charge until the appeal which was eventually lodged was heard and determined.

62. [62]
    Thereafter there was some delay as a result of the resident magistrate disqualifying himself from hearing the matter; in circumstances where the appellant supported the disqualification of the resident magistrate, he can hardly complain about the delay on this basis. In my opinion, the delay, although significant, was not unreasonable in the particular circumstances of this case, and certainly did not amount to abuse of process of the court.

63. [63]
    The appellant complained that the purpose of the delay was to keep him in custody longer, because he would not obtain parole while this charge was pending against him. Whether he obtained parole was a matter for the parole authorities, not a matter for either the prosecutor or the magistrates court. There was a complaint that the magistrate who disqualified himself refused bail at one point while the appellant was in custody anyway serving his sentence. But if the appellant were going to be in custody anyway, in my opinion there was no point in allowing bail; the question of bail in relation to the summary offence arose only when there was a prospect of parole, or when the sentence had been served, and it appears that once that point was reached bail was allowed. I am content to proceed on the basis that the parole authorities did delay the appellant’s release on parole because the summary offence was pending against him, but I do not consider that that means that there was an abuse of process associated with the prosecution, or the inability of the magistrates court to make a magistrate or acting magistrate available for a trial earlier than occurred.

Other matters

64. [64]
    Some matters raised in the further outline of argument filed by the appellant on 22 September 2004 relate to the Supreme Court trial in which the appellant submits that he was wrongly convicted.  Whether that conviction was proper has already been considered by the Court of Appeal, it is not a matter which arose in the magistrates court, and it is not an issue in this appeal.

65. [65]
    The appellant claimed that this was a case of double jeopardy as he was convicted once before of having these guns. But that could only arise if he was convicted once before of having these guns at this particular place on this particular occasion. There is no suggestion of that. If a person has unlawful possession of a particular firearm on more than one occasion, that person can be convicted of more than one offence.

Reasons for decision

66. [66]
    The acting magistrate in his reasons noted, it seems to me correctly, that the appellant’s version was not in general put to the police witnesses: page 3.  He said that the elements of time, date, place and parties had been proved beyond reasonable doubt, as was the identity of the two pistols as being those of the defendant:  page 4.  He found that both weapons were category H, that they were operable, they were capable of discharging a round and the appellant had possession of them on the relevant date at a time he was not on an approved shooting range:  page 5.  He went on to consider the question of whether there was the appropriate locality jurisdiction in relation to the charge, and found that the offence occurred either within the court’s district or within 35 kilometres of the boundary of it:  page 6.  Apart from the finding that both of the weapons were operable, none of these matters was really disputed.

67. [67]
    The acting magistrate summarised the appellant’s explanation of what had occurred, and noted that his evidence was that one weapon was inoperable, and that his vehicle was not able to be secured, which was why he took the weapons with him when he went searching for the horse. He then held that the version of the appellant was “a farrago of fact, fantasy and fiction”: page 7.  He declined to accept that it was truthful and noted that the appellant had conceded that he had told the police lies.  He went on to hold the defence of mistake of facts was negated by the lack credibility of the appellant^[20], and negated in total by the argument of the prosecution:  page 8.  He found the appellant was not complying with the condition on the licence, and that the appellant was guilty of the charge:  page 8.

68. [68]
    In relation to the defence of mistake of fact, it is not apparent to me that the appellant’s version gave rise to any question of mistake of fact. The appellant submitted that if what he was doing was outside of the condition of the licence that was an honest mistake on his part, but any such mistake was as to the scope and operation of the condition of the licence, a mistake of law not a mistake of fact. It could not give rise to any defence under section 24.  This was not a case where, for example, the appellant had raised the question of whether he had honestly and reasonably been mistaken as to whether he was at an approved shooting range, nor whether there was an honest and reasonable mistaken belief that his weapons were in secure storage.  The appellant’s version did not give rise to any potential defence under section 24, nor was one raised elsewhere by the evidence, so there was nothing for the prosecution to negative.

Analysis

69. [69]
    Insofar as there was a difference between the version given by the two police witnesses and the version given by the appellant, the resolution of that difference was a matter to be determined by the acting magistrate, essentially on the basis of findings as to credibility. Although this is an appeal by way of rehearing, findings based to a substantial degree on the credibility of witnesses must stand unless it can be shown that the magistrate has failed to use or has palpably misused his advantage of seeing and hearing the witnesses, or has acted on evidence inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable^[21].  For the purposes of this appeal, I proceed on the basis that it would be appropriate to interfere if I thought that upon the whole of the evidence it was not open to the magistrate to be satisfied beyond reasonable doubt that events had occurred in the way found^[22].

70. [70]
    I am not persuaded that any basis has been shown to set aside the magistrate’s findings, except in relation to the finding that both firearms were operable, in circumstances where, because of his ruling that this did not matter for the purposes of the charge, the appellant had been closed out from investigating the question of whether one of the firearms was inoperable. In other respects, the findings of fact made by the acting magistrate were findings that were open to him, and no sufficient reason has been shown to set aside those findings.

71. [71]
    The question then arises whether the sentencing process miscarried because there was this inappropriate factual finding in relation to one issue. The question of whether the firearm was operable was relevant really only to the question of whether the firearm was used to commit another offence, with which the appellant had not been charged, that is, assaulting the police officer Sergeant Smith in the execution of his duty.  Even if the firearm were inoperable it would still be an assault, though it would be relevant to the seriousness of that offence.  But it was not appropriate anyway to take into account that the appellant was guilty of another offence with which he had not been charged and of which he had not been convicted for the purposes of sentencing in relation to the Weapons Act charge^[23].

72. [72]
    There is, however, no reason to think that the magistrate did take this matter into account inappropriately when passing sentence, particularly in view of the sentence actually imposed. The position therefore in my opinion is that, although there was an inappropriate finding of primary fact, it was a fact which was of no real consequence for the purpose of sentence. In those circumstances, I do not consider that it involved such a degree of error in relation to the sentencing process as would justify my interfering and setting the sentence aside, and re-sentencing the appellant.^[24]

73. [73]
    The prosecutor ultimately did not pursue any question of whether there were previous relevant convictions, although obviously one previous conviction was the conviction in the Supreme Court of the drug offence. There was an issue as to whether the firearms should be forfeited, and ultimately the acting magistrate made an order which gave the appellant a reasonable opportunity to avoid that.

74. [74]
    The appellant submitted at one point that the appropriate course was not to record a conviction, and to impose no penalty. In my opinion that would not have been an appropriate course. The relevant considerations in relation to recording a conviction are set out in section 12 of the Penalties and Sentences Act 1992.  There was no particular reason to think that recording a conviction of this offence would have any significant adverse impact on the appellant’s economic or social wellbeing or chances of finding employment, bearing in mind that he had already a conviction for a significant drug offence.  He was not of such an age as would encourage a court to be reluctant to record a conviction.  In all the circumstances there is no reason to think that the acting magistrate’s discretion to record a conviction miscarried.

75. [75]
    It was certainly not an appropriate case to impose no penalty. This was not a mere technical infringement of the rules. The inappropriate possession of category H firearms is a serious matter, and on any view of the matter, and particularly on the basis of the facts legitimately found by the magistrate, the appellant’s possession of these firearms under the circumstances was entirely inappropriate.  In my opinion, to impose no penalty would have been quite inadequate.  The penalty imposed by the magistrate was a fine of $650; he allowed nine months to pay, in default 11 days imprisonment.  In my opinion, that was in the circumstances a very moderate penalty to impose.  I am certainly not persuaded that it was excessive.  Indeed, if I were re-sentencing the appellant for the offence I would not impose a lower penalty.

76. [76]
    It follows therefore that the appeal, both in relation to conviction and in relation to sentence, should be dismissed. Although the respondent’s outline sought costs if the appeal was dismissed, that was not pressed by counsel for the respondent, so I make no order in relation to costs.