Robert John Campbell Macpherson v John Weldon [1994] ACTSC 10 (11 February 1994)

SUPREME COURT OF THE ACT

ROBERT JOHN CAMPBELL MACPHERSON v. JOHN WELDON
No. SCA85 of 1993
Number of pages - 5
Appeal - Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Appeal - against conviction in Magistrates Court for possession of dangerous weapon without a licence.

Criminal Law - weapons - statutory definition of possession - amnesty - what constitutes surrender.

Weapons Act 1991, sub-s.4(1), s.15 and sub-s.69(3)

Crimes Act 1900 s.349D and s.556A

HEARING

CANBERRA, 2 February 1994
11:2:1994

Counsel for the Appellant: Mr. I. Nash

Solicitors for the Appellant: Snedden Hall and Gallop

Counsel for the Respondent: Ms. F. Merrilees

Solicitors for the Respondent: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:
1. Without recording a conviction, the appellant be discharged

forthwith under s.556A of the Crimes Act 1900 upon entering into a
recognizance self in the sum of $1,000 to be of good behaviour for
a period of two years from 26 July 1993. The recognizance already
entered into on that date may be regarded as sufficient for this
purpose.
2. The Magistrate's order that the weapon be forfeited be confirmed.

DECISION

MILES CJ This is an appeal against conviction and findings of guilt by a Magistrate on charges of possession of a dangerous weapon without a licence, contrary to s.18 of the Weapons Act 1991 (the Act).

2. The appellant contends that the weapons (two rifles, each of .22 calibre and two shotguns) were not in his possession on the relevant date, 16 June 1992.

3. According to sub-s.4(1) of the Act, possession in relation to a dangerous weapon includes:

"(a) the control of the weapon in any place, whether exclusively or in
common with another person; or
(b) an ability to claim or obtain control of the weapon."

4. The primary facts which the Magistrate found, was entitled to find, and with which I entirely agree, are as follows.

5. The weapons belonged or used to belong to the appellant's father. They were given into the appellant's custody many years ago and they were kept on the family rural property at Narrandera in New South Wales. About seven years ago, the appellant left the property with his wife and children and came to live in the ACT, bringing the weapons with him. They remained with him thereafter until events in the early part of 1992.

6. Due to matrimonial difficulties, Mrs. Macpherson left the home at Narrabundah in 1990. The appellant remained in the matrimonial home until early 1992. From 1990 until 1992, he was in occupation of the home and had control of its contents, including the weapons. The weapons were wrapped in a blanket and kept in a cupboard in the room which he occupied as his bedroom. As the Magistrate observed, the weapons were, to all intents and purposes, his guns.

7. In early 1992, the appellant's father fell ill and the appellant temporarily left the matrimonial home with the intention of returning to reside there in due course. In about May 1992 Mrs. Macpherson took the opportunity of the appellant's absence from the home to resume residence there. She took over occupation of the bedroom. However, she did not disturb the guns in any way and left them in the blanket in the cupboard. She took no overt steps to exercise any control over the guns but no doubt she could have done so had she so wished.

8. There is no evidence that the appellant did anything to disturb the position of the weapons after they were placed in the cupboard and indeed no evidence that he did anything by way of overt acts to exercise the control that he undoubtedly had over them before he left the home to look after his father.

9. The Magistrate found that the return of Mrs. Macpherson to the matrimonial home was contrary to the wishes of the appellant. It is also apparent that her occupation of the house and of his former bedroom was against his wishes.

10. The appellant had two daughters living at Duffy, Emma and Felicity, with whom he had stayed on occasions. On 16 January 1992 the appellant returned to Canberra and went to the former matrimonial home with a view to resuming his residence there. His daughter Emma accompanied him. He found the front door locked and concluded that the lock had been changed. He went to the back door. Another daughter, Sarah, refused him entry. At his request, Emma let him in the front door with her key. Whilst he was there, Sarah rang her mother at work and her mother called the police. Sergeant Weldon then arrived at the home, followed by Mrs. Macpherson a short time later.

11. The Magistrate considered that there was a possibility of a breach of the peace. Whether this was so in any objective sense or not, Sarah, either at the request of Sergeant Weldon or of her mother, or acting on her own initiative, brought the weapons out from the bedroom and stacked them against the wall of the hallway or loungeroom.

12. The appellant said in his evidence, and the Magistrate found, that the following was part of the conversation between the appellant and Sgt. Weldon:

"POLICE: 'Mr. Macpherson, are those your firearms?'
APPELLANT: 'They are only in my possession.'
POLICE: 'Are they registered?'
APPELLANT: 'Not to my knowledge.'
POLICE: 'How long have you had them for?'
APPELLANT: 'I've grown up with them.'
POLICE: 'What do you keep them for?'
APPELLANT: 'For keepsakes more than anything.'"

13. The appellant was unrepresented before the Magistrate, and Mr. Nash, who appeared for him in the appeal, persuaded me that he should be allowed to call additional evidence in the appeal. The prosecution was, as a result, allowed to call some additional evidence in reply. The evidence both before the Magistrate and the appeal as to the remainder of the conversation, is confusing. The appellant was not a good witness, and after making due allowance for the stress the appellant was clearly under at the time of giving evidence and likely to have been under at the time of the events, I find Sergeant's Weldon's evidence decidedly more convincing. I find that the balance of the conversation which occurred at the house went along the following lines.

14. Sergeant Weldon informed the appellant that there was an amnesty under which he might surrender the weapons, but if surrendered, they would have to be destroyed. The appellant said that they were not his to surrender and that he did not want them destroyed. Sergeant Weldon took the weapons into his possession and the appellant signed a record made by Sergeant Weldon of the description and serial numbers. I am not convinced that Sergeant Weldon told the appellant that, if he obtained a licence for the guns, everything would be "all right" and that the guns would not be destroyed. I am not convinced that Sgt. Weldon said anything to that effect.

15. In the light of the above facts, I agree entirely with the Magistrate that the appellant had possession of the weapons on 16 June 1992 until Sergeant Weldon took possession of them. Although he had been absent for some weeks from the house where the weapons had been kept, he never lost the ability to control or claim them in any real sense. He acknowledged as much in his evidence. Although, as Mr. Nash submitted, his admission is not conclusive, it represents, in my view, an accurate understanding of the true position. The fact that he could not obtain immediate access to the interior of the house when he called on 16 June 1992 does not affect the general position. His daughter Emma was able and willing to allow him into the house and she did so. There was nothing then to impede him from removing the weapons had he chosen to do so prior to the arrival of Sergeant Weldon. Mrs. Macpherson made no claim to possession of the weapons although she happened to be in occupation of the room in which the weapons had been placed and remained situated. Mrs. Macpherson's evidence indeed suggests that she disclaimed possession of the weapons.

16. Whether or not the concept of possession under the Act is different from that of the common law, I have no doubt that the appellant had the ability to claim the weapons or to obtain control of them, if he did not have control in the general sense.

17. There is no issue that the guns were dangerous weapons within the meaning of the Act, nor that the appellant lacked the relevant licence issued under the Act.

18. There is a further ground of appeal on a point not taken before the Magistrate. It relies on s.15 of the Act which is in the following terms:

"Amnesty
15.(1) The Minister may, by notice published in the Gazette, specify
an amnesty period for the purposes of sections 16, 17 or 18.
(2) No proceeding lies against a person in respect of the possession
of a weapon surrendered to a police officer during an amnesty period.
(3) The Minister shall cause a copy of a notice under subsection (1)
to be published in a daily newspaper published and circulating in the
Territory."

19. On 2 September 1991 the Attorney-General in the ACT Gazette specified the period from 3 October 1991 to 31 December 1992 as being an amnesty period for the purposes of the section. The term amnesty is not defined, but it is not necessary, in my view, to embark upon an inquiry into its exact meaning. Mr. Nash submits that the weapons were surrendered for the purposes of the section, and that is really the point in issue. He did not submit that the weapons were surrendered by the appellant and as the outline of facts above indicates, it is clear that the appellant did not surrender them and did not intend to surrender them. It is true that s.15 does not specify the person by whom the weapons are to be surrendered. Hence it would have been sufficient for the purposes of s.15 if the weapons had been surrendered by Mrs. Macpherson or the daughter Sarah. But it is clear, in my view, that surrender can be only by a person who has possession. If the weapons were surrendered by Mrs. Macpherson or the daughter, then that person had possession. It is of course possible as a matter of law that the appellant shared possession with his wife or his daughter or both. But the facts do not lead me to such a conclusion and, in my view, the weapons were not surrendered at all by anybody. Sergeant Weldon took the weapons into his possession or seized them as he was authorised to do under sub-s.69(3) of the Act or under s.349D of the Crimes Act 1900.

20. Although I find that Sergeant Weldon did not tell the appellant anything to the effect that things would be "all right" if the appellant obtained a licence for the weapons or to give the appellant reason to believe that he was entitled to reclaim them once he obtained a licence, I am convinced that the subsequent conduct of the appellant indicates that he believed that he was so entitled. I express my own view that it is a curious feature of the Act that, when it came into force on 3 October 1991, persons who were in possession of weapons to which it applied were placed in an invidious position. On that day their position was such that they were guilty of an offence which continued from day to day until the weapons were surrendered to the police or possession passed to somebody else. If they surrendered the weapons during the amnesty period, they would avoid prosecution, but the weapons would be destroyed. There was no way that they could apply for a licence and retain the weapons, unless the weapons were the subject of a licence issued under previous legislation repealed by the Act. Whether the weapons in this case were subject to the repealed legislation, was not an issue addressed in the present case.

21. I think that this aspect should be borne in mind when considering the question of penalty. The Magistrate dealt with the appellant very leniently on any view. He dismissed each of three of the informations altogether under the provisions of s.556A of the Crimes Act and ordered the respective weapons to be forfeited. However, on the remaining charge of possession of a Trico .22 calibre rifle, he recorded a conviction under s.556B of the Crimes Act 1900, but imposed no penalty upon the appellant entering into a recognizance self in the sum of $1,000 to be of good behaviour for two years, ordering that weapon also to be forfeited. Mr. Nash submits that the penalty was too harsh, having regard to the appellant's prior good character and the circumstances. The appellant clearly had the items in his possession as part of the family belongings and hoped to take them back to the grazing property in New South Wales for use on the property in a way that has been regarded as legitimate in Australia for generations. He and his family appear to be victims of the rural depression. There is not the slightest evidence that the weapons were ever used by him so as to constitute a danger to anyone and I take into account in this regard the unhappy differences between himself and his wife. However, he was subject to the law of the Australian Capital Territory, unfair as he appears to consider it to be. His attitude is such that I do not think that the public interest is served by dismissing the information altogether. On the other hand, I do not consider that the circumstances and his personal background require the recording of a conviction. At the same time the appellant needs to be reminded, in a way which need not reflect adversely against him, that he is not entitled to go about his affairs as he chooses and is subject to the law like everyone else. Section 556A of the Crimes Act 1900 enables me to place him on a recognizance without recording a conviction. As the factual basis for penalty is somewhat different from what it was before the Magistrate, I think that that is the appropriate course to take.

22. The appeal is allowed, but the Magistrate's conviction and order in CC92/12031 is set aside and substituted by the following:

Without recording a conviction, order and direct under s.556A of the
Crimes Act 1900 that the appellant be discharged forthwith upon
entering into a recognizance self in the sum of $1,000 to be of good
behaviour for a period of two years from 26 July 1993. The
recognizance already entered into on that date may be regarded as
sufficient for this purpose. The Magistrate's order that the weapon
be forfeited is confirmed.
I make no order as to the costs of the appeal.