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Fraser v The Commissioner of Police[2017] QDC 116

Fraser v The Commissioner of Police[2017] QDC 116

DISTRICT COURT OF QUEENSLAND

CITATION:

Fraser v The Commissioner of Police [2017] QDC 116

PARTIES:

SCOTT ROBERT FRASER

(appellant)

v

THE COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

D35/16

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Beenleigh Magistrates Court

DELIVERED ON:

16 May 2017

DELIVERED AT:

Beenleigh District Court

HEARING DATE:

21 March 2017

JUDGE:

Chowdhury DCJ

ORDER:

  1. The orders of the learned magistrate made on 6 March 2014 and clarified on 5 September 2016, that the weapons seized by the police from the possession of the appellant on 21 November 2013 and 23 November 2013 be forfeited to the Crown, are set aside.
  1. Pursuant to ss 701(1)(a) and 714(1)(b) the weapons seized from the appellant on 21 November 2013 and 23 November 2013 are to be delivered to Rebel Gun Works Pty Ltd, for sale on consignment of those weapons to duly licensed persons. 
  1. Affirm the order of the learned magistrate that the ammunition seized from the appellant by the police on 21 November 2013 and 23 November 2013 be forfeited to the Crown pursuant to s.155 Weapons Act 1990.

CATCHWORDS:

WEAPONS OFFENCES – Forfeiture of weapons and ammunition – Discretion to forfeit weapons or order disposal to particular persons

COUNSEL:

D. Nardone for the Respondent

C. Nyst for the Appellant

SOLICITORS:

Office of the Director of Public Prosecutions for the Respondent

Nyst Legal for the Appellant

  1. [2]
    This is the second appeal to the District Court of Queensland by way of s. 222 Justices Act 1886 from a decision of a magistrate sitting at Beenleigh on 6 March 2014 to forfeit weapons seized from the appellant by investigating police.  On 29 February 2016 his Honour Judge Dearden, in considering the first appeal, remitted the matter to the learned magistrate “to enable that judicial officer to deal with the application for forfeiture/destruction/disposition, assisted by submissions from both ends of the bar table.” 
  1. [3]
    On 5 September 2016, the matter came back before the learned magistrate, who identified that he always intended to forfeit the weapons and ammunition seized by police under s. 155 Weapons Act 1990.  The appellant now further appeals against that decision to this court.

Background facts

  1. [4]
    On 6 March 2014, the appellant pleaded guilty to the following charges:
  1. That on 21 November 2013 at Daisy Hill in the state of Queensland he, without reasonable excuse, did carry in a public place, namely Chatswood Road, Daisy Hill, a loaded firearm capable of being discharged namely a handgun.[1]
  1. On 21 November 2013 at Daisy Hill in the state of Queensland he, being a person who had a firearm under his control, namely a handgun, did fail to ensure the said firearm was unloaded when it was not being used to shoot.[2]
  1. On 21 November 2013, at Daisy Hill in the state of Queensland, he, being the registered owner of firearms namely category H and category B firearms, failed to ensure that secure storage facilities for the firearms were available at the place shown in the Firearms Register as the place where the firearms were generally kept, namely 195 Chatswood Road, Daisy Hill.[3]
  1. On 23 November 2013 at Daisy Hill in the state of Queensland he, being a licensee who had control of a weapon at a place namely 195 Chatswood Road, Daisy Hill, failed to keep the weapon in secure storage facilities at the said place when there was no person in physical possession of the said weapon.[4]
  1. On 23 November 2013, at Daisy Hill in the state of Queensland he, being a person who had a firearm under his control namely a category B rifle, did fail to ensure the said firearm was unloaded when it was not being used to shoot.[5]
  1. On 23 November 2013, at Daisy Hill in the state of Queensland he stored explosives, namely ammunition and propellant powder at a place, namely 195 Chatswood Road, Daisy Hill when that place was not a magazine licensed under the Explosives Act 1999 for storage of that explosive.[6]
  1. [5]
    The facts set out by the police prosecutor before the magistrate were as follows:

“On Thursday the 21st of November, police from Springwood attended the defendant’s residence in relation to a male person attempting to commit suicide.  Police attended the address and observed a [indistinct] Nissan Navara with Queensland registration 363 LHX leaving the address.  Police have intercepted the vehicle and have seen the male driver and had a conversation with the male driver.  Police call communications for a [indistinct] check and the person was flagged as a person of interest and was a licensed weapon holder.  Police had a conversation with the defendant in relation to why he was attempting to commit suicide and he informed – the defendant said that he was informed by his employer that he was suspended from teaching pending an investigation.  He said he told the school he was going to end his life.

Police ultimately conducted a search of the vehicle.  The defendant hesitated to say that there was a loaded firearm in a case on the floor on the passenger’s side.  Police arrested the defendant for safety reasons, handcuffed the defendant for safety reasons and located the loaded firearm in the front seat and had made the weapon safe and removed the firearm and placed it in the boot of the police vehicle.  Police questioned the defendant in relation to the weapon and his license.  Police asked the defendant if his license allowed him to carry weapons around whilst loaded.  The defendant stated that he thought he would carry it around loaded when not using it and was unaware it was not a condition on his license.  Those are the facts of those three charges your Honour.

On the 23rd of November 2013, police have attended the defendant’s address again and executed a PVRA search warrant.[7]  The defendant has declared to the police that he had a loaded rifle in his lounge room.  Police located a category B rifle.  The weapon was loaded and had one round in the chamber.  Upon searching the dwelling, police located and seized thousands of rounds of live ammunition within the dwelling, a total ammunition weight of 190 kilograms and a total of propellant powder weight of 10.1 kilograms was found.  Police also located stray live bullets throughout the dwelling.

Police identified a bedroom within the dwelling that the defendant used to actually make live ammunition, containing a bullet press and propellant powder.  Police seized all relevant materials which were strewn around the dwelling, including yogurt containers and buckets with various sizes of firearm magazines.  At the time of the offence, the defendant was a weapons license holder, however, the defendant has since had his license revoked and police are seeking a destruction order for the seized firearms, magazines, ammunition and propellant powder.  I do have photographs, your Honour, (indistinct) will show the items seized.”

  1. [6]
    As a result of treatment the appellant had been receiving, and efforts at rehabilitation, and following a suitability assessment by an officer of the Department of Corrective services, the learned magistrate placed the appellant on 12 months probation.
  1. [7]
    It is apparent from the transcript of the proceedings on 6 March 2014, at R1-9, that two letters were given to the court by the solicitor for the appellant relating to the disposal of the weapons and ammunition. In essence, the ammunition was asked to go to a shooting club where they could be used lawfully for sports shooting. At R1-10, l. 10, the magistrate queried whether it was open for the court under the Weapons Act 1990 to order that the ammunition and weapons go to certain organisations.  The police prosecutor repeated his instructions were to have the weapons forfeited, and “just ultimately destroyed.” 
  1. [8]
    At R1-10, between ll. 23-33, the learned magistrate expressed the view that he did not have jurisdiction to mandate the disposal of the weapons and ammunition, believing his jurisdiction was “simply to say the weapons are forfeited or they’re not forfeited.”  He then added “show me where in the Weapons Act I’ve got that jurisdiction, I am happy to exercise it.  I am sympathetic to what you are saying but I don’t know that there’s anything that I can – that I can do.”  Further on that page on l. 46, the learned magistrate said:

“Look, if there’s a capacity under the legislation for me to direct that the weapons be forfeited in a particular way or to a particular organisation, that’s a different question.   The prosecutor’s point is a good one.  Even if I were to order that the weapons not be forfeited, there’d still be a stumbling block because I think there’d be trouble handing the weapons back to your client because he’s not a person licensed to be in possession of them.  I mean, if you want to look at that and – we’ve got this trial to resume if you want to have a look at that over the break and mention it again early afternoon, I’m happy to let you have that opportunity.”

  1. [9]
    The learned magistrate stood the matter down in respect of the issue of the forfeiture of the weapons, adding “if you can find the legislative jurisdiction that enables me to act in the way you’re suggesting well, I’d give favourable consideration after – again after I’ve heard the prosecutor on that point.”
  1. [10]
    After the matter was stood down, it is clear that there are discussions between the solicitor for the appellant and the police prosecutor, and upon court resuming the solicitor for the appellant indicated “we’ve had some discussions and we’re consenting to the forfeiture of the ammunition and the weapons to the Crown.[8]
  1. [11]
    The solicitor for the appellant, Julie Gilfoyle, swore an affidavit for the purpose of the first appeal proceedings before his Honour Judge Dearden. That affidavit was sworn on 28 September 2015. Between paras [17] – [24], Ms Gilfoyle details a conversation she had with the police prosecutor about the disposal of the weapons. She states that there was an agreement that the weapons should be forfeited, and then at the conclusion of the 28-day appeal period, the authorised licence holder would take possession of the weapons, and the ammunition would be given to the Queensland Military Rifle Club. The officers from police prosecutions undertook to provide the arresting officer a copy of the written authorisations to allow this procedure to take place. She also deposed that police prosecutions advised that when they placed the court results on the police QPRIME system they would also indicate the forfeiture order would not contain the words “for destruction.”
  1. [12]
    Exhibited to Ms Gilfoyle’s affidavit was a letter from “Rebel Gun Works Pty Ltd”, dated 14 February 2014 addressed to the presiding magistrate: Exhibit JG1. In brief, it stated that they were willing to take possession of his firearms and accoutrements, subject to licensing under the Weapons Act, for sale or consignment.  It confirmed that they had the capacity to take possession, store and offer for sale the firearms to duly licensed persons.  They confirmed that the firearms could only be sold or disposed of to persons who are suitably licensed under the relevant legislation.
  1. [13]
    Also annexed to the affidavit of Ms Gilfoyle, as Exhibit JG2, was a letter addressed to the presiding magistrate dated 24 February 2014 from the Queensland Military Rifle Club. It stated that the club was licensed to take possession of the ammunition seized by the police from the appellant, and that was licensed to take possession of it. It commented that the ammunition “would make a worthwhile contribution to the club’s assets and would be used for training, practise [sic] and general marksmanship by licensed members of our club.”
  1. [14]
    Further annexed to Ms Gilfoyle’s affidavit is a letter from her to Sergeant Anthony Lyons of the Springwood Police Station: Exhibit JG5. It referred to a telephone conversation earlier that day, and attached the two letters of authority from the Rebel Gun Works Pty Ltd and the Queensland Military Rifle Club. The letter also advised that the 28 day appeal period had to be completed before possession of those goods could be released, such date being Thursday 3 April 2014. There was then correspondence between Ms Gilfoyle and Beenleigh Police Prosecutions about the so-called agreement. Exhibit JG7 to the affidavit is a letter addressed to Beenleigh Police Prosecutions dated 9 July 2014 where concern is expressed about suggestions by a police officer that the weapons had been destroyed, and seeking confirmation that that had not occurred. It appears that this request was not answered by police prosecutions. As a result a further email was sent on Tuesday 2 September 2014 by Ms Gilfoyle to Sergeant Evans.
  1. [15]
    Also filed on behalf of the respondent Commissioner in respect of the original appeal before his Honour Judge Dearden is an affidavit of Mitesh Raniga, filed on 15 December 2015. In brief, he states that he was the Police Prosecutor for the original sentence of the appellant, and denied that he entered into any agreement with Ms Gilfoyle about the disposal of the weapons to the gun dealer, nor any agreement about the ammunition to the rifle club.
  1. [16]
    An affidavit of Sergeant David Low, filed 15 December 2015, detailed the correspondence between the solicitor for the appellant and the Beenleigh Police Prosecutions, explaining in part why some of the correspondence may not have been answered. At para [13] of his affidavit he deposes that he had contacted a police inspector advising him that it would be prudent not to destroy the forfeited weapons. He further deposed that he believed that this course of action was taken.
  1. [17]
    Ms Gilfoyle in her affidavit at para [9] advised that the appellant’s instructions to her were that the combined value of the firearms was approximately $30,000, and that he wished to donate the ammunition to his gun club. The appellant in his affidavit filed 1 December 2015 at para [54] estimates the market value of all items seized from him over the two police searches, including firearms, ammunition, and other items, to be in excess of $50,000. Exhibit SRF6 to the appellant’s affidavit contains quotes from the Queensland Gun Exchange and Rebel Gun Works Pty Ltd.
  1. [18]
    In short, the appellant was no doubt anxious to receive some financial remuneration for the weapons due to their supposed value. Hence the extensive litigation on this point.

Judgment of his Honour Judge Dearden

  1. [19]
    His Honour observed a matter before him involved a “very fine point” about what was to happen to the weapons and ammunition in the face of two competing sections of Queensland legislation, namely s 155 Weapons Act 1990 and s 701 Police Powers and Responsibilities Act 2000 (“PPRA”). 
  1. [20]
    His Honour made the following conclusions:

“What I’m left with, then is what purports to be an order for forfeiture which does not identify under which legislation it has been made.  In those circumstances, given the different powers available to the learned magistrate and the two competing pieces of legislation, it appears to me that the learned magistrate has not, either by oral order of in his notations (which in any event, should reflect the oral order made in open court), identify the basis of the power sought or purported to be exercise by the learned magistrate.  And in those circumstances, the order lacks the appropriate legislative basis and, as far as an appellate court is concerned, the power should be exercised by this court to refer the matter back to the learned magistrate to proceed according to law.

In these circumstances, although the appeal is filed quite significantly out of time, the conviction both having occurred on 6 March 2014 and the relevant provisions of s 222 of the Justices Act permitting the appellant one month to appeal, I consider given both the consequences (the forfeiture of approximately $50,000 worth of weapons and ammunition) and the lack of clarity by the learned magistrate, that the only appropriate and sensible step for this court is to grant the application for leave to appeal out of time, there having been at least some explanation for the delays (in particular, alternative methods of attempting to resolve the issue as the ultimate disposition of the weapons and the ammunition) and most importantly, in my view, referring the matter back to the learned sentencing magistrate to enable that judicial officer to deal with the application for forfeiture/destruction/disposition assisted by submissions from both ends of the Bar table and if, of course, any order once made, be made with clarity as to the jurisdiction upon which the judicial officer relies to make whatever order is made by the learned magistrate after considering submissions from prosecution and defence.”(emphasis added)

  1. [21]
    As a consequence, leave to appeal out of time was granted, the appeal was granted, the forfeiture order was set aside, and the proceeding remitted to the learned sentencing magistrate in accordance with his Honour’s reasons.

Re-hearing of the matter before the learned magistrate

  1. [22]
    On 5 September 2016, the matter came back before the learned magistrate. It is clear from the transcript of those proceedings that further information and written submissions were provided to the magistrate before the hearing. Both the appellant and the respondent advised this court that they were not able to locate those written submissions. This is clearly unsatisfactory, and this court is left trying to glean from the comments made by the respective parties and the magistrate on the transcript the content of those submissions.
  1. [23]
    At R1-2, the learned magistrate said this:

“I’ve had the benefit of information put before the court and submissions, but I’ve also seen the objections– sorry, I’ve seen the submissions.  It is obvious to me what my position is in this, that the order that I was making was to be made under the weapons act, under s 155 of the Weapons Act.  This seems to be an approach taken by the District Court that the court should have specifically said it was s 155.  I am simply going to record that it is my intention to order forfeiture under that section.  If the parties are going to want to take the matter further, it’s a matter for them.  But that was my position on the day; it was simply an omission, if you wanted to put it that way, that I didn’t specify the Act– the Weapons Act.  But that’s my position… No, I understand what the problem is, but it’s back to me to indicate when I was intending to do on the day.  Now, I intended to act under the Weapons Act on that day.  I am simply going to record what it was my intention to do.  It’s a matter for the parties, then, whether they take my decision further.  If I’m wrong on that point, well, then, it’s an appellable point, and that can be appropriately argued.” 

  1. [24]
    After the learned magistrate said that, the transcript states that a person, stated as an “unidentified speaker”, raised the issue about having the prosecution pass the weapons and ammunition onto the gun clubs. At R1-3, l. 6, the unidentified speaker, presumably the lawyer acting for the appellant at that time, said this:

See, where we’re coming from is that we didn’t think you had that in mind, that there’d simply be $50,000 gone.  We thought you’d forfeit them to the crown, and then the crown would, by virtue of your direction. 

BENCH:  Well, I can’t give a direction…

UNIDENTIFIED SPEAKER:  No, I know you can’t, but you can under the PPRA. 

BENCH:  Well, I’ve– yes, but the Weapons Act

UNIDENTIFIED SPEAKER:  Correct. 

BENCH:  Is the dominant Act.  I– it was always my intention to act under the Weapons Act.  I wanted to hear submissions as to whether it was open to me to make an observation, to give any on-flow direction as to what the police would do when the weapons were forfeited. 

PROSECUTOR:  Well, it’s not. 

UNIDENTIFIED SPEAKER:  No. 

BENCH:  No.  And I think…

UNIDENTIFIED SPEAKER:  No, we’re ad idem on that.  You can’t do it under the Weapons Act, but you can make a direction…

BENCH:  Yes, but I don’t have…

UNIDENTIFIED SPEAKER: …under the PPRA. 

BENCH:  It was always my intention to act under the Weapons Act. 

UNIDENTIFIED SPEAKER:  Was it?  Okay. 

BENCH:  And I think that’s where it’s going to have to rest.  Now, if you believe I’ve wrongly exercised the discretion…

UNIDENTIFIED SPEAKER:  Yes.  Yes. 

BENCH:  …under that legislation, and it should have gone another way. 

UNIDENTIFIED SPEAKER:  We can go back to…

BENCH:  …that’s saying, obviously– that’s an appellate point. 

UNIDENTIFIED SPEAKER:  Absolutely.  Understood. 

BENCH:  But I don’t think it’s open to me to reinvent the wheel, as it were, and try to do something else that I didn’t intend to do on the day. 

UNIDENTIFIED SPEAKER:  Yes.  It’s just– see, our…

BENCH:  I…

UNIDENTIFIED SPEAKER:  We believe you intended to do something differently, and then the parties went…

BENCH:  No.  No.  I’ll make it abundantly clear…

UNIDENTIFIED SPEAKER:  Yeah. 

BENCH:  I’m acting under the Weapons Act. 

UNIDENTIFIED SPEAKER:  Okay. 

BENCH:  I don’t believe I had a power to do anything else, anyway. 

UNIDENTIFIED SPEAKER:  Well, we think you did.  We think the PPRA should…

BENCH:  Well– well if I’m wrong on that point, then it’s a matter…

UNIDENTIFIED SPEAKER:  We can take it further elsewhere.  Yeah. 

BENCH:  You can take the matter further. 

UNIDENTIFIED SPEAKER:  Okay.  Thankyou, your Honour.  Will do. 

BENCH:  What’s your position on this, sir? 

PROSECUTOR:  I submitted some paperwork for Your Honour…

BENCH:  You did, yes. 

PROSECUTOR:  …last week that the court has right to forfeit the weapons under s 155; that the Police Powers and Responsibilities Act is not relevant to these proceedings, the Weapons Act specifically caters for a forfeiture of the actual firearms.  I understand the difficulty that that causes.  Mr Fraser has got other options.  He is then able to, and he has already made the application though the Commissioner of Police for the return of the firearms.  The Queensland Police Service has rejected that first submission from him.  The other avenue for him now, I believe, would be to proceed to the District Court via the appeal process. 

UNIDENTIFIED SPEAKER:  Well, yeah. 

PROSECUTOR:  But my bottom line is that the court forfeits the actual– the firearms, and the court can’t make any further order than that.  It’s unfortunate, but that’s just the way the law sits. 

BENCH:  You see, I actually made my determination on the day.  I suppose, if this concerns in the court above as to what I was doing, I am clarifying it and be…

UNIDENTIFIED SPEAKER:  Yeah.  That’s– that’s– we understand your– sorry– my other caveat to your proceeding today is that my client has only instructed me to appear to seek an adjournment today.  Now, I know you want to get it over and done with, but my problem is I’m lacking full– I mean I’ve done preparation for today, if you need to hear submissions– but his instructions to me were ‘let’s adjourn it”, cause he doesn’t– he doesn’t think Cuthbert [sic] and my view is what he wants to have done so ---

BENCH:  No.  Well, if the man lost the weapons completely, or if they were crushed up, that wouldn’t be what I’d want to do either, because…

UNIDENTIFIED SPEAKER:  No. 

BENCH:  I gave him probation, because I thought he was meritorious.  However, if the Parliament has chosen not to give the magistrate a discretion, it’s not open, then for the magistrate to try and to find another way around what the Parliament’s intention is. 

UNIDENTIFIED SPEAKER:  Well…

BENCH:  It’s– all I’m doing today is recording what I, perhaps, should have done for when the man was sentenced. 

UNIDENTIFIED SPEAKER:  Yes. 

PROSECUTOR:  And that’s all the District Court asked you…

BENCH:  To do.  Yes.  To simply say…

PROSECUTOR:  That’s exactly right. 

BENCH:  To simply say what I was doing.  Now, it may well be argued that I don’t have the jurisdiction to open it, to go beyond that, because my powers are exhausted.  They’ve only sent it back here to– for the magistrate to say what was the magistrate’s intention on the day. 

UNIDENTIFIED SPEAKER:  But– well, we say you have that discretion.  We still reckon you have that discretion…

BENCH:  If I could…

UNIDENTIFIED SPEAKER:  Under the Weapons Act or under the PPRA, to do what we thought you were going to do, which was to give it to the police and then police pass it on to the gun clubs.  Not to him. 

BENCH:  Well, that’d seem to be…

UNIDENTIFIED SPEAKER:  Not to him, to the gun clubs.  That’s what we want. 

BENCH:  That would seem to be a reasonable thing but you tell me that the man’s tried to do that, and the Commissioner has said he can’t do it. 

UNIDENTIFIED SPEAKER: I know.  The Commissioner’s played hardball with this all the way through. 

BENCH:  Played hardball.  I would have thought my extent of my power today is to clarify…what the confusion was.  I’ve clarified the confusion.  If you think that I’ve misapplied the two pieces of legislation, that’s an appellate point to the District Court.(emphasis added)

  1. [25]
    Later at R1-8, there was a discussion about whether the appellant could apply to reopen the sentence, presumably pursuant to s 188 Penalties and Sentences Act 1992.  The following exchange occurred: 

PROSECUTOR:  The unfortunate part was that the District Court had the opportunity to deal with this, and they chose not to.  They– there were two links to their application; they chose to only deal with one. 

BENCH:  One.  Yes. 

PROSECUTOR:  And that’s why we’re here. 

BENCH:  That’s why you’re here, yes.  That’s why my power today is extremely limited.  If I was to start reopening it, going beyond the remission matter, you’d–

UNIDENTIFIED SPEAKER:  Well, that’s…

BENCH:  The police would argue I had no jurisdiction.(emphasis added)

  1. [26]
    Further on R1-8, at l. 45, the learned magistrate commented that the prosecutor has indicated that he would ensure “to the best of his endeavours, there’ll be no destruction of those weapons until the matters are resolved”. 

Grounds of appeal

  1. [27]
    By way of an appeal notice filed on 30 September 2016, the appellant appeals from the order of the learned magistrate made on 5 September 2016 to declare that the weapons and ammunition were forfeited pursuant to s 155 Weapons Act 1990.  The sole ground of the appeal is as follows: 

“That the order to forfeit the firearms and ammunition was excessive.” 

The relevant legislation

  1. [28]
    The power of a court to forfeit weapons and ammunition under the Weapons Act 1990 is found in s 155(1)(c), which states relevantly as follows: 

“(1)  Where a person is convicted of an offence or is the subject of any order against the law of the State, the court may, in addition to any other penalty imposed by that law, do any 1 or more of the following— 

(c)  order that any weapon, ammunition, antique firearm, explosive tool, captive bolt humane killer, spear gun, longbow or crossbow owned or in the possession of that person is forfeited to the Crown.” 

  1. [29]
    Clearly, there is imposed a discretion in a court acting under that section to order forfeiture, or not. It is not limited to offences under the Act; it applies to all offences under Queensland law.
  1. [30]
    Section 701 PPRA states as follows:

“(1)  At the end of a proceeding, a court, in relation to a seized thing, may make any of the following orders—

(a)  an order for the return, forfeiture, destruction or disposal of the thing;

(b)  an order that the thing be dealt with by way of a proceeding under section 693 or 694 or a forfeiture proceeding;

(c)  an order that the police service retain the thing until it is dealt with according to law.

(2)  A thing that is forfeited under an order under this Act becomes the property of the State.” 

  1. [31]
    This section is contained in Part 3, Division 1 of the PPRA. Relevantly, s 686 states that Part 3 “applies to a thing that is lawfully in the possession of the police service, whether before or after the commencement of this section, because—(a) it was seized by a police officer.”
  1. [32]
    Importantly, s 686(2) states that the part does not apply to the stated items, including “a thing seized under the Public Safety Preservation Act 1986, part 3”. 
  1. [33]
    It is clear that the firearms and ammunition in this case do not come within the excluded items in s 686(2) PPRA.[9] 
  1. [34]
    If the seized thing the subject of a court order in s 701 PPRA is a “weapon”, then s 714 PPRA applies. “Weapon” is defined in Sch 6 PPRA as including an antique firearm and restricted item, otherwise then as defined by Weapons Act 1990, Sch 2.  “Weapon” is defined under that schedule as follows: 

“(a)  means— 

(i) a firearm; or

(ii)  another thing prescribed under a regulation to be a weapon or within a category of weapon; or

(iii)  a thing that would be a weapon mentioned in subparagraph (i) or (ii), if it were not temporarily inoperable or incomplete; and

(b) does not include a public monument.” 

  1. [35]
    It is clear that the ammunition seized by the police from the appellant in this case does not come within the meaning of “weapon” in s 714 PPRA. The ammunition is an “explosive” as defined by Sch 2 of the Explosives Act 1999
  1. [36]
    Relevantly, s 714 PPRA states as follows:

“(1)  At any time after the appointed day, a police officer may deliver a relevant thing that is a weapon that has not been forfeited to the State—

(a)  if a police officer is satisfied a person is the owner of the weapon, or would be lawfully entitled to possess it if that person complies with the Weapons Act 1990

(i)  to the owner or person lawfully entitled to possess it; or 

(ii)  if the owner or person lawfully entitled to possess it nominates another person to possess it, to that person; or

(b)  if a court order is made for the delivery of the weapon to a person under section 696 or 701—to that person.

  1. (2)
    However, a weapon may be delivered to a person mentioned in subsection (1) only if that person satisfies the police officer who holds or has custody of the weapon that the person may lawfully possess the weapon. 

(3)  If the weapon has not been delivered to any person under subsection (1) within 3 months after the appointed day or the longer period the commissioner decides in a particular case, the weapon is forfeited to the State.” 

  1. [37]
    “Appointed day” in s 714 is defined in s 715:

“The appointed day for disposal of weapons is—

(a)  for a weapon seized because of a contravention or suspected contravention of the Weapons Act 1990, the later of the following—

(i)  the day all proceedings relating to the offence or suspected offence are finally decided; 

(ii)  the day 6 months after the day the weapon was seized; or

(b)  for a weapon given to a police officer under the Weapons Act 1990, section 29B because of the making of a domestic violence order—3 months after the day the protection order is made against the person; or

(c)  otherwise, the day the weapon was seized.” 

  1. [38]
    It is clear then that by combination of ss 701 and 714 PPRA, a court may order the police to deliver seized firearms to a nominated person, provided that such nominated person satisfies the relevant police officer who holds or has custody of the weapons that he or she may lawfully possess the weapon. This combination does not apply to ammunition, however.

Errors in the Magistrates Court

  1. [39]
    In my view it is clear that the learned magistrate misunderstood the orders made by his Honour Judge Dearden. The remitter of the question of whether the firearms and ammunition should be forfeited was not solely for the learned magistrate to state what power he acted under initially when making the original forfeiture order, but also to consider the discretion afresh as to whether it was appropriate to make the forfeiture order under either s 155 Weapons Act 1990 or s 701 PPRA in respect of the firearms, and to consider whether he should order the police to dispose of the firearms to a nominated person as requested by the defence, a power which the magistrate clearly had pursuant to s 701. 
  1. [40]
    It is clear that the relevant provision of the PPRA was referred to the learned magistrate, as it is mentioned on a number of occasions in the transcript of proceedings on 5 September 2016. The learned magistrate’s view that the Weapons Act 1990 “is the dominant act” is incorrect; there is a clear choice for a court upon application for forfeiture of weapons to act under that Act, or under the specific provisions of the PPRA.  Indeed, it is clear that s 714 PPRA was enacted so that people would not be unnecessarily deprived of firearms, including antique firearms, which may not only be lawfully possessed but also may be of considerable value, both economic and sentimental.  As to which power a court would exercise depends on the individual circumstances of the case. 
  1. [41]
    The learned magistrate made it clear in the course of the discussion on 5 September 2016 that he did not think it fair that the appellant lost his weapons completely, or that they should be destroyed. He also expressed the view that providing the firearms to the gun dealer, and the ammunition to the gun club was a “reasonable thing”. Clearly the learned magistrate was in error at R1-5, l. 30 of the transcript where he said “however, if the Parliament has chosen not to give the magistrate a discretion, it’s not open, then, for the magistrate to try to find another way around what the Parliament’s intention is”. 
  1. [42]
    It is clear that if the learned magistrate was aware that he had to exercise the discretion afresh, he would have directed the firearms to be supplied to the gun dealer as submitted by the lawyers for the appellant.
  1. [43]
    In reaching the conclusion I have, I have had due regard to the fact that the magistrate had to deal with arguably a complicated issue in the course of no doubt a very busy court day, with a large amount of other matters needing the court’s attention. Most of this litigation could have been avoided if both the lawyer for the appellant at the first hearing, and the police prosecutor, drew the learned magistrate’s attention to ss 701 and 714 PPRA. The heavy workload of magistrates in Queensland is notorious, and it is incumbent upon legal practitioners and prosecutors to assist the court as fully as they can. The nature of matters coming before the Magistrates Court can be quite complex, and the magistrates are entitled to expect as much assistance as they can from lawyers and prosecutors appearing before them.

Conclusion 

  1. [44]
    An appeal to this court pursuant to s.222 Justices Act 1986 is by way of rehearing: s.223. Having regard to all the circumstances of this matter, including the significant value of the firearms concerned, the possible existence of an agreement between the police and the lawyers for the appellant about the disposal of the firearms to the gun dealer, and in particular having regard to the expressed desire of the learned magistrate that the firearms should not be destroyed, I make the following orders: 
  1. The orders of the learned magistrate made on 6 March 2014 and clarified on 5 September 2016,that the weapons seized by the police from the possession of the appellant on 21 November 2013 and 23 November 2013 be forfeited to the Crown are set aside.
  1. Pursuant to ss 701(1)(a) and 714(1)(b) the weapons seized from the appellant on 21 November 2013 and 23 November 2013 be delivered to Rebel Gun Works Pty Ltd, for sale on consignment of those weapons to duly licensed persons. 
  1. Affirm the order of the learned magistrate that the ammunition seized from the appellant by the police on 21 November 2013 and 23 November 2013 be forfeited to the Crown pursuant to s.155 Weapons Act 1990.
  1. [45]
    After the delivery of these reasons I will set the matter down for further hearing if required by the parties.

Footnotes

[1]Section 57(3) Weapons Act 1990. 

[2]Section 59(1) Weapons Regulation 1996.

[3]Section 60(2) Weapons Act 1990.

[4]Section 60(1) Weapons Act 1990.

[5]Section 59(1) Weapons Regulation 1996.

[6]Section 45(1) Explosives Act 1999.

[7]This is probably a mistake; it perhaps should be “PPRA” search warrant.

[8]R1-11, l. 35.

[9]Public Safety Preservation Act 1986, part 3 deals with chemical, biological and radiological items seized under a terrorist incident. 

Close

Editorial Notes

  • Published Case Name:

    Fraser v The Commissioner of Police

  • Shortened Case Name:

    Fraser v The Commissioner of Police

  • MNC:

    [2017] QDC 116

  • Court:

    QDC

  • Judge(s):

    Chowdhury DCJ

  • Date:

    16 May 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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