Tipple v Chief Executive of the New Zealand Customs Service [2014] NZHC 2356 (11 November 2014)

Last Updated: 10 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-005220 [2014] NZHC 2356

BETWEEN	DAVID MATTHEW HOLDEN TIPPLE Appellant
AND	CHIEF EXECUTIVE OF THE NEW ZEALAND CUSTOMS SERVICE Respondent

Hearing:	23 July 2014
Appearances:	N J B Taylor for Appellant P H Courtney for Respondent
Judgment:	11 November 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 11 November 2014 at 2.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date..............................}

TIPPLE v CHIEF EXECUTIVE OF THE NEW ZEALAND CUSTOMS SERVICE [2014] NZHC 2356 [11

November 2014]

Introduction

[1] Blank firing guns are used extensively in the film industry. Their main purpose is to fire a blank cartridge and produce a loud bang with the ‘flame’ from the powder going upwards and not out of the barrel. There are, apparently, tens of thousands of such guns in New Zealand. The question in this case is whether the 45

Kimar blank firing pistols that David Tipple imported without a permit are either firearms or starting pistols for the purposes of the Arms Act 1983.

[2] The Customs Service seized the pistols¹ on the ground that, because they can readily be modified to fire live ammunition they are therefore firearms within the meaning of the Arms Act 1983. If that is right Mr Tipple required a permit to import them.² But Mr Tipple maintains that the pistols cannot be readily modified and are merely imitation firearms, for which no permit was required.

[3] Before the Customs Appeal Authority (CAA) the Chief Executive of the Customs Service argued that the pistols were either firearms or starting pistols. Judge Barber, sitting as the CAA, concluded that the pistols are both firearms and starting pistols within the meaning of the Arms Act.³ Mr Tipple appeals that decision under s 72 of the Customs and Excise Act 1996 (CEA) which provides a general right of appeal. The approach to be taken is that described in Austin, Nichols & Co Inc v Stichting Lodestar;⁴ it is for Mr Tipple to persuade me that the CAA was wrong. If so, he is entitled to a fresh assessment in this Court.

[4] The grounds of appeal, as argued, can be summarised as error by the CAA in: (a) Accepting that an object that had never previously functioned as a

firearm could fall within the definition of firearm;

(b) Interpreting the definition of firearm to include a manufacturing process as the means by which an object could become a firearm;

¹ _{Customs & Excise Act 1996, s 225(1)(n).}

² _{Under s 16 it is an offence to import a firearm or a starting pistol without a permit.}

³ _{Tipple v Chief Executive of the New Zealand Customs Service [2013] NZCAA 007.}

⁴ Austin, Nichols & Co Inc v Stichting Lodestar [2007] 2 NZSC 103, [2008] 2 NZLR 141.

(c) Finding that the pistols could be modified sufficiently easily to come within the definition of firearm;

(d) Finding that the pisols were starting pistols for the purpose of s 16 of the Arms Act.

Relevant provisions of the Arms Act 1983

[5] Under the Arms Act “firearm”:⁵

(a) Means anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive; and

(b) Includes –

(i) anything that has been adapted so that it can be used to discharge a shot, bullet, missile or other projectile by force of explosive; and

(ii) anything which is not for the time being capable of discharging any shot, bullet, missile or other projectile but which, by its completion or the replacement of any component part or parts or the correctional repair of any defect or defects, would be a firearm within the meaning of paragraph (a) or sub-paragraph (i); and

(iii) anything (being a firearm within the meaning of paragraph (a) or sub-paragraph (i) which is for the time being dismantled or partially dismantled; and

(iv) any specially dangerous air gun.

[6] “Part” is specifically defined:

(a) In relation to a pistol, restricted weapon, or military-style semi- automatic firearm, includes any thing, such as a butt, stock, magazine, silencer or sight, which, while not essential for the discharge by a pistol, restricted weapon, or military-style semi- automatic firearm of any shot, bullet, missile, or other projectile, is designed or intended to be an integral part of a pistol, restricted weapon, or military-style semi-automatic firearm; and

(b) In relation to any other firearm, means the action for that firearm.

_{[7] “Imitation firearm” is defined:}⁶

⁵ _{Arms Act 1983, s 2, definition of “firearm”.}

⁶ Arms Act 1983, s 2, definition of “imitation firearm”.

Anything that has the appearance of being a firearm capable of discharging any shot, bullet, missile or other projectile, whether or not it is capable of discharging any shot, bullet, missile or other projectile.

[8] “Pistol” is defined, though in terms that make it clear that only a pistol capable of live firing will satisfy the definition, because it must be a “firearm”:

Any firearm that is designed or adapted to be held and fired with one hand;

and includes any firearm that is less that 762 mm in length.

[9] “Starting pistol” is not defined.

[10] Under s 16 it is an offence to import certain items including firearms and starting pistols:

A person must not, otherwise than pursuant to a permit issued to the person by a member of the Police, bring or cause to be brought or sent into New Zealand –

(a) A firearm, pistol, military-style semi-automatic firearm, starting pistol, restricted airgun or restricted weapon; or

(b) Any part of a firearm, pistol, military-style semi-automatic firearm, starting pistol, or restricted weapon.

First and second grounds of appeal: did the Judge err in interpreting the

definition of “firearm”?

First ground of appeal: the argument that “you must start with a real gun”

[11] It was not clear whether this argument was advanced before the CAA in the same way as it was advanced before me. Mr Taylor, for Mr Tipple, argued that the opening word “anything” in (b)(ii) of the definition of firearm is not to be interpreted literally to mean any object at all. He referred, for example, to objects produced as exhibits before the CAA, a solid metal rod and a collection of air hose parts, which the evidence showed could be adapted to fire a live round of ammunition within two hours. Mr Taylor submitted that “anything” had to be viewed in the context of the definition, otherwise a person in possession of a random collection of objects could be regarded as being in possession of a firearm within the meaning of (b)(ii). This is uncontentious.

[12] Secondly, Mr Taylor submitted that, in considering whether any given object is a firearm, the criteria in (a) of the definition of a firearm must first be fulfilled before considering the criteria in (b). Mr Taylor described this argument as “you must start with a real gun before considering the criteria in (b)”. Mr Taylor argued that the words in (b)(ii) “not for the time being” convey that the object in question must, at some time, have satisfied the criteria in (a), indicating an intention that the starting point is a real working firearm. It was not clear to me whether this part of the submission had been made to the CAA.

[13] Mr Taylor submitted, further, that the word “completion” is consistent with his interpretation because it conveys that something is missing that was once present. In relation to the words “repair of any defect” Mr Taylor submitted that both words point to the existence of a functioning firearm prior to it coming into the state described in (b)(i) – (iii). He also submitted that the phrase “replacement of a component part or parts” must be read by reference to the previously entire firearm because of the definition of “part”:

[14] On Mr Taylor’s interpretation the Act would capture not only weapons imported in working order but also converted blank firing pistols, imitation guns or starting pistols which are capable of live fire. It would also capture so-called ‘zip’ guns or pipe guns built from scratch. Mr Tipple’s Kimar pistols would not, however, fall within (a) of the definition of firearm because they have never been capable of live fire and would not, therefore, be subject to the criteria in (b) of the definition of firearm.

[15] To support his arguments, Mr Taylor traced the history of the definition of firearm, noting that the current references to “repair”, “correction”, “replacement” or “completion” of a component part or parts did not appear in the Arms Act 1958 as originally enacted. Indeed, as originally enacted the Arms Act had no definition of “firearm”. The significance of that omission was identified in Dickey v Police, in which the appellant, who had pointed a rifle which lacked its bolt and magazine, at the complainant, had his conviction for presenting a firearm without sufficient lawful

purpose quashed.⁷ Woodhouse J considered that “firearm” as used in the relevant

section of the act:

Must mean a rifle barrelled weapon from which any shot, bullet or other missile could be discharged. This weapon no doubt could easily have been put into the condition where it could be used in this fashion but at the time that I am concerned with the bolt was missing and in my opinion it was not a “firearm” within the meaning of the Act.

[16] This decision seems likely to have led to the Arms Amendment Act 1964 which provided that a firearm was still a firearm:

... whether or not it is loaded or capable at the time of the offence of

discharging any shot, bullet or other missile ...

[17] A further amendment in 1966 inserted an entirely new definition of

“firearms”:⁸

Firearms includes a firearm which for the time being is not capable of discharging any shot, bullet or other missile but which by replacement of any component part or parts or the correction or repair of any defect or defects, would be so capable and so also includes any firearm which for the time being is dismantled.

[18] A final amendment to the definition came in 1971, by which the words “its

completion or” were inserted before “replacement” in the existing definition.⁹

[19] Also relevant was the addition in 1976 of reference to, and definition of, imitation firearms.

[20] The effect of the amended definition was considered in Police v Jackson, an appeal against the dismissal of a charge under the Arms Act of carrying a rifle except for a lawful, proper and sufficient purpose.¹⁰ The respondent had been found with a

.22 rifle that did not have a bolt in it. He had taken it from his brother’s property and left the bolt behind. He therefore had no ‘present ability’ to restore the rifle so that it could be used as such. Somers J considered that the firearm, even though lacking a

_{bolt, fell within the definition. He rejected the argument that the respondent was not}

⁷ _{Dickey v Police [1964] NZLR 503 (SC).}

⁸ _{Arms Amendment Act 1966.}

⁹ _{Arms Amendment Act 1971.}

¹⁰ Police v Jackson [1980] 1 NZLR 78.

in possession of a firearm merely because he could not immediately restore the

weapon’s usual capability. The Judge then added:¹¹

That however does not conclude the matter. Before the addition of the words “its completion or” a firearm included a firearm which was not then capable of discharging a missile but which by replacement of any component part or the correction or repair of any defect would be so capable. Such a firearm as is so included meant I think the whole firearm but one distinguishable from the normal usable weapon by its incapacity to discharge a missile which incapacity was remediable by replacement or repair. That meaning is reinforced by the words “for the time being” and gains some colour or cohesion from the reference to a dismantled firearm. The nouns replacement on the one hand and correction or repair on the other may overlap to some extent as a matter of common semantics. But they include two different notions which may be indicated by the difference between substitution and amendment. It was suggested that replacement means or includes a placing back – of the bolt in this case. The collocation of the words “replacement, correction or repair” as well as the features already mentioned indicate that this is not so. I do not think the later addition of the word completion could or should be taken as affecting that construction.

The word completion however adds a new dimension to the definition. It necessarily involves a firearm that is not complete. It may for example lack a firing pin or some other work of the nature of original construction may need to be carried it out to render it capable of firing.

The object carried in the present case lacked a bolt at the time of carriage. In that sense it was incomplete. But there was a bolt for it. I see no reason to distinguish between completion in the sense of providing for the first time some part which never formed part of the “rifle” (or doing work never before done to complete the same) and completion in the sense of joining to the part carried some other part not carried.

It is of course necessary that that which is carried has the general characteristic of a firearm. The carrying of the bolt alone would not be such carrying. The ascertainment of the necessary characteristic may involve visual appreciation. It may also involve carriage of the dominant part and with the correlative distinction between the principal and the ancillary. There may be borderline cases. If the object is to all outward signs a rifle but for example the barrel had not been bored it may still be a firearm.

(emphasis added)

[21] I do not accept Mr Taylor’s argument that (b) in the definition of firearm only responds once the object in question has satisfied (a) in the definition: (a) and (b) are disjunctive. Parliament plainly intended (b) to stand independently. Limiting the

_{criteria in (b) to objects that have previously operated as a firearm would reduce the}

¹¹ At 80 – 81.

ambit of the definition significantly. As a result, the Kimar pistols do not have to satisfy (a) in order to be a firearm within this definition.

Second ground of appeal: can a manufacturing process constitute repair or replacement for the purposes of definition?

[22] I turn, then, to the more significant issue of when modification of an imitation firearm to produce a firearm capable of discharging a missile satisfies (b)(ii) in the definition of firearm. Not every alteration to an object will transform it into a firearm for the purposes of (b)(ii); only “completion or the replacement of any component part of parts or the correction or repair of any defect or defects” will suffice.

[23] The Notice of Seizure by Customs made no reference to the criteria in (b)(ii). Instead, it referred to the conclusion of the Police Armourer, Mr Ngamoki, that “those models of pistol may be modified to discharge live ammunition.”¹² Likewise, the decision reviewing the seizure referred to the fact that the pistols required “very little alteration to adapt them to allow the firing of a projectile.”

[24] Before the CAA, however, the Chief Executive put her case on the basis that the Kimar pistol could be modified for live firing by the “replacement of any component part”, namely the barrel. Mr Ngamoki’s evidence was that the barrels of the Kimar handguns could be cut off and a substitute barrel (a drilled steel rod or bolt) placed in the barrel and that by this means the blank firing pistol could be converted to fire live ammunition. Later, I discuss the process required to convert a blank firing pistol to a firearm, which is the focus of the third ground of appeal.

[25] Mr Taylor, who also appeared for Mr Tipple before the CAA, had argued there that the process required to convert the blank firing pistol to one capable of discharging a live round was a manufacturing process and that because the definition

_{of firearm did not mention the word “manufacture” the level of work involved in the}

¹² From [34]. This advice was based on Mr Ngamoki’s experience with an entirely different pistol, the Bruni. He accepted in cross-examination that the internal configuration of the Bruni was different in a significant way. Whilst unsatisfactory, this aspect was, ultimately, not relevant to the CAA’s decision.

manufacturing process did not fall within the phrase “replacement of any component part”. The Authority considered that:¹³

... the process required to “convert” a blank firing imitation pistol to a state where it is capable of discharging a round is a manufacturing process¹⁴ ...

but ... in the definition of “firearm” the use of the phrase “or replacement of any component part” is not worded in such a way as to require that the replaced component be identical or intended for use with a particular firearm. The cases cited contemplate that a component could be generic or roughly fabricated to allow a firearm to discharge a projectile.¹⁵

(emphasis added)

[26] Mr Taylor submitted that these two statements conflicted because a “manufacturing process” cannot be equated with a process whereby something is “roughly fabricated” and the Judge’s approach did not accord with the authorities relied on.

[27] I do not see any conflict between the concept of manufacture and rough fabrication. Nor do I see any inconsistency in accepting that replacement of a component part may be achieved through a manufacturing process. It is self-evident that any replacement component will have been manufactured at some stage. The real issue is the extent to which the object to which the replacement component is added had the general characteristics of a firearm. That is a question of degree, as

explained by Quilliam J in Wall v Police¹⁶ and by the Court of Appeal in R v

Timmins.¹⁷

[28] In Wall Quilliam J upheld a conviction for being in position of a pistol while not being authorised or permitted and the issue was whether the object that he was in possession of came within the definition of a firearm. The object was the mechanical portion of a semi-automatic .22 rifle. It was described in the judgment as comprising “the breech block, the sliding bolt, safety catch, trigger guard, trigger, sears and springs, and a magazine clip. The fore-end of the breech block had a

_{threaded part to it where the barrel would normally screw in. It has no butt or stock.}

¹³ _{At [73].}

¹⁴ _{At [21].}

¹⁵ _{At [73].}

¹⁶ _{Wall v Police (1984) 1 CRNZ 223 (HC).}

¹⁷ R v Timmins CA191/03, 10 September 2003.

It may have been possible to discharge a single bullet but this would have been a

haphazard and dangerous operation.” ¹⁸ Quilliam J identified the issue as being:¹⁹

[W]hether what was found in the appellant’s possession can properly be described as a firearm or whether it lacks so many of the characteristics of what is generally understood is a firearm to mean that it cannot be brought within the definition at all. In other words it is a matter of degree.

Although what was found was small in size and had almost none of the appearances of what one normally visualises as a firearm, it lacks very little to enable it to be capable of discharging a missile. It may perhaps be capable of doing so as it is, although it would obviously be highly dangerous to attempt it. By the simple device however of screwing in the barrel it would at once be capable of discharging a missile ...

The result then is that what is under consideration is something which comprises the essential working parts of a rifle and which requires only the replacement of the barrel to make it capable of “discharging any shot, bullet or other missile”.

[29] In Timmins, the Court of Appeal upheld a conviction for possession of a firearm after revocation of a firearms licence, this being a double-barrelled shotgun of which the stock was broken and the barrels plugged with wadding. The issue was whether the shotgun was a firearm. The Court of Appeal considered that the Judge’s relatively brief direction to the jury that whether the shotgun in its current state was a firearm was a question of degree which adequately conveyed the test that the jury

was required to apply:²⁰

[19] ... It was in our view open to Mr Timmins to argue that what was required to render the shotgun operable was so extensive as to go beyond what is contemplated by “completion”, “replacement of any component ... parts” or “correction or repair of ... defects” in paragraph (b)(ii) of the definition of firearms.

[20] In this regard the Judge summarised the defence expert’s evidence in some detail and articulated the defence case as being that the shotgun would have been very difficult if not impossible to repair and that, even if repaired, it was likely to explode. He then, in the context of repeating the extended definition of firearm, said that it was a matter of degree. This remark must be seen ... against the background of the summary of the defence expert’s evidence as to the extensive repairs necessary. We consider the jury can have been in no doubt that the question of degree referred to by the Judge was whether the extent of work needed took the item outside the extended definition of firearm.

¹⁸ _{At 224.}

¹⁹ _{At 224 – 225.}

²⁰ R v Timmins, above n 17.

[30] I respectfully agree with the approach taken in these cases. In (b)(ii) of the definition of firearm “anything” is not to be read literally. The definition is concerned with objects that have the general characteristics of a firearm and which, by completion, repair of or replacement of parts, can be made capable of discharging a missile.

Third ground of appeal: did the Judge err in finding that the Kimar pistols are firearms?

The issue

[31] The third ground of appeal addresses the critical factual issue before the CAA, namely the ease with which the seized Kimar pistols could be modified. This issue turned on the different views of two expert witnesses. Mr Bath gave evidence for Mr Tipple. He is a film and television armourer and firearms engineer who specialises in the adaptation and design of firearms for the movie industry. Mr Ngamoki, who gave evidence for the Chief Executive, is a senior police armourer with some 30 years experience with firearms.

[32] Mr Bath described the Kimar as being similar in weight to a real firearm with a working mechanism similar to that of a real auto pistol. It has a firing pin and trigger which drops the hammer onto the firing pin, discharging a centre fire blank cartridge in the way a real pistol would fire a live round. It is designed to be incapable of firing live ammunition; over the approximately 30 years that standard blank firing guns had been manufactured there have been changes to design to make the imitation gun appear more realistic outwardly while at the same time making the internal features less realistic.

[33] Mr Bath and Mr Ngamoki agreed that the Kimar pistol could be converted for live firing. They disagreed over the difficulty of doing so.Two aspects of the pistols impede modification for live firing. The first is that it is die-cast from zinc alloy, commonly referred to as ‘muck metal’. Zinc alloy is a low-strength material with a low melting point that can be brittle when cast and is liable to suffer from stress fatigue. It is therefore unsuitable for live firing, particularly over a prolonged period. The second is the configuration of the barrel; real pistols have a high quality,

freestanding barrel that locks to the slide and lower frame independently when the round is ready to fire. The barrel of the Kimar pistol is die-cast into the frame with a hardened steel insert that extends back into the chamber. The steel insert reduces in size in front of the chamber to a solid pin. As a result, any attempt to drill out the barrel to the chamber size would leave no steel in the barrel. A bullet would be travelling down a bore made only of zinc.

[34] Mr Bath and Mr Ngamoki agreed on the general method for converting the pistols and each undertook a conversion. Mr Ngamoki said that he undertook his modification in about 1½ hours. Mr Bath considered that conversion of the Kimar pistol was no easy matter because it took time, skill and expensive machinery and, even then, the end product was unsafe and unlikely to be useable because the escape of hot gases from the rear of the slide and around the chamber created risk for the user. Mr Bath took eight hours (plus a further four for test firing) to modify the pistol.

[35] The agreed method of conversion was to remove the barrel and replace it with a new barrel fashioned from a drilled out bolt. The experts agreed generally on the tools that would be required to remove the barrel: a cold saw, vice, 8mm drill,

7 mm drill, 9 mm drill, electric drill, hammer, tapping equipment, a bolt and a precision engineering lathe of the kind generally found in professional engineering workshops or specialised small businesses. This last item is not part of an average lay person’s workshop, costs $10,000-$15,000 and requires a high level of expertise to use. Cutting the barrel off in front of the chamber required an air-powered die grinder or dremel with parting discs, the barrel being too hard to cut with a hacksaw because of the steel insert. Even then, Mr Bath wore down six slitting discs grinding through the barrel and hardened insert.

[36] The second step required the removal of the hardened steel insert running through the barrel into the chamber. Mr Bath drilled out the steel insert by setting the frame in a milling vice and used a carbide milling cutter. He considered that a milling machine, vice, micrometer and tungsten carbide cutters were needed for this step; the insert because it is too hard to simply drill out. By contrast, Mr Ngamoki described being able to simply push the insert out with a pin punch.

[37] After the hardened insert has been removed a bolt is drilled out to the desired size and screwed into the housing to replace the original barrel. Mr Bath found that the housing had broken through the side casting, leaving support only at the front and back, which would not support the recoil of a live round. However, Mr Ngamoki used a smaller bolt and did not find that problem.

[38] The CAA accepted Mr Ngamoki’s evidence as to the ease with which the pistols could be modified. Mr Tipple challenges this conclusion.

Why the difference between the experts?

[39] There were three critical differences between Mr Ngamoki and Mr Bath that accounted for their different views about modification. First, Mr Ngamoki aimed only to produce a roughly modified weapon capable of a single live shot. His modified pistol was a single-fire gun, albeit that he claimed to have fired 31 live rounds from the pistol he had converted. Mr Bath, on the other hand, sought to convert the Kimar pistol from a semi-automatic blank firing pistol to a live firing semi-automatic pistol that would hold cartridges in its own magazine, be able to load a cartridge from its magazine into the chamber by charging the pistol in the normal way (pulling the slide back and releasing it under its own spring pressure to come forward and strip a round out of the magazine into the chamber), be able to be fired by the pull of the trigger releasing the hammer to strike the firing pin and fire the cartridge in the normal way, extract and then eject the fired cartridge from the chamber and reload again.

[40] Although it is understandable that Mr Bath sought to produce a modified pistol that reflected the style and type of pistol being used, the definition of firearm does not require that level of sophistication. A single shot weapon will satisfy the definition of firearm. I therefore see no error in the CAA’s acceptance of this form of modification as satisfying the definition.

[41] The second difference was their views regarding the machinery needed to undertake the conversion, even the simplified conversion that Mr Ngamoki undertook. In particular, a lathe is required to make up the new barrel. That is a

large, expensive piece of equipment that is unlikely to be found outside professional workshops. It was put to Mr Ngamoki that an “average criminal” would not know how to convert this type of pistol using a lathe. Mr Ngamoki’s answer was “that’s not correct because they have been doing it”. But on further cross-examination he did not appear to have a significant number of instances in which this had happened.

[42] The third difference was their view about how easy it was to remove the hardened steel insert running through the barrel and back into the chamber. Mr Ngamoki described removing it quickly and easily by the use of a pin punch and hammer. Mr Bath considered that the insert had to be milled out with a carbide milling cutter, which required time and care to ensure a straight line through the insert. Mr Bath did not consider it possible to drill out the insert because it was too hard and because of its shape. He did not consider attempting to tap out the insert as Mr Ngamoki had done. His explanation for not trying this was:

Well when you look at a drawing, I’m a gunsmith I work on guns all the time. Now if I took somebody’s gun and simply smashed something out of it because I couldn’t get it out I could break it. I could break the frame I could crack and destroy the whole thing altogether. If you take the route which is that you know will work and that’s the safest for the gun. You can’t, if I was working a gun if that came in and somebody said ‘I want to remove this’ say it was a customer for instance, I wouldn’t just simply smash it out with a hammer at the risk of breaking it. Looking at the drawing, if I do, I can see no way that that can safely be hammered out.

[43] That explanation is entirely acceptable and understandable. However, it conveys a standard of conduct that is probably higher than is to be expected by a person looking to convert a pistol of this kind for unlawful purposes and with limited tools available. As a result, I do not regard Mr Bath’s careful and professional approach to the task as necessarily reflecting the standard required by the definition.

[44] That is not the end of the matter, however; Mr Bath did not accept that the steel insert could have been removed in the way that Mr Ngamoki described because the shape of the insert would have prevented it. Mr Ngamoki provided a report dated 27 May 2013 describing the steps he took. That report was produced in evidence. It appeared to include photographs of the steel insert being driven out using the pin punch. The photographs were stills taken from a video. The video was not of the modification that Mr Ngamoki had undertaken, but of a reconstruction of

the modification. This report drew a response from Mr Bath in the form of a further report dated 8 July 2013. In that report Mr Bath raised questions about the reconstruction. Some were answered when Mr Ngamoki gave evidence. But one aspect was not clarified. This was the configuration of the insert.

[45] In photograph 5 of Mr Ngamoki’s report the steel insert is shown protruding from the chamber after the barrel had been cut off. A small hole is visible on the face of the insert. Photograph 6 shows the insert having been removed. The face of the insert still shows a small hole, as well as a hole on the top of the insert from which gas might escape. In comparison, the photograph that Mr Bath took of the steel insert following removal of the barrel showed it as solid. Further, the steel insert shown in the photograph attached to Mr Ngamoki’s report and in the video reconstruction was a regular cylindrical shape.

[46] Mr Bath asserted, in reliance on the manufacturer’s drawings that the shape of the steel insert is not a regular cylindrical shape. It is what Mr Bath described as wavy; its width varied from narrow to wide twice. Mr Bath explained that this shape is deliberate and intended to prevent the insert being removed. Because Mr Bath milled out the steel insert he could not see that the insert actually had the ‘wavy’ shape. But he produced the manufacturer’s drawings showing a cross-section of the barrel and steel insert with that irregular shape.

[47] Mr Bath was concerned that if, as was indicated by the manufacturer’s drawings, the insert did have this shape, then it could not have been removed as Mr Ngamoki claimed. Mr Ngamoki asserted that the insert did not have the shape shown in the drawings. This assertion could not be verified because when Mr Bath asked to view the modified pistol and its parts, the insert was not supplied. No explanation was given for this omission. The issue was not adequately addressed by Mr Ngamoki in his evidence-in-chief and, unfortunately, not adequately addressed in cross-examination.

The CAA’s findings

[48] The CAA did not deal with the challenge to Mr Ngamoki’s credibility:²¹

[88] I have no reason to question the trustworthiness or reliability of Mr Ngamoki’s evidence. From my long experience at assessing the sincerity and credibility of witnesses I assess Mr Ngamoki as a very experienced and honest expert. However, I regard Messrs Godkin and Bath in the same way.

[89] ... In any event, the manufacturer’s drawings do not establish the appellant’s case that the Kimar 911 handgun cannot be readily converted into a firearm.

[49] Instead the CAA determined the question whether the Kimar pistols were firearms by reference to an earlier case in which Mr Ngamoki had given evidence about Kimar pistols:

[90] This is not the first time that this type of blank firing gun has been before me. The Kimar 911 and Bruni 92 blank firing guns were part of a shipment seized by Customs and the subject of an appeal to me in H v Chief Executive of New Zealand Customs Service [2012] NZCAA 2. [19] of that decision contains an extract from Mr Ngamoki’s report on the examination of those guns and it states that although they are different in appearance externally, internally they are similar. This view was confirmed by H’s witness Mr Woods, at [20] where he states that:

Kimar hand gun is modelled on the A5ACP Colt model 1iJ’l1 handgun but is otherwise of similar design to the Bruni model 92 in terms of function. The Kimar is not quite as robustly made as the Bruni but could be modified to cartridge firing in a similar manner.

[91] As Mr Ngamoki said during the current hearing the model of Kimar

911 handgun he examined for this proceeding was a higher quality design than the Bruni model he had previously converted. In H I concluded that the Kimar 911 and the Bruna 92 blank firing guns were firearms as the proposed modifications would be replacement of component parts and therefore captured by the Arms Act definition of ‘firearm’.

[92] I find that the Kimar handguns now in issue are firearms.

...

[97] The view of the Police that the pistols require very little alteration to adapt them for firing a projectile seems to be a slight gloss because Mr Bath needed to spend quite some time and skill to achieve that; although Mr Ngamoki would need only 1.5 hours. The hand guns can be regarded as being convertible for firing relatively readily.

²¹ Tipple v Chief Executive of New Zealand Customs Service, above n 3.

[98] I find that the modifications possible to the Kimar handgun, a blank firing pistol, make them firearms for the purposes of the Arms Act. They therefore come within the definition of ‘firearm’ in s 2 of that Act. Accordingly, it is an offence to import them into New Zealand without a permit as happened in this case. In any event on attempted importation into New Zealand the guns could have been regarded as starting pistols. The Kimar handgun is not merely an imitation firearm. It has a working mechanism and is manufactured to fire blanks, not to be merely viewed. At the time of importation the gun was unable to fire a projectile but it features a working firing mechanism capable of firing a blank round or otherwise similating a gun shot.

[50] Drawing on evidence given in a different case was an error by the CAA. Further, the reference to Mr Ngamoki’s evidence in the earlier case is clearly problematic in light of his acceptance in this case that the internal configuration of the Bruni was different to that of the Kimar. The cross-examination of Mr Ngamoki in this case included the following exchange:

Q: Now the description, the description that Customs relied on to make their decision and the report that they relied on to make their decision from you was based on the Bruni pistol correct?

A: It was based on the Bruni pistol. Q: That you converted in 2009.

A: And um because I hadn’t converted a Kimar I had to give an opinion

basically.

Q: You assumed it was the same? A: Or similar.

Q: But you had the technical drawings didn’t you? A: And as we’ve seen –

Q: You had the CAD drawings, the technical drawings?

A: As we’ve seen the CAD drawings don’t match the pistol that I

converted.

Q: Well why didn’t you say that in your report Mr Ngamoki?

A: Because at the time that this other report was written I hadn’t

actually converted one.

Q: Why hadn’t you converted one, why didn’t you go and convert the

Kimar pistol at the time?

A: I didn’t have one to convert, other than till this appeal when Mr

Tipple allowed us to convert one.

Q: Could you have asked for one to be sent to you for examination? A: They did come for examination but it had to be visual.

Q: It had the outside visual look is that what you’re saying it looked the

same as the Bruni pistol previously?

A: Yes it does.

Q: However, you have stated in the report to Customs that the Kimar pistols can [be] cut off behind the steel insert, you’ve said that haven’t you?

A: That’s correct.

Q: And that’s not right is it?

A: No it’s not.

Q: No it’s not, no now you can accept that these blank firing or imitation guns they can change their design over the years can’t they?

A: They can do.

Q: They can make them more and more difficult to convert to live fire true? Is that fair to say?

A: Ah they can attempt it.

[51] Although the CAA correctly identified the test required to determine whether the Kimar pistols were firearms, it determined that question, not on the basis of the evidence before it but by reference to evidence given in an entirely unrelated case, including from a witness who did not give evidence in the case before it. I therefore turn to consider whether, on the evidence before the CAA, the degree of modification required to enable the Kimar pistols to live fire brought it within the definition of firearm.

Does the degree of modification required to enable live firing satisfy the definition of firearm?

[52] The original blank firing pistol provided the modified weapon with the general shape of a firearm. The firing mechanism used, but in a limited manner, is the original slide; it no longer performs the feeding function it did in the original semi-automatic design but still performs the task of linking the trigger to the firing mechanism. However, the other significant parts of the pistol are not used. The

barrel has been removed and replaced with a bolt. The magazine is no longer usable. Even to the extent that the firing mechanism is used, it owes little to the original mechanism; a simple pin mechanism could fulfil the same purpose.

[53] Looking at the extent to which existing usable parts of the barrel have been removed, replaced or disabled completely and the relatively sophisticated machinery needed to achieve that result, I consider that the extent of modification required to enable live firing is too great to bring the pistol within the definition of firearm.

Fourth ground of appeal: are the Kimar pistols starting pistols for the purposes of s 16(1)?

The CAA’s decision

[54] The Kimar pistols were not seized on the basis that they were starting pistols. That possibility was raised for the first time before the CAA as a fall-back position in the event that the CAA held that they were not firearms.

[55] The CAA noted that there was no definition of “starting pistol” in the Arms Act. It referred to the definition of “pistol” in the Arms Act and to a dictionary definition of starting pistol (“a pistol used to signal the start of a race”) and considered that:

Within the context of s 16(1)(a) of the Arms Act, the dictionary definition does not provide any further clarity. The term “pistol” is already used within that sub-paragraph, indicating that a starting pistol was intended to be considered as an article distinct from an ordinary pistol.

[56] The CAA went on to refer to legislative definitions of “starting pistol” in Australian legislation. Of these, only the Northern Territory legislation contained a specific definition of starting pistol, being:²²

A device that is used or designed to control the start of an event at a sporting fixture that is not capable of discharging shot, a bullet or other missile.

[57] The CAA also referred to definitions of “blank firearm”, including that

_{contained in the New South Wales Firearms Act 1996:}

²² Firearms Act NT, s 3(1).

Blank firearm means a device that is designed for firing blank cartridges only, such as a starting pistol.

[58] The CAA held that:²³

I accept that these legislative examples offer a guide to the defining characteristics of a starting pistol. All contemplate that a starting pistol will be unable to fire a projectile but will most likely feature a working firing mechanism capable of firing a blank round or otherwise simulating a gun shot. It is submitted for Customs that the Kimar handgun contains a working mechanism capable of firing a blank round. I so find.

[59] The CAA then considered whether the Kimar pistol could be regarded as an imitation firearm and accepted the Chief Executive’s submission that simply describing a handgun as a blank firing handgun cannot, in itself, determine whether it is also a starting pistol:²⁴

[69] The characteristics of what are commonly termed starting pistols must be the key consideration as to whether permission is required to import them. These characteristics can be gleaned both from a practical appraisal of the function a starting pistol performs and the approach taken in overseas jurisdictions in classifying these items.

[70] I accept that the dividing line between a starting pistol and an imitation firearm should reflect that once a handgun has no workable firing system and no ability to fire blanks it can be considered an imitation firearm, rather than a starting pistol.

[71] It is also submitted for Customs that, in requiring a permit to import starting pistols, Parliament has clearly intended to place restrictions upon the importation of blank firing pistols which, although they cannot fire projectiles, are mechanically identical in function to real pistols and produce a similar visual and audible effect when fired. It is put that this is consistent with the underlying purpose of the Arms Act which states that it is “an Act to consolidate and amend the law relating to firearms and to promote both the safe use and the control of firearms and other weapons.”

[72] Customs submit that Parliament’s intent was to recognise that an item with a high degree of visual and mechanical similarity to a real firearm has the capability to cause significant mischief if misused.

[60] After going on to consider the question of modification of the Kimar pistols and concluding that they are firearms, the CAA returned to the issue of whether they

_{were also starting pistols:}

²³ _{At [64].}

²⁴ At [69] – [72].

[93] In the alternative, Customs submits that these guns are still starting pistols, which require a permit to import, and the appellant did not have a permit to import starting pistols.

[94] It is put that because the Kimar handguns imported by the appellant have working firing mechanisms (starting pistols) and are also visually similar to real firearms (imitation firearms) then even if the Kimar handguns are not considered to be firearms they nevertheless still require permits to import as starting pistols. I agree as I have explained above. But I have already found them to be firearms.

[61] In reaching these conclusions that CAA made two errors. First, although it identified the characteristics of a starting pistol as the key consideration it did not consider the evidence that Mr Tipple adduced regarding those characteristics. Secondly, although it referred to what it considered was Parliament’s intention in requiring permits to import starting pistols it did not identify any basis for its conclusion beyond the stated purpose in the Act itself.

Are the Kimar pistols starting pistols for the purposes of s 16(1)?

[62] As the CAA noted, “starting pistol” is not defined in the Arms Act. Mr Tipple and Mr Bath described what, historically, was regarded as a starting pistol and what is now used for that function. Mr Bath confirmed that, historically, starter pistols were made from original pistols. Mr Tipple was asked to describe the difference between a starting gun and an imitation gun and said:

When starting guns were imported after the original Arms Act in 1928 and that Arms Act only restricted one thing and that was the length of a gun and the New Zealand legislators were very clever in saying, the only problem we have with firearms is that people wanna hide them, and so the first legislation was to hide what they called a pocket machine-gun and that was pistols that somebody could put in their pocket and the way that the original starting pistols were manufactured was that they were a real gun with only two chambers. Instead of a barrel, they had a plug of steel that looked like a barrel and the cylinder was a real cylinder and it had just been chopped off at the front. So that meant that if a live cartridge was inserted that could cause more damage to the person than the, you know, the firer, than you know, nothing would come out and the end of that cylinder was blocked so that a full-length cartridge couldn’t actually be put there ...

[63] Mr Tipple then produced a replica Colt as an example of the type of gun from which starting pistols were first produced and asked how a starting pistol could be made from such a gun:

A: Just two steps. Instead of a barrel there would be a plug of steel and the plug of steel would look like the gun so they wanted the starting pistols to look like a gun and the cylinder which can just be removed with a pull of that front pin, instead of being complete and connecting the cartridge with the barrel, it was cut off through here so that only half of the cylinder existed.

Q: And how, obviously how hard would it be to make it live firing?

A: If you had two parts you could make it live firing. If you bought the cylinder and if you bought the barrel.

Q: So the replacement of two –

A: Two parts and so that would be unscrewed, screwed and then pull, cock.

Q: So this is a real firearm?

A: Yeah and so then that starting pistol would fire a cartridge like a real gun.

[64] A little later Mr Tipple described how starting pistols had changed over time:

Now it’s not so politically correct to have something that looks like a gun and so the most common one used in schools is an overhead contraption with two huge hammers that just go flap flap on a giant paper cap like a cowboy cap or these little muck metal guns which will fire eight shots, using a blank

22.

[65] Mr Tipple produced a gun which he described as a starting pistol:

It doesn’t have a chamber projecting forward and it doesn’t have a gas exit hole forward. The chamber puts up and the gas fires up so it’s designed to make it as difficult as possible to, so the gas fires up out of there and is all magazine in there with all the cartridges and all the blanks facing upwards so that the force of the explosion goes up rather than out.

[66] The effect of Mr Tipple’s and Mr Bath’s evidence is that an object used as a starting pistol may come in a variety of forms ranging from (historically) live firing pistols modified to fire blank cartridges, to blank firing pistols that can be modified readily for live firing, to (currently) blank firing imitation pistols that cannot readily be modified for live firing and, finally, the ‘flap flap’ style. There was no effective challenge to this evidence in cross-examination. Nor did Mr Ngamoki make any reference to starting pistols in his evidence.

[67] Because what is used as a starting pistol can take more than one form, it is necessary to consider how the term is used in s 16(1) in order to determine what form requires a permit to import; it can hardly be suggested for example that the modern ‘flapflap’ style of starting pistol requires a permit to import under the Arms Act.

[68] Starting pistols are one of several specified objects under s 16(1) that can only be imported with a permit. They are also the only one of the list that is not specifically defined. When one considers the list of the objects that cannot be imported without a permit, it is apparent that all are objects with the realistic capacity to inflict actual injury. An orthodox approach to interpretation would therefore treat the term ‘starting pistol’ as referring to a type of pistol capable of inflicting actual injury, such as a modified live firing pistol or a blank firing pistol capable of being readily modified for live firing. A starting pistol that cannot, in a practical sense, be modified for live firing and which therefore does not present any direct threat is not, in my view, a starting pistol for the purposes of s 16(1).

[69] That interpretation would mean that the term overlapped with “firearm”, which also appears in s 16(1). But so also do other items in that list. Therefore, the fact that ‘starting pistol’ might appear otiose should not detract from interpreting it in the manner I suggest.

[70] It is notable that starting pistols are mentioned only in the provisions relating to importation (ss 16 – 19). There is no reference to them in the licensing provisions or the provisions creating offences arising from the possession, sale or use of firearms. There is no obvious reason for treating the importation of starting pistols differently from the sale, possession or use of them unless (perhaps) to ensure that objects capable of causing injury are not imported under the apparently benign description of starting pistols.

[71] The absence of any other reference to starting pistols also suggests that the CAA’s view of Parliament’s intention (to address the ‘significant mischief ’ created by objects with a high degree of visual and mechanical similarity real weapons) is not correct. One would expect that if the mischief Parliament had in mind could be

created simply by a high degree of visual and mechanical similarity the same objects that require permits to import would also require permits to sell and the possession and use of which would be subject to constraints.

[72] For these reasons I consider that the Kimar pistols that Mr Tipple imported, which cannot readily be modified for live firing are not starting pistols within the meaning of s 16(1).

Result

[73] The appeal is allowed. The seizure of the Kimar pistols is disallowed. The remaining pistols are to be returned to Mr Tipple.

P Courtney J