Citation: May v R [2012] NSWCCA 250
Court: Court of Criminal Appeal, New South Wales
Date: 30 November 2012
Judge(s): McClellan CJ at CL (with Johnson J and Bellew J agreeing)
Background
The appellant was convicted after a judge-alone trial of possessing an unauthorised prohibited firearm, contrary to s 7(1) of the Firearms Act 1996 (NSW). Police found a 12-gauge pump action shotgun concealed in a blue box under the bed in the appellant's bedroom during the search of her home in December 2009. Neither her fingerprints nor her DNA were found on the gun or the box.
The appellant had been the lessee of the property for many years and lived there with three of her children. Her eldest son had been in custody since 2006, but there was evidence that he was a dangerous criminal associated with others who used guns, and a known associate was seen near the premises on the day the appellant was arrested. The appellant did not give evidence at trial and had briefly denied any knowledge of the firearm during a police interview before requesting a lawyer.
The defence case included evidence from the appellant's daughter that various people held keys to the house, that the appellant sometimes slept on the lounge rather than in the main bedroom, and that the appellant had been hospitalised for four days in the period before the search.
Legal Issues
- Whether the trial judge failed to give reasons meeting the requirements of s 133 of the Criminal Procedure Act 1986 (NSW)
- Whether the verdict was unreasonable and unsupported by the evidence, given the circumstances surrounding the firearm's discovery
Decision
Ground 1: Adequacy of reasons. The Court of Criminal Appeal found the trial judge's reasons were sufficient. The judge had identified all significant evidence, addressed the relevant statutory provisions under ss 4 and 4A of the Firearms Act, directed himself in accordance with s 89 of the Evidence Act 1995, and expressed a clear conclusion on the disputed question. The Court rejected the submission that the judge failed to grapple with potentially exculpatory evidence, finding that each such matter had in fact been identified and considered in his Honour's reasons.
Ground 2: Unreasonable verdict. The appeal court was not persuaded the verdict was unreasonable. Under s 4A of the Firearms Act, where a firearm is found on premises owned, leased, or occupied by a person, that person is taken to be in possession of it. The burden shifts to the accused to establish on the balance of probabilities that they did not know, or could not reasonably be expected to have known, of the weapon's presence. This requires more than the possibility of an inference; it requires affirmative proof on the balance of probabilities.
The Court held that the evidence adduced by the appellant fell short of discharging that burden. The judge had accepted that the appellant appeared surprised during her police interview, but that alone was insufficient. There was simply no evidence addressing whether the appellant could reasonably have been expected to know the firearm was on the premises. McClellan CJ at CL stated that, had he been required to determine the matter himself, he would have reached the same conclusion as the trial judge.
Orders Made
• The appeal should be dismissed.
Key Takeaways
- Under s 4A of the Firearms Act 1996, a person whose leased or occupied premises contain an unauthorised firearm is taken to possess it, and bears the burden of proving on the balance of probabilities that they did not know, or could not reasonably be expected to have known, about the weapon's presence.
- A mere possibility that someone else placed the firearm on the premises is not enough to discharge the s 4A reverse onus. The accused must affirmatively satisfy the court of their lack of actual or constructive knowledge.
- The Court of Criminal Appeal confirmed that trial reasons in judge-alone proceedings are sufficient where the judge has identified the significant evidence, addressed the relevant legal tests, and expressed a conclusion on the central contested issue, even if every item of evidence is not exhaustively discussed.
- In dismissing both grounds of appeal, the Court emphasised that the appellant's denial of knowledge in her brief police interview, while noted by the trial judge, did not of itself constitute evidence capable of satisfying the statutory reverse onus.
- No miscarriage of justice was established, and the Court indicated it would have applied the proviso even if a technical error in reasoning had been found.
Legislation and Cases Referenced
Legislation
- Firearms Act 1996 (NSW), ss 4, 4A, 7
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 89
Cases
- AK v Western Australia [2008] HCA 8; 232 CLR 438
- Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
- R v Gardiner [2006] NSWCCA 190; (2006) 162 A Crim R 233
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247