Baker v Queensland Police Service
[2022] QDC 108
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Baker v Queensland Police Service[2022] QDC 108
- Add to List
Baker v Queensland Police Service[2022] QDC 108
Baker v Queensland Police Service[2022] QDC 108
DISTRICT COURT OF QUEENSLAND
CITATION: | Baker v Queensland Police Service [2022] QDC 108 |
PARTIES: | TRACEY LEE BAKER (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO: | 202 of 2021 |
DIVISION: | Criminal |
PROCEEDING: | Appeal – Justices Act 1886 (Qld) s 222, 223 |
ORIGINATING COURT: | Magistrates Court |
DELIVERED ON: | 3 June 2022 |
DELIVERED AT: | Townsville |
HEARING DATE: | 10 May 2022 |
JUDGE: | Coker DCJ |
ORDER: |
|
CATCHWORDS: | WEAPONS ACT AND WEAPONS REGULATION – APPEAL AGAINST CONVICTION – S222 JUSTICES ACT – where the appellant was convicted of an offence under s 60(1) of the Weapons Act – where the Appellant argues there was insufficient evidence to convict and insufficient evidence to exclude defences – whether the learned Magistrate had interpreted the requirements arising pursuant to the legislation appropriately. |
LEGISLATION: | Justices Act 1886 (Qld) s 222, 223. Weapons Act 1990 (Qld) s 3, 50, 60(1), Schedule 2. Penalties and Sentences Act 1992 (Qld) s 18, 19. Weapons Regulation 2016 (Qld) r 94(2). Criminal Code Act 1899 (Qld) s 24. Weapons (Handguns and Trafficking) Amendment Bill 2003 (Qld) |
CASES: | House v The King [1936] 55 CLR 499 (cited) Fox v Percy [1936] HCA 40 (cited) McDonald v Queensland Police Service [2017] QCA 255 (cited) R v Makary [2018] QCA 258 (cited) R v Hanson [2014] QCA 245 (cited) Dawson v Tanwan [1999] QDC 289 (considered) Keys v Kitto (1996) 90 A Crim R 288 (cited & considered) Yeates v Hoare [1981] VR 1034 (cited) |
COUNSEL: | McDougall. A for the Appellant Papadimotriou. T for the Respondent |
SOLICITORS: | Keir Steele Waldon Lawyers for the Appellant Office of the Director of Public Prosecutions for the Respondent |
Introduction
- [1]The appellant in these proceedings is Tracey Lee Baker. I shall hereafter refer to her as the appellant. The appellant was charged with an offence under the provisions of the Weapons Act. The learned magistrate, at the time of the hearing of this matter, indicated that because of a change in certain particulars of the charge that he intended to rearraign the appellant, and said the following to her:
It is alleged on 3 July 2020 at Townsville you being a licensee who had control of a weapon at 272 Black River Road at Black River failed to keep that weapon in secure storage facilities at that place when there was no person in physical possession of that weapon. How do you plead: guilty or not guilty?
- [2]And it was noted that the appellant pled not guilty. The learned magistrate then recited the particulars of the police case, noting in his decision the following:
The charge against the defendant has been particularised in exhibit A to allege on 3 July 2020 the defendant had control of a weapon, being a category A bolt action rim-fire rifle, serial number 9434506, and failed to keep the weapon in secure storage facilities at 272 Black River Road, Black River, by having the bolt still in and/or the action not being broken when there was no person in physical possession of that weapon.
- [3]The trial proceeded on the 29th of October 2021 and was concluded on that day. The learned magistrate then reserved his decision, and on the 9th of November 2021 delivered that decision, finding the appellant guilty. His final statement in relation to that decision was in these terms:
In circumstances where what remained in issue was whether on 3 July 2020 the defendant had control of the weapon at 272 Black River Road, Black River, and I have found that I am satisfied beyond reasonable doubt that the defendant did have such control, I now find the defendant guilty of this offence under section 60, subsection (1) of the Weapons Act.
- [4]As a result of that determination, the learned magistrate reserved sentence for a period of some 10 days or so, and on the 19th of November 2021 sentenced the appellant. The sentencing remarks are provided in relation to this matter, and after noting that he was satisfied beyond a reasonable doubt that the defendant did in fact have control of a weapon as a licensee on the 3rd of July 2020 and failed to keep that weapon in secure storage he then noted a significant number of matters that he took into consideration in relation to the penalty to be imposed. He concluded his decision with the following words:
It is an unusual set of circumstances here, given that it was necessary for a trial and after a trial I found the defendant guilty, but I have already canvassed that it was focused on a particular legal issue.
I will get you to stand up if you would, Mrs Baker. I need to consider whether or not to record a conviction against you. As I have already canvassed, in my view this is a lower level example of this type of offence and not as serious as many offences which come before this Court. You are, of course, a more mature lady, age 47. You appear without any criminal history, and I have already canvassed your character and that I consider this to be an unusual set of circumstances for you to find yourself in. I have to have regard also to what impact any conviction might have upon your economic or social wellbeing or your employment, either presently or at some future time.
Considering all those factors, I am going to convict you with no conviction being recorded. Having otherwise canvassed issues to which I need to have regard under section 18 of the Penalties and Sentences Act, notwithstanding there was a trial involved here, for reasons I have already canvassed, I am minded to make an order under section 19 of the Act, releasing you absolutely without any further punishment being imposed upon you.
- [5]The determination in relation to this matter was an unusual one, and, as was referred to on a number of occasions by the learned magistrate, it was a determination that focused on and in fact turned upon particular legal issues. Such a submission was also made in the written outlines that were provided by both the appellant and the legal representative for the Queensland Police Service, whom I shall hereinafter refer to as the respondent.
- [6]Ultimately, it was contended by both legal representatives for the appellant and the respondent that the matter turned on an issue of statutory interpretation of the provisions of the Weapons Act. The appeal in this matter was filed on the 26th of November 2021, only a week after the sentence was imposed. The appeal noted the grounds as follows:
there was insufficient evidence to convict; and there was insufficient evidence to exclude defences.
- [7]The orders thereafter that were sought were more particularly detailed in the outline that was provided on the part of the appellant and were noted as follows:
- (a)that the verdict of Magistrate Mosch on 9 November 2021 be set aside, and that a verdict of not guilty be substituted;
- (b)costs.
- [8]Interestingly, the facts in respect of the matter seem generally to not be contested. In fact, the outline provided by the appellant’s legal representatives noted in paragraph 8 the following:
The facts of the case were entirely uncontested, as follows –
- a)The Applicant resided at 272 Black River Road, Black River, Qld as at 3 July 2020;
- b)Police executed a search warrant on that date;
- c)The Applicant’s husband was home at the time – the Applicant was not;
- d)The Applicant had a bolt action .22 calibre rifle appropriately registered to her stored in an appropriate metal gun safe, along with a number of other long arms which were registered to her husband (who was also a licencee under the Weapons Act);
- e)The Applicant gave uncontested evidence that the last she had physically possessed ‘her’ .22 calibre rifle, some 12 months earlier, she placed it back in the gun safe, with the bolt removed;
- f)She gave uncontested evidence that in the intervening period her husband cleaned the firearms including hers;
- g)Police never sought to call or take evidence from the husband.
- [9]It was noted that the Prosecution called three witnesses to give evidence and that there were six exhibits tendered, and the appellant’s legal representatives also indicated that the matter proceeded on admissions and was confined to less than one day. In fact, there were four witnesses who gave evidence in relation to this matter. The Prosecution called three, they being the arresting officer Detective Sergeant Brett McLucas, Detective Senior Constable Andrew Ouse and Scenes of Crime Officer Sergeant Toni Brosnan.
- [10]Helpfully, the representatives for the respondent detailed in their outline a brief summary of the evidence of each of those witnesses, Detective Sergeant Brett McLucas, Detective Senior Constable Andrew Alce and Sergeant Toni Brosnan. There was no contest in relation to the evidence of those witnesses, and that is understandable, of course, in light of the indication already given, that this was far more a case revolving around issues in respect of statutory interpretation than within any contest as to the facts in respect of the matter.
- [11]The outline by the legal representatives for the respondent noted at paragraphs 4.4 through 4.11 the following:
Detective Sergeant Brett McLucas
4.4 Detective Sergeant Brett McLucas gave evidence that on 2 July 2020, he was detailed to attend an alleged shooting of a domestic dog at 255 Black River Road. He conducted enquiries and as a result, sought a search warrant for the residence at 272 Black River Road … occupied by the appellant, her husband (Gregory Baker) and their boys. The following day on 3 July 2020, the search warrant was executed on Gregory Baker. The appellant was at work.
4.5 During the search, there were a number of fridges that had been converted into gun safes, with locking mechanisms to store guns. Gregory Baker unlocked the safes and Sergeant Brosnan and Detective Senior Constable Alce individually emptied each safe and took photographs of the items.
4.6 At the conclusion of the search, Gregory Baker was provided with a field property receipt… all items were seized and were lodged at the Mundingburra Police Station. Detective Sergeant McLucas made a case to obtain copies of the certificate in relation to the weapons license issued to the Appellant and received a weapons license certificate … and an extract of firearms register… The certificate provided that the Appellant was licensed under the Weapons Act and the register indicated that Rimfire bolt action rifle with serial number 9434506 was registered in the appellant’s name.
4.7 During cross-examination, Detective Sergeant McLucas confirmed that the Appellant was not present during the search and that Gregory Baker was cooperative throughout the search. Detective Sergeant McLucas confirmed that Gregory Baker opened the safes, he believed that Gregory Baker opened the gun safes with a pin code. He provided that Gregory Baker was also a licensed weapon holder.
Detective Senior Constable Andrew Alce
4.8 Detective Senior Constable Alce gave evidence that on 3 July 2020, he was present for the execution of the search. He provided that Gregory Baker gave Police access to the gun safes which contained a number of firearms. He recalled locating a Rimfire rifle which contained serial number 9434506. The bolt was still fitted to the rifle and locked forward so the chamber was closed and that a magazine was also fitted into the magazine housing of the weapon. Detective Senior Constable Alce provided that the gun was in the safe within the rifle case and he took the weapon out of the case. The image depicted the rifle when he took it out of the case.
4.9 In cross-examination Detective Senior Constable Alce confirmed that Gregory Baker was cooperative and provided access to the safes, although Alce could not recall what the locking mechanism was.
Sergeant Toni Brosnan
4.10 Sergeant Toni Brosnan gave evidence that they took a series of photographs of the gun safe and one gun in particular …
4.11 During cross-examination Brosnan confirmed that no fingerprint analysis was conducted on any of the guns.
- [12]Additionally, the appellant gave evidence in relation to this matter, and the outline, again, provided by the legal representatives for the respondent noted at paragraphs 4.12 and 4.13 the following:
The Appellant’s evidence
4.12 In her evidence, the appellant provided that the last time she had physical possession of the weapon prior to 3 July 2020 was more than 12 months ago when it was taken out and cleaned by her husband. The appellant provided that she helped her husband take the guns out.
4.13 The appellant also stated that since then she had accessed the gun safe on one occasion when she needed a copy of her son’s birth certificate which was around six to eight months ago. In cross-examination the Appellant confirmed that she had access to the safe, she knew the code for the safe and acknowledged that she would have been able to take out the rifle at any point in time if she wanted to.
- [13]I, of course, have had the opportunity also of considering the evidence in relation to this matter and note that the applicant’s evidence was generally in terms of that which was described in the brief summary to which I have made reference; however, I do note that the evidence of the appellant was clearly to the effect that at a time approximately 12 months prior to the execution of the search warrant, the appellant indicated that she and her husband, Greg Baker, had taken various weapons, including her firearm, out of a locked safe for the purposes of cleaning and oiling. She noted that it was “we” who had taken it out and then it was cleaned by her husband, and the appellant specifically noted that she did not do the cleaning.
- [14]Noteworthy also, however, was the evidence of the appellant that the guns were cleaned and oiled generally each six months and that as her last involvement was approximately a year before, there was a possibility or probability that her husband had removed all of the weapons stored in the gun safes for the purpose of cleaning and oiling, and that that would have included her weapon. The appellant also gave evidence that other items were kept in the gun safe, including birth certificates and passports and the like, and that approximately six months before, the gun safe had been opened for the retrieval of her son’s birth certificate. The appellant specifically noted, however, that she did not know when her gun was last cleaned by her husband.
- [15]What is generally argued in relation to this matter is that there was a break in the responsibility for the possession or securing of the weapons and that therefore there could not be an ongoing responsibility in relation to the securing and storing of the weapon.
- [16]The conduct of an appeal to the District Court as pursuant to the provisions of section 222 of the Justices Act 1886, section 222 is in these terms:
Appeal to a single judge
(1) If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.
- [17]Pursuant to section 223 of the Justices Act, the appeal is by way of a rehearing on the original evidence and any new evidence adduced by leave. Such a situation did not arise in relation to this matter and reliance was simply placed upon the evidence provided before the learned magistrate. The High Court in House v The King [1936] 55 CLR 499 at 505 observed as follows:
It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so.
- [18]As such, there needs to be that full examination of the evidence that was relied upon and as was submitted on the part of the appellant. There should be due respect given to a magistrate, being a position to view the evidence, and bear in mind any advantage he or she had in seeing and hearing the witnesses give evidence, but this does not remove the requirement of the Judge on appeal to review the evidence and weigh the conflicting evidence and to draw his or her own conclusions. The Court has been provided guidance repeatedly in relation to such matters, noting, as counsel for the appellant did in their outline, as follows:
As per Fox v Percy, [1936] HCA 40 at paragraph 19:
“Within the constraints marked out by the nature of the appellant process, the appellant court is obliged to conduct a real review of the trial, and in cases where the trial was conducted before a Judge sitting alone, of that Judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”
- [19]Of course, that does not remove or reduce in any way the obligation and responsibility of the appellant court to consider all of the evidence, but it does require that there should be proper respect and weight given to the conclusions of the trial judge in relation to any determination. Similar comments were also made by the Court of Appeal in Queensland, particularly noting, as I do, in McDonald v Queensland Police Service [2017] QCA 255 at paragraph 47 the following:
It is well established that, on an appeal under section 222 by way of rehearing, the District Court is required to conduct a real review of the trial and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, given due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.
- [20]As such, there is that need to consider the evidence that was presented in relation to this matter, but as has already been indicated, the real issue here is the interpretation of the provisions of the Weapons Act and of the regulations. As such, it is appropriate in my view that the relevant parts of the Act should be included. Section 60, subsection (1) of the Weapons Act, is in these terms.
Secure storage of weapons
(1) A licensee who has control of a weapon at a place must keep the weapon in secure storage facilities at the place when a person is not in physical possession of the weapon.
Maximum penalty—100 penalty units or 2 years imprisonment.
- [21]And regulation 94 of the Weapons Regulation 2016, headed Storage of particular weapons not in person’s physical possession – secure storage facilities, is in these terms.
Storage of particular weapons not in person’s physical possession—secure storage facilities
- (1)This section does not apply—
- (a)to the extent this regulation otherwise provides; or
- (b)to a weapon possessed under—
- (i)an armourer’s licence, collector’s licence, dealer’s licence or theatrical ordnance supplier’s licence; or
- (ii)a security licence (organisation); or
- (c)to a weapon to which section 95 applies; or
- (d)to a weapon in or on a vehicle if—
- (i)section 95 does not apply to the weapon; and
- (ii)section 96 is complied with for the weapon.
- (2)A person who possesses a weapon must, when the weapon is not in the person’s physical possession, store it unloaded in a locked container complying with subsections (5) and (6), with the weapon’s bolt removed or its action broken.
- (3)However, the person must, when the weapon is not in the person’s physical possession, store it in the same way that a weapon to which part 20 applies must be stored under that part, if at the premises where the weapon is, there are more than—
- (a)for category A, B, C or D weapons—a total of 30 of any of those weapons; or
- (b)30 category H weapons.
- (4)Subsection (2) does not apply while a weapon is in the physical possession of a body’s representative endorsed on the licence, or another individual, under the authority of a licence held by the body.
- (5)For subsection (2), the container must—
- (a)for a category D, H or R weapon—be a rigid structure made of solid steel and be bolted to the frame or floor of a permanent building; or
- (b)for any other weapon—
- (i)be a rigid structure made of solid steel or solid timber; and
- (ii)if the container weighs less than 150kg—be securely fixed to the frame or floor of a permanent building.
- (6)Also for subsection (2), the container must also—
- (a)have a sturdy combination lock, keyed lock or keyed padlock; and
- (b)always be locked (other than for the time necessary to insert or remove a weapon, or something else, for a proper purpose).
- (7)A person to whom subsection (2) applies must take reasonable precautions to ensure—
- (a)if the container has a keyed lock or padlock—
- (i)the key for the lock or padlock is not lost or stolen; and
- (ii)the key for the lock or padlock is not accessible to persons who are not lawfully entitled to possess the weapon; or
- (b)if the container has a combination lock—the combination for the lock is not accessible to persons who are not lawfully entitled to possess the weapon.
Maximum penalty for subsection (7)—10 penalty units.
- [22]Interestingly, and it was emphasised for different purposes by the legal representatives for both the appellant and the respondent, it was noted that there is a disconnect between the wording in regulation 94 and the wording of section 60 in that the regulation in subsection (2) refers to the storage of the weapon, and section 60 makes reference more particularly to the use of the word “keep” in respect of the weapon, relating to it being kept in secure storage. It is that disconnect and the argument in relation to interpretation of the words and the obligations that arise in respect of it which are necessarily required to be considered, in respect of this matter.
- [23]As such, the arguments of both the appellant and respondent need to be detailed so as to be understood in terms of the argument at first instance and now the appeal. Counsel for the appellant detailed the argument as follows in paragraphs 24 through 35:
24. Regulation 94 must have work to do in terms of the requirements of storage. It provides that a person who possess a weapon must … store it unloaded in a locked container…with the weapon’s bolt removed… Respectfully, that is precisely what the evidence shows the Applicant did.
25. By acceptance of the facts which are not in dispute, the Applicant did not fail, herself, to “store” the weapon in accordance with the Regulations. She did not “store” it herself contrary to the Act. “Store” is not defined in the Act nor Regulation.
26. The rules of statutory interpretation mean that the word then carries its everyday meaning. The Oxford Dictionary (Seventh Edition) defines the verb ‘store’ as meaning: “enter or retain for retrieval”. Such a definition invokes a positive act by the person who stores.
27. Neither provision carry strict liability. Strict liability leads to liability regardless of fault. In this case the charge and particulars dictated fault to be necessary.
28. At common law, an absolute liability offence is one that does not require any proof of mens rea, provided that the act of the accused is voluntary. Similarly, at common law, a strict liability offence is one which also does not require any proof of mens rea but to which the common law defence of honest and reasonable mistake of fact applies. In Queensland, however, intention is immaterial unless it is an element of an offence, and motive is immaterial in determining criminal responsibility.
29. The only place in the Weapons Act where the word ‘strict’ appears is in section 3.
30. One only has to look within section 60 itself to identify the intention behind the provision of subsection (1). If the Act intend to extend “keep” to the manner which was found by His Honour, it would have used the same phraseology as in subsection (2), that is by using the word “ensure”. If the legislature intended such liability to apply, the section would have been phrased something like, ‘A licensee who has control of a weapon at a place… must ensure the weapon is kept in secure storage facilities…”. It does not.
31. The use of such a term “ensure” might display strict liability.
32. The combination of regulation 94 with section 60 meant the prosecution was required to prove beyond reasonable doubt in the context of the “failure” by the Applicant, both terms “keep” and “store”.
33. The learned Magistrate decided that it was incumbent upon a licencee, and in control of a weapon, to keep such weapon in accordance with the relevant regulation (94), regardless of any intervention by another.
- [24]The representative of the respondent, however, contended that the interpretation should be understood to provide far more specific requirements in relation to “store” and “keep”. The argument is detailed in paragraph 7.4 through 7.11 as follows.
Interpretation of provisions
7.4 The interpretation of the provisions provided by the Appellant is that the use of the word “store” in the regulation presents disconnect with the phraseology of keep in section 60, however the appellant has failed to consider the effect of the note within the legislation. That regulation 94 specifically provides a note to see “section 60 of the Act for obligations relating to secure storage facilities” indicates that the regulation provides how the weapon must be stored and section specifically places the obligations on a licensee to ensure that the weapon is kept in that matter. As such, it is submitted that the particulars appropriately reflect legislation.
7.5 This logic is also apparent from the history of the provision. Prior to the Weapons (Handguns and Trafficking) Amendment Bill 2003 which commenced on 26 June 2003 the provision for “secure storage of weapons” was as follows:
“A person who possesses a weapon must securely store the weapon in the way prescribed under a regulation when it is not in the person’s physical possession.”
7.6 It is apparent that the provision at that time required the person who possessed the weapon to store the weapon in the correct manner themselves. However, since then the provision has been broadened.
7.7 The explanatory notes for the Weapons (Handguns and Trafficking) Amendment Bill 2003 provide that one of the objectives of the Act was to “implement broader licensee revocation powers, including suspending, revoking or refusing a license on the basis of criminal intelligence and negligent storage”.
7.8 As such, the provision now places an obligation on a licensee who has control of a weapon to keep the weapon in secure storage facilities when they are not in physical possession of it.
7.9 Whilst the term “control” is not specifically defined under the legislation, “possession” is defined in schedule 2 and includes, “having the thing in one’s control in any place, whether or not another has custody of a thing’. In R v Hanson [2014] QCA 245 Wilson J considered “possession” with respect to a charge under s. 50 of the Weapons Act 1990. His Honour stated the following at [10] to [12]:
”By law, the definition in schedule 2 applies to all the provisions of the Weapons Act. As a matter of ordinary construction, the meaning of words like “possession” in statute is to be determined by reference to context. Other statutory instances of the use of the word are, then, of limited assistance. Nor is it necessarily helpful, to have regard to definitions of the word under other legislation (e.g. the Criminal Code (Qld) or the Drugs Misuse Act 1986 (Qld), or in the common law…
The definition in the Queensland Weapons Act has, on its face, a broad reach. Its language contemplates having present custody or control of a weapon but, also, extends to deem possession where there is a present ability to obtain or claim custody. It also, clearly, includes the circumstance that more than one person may be in possession of a weapon at the same time.
The broad construction and the extensive reach it connotes is consistent with the achievement of the principles of the Weapons Act, set out in s 3, which enshrine the notions that possessions of weapons is “… subordinate to the need to ensure public and individual safety’ and that ‘public and individual safety is improved by imposing strict controls on the possession of weapons”.
7.10 Further, in Dawson v Tanwan [1999] QDC 389 McGill DCJ considered “possession” in the context of the former section 60. His Honour referred to Keys v Kitto (1996) 90 A Crim R 288 where a person was held to have “custody or control” of a gun stored at a shed on their property, it having been left there with his consent by another person for safekeeping.
7.11 The word “keep” is not defined in the legislation, however definitions of “keep” in the Concise Oxford Dictionary include, “maintain in proper order; carry on, manage” and “maintain in proper or specified condition”. It is submitted that the use of the word “keep” suggests that the licensee is required to be constantly vigilant about how their weapon is stored.
- [25]Thereafter, there was argument as to whether or not the appellant had control of the weapon, and, of course, it was clear that the appellant was the licensee. What is in dispute is evidence as to who may have been the last person to physically possess the appellant’s weapon.
- [26]As noted at paragraph 38 of the outline on behalf of the appellant, there was no, it was said, consideration of the evidence before the Magistrate that it was the appellant’s husband who was the last person to physically possess the appellant’s weapon, and as such, her uncontested evidence that she did not store the weapon in the manner that it was found has meant that there was at least the possibility of an intervening act, removing her criminal responsibility.
- [27]The respondent’s argument, however, is to simply say that any intervening act does not affect the actual control. In particular, the respondent argued that there was no evidence of anyone else storing the weapon incorrectly, noting, as they did, that there was no evidence from the appellant’s husband, and as such, the question for determination was whether there was an ongoing responsibility or liability in circumstances where the appellant’s husband potentially stored the weapon in an incorrect manner. As indicated, however, there is no evidence in that regard, only the evidence of the appellant to the effect that she had not stored the weapon in an incorrect manner.
- [28]What the respondent argues is that whatever may have been the intervening circumstances, there is no break in respect of the responsibility and obligations that arise with regard to control of the weapon. The respondent argues that a number of factors need to be taken into consideration there, including the following:
- (a)the weapon was registered in the appellant’s name;
- (b)the appellant occupied the property where the weapon was kept;
- (c)she had access to the safe where it was kept and could have done so at anytime; and
- (d)that whilst the appellant’s husband was able to access the weapon as it was stored along with his weapons that he was licensed to hold, that did not absolve the appellant of her obligations as a licensee with control of that particular weapon.
- [29]The respondent – as is clear from the argument previously noted in relation to this matter – says that there is a direct interaction between the words “keep” and “store” and that it imposes responsibilities and obligations upon the licensee beyond simply ensuring that the last time they had access to or viewed the weapon in a manner that indicated control over it that it was then kept or stored in accordance with the requirements of the Act or the regulations.
- [30]The respondent argues that as it was clear that the appellant knew that her husband had access to the safe where the weapon registered in her name was kept and that he may have cleaned her weapon, not only 12 months ago but at some other time, the appellant as licensee could have easily accessed the safe at any point to confirm that if it had been dealt with by her husband or by any other, that its storage was still in compliance with the statutory obligations. The respondent argued that whilst the appellant’s husband may have had access to the safe in which the weapon licensed in the name of the appellant was stored, that did not relieve the appellant of the obligations to ensure that the weapon was stored or kept appropriately, and it did not create a break in her control of the weapon such that the obligations arising pursuant to the Act remained live and that, as was argued on the part of the respondent, there was an obligation for vigilance on the part of the appellant.
- [31]As was argued by the respondent at paragraph 7.19, the following was said:
To conclude that a potential “intervening act” removed the appellant’s criminal responsibility in circumstances where the appellant knew her husband had access to the weapon, that he had physical possession of the weapon around 12 months prior with her knowledge and that the appellant as the licensee made no efforts at any point to check that it was stored appropriately, would be contrary to the objective of the section which places obligations on a licensee for negligent storage.
- [32]The argument continues to the effect that the appellant’s criminal liability comes from her failure to keep the weapon stored in accordance with the regulation, and as such, the conviction was based not on a positive act by the appellant in relation to the storage of the weapon but rather her failure to ensure that, at some time subsequent, the weapon was still securely stored.
- [33]The learned Magistrate, in his decision, specifically addressed the interpretation of the requirements or obligations that arise pursuant to both section 60(1) of the Weapons Act and regulation 94, subregulation (2) of the Weapons Regulations when he said the following:
However, possession is defined in schedule 2 to the Weapons Act to include, in relation to a thing, having the thing under one’s control in any place. It follows that, for example, if a person, being a licensee, has control of a weapon in terms of section 60 subsection (1) of the Weapons Act, that person also possesses the weapon, including for the purposes of section 94 subsection (2) of the Weapons Regulation. Having said this, the relevant concept in terms of section 60 subsection (1) of the Weapons Act is control.
- [34]The learned Magistrate went on to note, understandably, that the onus rests upon the Prosecution to prove the elements of the charge and that the standard of proof required is beyond reasonable doubt. His Honour then addressed the evidence that has been presented, but as was noted by me and also by him:
There is little, if any, contest about the relevant facts.
- [35]Thereafter, his Honour concluded, on the evidence which was not in dispute, that he was satisfied beyond a reasonable doubt that on the day in question, the appellant was a licensee and that the weapon the subject of the charge was at 272 Black River Road, Black River and that there was a failure to keep the weapon in secure storage facilities at the place when there was no person in physical possession of the weapon. The learned magistrate then went on to consider the question of whether the appellant had control of the weapon and detailed the following in his decision, page 4, line 16 to page 5, line 27:
The concepts of custody or control or access in relation to a weapon were considered in Yeates, Y-e-a-t-e-s, v Hoare, H-o-a-r-e, [1981] VR 1034 at 1038 to 1039. Justice Kaye, K-a-y-e, said:
Control denotes actual power to deal with the article in question by restraint or direction.
His Honour went on to say:
There is no warrant for qualifying either the words “custody” or “control” or “access” with any legal doctrine of possessory rights. Nor is there any justification for reading down the words by importing the need for some physical act in connection with the weapon, consistent with ownership or dominion.
Similar concepts were considered in Keys, K-e-y-s, K-i-t-t-o, 90 A.Crim.R.288. This was in the context of the definition of possession in section 4 of the Firearms Act of Western Australia which, like the definition of possession in schedule 2 to the Weapons Act, included a concept of control. At 293, Justice Steytler, S-t-e-y-t-l-e-r, noted that the definition of “possession” encompassed also custody or control. His Honour said:
Consequently custody or control must mean something other than either actual physical possession in the sense perhaps of complete present personal physical control of the firearm.
At 295, in dealing with the specific circumstances of the defendant in Keys v Kitto, Justice Steytler said:
He had, as a person in charge of the property and as the person who had agreed that the gun could be stored on the property, actual power to deal with the gun, to some extent at least, by restraint or direction. He was consequently in possession of the gun in the sense that he had custody of it while it was stored in the shed. The position was not, in my opinion, altered by the fact that members of the respondent’s family and others had access to the shed. Nor does it matter that the respondent was, at the material time, only in occupation of the … property over weekends or part thereof. It was his family company which owned the property and he was, as I have said, one of those in effective control of it.
Finally at 295, his Honour noted:
It is plain that one of the primary objects of the Act, as with its Victorian counterpart, is that of restricting and controlling the availability of firearms.
This is similar to section 3 of the Weapons Act which provides inter alia that the principles underlying it are public and individual safety being improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage of weapons.
In my view, these authorities support a conclusion that control of a weapon involves a person with actual power to deal with a weapon by restraint or direction, without a need for some physical act consistent with ownership or dominion. An example of control would be a person in charge of a property who has agreed that a weapon be stored on the property, with actual power to deal with that weapon, to some extent at least, by restraint or direction. This would not be altered by the fact that members of the person’s family have access to where that weapon is stored on the property; nor would it matter that the person is only in occupation of the property from time to time, if the person is one of those in effective control of the property.
- [36]His Honour’s reasoning in relation to this matter is, in my view, sound, and in fact accords with my own assessment of the obligations and responsibilities that arise, pursuant to the provisions of both the Weapons Act and the regulations. His Honour noted, as follows in his decision:
Notwithstanding the intervening act of passing physical possession of the weapon to her husband for the limited purpose of him cleaning it, there is no evidence before me to suggest the defendant thereafter relinquished her apparent actual power to deal with the weapon by restraint or direction. Likewise there is no evidence before me to suggest that having cleaned the weapon, the defendant’s husband thereafter dealt with the weapon in a way that displaced the defendant’s apparent actual power to deal with the weapon by restraint or direction.
In my view, after the defendant’s husband cleaned the weapon and no longer had physical possession of it, the defendant continued to have actual power to deal with the weapon by restraint or direction such that the defendant continued to have control of the weapon at 272 Black River Road, Black River. This meant it was incumbent upon the defendant to ensure the weapon was kept in secure storage facilities. This may have been as simple as the defendant checking the weapon after her husband had cleaned it, to ensure the weapon was being kept in accordance with her obligations under section 60 subsection (1) of the Weapons Act and section 94 subsection (2) of the Weapons Regulation.
There is no evidence before me of any other intervening act involving the weapon prior to 3 July 2020. I am therefore satisfied beyond a reasonable doubt that on 3 July 2020, the defendant had control of the weapon at 272 Black River Road, Black River.
- [37]The learned magistrate, as I have noted, found that he was therefore satisfied beyond a reasonable doubt that on the 3rd of July 2020 the defendant had control of the weapon that was situated at 272 Black River Road, Black River, and that therefore in the circumstances which appear clear from the evidence with regard to the storage and the manner of storage of a weapon that there was a breach of the obligations that arose.
- [38]Additionally, however, it was argued that even as found by the learned magistrate and myself that there was such a breach, there was still a need to consider whether or not any other potential defence arises specifically here, pursuant to the provisions of section 24 of the Criminal Code:
Mistake of fact
- (1)A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
- (2)The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
- [39]What is argued on behalf of the appellant in that regard is that section 24 did provide a valid defence to the defendant in that it was open, not merely because of the evidence given by her, but upon the evidence that was also presented by the prosecution, as well as the physical evidence contained within the exhibits, that she was entitled to hold reasonably the belief that her gun would have been stored in the same manner as the weapons that were licensed in the name of her husband.
- [40]However, what is argued for the respondent is that there was no basis upon which there was evidence of the belief held by the appellant and that therefore to argue that there was a basis for that belief arising from the state that the appellant’s husbands weapons were found in was nothing other than speculation and that there was no evidence particularly given by the appellant or by anyone else, to suggest that she believed that all of her husband’s weapons were stored in the correct manner, and that therefore hers was as well. The learned magistrate made such a finding in relation to this matter, specifically where he said the following:
In my view, there is no evidence before me to suggest the defendant held any – relevant belief, mistaken or otherwise. The defendant gave evidence as to how she ordinarily kept the weapon in secure storage facilities. However, there is no evidence of any belief held by the defendant as to how her husband ordinarily kept weapons. Further, there is no evidence of any basis for the defendant to have formed a belief or of any belief held by the defendant as to how the weapon was kept after her husband cleaned it. In my view, there is no evidence before me which raises a potential defence under section 24 of the Criminal Code.
- [41]I similarly have considered the evidence in relation to this matter and agree that there is no proper basis upon which it could be suggested that there was evidence which raises the issue of mistaken belief on the part of the appellant. As was noted by President Sofronoff in R v Makary [2018] QCA 258 at 55 as follows:
This requirement is sometimes referred to as an “evidential onus” that lies on an accused. In truth, the only question is whether there is evidence which raises the issue of mistaken belief for the jury’s consideration so that the prosecution must exclude the excuse afforded by section 24.
- [42]In my assessment of this matter, there is no evidence which gives rise to the potential opportunity for a defence pursuant to the provisions of section 24 of the Criminal Code. As such, I am satisfied, as submitted on the part of the respondent, that the appellant does not raise any legal, factual or discretionary error on the part of the magistrate to justify intervention by this Court and that, as submitted, the learned magistrate was entitled to find the appellant guilty on the evidence before the Court. Accordingly, I order that the appeal be dismissed, and I make no order as to costs.