Written by Andrew Fraser
Published under Offences
August 12, 2016
When is a gun not a gun?
The ACT Court of Appeal recently wrestled with this question in a judgment that has meant the Office of the Director of Public Prosecutions has now discontinued a number of firearms cases against Canberrans.
A Full Appeal Court (Refshauge, Burns and Wigney JJ) upheld a judgement of Justice Penfold, who had found in the Supreme Court that a replica or imitation firearm was not “a firearm” – despite the Firearms Act spelling out that “an imitation or replica of any firearm” was “a prohibited firearm”.
The Court said that it was clear that the ACT Parliament had intended to outlaw imitations and replicas.
But before anything could be “a prohibited firearm”, first it had to be “a firearm”.
“A firearm”, the legislation said, was capable of firing a projectile.
A replica could not fire a projectile.
A replica could not be a firearm.
Therefore, a replica could not be a prohibited firearm, notwithstanding that the legislation, elsewhere, directly said it was.
The resolution of the Catch 22 lies not with the judges, but with the politicians.
The Court of Appeal made that abundantly clear:
“The particular constructional conundrum that needs to be resolved appears to be the product of a drafting error or oversight on the part of the legislature …
“The question raised by this apparent disjunct between the text of the provision and the apparent legislative intention is this: how far can the court go, in construing the definition of prohibited firearm …to assist the legislation to hit its target and not misfire?”
The court decided it could go no further.
“To do so would be to do violence to the words in fact used, and, more significantly, would result in an unwarranted interference in the unity and harmonious goals of the statutory scheme in the Firearms Act.
“If the legislature wishes to hit this particular target, it will have to amend the legislation.”
Even without judgments like the one above from the Court of Appeal, being charged with a firearms offence can be a complicated matter. There are a variety of charges, and defences, and you should consult a specialist criminal lawyer.
The team at Armstrong Legal deal only in criminal and traffic law and can assist with any firearms matter – either inside or outside the ACT.