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District Court 20 October 2017

R v Bartuccio

[2017] NSWDC 286

Firearms & weapons
CRIMINAL LAW TRIAL BY JUDGE ALONE WHETHER ACCUSED “OCCUPIED” PREMISES

Citation: R v Bartuccio [2017] NSWDC 286
Court: District Court of New South Wales
Date: 20 October 2017
Judge: Hatzistergos DCJ

Background

The accused was charged with possessing a firearm without a licence or permit, contrary to s 7A(1) of the Firearms Act 1996 (NSW). The firearm in question was a .22 long rifle calibre/20 gauge Savage Arms combination rifle/shotgun found at a property at Rossmore on 8 December 2016. The accused pleaded not guilty and elected to proceed by way of judge alone trial.

The Crown did not rely on direct evidence of the accused physically holding or controlling the firearm. Instead, it relied on the extended statutory definition of possession in s 4A(1) of the Firearms Act, which deems a person to possess a firearm if it is found on premises they "occupy." The accused did not give evidence himself; the only defence witness was his wife.

The Defence contested both elements of the Crown's case. It disputed that the accused "occupied" the relevant premises and, in the alternative, relied on a statutory defence under s 4A(1)(b) and (c) of the Act.

  • Whether the Crown established beyond reasonable doubt that the accused "occupied" the premises where the firearm was found, so as to engage the extended statutory definition of possession under s 4A(1) of the Firearms Act 1996 (NSW).
  • Whether, if occupation was established, the accused discharged the reverse onus statutory defence under s 4A(1)(b) and (c) of the Act on the balance of probabilities.
  • What standard and onus of proof applied to the statutory defence.

Decision

Hatzistergos DCJ found that the Crown had not clearly established exclusive occupation of the shed area where the firearm was discovered. The Defence's argument that the accused's non-exclusive access to the shed significantly weakened any inference of occupation was accepted. Because occupation of the premises was not conclusively proved, the first limb of the Crown's case was placed in doubt.

Independently, the court considered the statutory defence under s 4A(1)(c) of the Act. This provision operates as a "reverse onus" defence, requiring the accused to establish on the balance of probabilities that he did not intentionally have control of the firearm. Relying on the unchallenged evidence of a witness (Mr Pasquale Bartuccio) and the largely unchallenged evidence of the accused's wife, the court was satisfied on the balance of probabilities that the accused did not intentionally have control of the firearm on 8 December 2016.

The court applied the standard directions applicable in a judge alone trial, drawing on Fleming v R (1998) 197 CLR 250 and Filippou v The Queen (2015) 256 CLR 47. It confirmed that the Crown bore the primary onus of proof beyond reasonable doubt, while the accused bore the onus of establishing the s 4A(1) defence on the balance of probabilities only. Because the defence was discharged, the offence was found not proved.

Orders Made

  • The accused was found not guilty of possessing a firearm without a licence or permit contrary to s 7A(1) of the Firearms Act 1996 (NSW).

Key Takeaways

  • Under s 4A(1) of the Firearms Act 1996 (NSW), the Crown may establish possession of a firearm by proving the accused "occupied" premises on which the firearm was found, without needing to prove direct physical control.
  • Where occupation of premises is not exclusive, the inferences available to the Crown to establish deemed possession are significantly weakened, as the District Court found here.
  • The statutory defence under s 4A(1)(b) and (c) operates as a reverse onus: once the Crown establishes occupation, the accused must prove on the balance of probabilities that they did not intentionally have control of the firearm.
  • Witness evidence that is unchallenged or largely unchallenged can be sufficient to discharge that balance of probabilities onus in favour of an accused.
  • In a judge alone trial, the court is required by s 133 of the Criminal Procedure Act 1986 (NSW) to state the principles of law applied and the findings of fact made, and to take into account any warnings that would otherwise be given to a jury.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 4, 4A(1), 7A(1), 87
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 191

Cases:
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fleming v R (1998) 197 CLR 250
- Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190
- May v R [2012] NSWCCA 250
- Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4
- Moufid Saad v Ryan Jeffcoat [2013] NSWSC 1585
- R v IL (No 4) [2014] NSWSC 1801
- Shepherd v The Queen (1990) 170 CLR 573