R v Johnson [2023] NSWDC 428

District Court New South Wales

Medium Neutral Citation: R v Johnson [2023] NSWDC 428 Hearing dates: 25 August 2023 Date of orders: 29 September 2023 Decision date: 29 September 2023 Jurisdiction: Criminal Before: Grant DCJ Decision: The accused is found guilty of counts 1, 2 and 3. Catchwords: CRIMINAL PROCEDURE — Trial — Judge alone CRIME — Firearm — when is a home made item a firearm — s 4 Firearms Act 1996 — statutory construction — the purposive approach — consideration of the statute as a whole — "capable of propelling" a projectile — Interpretation Act 1987 Legislation Cited: Crimes Act 1900 Evidence Act 1995 Firearms Act 1996 Interpretation Act 1987 (NSW) Cases Cited: Director of Public Prosecutions (DPP) (NSW) v Morgan [2013] NSWSC 1474 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 Mills v Meeking (1990) 91 ALR 16 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 R v A2 [2019] HCA 35 Texts Cited: Legislative Assembly Hansard 19 June 1996 Category: Principal judgment Parties: Rex (Crown) Duncan Johnson (Accused) Representation: Solicitors: Director of Public Prosecutions (Crown) Aboriginal Legal Service File Number(s): 2021/102585

JUDGMENT 1. On 25 August 2023, Mr Johnson was arraigned before me in a judge alone trial. He pleaded not guilty to the following counts: 1. On 10 April 2021 at Rankins Springs in the State of New South Wales did possess a loaded firearm, namely a homemade firearm capable of discharging a .22 calibre ammunition round in a public place, namely Naradhan Road, Naradhan contrary to s 93G(1)(a)(i) of the Crimes Act 1900. 2. On 10 April 2021 at Rankins Springs in the State of New South Wales did possess a firearm that was not registered, namely a homemade firearm capable of discharging a .22 calibre ammunition round contrary to s 36(1) of the Firearms Act 1996. 3. On 10 April 2021 2021 at Rankins Springs in the State of New South Wales did possess a firearm, namely a homemade firearm capable of discharging a .22 calibre ammunition round not being authorised to do so by a licence or permit contrary to s 7A(1) of the Firearms Act 1996. 1. Tendered in the Crown case was an agreed statement of facts dated 25 August 2023 (Exhibit 4). 2. On 10 April 2021, the accused parked a motor vehicle near the intersection of Blackers Lane and Naradhan Road and walked away from it. Approximately 400 metres west of the intersection of Naradhan Road and Harts Lane the accused left the shirt he was wearing on the ground. The accused partially buried the "item" (which is the subject of this trial) which was in his possession approximately 50 centimetres from his shirt. The item had a live .22 calibre ammunition inside the "barrel." 3. The shirt and the item were seized and placed in individual exhibit bags. The accused's shirt and the item were tested for the accused's DNA. The accused's DNA was found on the shirt and the item. The accused has at no time held a licence or permit to possess a firearm. The item has never been registered under the Firearms Act. 4. The Crown contends that the item found is a firearm as defined in the Firearms Act and the accused is guilty of the three counts alleged. The accused submits that as a matter of statutory construction the item is not a firearm, and the Crown cannot prove the counts beyond reasonable doubt.