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District Court 11 October 2019

R v Wood

[2019] NSWDC 778

DrugsFirearms & weapons

Citation: R v Wood [2019] NSWDC 778
Court: District Court of New South Wales
Date: 11 October 2019
Judge: M L Williams SC DCJ

Background

The accused was tried by judge alone on six counts arising from a police search of his East Gosford unit on 31 May 2018. The accused resided at the premises with his partner and several other people, including one individual subject to a firearms prohibition order.

When police executed a search warrant, tactical officers discovered three firearms in the roof cavity of the unit, accessed through a manhole in the ceiling near a bedroom. The firearms included two shortened shotguns and a .22 calibre rifle, all unregistered (or registered to another person and reported stolen). Police also found a small shoulder bag containing $4,950 in cash in a bedroom.

The accused had separately pleaded guilty to drug supply offences (supplying prohibited drugs to undercover operatives in May 2018) and was awaiting sentence on those matters. That background was the principal reason the parties agreed to a judge-alone trial.

  • Whether the Crown proved the accused possessed the firearms located in the roof cavity, in circumstances where other occupants also had access to the premises
  • Whether the accused discharged the evidentiary burden under s 4A of the Firearms Act 1996, which deems an occupier to be in possession of any firearm found on their premises unless they establish one of three exceptions
  • Whether the accused possessed the $4,950 in cash in circumstances where there were reasonable grounds to suspect it was the proceeds of crime (Count 6)
  • What obligations apply to a judge sitting alone, including the requirement to expose the reasoning process linking findings of fact to principles of law

Decision

Judge-alone obligations

The court set out the principles applicable to a judge-alone trial under s 133 of the Criminal Procedure Act 1986. The judgment was required to identify the principles of law applied and the findings of fact relied upon, with the reasoning transparently linking the two. The court also noted that any warning which would have been given to a jury must be taken into account, consistent with Fleming v The Queen (1998) 197 CLR 250.

The deeming provision in s 4A of the Firearms Act 1996

Section 4A of the Firearms Act 1996 creates a presumption that a person who occupies premises possesses any firearm found there. That presumption is rebuttable: the occupier may displace it by establishing on the balance of probabilities one of three things, namely that an authorised person brought the firearms onto the premises, that the occupier did not know and could not reasonably have been expected to know the firearms were there, or that the occupier did not in fact possess them.

The court found the accused failed to discharge the evidentiary burden on any of those three matters. The evidence did not establish that an authorised person had brought the firearms to the premises. The court rejected the suggestion that the accused was unaware of the firearms, and was not satisfied the accused did not possess them. Those findings were characterised as leading inexorably to verdicts of guilty on Counts 1 to 5.

The money laundering count

Count 6 stood in a different position. The Crown accepted that the s 4A deeming regime did not apply to the cash, meaning no evidentiary burden shifted to the accused. The court found that the mere presence of $4,950 in a shoulder bag in a bedroom was insufficient, on its own, to prove beyond reasonable doubt that the accused possessed cash in circumstances where there were reasonable grounds to suspect it was the proceeds of crime. The accused was acquitted on Count 6.

Orders Made

  • Verdict of guilty on Counts 1, 2, 3, 4, and 5 (firearms offences under the Firearms Act 1996)
  • Verdict of not guilty on Count 6 (possession of suspected proceeds of crime)

Key Takeaways

  • Under s 4A of the Firearms Act 1996, an occupier of premises is deemed to possess any firearm found there. The accused bears the evidentiary burden of displacing that presumption on the balance of probabilities by establishing one of three prescribed matters.
  • Where the accused cannot show that an authorised person brought the firearms onto the premises, that the accused was unaware of their presence, or that the accused did not in fact possess them, the deeming provision operates and supports a finding of guilt.
  • The deeming provision in s 4A does not extend to other items found on the premises, such as cash. For a money laundering count based on possession of suspected proceeds of crime, the Crown must affirmatively prove possession; the burden does not shift to the accused.
  • In a judge-alone trial under s 133 of the Criminal Procedure Act 1986, the judgment must expose the full reasoning process linking the principles of law applied to the findings of fact, though it need not take the form of a jury summing-up.
  • A circumstantial Crown case may suffice to rebut an accused's statutory defence under s 4A, even without direct evidence of the accused handling the firearms, provided the court can exclude all reasonable hypotheses consistent with innocence.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 7A(1), 36(1), 62(1)(b), 4A
- Criminal Procedure Act 1986 (NSW), s 133

Cases
- Fleming v The Queen (1998) 197 CLR 250
- R v Baden-Clay [2016] HCA 35
- May v The Queen [2012] NSWCCA 250
- Fernando v The Queen [1999] NSWCCA 66
- Clout v R (1995) 41 NSWLR 312
- Lowe v R (1997) 98 A Crim R 300
- R v Winningham (unreported, NSWCCA, 10 May 1995)