Director of Public Prosecutions (NSW) v Wilson

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12523/04 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v WILSON

JUDGMENT 1 HIS HONOUR: This is an appeal by the Director of Public Prosecutions pursuant to s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act against an order by a Local Court magistrate sitting in a Local Court at Wee Waa dismissing a charge under s 39(1)(a) of the Firearms Act which had been heard summarily by the magistrate. 2 Section 39(1)(a) of the Firearms Act provides:- "A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping…" 3 At the hearing before the magistrate a police officer gave evidence for the prosecution and the defendant gave evidence in his own case. The magistrate reserved his decision and handed down a reserved judgment a few days later. In his judgment the magistrate said that the alleged offence had come to light when the defendant himself had reported to police that his firearm was missing. In the judgment the magistrate summarised evidence given by the defendant, which the magistrate clearly accepted, as follows:- "The defendant's evidence essentially is that he's a primary producer. He has responsibility for a number of properties in different directions out of the town. In the morning he fed stock, he saw a bull down in the paddock. He obtained his rifle from a property different from the one on which the bull was and he shot the bull. He was then on his way through town, received a phone call from his football coach inviting him to training in Gunnedah. He realised he had the rifle with him, put it in a black carry bag behind the driver's seat of his utility, moved the seat forward to allow the rifle to be placed there, moved the seat back and covered it with a few jumpers. He then, he had previously removed the bullets and the bolt from the rifle and put them in the glovebox. The glovebox was not locked. He checked to see that the gun or its bag was not visible from outside the vehicle, left the vehicle outside his coach's house, then went with a few mates to Gunnedah for training and came back about four hours later. He realised the rifle was stolen, or he realised the car had been broken into, the glovebox was not opened. When he returned to the vehicle, when he checked, realised the ammunition had gone and the gun had gone. That is the essence of the evidence". 4 A little later in his judgment the magistrate made the following findings of fact:- "I make the following findings of fact, that the defendant - and it basically accepts the defendant's evidence under oath, that he obtained the gun initially from a place of safe keeping. He used it appropriately and was returning with the rifle to his home where he intended to place it in safe keeping. He received a telephone call. He arranged with others to go to training at Gunnedah. I find that he parked and locked the car outside the coach's house. I find that he directed his mind to concealing the firearm and in that context he placed the gun in a carry bag behind the seat of his vehicle, having moved the seat forward and back and then covered the bag with jumpers, having taken out the bolt and bullets which he put in the glovebox. I am satisfied that the rifle and the carry bag could not be seen from outside the vehicle. On his return to his vehicle he realised the car was broken into. The next day he reported the stealing to police". 5 The magistrate said in his judgment that on the basis of the defendant's evidence and "the lack of any actual evidence" from the prosecution, he was not persuaded that the offence charged had been made out and he dismissed the charge. 6 Section 56(1) of the Crimes (Local Courts Appeal and Review) Act provides that "the prosecutor may appeal to the Supreme Court against: . . . . . (c) an order made by a Local Court dismissing a matter the subject of any summary proceedings". 7 However, the prosecutor can appeal "only on a ground that involves a question of law alone". 8 On this appeal it was submitted by counsel for the plaintiff that the Local Court magistrate had made errors of law:-

(ii) In applying the wrong test for determining whether the defendant had contravened s 39(1)(a).

(iii) In not finding that the defendant had contravened s 39(1)(a) by failing to take all reasonable precautions to ensure the safe keeping of the firearm. 9 I will deal with each of these alleged errors of law in turn.

1 Whether the magistrate erred in law in construing s 39(1)(a) of the Firearms Act . 10 Counsel for the plaintiff submitted that s 39(1)(a) should be given a purposive construction, so as to carry into effect the underlying principles and objects of the Firearms Act, as set out in s 3 of the Act. 11 By s 3(1) of the Act the underlying principles of the Act are stated to be:-

(a) To confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) To improve public safety:- (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms…

By s 3(2) of the Act the objects of the Act include - "(e) to ensure that firearms are stored and conveyed in a safe and secure manner". 12 Counsel for the plaintiff also referred to passages in the second reading speech of the responsible Minister in moving that the Bill which became the Firearms Act be read a second time (Hansard 25 June 1996 Legislative Council 3557-3563). 13 It was submitted by counsel for the plaintiff that s 39(1)(a) should be interpreted stringently, so as to carry into effect the legislative purpose of ensuring that firearms are stored and conveyed in a safe and secure manner. The requirement in s 39(1)(a) that a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping should be interpreted as meaning that, if there is any reasonable precaution to ensure the safe keeping of a firearm which the person possessing the firearm fails to take, then that person has contravened s 39(1)(a). 14 Counsel for the defendant did not make any submission in opposition to these submissions by counsel for the plaintiff and I accept the interpretation of s 39(1)(a) advocated by counsel for the plaintiff. However, I am not persuaded that the magistrate made any error in construing s 39(1)(a). In his judgment the magistrate correctly stated the terms of s 39(1)(a). The terms of the section are, in my opinion, quite clear and there was no need for the magistrate in his judgment to enter into a discussion of the proper interpretation of s 39(1)(a). The magistrate did refer to the statement in s 3 of the Act of the underlying principles and objects of the Act.

2 Whether the magistrate erred in law in applying the wrong test for determining whether the defendant had contravened s 39(1)(a) . 15 Near the conclusion of his judgment the magistrate said "I am satisfied that he (the defendant) placed the rifle given the circumstances in a position which was secure". This is not the precise language in which s 39(1)(a) is expressed. However, earlier in his judgment the magistrate had correctly stated the terms of s 39(1)(a) and I am not satisfied that the magistrate applied a test other than the test required by the words of s 39(1)(a).

3. Whether the magistrate erred in law in not finding that the defendant had contravened s 39(1)(a) by failing to take all reasonable precautions to ensure the safe keeping of the firearm . 16 I have already stated that I accept the submission made by counsel for the plaintiff that, on the proper interpretation of s 39(1)(a), a person who possesses a firearm contravenes s 39(1)(a) if there is any reasonable precaution to ensure the safe keeping of the firearm which he fails to take. It was submitted that the magistrate should have found that there were reasonable precautions to ensure the safe keeping of the firearm, which the defendant had failed to take. The precautions which it was suggested by counsel for the plaintiff the defendant could have taken and had not taken were:-

(i) Locking the firearm in the house of the football coach, while the defendant was attending football training.

(ii) Taking the firearm to a police station and asking police to look after the firearm, while the defendant was attending football training.

(iii) Driving to his own home and leaving the firearm at his home, before travelling to football training.

(iv) Making enquiries to see if he could leave the firearm "somewhere else" while he was attending football training. 17 At the hearing before the magistrate the suggested precautions (i), (ii) and (iv), but not (iii), were put to the defendant in cross-examination. The defendant said that he had not asked the football coach whether he could leave the firearm at the coach's house but he did not know whether the coach "had any sort of secure -". The defendant accepted that there was no reason why he could not have gone to a police station and asked police to look after the firearm. 18 Apart from the questions put to the defendant in cross-examination and the answers given by the defendant, there was no evidence before the magistrate about whether the precautions suggested were reasonably practicable precautions. For example, there was no evidence that the football coach would have been willing to have the firearm left at his house or whether the football coach had any means at his house of ensuring the safe keeping of the firearm. There was no evidence that police at a police station would have been willing to accept responsibility for looking after the firearm or whether a police station would still have been open when the defendant returned late at night from football training. 19 As to suggested precaution (iv), I do not accept that it was a reasonable precaution which the defendant was required to take, that he should make inquiries of sundry persons to see if he could leave the firearm "somewhere else" while he was attending football training. 20 It is necessary to keep in mind that an appeal lies to the Supreme Court under s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act only on a ground that involves a question of law alone. Given the terms of s 39(1)(a) of the Firearms Act, the terms of s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act, the distinction between a question of law and a question of fact (see, for example, Vetter v Lake Macquarie City Council (2001) 202 CLR 439 especially at 450 (24-25) per Gleeson CJ, Gummow and Callinan JJ) and the criminal onus and standard of proof, the plaintiff can succeed on this appeal, only if it is established that the only conclusion the magistrate could properly have reached was to have been satisfied beyond reasonable doubt that the prosecution had proved that there was a precaution which the defendant could have taken and did not take, which was a reasonable precaution, and that any other conclusion by the magistrate would necessarily have been wrong. 21 The magistrate found that the defendant had removed the bolt and ammunition from the firearm and put them in the glovebox of the vehicle, that he had put the firearm in a bag, that he had put the bag containing the firearm behind a seat in the vehicle and covered the bag with jumpers so that the bag could not be seen from outside the vehicle and that he had locked the vehicle. The magistrate was not satisfied beyond reasonable doubt that there was any other reasonable precaution which the defendant had failed to take. 22 In my opinion, it has not been established that the magistrate was necessarily wrong in forming this conclusion. On the evidence it was open to the magistrate not to be satisfied beyond reasonable doubt that it had been established that any precaution which the defendant did not take was a reasonable precaution which he should have taken. 23 My conclusion derives some support from the decision of Zelling J of the Supreme Court of South Australia in Holmes v Arato (1983) 32 SASR 106, where the regulation in the South Australian Firearms Regulations was substantially the same as s 39(1)(a) of the Firearms Act and the facts were very similar. 24 I dismiss the appeal and order the plaintiff to pay the defendant's costs of the appeal.

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