LOOSE CANNON- CASE REVIEW ON SEIZURE AND FORFEITURE OF FIREARMS – WHETHER A TELESCOPIC SIGHT FORMS PART OF A FIREARM
NSW Commissioner of Police v Eykamp & Anor (2017) NSWSC 1723 dealt with the power if the Court to order the destruction of a firearm under s80(1) and 80(2) of the Firearms Act 1996 (‘FA’) or s219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’) and also whether a telescopic sight that had been installed to the firearm formed part of the firearm.
The first Defendant had firearms valued at $100,000 or more, and he was charged with sixty four offences related to breaches of the Act, involving some offences of failure to adequately store and possession of some unregistered arms. He was subsequently convicted of forty eight of these charges.
The case turned on the interpretation of s80(1) & s80(2) of the FA, which I paraphrase as follows:
S80(1) Allows a Local Court of Children’s Court, on application by a police officer or by any person claiming to be the owner of a firearm surrendered or seized, to order that the firearm be forfeited to the Crown, returned to the person claiming to be the owner, or otherwise dealt with as the Court sees fit.
S80(2) of the Act provides that if a person is found guilty of an offence under Part 4 of the FA, the firearm is taken to have been forfeited to the Crown.
Here, the seized firearms were not forfeited following the first defendant’s convictions, rather the Magistrate ordered that all but three could be sold to a third party and be given to the first Defendant’s son.
The Police Commissioner appealed, seeking to quash this order.
There were three questions for determination:
Q1: Whether the Magistrate had jurisdiction under s80(1) to order that a forfeited firearm be returned to the defendant’s son for sale.
Q2: Whether s219 of the LEPRA was applicable.
Q3: Whether ‘firearm’ includes attachments affixed to it such as telescopic sights.
Q1: Whether the Magistrate had jurisdiction under s80(1) to order that a forfeited firearm be returned to the defendant’s son for sale.
A1: Forfeited is not defined under the Act.
The Court sited Green J in Cole v Esanda Ltd (1982) Tas Rep 130 at 135 ‘A Court must not allow its natural disinclination to adopt construction of legislation which could allow an innocent owner losing his property’.
The Court found that s80(1) vests the Court with general discretion to make orders dealing with the disposition of certain seized firearms, but that this discretion is subject to s80(2).
The discretion to deal with a forfeited firearm under s80(2) rests with the Crown- the Minister (or delegate) administering the Act has the discretion to destroy, retain them or sell them.
The Court noted: It would be inconsistent with the spirit of s80(2) for the Minister in exercising power under this section to return them to the owner.
Q2: Whether s219 of the LEPRA was applicable.
A2: LEPRAA deals only with Firearms seized under LEPRAA, for example, under a search warrant, and not those seized under the FA. It is therefore not relevant here.
The Court noted that whether a matter is dealt with under s219 of LEPRAA or s80(2) of the FA can lead to very different outcomes, with a Court having no capacity to deal with disposal of the firearms under the latter.
Q3: Whether ‘firearm’ includes attachments affixed to it such as telescopic sights.
A3: Implicit in the Local Court decision was that a telescopic sight did not form part of a firearm for the purposes of s42(1) or s80(2). This was not correct.
S42(1) imposes an obligation to seize a firearm and ammunition if it is not being kept in accordance with Part 4 of the Act. S80(2) provides that following a finding of guilt, it is taken to be forfeited.
The Court was satisfied that a firearm within the meaning of s80 includes a firearm in the state that it was in when seized by Police, otherwise Police would have no power to seize firearms in the state in which they were found, and would have to strip them back to the state they were in at the point of manufacture.
Thus, the firearm forfeited under s80(2) is the firearm in the condition in which it was seized by Police, including telescopic sights.
The Crown then has a broad discretion as to what to do with forfeited items, including selling, retaining or destroying any part of them.
In exercising this discretion, the Police should exercise it in a manner consistent with the objects and principles of the Act.
Readers will note that the objects and principles of the FA are set out in s3 of the Act, and they provide as follows:
3 (1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
(2) The objects of this Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
Adams J noted that in the Second Reading Speech, the Hon J.W.Shaw, Attorney General stated that ‘the legislation puts the public right of safety before the privilege of gun ownership’.
He also referred to Resolution 8 of the resolutions passed by the Australian Police Ministers Council on 10 May 1996 following the Port Arthur Massacre, and in particular resolution 8 of the Special Firearms Meeting, which provided:
‘Legislation should have the effect of making failure to store firearms in the manner required an offence as well as a matter that would lead to the cancellation of the licence and confiscation of the firearms’.
While as a matter of law, I cannot fault the Court’s reasoning, the reality is that the exercise of this discretion shall be patchy at best, with some Police Officers realistically appreciating that they are causing unjust hardship and releasing telescopic sights to their owners in order to mitigate this, while others, who in the writers experience seem to view all firearms owners as criminals in waiting, or at best as a potential occupational health and safety risk for Police, will simply not care, or else take perverse delight in the un-necessary suffering caused.
Unless guidelines are put into place governing the return of telescopic sights and other installed accessories under these circumstances it seems to the writer that this matter shall breed considerable injustice particularly seeing as the value of the forfeited items could exceed the maximum penalty that a Local Court could impose as a fine.
It would appear that Police may be resistant to guidelines if they may be held responsible for damage to a sight while it is being removed, and also to the need to apply resources to an activity that can take some time. The alternative here would be to allow the former owner to attend the Police station and remove the telescopic sight.
I note that for some years I carried a gunsmiths screw driver kit in my car for precisely this purpose.
I note in passing that I have for some time been moving toward Picatinny rails and quick release mounts as a means of securing telescopic sights to rifles, as a result of the ease with which one is able to swop telescopic sights to accommodate different conditions and circumstances. If one has notice of Police intended seizure, this could prove to be of considerable assistance.
It would appear that this may well be the safest approach in dealing with the above, so that if one has notice of anticipated seizure, firearms could be rapidly stripped of expensive telescopic sights.
Join the fight.
Simon Munslow
National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
E: solicitor@bigpond.com
W: firearmslawyer.com.au
Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.
He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.
This article is written for general information only and does not constitute advice.
He can assist you with:
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