The Precedent: Moore v Gooderham

Moore v Gooderham
CRIMINAL; Criminal Law, Criminal Procedure
QUEEN'S BENCH DIVISION
LORD PARKER CJ, ASHWORTH AND ELWES JJ
21 OCTOBER 1960

The respondent sold an airgun to a purchaser who was, and whom the respondent had reasonable ground for believing to be, under seventeen years of age. The airgun was capable of causing some injury, but was unlikely to cause more than trivial injury to a human being at a range of more than a few feet, though it might cause injury from which death might result if, eg, it were discharged at another person's eye at extremely close range. The respondent was charged with selling a firearm contrary to s 19 of the Act of 1937. By s 32(1) of the Firearms Act, 1937, a firearm means any lethal barrelled weapon from which a shot, bullet or other missile can be discharged. On appeal from the respondent's acquittal on the ground that the airgun was not a lethal weapon within s 32(1).

Held - The airgun, if misused, was capable of causing injury from which death might result and therefore was a lethal weapon; accordingly the offence had been made out.

Read v Donovan ([1947] 1 All ER 37) considered.

Appeal allowed.

Notes

This was an appeal by William Alexander Moore, by way of Case Stated by the justices for the borough of Lowestoft, from the dismissal of an information which he had preferred on 9 November 1959, that on 31 August 1959, the respondent, Stanley John French Gooderham , sold a firearm, namely, a "Diana" airgun to Michael Alan Holmes, a person whom he knew or had reasonable ground for believing to be under the age of seventeen years, contrary to s 19 of the Firearms Act, 1937. The following facts were found. On 31 August 1959, at Lowestoft, the respondent sold a "Diana" airgun to Michael Alan Holmes, who was then under the age of seventeen and at the time of sale the respondent knew or had reasonable grounds for believing that he was under that age. The airgun had a barrel from which missiles could be discharged such as cup-shaped plastic, or metal, pellets, or small pointed darts. Discharge was effected by air being forced into the barrel behind the pellet or dart by releasing a compressed spring. In para 2(e) of the Case Stated the justices found that the airgun was of a type which was the least powerful which could be obtained. It was offered for sale in a carton with instructions which said that it was suitable for indoor use. The power of the airgun was such that it was capable of causing some injury but it was not capable of causing death to a human being or of causing more than trivial injury except probably to the eye if fired at close range. It was unlikely to cause even trivial injury at a range of more than a few feet. In para 2(f) of the Case Stated the justices found that the power of the airgun was such that when it was discharged at a range of a few inches at the surface of a piece of plywood five thirty-seconds of an inch in thickness, lying on a hard floor, a metal pellet became embedded in the plywood to such an extent as to be visible from the remote side, and the remote side was penetrated by the point of a dart, the body of which failed to penetrate the nearer surface.

It was contended by the appellant that the airgun was a firearm for the purpose of s 19 of the Firearms Act, 1937. The respondent, who was not represented, did not offer any contention apart from giving evidence about the power of the airgun.

The facts stated in para 2(f) of the Case, which were included at the appellant's request, were established by cross-examination of the respondent by the appellant and did not form part of the prosecution's case. To render them relevant to the issue, the justices considered that there should also have been evidence concerning the relative resistance to penetration of plywood and human flesh. In the absence thereof they were uncertain whether pellets, discharged at the same close distance at an unprotected human body, would have broken the skin or would have caused a bruise without breaking the skin or would have merely stung without bruising. They thought that the point of a dart, but not its body, would have penetrated the skin, and that ordinary clothing, thick enough to cover the point of a dart, would be complete protection against any injury.

The justices were of opinion that the airgun was not a lethal weapon and therefore was not a firearm for the purpose of s 19 of the Firearms Act, 1937.

The question for the opinion of the court was whether the justices came to a correct determination of the law.

21 October 1960. The following judgments were delivered.

LORD PARKER CJ. Section 19(1) of the Firearms Act, 1937, is in these terms:

"No person under the age of seventeen years shall purchase or hire any firearm or ammunition, and no person shall sell or let on hire any firearm or ammunition to any other person whom he knows or has reasonable ground for believing to be under the age of seventeen years."

By s 32(1), "firearm", so far as it is relevant to this case, is defined in these words:

"'firearm", except where otherwise expressly provided, means any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged ... "

The facts are as follows. On 31 August the respondent sold this "Diana" airgun to Michael Alan Holmes. Michael Alan Holmes was under the age of seventeen years, and the respondent at the time knew or had reasonable ground for believing that Holmes was under the age of seventeen years. Accordingly, the sole question was whether this "Diana" airgun was a firearm within the statute and within s 19(1). The justices held that it was not, and they came to that conclusion really on these grounds: that, having regard to the definition in s 32(1) and, in particular the word "lethal", the weapon in question must be one likely to cause injury of the sort which might result in death. They rejected a contention that a lethal weapon was one which was merely capable of causing injury though not injury of the sort likely to cause death. In saying that, I understand that they were giving effect to the word "lethal" in this sense: that the weapon must be of a sort which causes injury of a type from which death would in the ordinary way result. For my part, I think that they were fully entitled to give effect to the word "lethal" in the sense that the injury must be of a kind which may cause death. That is the ordinary meaning of the word, but it is to be observed that in this connexion one is not considering whether a firearm is designed or intended to cause injury from which death results, but rather whether it is a weapon which, however misused, may cause injury from which death may result. I may put it in this way. Section 19 is to 576 prevent, amongst other things, a weapon getting into the hands of a very small child who may misuse it by firing it point blank, and point blank, say, at an eye or an ear, or some particularly vulnerable part; and if it is capable of causing more than trifling and trivial injury even when misused, then it is a weapon which is capable of causing injury from which death may result. It seems to me that the justices were really looking at the weapon and saying: is it the sort of weapon which in the ordinary way if properly handled will cause death?

That being the approach to the matter, what were the facts? This was a barrelled weapon from which a missile could be discharged, the missile being either plastic or metal pellets or small darts. In para 2(e) of the Case Stated the justices say that it was the least powerful type of airgun which was obtainable. The power of the gun was such
"that it was capable of causing some injury but it was incapable of causing death to a human being, and incapable of causing more than trivial injury."

Pausing there, if there were nothing more in the case, I think for my part that the justices would have been justified in coming to the decision that they did reach; but they go on to qualify that by saying -
"except probably to the eye at extremely close range, and unlikely to cause even trivial injury at a range of more than a few feet."

Then in para 2(f) they go further and say:

"The power of the said airgun was such that when it was discharged at a range of a few inches at the surface of a piece of plywood five thirty-seconds of an inch in thickness, lying on a hard floor a metal pellet became embedded in the plywood to such an extent as to be visible from the remote side and the remote surface was penetrated by the point of a dart, the body of which failed to penetrate the nearer surface."

It is true, as the justices point out, that they did not have evidence before them comparing the resistance of the human skin with the resistance of a piece of plywood but I find it quite impossible on that finding to say that this was not a weapon which, when misused, was capable of causing injury from which death might result.

"A lethal weapon means a weapon capable of causing injury, and if [the weapon] is barrelled, and if 'a shot, bullet, or other missile can be discharged' from it, it is a firearm."

Again, at the end of his judgment, he said ([1947] KB at p 328): "... the question simply is whether the weapon is capable of inflicting harm." That was a case in which the weapon in question if misused was clearly a lethal weapon and, in those circumstances, I do not feel that too much attention can be attached to the definition given in that judgment. I am far from saying, however, that it is wrong if one once considers that all that it is necessary to find is a weapon capable of doing something more than trivial harm because, in those circumstances, death might well result if it were fired at a particularly vulnerable point. I think that the justices were wrong in this case and that on their findings there is only one conclusion, namely, that the offence was made out. In those circumstances I would send the case back to the justicies with such a direction.

"The power of the said airgun was such that when it was discharged at a range of a few inches at the surface of a piece of plywood five thirty-seconds of an inch in thickness, lying on a hard floor a metal pellet became embedded in the plywood to such an extent as to be visible from the remote side and the remote surface was penetrated by the point of a dart, the body of which failed to penetrate the nearer surface."