Chief Executive Officer of Customs v Powell
[2010] QDC 218
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- Unreported Judgment
- Appeal Determined (QCA)
- Chief Executive Officer of Customs v Powell[2010] QDC 218
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Chief Executive Officer of Customs v Powell[2010] QDC 218
Chief Executive Officer of Customs v Powell[2010] QDC 218
DISTRICT COURT OF QUEENSLAND
CITATION: | Chief Executive Officer of Customs v Powell [2010] QDC 218 |
PARTIES: | CHIEF EXECUTIVE OFFICER OF CUSTOMS |
FILE NO/S: | 2262 of 2009 |
DIVISION: | Appellate jurisdiction |
PROCEEDING: | Section 222 appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 5 March 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 February 2010 |
JUDGE: | Robin QC DCJ |
ORDER: |
|
CATCHWORDS: | Justices Act 1886 (Qld), s 222 Customs (Prohibited Imports) Regulations 1956 (Cth) Regulation 4F Appeal against Magistrate’s acceptance of “no case to answer” submission – prosecution for importation of a “firearm part” – subject item, a “receiver”, was imported after a large part had been cut off – evidence given (supported by a demonstration) that it could be made “whole” or useful. Brayley v Malkovic [2006] WASC 94 Marchetti v Williams [2008] QDC 75 at [36] May v O'Sullivan (1955) 92 CLR 654 at 658 |
COUNSEL: | K Dorney QC and K Copley for appellant S Lewis for Respondent |
SOLICITORS: | Australian Government Solicitor for appellant Ryan & Bosscher for respondent |
- [1]Whether a substantial part of a firearm part can be a “firearm part” under Regulation 4F of the Customs (Prohibited Imports) Regulations 1956 (Cth) is the question in this appeal under s 222 of the Justices Act 1886 (Qld) against the dismissal of a complaint of unlawfully importing a prohibited import in the Brisbane Magistrates Court on 16 July 2009. A “no case to answer” submission to the effect that “firearm part” does not extend to part of a firearm part was accepted.
- [2]The argument in the appeal was a re-run of that at first instance. The respondent conceded that he had caused the item to be imported. It became exhibit 1. Its provenance is unknown. It is about 11 centimetres long, 2 centimetres wide and 5 or 6 centimetres deep. The item was accepted to be a “lower receiver” of the kind included in a Colt Armalite rifle: a lower receiver qualifies as a “firearm part” for the purposes of the definition in Regulation 4F(4) under (d):
“firearm part, for a firearm, means any of the following items:
- (a)a gas piston, friction assembly, action bar, breech bolt or breech block;
- (b)a firearm barrel;
- (c)an assembled trigger mechanism;
- (d)a receiver;
- (e)something, other than a complete firearm, that includes 1 or more of these items.
Note The effect of the definition is that some items used in a firearm are not treated as ‘firearm parts’ by themselves, including the following items:
- (a)a firearm accessory, a firearm magazine or ammunition;
- (b)a screw, spring, or other minor component, of a firearm.”
- [3]For present purposes, there is nothing in the Regulations that would exempt the item from being a prohibited import, were it complete. Exhibit 1 is only half of the length of the complete Colt component; it has been severed by some means leaving rough edges of cuts at an acute angle to the vertical, one of which is forward of the other by a varying margin of up to a centimetre.
- [4]The prosecution called an acknowledged expert, Mr Davies, who carried out an experiment upon a rifle of the relevant model. Exhibit 8 was a photographic record of the state of it and its components through the process of its being dismantled and the lower receiver cut in two, roughly where exhibit 1 has been cut, but much closer to vertically; the two sections were soldered together and the rifle reassembled and tested – which established that it was functional.
- [5]His Honour took an active part in questioning Mr Davies, whose examination in chief unfolded towards its conclusion in this way.
“HIS HONOUR: Perhaps you should ask him the basis for his opinion that it was repairable?
MR HANSON: All right. Mr Davies, you’ve given evidence that you thought it was repairable, before you conducted the experiment. Could you outline to the Court the basis for that opinion?-- The basis for my opinion is the fact that I understand that numerous other similar damaged receivers internationally have been repaired; in fact a small number have even been repaired in Australia. And to make operational firearms – and so I had no hesitation in undertaking the work to this particular firearm, that I grabbed it out of the reference collection, to use as an example of how readily available it was to be made fully functional, when an item is damaged and then re-repaired. Yes.
And was there some particular incident you had in mind, in respect of repairing the receivers, or weapons of this type?-- This particular Court matter comes to mind, but in addition to this, there was a number of lower receivers and upper receivers manufactured by ADI, in the old days when they were Lithgow Small Arms Factory.
Okay. ADI being now?—Australian Defence Industries, who have since been bought out by TELAS. A different company who’s purchased them out. ADI at the time were looking at either adopted an M16 type rifle, for the Australian Defence Forces, or adopted the Steyr rifle, which they later adopted. They were looking at making those rifles, the M16, in Australia. They undertook some work and made some lower receivers. When they decided to get out of business of making M16 lower receivers, they actually broke them up into parts, and sold them as scrap. The gun dealers who bought them as scrap understood their intrinsic value and soldered them back together, to make operational firearms. They then had – as fully operational working M16’s.
Thank you, Mr Davies. That’s it, your Honour. Don’t have any further questions.
HIS HONOUR: Mr Davies, if we could just focus on the item itself?—Yes, your Honour.
And what would be involved in repairing it, so that it could be a functional part in an M16?—As you can see, your Honour, this has a magazine weld that will allow a magazine to be interface with it. This particular item doesn’t have that, so we’d have to either fabricate a magazine weld, to allow the magazine to interface with it, or we could cut the magazine well off another item and then once this area has been built up, to take up that centimetre of material I was suggesting that was missing, once that piece had been – in my opinion – braised into place, we then had to put a magazine well into place, to allow a magazine to interface with it. Then the internal parts would go back in lace, and then it could be fired, used to fire a firearm.
Okay. I’m not – you told me earlier that it was missing about one centimetre, but-----?-- It’s missing one centimetre of material from the front part of the receiver.
Yes?-- And then from the receiver there’s a magazine well, which is a larger area of metal here.
Is that normally completely consistent with the lower receiver; in other words it forms one part?-- Yes, the magazine well, plus this centimetre of material, would form the complete lower receiver, your Honour. That is correct.
Oh, I see. So in fact it’s missing more than one centimetre of material, it’s actually missing the magazine well, in addition?-- My apologies if I wasn’t clear on that. But it’s certainly missing one set of material – one centimetre of material being before the magazine well starts, and then it’s missing the magazine well, on top of that.
Yes?-- My apologies, your Honour, if that was unclear.
Righto. So, if we think about it as a full functional part, you’ve really only got about half of it there?-- If you consider it as a full functional part, the magazine well is just a well itself, your Honour. It doesn’t have any parts within it. It just houses the magazine.
Yes?-- But yes, you’re looking at about half of a lower receiver.
Mmm. And in addition there’s the internal mechanisms, which are missing as well?-- The internal parts are missing out of the receiver, yes, your Honour.
Okay, so looking at this ragged edge you’ve got there-----?-- Yes, your Honour.
-----you’ve got to somewhere or other either fabricate or obtain a magazine well? -- Yes.
And also weld or braise or whatever some additional material onto the ragged edge?-- You’ve got two choices, your Honour. If you buy a pump action repeating rifle, you can then – the piece that we’re missing – you would just cut that further back. And cut it through where the ragged edge is now. So instead of having – coming up with a centimetre of material, plus the trigger mechanism, you can simply cut it through on that angle, and then clean this edge up, so you’ve got an easy join for those two parts. And use the magazine well and the other part of that other legally obtainable receiver to join to this to repair this back to fully function.
So, I mean, how – how available are – is the magazine well and this other part that you’re talking about?-- It’s commercially manufactured now, your Honour. And legally imported in certain states of Australia.
For what weapons?-- For a DPMS pump action repeating rifle. As I stated earlier, there’s – looks exactly the same as this, but instead of having a select lever and a fully auto, you have to manually pump it, after each occasion, up until not all that long ago, a significant number of states in Australia permitted them to be imported, for recreational hunting , and sporting shooters purposes. So you could take that lower receiver, cut the part off that you’re missing out of here, simply align them and – in my opinion, connect them back together to then create a fully operational lower receiver for an M16.
Well, why would you want to do that?-- Because M16’s are prohibited, your Honour, and some people have a desire to have what is prohibited.
No, well, I understand that. But I mean it’s not possible to utilise that other local receiver, and to reconfigure it to give you automatic functioning?-- You can. But it takes a lot of machining, your Honour. And some people don’t have access to the machinery, or it looks a bit – it’s quite problematic, I imagine, taking a lower receiver for a pump action rifle into a machinery shop if you don’t have the necessary machinery, and saying, “Can you machine this part here to have all the tolerances out of this part here please”. So, in failure to do so, it’s easier in my opinion to actually just braise these two parts together than to use this as a template. But it can be used as a template. But it can be used as a template to machine those parts, across.
I come at this with a completely clear sheet of paper. Tell me what braising is?-- Braising is just a type of soldering, your Honour, where you get a braising rod, like a form of solder, oxyacetylene. You heat up the two parts that need to be joined, and you fill in the area with the metal that you melt in the braise, in the solder, to join the two parts together, as I’ve done here, your Honour. And you can actually see I’ve left it quite lumpy on here. This was the item that – a series of photographs were taken, and you can see here the braising or the solder still in place, holding this part and this part together. So it’s melted metal that’s holding the two parts together, your Honour.
And I think you told us this earlier in the – when you gave evidence on the voir dire, but we had perhaps better approach it now. And that is – what’s your understanding of the capability to be able to solder that aluminium alloy material that you identify, that the item is made out of, to some other aluminium alloy material perhaps of a different nature, that has been used to create the full part?-- Yes. The reason I went to the trouble of grabbing an example out of the library to manufacture up was to demonstrate to the Court, if required, that this was a task that could be undertaken. And it could be undertaken with simple oxyacetylene and some braising rods that you can acquire from BOC or CIG, or a welding supply company.
But the joining of aluminium pieces – is that something that regularly occurs, in -----?-- In the gun smithing trade?
-----yes – in gun smithing? -- Yes, your Honour. Because a lot of parts can no longer be legally imported into Australia for one reason or another. Some parts fall to a higher control, and as a result you can only get ministerial approval to bring these items in. That’s quite difficult for certain people, so as a result, prior to the buy-back in ’96, a fully operational M16 was available about $2,600. Post the buy-back in 1996, an M16 fully operational was around $10,000.
I can understand that motivation, but I’m – I’m just focussing on the exercise of repairing the item?-- And that’s why people repair these items.
Yes, but -----?-- And keep them in service as long as they can, your Honour, because their value’s so high.
But drawing you your experience as a gunsmith, I’m just – I think you told us earlier that there can be problems with cracking occurring?-- There can be problems with cracking occurring if metal starts to cool too rapidly, sir – your Honour. And as a result you then need to consider using a different type of solder or where you don’t have to heat the two pieces of metal that are being joined together, as hot to melt the soldered material in question.
And – well is that likely to be a total impediment to joining two pieces of aluminium alloy?-- I don’t perceive there would be any problems. I can appreciate from a structural point of view, if this was holding a roof up, that there may be engineers who would argue that it shouldn’t be done. Not that it can’t be done, but it shouldn’t be done. I would suggest there would be no problems at all undertaking the task in hand.
So, you’re saying, in your experience, it will never be impossible to join two pieces of aluminium alloy? The only issue might be the structural integrity of what you achieve?-- And the ugliness of the join that you make afterwards. I’ve certainly never encountered any parts that we’ve been unable to join together within the AFP’s workings, or previously with the Western Australia workings, or any other area joined that I visited, that has been undertaking these sorts of activities.
Yes, anything arising out of that? Were you going to -----?-- Sorry, your Honour.
------ tender that rifle, or anything else?
MR HANSON: Your Honour I – there was a difficulty with tendering it, in the sense that we want to retrieve it. And I don’t think the Court wants to keep it particularly, for the purposes of-----”
- [6]His Honour’s reasons identify the issue as he approached it:
“The difficulty in this case arises from the fact that the item which is before me – on the evidence – does not constitute all of what would be a lower receiver for this type of rifle; indeed, a large section of that part is missing. The item is missing that section of it which would constitute the magazine well and what is left has a very jagged edge – it seems that the item, being – has, in some way, been broken or cut so that something approaching half of the item, is missing. In addition, the item, to be functional, would require certain additional small parts that operate internally in the item; those are not there. The question for me is whether – in a proper interpretation of the legislation – the item tendered before the Court can be described as a firearm part.”
- [7]His Honour accepted that “the regulations should be interpreted having regard to the purpose of the legislation, particularly what is clear from the explanatory statements, that the purpose of the legislation is the control of the importation of certain firearms”.
- [8]The appellant drew this Court’s attention to pertinent explanatory statements which are relevant material for the Court to consider in having regard to the purpose of the underlying legislation (and the Regulations) because of s 15AA of the Acts Interpretation Act 1901 (Cth). Regulation 4F is referred to in the explanatory statement for Statutory Rules 1996 No 91 which is, in part:
“The amendments to the Regulations introduce a new, simplified structure for the control of the importation of firearms into Australia.
Following the Port Arthur tragedy, the special meeting of the Australasian Police Ministers’ Council (APMC) on 10 May 1996 adopted a number of resolutions aimed at effective national firearm controls. Part of the implementation of these resolutions required the Commonwealth Government to impose a total prohibition on the importation into Australia of all self-loading and pump action longarms. While the importation of fully automatic weapons was always prohibited under the Regulations, amendments were made to the Regulations to tighten the controls on the importation of rimfire self-loading rifles and self-loading or pump-action shotguns (Statutory Rules No. 59 of 1996 refers).
…
Regulation 4F has also introduced import controls on the importation of all parts, specified firearm accessories, all magazines and all ammunition. All parts will be subject to the same import controls as the firearms to which the part relates, thereby closing the loophole which allowed complete firearms, whose importation was other-wise controlled, to be assembled from parts imported in individual shipments (items 4, 7, 10 and 13 of Part 2 of Schedule 6 refer). Import controls on all magazines for firearms have also been introduced (items 15, 16 and 17 of Part 2 of Schedule 6 refer). These amendments are entirely consistent with the strategy to tighten import controls on firearms. The new controls on the importation of ammunition give effect to a previous APMC Resolution on this issue (items 19 and 20 of Part 2 of Schedule 6 refer).”
- [9]The Regulations changed in 1998 to the form now relevant. The explanatory statement for Statutory Rules 1998 No. 58 says, in part:
“Background
During 1996 all Australian governments agreed on a national scheme to control the circulation of firearms in Australia. In particular, it was agreed that strict controls would be placed on access to self-loading rimfire rifles, self-loading shotguns or pump action repeating shotguns (“the relevant weapons”), as well as parts, accessories, magazines or ammunition used in these weapons. (“parts”).
…
The amendments to the Customs (Prohibited Imports) Regulations which commenced on 25 March 1998 have inadvertently adversely affected the legitimate importation of Category C firearms and parts for official purposes and the importation of category C firearms by international and Olympic competitors. They have also placed an unreasonable burden on firearms dealers and Customs officials in relation to the storage and release of parts.
The amendments
The purpose of the regulations is to redress the above matters. The amendments:
- (a)introduce a definition of “firearm part” for the purpose of the Regulations, which will confine the operation of the regulations to certain essential components of firearms, and permit the free entry of non-essential components, such as individual screws, springs and other small components regulation 3, substituting new subregulation 4F(4) of the Regulation.”
(The “Note” to (e) in the definition on its own may lack the potency that acknowledgement of the purpose in the explanatory statement confers.)
- [10]This material goes on to explain the appellant’s concern that the determination under appeal that there was no case to answer “drives a truck through” the Regulations and the whole scheme for controlling imports of firearms. His Honour acknowledged the outcome “might present problems for law enforcement”; he thought that the legislation had “not sufficiently addressed … issues as to allow me to interpret the item imported as being a firearm part”. Taking the prosecution case at its highest, as his Honour accepted must be done (consistently with Marchetti v Williams [2008] QDC 75 at [36],[1] citing authorities including May v O'Sullivan (1955) 92 CLR 654, at 658), his Honour said of the relevant item:
“The question whether what we have before us here can be a firearm part must turn on … a matter of degree” (Reasons, page 11).
Following the line of Hasluck J in Brayley v Malkovic [2006] WASC 94 he accepted that:
“the fact that minor repair or some additional minor component was necessary in order for the weapon to be functioning, would not prevent it falling within the definition, as the case may be, of either a firearm or a firearm part … if we had an otherwise sound lower receiver the fact that it was missing some internal components would not be sufficient…A repairable crack would not prevent it being described as a firearm part” (Reasons page 12).
His Honour said he had before him something very different:
“It is only about half of what might constitute the whole of the lower receiver. The remaining part is missing, and very substantial work by someone with a gunsmith’s skills and with tools adapted to that purpose would be necessary even should a relevant adjoining component be located, will be necessary in order to bring this back to a point where it could be usefully used as a firearm part.
In saying all that, I accept the evidence taken at its highest of the Crown witness that it would be possible. But the question seems to me it is one of interpretation of the legislation.” (Reasons, page 13).
His Honour expressed the view (with which I would agree) that if the value of the item was merely as a “template”[2] assisting manufacture of a useful part, it would not be a firearm part.
- [11]It appears to me that his Honour when he formulated and applied a test of whether the work to be done to render exhibit 1 usable as a firearm part was “minor” or “substantial” introduced a concept which is not in the Regulations. There was a successful appeal against the decision in Brayley v Malkovic [2008] WASCA 20 but the appeal turned on a different point. It is convenient to set out a series of extracts from the reasons of Hasluck J.
“29. … the issue to be resolved on the appeal is the ‘main issue’ defined by the learned Magistrate, namely, whether the pistol slides and barrel in question can properly be characterised as components or parts of a firearm, despite them not being able to function as a firearm.
…
43. … other cases might arise when it was a question of fact and degree whether the subject matter of the charge did or did not fall within the ambit of the Act.
44. This was essentially the approach adopted by Pullin J in Beaton v Wray-Watts [2003] WASCA 314. In that case, a dealer was charged with various offences under the Firearms Act 1973 (WA). The dealer was said, inter alia, to have had in his possession a prohibited firearm being a military rifle which had been used by Australian servicemen in Vietnam prior to being withdrawn from military service. The piece in question had been modified so that it would not fire ammunition and so that it could then be used for drill purposes by cadets or trainees, and was thus said by the defendant not to be a firearm. His Honour upheld the learned Magistrate’s finding that it was a firearm on the grounds that although the piece had been altered in a way which made it impossible to fire, the expert evidence had shown that the alterations could be undone to make it capable of discharging a bullet. The piece should therefore be characterised as a firearm.
…
49. Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying that Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. The task of the Court under s 15AA and its equivalents is to seek to discover the underlying purpose or object of the provision in question and, if possible, to adopt the interpretation of that provision that furthers the purpose or object: Pearce and Geddes: Statutory Interpretation in Australia (5th ed) Pt 2.10.
50. In a case concerning the importation of hand guns, namely, Chief Executive Officer of Customs v Granite Arms Pty Ltd [2005] HCA 51, the High Court said in the expression of a unanimous view at para 29, that the subject, scope and purpose of the relevant regulations was the performance by the Commonwealth of its part in the creation of a national scheme of firearms control.
…
53. …the cases in question arose in a different statutory context (that is, under the Firearms Act). Further, and in any event, the decided cases relied on concerned firearms which were found to be capable of being restored to a useable condition. They had the capacity to deliver missiles and inflict damage.
54. In the present case, however, the learned Magistrate found as a matter of fact that the subject parts, being the barrel and slides, had been rendered useless and were not functional, even though they could still be discerned as parts of a pistol. This finding was clearly open on the evidence and there was no evidence of any significance to the contrary.
55. The decided cases, albeit of marginal relevance to the present case, suggest that in the end it will be a matter of fact and degree as to whether an item can continue to be regarded as a pistol, or as a part. In other words, both Carlson (supra) and Beaton (supra) appeared to proceed from the premise that if an object had been designed as a firearm and could, by repair or replacement of parts, be used as a firearm (that is, used to discharge bullets by means of an explosive charge), then it could be characterised as a firearm. However, inherent in this reasoning is the notion that if, as a matter of fact and degree, the object is beyond repair, or irretrievably useless, and thus incapable of performing the function for which it was designed, then it cannot be characterised as a firearm.”
- [12]The other Western Australian authority referred to is Beaton v Wray-Watts [2003] WASCA 314, from which there was an unsuccessful appeal: [2005] WASCA 114. There were various charges under the Firearms Act of Western Australia. The factual and legal contexts were different from the present; Pullin J at [35] acknowledged that the judgments to be made were ones of fact and degree.
- [13]In the present circumstances, the appellant’s submission, with which I agree, is that exhibit 1 is not only discernible as a firearm part (receiver), notwithstanding that part of it (the less important part) has been cut off: it is impossible to regard it as “useless” or “not functional”.
- [14]The appellant’s case was that a “fact and degree” test applies in determining when an item is a firearm part, depending on its degree of “wholeness” given that “it contains features which, outside a gun factory, would be difficult to replicate.” There was a submission that the item is a ‘receiver’ and ‘firearm part’ as defined “…even without restoration or alteration”. The appellant’s argument was that with “relative ease” exhibit 1 could have been made workable. I think it is patent from the photographic evidence that the subject item constitutes the vital end of a complete Colt (or like) “receiver” with the features important to efficient operation of a firearm that depend on precision engineering. Mr Lewis’ submissions to the contrary contended that Mr Davies had accepted the following propositions:
- “(a)That the item was about half of a lower receiver;
- (b)That the internal mechanisms are missing from the item;
- (c)That there was a ragged edge to the piece of metal;
- (d)That there is a requirement to either fabricate or obtain a magazine well; and
- (e)That further material had to be welded or braised onto the ragged edge.”
- [15]I think the appellant is correct in disputing that Mr Davies accepted (b). As I understand things, the “internal mechanisms” must be separate components including and capable of rotating around the “axle” (as I called it at the hearing) or “pin(s)” depicted in exhibit 6 (3-65), for example. I understand these to be the assembled trigger mechanism in (c) of the definition of firearm part. Although his Honour (doubtless having been encouraged in this regard) was cognisant of the need for an associated trigger mechanism if the lower receiver was to be functional, it seems to me, with respect, that the Regulation contemplates the receiver being treated independently of other firearm parts (or parts thereof).
- [16]Orders sought by the appellant, should argument on appeal find favour, are:
“Pursuant to s. 225 of the Justices Act 1886: …
- (a)The finding … that the respondent had no case to answer be set aside and a ruling that the respondent had a case to answer be substituted therefor…
- (b)The order…that the complaint be dismissed be set aside.
- (c)The order…that the respondent be discharged be set aside.
- (d)The proceeding be remitted to the Magistrates Court for further hearing and determination.”
- [17]It may seem odd to remit a proceeding in these circumstances, particularly if it is to be determined by the same Magistrate, whose views as to the appropriate outcome may appear to have been declared. As things currently stand, however, the ruling of no case to answer does appear now to stand in the way of prosecution of importation of any “firearm part” that is less than whole (so as to be able to be characterised as only part of a firearm part) - which may well significantly frustrate the purpose of the Regulations in this regard and the scheme as a whole. Taking the prosecution case, crucially, Mr Davies’ evidence, at the highest, is that exhibit 1 required a limited amount of work which it was feasible to do to render it “whole” and usable. There was a case to answer, in my respectful opinion. His Honour may have inadvertently, in the interests of economy, have been crossing the next bridge (where he was to determine whether he was satisfied of the prosecution’s case) rather than focussing on whether the prosecution’s case was strong enough to support a conviction by a reasonable tribunal of fact. The point is made by the High Court in May v O'Sullivan at 658-9:
“When, at the close of the case for the prosecution, a submission is made that there is “no case to answer”, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a “case to answer” has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact. In deciding this question it may in some cases be legitimate, as is pointed out in Wilson v Buttery (1926) SASR 150 for it to take into account the fact that the defendant has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear: cf Morgan v Babcock & Wilcox, per Isaacs J (1929) 43 CLR 163 at p 178. But to say this is a very different thing from saying that the onus of proof shifts. A magistrate who has decided that there is a “case to answer” may quite consistently, if no evidence is called for the defendant, refuse to convict on the evidence for the prosecution. The prosecution may have made “a prima facie case”, but it does not follow that in the absence of a “satisfactory answer” the defendant should be convicted” (emphasis added).
- [18]The appeal should be allowed, and the orders sought made. It was intimated by the appellant that costs are sought in the event of the appeal succeeding, although not mentioned in the Notice of Appeal. I think costs ought to be awarded, as well as the orders that were sought in the Notice of Appeal.
- [19][On 31 May 2010, orders were made in terms of an initialled draft which the parties jointly submitted was appropriate.]
Footnotes
[1] At [36] “In those circumstances, I will not allow the appeal on the first ground raised in the notice of appeal. In case a different view may be taken elsewhere, however, I will briefly express my view as to the merits of the argument. The approach to a submission that there is no case to answer is that laid down by the High Court in May v O'Sullivan (1955) 92 CLR 654, at 658, where it was said that this was a question of law, as to whether on the evidence as it stood the accused could lawfully be convicted If the prosecution evidence, taken at its highest, was such that a jury properly directed could not properly convict upon it, there was no case to answer, where, however, the strength or weakness of a prosecution case depended on the view to be taken of a witness’s reliability or on other matters which are in a jury trial regarded as within the province of a jury, and where on one possible view of the facts there was evidence upon which a jury could properly come to the conclusion that the defendant was guilty, then there was a case to answer: R v Sutton [1986] 2 Qd R 72, applying R v Galbraith [1981] 1 WLR 1039 at 1042. In a circumstantial case, whether there was a reasonable explanation of the facts consistent with innocence was a question for the jury: R v Murphy (1985) 4 NSWLR 42 at 69. The court in Sutton added that a trial judge in deciding such a submission does not have to be satisfied beyond reasonable doubt in respect of each element” per Judge McGill SC.
[2] This I take to mean “pattern, mould or the like” – as per the Macquarie Dictionary.