R v Wilson (No. 2) [2020] NSWDC 549

District Court New South Wales

Medium Neutral Citation: R v Wilson (No. 2) [2020] NSWDC 549 Hearing dates: 14 September-18 September 2020 Date of orders: 18 September 2020 Decision date: 18 September 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraphs 183-184 Catchwords: CRIMINAL LAW – trial by judge alone – firearm offences – whether accused in possession of firearm Legislation Cited: Crimes Act 1900 (NSW), s 33B Evidence Act 1995 (NSW), s 165 Firearms Act 1996 (NSW), s 4, 4A, 7A Paintball Act 2018 (NSW) Category: Principal judgment Parties: Director of Public Prosecutions Mr B J Wilson Representation: Counsel: Ms K Henry for the Director of Public Prosecutions Mr W Buxton for the accused

Solicitors: Office of the Director of Public Prosecutions Legal Aid for the accused File Number(s): 2019/248475 Publication restriction: Nil

Judgment

INTRODUCTION 1. The accused is tried on an indictment with the offence that on 1 August 2019 at Thornton, he possessed a firearm (a pistol), not being authorised to do so (by licence or permit), contrary to s 7A(1) Firearms Act 1996 (NSW). 2. A "firearm" is defined in s 4 to mean a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker within the meaning of the Paintball Act 2018 (NSW) or anything declared by the regulations not to be a firearm. No point was taken that if a gun was in the accused's possession at the relevant time this definition was not satisfied. Further, it was common ground that it was enough that the firearm could have been an imitation firearm. 3. Further, this is not a case where the Crown relies upon any extended definition of "possession" of a firearm, in s 4A of the Firearms Act. The Crown contends that the accused had it on his person. 4. The firearm has never been located. 5. There was no dispute that if the accused actually was in possession of a firearm on the relevant date, he was not licensed or authorised to possess it. 6. The sole question for my determination in the trial, on the contested charge, sitting alone, is whether he was in possession of the firearm, as alleged. 7. Upon being arraigned, on 14 September 2020, the accused pleaded guilty to two other offences arising from his conduct on 1 August 2019 at Thornton. The nature of those offences separately concerned his intending to intimidate and his making a threat to damage property. 8. During his opening address, Counsel for the accused foreshadowed that a significant part of the accused's case was that the credibility of the Crown's main witness, Mr Clayton Futcher, was significantly impaired by what he said in a sound recording about the accused pouring petrol on and near the front door, as well as the threat that he, the accused, might use a lighter to burn down the house where, it was said, he possessed the gun. The questions whether the accused poured fuel and threatened to burn down the home were also relevant to the Crown case, which was partly to the effect that the accused used a gun as part of an escalation of threats towards Mr Futcher; culminating in the threat to burn down the home. The questions are relevant to the sentencing proceeding that is to follow, at least in relation to the two offences in respect to which the accused has entered guilty pleas. 9. In circumstances where the Crown and the accused joined in applying for me to determine those questions about the pouring of petrol and threat to alight the home, I acceded to the request to make findings about those questions even if they may not, strictly, have been necessary to determine in order to adjudicate on the ultimate question of whether the accused had a firearm in his possession.