Garcia v R

Judgment (7 paragraphs)

[1]

conviction appeal judgment

This is an appeal by Ricardo Garcia against his conviction by a Magistrate for two offences:- 1. Firstly, an offence under s.7(1) of the Firearms Act 1996 of possessing an unauthorised pistol; and 2. Secondly, an offence under s.39(1)(a) of the Firearms Act 1996, of not keeping a firearm safely.
In an appeal such as this it is necessary to demonstrate a factual, legal or discretionary error in order for the appeal to succeed: McNab v DPP [2021] NSWCA 298. If error is demonstrated, I am required to give the judgment which in my opinion ought to have been given at first instance.
The appeal is a rehearing based on the evidence in the court below, and I am required to form my own judgment of the facts in so far as I can, but recognising any advantage that the Magistrate may have had in seeing and hearing the witnesses. That of course includes taking into account, if relevant, the Magistrate's assessment of the credibility of witnesses who gave evidence in the Local Court.
In this appeal, it has been submitted that the Magistrate erred in finding the offences proven because:- 1. Firstly, there was no evidence that the Appellant was not authorised by a licence or permit to be in possession of an imitation firearm; and 2. Secondly, that the Prosecution had failed to exclude the reasonable possibility that the subject item was "produced and identified as a children's toy" (as contemplated by the exception in subs 4D(4) of the Firearms Act 1996).
As the proceedings involve criminal allegations, the Prosecution at all times carried the onus of proof of the elements of the charges. The Appellant is and was presumed innocent unless and until his guilt was proved beyond reasonable doubt.

[2]

The arguments on appeal

Firstly, it was argued that the Prosecution had not led any evidence that the Appellant was not authorised by permit to possess the seized item. This was not an issue argued or addressed in the Local Court proceedings. It was however, a point that was taken on this appeal. In order to address this point, the Prosecution sought leave pursuant to s.18 of the Crimes (Appeal and Review) Act 2001 to adduce evidence in the form of a certificate under s.87 of the Firearms Act 1996, certifying that the Appellant was not at the relevant time, the holder of a licence or permit which authorised him to possess the item. Although the Appellant's solicitor objected to leave being given to adduce this evidence, he appropriately conceded that he was unable to point to any particular prejudice that would be suffered by the Appellant if the evidence was admitted. Given that this was not an issue on which the Local Court proceedings had been fought, and given that there was no suggestion that the Appellant had ever held a relevant permit or licence, I granted leave, and the s.87 certificate was admitted into evidence, and addresses this point.
The fundamental issue on the appeal therefore became the question of whether the Prosecution had excluded the reasonable possibility (as contemplated by subs 4D(4)) that the item was "produced and identified as a children's toy".
The Appellant points firstly to the decision of Wilson J in Commissioner of Police v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981. That was an appeal from a magistrate's finding that a number of objects seized by police amounted to "children's toys" which fell within the exception in subs 4D(4). The items had been seized from a gift shop, and resembled firearms. The items when seized were apparently contained inside packaging consistent with them being children's toys, and the packaging also had the word "toy", or "children's toy" displayed in various languages. In challenging the Magistrate's finding, the Commissioner of Police argued that the Magistrate had placed too much weight on the packaging of the items, and focussed unduly on the purpose for which the items were "produced", without considering also the "identification" of the items. The Defendant in that case however submitted that the phrase "produced and identified" in subs 4D(4) should be read as a composite phrase, and that it was not appropriate to give separate consideration to the two words.
Wilson J found that the Magistrate had erred by focussing on the packaging of the items as being indicative that they were produced as toys, and in failing to consider separately the "identification" of the items, by reference to their intrinsic qualities. Wilson J however explained that subs 4D(4) requires consideration not only of the "production" (or manufacture) of the item, but also consideration of its "identification". In other words, it is necessary to look at the objective or intrinsic nature of the item itself, and it was not enough to look just at the packaging in order to determine whether the item is "produced and identified" as a children's toy.
In the appeal now before this Court, reference was also made to the decision of the Court of Criminal Appeal in Darestani v R [2019] NSWCCA 248, to which reference will be made later in this judgment.
In the current case, there was no packaging associated with the item. However, the Appellant submits that the following evidence is to be taken into account in assessing the production of the item: 1. The material used in manufacturing the item - plastic. 2. The weight of the item - light weight. 3. The size of the item - the item is slightly bigger than the comparison (real) firearm and the "slide "of the item is shinier than the comparison (real) firearm. 4. Any other features of the appearance of the item - the item is not an imitation of any particular brand of pistol, and the left side of the subject item has green marking and has embossed letters. 5. There is no evidence concerning the functionality of the subject item apart from the police evidence that it had a working slide and makes a clicking noise, which was held in Darestani to be 'not an uncommon feature of a children's toy'.
Given the onus of proof that applies in criminal cases, and given that the Appellant raised the exception in subs 4D(4), it thus fell to the Prosecution to prove beyond reasonable doubt that the item was not "produced and identified as a children's toy".
Based on the matters set out in the Appellant's submissions, the Appellant argues, firstly, that the item was "produced" as a children's toy.
Having examined photographs of the item, and having read descriptions of its weight and construction, and having also read the expert report, I accept that on balance the item was "produced" as a toy, and probably as a children's toy. However, even if that question might be open to different conclusions, it seems to me that by reference particularly to the weight of the item, to its component parts, and to the material from which it was made, the Prosecution had not proved beyond reasonable doubt that the item was not "produced" as a children's toy.
However, that is not the end of the story, because subs 4D(4) effectively treats an item as a children's toy only if it satisfies the requirement that it was both "produced" and "identified" as a children's toy.
The Prosecution relies substantially on the opinion expressed in the expert report of Forensic Firearm Examiner Mr Cole. In his report, on which he was not required for cross-examination, Mr Cole said that "In my opinion the exhibit … is an IMITATION FIREARM as described in Section 4D(3) of the Firearms Act 1996." The Crown argues that there is no basis to reject the evidence of Mr Cole. The Prosecution further argues that a significant distinguishing feature between this case, and Darestani, is that the expert evidence in Darestani was challenged, and the expert made a number of concessions, which are set out in paragraphs 32-34 of the Darestani decision.
In response to this submission, the Appellant in this case argues that the report of the expert Mr Cole did not consider the exception contained in subs 4D(4). The Prosecution counter-argues that this is speculative, and that there is no evidentiary basis for this Court to find that Mr Cole did not consider the exception in subs 4D(4) when coming to his conclusion that the seized item was an imitation firearm within the meaning of subs 4D(3).
Furthermore, the Prosecution argues that the Court would find that the seized item is not a children's toy having regard to the relevant factors outlined in the authorities of Howard Silvers and Darestani, namely:- 1. As noted by Mr Cole and seen in photographs (Exhibit 2), the seized firearm has similar external features in the form of size and appearance of a real firearm. The Crown submits that the green markings seen in (photo) Exhibit 5 do not detract from the seized firearm having the appearance of a real firearm. 2. As noted by Mr Cole and as can be seen in Exhibit 5, the seized firearm is not brightly coloured and does not have an orange-coloured cap, as referred to in Darestani. The seized firearm is the same colour as a real firearm. 3. The seized firearm had moveable parts consistent with the operation of a firearm. 4. As noted by Constable Koro, the seized firearm was not in any packaging at the time it was located by police. 5. The expert evidence of Mr Cole is that the seized firearm is an imitation firearm.

Determination

Turning then to my determination of the issues.
Firstly, I respectfully disagree with the Prosecution argument that the report of Mr Cole addresses the exception in subs 4D(4). In this regard, it is important firstly to note that the report makes no reference to subs 4D(4). While the Crown argued effectively that it is to be inferred that the expert must have considered subs 4D(4) in coming to his conclusions, again I do not agree. In my view, what the expert has done, and appropriately so, is to avoid expressing a view about the question raised by subs 4D(4) which involved questions of whether the item was "produced and identified as a children's toy". In my view, it would have been beyond the expertise of the Firearms Examiner to have expressed a view about these questions. My conclusion about this might be said to gather some support from the observations made at paragraph 34 of Darestani, where Price J (as his Honour then was) noted that the expert in that case had said that this topic was beyond his area of expertise. In my view, the expert report of Mr Cole does not address the question raised by subs 4D(4).
However, and as noted above, the Prosecution submits that the Court would nonetheless still conclude that the item was not "produced and identified as a children's toy", based on the various arguments I have earlier set out from the Prosecution's written submissions, all of which I have considered.
In my view, the intention of subs 4D(4) is to exclude from the offence provisions objects which are clearly a children's toy, but to prohibit items which, although they may have been manufactured or produced as a children's toy, would or may nonetheless "identify" as a real firearm, because they "substantially duplicate" the attributes or appearance of a real firearm. This might arise, for example, from the intrinsic nature of the item as originally manufactured, but it might also arise where a children's toy has been modified - e.g. by the use of paint, to more closely resemble a real firearm.
These observations that I have just made are consistent with what Price J said at par 62 of Darestani. In that case, his Honour noted that one of the aspects that may be relevant to how an item is "identified" is the manner in which it was used. His Honour employed the illustration of an object that might objectively be identified (e.g. by its appearance) as a children's toy being brandished in a threatening manner, such as by being held to the back of a person's head, along with a demand for money. Price J stated that this would provide an example of where an object that was "produced" as a children's toy would lose its "identification" as a children's toy, by the way in which it was used.
The principle to be derived from this part of Darestani is that the "identification" of an item will depend, at least in part, on the context in which the item is being possessed, and/or, if there is evidence of the item being "used" - the context in which it is being used. For instance, if an item identical to the item in this case was in the hand of a child, and was being used in the course of a game of "cops and robbers", the fact that the item was being used in that way would be relevant to the question of whether the item was being "identified" at the relevant time as a children's toy.
In the case now before the Court, there is no (admissible) evidence of the item being "used", because the Magistrate dismissed the charge which involved that allegation. The evidence was therefore limited to the item being found inside the Appellant's apartment. In those circumstances, the question of whether the item was "identified" as a children's toy comes down to the objective evidence about the item itself.
The fact that the Appellant told police that the item was a toy, and the fact that there is no evidence that he was using the item, are not determinative of the question of whether the Prosecution had proven beyond reasonable doubt that the item was not "identified" as a children's toy. The same can be said about the fact that the Appellant may himself have regarded the item as a toy or children's toy.
The Appellant argues that the Magistrate erred in his assessment of whether the Prosecution had proven beyond reasonable doubt that the item was not identified as a children's toy - by reason that the Magistrate took into account a lack of evidence of past use of the item by children, and had regard to a possible future scenario - namely the comment by a police officer that if the Appellant had been holding the item in his hand in the street, the police officer would have drawn his own handgun.
In support of this argument, the Appellant pointed to the decision in Darestani, where Price J said at par 67 that "the identification of the object as a children's toy is confined to the time of possession, and the past and future use of the object is an irrelevant consideration."
I do not accept that the Magistrate's comment about there being no evidence of past use by children, and about a police officer drawing his gun if the item had been held in the Appellant's hand in a public street, are indicative of error by the Magistrate in determining the "identification" question. Firstly, the Magistrate actually quoted paragraph 67 of Price J's judgment. Secondly, in my view the Magistrate's comments were merely passing observations in an ex-tempore judgment in which he was, for the sake of argument, comparing and contrasting different factual scenarios.
There remains however, the question of whether I am satisfied that the Magistrate committed an error in coming to the conclusion beyond reasonable doubt that the item was an imitation firearm, and was not (produced and) identified as a children's toy.
Given that the exception in subs 4D(4) was raised by the Appellant, the question for the Magistrate was whether the Prosecution had removed any reasonable doubt that the imitation firearm was "produced and identified" as a children's toy. In other words, it was not up to the Appellant to prove that the item was "produced and identified" as a children's toy.
I have earlier set out my conclusion that the Prosecution had not proved beyond reasonable doubt that the item was not "produced" as a children's toy. In other words, that there remained a reasonable possibility that the item was produced as a children's toy.
There remains however, the question of whether there existed a reasonable possibility that the item was "identified" as a children's toy.
In my view that question fell to be determined based on the intrinsic or objective nature of the item as it was found. While that question required there to be consideration of any surrounding factual circumstances, those circumstances were very limited, given that the item was simply found stuck to a wall in the Appellant's home.
The Appellant submits that the Magistrate erred in finding that the Prosecution had proved beyond reasonable doubt that the item was not produced and identified as a children's toy. In support of this argument, the Appellant pointed (inter alia) to the following matters:- 1. The item was made of plastic. 2. It was lightweight. 3. While the item was 'sort of similar' to a real pistol (as shown in the Expert Report) the slide was shinier. 4. The item had green markings - perhaps from a marker pen - on one side of the slide. 5. It appeared that the expert did not, or may not have considered the 'children's toy' exception in 4D(4).
There can be no doubt that, taken at face value, the item, by reason of its shape, colour and features, was intended to be a copy or replica of a firearm.
However, it will not be an "imitation firearm" within the Firearms Act 1996, unless the Prosecution proves beyond reasonable doubt that the item was not one which was "identified" as a children's toy.
As I have said, that question requires, in this case, an examination of the intrinsic nature of, and features of the item.
The item, at least at first glance, looked like a pistol. I have no doubt that if the item was being held in a person's hand, and pointed at another person, it would give the impression of being a real pistol. In such a scenario, it would be likely to be "identified" as a real firearm, and not as a children's toy. However, and as I have noted several times, that is not the context in which the identification of this particular item falls to be determined. In this case, there is no evidence of the item being pointed, or being held in a person's hand.
The "identification" of the item therefore comes down to an examination of its inherent features. It looked like a pistol. However, on closer examination, including by anyone handling the item, it would immediately have been "identified" as being very lightweight, and made of plastic. This was accepted by the police witnesses.
In all the circumstances, which importantly include the particular evidence surrounding the seizure of this item, and where there is no evidence of the item being "used", I am not satisfied that the Prosecution has proved beyond reasonable doubt that the item was not "identified" as a children's toy. In other words, there remains a reasonable doubt that in the particular circumstances of this case, the item was produced and identified as a children's toy.
It follows therefore that in my opinion the learned Magistrate was in error in finding that it had been proved beyond reasonable doubt that the item was not produced and identified as a children's toy.
It also follows that the offence of possessing an authorised pistol ought to have been dismissed.
It further follows that the offence of not keeping a firearm safely also ought to have been dismissed.
Accordingly, I allow the appeal. I set aside the findings of guilt and convictions.

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Judgment (7 paragraphs)

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