Chalker v Tonks [2006] NTSC 86

PARTIES: CHALKER, Jamie Andrew

v

TONKS, Phillip

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 28 of 2006 (20607623)

DELIVERED: 9 NOVEMBER 2006

HEARING DATES: 9 OCTOBER 2006

JUDGMENT OF: MARTIN (BR) CJ

CATCHWORDS:

MAGISTRATES
Jurisdiction and procedure generally – special case reserved – s 360.2 Criminal Code (Cth) – Cross Border Firearms Trafficking – physical and fault elements – absolute liability – limit of the constitutional power – meaning of “in the course of trade or commerce among the States between Territories or between a Territory and a State” – whether conduct constituting offence against Firearms Act (NT) possessed necessary interstate characteristic.

Justices Act (NT), s 162; Firearms Act (NT), s 63; Criminal Code (Cth), s 2.1, s 3, s 4, s 6 and s 360; Australian Constitution, s 51(i) and s 92; Acts Interpretation Act (Cth) s 15AA.

W & A McArthur Ltd v Queensland (1920) 28 CLR 530; Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29; The Australian Coarse Grains Pool Proprietary Limited v The Barley Marketing Board (1985) 157 CLR 605; Nationwide News Proprietary Limited v Wills (1992) 177 CLR 1; HC Sleigh Limited v South Australia (1977) 136 CLR 475; Smith v Capewell (1979) 142 CLR 509, considered.

REPRESENTATION:

Counsel:
Police: W Abraham QC and A Cooper
Defendant: I Rowbottam

Solicitors:
Police: Commonwealth Director of Public Prosecutions
Defendant: Withnalls

Judgment category classification: A
Judgment ID Number: Mar0625
Number of pages: 40

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Chalker v Tonks [2006] NTSC 86
No. 28 of 2006 (20607623)

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF a Special Case Stated by the Court of Summary Jurisdiction

BETWEEN:

JAMIE ANDREW CHALKER
Police

AND:

PHILLIP TONKS
Defendant

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 9 November 2006)

Introduction

[1] This is a reservation by a Magistrate of questions of law pursuant to s 162 of the Justices Act.

[2] The defendant is charged with 11 offences of engaging in conduct that constitutes an offence against s 63(1) of the Firearms Act (NT) contrary to s 360.2 of the Criminal Code (Cth) (“the Code”). The questions of law reserved are as follows:

“VIII The two questions of law upon which this case is stated for the opinion of the Supreme Court is whether:

1. Notwithstanding that the firearms the subject of each charge never physically left the Northern Territory, the physical element that the Defendant was engaged in ‘the course of trade or commence between the Northern Territory and South Australia’ is satisfied/established by the combination of any or each of the following admitted facts:

(i) that the cash used to purchase the firearms did physically cross the border from South Australia to the Northern Territory to effect the transaction; and

(ii) that the purchaser of the firearms in each instance did physically cross the border from South Australia or another State to the Northern Territory for the sole purpose of effecting the transaction; and

(iii) a term of the transaction or contractual arrangement between the parties and known by the Defendant was that the purchaser in each instance was to travel from South Australia to the Northern Territory to effect the transaction; and

(iv) a term of the transaction or contractual arrangement between the parties and known by the Defendant was that the firearms in each instance were to be taken across the border from the Northern Territory to South Australia by the purchaser upon completion of the transaction.

2. The second question arises from section 360.2 of the Criminal Code (Cth) which provides:

Section 360.2 Criminal Code (Cth) – Cross-border offence of disposal or acquisition of a firearm

(1) A person is guilty of an offence if:

(a) in the course of trade or commerce among the States, between Territories or between a Territory and a State, the person engages in conduct that constitutes an offence against a firearm law; and

(b) the primary element of the offence is:

(i) the disposal of a firearm by the person; or

(ii) the acquisition of a firearm by the person.

Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both

And section 360.2(2) provides that:

(2) Absolute liability applies to the paragraph (1)(a) element of the offence.

Does this mean that a person who disposes of, or acquires a firearm contrary to a firearm law, and ‘in the course of trade or commerce among the States, between Territories or between a Territory and a State’ (whatever that is determined to mean) is guilty of an offence regardless of what the person knows or believes about the interstate aspects of the transaction concerned?”

Facts

[3] Counts 1 - 3 on the Information containing the charges against the defendant have been withdrawn. Each of the other counts is in identical terms. Count 4 is as follows:

“(4) on or about 7 December 2003 at Berrimah in the Northern Territory of Australia, in the course of trade or commerce between the Northern Territory and South Australia, the Defendant did engage in conduct that constitutes an offence against a firearm law, namely section 63(1) of the Firearms Act (Northern Territory), and the primary element of the said offence is the disposal of a firearm by the said Defendant.

Contrary to section 360.2 of the Criminal Code (Cth)

Particulars of the firearm:

One .22 calibre, model 10, Ruger semi-automatic rifle, with the serial number ground off.”

[4] The facts upon which the questions have been reserved are agreed as follows:

“V. For the purpose of this Special Case Stated the following facts were admitted by the parties in respect of each charge:

1. the Defendant voluntarily and intentionally agreed to participate in a transaction or contractual arrangement to sell firearms to a purchaser, the terms of which were as follows:

(i) the Defendant was a resident of the Northern Territory and was physically present in the Northern Territory;

(ii) the purchaser was a resident of a State or Territory of Australia not being the Northern Territory;

(iii) the purchaser would make arrangements to be physically present in the Northern Territory to effect the transaction or contractual arrangement;

(iv) the Defendant knew or believed that the purchaser would travel from South Australia for the purpose of effecting the transaction or contractual arrangement; and

(v) the Defendant knew or believed that after the transaction or contractual arrangement was effected the purchaser would return to South Australia by vehicle with the particularised firearms.

2. the ‘purchaser’ in relation to each transaction or contractual arrangement was:

(i) in relation to charge 4 – a person known as “Paul” who was in fact DCO1604 (‘DCO’ means ‘Deep Cover Operative’)

(ii) in relation to charges 5-6 – a person known as “Paul” who was in fact DCO1604

(iii) in relation to charges 7-14 – a person known as “Lisa” who was in fact DCO1750

3. on each occasion that the Defendant met the purchaser to effect the transaction or contractual arrangement:

(i) the Defendant was not the holder of a firearms dealer licence as required by s 63(1) Firearms Act (NT)

(ii) the purchaser was not the holder of a firearms dealer licence as required by s 63(1)(a) Firearms Act (NT)

(iii) the transaction or contractual arrangement was not arranged through the holder of a firearms dealer licence as required by s 63(1)(b)(i) Firearms Act (NT)

(iv) a member of the police force was not present to witness the transaction in accordance with s 63(1)(b)(ii) Firearms Act (NT)

4. on each occasion that the Defendant met the purchaser to effect the transaction or contractual arrangement the Defendant had physical possession of the particularised firearm

5. on each occasion that the Defendant met the purchaser to effect the transaction or contractual arrangement the Defendant voluntarily and intentionally physically handed over the particularised firearm to the purchaser

6. on each occasion that the Defendant met the purchaser to effect the transaction or contractual arrangement the purchaser physically handed an amount of cash to the Defendant in exchange for the particularised firearm:

(i) in relation to charge 4 – an amount of $3000

(ii) in relation to charges 5-6 – an amount of $17500 (total for all items including particularised firearms)

(iii) in relation to charges 7-14 – an amount of $24300 (total for all items including particularised firearms)

7. as a result of each transaction, physical control and ownership of the particularised firearm was transferred from the Defendant to the purchaser

8. following each transaction the particularised firearm did not at any time leave the jurisdiction of the Northern Territory

9. in relation to each transaction or contractual arrangement the purchaser had travelled from the State or Territory of Australia in which they ordinarily resided to the Northern Territory for the sole purpose of effecting the agreed transaction or contractual arrangement with the Defendant.

10. in relation to each transaction or contractual arrangement the cash used in exchange for the particularised firearms had been physically moved by an officer from the Australian Crime Commission office in Adelaide, South Australia to the Northern Territory for the purpose of effecting the agreed transaction or contractual arrangement with the Defendant.”

Competing contentions

[5] For the purposes of the reservation, the issues were identified as follows:

“VI. In respect of the first question of law stated at paragraph VIII, on the part of the Informant it was contended that the agreed facts are sufficient to establish the physical element that the Defendant engaged in conduct that was in the course of trade or commerce between the Northern Territory and South Australia. It is conceded that the firearms that are the subject of each charge did not physically cross the border from the Northern Territory into South Australia as anticipated by the parties to the transaction or contractual arrangement. It was discussed by and within the knowledge of the parties to the transaction that the purchaser was specifically travelling to the Northern Territory from South Australia to effect the transaction and was then to return to South Australia with the firearms purchased from the Defendant. Further there was physical movement of firstly, the cash to be used in each transaction from South Australia to the Northern Territory and secondly, the purchaser in each instance, from some state other than South Australia to the Northern Territory. It is submitted that these factors in combination are sufficient to establish that the Defendant engaged in conduct that can be characterised as being “in the course of trade or commerce between the Northern Territory and South Australia” such as to satisfy that physical element of the offence.

In respect of the second question of law stated at paragraph VIII, on behalf of the Informant it was contended that section 360.2(2) Criminal Code specifies that absolute liability should and does apply to the element set out in section 360.2(1)(a) Criminal Code. Further, there is only one physical element set out in that provision which is that the Defendant engaged in conduct (or a course of conduct) in the context of firstly, in the course of trade and commerce between the States and secondly, that the conduct constituted an offence against section 63(1) Firearms Act (NT).
VII. In relation to Question 1, on behalf of the Defendant it was argued that the firearms never left the Northern Territory and that the purchasers were not, in fact (contrary to their assertions to the Defendant), from South Australia, therefore there was no actual interstate ‘trade or commerce’ between the Northern Territory and South Australia. In this regard, section 360.2(2) Criminal Code (Cth) would not assist the Crown to show a mistaken belief that the Defendant was actually participating in interstate trade or commerce.

In relation to Question 2, it was contended that the conduct of ‘interstate trade or commerce’ requires a requisite mental intention to make agreement, or to do a physical act, or to give effect to those arrangements. Section 360.2(2) of the Criminal Code (Cth) cannot exclude that intent.”

Question 2

[6] It is convenient first to answer Question 2. Question 1 relates to the meaning of “in the course of trade or commerce among the States, between Territories or between a Territory and a State” (“interstate trade or commerce”) for the purposes of s 360.2 of the Code and necessarily requires an examination of the elements of the offence. This involves consideration of the question of absolute liability and it is convenient to resolve that question before considering the meaning of interstate trade or commerce.

[7] The Code was enacted in 1995 and has progressively been applied to Commonwealth offences since 1997. Chapter 2 is concerned with the general principles of criminal responsibility and the purpose of Chapter 2 is identified in s 2.1 as to “codify the general principles of criminal responsibility under laws of the Commonwealth”. Section 2.1 specifically states that Chapter 2 “contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.”

[8] Section 3.1 provides that an offence consists of “physical elements and fault elements”, but s 3.1(2) and (3) qualify that definition by permitting the law creating the offence to specify different fault elements for different physical elements or to direct that there is no fault element for one or more physical elements. The concepts of physical and fault elements are obviously replacements for the common law concepts of actus reus and mens rea.

[9] Section 3.2 of the Code provides that in order to establish guilt the following must be proved:

“(a) The existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

(b) In respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.”

[10] Physical elements are defined in s 4.1 as “conduct” or “a result of conduct” or “a circumstance in which conduct, or a result of conduct, occurs”. Conduct is defined as meaning “an act, an omission to perform an act or a state of affairs”.

[11] A fault element for a physical element may comprise intention, knowledge, recklessness or negligence. Those terms are defined in Division 5. Section 5.1(2) specifically provides that Division 5 does not prevent a law creating a particular offence from specifying other fault elements for a physical element of that offence. Section 5.6 directs that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. If the law creating the offence does not specify a fault element for a physical element that consist of a circumstance or a result, recklessness is the fault element for that physical element.

[12] The sections to which I have referred have the consequence that in the absence of specific direction to the contrary, a fault element will always be part of an offence. Specific provision is made in Division 6 for the creation of offences that do not involve fault elements, namely, offences of strict liability and absolute liability:

“Division 6 – Cases where fault elements are not required

6.1 Strict liability

(1) If a law that creates an offence provides that the offence is an offence of strict liability:

(a) there are no fault elements for any of the physical elements of the offence; and

(b) the defence of mistake of fact under section 9.2 is available.

(2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is available to that physical element.

(3) The existence of strict liability does not make any other defence unavailable.

6.2 Absolute liability

(1) If a law that creates an offence provides that the offence is an offence of absolute liability:

(a) there are no fault elements for any of the physical elements of the offence; and

(b) the defence of mistake of fact under section 9.2 is unavailable.

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.

(3) The existence of absolute liability does not make any other defence unavailable.

[13] All offences created by the Code must be considered in the context of the provisions to which I have referred. The Legislature has specifically created different forms of culpability ranging from intention to negligence and offences of strict and absolute liability involving no fault element for any of the physical elements of such offences.

[14] Section 360.2 of the Code involves absolute liability and is found in chapter 9 which is headed “Dangers to the community”. Part 9.4 is headed “Dangerous weapons” and Division 360, which includes s 360.2, is in the following terms:

“Division 360 — Cross border firearms trafficking

360.1 Disposal and acquisition of a firearm

(1) For the purposes of this Division, and without limitation, a person disposes of a firearm if any of the following applies:

(a) the person sells the firearm (whether or not the person to whom the firearm is sold also acquires physical control of the firearm);

(b) the person hires, leases or rents the firearm to another person;

(c) the person passes physical control of the firearm to another person (whether or not the person to whom physical control is passed also acquires ownership of the firearm).

(2) For the purposes of this Division, and without limitation, a person acquires a firearm if any of the following applies:

(a) the person purchases the firearm (whether or not the person also acquires physical control of the firearm);

(b) the person hires, leases or rents the firearm from another person;

(c) the person obtains physical control of the firearm (whether or not the person also acquires ownership of the firearm).

360.2 Cross border offence of disposal or acquisition of a firearm

(1) A person is guilty of an offence if:

(a) in the course of trade or commerce among the States, between Territories or between a Territory and a State, the person engages in conduct that constitutes an offence against a firearm law; and

(b) the primary element of the offence is:

(i) the disposal of a firearm by the person; or

(ii) the acquisition of a firearm by the person.

Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.

(2) Absolute liability applies to the paragraph (1)(a) element of the offence.

(3) In this section:

firearm means a firearm within the meaning of the firearm law concerned.

firearm law means a law of a State or Territory which is prescribed by the regulations for the purposes of this Division.

360.3 Taking or sending a firearm across borders

(1) A person is guilty of an offence if:

(a) in the course of trade or commerce among the States, between Territories or between a Territory and a State, the person takes or sends a firearm from one State or Territory to another State or Territory; and

(b) the person does so intending that the firearm will be disposed of in the other State or Territory (whether by the person or another); and

(c) the person knows that, or is reckless as to whether:

(i) the disposal of the firearm; or

(ii) any acquisition of the firearm that results from the disposal;
would happen in circumstances that would constitute an offence against the firearm law of that other State or Territory.

Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.

(2) In this section:

firearm means a firearm within the meaning of the firearm law mentioned in paragraph (1)(c).

firearm law means a law of a State or Territory which is prescribed by the regulations for the purposes of this Division.

360.4 Concurrent operation intended

This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory.”

[15] An offence against s 360.1 of the Code is comprised of two physical elements. First, that the person engages in conduct that constitutes an offence against a firearm law of which disposal or acquisition of a firearm is a primary element. A firearm law for these purposes is a law of a State or Territory which is prescribed by the regulations for the purposes of Division 360. It is common ground that the Firearms Act (NT) is a prescribed “firearm law” for the purposes of s 360.2: Criminal Code Regulations – reg 5, sch 2, Item A. It is also common ground that a primary element of an offence against s 63(1) of the Firearms Act is disposal of a firearm.

[16] In order to establish an offence against s 360.2 of the Code, first the Crown must prove that the defendant engaged in conduct that constituted an offence against s 63(1) of the Firearms Act (NT). The submissions of both counsel proceeded on the basis that on the facts of the case reserved, the defendant engaged in conduct that constituted an offence against s 63 (1).

[17] The second physical element of an offence against s 360.1 is that the conduct constituting an offence against a relevant firearm law occurred in the course of interstate trade or commerce. Relating this second physical element to the definition of physical elements in s 4.1 of the Code, the second physical element is a “circumstance in which conduct … occurs”.

[18] As to whether an offence contrary to s 360.1 involves a fault element in respect of either or both of the physical elements, s 360.2(2) specifically provides that absolute liability applies “to the paragraph (1)(a) element of the offence”. In other words, absolute liability applies to both physical elements. There are no fault elements applying to the two physical elements and the defence of mistake is not available in relation to either of those physical elements.

[19] The absence of a fault element for the purposes of s 360.2 does not affect the elements of the offence against the relevant firearm law. If the relevant firearm law requires proof of a particular mental element, it will be necessary for the Crown to prove that mental element. However, once the Crown has proved that the conduct constitutes an offence against the relevant firearm law, the physical element of conduct is established and no further mental or fault element need be proved.

[20] Similarly, there is no fault element attached to the second physical element that the conduct constituting the firearm offence occurred in the course of interstate trade or commerce. If the conduct amounting to a relevant firearm offence in fact occurred in the course of interstate trade or commerce, the offence is complete even if the offender has no knowledge that the conduct is occurring in the course of such trade or commerce. While this may appear to be a harsh result because the offence carries a maximum penalty of 10 years imprisonment and can be committed without any knowledge of the interstate aspects of the offending conduct, this result necessarily follows from the explicit terms of the legislation.

[21] The answer to Question 2 is “yes”.

Question 1

[22] Question 1 concerns the proper construction of the words “in the course of trade or commerce among the States, between Territories or between a Territory and a State” for the purposes of s 360.2 of the Code. In particular, I am asked whether the following facts are sufficient to prove the second physical element, namely, that the conduct constituting an offence contrary to s 63(1) of the Firearms Act occurred in the course of interstate trade or commerce:

• Negotiations for the sale of a firearm occurred at a time when the defendant was physically in the Northern Territory and the purchaser was in another State or Territory.

• Agreement was reached that the purchaser would travel from another State or Territory for the purpose of being physically present in the Northern Territory to take delivery of the firearm.

• The purchaser travelled from another State or Territory in which they ordinarily resided for the sole purpose of effecting the purchase of the firearm and taking delivery of it.

• The cash used for the purchase of the firearm was physically moved by an officer of the Australian Crime Commission Office in South Australia to the Northern Territory for the sole purpose of effecting the purchase of the weapon.

• The defendant and the purchaser met in the Northern Territory. The defendant physically handed the firearm to the purchaser and the purchaser physically handed cash for the purchase to the defendant.

• The defendant believed that the purchaser would travel from South Australia for the purpose of effecting the sale.

• The defendant believed that after the sale was completed the purchaser would return to South Australia with the firearm purchased from the defendant.

• It was a term of the agreement between the defendant and purchaser that upon completion of the sale the purchaser would take the firearm across the border to South Australia.

• The firearm did not leave the Northern Territory.

• The purchaser was an undercover operative.

[23] The submission of the Commonwealth Director of Public Prosecutions was deceptively simple. Relying upon a very small selection of authorities concerned with s 92 of the Constitution, the written submissions of the Director contended that trade or commerce is a wide concept and continued:

“The negotiating of a contract between a buyer and seller between states, the transferring of money across a state border for the purchase, the crossing of the border to effect the purchase are all acts of interstate trade and commerce.”

[24] The Director also submitted:

“Further, the fact that a term of the transactional contractual agreement between the defendant and the purchaser was that in each instance these acts would occur and the firearms would be taken by the purchaser across the border upon completion of the transaction further confirms this.”

[25] In brief written submissions in response, and relying upon a single High Court authority concerned with s 92, counsel for the respondent put the following:

“In this instance though, there was never to be any transportation. The weapons have always remained in the Territory. It was not ever to be interstate ‘trade or commerce’ where the weapons would find their way ‘over the frontier’, but simply the authorities purchasing weapons in controlled buys for the purpose of prosecution with the weapons always destined to remain in the Territory. That Police officers travelled to the Territory from outside the Territory, and that an unknown person brought the money from Adelaide is not sufficient.

The defendant concedes therefore that, in a ‘normal’ commercial transaction, a term of the contract specifying that the subject of the contract would ultimately be transported interstate, would be sufficient to enliven the s 92 power of the Commonwealth. However the informant is not able to point to a sham transaction (that would never have resulted in the goods being transported interstate) to enliven the interstate nexus. It is either ‘interstate trade and commerce’ or it is not. If not, then the section 92 nexus does not exist.”

[26] It is apparent from the passages in the written submissions to which I have referred, that there is a difference of view between the parties as to whether it was a term or condition of the sale that after purchase the firearm would be taken across a border. During oral submissions, counsel for the Director agreed there was no evidence capable of supporting such a finding, but maintained that there was no evidence to the contrary.

[27] I have read the transcript of the proceedings before the Magistrate. There is nothing in the material before the Magistrate to establish that it was a term of the contractual arrangements that, after purchase, the firearm would be taken across a border.

[28] While there is no direct evidence concerning the purchaser’s intention with respect to movement of the firearm after purchase, the totality of the circumstances suggests that the purchaser did not contemplate movement of any of the firearms across a border. The offences charged concern a number of firearms purchased in three transactions. An undercover operative known as “Paul” purchased three firearms in two transactions occurring on 7 December 2003 and 7 February 2004. In one transaction occurring on 13 February 2005 an undercover operative known as “Lisa” purchased eight firearms. Given that the purchasers were undercover operatives and that none of the firearms were taken across the border, and bearing in mind that prosecution of the defendant would occur in the Northern Territory and the firearms might be needed as exhibits, it is a reasonable inference that the officers who made the purchases intended to leave the firearms in the Northern Territory. On the material before me and the Magistrate, there is no apparent reason why either purchaser would have intended to take any of the firearms across a border.

[29] Notwithstanding that par VIII.1.(iv) of the case reserved asks that I assume that “a term of the transaction or contractual arrangement” was that the firearm in each instance would be taken across the border from the Northern Territory to South Australia by the purchaser upon completion of the transaction, given the concession by the Crown and my view of the material before the Magistrate, in the reasons that follow I first consider the answer to question 1 on the basis that it was not a term of the contractual arrangements between the defendant and purchasers that, after purchase, the weapons would be taken across a border.

[30] The meaning of interstate trade and commerce for the purposes of s 360.2 of the Code is to be determined according to the ordinary and natural meaning of the words in the context in which they appear and bearing in mind the purposes of the Code. Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that a construction that would promote the purpose or object underlying the Act under consideration shall be preferred to a construction that would not promote that purpose or object. It must not be overlooked, however, that the ambit of the concept of interstate trade and commerce for the purposes of all Commonwealth legislation is circumscribed by the limit of the Constitutional power of the Commonwealth to make laws with respect to trade and commerce among the States: s 51(i).

[31] The evident purpose of the provisions under consideration is to prevent trafficking in firearms across interstate borders. This purpose was confirmed by the Minister for Children and Youth Affairs in his Second Reading Speech upon the introduction of the Bill containing Pt 9.4 of the Code:

“The bill also proposes to deal with the issue of interstate trafficking of firearms. The trafficking of firearms to supply the black market is an increasing problem facing the Australian community. …

The cross-border trade in illicit firearms is specifically targeted in the new firearm offences contained in this bill. These offences will work with the existing State and Territory scheme to make it unlawful, in the course of trade and commerce between the states and territories, to dispose of or acquire a firearm, whether the disposal or acquisition of that firearm is an offence under a state or territory law. The bill will also make it unlawful to take or send a firearm from one state or territory to another, intending that the firearm will be disposed of in the other state or territory in circumstances that would constitute an offence against the law of that state or territory.” (my emphasis)

[32] There are significant differences between the two offences created in Div 360 as part of the scheme to address the “cross-border trade in illicit firearms”. The founding point of the Constitutional power common to both offences is that the prohibited conduct occur in the course of interstate trade and commerce. Section 360.2 is limited to circumstances in which the conduct constitutes an offence against a State or Territory firearm law, but an offence can be committed against s 360.3 regardless of whether the conduct amounts to an offence against a State or Territory firearm law. In its terms, s 360.2 does not require transportation of a firearm across a border, but transportation across a border is an essential element of an offence contrary to s 360.3. In addition, fault elements are attached to an offence contrary to s 360.3.

[33] In summary:

• Section 360.2 requires proof of:

(i) Conduct that constitutes an offence against a State or Territory firearm law.

(ii) The conduct occurring in the course of interstate trade or commerce.

• Section 360.3 requires:

(i) The sending or taking of a firearm across an interstate border.

(ii) That the taking or sending of the firearm across the border be in the course of interstate trade or commerce.

(iii) That the person takes or sends the firearm across the border with the intention that the firearm will be disposed of in the other State or Territory.

(iv) That the person knows that, or is reckless as to whether, the disposal or acquisition of the firearm that results from the disposal would happen in circumstances that would constitute an offence against the firearm law of that other State or Territory.

[34] The combination of s 360.2 and s 360.3, and the ambit of their respective operations, suggest that the Legislature contemplated that transportation of a firearm across a border is not a necessary condition precedent to establishing for the purposes of s 360.2 that the conduct in question occurred in the course of interstate trade or commerce. On this view the Legislature has evinced an intention to extend the operation of s 360.2 beyond the act of transportation and to reach other conduct occurring in the course of interstate trade and commerce that does not necessarily involve a completed act of transportation of a firearm across a border.

[35] The first step is to identify the conduct that constitutes an offence against a State or Territory firearm law. Section 63(1) of the Firearms Act is in the following terms:

“63. Sale of firearms

(1) A person, other than the holder of a firearms dealer licence, must not sell a firearm to another person unless –

(a) the other person is the holder of a firearms dealer licence; or

(b) the sale –

(i) is arranged through the holder of a firearms dealer licence; or

(ii) if the holder of a firearms dealer licence is not reasonably available – is witnessed by a member of the Police Force.

Penalty: If the offender is a natural person – 400 penalty units or imprisonment for 2 years or, if the offence relates to a category A firearm or category B firearm, 200 penalty units or imprisonment for 12 months.

If the offender is a body corporate – 2 000 penalty units or, if the offence relates to a category A firearm or category B firearm, 1 000 penalty units.”

[36] The defendant’s “conduct” that constituted an offence against s 63(1) of the Firearms Act (NT) was the sale of a firearm in the circumstances specified in s 63(1). It is common ground that the defendant’s conduct in selling the firearm in each count amounted to trade or commerce for the purposes of s 360.2.

[37] Having identified the “conduct” constituting an offence against the Firearms Act, the critical question is whether that conduct occurred in the course of interstate trade or commerce. Section 360.2 does not, in its terms, specifically state that the conduct constituting an offence against a State firearm law must, in itself, be an act of interstate trade or commerce. What is required is that the conduct occur “in the course of” interstate trade or commerce. For present purposes, however, the distinction is of no practical significance. In the circumstances under consideration where the conduct in question is the sale of a firearm, I am unable to see how the sale could occur “in the course of” interstate trade and commerce unless the sale, itself, is an act of interstate trade or commerce.

[38] Identifying the issue as to whether the conduct constituting an offence against the State firearms law occurred in the course of interstate trade or commerce exposes a fundamental flaw in the Crown argument which sought to rely solely upon the interstate negotiations and interstate movement of the purchaser and funds. It is not to the point that negotiations across a border and movement of funds and purchaser across a border were, in themselves, acts of interstate commerce. For the purposes of s 360.2, it is the sale that must occur in the course of interstate trade or commerce and the three acts of interstate commerce relied upon by the Crown are not, either individually or in combination, capable of endowing the sale with the necessary interstate quality. For example, bearing in mind that the purpose of s 360.2 is to address the trafficking of firearms across interstate borders, if the sale was made with the clear intention of both parties that the firearm remain in the Northern Territory, the fact that negotiations had occurred across borders and that the purchaser had come from interstate with the funds for the purchase would not clothe the sale with the necessary interstate character for the purposes of s 360.2. Neither the terms of such a contract nor the performance of it possesses any interstate characteristic. Movement of the subject of the contract across a border is not required or contemplated.

[39] As it is the sale of the firearm by the defendant that must occur in the course of interstate trade and commerce, it is necessary to consider whether the sale would possess the appropriate interstate quality if the defendant believed or contemplated that the purchaser would transport the firearm across a border. Or is an obligation to move the firearm across a border, or at least agreement that movement across a border will occur, an essential characteristic of the contract of sale before the sale attracts the quality of occurring in the course of interstate trade or commerce?

[40] In W & A McArthur Ltd v Queensland (1920) 28 CLR 530 the plaintiff was a Sydney company whose stocks were held in Sydney, but business was done in Queensland by travellers employed by the plaintiff. There were four methods of business by the travellers, only one of which was held to qualify as interstate trade or commerce. The business that qualified was described in the following terms (540):

“[The travellers] make agreements to sell goods of that description [sold by the plaintiff], stipulating that the goods are to be despatched from the plaintiff’s warehouse in Sydney and delivered by the plaintiff to purchasers in Queensland.”

[41] Three methods were held not to qualify as interstate trade or commerce. Those methods were described as follows (540):

“(1) [The travellers] offer for sale goods of the descriptions sold by the plaintiff, to be delivered in Queensland; (2) they obtain offers to purchase goods of the descriptions sold by the plaintiff, and forward the offers to the plaintiff in Sydney, where they are accepted, and the goods are in fact despatched to the purchasers in Queensland; (3) they make agreements to sell goods of that description to be delivered in Queensland.”

[42] The reasons for finding that three of the four methods of transacting business were not protected by s 92 were set out in the following passage in the joint judgment of Knox CJ and Isaacs and Starke JJ (559 and 560):

“We then have to consider whether any of the four methods of transacting business above detailed are outside the operation of the Act, because they are of an inter-State character. The first and third of these methods do not necessarily involve any act done outside Queensland or any transaction of an inter-State character. The goods offered for sale or agreed to be sold are not stated to be either by express stipulation or necessary implication supplied from New South Wales, or anywhere outside Queensland. A contract of sale if effected or the delivery of goods agreed to be sold might, at the option of the vendor, for all that appears, be consummated entirely within the State of Queensland. If so, it is impossible to say these transactions are of an inter-State character. A situation having considerable resemblance to this arises in provisions found in England and other parts of the Empire for service of writs out of the jurisdiction where breaches of contract take place within the jurisdiction. In Comber v Leyland (1898) AC 524 a defendant abroad contracted to sell goods sent to him and remit the proceeds to England by bills, and he sold the goods and kept the proceeds. It was held that since his contract could all be performed abroad, no writ could be issued in England for service abroad. The first and third methods, as alleged, are consistent with either domestic or inter-State character. If the vendor elects to supply the goods from New South Wales, the actual movement of the goods from State to State would, of course, be inter-State trade and commerce; and would be protected accordingly. But the “offer for sale” and the “agreement for sale” would not be changed in character, and they are all we are concerned with as to the two methods mentioned. As to the second method, the traveller in Queensland does an act by which he aids or abets or becomes knowingly concerned in the making of a contract in New South Wales which, if done in Queensland, would be an offence under sec. 12. By the terms of sec. 29(7) he is deemed to have committed the offence itself, and is punishable accordingly. Now, the thing done outside Queensland which is imputed to the traveller, namely, a contract made according to the second method, is similar to the first and third methods; that is, it is a contract for goods which neither by the expressed terms of the contract nor by its implications are necessarily deliverable from any State but Queensland, and, therefore, is not shown to be an inter-State transaction. The offence, consequently, as far as appears is one relating to purely domestic trade. The fourth method, according to the criterion of inter-State trade, commerce and intercourse above stated, is distinctly an inter-State transaction.” (my emphasis)

[43] In the course of the judgment, their Honours emphasised in an oft cited passage that the concept of trade and commerce embraces “all the commercial arrangements or which transportation is the direct and necessary result” (547). It is noteworthy that their Honours spoke of transportation as the “necessary” result. Later in the judgment, in again emphasising that the concept embraces all the commercial dealings because they are “essential for accomplishing the acknowledged end”, their Honours said (549):

“The notion of a person or thing, tangible or intangible, moving in some way from one state to another is no doubt a necessary part of the concept of ‘trade, commerce, and intercourse among the states’.”

[44] The observation that “moving in some way from one State to another is no doubt a necessary part of the concept of” interstate trade and commerce, echoes what was said by Latham CJ in Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 56:

“In construing both s. 51(i.) and s. 92 it should be remembered that the words to be considered are not only ‘trade and commerce’ but ‘trade and commerce among the States.’ The conception of trade and commerce among the States is in my opinion quite inseparable from movement of goods and persons. Commerce in itself does not necessarily involve transportation or movement of goods. There may be a sale of goods on the spot by a vendor to a purchaser, the commercial transaction being concluded without any movement of the goods. But when the trade or commerce is inter-State there must be either actual or contemplated movement of goods or persons.” (my emphasis)

[45] Movement across State borders was also emphasised by Mason J in The Australian Coarse Grains Pool Proprietary Limited v The Barley Marketing Board (1985) 157 CLR 605 at 626:

“I return to the plaintiff’s principal submission. It is understandable that the concept of trade and commerce among the States, whether for the purposes of s. 51(i) or s. 92, has not proved to be susceptible of precise definition. However, as early as 1920, it was accepted (1) that transportation of merchandise across State borders was at the heart of interstate trade and commerce, and (2) that all commercial transactions of which transportation is the direct and necessary result form part of trade and commerce.” (my emphasis)

[46] Brennan J spoke of the concept of movement across a border in Nationwide News Proprietary Limited v Wills (1992) 177 CLR 1 at 55:

“The characteristic of every phenomenon falling within the section, however, is geographical movement. Each of the terms ‘trade, commerce and intercourse’ in s. 92 is qualified by the phrase ‘among the States’ and that qualification is essential to attract the operation of the section. There must be some border-crossing involved before any phenomenon of trade, commerce or intercourse comes within the reach of the section. The protection of s. 92 is given to the movement of people, the transport of goods, the transmission of communications, the passage of signals of any kind and any other means by which ‘interchange, converse and dealings between States in the affairs of life’ are carried on across State boundaries.” (footnotes omitted) (my emphasis)

[47] In the passage cited from the judgment of Latham CJ in ANR, the Chief Justice spoke of a requirement that there must be either “actual or contemplated” movement across a border. The question whether it is a requirement that the relevant agreement stipulate delivery across a border might depend upon the circumstances said to attract the quality of interstate trade and commerce. In HC Sleigh Limited v South Australia (1977) 136 CLR 475, the plaintiff carried on business selling petroleum products throughout Australia. The products sold in South Australia were obtained from a refinery operated in South Australia pursuant to a system known as “refinery exchange”. The majority held that the plaintiff was not protected by s 92 from the licensing requirements of South Australian legislation. In the course of his judgment, Gibbs J expressed the view that although some of the products sold to the plaintiff by the refinery were delivered by the refinery or transported by the plaintiff from South Australia to distribution points situated in other States, that fact was not enough “to convert the sale to the plaintiff into an interstate transaction”. His Honour continued (495):

“For that result to ensue it would be necessary that the agreement for sale to the plaintiff should contain a stipulation that the petroleum products should be despatched from the refinery in South Australia and delivered by the seller to the plaintiff in a State other than South Australia: see W & A McArthur Ltd v Queensland [(1920) 28 CLR 530 at pp 540, 559 – 560] which on this point has often been cited with approval.”

[48] Gibbs J then referred to propositions by the plaintiff that certain sales to interstate buyers possessed the qualities of interstate trade. In rejecting that proposition, his Honour said (495):

“In none of these cases was it alleged that it was a term of the contract that petroleum products should be despatched from one state and delivered in another. W & A McArthur Ltd v Queensland is authority for the proposition that these sales did not form part of interstate trade.”

[49] Mason J made similar observations (507):

“In support of its case the plaintiff seized on an observation made by Rich and Williams JJ in the Bank Nationalization Case where their Honours said (1948) 74 CLR at p 289: ‘A contract between A in Sydney and B in Melbourne by which A agrees to deliver goods to B in Sydney in exchange for goods to be delivered by B to A in Melbourne is a transaction of trade and commerce among the States.’ With respect to their Honours, the example given is not an instance of interstate trade. The contract supposed does not call for the delivery of goods across a State boundary; it therefore does not involve interstate trade. Moreover, there is no importation or movement of goods from one State to another; consequently the goods do not enter interstate trade.” (my emphasis)

[50] The judgments in Smith v Capewell (1979) 142 CLR 509 are of assistance. A skin dealer in Queensland sold to buyers in New South Wales and delivered the skins in New South Wales. The contract of sale did not stipulate that the skins should be brought from Queensland. The dealer was charged with a breach of the New South Wales legislation by carrying on business without a licence. The transaction was held to be part of interstate trade and protected by s 92.

[51] Barwick CJ spoke of establishing the existence of interstate trade through the terms of contractual arrangements (512 – 513):

“If the existence of the trade is to be made out by proof of contractual arrangements, probably, though perhaps not necessarily, some part of the steps to form the contract would have taken place in each State. But to establish the existence of the trade merely by the existence of a contract, the transport of the subject matter from one State to another must necessarily occur if the contract is to be duly performed. Thus, in general, the evidence of the interstate trade by means only of a contract will only be possible if delivery from one State to another is a term of the contract, express or implied. Of course, if a contract of sale so stipulates, the contract itself is part of interstate trade and commerce.

But it would seem such a trade may be established where it is implicit in the nature of the transaction relied upon to establish such trade or by a course of dealing, that it was the common contemplation of the parties that the subject matter of their agreement would be transported interstate. Reg v Wilkinson; Ex parte Brazell, Garlick & Co (1952) 85 CLR 467 is, in my opinion, an illustration of such an occasion. It was established in that case that the vendor only sold to the purchaser because the purchaser assured him that he was “buying for interstate”. There was no written contract and, in my opinion, the evidence did not go so far as to establish a contractual obligation on the part of the purchaser to transport the potatoes interstate. In fact, he did so: and, clearly, it was in mutual contemplation that he would do so. But as a generalisation it can, in my opinion, be said that only a contract which stipulates for interstate movement or delivery will itself form part of interstate trade. It may also establish the existence of such a trade.” (my emphasis)

[52] As to the requirement that interstate delivery be an express term of the contract in order to qualify the contract as part of interstate trade, Gibbs J expressed views similar to those of the Chief Justice (519 – 520):

“There is no doubt that the agreement made early in April between the respondent and Mr Gee, considered alone, was an interstate transaction which the law might validly prohibit. That agreement contained no express stipulation that the skins would be supplied from Queensland, and it was not suggested that there was any necessary implication to that effect. In those circumstances the agreement is indistinguishable from the first and third of the methods discussed in W & A McArthur Ltd v Queensland (1920) 28 CLR 530, at pp 540, 559 – 560, and on the authority of that case, which on this point has often been followed, the agreement, considered in isolation, was not of an interstate character. Moreover, the fact that the respondent carried on business in Queensland as well as in New South Wales did not necessarily mean that he engaged in acts of interstate trade, for ‘it is very clear that a person may carry on business in every State of the Commonwealth and yet never engage in an act of interstate commerce’: Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1, at p 38.”

[53] Mason J was in dissent as to the result, but expressed views that were in agreement with the observations of Barwick CJ and Gibbs J concerning a requirement that the contract contain a term stipulating delivery across a State border (527 – 528):

“The only question is whether the second transaction formed part of interstate trade and commerce.

In my opinion that question must be answered in the negative. In order that a contract should form part of that trade and commerce it is necessary that it contain a stipulation calling for the delivery of goods across a State border. There must be a promise or obligation to carry from one State to another. It is not enough that the promise to deliver goods may be satisfied by goods that are brought from interstate or even that the parties expect that the promise will be satisfied by goods brought from interstate. What is required is the presence of a binding contractual obligation to bring the goods from another State. I need do no more than refer to the discussion of this question in W & A McArthur Ltd v Queensland (1920) 28 CLR 530 at 540, 559 – 560 and H C Sleigh Ltd v South Australia (1977) 136 CLR at pp 494 – 495, 507 – 508.

The same considerations do not apply when, as here, goods are transported across a State border in satisfaction of a contractual obligation which does not call for delivery across a State border. The contract is then already on foot. It is only the interstate delivery that needs and obtains protection under s. 92. At the time when the contract was made, it lacked any characteristic which would mark it as a transaction entered into in the course of interstate trade or connected with that trade. The subsequent delivery of goods across a State border, when that delivery is not called for by the contract, cannot endow the contract with an interstate character which it lacked at the time when it was made.” (my emphasis)

[54] The question of a contract stipulating delivery of goods interstate was again discussed by the High Court in Australian Coarse Grains Pool v Barley Marketing Board. At a time when barley was ready for harvest, but before harvest, a Victorian company entered into contracts to buy the barley from Queensland growers. The contracts required the growers to deliver the grain to the company’s premises in Queensland and contained a condition that the company would remove the barley from Queensland and deliver it to a buyer in another State. The majority of the Court held that the contracts and subsequent deliveries were part of the buyer’s interstate trade and commerce and not merely preparatory to it.

[55] Observing that the contracts of sale were “essential and integral steps in an interstate transaction”, Gibbs found it unnecessary to consider “whether the position would have been different if the contracts had not contained a stipulation requiring the plaintiff to take the barley interstate”.

[56] As mentioned, Mason J referred to transportation across a border as being “at the heart of interstate trade and commerce”. Later in his judgment his Honour spoke of contracts “looking to movement across State borders” (628):

“This concept of interstate trade and commerce is naturally reflected in the characteristics which, according to the decided cases, distinguish those contracts which form part of interstate trade and commerce from those which do not. Just as movement across State borders is central to that concept, so it is essential to a contract forming part of interstate trade and commerce that it involves or looks to movement across State borders. It was decided in McArthur (1920) 28 CLR at pp 540, 559 – 560 that of four methods of doing business only one gave rise to an interstate transaction – the making of agreements to sell goods providing that the goods were to be despatched from the plaintiff’s warehouse in Sydney and delivered by the plaintiff to purchasers in Queensland. The other three methods did not involve performance by interstate delivery. It was apparently regarded as immaterial that the promissory had an option and that he chose to perform that option by making an interstate delivery. Although the interstate delivery was part of interstate trade, the delivery did not endow the contract with the same character.” (my emphasis)

[57] Mason J also referred to the remarks of Barwick CJ in Smith v Capewell that a contract will form part of interstate trade when it appears from the nature of the transaction or the course of dealing “that it is the common contemplation of the parties that the subject-matter of the agreement would be transported interstate”. His Honour noted that the Chief Justice had fallen short of endorsing the suggestion that “intention to put goods into interstate trade is enough to invest the transaction with an interstate character so long as the goods in fact move interstate” and continued (634):

“The significance of the comment is that it expands the McArthur concept of an interstate contract by including a contract which contemplates interstate transportation as well as one which requires such transportation. The question, though it may not be crucial to the disposition of the present case, is whether the proposition should now be accepted as a true reflection of the constitutional conception of interstate trade and commerce. My answer to this question is that a contract which, viewed in the setting in which it is made, contemplates interstate transportation of the goods as a likely means of performance is a contract forming part of interstate trade, at least when the goods move interstate.

Indeed, I would go further and say that the purchase of goods by a trader for the purpose of exporting them to another State or delivering them to a buyer in another State is a transaction forming part of interstate trade and commerce, even though that purpose is not within the contemplation of the seller, provided at any rate that the existence of the intention is evidenced or accompanied by overt acts indicating that the goods have been purchased for that purpose. It conforms to a broad conception of interstate trade and commerce, consistent with its character as the subject-matter of a grant of legislative power and of a constitutional guarantee, to treat it as embracing the first transaction by which goods are committed to the course of interstate trade. Just as the Court has recognized that the course of interstate trade does not end with the movement of goods across a State border and their arrival at the importer’s place of business but extends to include his sale of the goods as the terminal point of interstate trade, so the Court should acknowledge that the purchase of goods by an interstate trader for the purpose of that trade is the point of commencement of interstate trade.” (my emphasis)

[58] Dawson J remarked that since the decision in W & A McArthur Ltd v Queensland “there has been a tendency in determining whether the performance of a contract is itself part of interstate trade or commerce, to have regard to the terms of the contract to see whether they require something to be done which can be characterised as interstate trade or commerce.” His Honour noted that according to this line of reasoning it is not enough that the contract “may be performed by the interstate movement of goods or services”. Observing that in the setting of McArthur’s case this approach is “understandable”, his Honour emphasised that the fourth method of dealing identified in McArthur is a clear example of interstate trade or commerce, but not exhaustive, and said (664):

“A particular transaction may be part of interstate trade or commerce according to whether that transaction forms part of the flow of business among the States as a matter of fact whether or not it is also a matter of contractual obligation …”.

[59] Against the background of this brief overview of a few of the myriad of judgments concerned with interstate trade and commerce, and on the assumption that it was not a term of the agreement for the sale of the firearm that the firearm be taken across a border after purchase, in relation to the facts of the case reserved the following propositions lead to a conclusion that a negative answer must be given to question 1:

• For the purposes of s 51(i) and s 92 the concept of interstate trade and commerce is a wide concept at the heart of which is movement across State borders.

• While the meaning of interstate trade and commerce for the purposes of s 360.2 of the Code is to be determined by a consideration of the ordinary and natural meaning of the words in the context in which they appear, and while bearing in mind the purposes of s 360.2 and the Code generally, guidance as to the meaning can be found in authorities concerned with s 51(i) and s 92.

• It is to be assumed that the legislature intended that the meaning of interstate trade and commerce for the purposes of s 360.2 does not reach beyond the limit of the constitutional power found in s 51(i).

• The primary purpose of Division 360 of the Code is to address the trafficking of firearms across interstate borders. However, for the purposes of s 360.2, the act of transportation of a firearm across a border is not an element of the offence.

• Section 360.2 directs attention to the conduct which amounts to an offence against a State or Territory firearm law. In the facts of the case reserved, that conduct is the sale in the Northern Territory of a firearm. On these facts, although the interstate communications and the conveyance of the purchaser and funds for the purchase across a border were individual acts of inter-State commerce, they were acts preliminary to the essential “conduct” of the sale of a firearm. Individually, and in combination, those preliminary acts are not capable of clothing the essential conduct with the necessary interstate character.

• While the vendor may have anticipated or believed that the firearm would be taken across a border, neither the contract of sale nor its performance required or contemplated movement of the purchased firearm across a border. There is nothing in the contract or its performance through the sale which endows the contract or its performance with a quality or characteristic which brings it within the category of interstate trade or commerce.

[60] The issues can be tested in another way. The law must be capable of being applied in a sensible and practical way, not only by judicial officers trained in the law, but by lay persons sitting on juries. In what terms would a jury be directed as to the requirement that the Crown prove that the sale of a firearm occurred in the course of interstate trade or commerce? In the absence of any submissions directed to this issue I venture to suggest that, speaking generally, the appropriate test to be applied by a jury is whether the sale was “connected with” or “related to” the movement of the purchased firearm across a border. Bearing in mind that the firearm did not leave the Northern Territory, the facts that the negotiations occurred across State boundaries and that the purchaser and funds came from interstate are not, either individually or in combination, sufficient to establish that the sale was connected with or related to the movement of the purchased firearm across a border. More is needed.

[61] For the reasons I have given, on the assumption that it was not a term of the agreement between the defendant and purchaser that the firearm would be taken across a border after purchase, and on the further assumption that the purchaser did not intend to take the firearm out of the Northern Territory, in my opinion, notwithstanding that the defendant believed that the firearm would be taken across a border, the evidence is incapable of proving that any of the sales occurred in the course of interstate trade and commerce. On this view of the facts, the answer to question 1 is “no”.

[62] The negative answer to question 1 has been given on the basis that the purchased firearm did not cross a border and remained in the Northern Territory. As to whether the offence would have been made out if the purchased firearm had been taken across a border, it is clear that in some circumstances transportation across a border subsequent to the formation or execution of a contract of sale will not endow the contract with the necessary interstate quality or characteristic. There are numerous combinations of facts which would affect the answer to this question. As I have not had the benefit of submissions considering in detail the relevant authorities or various combinations of facts, it is inappropriate for me to explore this question further.

[63] I have reached the view that question 1 must be answered in the negative not only on the basis that the contract of sale did not include a term that the purchased firearm would be taken across a border, but also on the basis that the purchaser did not contemplate such movement and such movement did not occur. If, however, both the defendant and purchaser had intended or contemplated as a natural consequence of the sale that the firearm would be taken across a border by the purchaser, notwithstanding the absence of a term in the contract stipulating such cross-border movement, I tend to favour the view that even in the absence of cross-border movement the combination of facts would establish that the sale occurred in the course of interstate trade or commerce. If the intention or contemplation of the parties is movement of a firearm across a border after purchase, it could be said that the sale can properly be regarded as connected with or related to interstate movement of the purchased firearm. Such a construction would promote the purposes of the legislation. However, in the absence of detailed submissions and reference to authorities pertinent to this issue, I will not attempt to provide a definitive answer. Of course, if interstate movement was intended or contemplated and in fact occurred, the combination of facts would plainly establish that the sale of the weapon took place in the course of interstate trade or commerce.

[64] If, contrary to the view I have taken of the facts that were placed before the Magistrate and this Court, it was a term of the contract that the firearm would be taken across a border by the purchaser after purchase was completed, in my opinion the combination of the facts presented in the case reserved would establish that the conduct in selling the firearm occurred in the course of interstate trade or commerce. The term requiring transportation across a border after purchase would endow the contract with the quality or characteristic of an interstate transaction such that the sale occurred in the course of interstate trade and commerce. In that event, it would not matter that the purchaser failed to comply with the particular term of the contract and did not take the firearm across a border.
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