State v Kiambu [2007] PGDC 97; DC613 (19 September 2007)

DC613

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 803 - 804 of 2007

BETWEEN

STATE

AND

NANI KIAMBU
Defendant

Goroka: F MANUE
2007: September 11, 19

CRIMINAL- Particular offences – Possession of high powered firearm – Whether a shot gun is a high powered firearm – Firearm and high powered firearm defined – Possession of ammunition – without a gun dealers licence – whether excused when one possesses a firearms licence.

Held – A firearm is not a high powered firearm - A firearm licenced owner by law has a right to possess ammunitions.

Cases Cited
Nil

References
Sections 2, 7, 27, 65A of Firearms Act

Counsel
For The State - Senior Constable Pipi of Goroka Police Station
For The Defendant - In Person

19 September, 2007

REASONS FOR DECISION

F Manue: The defendant NANI KIAMBU is said to have had two firearms related cases committed on the 17 July 2007 at the Bird of Paradise Hotel premises in Goroka.

2. The first count is that he had in his possession a high powered firearm namely a Baikol factory made shot gun serial No. HN 240241 without having a licence of the said firearm.

3. Thereby contravening to Section 27 (1) (b) of the Firearms Act.

4. The second charge is that he did have in his possession eight (8) x 12 gauge shot gun cartridges without the gun dealers licence. Thereby contravening to Section 65 A of the Firearms Act.

5. Evidences on both counts were heard together so I will deal with them simultaneously.

6. The State called two (2) witnesses who are both members of the Kerowagi Mobile Squad 12 members who assisted in the National Elections at Goroka on the alleged date of offences.

7. Their evidence was that, on the date, they received a broadcast from the Police communication centre that they should keep a look out on two Government owned vehicle from Obura/ Wonenara District Health Centre which are being illegally used during the election.

8. The particulars of both vehicles were given and on that information, they caught up with one of them at Faniufa. The driver of the first vehicle gave the lead to the witnesses, where to catch up with the other vehicle. The witnesses stated that they followed that lead to Bird of Paradise at Goroka when they drove from the back road to the hotel. They saw the defendant at the back yard car park of the hotel, carrying a bag from the described vehicle to another car. The first witness state that he saw what looked like a barrel of gun.

9. They then drove in and approached the defendant.

10. When questioned what he was carrying, the defendant admitted that he was carrying a shot gun.

11. The second witness searched the defendant and found in his jacket 8 x 12 gauge of shot gun cartridges.

12. The gun and the cartridges were tendered as evidence.

13. The witnesses further stated that the defendant did have a current firearm licence which did not state any conditions. Neither the licence nor a copy of it was produced to Court.

14. After those evidence, the State rested its case.

15. I am now required to rule whether the defendant had a case to answer on both counts.

16. Is the evidence sufficient to have the defendant answer to both counts?

17. The first count relates to the defendant possessing a high powered firearm without a licence.

18. Is a Baikol shot gun a high powered firearm under the Act. And is there any difference between a high powered firearm and a firearm.

19. These questions must be answered before I can call on the defendant to answer on the first count.

20. In the second count, I ask the question when a firearm owner possess a licence with the firearm, is he excused to also possess ammunition. This question must also be answered before the defendant can reply.

21. I will initially discuss the questions raised in the first count and move to the second count later. In order to answer that question, I first ask what is a firearm and is a shot gun a high powered firearm.

22. The definitions of both expressions are defined under Section 2 of the Firearms Act. Firearm is defined as:-

2. Interpretation

“firearm” includes –

(a) an air-rifle or other kind of rife or gun from which a shot, bullet or other missile, or irritant liquid, gas or powder or other substance capable of causing bodily harm, can be discharged; and

(b) a rife or gun from which for the time being any such missile or substance cannot be discharged because of –

(i) the absence or defect of one or more of its parts; or

(ii) some obstruction in the rifle or gun,

but which, if the part or parts were replaced, renewed or repaired, or the obstruction removed, would be capable of discharging.

23. whilst “high powered firearm” means any firearm other than –

(a) a pistol; or

(b) a smoother bore shot-gun; or

(c) an air-rifle not being one of a prescribed class of air-rifles

24. The Act clearly gives a clear distinction between the two types of firearms. Under the Act, a high powered firearm is not a firearm and vise versa. They are totally different a paratuses although they may seem to serve one common purpose, which is discharging of some fitted missiles.

25. The defendant was charged under Section 27 of the Firearms Act. It reads:-

27. Person not to own, etc., pistol or high-powered firearm without licence

(1) A person who owns or has in his possession –

(a) a pistol or a part of a pistol unless he is the holder of a pistol licence is respect of that pistol; or

(b) a high-powered firearm or a part of a high-powered firearm unless he is the holder of a high powered firearm licence in respect of that high powered firearm, is guilty of an offence.

Penalty: A fine not exceeding K1, 500.00 or imprisonment for a term not exceeding four months.

25. This section creates an offence where persons who own or posses pistols and parts of pistols or high powered and parts of high powered firearms without their respective licences.

26. It does not create an offence on persons who carry or possess firearms.

27. The appropriate section under which persons may be charged for owning or possessing firearms without licence is Section 7 of the Firearms Act.

28. The evidence is clear in that the defendant had in his possession a Baikol Factory made shot gun. As alluded, a shot gun is not a high powered firearm.

29. There is no supportive evidence of the defendant possessing a high powered firearm.

30. The second count was laid under Section 65 A of the Firearms Act. It reads:-

65A Unauthorized possession of ammunition.

A person who is in possession of ammunition and who is not –

(a) the holder of an ammunition licence; or

(b) the holder of a gun-dealer’s licence; or

(c) the holder of –

(i) a firearm licence; or

(ii) a high-powered firearm licence; or

(iii) a pistol licence,

for a firearm, high-powered firearm or pistol, as the case may be, capable of discharging ammunition of the specific calibre or gauge of that which is in his possession.

Penalty: Imprisonment for a term not less than six months and exceeding 12 months.

31. Again there is evidence that the defendant did have in his possession 8 x 12 gauge cartridges. There is also evidence that the defendant had a firearm licence, which had no purposes attached to it.

32. Section 65A allows licenced persons to possess ammunition if:

(a) the person deals, sells, trades, etc; of ammunitions or

(b) the person deals, sells, trades, etc of guns; or

(c) the person hold a firearm, high powered firearm a pistol, which is capable of discharging ammunition.

33. There is no evidence to suggest that the defendant was not the owner of a firearm. Evidence shows that he was the owner of the firearm, a Baikol shot gun, serial No. HN 240241, and it was by law his right to possess the ammunition, whilst he had the licence to the firearm. There is no evidence that he was dealing with any ammunition and therefore the charge cannot be sustained.

34. I find therefore that there is no evidence to support the two (2) charges and that the defendant should not be unnecessarily called upon to answer the charges.

35. I order that:-

(a) the cases be dismissed and defendant discharged;

(b) the defendants bail of K500.00 be refunded;

(c) the Baikol shot gun, serial No. HN 240241 be returned to the owner (defendant)

(d) the 8 x 12 gauges of cartridges be returned to the owner (defendant)

36. Orders accordingly.

For the State: Senior Constable Pipi
For the Defendant: In Person