District Court New South Wales Medium Neutral Citation: Houlakis v R [2015] NSWDC 127 Hearing dates: 10 March 2015 Date of orders: 10 March 2015 Decision date: 10 March 2015 Jurisdiction: Criminal Before: Neilson DCJ Decision: Convictions recorded in respect of sequences 5 to 13 set aside Convictions recorded in respect of sequences 14 and 15 confirmed Catchwords: APPEAL – Conviction appeal – Whether appellant took all reasonable precautions to ensure safekeeping of firearms – Firearms stored in safe at residence of appellant's estranged wife – Wife had access to safe key – Appellant not living at premises – Section 4A Firearms Act 1996 not applicable – No evidence wife not responsible person with whom key may be left APPEAL – Conviction appeal – Whether appellant took all reasonable to ensure safekeeping of firearms – Firearms stored at residence of appellant's estranged wife – Appellant uncertain at time of offence where firearms were stored – Lack of knowledge of location of firearms establishes a failure to take all reasonable precautions for safekeeping Legislation Cited: Firearms Act 1996 Cases Cited: Director of Public Prosecutions v Wilson [2004] NSWSC 911 May v R [2012] NSWCCA 250 Category: Principal judgment Parties: James Houlakis (Appellant) Director of Public Prosecutions (NSW) (Respondent) Representation: Mr J Klarica (Appellant) Solicitor for Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2014/00169277 Publication restriction: No Decision under appeal Court or tribunal: Burwood Local Court Jurisdiction: Criminal Date of Decision: 09 September 2015 Before: George LCM File Number(s): 2014/00169277 Judgment 1. HIS HONOUR: This is an appeal against 11 convictions recorded by Magistrate George sitting in the Local Court at Burwood on 9 September 2015. The appellant was charged with 17 offences contrary to the provisions of the Firearms Act 1996. Whilst each court attendance notice is given a sequence number, one will forgive me, I trust, if I refer to each of the sequences as a count, as if the 17 charges were all on one indictment. His Honour dismissed counts numbered 1 to 4 and counts 16 and 17. There is no ability for the Crown to appeal from an acquittal in the Local Court to this Court. His Honour found proved counts numbered 5 to 15. Each of those counts was an allegation contrary to s 39(1)(a) of the Firearms Act 1996. 2. It is worthwhile considering the proper interpretation of that provision which has been set forward in the judgment of James J in Director of Public Prosecutions v Wilson [2004] NSWSC 911. Commencing [10] his Honour said this: "[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 possession and use as being a privilege that is conditional on the overriding need to ensure public safety: (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 possess 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." The learned Magistrate correctly directed himself that the appellant who possessed firearms must have taken all reasonable precautions to ensure their safekeeping, meaning that he must take every reasonable precaution to ensure the safekeeping of the firearms. 1. The firearms fall into two categories. Counts 5 to 13 concern long arms, that is shotguns or rifles. Erroneously count 11 referred to the firearm as a pistol but it was in fact a rifle. Counts 14 and 15 concern two pistols. The informant in the Local Court was Constable Melissa Dimmock. Part of her statement which was exhibit 1 is this: "3. On Thursday 23 December 2013 I was rostered to work with Constable Patrick. 4. About 11pm that night I had a conversation with Sergeant Harkness. As a result of this conversation, I attended 3 Sudbury Street, Belmore to seize 11 firearms lawfully registered to James Houlakis, who I now know as the accused, as a result of an unrelated domestic incident and to suspend his firearms licence. 3 Sudbury Street is a single storey dwelling. The front portion of the house consists of two bedrooms, one on other side of a hallway that runs down the middle. 5. I knocked on the front door and was greeted by Olga Houlakis who is the wife of the accused. I informed Olga as to the reason we were there. Olga showed us to [the] bedroom on the left hand side of the hallway. Situated in a corner of the front of the room was a large metal safe. The safe was locked. Olga left the room and came back a short time later and handed me a key. I used the key to unlock the safe and inside I located a total of 11 firearms. Also located inside the safe were numerous boxes of ammunition on a shelf above the firearms." Those 11 firearms were taken back to the Campsie police station. Constable Dimmock then conducted several checks on the seized firearms with New South Wales police records. Those checks indicated that two of the 11 firearms were not then registered and that the accused was not authorised to possess those firearms by licence or permit. Those two firearms were the subject of counts 1 to 4 and 16 and 17. 1. As a result of a discrepancy detected by Constable Dimmock police made a further visit to 3 Sudbury Street, Belmore. That visit was carried out by Sergeant Sywenkyj together with Constables Turner and Weir. The sergeant's group of police attended 3 Sudbury Street, Belmore at about 3.40am on Christmas Eve. They were met at the door by the appellant. The appellant took the police to a different safe in another bedroom of the house (I infer that it was probably the bedroom on the right hand side of the central hallway) and showed the police a small safe in which a search was made for two pistols. Initially it appears from the sergeant's oral evidence that initially the appellant was accompanied by his wife and whilst the appellant and the police were looking through the small safe the appellant's wife left the bedroom and went to the rear of the house. When the small safe in the wardrobe was opened it was found to be "chock-a-block full of jewellery and jewellery boxes" and there were no pistols there. The police, and I infer the appellant, returned to the central hallway and were met there by Olga, approaching from the rear of the premises holding two black pistol boxes which each contained a pistol. The pistols in their boxes were handed to the police, who then left the premises and returned with the pistols to a police station. The appellant's wife, Olga Houlakis, was never interviewed by the police. 2. It was suggested to the two police officers who gave evidence, Constable Dimmock and the sergeant, that there were, in addition to Olga Houlakis, present in the house two other couples who were described in the questioning as the appellant's parents, and the appellant's brother and sister‑in‑law. I do not know, nor could the magistrate have known to any degree, who lived in the house, other than to point out that the evidence does suggest that there was another couple in bed in the room in which the large rifle safe was found. 3. After Sergeant Sywenkyj was excused, the prosecutor said this to the learned magistrate: "Your Honour, I was just handed by the police another s 87 certificate dated today's date, outlining the licence status of Olga Houlakis, I'll tender that." The tender was successfully objected to by learned counsel for the appellant. During the course of the argument on the admissibility of the certificate, his Honour pointed out to the police prosecutor that the argument advanced by him for the admission of the certificate was not "actually part of the prosecution case." It would appear from the transcript and from what I have been told from the Bar table that the Crown case was based largely on the fact that the sergeant was able to rock the large rifle safe, suggesting that it could be moved. However, introduced into evidence was a certificate which established that the safe weighed 180 kilograms and therefore complied with the provisions of s 40(1)(b) of the Firearms Act which only requires that the receptacle into which the firearms are placed must be fixed to the floor of premises if it weighs less than 150 kilograms. In cross-examination the sergeant admitted he was unable to pick up the safe. 4. After dismissing counts numbered 1 to 4, and 16 and 17, the learned magistrate said this: "As far as sequences 5 to 13 go, I find that a shocking prospect. It seems when police arrived at the premises that somebody is able to go directly to the locker, somebody not the defendant, open up and hand the guns over to police. Again I have no knowledge of the role, rights or responsibilities of Olga, but as a consequence of her having the key, which may be the only one, it may be one of two or may be one of many, at the end of the day I do not know. In terms of the very straightforward conclusion in the case of Director of Public Prosecutions v Wilson, again I say the gravamen of that case is a person who possesses a firearm contravenes s 39(1)(a) if there is no reasonable precaution to ensure the safe keeping of the firearm which he fails to take. Well [,] as far as that goes, limiting the keys to himself will be the number one responsibility and the fact that others have access, and if it is part of the defence case in respect of the other matters that others have access or may have access, then it cannot seriously be suggested that those firearms are being kept with all reasonable precautions in terms of the legislation." Clearly the magistrate made a factual error in that Olga Houlakis did not unlock the safe and take the firearms from it. That was done by the police themselves. Olga Houlakis handed a key to the rifle safe to the police, who proceeded to unlock the safe and extract the firearms. There was only evidence of there being one key. The existence of other keys is mere speculation on the part of the learned magistrate. The only inference one can draw from the evidence that was before the learned magistrate is that Olga Houlakis had access to the key which opened the rifle safe in the left‑hand bedroom. The safe itself appears to have complied with the provisions of s 40. 1. As I have earlier said, the accused was charged with offences contrary to s 39(1)(a). The whole of the subsection is this: "A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safekeeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm." I have omitted stating the maximum penalty because it is not currently relevant. 1. The accused was not charged with an offence contrary to s 39(1)(c). If that was the charge then one would have thought it was part of the Crown case to establish that Olga Houlakis was not a person who was authorised to possess the firearms that were found in the rifle safe. The Crown attempted to do that but only essentially after all the evidence in the Crown case had been adduced and without having served the certificate on the defence prior to the commencement of the hearing or otherwise in accordance with the provisions of the Criminal Procedure Act 1986. 2. The only way in which the Crown could establish that the accused had not taken all reasonable precautions to ensure the safekeeping of the rifles was to establish that Olga Houlakis was not a person who was authorised to possess the firearms in question. The Crown did not prove that before me. The Crown largely relied on s 4A of the Act which makes certain provisions concerning the possession of a firearm, in particular what is necessary for proof of possession. In that regard one can have recourse to the decision of the Court of Criminal Appeal in May v R [2012] NSWCCA 250. In essence, s 4A reverses the onus of proof where a firearm is found on premises which are occupied by an accused person. The accused person must prove on the balance of probabilities one of the matters referred to in the paragraphs of s 4A(1). 3. In the current case there was no dispute that the appellant possessed the firearms in the rifle safe. That is the case despite the fact that the evidence before the learned magistrate suggested that the accused was not living at 3 Sudbury Street, Belmore but at 9 Mount Street, Strathfield, his address shown on a certificate under s 87 of the Act. An inference can be drawn that the appellant and his wife were estranged. He used to live at 3 Sudbury Street, Belmore. After the estrangement he moved to 9 Mount Street, Strathfield, but he left his rifles in the rifle safe in 3 Sudbury Street, Belmore, a safe which could not be conveniently moved. 4. There was no evidence that Olga Houlakis was not reliable or responsible. There was no evidence as there was, for example, in May v R, that a person who ordinarily lived in the house was a known criminal who used firearms in the course of criminal activity. There is no evidence that Olga Houlakis was not a responsible person with whom the appellant might leave the key to the rifle safe. In the circumstances I am not persuaded beyond reasonable doubt that the Crown has established its case concerning the nine rifles found in the rifle safe. Accordingly counts 5 to 13 ought to have been dismissed. 5. The remaining counts concerned the two pistols which were surrendered to the police by Olga Houlakis shortly after 3.40am on Christmas Eve 2014. The learned magistrate accepted that those charges were in a different category to the other charges contrary to s 39(1)(a). On p 30 of the transcript his Honour said this: "Similarly, in respect of the charges in relation to the pistols, the proposition is that while the sergeant is present, Olga goes away, again apparently has access to wherever these pistols are being kept and produces them back to the sergeant. There is no involvement of the defendant in this whatsoever. He has in fact said to the sergeant he does not know where they are. If ever there was an obvious conclusion that there was no proper precaution being taken in respect of the secure storage of those pistols that would be it. It would be impossible to find otherwise." 1. As a tribunal of fact, I certainly concur with the learned magistrate's observation that to keep a firearm in safe keeping requires one to know where it is at any particular time. The appellant thought it was in the small safe in the bedroom, which I infer was on the right-hand side of the central hallway. However, it was not there. The appellant, according to the magistrate, told the sergeant that he did not know where it was. There is no direct evidence that the appellant made any such admission. The closest the evidence comes to establishing that was this question and answer in the sergeant's evidence-in-chief: "Q. Why was he showing you, what was he showing you? A. We were, at the time looking for these two pistols that the police had earlier not seized and he suggested they might be in the safe in the bedroom, showed me that safe and"— In other words, although the appellant did not admit that he did not know where they were, he certainly was unsure as to where they were. Again it comes down, in my view, to the fundamental fact that if one is required by law to take all reasonable precautions to ensure the safekeeping of pistols, one must know where they are at any particular time. 1. The police, of course, did not ascertain from Olga whence she obtained the pistols, and there is no evidence that before her bringing them to the police she removed them from some safe place of storage such as an appropriate pistol safe, the provisions relating to pistol safes being contained in s 41 of the Firearms Act 1996. For all anyone knows, the pistols may have been on a shelf in the garage or a shelf in the laundry or a set of drawers in the kitchen. In those circumstances, when an obligation is placed upon the appellant to take all reasonable precautions, merely establishing that he did not in fact actually know where they were indicates that he had not taken all reasonable precautions. Accordingly, the appeal against the conviction on counts 14 and 15 is dismissed. 2. For those reasons, I set aside the convictions recorded by Magistrate George sitting in the Burwood Local Court on 9 September on sequences numbered 5 to 13. I confirm the convictions recorded in respect of sequences 14 and 15. 3. KLARICA: Would your Honour be minded to find the offences proved and hear me on sentence with respect to sequences 14 and 15 formally, your Honour, just‑‑ HIS HONOUR: There's no appeal against sentence. KLARICA: I think automatically, your Honour, if there's one against conviction‑‑ HIS HONOUR: It doesn't work that way. KLARICA: Doesn't it? HIS HONOUR: No. "I am appealing the above conviction/order because I am not guilty". KLARICA: That's so, your Honour, and now‑‑ HIS HONOUR: You can also put in, "and because a penalty is too severe". KLARICA: Usually, your Honour, my experience is that they do the one, and if it is successful - if it's not a successful conviction appeal there is still-- HIS HONOUR: Look, the appellant was represented by you. KLARICA: Yes, your Honour. HIS HONOUR: And the notice of appeal went in on the day the convictions were recorded. KLARICA: Yes, your Honour. Normally, as I understand it, a conviction appeal is lodged or a sentence, severity only sorry appeal. This is not a severity only appeal, it was conviction, so conviction appeals are both, conviction and severity. HIS HONOUR: I don't agree with that proposition. But if you want to argue severity I'll give you a Parker warning. KLARICA: No, I wasn't going to argue severity, I thought I'd just raise it. Now that I've heard that I think I'll just withdraw that submission, your Honour, and - could I ask your Honour, with respect to the firearms if you could make an order that they be either returned to the appellant upon him getting a licence or a nominated firearms licence holder? HIS HONOUR: I don't want to get involved in what I refer to as administrative matters. KLARICA: The Local Court has powers, as I understand it, your Honour‑‑ HIS HONOUR: Let me have a look. KLARICA: --to order the return of the firearms. The only reason‑‑ HIS HONOUR: What was the sporting reason your client had all this armoury? KLARICA: Your Honour, he's a target shooter from the age of 18. These guns are all similar guns, but different ages. They're ones that he's had since he was 18, he's now about 40-something, the last 20-odd years, your Honour. He also has property, his brother has property now at Bathurst I think they're living, a big farm and the rest and they go out shooting. It's just a pastime that they love doing. He's a member of a target shooting club and also a pistol club. HIS HONOUR: I was concerned that he's now living about five minutes away from me. KLARICA: No, no, your Honour, this is just a circumstance that arose as a consequence of something else, but no, your Honour, he's otherwise pretty respectful. HIS HONOUR: And the affidavit said he lived - what hotel does he own? Don't tell me it's Northies. KLARICA: No, it's in the city, your Honour ..(not transcribable).. but no longer lives there, your Honour. I think he lives at Burraneer Bay. HIS HONOUR: That's right, that's what I mean. Now, you were taking me to a point about-- KLARICA: Your Honour, I've just spoken to my friend. What we might do, I know magistrates do make orders return property and return to owner and the like. I'd ask your Honour just to make an order, property return to owner. HIS HONOUR: I can't do that if he's not authorised - if he hasn't got a licence I can't order that he‑ KLARICA: On production of a proper licence, and we might then have it sent to a licenced firearms dealer, then he can take possession and carriage of them, and he can sell them through him. They're very expensive firearms, your Honour. Perhaps your Honour might just grant me leave to reinstate the matter for the purpose of this application once I've done some research. I don't want to mislead the Court or anything of that nature‑‑ HIS HONOUR: Part 8 talks about administrative reviews by the Civil and Administrative Tribunal of certain decisions. "Disposal or surrender...may be destroyed". KLARICA: What is sought in this case, your Honour, is that the Court consider making an order that the firearms be returned to Safari Firearms. They're a registered licenced dealer, I understand, a 146 Stoney Creek Road, Bexley. HIGGINS: That of course is to the exclusion of the pistols‑‑ KLARICA: No, he asked the pistols also be returned. He might have‑‑ HIS HONOUR: Hang on, I need to know what Pt 4 is. Part 4, registration of firearms, includes s 39. Safekeeping of firearms is in Pt 4. If a person is found guilty of an offence under Pt 4, safekeeping of firearms, right? And a firearm has been seized by a police officer in connection with the offence, the Court which makes the finding of guilt is taken to have ordered the firearm be forfeited to the Crown. It's a deeming provision. So the pistols are forfeited to the Crown. KLARICA: Is that in what section your Honour? HIS HONOUR: That's s 80(2). So they're deemed to have been forfeited to the Crown, the pistols. Because of the orders made by the Local Court, the rifles may already have been destroyed, because they were‑‑ KLARICA: No, they wouldn't have, your Honour, because once an appeal's lodged there's a stay. Or they shouldn't be. If they are well, they can pursue that otherwise, but I hear what your Honour says with respect to the two pistols. HIS HONOUR: The pistols are forfeited to the Crown. KLARICA: They're automatically forfeited. And I ask your Honour to order that the rifles, if they're still in existence, be returned to the appellant, but delivered into the custody of Safari Firearms Pty Ltd. HIS HONOUR: Are they licenced under something or other? KLARICA: As I understand it, they're a licenced rifle dealer, your Honour. HIS HONOUR: Let me have a look. Firearm dealer licence, restrictions on issue. He's a firearms dealer, is he? KLARICA: That's as I understand it, your Honour. I'm just going to check in the-- HIS HONOUR: Section 17B it appears to be. KLARICA: Yes, your Honour. Dealer I think I even have the licence number 405578863. HIS HONOUR: Hang on, 17B, there must be an earlier provision about firearm dealer licence. KLARICA: That's restriction on issues. HIS HONOUR: I know. KLARICA: Sorry, your Honour. HIS HONOUR: Firearms dealer licence is dealt with in the commentary under s 8. All right: "Categories of licence for firearms to which they apply on the authority are as follows, category A Licence, B Licence, C Licence, prohibited except for limited purposes. Category D Licence, prohibited except for official purposes. Category H Licence, pistols, firearms dealer licence". The form of order I propose is this; pursuant to s 80 of the Firearms Act 1996, I order that the firearms referred to in sequences 5 to 13 be returned to the appellant by being bailed directly by the police to - what is, Safari? KLARICA: Safari Firearms. HIS HONOUR: That's not a company name; proprietary limited, is it? KLARICA: I'm just looking here. Sorry, your Honour. Would your Honour be minded to put be returned directly to a nominated fire licenced-- HIS HONOUR: No, look. The order I'm proposing I want to set out what's Safari Firearms. What is it; proprietary limited? KLARICA: I don't have that information, your Honour. The truthful answer is I don't know. They're just called "Safari Firearms" and there's a-- HIS HONOUR: Licenced firearm dealer number - which is it? KLARICA: The number is 405578863 HIS HONOUR: 405578863 to be acquired by it or to be sold by it on behalf of the appellant. The said firearm dealer to account to the appellant for the proceeds of sale. 1. So the order is: Pursuant to s 80 of the Firearms Act 1996 I order the firearms referred to in sequences 5 to 13 be returned to the appellant by being bailed directly by the Police to Safari Firearms, licenced firearm dealer 405578863, to be acquired by it or to be sold by it on behalf of the appellant, the said firearm dealer to account to the appellant for the proceeds of sale. 2. That should do the trick, shouldn't it? KLARICA: Yes, your Honour. HIS HONOUR: In other words I'm making - the form of the order as that the firearms dealer becomes either the purchaser or the agent of the appellant. KLARICA: Thank you, your Honour. That will assist greatly when he speaks to the police after these proceedings. HIS HONOUR: The last firearms offence I had there was evidence given by a barrister that the going rate for at least a handgun was about $5,000 so I don't know what rifles sell for. KLARICA: I think one of these are about 12 grand; one's about 12,000. HIS HONOUR: There's nine of them. KLARICA: No, they're not all 12,000, some are much cheaper, but one of them he said 12,000. HIS HONOUR: So you're looking at anything between 50,000 and 100,000. KLARICA: It's a lot of money. HIS HONOUR: It's a lot of money, yes. KLARICA: That's so, your Honour. HIS HONOUR: Any other orders sought? KLARICA: No, your Honour. HIGGINS: No, your Honour. HIS HONOUR: Thank you for your assistance, gentlemen. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2015