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District Court 10 March 2015

Houlakis v R

[2015] NSWDC 127

Firearms & weapons
APPEAL CONVICTION APPEAL WIFE HAD ACCESS TO SAFE KEY APPELLANT NOT LIVING AT PREMISES CONVICTION APPEAL

Citation: Houlakis v R [2015] NSWDC 127
Court: District Court of New South Wales
Date: 10 March 2015
Judge: Neilson DCJ

Background

The appellant was a licensed firearms holder who had separated from his wife. His 11 registered firearms, comprising nine long arms (shotguns and rifles) and two pistols, were stored at his estranged wife's residence at Belmore, a property at which he was not living. The firearms were kept in safes on the premises.

Police attended the Belmore address late on 23 December 2013 following an unrelated domestic incident, intending to seize the firearms and suspend the appellant's licence. The appellant's wife answered the door, led police to a large metal safe in a bedroom, produced a key, and opened it to reveal all 11 firearms. The two pistols were subsequently located separately by the wife at the rear of the premises.

The appellant was charged with 17 offences under the Firearms Act 1996. The Local Court at Burwood acquitted him on six counts but convicted him on 11 counts under s 39(1)(a) of the Act, each alleging a failure to take all reasonable precautions to ensure the safekeeping of a firearm. He appealed those 11 convictions to the District Court.

  • Whether the appellant's estranged wife having access to the key to the firearms safe constituted a failure by the appellant to take all reasonable precautions for the safekeeping of his firearms under s 39(1)(a) of the Firearms Act 1996.
  • Whether s 4A of the Firearms Act 1996 (which deals with joint possession) had any bearing on the appellant's liability.
  • Whether the absence of evidence that the wife was not a responsible person, with whom a key could properly be left, provided a defence to the charge relating to the long arms.
  • Whether the appellant's own admitted uncertainty about where the pistols were stored at the time of the offence independently established a failure to take all reasonable precautions.

Decision

Neilson DCJ examined the proper interpretation of s 39(1)(a), as settled in Director of Public Prosecutions v Wilson [2004] NSWSC 911. That case established that a licence holder contravenes the provision if there is any reasonable precaution for safekeeping that they have failed to take. The standard is a demanding one, consistent with the Act's underlying purpose of ensuring firearms are stored in a safe and secure manner.

On the long arms (counts 5 to 13), the court considered whether the appellant's wife having possession of the safe key necessarily established the offence. The court held that s 4A of the Act, which relates to joint possession, was not applicable on the facts. Critically, there was no evidence before the court that the wife was not a responsible person with whom a key could appropriately be left. The Local Court had convicted on this basis without any evidentiary foundation establishing that entrusting the key to her was itself a failure of reasonable precaution. On that ground, the appeal on counts 5 to 13 was allowed and those convictions were set aside.

On the pistols (counts 14 and 15), the outcome was different. The appellant had himself admitted uncertainty at the time of the offence about precisely where the pistols were stored. The court held that a licence holder's own ignorance of where their firearms are located is itself a failure to take all reasonable precautions for safekeeping. A person cannot be said to have taken every reasonable precaution to safeguard a firearm if they do not know where it is. The convictions on counts 14 and 15 were upheld.

Orders Made

  • The appeal on counts 5 to 13 (the long arms) was allowed and those convictions were set aside.
  • The appeal on counts 14 and 15 (the pistols) was dismissed and those convictions were upheld.
  • Pursuant to s 80 of the Firearms Act 1996, the firearms the subject of counts 5 to 13 were ordered to be returned to the appellant by being bailed directly by police to Safari Firearms (licensed firearm dealer number 405578863), to be acquired by that dealer or sold by it on behalf of the appellant, with the dealer to account to the appellant for the proceeds of sale.

Key Takeaways

  • Under s 39(1)(a) of the Firearms Act 1996, a licence holder must take every reasonable precaution to ensure the safekeeping of their firearms; the omission of any single reasonable precaution is sufficient to establish the offence, consistent with DPP v Wilson.
  • The District Court held that a licence holder's admitted ignorance of where their own firearms are located is itself a failure to take all reasonable precautions, independent of any other circumstance.
  • Where the prosecution relies on a third party's access to a firearms safe key as establishing a safekeeping failure, the absence of evidence that the key-holder was not a responsible person may be fatal to that charge.
  • Section 4A of the Firearms Act 1996 (joint possession) was found inapplicable on these facts, and the court declined to treat a key-holder's access to firearms stored at a separate residence as automatically constituting a breach of the safekeeping obligation.
  • In allowing part of the appeal, the court exercised its power under s 80 of the Act to direct that the returned firearms be handled through a licensed dealer, rather than returned directly to the appellant.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 3, 4A, 39(1)(a), 40(1)(b), 80

Cases
- Director of Public Prosecutions v Wilson [2004] NSWSC 911
- May v R [2012] NSWCCA 250