ACCUSED CHARGED WITH POSSESSION OF AMMUNITION FOR FIREARM

R v Zdravkovic (No 2) [2020] ACTSC 253 (24 September 2020)  

This case involves an accused charged with violating s249 of the Firearms Act where he contends that the term “possession” in said section is limited to possession of firearms and not the ammunition itself  

Facts:  

The accused was charged with violating 249 of the Firearms Act which provides that: “A person commits an offence if: (a) the person possess ammunition for a firearm; and (b) the person is not authorized by a license, permit or otherwise under this Act to possess or acquire the ammunition.”   

The ammunition was found concealed inside a rubber glove, which was itself concealed within a structural tubular metal beam within a shed located on the residential block where the accused lived with his partner and young child.  

The accused contended that Section 249 could have no relevant operation because the concept of possession picked up in the section is limited to possession of firearms.  He contended that this was an "obvious drafting error" but that it meant that an element of the offence could not be established.  

Issue:  

Is Section 249 limited only to possession of firearms?  

Law:  

• Legislation Act 2001 (ACT) provides that a definition in an Act applies except so far as the contrary intention appears:  s155.  
• S10 of the Firearms Act- Meaning of possession  

1. For this Act, a person has possession of a firearm if the person—  (a)has the firearm on his or her person, including in something carried or worn by the person (physical possession); or  (b) has the firearm at premises owned, leased or occupied by the person; or Otherwise has the care, control or management of the firearm.  

Analysis:  

No. A contrary intention appears and the definition of “possession” in s 10 does not apply, then the word “possesses” in  s249 is not a defined term.  The ordinary meaning of the word “possess” is “to have as property; to have belonging to one”: Macquarie Dictionary, 2nd edition,”99".  It involves both actual physical control and an intention to appropriate the item to one’s exclusive use  

The court is satisfied beyond reasonable doubt that the accused possessed the ammunition in the sense of having it as property or having it as something that belonged to him.  

Conclusion: The court therefore finds the accused guilty on the charge of contravening s249 of the Firearms Act.   

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