Chief Executive Officer of Customs v Powell [2007] QCA 106 [2008] 1 Qd R 109

SUPREME COURT OF QUEENSLAND CITATION: CEO of Customs v Powell [2007] QCA 106 PARTIES: CHIEF EXECUTIVE OFFICER OF CUSTOMS (respondent/applicant/appellant) v POWELL, Timothy Ian Charles (appellant/respondent) FILE NO/S: CA No 210 of 2006 DC No 110 of 2005 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 30 March 2007 DELIVERED AT: Brisbane HEARING DATE: 21 November 2006 JUDGES: McMurdo P, Holmes JA and Chesterman J Judgment of the Court ORDER: 1. Application for leave to appeal granted 2. The appeal is allowed 3. The orders of the District Court made on 28 June 2006 are set aside 4. Instead it is ordered that the appeal to that Court be dismissed CATCHWORDS: TAXES AND DUTIES – CUSTOMS AND EXCISE – JURISDICTION AND PROCEDURE IN CUSTOMS PROSECUTIONS – HOW INSTITUTED AND IN GENERAL – where the respondent was convicted in the Magistrates Court of importing a prohibited import (a breech bolt) contrary to s 233(1)(b) of the Customs Act 1901 (Cth) – where the respondent successfully appealed to the District Court under s 222 Justices Act 1886 (Qld) – whether the learned District Court judge erred in finding because of s 247 Customs Act 1901 (Cth) that the proceedings were wrongly brought by way of complaint and summons under the Justices Act and ought to have been brought by claim under the Uniform Civil Procedure Rules 1999 (Qld). APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the magistrate at first -- 1 of 14 -- 2 instance reserved decision for almost three months – where reasons when delivered orally comprised 15 lines of transcript – whether District Court judge erred in determining magistrates reasons were so seriously inadequate as to amount to an error of law TAXES AND DUTIES – CUSTOMS AND EXCISE – CUSTOMS REGULATIONS AND BY-LAWS – where breach bolt capable of inclusion within two items of Schedule 6 to the Customs (Prohibited Imports) Regulations 1956 (Cth) – where prohibited import only in respect of one item – whether the District Court judge erred in finding that the breech bolt the subject of the charge was not a prohibited import because it fell within both items Acts Interpretation Act 1901 (Cth) s 26(d) Appeal Costs Fund Act 1973 (Qld) Customs Act 1901 (Cth), s 233(1)(b), s 245, s 247, s 248 Customs and Excise Amendment Act 1982 (Cth) Customs (Prohibited Imports) Regulation 1956 (Cth) District Court of Queensland Act 1967 (Qld) Justices Act 1886 (Qld), s 222 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161, considered Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 40, considered Martin v Rowling & Anor [2005] QCA 128; Appeal No 5840 of 2005, 27 April 2005, considered Pettitt v Dunkley [1971] 1 NSWLR 376, considered Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied COUNSEL: K D Dorney QC, with R G Fryberg, for the applicant P J Davis SC for the respondent SOLICITORS: Australian Government Solicitor for the applicant Ryan & Bosscher for the respondent [1] THE COURT: The respondent, Mr Powell, was convicted in December 2004 in the Brisbane Magistrates Court of importing a prohibited import (a breech bolt) contrary to s 233(1)(b) Customs Act 1901 (Cth). A conviction was recorded and he was fined $1,500 and ordered to pay costs. He successfully appealed against his conviction to the District Court under s 222 Justices Act 1886 (Qld). On 28 June 2006 the appeal was allowed, his conviction quashed, the orders of the magistrate set aside and instead a verdict of acquittal was entered. [2] The applicant, the Chief Executive Officer of Customs, applies for leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld). The applicant contends that the judge erred in finding that the proceedings by way of complaint and summons in the Magistrates Court were not correctly brought because of s 247 Customs Act and that, as this is an important procedural issue of substantial -- 2 of 14 -- 3 implication for the conduct of future Customs prosecutions throughout Australia, leave to appeal should be given. The applicant also contends that the judge erred in finding that the breech bolt the subject of the charge was not a prohibited import under the Customs (Prohibited Imports) Regulations 1956 (Cth) and in finding that the reasons of the magistrate were so inadequate as to amount to an error of law. The applicant contends that leave to appeal should be given, the appeal allowed, the orders of the District Court judge set aside and instead the appeal to the District Court should be dismissed. [3] Mr Powell, through his counsel, does not concede that this is an appropriate case in which to give leave to appeal but submits that, if leave is granted because the appeal raises issues of public importance beyond the boundaries of the present case, then leave to appeal should be given only on the basis that the applicant pays his costs of the appeal in any event. The construction of s 247 Customs Act (a) Relevant statutory provisions [4] The Customs Act relevantly provides: “245. Institution of prosecutions (1) Customs prosecutions may be instituted by the CEO in the name of the office of the CEO by action, information or other appropriate proceeding: (a) in the Supreme Court of a State; (b) in the Supreme Court of the Australian Capital Territory; (c) in the Supreme Court of the Northern Territory; (d) in a County Court or District Court of a State; (e) in a Local Court, being a Local Court of full jurisdiction, of South Australia or of the Northern Territory; or (f) in a court of summary jurisdiction of a State, of the Australian Capital Territory or of the Northern Territory. … 247. Prosecutions in accordance with practice rules Every Customs prosecution in a court referred to in subsection 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge. 248. State Court practice Subject to the provisions of this Act the provisions of the law relating to summary proceedings in force in the State or Territory where the proceedings are instituted shall apply to all Customs prosecutions before a Court of summary jurisdiction in a State or Territory, and an appeal shall lie from any conviction order for condemnation or order of dismissal to the Court and in the manner provided by the law of the State or Territory where such conviction or order is made for appeals from convictions or orders of dismissal, and notwithstanding anything to the contrary in the law of the State or Territory, an appeal -- 3 of 14 -- 4 shall lie from an order of dismissal to any court to which and in the manner in which an appeal lies from a conviction.” (emphasis added) [5] The term “Court of summary jurisdiction” is defined in s 26(d) Acts Interpretation Act 1901 (Cth) as meaning: “any justice or justices of the peace or other magistrate of the Commonwealth or part of the Commonwealth, or of a State or part of a State, or of an external Territory, sitting as a court (other than the Federal Magistrates Court) for the making of summary orders or the summary punishment of offences under the law of the Commonwealth or part of the Commonwealth or under the law of the State or external Territory or by virtue of his or their commission or commissions or any Imperial Act; …” [6] The relevant provisions under the Customs Act before its amendment by the Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 (Cth) were: “245. Customs prosecutions may be instituted in the name of the Minister by action information or other appropriate proceeding – (a) In the High Court; or (b) In the Supreme Court of any State; and when the prosecution is for a pecuniary penalty not exceeding One thousand dollars or the excess is abandoned the Customs prosecution may be instituted in the name of the Collector in (c) Any County Court District Court Local Court or Court of summary jurisdiction. … 247. Every Customs prosecution in the High Court or the Supreme Court of any State may be commenced prosecuted and proceeded with in accordance with any rules of practice established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge.” (emphasis added) Section 248 was in terms similar to those in which it presently appears, with the exceptions that an additional phrase appeared: “the provisions of the law relating to summary proceedings before Justices”; and the reference to Territories (as well as States) was not yet included. (b) The District Court judge’s approach [7] Mr Powell contended in his appeal to the District Court that the applicant's proceedings against him in the Brisbane Magistrates Court were wrongly brought by way of complaint and summons under the Justices Act. The terms of s 247 required that as there were no rules of “practice … established by the Court for Crown suits in revenue matters” and the Magistrates Court had given no directions as to the conduct of the proceedings, they ought to have been brought by claim under the Uniform Civil Procedure Rules 1999 (“UCPR”) which lay down “the usual practice and procedure of the [Queensland Magistrates] Court in civil cases”. [8] The learned District Court judge accepted that contention for the following reasons. The prosecution of Mr Powell was one instituted in a court of summary jurisdiction -- 4 of 14 -- 5 of a State so that s 245(1) had application. Section 248 is “[s]ubject to the provisions of this Act”. In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd1 Gummow J said: “The opening words of s 248 subject its provisions to s 247. Section 247 applies in its terms to every Customs prosecution in any court referred to in s 245(1), that is to say, superior courts and courts of summary jurisdiction. Upon its proper construction, s 247 requires every Customs prosecution, whatever the court designated in s 245(1) may be, to be commenced, prosecuted and proceeded with in one of the three modes set out in s 247.” [9] The learned District Court judge then made the following observations. Although Gummow J’s judgment was not the majority judgment, there was nothing in the judgment of Hayne J (with whom Gleeson CJ and McHugh J agreed) or Kirby J which was inconsistent with Gummow J's quoted observations and indeed the thrust of Hayne J’s judgment was entirely consistent with those observations. If there were any conflict between Gummow J's approach and that of Fryberg J in the later Labrador Liquor Wholesale case,2 he preferred Gummow J’s analysis. It was difficult to see, in the light of the amendments made to s 245 and s 247, that s 248 had any work to do. The dichotomy which had once existed, between civil actions in the High and Supreme Courts on the one hand, and summary proceedings on the other, had been removed. The use of the word “may” in s 247 now effectively prescribed the only mechanism by which such a customs prosecution was to be instituted. The word “may” rather than “shall” or “must” appeared to have been used because the institution of a Customs prosecution is always a matter of discretion, a discretion which did not extend to the institution of proceedings by some method other than that specified in the Act. The charge against Mr Powell under s 233(1) was an offence punishable on conviction (s 233(1AA)). Such an offence is punishable by a penalty not exceeding $100,000 (s 233AB(2)). The proceeding was therefore one within s 244 of the Act. Section 245(1) permitted its commencement in a court of summary jurisdiction of a State. Section 247 provided that it was to be commenced “in accordance with the usual practice and procedure of the Court in civil cases”. The proceedings were wrongly brought by way of complaint and summons under the Justices Act and ought to have been brought by claim under the UCPR, which lay down the usual practice and procedure of the Queensland Magistrates Court in civil cases.3 (c) The applicant’s contention [10] The applicant contends that the use of “may” in s 247 does not refer to the discretion to institute a prosecution. That discretion is reflected in the use of “may” in s 245 to which the opening words of s 247 “Every Customs prosecution in a court referred to in subsection 245(1)” plainly refer. If “may” in s 247 refers only to the discretion to prosecute already referred to in s 245, then “may” in s 247 is otiose. In quoting Gummow J’s observations in Labrador Liquor4 his Honour did not include Gummow J’s next sentence: “For present purposes no question arises respecting the 1 (2003) 216 CLR 161, 172, [28]. 2 (2006) 62 ATR 494, 507; [2006] QSC 40, [38]. 3 Powell v Chief Executive Officer of Customs [2006] QDC 184; Appeal BD110/05, 28 June 2006, [11]-[18]. 4 Set out at [8] of these Reasons. -- 5 of 14 -- 6 repository of the power of choice apparently conferred by the term ‘may’ in s 247”. Gummow J was acknowledging the implicit difficulty arising from the use of “may” in s 247. The construction preferred by the primary judge means that s 248 is rendered of no effect. Such a construction is undesirable: Project Blue Sky Inc v Australian Broadcasting Authority.5 Section 248 is designed to allow prosecutions under the Act by way of summary proceedings but as modified by the Customs Act: see for example s 251 (No objection for informality), s 252 (Conviction not to be quashed - for procedural defect or want of form), s 253 (Protection to witnesses), s 254 (Defendant competent witness - and compellable except for indictable offence prosecutions or for an offence directly punishable by imprisonment), and s 255 (Averment of prosecutor sufficient). It follows that if “may” in s 247 is construed as giving a discretion to prosecute and proceed in accordance with one of the three means set out in s 247 but also leaving the procedure in summary cases referred to in s 248 as an alternative option, the words in s 248 “Subject to the provisions of this Act” do not lose their meaning and s 248 is not rendered otiose. [11] The applicant emphasises that s 245 and s 247 were significantly amended by the Customs and Excise Amendment Act 1982 (Cth). The explanatory memorandum stated that the amending Act: “amends section 247 to make it clear that the civil rules of practice and procedure of the Courts referred to in the new section 245 proposed to be inserted by Clause 61, other than courts of summary jurisdiction, will apply to Customs prosecutions.” (emphasis added) The applicant contends that the emphasised words show a legislative intent to continue to allow Customs officers to institute proceedings by the summary procedure outlined in s 248; had the legislature intended the contrary it would have repealed s 248. The applicant has informed this Court that, prior to the decision the subject of this application, it commonly used s 248 to proceed by way of complaint and summons when prosecuting offences against the Customs Act summarily. (d) The respondent’s contentions and the notice of contention [12] Mr Powell concedes that the Brisbane Magistrates Court is “a court of summary jurisdiction” under s 245(1) and that it had jurisdiction to hear Customs prosecutions brought under the Customs Act. [13] Mr Powell relies on the District Court judge’s reasoning. If the applicant were successful in attacking those reasons, he contends the judge’s decision should be affirmed because s 248 only applies the law of summary proceedings to Customs prosecutions in courts of summary jurisdiction where those courts have no civil jurisdiction and no rules of civil practice and procedure. Most States and Territories now have a Local or Magistrates Court with both criminal and civil jurisdictions. That is the position in Queensland: see s 22A Justices Act 1886 (Qld). Those courts will have, in the terms of s 247, a “usual practice and procedure of the Court in civil cases”. Those courts also have in terms of s 248 “provisions of the law relating to summary proceedings”. Some courts of summary jurisdiction, however, like the Magistrates Courts of the Northern Territory6 have only criminal and no civil jurisdiction, with the civil jurisdiction vesting in the separate Local Courts.7 Section 5 (1998) 194 CLR 355, 382, [71], McHugh, Gummow, Kirby and Hayne JJ. 6 See Justices Act (NT), Pt IV, Div 1, s 41A-s 48. 7 See Local Court Act (NT), s 14. -- 6 of 14 -- 7 245(1)(e) refers to the Local Court of the Northern Territory (a court with only civil jurisdiction) while s 245(1)(f) in its broader description of “a court of summary jurisdiction” also encompasses a summary court with only criminal jurisdiction like the Northern Territory Magistrates Court. Section 245(1)(e) and (f) read together with s 247 and s 248 draws a distinction between summary courts having only criminal jurisdiction (such as the Magistrates Court of the Northern territory) and summary courts having civil or civil and criminal jurisdiction. Where the court in which the Customs prosecution is instituted has civil jurisdiction, s 247 must apply; where the Customs prosecution is instituted in a court of summary jurisdiction with only criminal jurisdiction, s 248 applies. The word “may” in s 247 refers to the discretion to prosecute and is not merely permissive. The effect of s 247 and s 248 is that a Customs prosecution must be commenced in one of the three ways set out in s 247 unless it is commenced in a court of summary jurisdiction without any civil jurisdiction. In that case s 248 applies the provisions of the law relating to summary proceedings. Section 248 is not without meaning. (e) Conclusion [14] The construction contended for by the respondent requires the phrase “a Court of summary jurisdiction in a State or Territory” in s 248 to be read as if it said “a Court of summary jurisdiction in a State or Territory which has no usual practice and procedure in civil cases”. The learned District Court judge regarded that as the outcome of what he described as the removal from Part XIV of the dichotomy between civil proceedings in the High Court and the State Supreme Courts on the one hand, and summary proceedings in Courts of summary jurisdiction on the other. But an examination of the way in which the Act has been amended does not support a view that the amendments made were intended dramatically to change the effect of s 248. [15] In 1979, s 245 was amended 8 to remove the reference to the High Court which appeared in the section, as set out earlier in these reasons,9 so that it now permitted customs prosecutions to be instituted in the name of the Minister in the Supreme Court of a State or Territory, or where the prosecution was for a pecuniary penalty not exceeding a stipulated monetary amount or the excess was abandoned, in any County Court, District Court, Local Court or Court of summary jurisdiction of a State or Territory. Correspondingly, the reference to the High Court in s 247 was removed, and the limiting words “of any State” after “Supreme Court” were also deleted. [16] By s 61 of the Customs and Excise Amendment Act 1982 10 s 245 was further amended, into the following form: “245. (1) Customs prosecutions may be instituted in the name of the Comptroller by action, information or other appropriate proceeding – (a) in the Supreme Court of a State; (b) in the Supreme Court of the Australian Capital Territory; (c) in the Supreme Court of the Northern Territory; (d) in a County Court or District Court of a State; or 8 Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 No 19 of 1979. 9 [6] 10 No 81 of 1982. -- 7 of 14 -- 8 (e) in a Local Court, being a Local Court of full jurisdiction, of South Australia or of the Northern Territory; …. (3) Customs prosecutions may be instituted in the name of a Collector by action, information or other appropriate proceeding in a court of summary jurisdiction of a State, of the Australian Capital Territory or of the Northern Territory.” Section 247, previously concerned with Customs prosecutions in a Supreme Court, was now amended to apply to any “court referred to in subsection 245(1)”. [17] In 1989 s 245 was amended again so as to omit sub-s (3) and bring courts of summary jurisdiction within the list of courts in sub-s (1): that is to say, into the form in which it now appears. At the same time the reference to institution of prosecutions “in the name of the Comptroller” was altered to “by the Comptroller”. No amendment was made at that time or since to s 247. That section became applicable to courts of summary jurisdiction purely by virtue of their addition to the list in s 245(1). [18] The Explanatory Memorandum describes the 1989 amendment to s 245 as – “a technical amendment … to make it clear that officers of the Australian Customs Service who have received a delegation from the Comptroller-General of Customs … to exercise the power vested in the Comptroller-General by section 245 … may, as delegates of the Comptroller-General, initiate prosecutions in courts ranging from Magistrate [sic] courts to State Supreme courts. The section also transfers to the Comptroller-General the right of a Collector to commence proceedings in lower courts.” Nothing in the amendments or in the Explanatory Memorandum suggests any intention to change fundamentally the operation of s 248, or to remove the distinction between civil and summary proceedings. More particularly, the re- ordering of s 245 seems a very slender basis for conferring on the term “Court of summary jurisdiction” in s 248 a new and shrunken meaning, one much more restricted than the definition given it in s 26(d) of the Acts Interpretation Act. [19] In sum, there is, in our view, no warrant in the history of legislative amendment for reading “a Court of summary jurisdiction in a State or Territory” in s 248 in the limited way contended for. It may be that this construction requires s 247 to be construed as permissive rather than as mandatory, contrary to the view of Gummow J; but that approach is preferable to one which requires the clear words of s 248 to be disregarded. The result of the 1982 amendment is that a customs prosecution in a Magistrates Court in Queensland may be brought, by virtue of s 247, under the UCPR or in accordance with the court’s directions, or, by virtue of s 248, under the Justices Act. [20] The learned District Court judge erred in finding that the prosecution of Mr Powell under the Customs Act was wrongly brought by complaint and summons. Leave to appeal should be granted, and the appeal must succeed on this ground. -- 8 of 14 -- 9 Inadequacy of the magistrate’s reasons [21] This trial was heard in the Magistrates Court over three days and included detailed reasoned written submissions by both parties urging competing contentions and different results. The magistrate reserved his decision for almost three months. His reasons when delivered orally were recorded in 15 lines of transcript. They are set out in the District Court judge’s reasons.11 [22] The applicant did not actively defend the reasons as adequate in the circumstances but nevertheless submitted that inadequate reasons do not necessarily amount to an error of law. [23] Lengthy reasons, especially in summary trials, are not always necessary or even desirable. But the District Court judge rightly identified this case as a matter of some complexity in which the magistrate made no relevant findings of primary fact and did not analyse or identify the issues. This prosecution was not a simple or clear cut case where reasons were unnecessary in order for an appellate court to understand the magistrate’s reasoning process and to determine whether Mr Powell’s conviction was based on an error of law: Pettitt v Dunkley. 12 The magistrate’s reasons, such as they were, were in this case so seriously inadequate as to amount to an error of law: see Martin v Rowling. 13 The judge’s conclusion in this respect was plainly correct, but because of our views on the applicant’s third contention that is ultimately of no assistance to the respondent. Was the breech bolt a prohibited import? [24] The District Court judge allowed the appeal but did not order a retrial because he found that the applicant had not established that the item the subject of the charge, a bolt, was a prohibited import under reg 4F Customs (Prohibited Imports) Regulations 1956 (“the Regulations”). That regulation relevantly provides: “(1) … the importation of … a firearm part … is prohibited unless: (a) the … firearm part … is an article to which an item in Part 2 of Schedule 6 applies; and (b) the importation is in accordance with the requirements set out in column 3 of the item.” [25] It was common ground that the bolt, a firearm part, was a prohibited import under the Regulations unless Mr Powell established he satisfied the requirements set out in Col 3 of Pt 2 of Sch 6 of the Regulations. The Regulations relevantly provided: “Column 1 Column 2 Column 3 Item Firearm, firearm accessory, Requirements firearm part, firearm magazine, ammunition, component of ammunition or replica … 9 Any of the following firearms For a handgun: (including complete, but (a) the importation must comply disassembled or unassembled, with at least 1 of the following firearms), unless the firearm: (i) the official purposes test; (a) has a fully automatic firing (ii) the specified purposes test; capability; or (iii) the specified person test; 11 Fn 3 above, para [59]. 12 [1971] 1 NSWLR 376. 13 [2005] QCA 128; paras [3] and [80]. -- 9 of 14 -- 10 (b) resembles in appearance a sub- (iv) the Police authorisation test; machine gun, a machine pistol or a (v) the dealer test; handgun that has a fully automatic firing capability. Handgun. Soft air handgun. 10 Firearm part (other than a frame or The importation must comply receiver) of, or for, a firearm to with at least 1 of the following which item 9 applies. tests: (a) the official purposes test; (b) the specified purposes test; (c) the specified person test; (d) the Police authorisation test. … Firearm, not being a firearm to The importation must comply 12 which items 1, 2, 3 6 or 9 applies. with at least 1 of the following tests: (a) the official purposes test; (b) the specified purposes test; If the firearm was manufactured on or after 1 January 1900, the firearm must bear a unique serial number. … Firearm part of, or for, a firearm, The importation must comply 13 not being a firearm to which items with at least 1 of the following 1, 2, 3 6 or 9 applies tests: (a) the official purposes test; (b) the specified purposes test. …” [26] The applicant contended that the bolt was a part of a firearm within item 12 of the Schedule so that the bolt as a part of a firearm was within item 13 and its importation was prohibited in the absence of compliance with the requirements for item 13 in Col 3. [27] The District Court judge reviewed the evidence and concluded that the imported bolt came within both items 10 and 13 of the schedule. His Honour’s reasons were: “[34] … The [appellant’s] case was that this firearm part fell within item 13 because it was a part for a firearm which fell within item 12, namely a MAC10 or a clone thereof, which was a copy of an Ingram submachine gun, and thus resembled an Ingram submachine gun. It was not disputed that a MAC10 was a firearm within item 12. [35] Item 9 applies to: ‘Any of the following firearms … unless the firearm: (a) has a fully automatic firing capability; or (b) resembles in appearance a submachine gun, a machine pistol or a handgun that has a fully automatic firing capability. Handgun Soft air handgun’. [36] … The [respondent’s] case was that the breech bolt was imported as a part for his Cobray semi-automatic handgun, -- 10 of 14 -- 11 which he was licensed to possess under Queensland law. His case was that the Cobray was a handgun within item 9, and that the firearm part, being a part of or for a firearm to which item 9 applied, therefore fell within item 10. At the relevant time he had satisfied … the police authorisation test in respect of the part … [37] That argument appears to be consistent with the evidence of the [appellant’s] expert Mr Davies … [who] conceded … that a Cobray would appear to be ‘… a handgun’. This was subject to the qualification that the Cobray did not have a select lever, and therefore did not have a capacity for automatic fire. The significance of this qualification is not that it would cease to be a handgun if it had a select lever, but that it would cease to be a handgun within item 9 if it had a select lever. The effect of Mr Davies’ evidence … therefore appeared to be that a Cobray without a select lever was within item 9 … . The [appellant’s] case was .. that whether the breech bolt would also fit a Cobray handgun was irrelevant; so long as it was proved that it would fit a firearm within item 12, it fell within item 13. [41] The effect of Mr Davies’ evidence was that the breech bolt was capable of fitting the Cobray handgun. It was therefore a part ‘for’ such a handgun. If there was such a Cobray handgun which did not have a selector switch, it fell within item 9. By inference, such firearms exist. It follows that the breech bolt fell within item 10. …” [28] The District Court judge did not expressly find that the breech bolt was a firearm part of or for a firearm to which item 12 applied, though it is implicit in his Honour’s reasons that he thought that to be the case, and that item 13 applied to it. There was clear and uncontradicted evidence to that effect. The respondent did not dispute the point, or contend that the part was not one to which item 13 applied. [29] Importantly his Honour concluded: “[42] … It appears … that Schedule 6, and in particular Part 2, has been drafted on the assumption that any particular thing can fall only within one particular item. It may well be that in the case of a firearm that will be true, because of the way in which the various items are framed. … there is no reason in principle why something which falls within the definition of a firearm part could not be capable of fitting more than one firearm, and therefore capable of fitting firearms which themselves fall within different items in the Schedule. Relevantly, a particular part may fit, and therefore be a part for, both a firearm which fell within item 9 and a firearm which fell within item 12. Although item 12 is defined so as to exclude any firearm which falls within item 9, item 13 is not defined so as to exclude any part which falls within item 10. Nor does item 10 exclude any part which falls within -- 11 of 14 -- 12 item 13. There is no reason to interpret the schedule so as to read into the item any such exclusion.” [30] This construction of the Regulations was not challenged and it appears to be correct. If the one firearm part does fit (and is therefore a part of or for) firearms of differing kinds which are described in different items in the schedule the part itself will also be one to which more than one of the items apply. Whether or not such instances are rare the evidence in the present case leaves open the possibility, as the District Court judge found, that the breech bolt does fall within both items 10 and 13. [31] It was common ground that Mr Powell did not have the necessary Col 3 compliance for an importation of the bolt, if it was an item 13 firearm part. He contended, as has been seen, that on the evidence the imported bolt was for a firearm within item 9; as a part for an item 9 firearm, the bolt came within item 10; if the importation of the bolt complied with “the Police authorisation test”, it met the Col 3 requirements for item 10; Mr Powell was licensed to have an item 9 firearm in which he intended to use the imported bolt; it followed that he had complied with Col 3 in respect of item 10 and also with the Regulations so that the importation of the bolt was regular. [32] The District Court judge considered that if a particular imported firearm part fell within more than one Schedule item, reg 4F(1) had the effect that as long as the requirements for importation in respect of one of those items were satisfied, the importation was not prohibited. Mr Powell’s Cobray semi-automatic handgun was an item 9 firearm because it did not have a selector switch which could be used to convert such a gun to full automatic firing capability: it did not have “a fully automatic firing capability” and nor did it “resemble in appearance a submachine gun, a machine pistol or a handgun that has a fully automatic firing capability” (cf item 9, Col 2). Because Mr Powell was licensed under Queensland law to possess a Cobray semi-automatic handgun (an item 9 firearm), he met “the Police authorisation test” required for importation of a firearm part (the bolt) under item 10. The applicant established the bolt was also capable of being a firearm part for an item 12 firearm (a handgun with a selector switch so that it has a fully automatic firing capability or one that resembles such a handgun) and so fell within item 13 in respect of which Mr Powell did not meet the Col 3 requirements so that it was a prohibited import. The judge concluded, however, that because the imported bolt fell under item 10 where it complied with the Col 3 requirements (“the Police authorisation test”), the applicant had not established the bolt was a prohibited import under the Regulations. For that reason the judge did not order a retrial but instead ordered a verdict of acquittal. [33] The conclusion that the breech bolt fell within item 10 was disputed by the appellant. A firearm falls within item 9 if it is a handgun which does not have a fully automatic firing capacity or a firearm which does not resemble in appearance a sub-machine gun, a machine pistol or a handgun that has a fully automatic firing capability. To the untutored eye the respondent’s Cobray handgun does appear to resemble a machine pistol. This point of fact was not investigated at the trial and escaped the magistrate’s attention. The judge thought it did not resemble a sub- machine gun or a machine pistol because it did not have a selector switch. We are not convinced this is the correct analysis, but leave to appeal from factual findings is not commonly given and in the end it is not necessary to pursue the matter, for reasons which will become apparent. -- 12 of 14 -- 13 [34] The focus of debate in this court was whether the Cobray had or had not a selector lever which would allow it to fire in automatic or semi-automatic mode. The applicant contends the judge erred first in finding that if Mr Powell’s Cobray firearm did not have a selector switch which could be used to convert it to fully automatic firing capability it fell within item 9 rather than item 12 so that the bolt fell within item 10 rather than item 13. The applicant also contended that the judge erred in holding that if the imported bolt was within both items 10 and 13 then it was not a prohibited import if the requirements of Col 3 of item 10 alone were satisfied. [35] If the second contention is correct then it is unnecessary to determine the first which turns on factual findings. Regulation 4F(1) prohibits the importation of a firearm part unless the item “is an article to which an item in Pt 2 of Sch 6 applies” and the importation is in accordance with the requirements set out in Col 3 of the items. The Acts Interpretation Act s 23(b) provides that in any Commonwealth Act unless the contrary intention appears words in the singular include the plural. It follows that the effect of reg 4F(1) applied to the present factual situation is that the importation of a firearm part (the bolt) is prohibited unless the bolt is an article to which items in the Schedule apply and the importation is in accordance with the requirements set out in Col 3 of those items. [36] The judge was satisfied that Mr Powell’s Cobray firearm was within item 9. The Cobray firearm was not the imported item; the imported item was the bolt which was capable of fitting a firearm listed under both items 9 and 12. The imported bolt was therefore capable of inclusion in both items 10 and 13. The Customs Act and the Regulations are penal in nature but that does not require a conclusion that a firearm part (the bolt) declared to be a prohibited import within two Schedule items ceases to be a prohibited import if it complies with the requirements set out in Col 3 only in respect of one of those items. Such a conclusion is inconsistent with reg 4F(1) when read with s 23(b) Acts Interpretation Act. To conclude otherwise would mean that if Mr Powell imported the bolt it could be used in an item 12 firearm with a fully automatic firing capability when it is the clear intention of the legislature to protect the Australian public from such an importation unless the Col 3 requirements for item 13 are met. In our view the primary judge erred in construing reg 4F(1) otherwise. [37] Despite the magistrate’s failure to address the facts and to give reasons a retrial is unnecessary. The only fact in dispute is whether the Cobray handgun had a selector switch, or otherwise resembled a machine pistol. The determination of that fact would decide whether or not the Cobray fell within item 9. If the respondent succeeded on the point, so that the bolt was a part to which item 10 applied, the facts would remain as the District Court judge found. The critical point is that the part would be one to which item 13 also applied. No-one disputes that fact, and a retrial would not alter it. A retrial could only improve the applicant’s position, not the respondent’s. On the preferred construction of the Regulations the requirements for importing both items had to be satisfied before the importation was authorised. The respondent did not satisfy the requirements for importing an item 13 part. Leave to appeal should also be granted and the appeal allowed on this ground. Conclusion and Orders [38] It follows that there should be leave to appeal and the appeal should be allowed. We are not persuaded that leave to appeal should be subject to the applicant paying -- 13 of 14 -- 14 any of the respondent’s costs of the appeal in which the respondent has been largely unsuccessful. Notwithstanding the failure of the magistrate to explain why he convicted the respondent the order in fact made was correct. The prosecution was properly commenced and the facts established that the respondent did not have authority to import the breech bolt which was a firearm part to which item 13 of the Regulations applied. It does not matter, as we have explained, that he did have authority to import a firearm part to which item 10 applied. The applicant did not ask for costs in the event he succeeded. The respondent, if so advised, can apply for a certificate under the Appeal Costs Fund Act 1973 (Qld) (cf Practice Direction No 1 of 2005, para 37). Orders 1. Application for leave to appeal granted. 2. The appeal is allowed. 3. The orders of the District Court made on 28 June 2006 are set aside. 4. Instead it is ordered that the appeal to that court be dismissed. -- 14 of 14 --