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District Court 29 September 2023

R v Johnson

[2023] NSWDC 428

Firearms & weapons

Citation: R v Johnson [2023] NSWDC 428
Court: District Court of New South Wales
Date: 29 September 2023
Judge: Grant DCJ

Background

The accused was charged with three offences arising from an incident on 10 April 2021 near Rankins Springs, NSW. Police found him near a partially buried homemade device containing a live .22 calibre round. DNA testing linked both the device and a nearby shirt to the accused, who held no firearm licence or permit and had never registered the item.

The device consisted of a brass threaded pipe fixed to a timber frame by a hose clamp, fitted with a metal hammer connected to a small spring and rubber band mechanism. The central question at trial was whether this homemade item met the statutory definition of a "firearm" under the Firearms Act 1996.

The trial proceeded before a judge alone. The Crown argued the item fell within the Act's definition; the defence argued it did not, relying on the device's demonstrated inability to discharge a cartridge under its own mechanism.

  • Whether the homemade item satisfied the definition of "firearm" in s 4(1) of the Firearms Act 1996, specifically whether it was "capable of propelling a projectile by means of an explosive"
  • Whether the correct approach to statutory construction was the literal approach (as the Crown submitted) or the purposive approach
  • Whether the device's inability to function without substantial external assistance (a vice and hammer) placed it outside the definition

Decision

The firearms examiner, Senior Constable Greening, tested the device using primed cartridge cases for safety reasons. The built-in rubber band mechanism, even when augmented with up to ten rubber bands, could not generate sufficient force to discharge a cartridge. Discharge was only achieved by clamping the device in a vice and striking the hammer mechanism manually with a separate hammer, a process that also caused the barrel to shift in its clamp and require repositioning between each attempt.

Grant DCJ rejected the Crown's submission that a purely literal approach to construction was appropriate. Applying the purposive approach, as required by modern High Court authority, the court considered the Firearms Act as a whole, including s 4(2) (which deems items with defects or missing parts to still be firearms) and s 4D (which regulates imitation firearms). The court found that this broader statutory framework reflected a clear legislative intent to cast the regulatory net widely in the interests of public safety.

The court found that the use of an external hammer to strike the device's own hammer mechanism did not amount to a modification of the device. Rather, it was external assistance that allowed the item to fulfil the purpose for which it was built. On that basis, the device remained capable of propelling a projectile, even if it required external force to do so.

Grant DCJ concluded that a strict interpretation limiting "capable" to items that function without any external assistance would create a loophole inconsistent with the Act's public safety objectives. The court was satisfied beyond reasonable doubt that the item was a "firearm" within s 4(1) of the Act on all three counts.

Orders Made

  • Count 1 (possession of a loaded firearm in a public place, s 93G(1)(a)(i) Crimes Act 1900): guilty
  • Count 2 (possession of an unregistered firearm, s 36(1) Firearms Act 1996): guilty
  • Count 3 (possession of a firearm without licence or permit, s 7A(1) Firearms Act 1996): guilty

Key Takeaways

  • The District Court confirmed that the modern purposive approach to statutory construction, requiring consideration of context and the statute as a whole, applies to the definition of "firearm" in the Firearms Act 1996 and displaces a purely literal reading.
  • Under s 4(1) of the Firearms Act 1996, a homemade device may qualify as a firearm even where its built-in mechanism cannot independently discharge a cartridge, provided it is capable of propelling a projectile with reasonable external assistance.
  • Applying external force (such as striking a device's hammer with a separate hammer) does not necessarily convert an item into something other than a firearm; the court distinguished between external assistance and modification.
  • The Act's express inclusion of defective and imitation firearms within its regulatory scope, via ss 4(2) and 4D, reinforced the court's view that the legislature intended a broad rather than narrow construction of the term "firearm."
  • A strict construction that excluded devices requiring external force to operate was rejected as inconsistent with the Act's public safety purpose, as it would risk creating a circumvention loophole.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 4(1), 4(2), 4D, 7A(1), 36(1)
- Crimes Act 1900 (NSW), s 93G(1)(a)(i)
- Evidence Act 1995 (NSW), s 191
- Interpretation Act 1987 (NSW), ss 8, 33, 34
- Paintball Act 2018 (NSW)

Cases
- Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
- Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98
- R v A2 [2019] HCA 35
- Director of Public Prosecutions (NSW) v Morgan [2013] NSWSC 1474
- Mills v Meeking (1990) 91 ALR 16