Powell v Chief Executive Officer of Customs
[2011] QDC 272
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- Unreported Judgment
- Appeal Determined (QCA)
- Powell v Chief Executive Officer of Customs[2011] QDC 272
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Powell v Chief Executive Officer of Customs[2011] QDC 272
Powell v Chief Executive Officer of Customs[2011] QDC 272
DISTRICT COURT OF QUEENSLAND
CITATION: | Powell v Chief Executive Officer of Customs [2011] QDC 272 |
PARTIES: | TIMOTHY CHARLES POWELL (Appellant) v CHIEF EXECUTIVE OFFICER OF CUSTOMS (Respondent) |
FILE NO/S: | 3733/10 |
DIVISION: | Crime |
PROCEEDING: | Appeal pursuant to s 222 Justices Act 1886 |
ORIGINATING COURT: | Queensland Magistrates Court |
DELIVERED ON: | 17 November 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 October 2011 |
JUDGE: | R S Jones DCJ |
ORDERS: |
|
CATCHWORDS: | APPEAL – s 222 Justices Act 1886 – appeal against conviction in the Magistrates Court – where the appellant was found guilty of importing a prohibited import – where prohibited import was a firearm part as prescribed by the Customs Act 1901 (Cth) – where appellant asserts that the finding by the Court below was not open on the evidence. MISTAKE OF FACT – whether on the evidence presented in the proceedings below the defence of mistake of fact was open – whether the respondent had beyond reasonable doubt excluded the operation of the defence of mistake of fact. ADDITIONAL EVIDENCE – where defendant did not give or adduce evidence in proceedings below – whether special grounds exist for granting leave to adduce fresh or additional evidence on appeal – whether fresh or additional evidence raises the defence of mistake of fact. Justices Act 1886 Customs Act 1901 (Cth) Criminal Code 1995 (Cth) Customs (Prohibited Imports) Regulations 1956 Brayley v Malkovic [2006] WASC 94 Chief Executive Officer of Customs v Powell [2010] QDC 218 Chief Executive Officer of Customs v Powell MAG-00125423/06(0) CTM v R (2008) 82 ALJR 978 Gallagher v The Queen (1986) 160 CLR 392 Larsen v CJ Coles Co. Ltd. (1983-84) ACrimR 109 Ostrowski v Palmer [2004] 218 CLR 493 Pavlovic v Commissioner of Police [2006] QCA 134 |
APPEARANCES: | Mr J R Hunter SC and Mr D Wilson of Counsel instructed by Russo Mahon Lawyers for the appellant Mr M J Byrne QC and Mr C K Copley of Counsel instructed by the Australian Government Solicitor for the respondent |
- [1]This proceeding is concerned with an appeal from a decision of the learned Chief Magistrate of the Magistrates Court of Queensland pursuant to s 222 of the Justices Act 1886. For the reasons set out below the orders of the court are:
- 1.Leave to adduce additional evidence is refused.
- 2.The Appeal is dismissed.
- 3.I will hear from the parties about the final form of the orders and costs.
Background
- [2]The appellant was charged by complaint with having, on 21 February 2006, imported a prohibited import contrary to s 233(1)(b) of the Customs Act 1901 (Cth). The alleged prohibited import was said to be part of a lower receiver for an M16 rifle. (Exhibit 1).[1]
- [3]When the matter first came before the Chief Magistrate, his Honour accepted a no case to answer submission advanced on behalf of the appellant. That decision was appealed to this court pursuant to s 222 of the Justices Act 1886 (Qld). On 5 March 2010 his Honour Robin QC DCJ allowed the appeal and ordered that the order made by the Chief Magistrate, that the complainant be dismissed, be set aside and that the matter be remitted to the Magistrates Court for further hearing and determination.[2] Without objection, upon remittal to the Magistrates Court, the matter came back before the Chief Magistrate.
- [4]At the conclusion of the respondent’s case the appellant was called upon and elected not to give or call evidence in his defence. On 10 November 2010 the Chief Magistrate found the appellant guilty of importing a prohibited import. It is clear from his Honour’s published reasons[3] that his determination of guilt turned very much on the evidence given by the expert witness Mr Davies. Under the heading “Findings” his Honour said:
“I found Mr Davies to be a credible, well qualified expert witness. He was not shaken in his opinions under cross-examination and in my view his opinion stood up to testing scrutiny under questioning.
Accepting the evidence of Mr Davies, I find that exhibit 1 is readily identifiable as a lower receiver of an M16 firearm. Although damaged and incomplete, it is capable of being repaired by a person with a gunsmith’s skills, using materials readily available to such a person, to make it a functioning part for an M16 firearm.
Applying the ‘fact and degree’ test, it may be accepted that exhibit 1 meets the description of a receiver notwithstanding that in order to function in a firearm other parts would need to fit inside it and operate in tandem with it. As Judge Robin said at [15]:
‘It seems to me, with respect, that the regulation contemplated the receiver being treated independently of other firearm parts (or parts thereof)’.
I am satisfied to the necessary standard that exhibit 1 is a receiver for a fully automatic firearm. Accordingly I am satisfied it is a “firearm part” within the meaning of Regulation 4F(4). I am satisfied beyond reasonable doubt as to all other elements of the offence.”
Issues in the appeal
- [5]In the Notice of Appeal filed 9 December 2010 the grounds of appeal were set out:
“The conclusion, beyond reasonable doubt, that the item comprising Exhibit 1 was a ‘firearm part’ within the meaning of Reg 4F of the Customs (Prohibited Import) Regulations 1956(Cth) was not open on the evidence”.
- [6]During the appeal Mr Hunter SC, senior counsel for the appellant, also sought leave to adduce new evidence. During argument Mr Hunter SC and Mr Byrne QC, senior counsel for the respondent, agreed that in this appeal there were three live issues:
- 1.Whether or not the evidence established beyond reasonable doubt that the imported item (Exhibit 1) was a firearm part for the purposes of the Commonwealth legislation.
- 2.Whether the defence of mistake of fact was open on the evidence in the proceedings below and, if it was, whether the respondent had excluded the operation of that defence beyond reasonable doubt.
- 3.Whether leave ought be given to allow the defendant to adduce new evidence in the hearing of this appeal.
- [7]Counsel also agreed that in the event that I found for the appellant in respect of the first and/or second of the issues identified above then it would not be necessary for me to go on to consider further the third issue. However, in the event that I found against the appellant in respect of the first two issues but in his favour in respect of the third, it was also agreed that it was likely that further hearing of the appeal would be required. The nature and extent of the new evidence now sought to be adduced is dealt with below.
The legislation
- [8]Section 233(1)(b) of the Customs Act 1901 (Cth) prohibits the importation of any “prohibited imports”. Section 50(1) of the Customs Act also provides that the Governor General may by regulation prohibit the importation of goods into Australia. And, pursuant to s 51(1) of that Act goods, the importation of which are prohibited pursuant to s 50 are defined as “prohibited imports”.
- [9]Regulation 2(1) of the Customs (Prohibited Imports) Regulations 1956 (Cth) relevantly provides:
“In these regulations unless the contrary intention appears:
….
Firearm has a meaning given in sub-regulation 4F(4)
….
Firearm part has the meaning in sub-regulation 4F(4)
… .”
- [10]Regulation 4F relevantly provides that:
“… The importation of a fire arm … or a fire arm part, is prohibited unless:
- (a)The firearm … or firearm part … is an article to which an item 2 of Schedule 6 applies; and
- (b)The importation is in accordance with the requirements set out in column 3 …
…
- (4)In this regulation:
… Firearm means a device designed or adapted to discharge shot, bullets or other projectiles by means of an explosive charge or a compressed gas, whether that device is fitted with a magazine or other feeding device designed to be used with it or not …
…
Firearm part for a firearm, means any of the following items:
…
- (d)A receiver
…”[4]
The first issue
- [11]There is no dispute that the appellant was responsible for the importation of Exhibit 1 nor that the exemptions specified in Part 2 of Schedule 6 (Column 3) as identified in Regulations 4F(a) and (b) do not excuse the appellant in the circumstances of this appeal.
- [12]Mr Hunter SC, correctly in my opinion, asserted that whether an item is a “firearm part” is a question of fact and degree. In this context counsel for the appellant and the respondent referred to the decision of Hasluck J in Brayley v Malkovic[5] where his Honour, in allowing an appeal from the Magistrates Court of Western Australia, said in part:
“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 characterized 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 characterized as a firearm.
….
To my mind, the subject parts in the present case cannot properly be characterized as parts of a firearm or pistol or weapon (within the meaning as prescribed) … where it is clear on the evidence that they cannot be restored to their former condition or be used as part of a functioning weapon. Accordingly … I am of the view … that the learned magistrate erred in law in holding that the metal objects which the first appellant exported, despite them not being able to function as firearm parts, constituted firearm parts for the purposes’ of the Customs Act.”
- [13]In the appellant’s written submissions it is asserted that by reference to the test articulated by Hasluck J, the respondent had to prove beyond reasonable doubt first that Exhibit 1 was in fact part of a firearm (and not, by way of an example, a non‑prohibited replica firearm part) and, second that exhibit 1 was not beyond repair and not irretrievably useless.[6] In this context it is contended that:[7]
“Because nothing was known about the provenance of exhibit 1, and no testing was done upon it, and because such experiments as were carried out (by Mr Davies) were meaningless, the most that can be said is that exhibit 1 had the appearance of a damaged portion of a lower receiver. It simply was not open on the evidence for the learned magistrate to be satisfied beyond reasonable doubt that exhibit 1 was able to be repaired so as to be fit for use in a firearm.”
- [14]While Mr Davies’ expertise was not challenged in the appeal to this court an attack was made on the weight that ought be given to his evidence. Essentially his objectivity as an expert was challenged in three areas. His failure to make reasonable concessions. His lack of objectivity in accepting when a firearm might be considered irreparable. Finally, his apparent reliance on an demonstration given to the court.
- [15]As to the first of these matters, I was not taken to any part of the evidence to substantiate this claim and I am not aware of any such incidents. I do not consider this argument has any merit.
- [16]In support of his second contention the appellant points to Mr Davies’ evidence to the effect that unless almost reduced to iron filings any firearm could be repaired.[8] I do not consider this evidence of Mr Davies affects his credit as an expert witness. In my opinion these passages of his evidence were really only to the effect that given enough time, money and expertise it was likely that even an extensively damaged firearm could be restored sufficiently to again become a functioning weapon or part thereof. Mr Davies was not expressing a view about what, in his opinion would have to be done to render a firearm or part thereof irreparable and was clearly not giving evidence about Exhibit 1. The answers given by Mr Davies on these issues arose in response to a line of questioning being put to him in cross-examination.
- [17]Turning then to the last of these matters, it was agitated in the court below. At page 5 of his reasons the learned Chief Magistrate relevantly said:
“However, the defendant challenged the credibility of Mr Davies generally and in particular with respect to his assertion as to the ease with which the receiver may be repaired. Mr Davies testified to a demonstration he carried out of cutting a M16 lower receiver into two parts and welding them together ‘with simple oxyacetylene and some braising rods that you can acquire from BOC or CIG …’. It was submitted that this exercise was of no assistance and Mr Davies’ reliance on it weighed against his credibility.
It is true that the demonstration by Mr Davies did not exactly replicate what would be required to repair exhibit 1 and therefore is not capable in itself of removing doubt about whether that repair is possible. As pointed out, Mr Davies cut the item with a hacksaw while the exhibit may have been cut with an oxyacetylene torch, the cut was not in the same location as on exhibit 1 and Mr Davies was joining two parts of a single item of consisted alloy, while exhibit 1 was of alloy of an unknown nature or quality.
I do not understand Mr Davies to be advancing the demonstration as an experiment in proof of his expressed opinion about the reparability of the particular exhibit, but rather to show the court ‘if required, that this task that can be undertaken’ with readily available equipment. The demonstration merely supplemented his testimony. I do not consider the undertaking of the demonstration damaged his credibility as an expert witness. …” (Footnotes deleted)
- [18]I agree that the experiment/demonstration carried out by Mr Davies was only of little if any probative value. However, in the circumstances where Mr Davies did specifically deal with the physical characteristics of Exhibit 1 when giving his expert evidence about its capacity to be repaired I do not consider that it could be fairly said that his opinions about its ability to be repaired was in any way dependent upon the outcomes of the experiment/demonstration he carried out. That is, Mr Davies was not suggesting that Exhibit 1 could have been made part of a functioning weapon by carrying out the same methodology as that adopted in his experiment/demonstration. It might have been preferable that Mr Davies carried out his experiment with a part in a similar state of repair to that as Exhibit 1. However, the fact that he did not do so, does not affect his credibility. In respect of this issue I, with respect, agree with the conclusion reached by the Chief Magistrate that this undertaking did not damage his credibility as an expert witness.
- [19]According to Mr Davies, Exhibit 1 was a part of the lower receiver of an M16 rifle.[9] It was about one half a complete lower receiver[10] and was in a damaged condition. The damage resulted from it being cut roughly in half, in all probability, with oxyacetylene equipment,[11] which left rough and burred surfaces where the cut occurred.
- [20]As to the providence of Exhibit 1 it was contended that the Chief Magistrate could not have been satisfied beyond a reasonable doubt that it was not part of a replica rifle or part of a de‑activated firearm or some other item.[12] Mr Davies acknowledged that the exhibit bore no markings which identified it as a genuine part of a known rifle manufacturer (eg Colt). However, by reference to the part’s manufacturing tolerances, standard of finish and signs of actual use, Mr Davies’ evidence was that it was a genuine rifle part.[13] His evidence about this was not seriously challenged.
- [21]In the face of the expert evidence of Mr Davies there was, in my respectful view, no room for there being reasonable doubt that Exhibit 1 was a genuine rifle part and not part of a replica.
- [22]The fact that the part might have come from a de-activated firearm at one time is not to the point. The issue is whether this item can be repaired or restored to become fit for use in a functioning firearm.
- [23]
- [24]In my view the evidence of Mr Davies leaves no room for reasonable doubt that Exhibit 1 is a part of a genuine firearm and, notwithstanding its damaged state, was capable of being repaired so as to be able to perform the function for which it was originally designed. Or, to adopt the words used by Mr Hunter SC, made fit for use in a functioning firearm.
- [25]For the above reasons the appellant fails in respect of the first issue raised.
The Second Issue – Mistake of Fact
- [26]On behalf of the appellant it was submitted that on the evidence below the defence of mistake of fact was raised and that the respondent had not, beyond reasonable doubt, excluded its operation.
- [27]This defence was not argued in the proceedings below.[16] However, I agree with Mr Hunter SC that if the defence was open in the proceedings in the Magistrates Court it would be for the respondent to prove, beyond reasonable doubt, that it did not excuse the appellant.
- [28]In respect of this defence the appellant relies primarily on the contents of Exhibit 4 which provides:
“Attention ACS
This demilled piece is not a part, as defined under Regulation 4F of the Customs PI Regs.
AFP have ruled this and have advised that a demilled piece is not controlled under 4F, and no permit is required.
Refer ROT #03/56.
ACS have also confirmed this in a court affidavit.
Refer to ROT #02/948 and ROT 03/56.
Regards
…
Tim Powell”.
- [29]In paragraphs 2 to 15 of the appellant’s supplementary outline of argument the following submissions are made:
“The applicant submits that the learned Chief Magistrate erred in failing to consider the question of mistake of fact. It is immediately accepted that the appellant’s legal representatives did not raise the issue at trial. That failure does not dispose of the matter, however – His Honour was required to consider any defence properly raised on the evidence. That is so regardless of whether a defence is advanced on behalf of the defendant or not - or even when a valid defence is expressly disclaimed by the defendant.
…
Exhibit 4 was enclosed with exhibit 1, and purports to be signed by the appellant and specifies a contact telephone number. The obvious inference is that the appellant sent exhibit 4 to the consignor of exhibit 1 in order that it might be forwarded with the latter item and be noted by customs officers upon arrival into Australia.
At the trial, the prosecution made no attempt to demonstrate that the matter identified by the appellant in exhibit 4 as the basis for his belief did not, in fact, support it.
Section 233(1)(b) of the Customs Act 1901 creates an offence of strict liability: …
Section 6.1 of the Criminal Code 1995 (Cth) is relevantly in the following terms:
- If a law that creates an offence provides that the offence in an offence of strict liability:
- there are no fault elements for any of the physical elements of the offence; and
- the defence of mistake of fact under section 9.2 is available.
Section 9.2 provides in the case of a strict liability offence, that:
- A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
- at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
- had those facts existed, the conduct would not have constituted an offence.
- A person may be regarded as having considered whether or not facts existed if:
- he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
- he or she honestly and reasonably believed that the circumstances surrounding the present occasion whether same or substantially the same, as those surrounding the previous occasion.
Exhibit 4 therefore not only evidences the existence of the belief, but also the appropriate contemporaneous consideration of the factual issue raised by section 9.2(1)(a).
Once a defence under section 9.2 of the Code is raised the prosecution must exclude the operation of that provision beyond reasonable doubt….
…The question in this case presents more clearly…as a mistake of fact because it is not simply a matter of which part of the Regulation governs the importation of exhibit 1, rather, the issue is whether “as a matter of fact and agree” exhibit 1 is a firearm part.
The appellant’s belief was not as to the state of the law governing the part in question, but rather as to whether or not the part had been “demilled” so as to no longer be able to be restored or repaired so as to become a functioning part of a firearm.
By his conduct in having exhibit 4 included in the package containing exhibit 1, the defendant has discharged the evidential onus. No attempt was made by the prosecution to establish that the references sighted by the appellant in exhibit 4 did not provide a reasonable basis for his belief. It was for the prosecution to negative the defence. It did not. The appropriate outcome is an acquittal.”
- [30]On behalf of the respondent it is submitted that the defence is not open as a matter of law. In paragraphs 3 to 6 of the respondent’s supplementary outline of argument it is submitted:
“… that the issue of mistake was, properly, not raised before the Chief Magistrate because any mistake (if made) was one of law and not fact.
Put simply, the appellant intended to import the firearm part into Australia – the only issue upon which he could have been mistaken is whether such an importation was prohibited by law…”
It is argued in the alternative that if the defence was available as a matter of law, the evidence relied on by the appellant, did not raise any reasonable doubt about the lawfulness of Exhibit 1’s importation.
- [31]
“Thus, it is no defence to a criminal charge that the defendant believed that his or her actions were not regulated by law or that his or her actions satisfied the provisions of a law. Such beliefs are mistakes of law not mistakes of fact. In Von Lieven v Stewart the Court of Appeal of New South Wales held that the belief by a promoter of a scheme operated by a company that the scheme ‘neither involved an offer to the public nor a prescribed interest’ and accordingly did not contravene the (relevant law) was a mistake of law, not fact. It provided no defence to charges of breaching provisions of those codes. Clark JA said that, once the defendant knows all the facts which constitute the elements of the offence, a mistake as to their legal effect is not a defence to a criminal charge. Handley JA (with whom Mahoney JA agreed) said:
‘A belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse in cases such as this … the only excuse is the existences of an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent’ …”
- [32]McHugh J then went on[19] to contrast the case before the High Court which involved a lobster fisherman who was mistaken in his belief about in which areas lobster fishing was regulated (mistake of law) and that of a case where the seller of lobsters mistakenly believed that his catch was the correct size (mistake of fact).
- [33]
“…the reference in s 24 [of the Western Australian Criminal Code re: mistake of fact] to ‘the real state of things’ is a reference to the state of things relating to the elements of the offence in question, not the state of things as to whether the offence exists, or whether the conduct constituted by those elements is an offence. An example of the application of s 24 may have arisen if, as a result of a navigational error, the respondent had been under the honest and reasonable, but mistaken, belief as to his location. In that event, it may have been that, if the real state of things had been as he believed, his conduct would not have contravened Regulation 34, and thus he would have had a defence under s 24. The only mistake that the respondent made was a mistake that resulted from his ignorance of the law.”[21]
- [34]A mistaken belief as to whether the damage inflicted on Exhibit 1 was sufficient to render it beyond repair and use in a functioning firearm might have enlivened the defence of mistake of fact in this case. However, for the reasons set out below it is not necessary for me to express a final view on the matter.
- [35]Proceeding on the basis that the mistaken belief described by the appellant involved a mistake of fact and not law, it is then necessary to consider the evidence below and, in particular Exhibit 4. The first thing to note about that exhibit is that the assertion that Exhibit 1 was not a firearm part as defined under Regulation 4F of the “Customs PI Regs” really raises a question of law and not fact. The other elements of Exhibit 4 referring to AFP rulings and ACS confirmations do not of themselves give rise to any issue of mistake of fact (or for that matter of law) but appear more to be facts and circumstances upon which the appellant relied to assert that Exhibit 1 was not caught by Regulation 4F. During argument reference was also made to Exhibit 5 in the trial.[22] I fail to see how that exhibit is relevant in the context of this defence. As I understand the evidence, Exhibit 5 is concerned with other weapon parts or sections and not Exhibit 1. Its relevance was not explained other than it was forwarded by the appellant to be included with Exhibit 4 in the delivery of Exhibit 1.
- [36]However, even proceeding for the moment on the basis that Exhibit 4 involved a mistake of fact, while on the evidence below it might have been open to infer that the appellant prepared and signed and forwarded it to the supplier of Exhibit 1 for the purpose of it being included in the packaging of Exhibit 1 when it was sent to Australia, that is as far as the evidence does go.
- [37]
- [38]For the defence of mistake of fact to operate so as to exclude culpability the mistaken belief must not only be one that is honestly held but it must also be a reasonable belief. There must be some probative evidence to support the honesty and reasonableness of a suggested belief. Without more an out of court statement, as Exhibit 4 essentially is, is not sufficient.[25] Given the state of the evidence below it is not surprising that neither counsel nor the Chief Magistrate turned their mind to this defence. The state of evidence was insufficient to raise or leave open the operation of the defence. Accordingly, it was not necessary for the respondent to address it.
The application to adduce new evidence
- [39]The appellant applied to adduce additional evidence in the appeal. That evidence is contained in an affidavit sworn by the appellant on 30 September 2011. Paragraph 93 of the affidavit deposes:
“At the time Rufus Murray sent Exhibit 1 to me I held the honest and reasonable belief that Exhibit 1 was not a firearm part as defined in Regulation 4F of the regulation because Exhibit 1 was permanently destroyed.”
- [40]This application does not involve the discovery or introduction of material that either did not exist or was not able to be discovered with reasonable application at the time of the trial.
- [41]Section 223 of the Justices Act 1886 provides:
- “(1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.”
- [42]
“In explaining why leave should not be granted, the learned District Court judge cited the ‘three main considerations’ described by Gibbs J in Gallagher v The Queen as being relevant to a determination of ‘whether a miscarriage of justice has occurred because evidence now available was not lead at the trial. It is clear that the reference in s 223(2) of the Justices Act to ‘special grounds’ indicates that there must be a good reason identified to justify a departure from the application of the rule in s 223(1) that an appeal under s 222 of the Justices Act is ‘by way of rehearing on the evidence given in the proceedings before the justices’. While Gallagher did not involve a consideration of s 223 of the Justices Act, it is nonetheless a useful guide for the purposes identifying the kind of ‘special grounds’ which might be said to justify a grant of leave under s 223(2).
The first consideration described by Gibbs CJ is whether ‘the evidence relied on could with reasonable diligence have been produced by the accused at the trial’. This consideration reflects the primary importance of the trial in the administration of justice. A trial cannot be regarded as a dress rehearsal or as the first step in a process which inevitably leads to an appeal and a possible retrial.
…
… the first consideration identified by Gibbs CJ falls against the applicant, but this consideration is not ‘a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial’. It is therefore necessary to address the second and third of the Gallagher considerations.
The second consideration identified in Gallagher is whether ‘the evidence is apparently credible (or at least capable of belief)’.
…
The third consideration identified by Gibbs CJ in Gallagher was whether the evidence, if believed ‘might reasonably have lead’ a tribunal of fact ‘to return a different verdict’ …”. (footnote deleted)[28]
- [43]It is submitted on behalf of the appellant that leave to rely on the affidavit should be given so as to “expand upon the basis for the existence of (the appellant’s) belief, and as to the extent of his consideration of the question at the time of the importation”.[29] In support of his application the appellant, by way of explanation as to why the evidence now sought to be relied on was not adduced at trial, “simply points to the highly fragmented nature of the trial, and the remarks by Robin DCJ as to the likely outcome when the matter was remitted to the Magistrates Court”.[30] It is appropriate to observe at this stage that unlike the situation in Tomkins v Honeyman[31] the appellant in this case has at all material times been legally represented.
- [44]The fragmented nature of the proceedings was expanded upon by Mr Hunter SC in his oral submissions. However, no reference has been made to the “remarks” made by Judge Robin in either the appellant’s written outlines of argument or in argument before me. Put bluntly I do not know what this submission means.
- [45]As to the “highly fragmented nature of the trial”, this is comprised of: first, proceedings in the Magistrates Court on 16 July 2009 where the Chief Magistrate heard evidence and accepted a no case to answer submission. Second, upon an appeal by the Chief Executive Officer on 5 March 2010 Robin QC DC J overturned that decision, found the appellant had a case to answer and remitted the matter to the Chief Magistrate. Third, on 1 November 2010 the Chief Magistrate heard further submissions from the parties. No further evidence was adduced, the parties being content to rely on the evidence presented on 16 July 2009.
- [46]While I am prepared to accept that it was not a deliberate tactic to not lead the evidence now sought to be relied on, in the absence of further explanation I do not see how the passage of time (albeit approximately 17 months) might constitute a “special ground” even where a change of defence counsel was involved. I find that the evidence could have been readily produced at the trial and that no reasonable explanation has been given as to why it was not when the matter was remitted to the Chief Magistrate to be dealt with according to law.
- [47]As to the second consideration identified by Gibbs CJ in Gallagher and discussed in Pavlovic, while I am prepared to proceed on the basis that the evidence may be capable of being believed I wish to make it clear that I am not making any final determination on the issue of credibility.
- [48]Turning then to the third consideration namely whether the evidence, if believed, might reasonably have lead the court below to return a different verdict, I do not consider that it would.
- [49]The facts, matters and circumstances that the appellant relied on to say that he held the honest and reasonable belief that Exhibit 1 was permanently destroyed seemed to be largely those summarised in paragraph 92(a) to (u) of his affidavit, a view consistent with that of the appellant’s lawyers.[32] Many of those matters are of little or no relevance. On my reading of his affidavit only three possible bases for his belief are identified: that when he advertised that he wanted a section of a lower receiver to suit an M16 or AR15 type firearm he specified that he wanted a “demilled” article;[33] his viewing of photographs of Exhibit 1[34] and that the supplier of Exhibit 1 advised him that it was a “demilled” piece.[35]
- [50]Leaving aside for the moment any objections that might arise about hearsay and swearing the issue, the appellant’s affidavit to a significant extent contains irrelevant and self serving information and material the relevance of which is not readily apparent and not explained. The affidavit also raises apparent internal inconsistencies. For example, why was there such an emphasis on this part of the receiver being demilled[36] when the appellant had apparently been told by the Australian Customs Service that it was only concerned with the importation of “complete receivers”.[37]
- [51]The evidence the appellant now seeks to introduce would be, in my view, of only very limited value. To adopt the words of the Court of Appeal in Pavolvic: “(The evidence) is not sufficiently strong to warrant its reception despite the fact that the first consideration mentioned … in Gallagher had been resolved against the applicant.”[38]
- [52]In the face of the difficulties associated with the appellant’s affidavit I an unable to conclude that, on its admission in admissible form, even if the appellant were believed, it might reasonably have led the Court below to acquit.
- [53]I should say further in this regard that even if the new evidence might have reasonably lead to a different verdict I would still refuse the application. This is not a case involving evidence which might have been discovered with reasonable diligence. No reasonable diligence was required. The evidence was always within the knowledge of the appellant.
- [54]To allow such evidence to be adduced at this stage would be unjustifiably inconsistent with the public policy consideration of the primary importance of the trial in the administration of justice and the need for finality in litigation.
Conclusions and orders
- [55]For the reasons given I order as follows:
- 1.Leave to adduce additional evidence is refused.
- 2.The appeal is dismissed.
- 3.I will hear from the parties about the final form of the orders and costs.
Footnotes
[1] Exhibit 1 in proceedings below.
[2]Chief Executive Officer of Customs v Powell [2010] QDC 218.
[3]Chief Executive Officer of Customs v Powell MAG-00125423/06(0).
[4] Under the definition of a firearm part various items used in the manufacture and/or use of a firearm are not treated as “firearm parts” by themselves. This includes some firearm accessories including a firearm magazine, ammunition and other components such screws, springs or other minor firearm components.
[5] [2006] WASC 94 paras [55] - [57].
[6] Appellant’s written submission at para 14.
[7] Ibid para 17.
[8] T2-56 L10-20: T2-58 L25-50.
[9] T2-36 Ll-10 and L47-53.
[10] T2-46 L5.
[11] T2-24 L30-40.
[12] Appellant’s written submissions para 3.
[13] T2-63 L1-35; T2-63 L50-60; T2-64 L1-5.
[14] T2-24, L50.
[15] T2-24 L50-55; T2-25, L1-18; T2-37 L45; T2-45 L20-32; T2-46 L15-30.
[16] It seems the defence was “overlooked”: appeal transcript T1 – 23 L 22 per Mr Hunter SC.
[17] [2004] 218 CLR 493 at para 37.
[18] At para 46.
[19] Paras 49 and 50.
[20] At para 11- 12.
[21] For the purposes of this case the differences in the language used: “the real state of things” on s 24 of the Criminal Code (WA) and the existence of facts in s 9.2 of the Criminal Code 1995 (Cth), is of no consequence.
[22] Appeal transcripts T1 – 20 L22: set out in the appellant’s affidavit at para 87.
[23] By way of example that the appellant had inspected or at least seen Exhibit 1 before preparing Exhibit 4.
[24] The term “demilled” would appear to be a military term to cover circumstances when a firearm is rendered dysfunctional and incapable of being returned to a functional state.
[25]CTM v R (2008) 82 ALJR 978 at paras [36] to [39] and [193] to [195]: Larsen v CJ Coles Co. Ltd. (1983-84) ACrimR 109 at [111].
[26] [2006] QCA 134.
[27] At paras 30 to 42.
[28] The reference to Gallagher v The Queen is a reference to the High Court decision (1986) 160 CLR 392.
[29] Appellant’s supplementary written submissions at para 19.
[30] Appellant’s supplementary written submissions at para 16.
[31] [2009] QCA 217.
[32] Supplementary outline of submissions of the appellant at para 17.
[33] E.g. paras 50 to 53 of the appellant’s affidavit.
[34] E.g. paras 58 to 60.
[35] E.g. para 81.
[36] Paras 50-53.
[37] Paras 15-16.
[38] At [38].