Charges of Possession of Unregistered Firearm Disputed by Accused
Victoria Police v Lewis [2021] VMC 13 (21 October 2021)
The accused was charged with possession of an unregistered Category E longarm. In dispute is whether or not a polyvinyl chloride (“PVC”) device used to propel organic fruit or vegetable is a “firearm”. The Court, in resolving this dispute, distinguished Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 and R v Sayers [2006] SADC 123.
Facts:
On 31 December 2019, a search warrant was executed at 4 Ruben Street, Officer, in relation to the suspected offences of theft from a motor vehicle and obtaining property by deception. Following a search of the property by police, two polyvinyl chloride (“PVC”) pipe guns (“PVC devices”) were located from Ms Amanda Lewis (“the accused”). The dishonesty offences against the accused were later withdrawn by police. The accused has pleaded not guilty to the remaining charges before the Court.
The devices were described by the police as two pieces of connected PVC pipe with one section of larger diameter being described as the combustion chamber, and the other of smaller diameter but longer in length being described as the barrel of the device. Photographs of both devices were tendered to the Court by consent. Police witness Senior Constable Sofkarova demonstrated the mechanism for operating the device. A potato, which is used as a projectile was shown to result in blunt force trauma.
Senior Constable Sofkarova also gave evidence that at a range of 30 metres, a potato on two occasions hit the target and caused the frame holding the cardboard target to fall over, and on two other occasions, it tore through the target.
The prosecution argues that the term “other missile” should, as a matter of statutory construction, be given their ordinary and natural meaning, so as to include objects such as tennis balls, oranges and potatoes as “other missiles”. The device appears from the description provided to be very similar to the one in the case of R v Sayer save for the existence of the cattle prod used in the South Australian variant. The prosecution argued that despite the difference in the wording between the South Australian Act referring to “other projectiles” and the Victorian Act referring to “other missiles”, the meaning is similar.
The prosecution argued that the words “other missile” should not be interpreted by using the ejusdem generis rule of statutory interpretation by restricting that phrase to metallic items like shot or a bullet, but rather the term should extend to any everyday item, if such an item was capable of being fired from a firearm.
The defence argues that consistent with the approach taken in Police v Eliassides, the ejusdem generis rule ought to apply in interpreting the phrase “shot or bullet or other missile”. The defence contends that in applying this rule of statutory construction to the ambiguity, the term ‘other missile’ will only include items being hard, metal or lead projections capable of significant harm when fired from a firearm where it has the potential to endanger the public safety and peace. The defence argued that as the PVC device does not “store or produce gases” for the purposes of discharging a projectile or missile, it does not fit the definition of a firearm.
Issue:
Whether or not a polyvinyl chloride (“PVC”) device used to propel organic fruit or vegetable is a “firearm”.
Applicable law:
Firearms Act 1996 s 3 - provides that "firearm" means any device, whether or not assembled or in parts which is designed or adapted, or is capable of being modified, to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means.
Firearms Act 1999 (SA) s 5 - defined a firearm as a device designed to be carried by hand and to fire shots, bullets or other projectiles by means of burning propellant or by means of compressed air or other compressed gas.
Interpretation of Legislation Act 1984 s 35 - provides for the approach to resolve an ambiguity in such a way that promotes the purpose or object of the underlying statute.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - where it was held that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
R v Sayers [2006] SADC 123 - where a device consisting of three components — a 1.2 metre length of 65 mm common sewerage or gutter down pipe, a plastic chamber of 100mm PVC pipe with a PVC screw and cap with a spark plug inserted in the cap and a cattle prod secured to the 65mm pipe, connected to the spark plug by electrodes — was located by police following their attendance at a residence on 16 January 2006.
Police v Eliassides [2020] VMC 15 - where in taking an ejusdem generis approach to the interpretation of the phrase, the Court found that a gel blaster gun was not a firearm.
Australian Boot Trade Employees Federation v Whybrow & Co [1910] HCA 53; (1910) 11 CLR 311, 341 - provided that where the words are clear by reference to the context and purpose of the legislation, a construction consistent with the ordinary meaning of those words is to be preferred.
R v Basic [2017 ] VSCA 376 - in this case the penalty for a non-prohibited person possessing, carrying or using a Category E longarm is 600 penalty units or 7 years’ imprisonment.
Analysis:
Universally, projectiles were manufactured from non-organic substances such as lead or metal, with the sole intended purpose of being discharged by a firearm to kill, seriously injure or cause damage to the intended target. It is clear from the evidence from the police witness Leading Senior Constable Watson, a ballistics expert, that the PVC device, whilst capable of firing rock or metal, would not discharge the item at any appreciable distance and would do so at much lower velocity. It is not suggested for the purposes of this case that the PVC device was designed to discharge these types of projectiles. It was opined that at a velocity of 130—140 metres per second, a raw potato would be unlikely to cause penetrative injuries. The types of injuries that potentially could result depending on the distance from the target and the weight of the potato, would be bruising, fracture of bones and possible damage to blood vessels like arteries.
It is evident from the definition of a Category E Longarm that the weapons described are of an inherently lethal class, and almost exclusively would if used result in serious injury or death. There is no definition contained in the Act that approaches the characteristics of the PVC device. Leading Senior Constable Watson in his evidence conceded there was no legislative guidance for a device of this type, and so therefore turned to the industry definition of a cannon, which is categorized by reference to the diameter of the nozzle the projectiles were fired from. It is doubtful, given the lethality of the weapons described in Category E and the significant penalties that apply, that homemade PCV devices, which are largely incapable of delivering a lethal outcome, were envisaged as falling within this category of firearms.
Conclusion:
The Court is of the view that PVC devices are not firearms for the purposes of the Act. The charges against the accused are therefore dismissed. It is not necessary to consider the secondary arguments of whether the device does not fit the definition of a firearm by virtue of the argument that it does not ‘store or produce gases for the purposes of discharging a missile’.
