Director of Public Prosecutions (NSW) v Wilson [2004] NSWSC 911

New South Wales Supreme Court

CITATION : Director of Public Prosecutions (NSW) v Wilson [2004] NSWSC 911 HEARING DATE(S) : 27/09/04 JUDGMENT DATE : 6 October 2004

JUDGMENT OF : James J at 1 DECISION : Appeal dismissed

LEGISLATION CITED : Crimes (Local Courts Appeal and Review) Act Firearms Act CASES CITED : Holmes v Arato (1983) 32 SASR 106 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 PARTIES : Director of Public Prosecutions (NSW) v Thomas James WILSON FILE NUMBER(S) : SC 12523/04 COUNSEL : R Lancaster - P S Austin - D SOLICITORS : S C Kavanagh - P

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT T Murphy JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Wednesday 6 October 2004

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:-