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District Court 18 September 2020

R v Wilson (No. 2)

[2020] NSWDC 549

Firearms & weapons
CRIMINAL LAW TRIAL BY JUDGE ALONE FIREARM OFFENCES

Citation: R v Wilson (No. 2) [2020] NSWDC 549
Court: District Court of New South Wales
Date: 18 September 2020
Judge: Abadee DCJ

Background

The accused was tried by judge alone on a charge of possessing a firearm (a pistol) without a licence or permit, contrary to s 7A(1) of the Firearms Act 1996 (NSW). The alleged offence occurred on 1 August 2019 at a residential property in Thornton. The firearm was never recovered.

The charge arose from the breakdown of a relationship and a dispute over personal property. After the accused's partner and her brothers failed the previous day to retrieve items from the home of her former partner, Clayton Futcher, the accused attended the Thornton property on 1 August 2019. According to Futcher, the accused knocked on the door, produced a handgun through the front window, and threatened to use it if the door was not opened within ten seconds. The accused also allegedly threatened to burn the house down.

The accused pleaded guilty separately to charges of intending to intimidate and threatening to damage property arising from the same incident. The sole contested issue at trial was whether the accused had possessed a firearm on that occasion.

  • Whether the accused was in possession of a firearm on 1 August 2019 at Thornton, within the meaning of the Firearms Act 1996 (NSW)
  • Whether the Crown's principal witness, Clayton Futcher, was sufficiently credible and reliable to support a finding of guilt beyond reasonable doubt
  • Whether findings should be made about the accused pouring petrol and threatening to set fire to the home, for the purposes of the upcoming sentencing proceedings

Decision

Abadee DCJ found Clayton Futcher to be a credible and reliable witness. His account of seeing the accused hold a black pistol up to the front window was found to be consistent with the surrounding circumstances, including the escalating attempts to recover property, the 000 call made during the incident, and the broader sequence of events. The judge accepted Futcher's description of the handgun, noting the level of specific detail, including the weapon's appearance and approximate size.

The accused's own evidence was rejected. His account was found implausible in material respects, and the judge noted he was peculiarly placed to account for the whereabouts of the firearm between 1 August and his arrest on 9 August 2019. The Crown was unable to locate the weapon, but the judge found this did not undermine the finding that the accused had possessed it.

Two defence witnesses, Ms Balcombe and Ms Mason, gave evidence that they had not seen the accused with a gun. The judge accorded this limited weight. Both were seated in a car two houses away and did not have close or unobstructed views of the accused. The judge also noted it would have been inconceivable that the accused would display a firearm to a near-stranger present in the vehicle.

Abadee DCJ was satisfied beyond reasonable doubt that the accused possessed a firearm on 1 August 2019 and was not licensed or authorised to do so. The accused was convicted on the charge.

Orders Made

  • The accused was convicted of possessing a firearm whilst not authorised to do so by a licence or permit on 1 August 2019 at Thornton (count 2 on the indictment).

Key Takeaways

  • A conviction for unlawful firearm possession under s 7A(1) of the Firearms Act 1996 (NSW) can be established even where the weapon is never physically recovered, provided the court is satisfied beyond reasonable doubt on the oral and circumstantial evidence.
  • The District Court found that an imitation firearm would have been sufficient to satisfy the statutory definition, a point that was common ground between the parties.
  • Witness evidence from individuals without clear or close vantage points carries limited weight where a more proximate and detailed account is accepted as credible.
  • Where a defendant was the last known person in possession of an unlocated firearm, that circumstance can form part of the reasoning supporting a finding of possession, even in the absence of the physical exhibit.
  • Findings on disputed factual matters beyond the ultimate charged issue may be made at a judge-alone trial where both parties request them, particularly where those findings bear on associated sentencing proceedings.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 4, 4A, 7A
- Crimes Act 1900 (NSW), s 33B
- Evidence Act 1995 (NSW), s 165
- Paintball Act 2018 (NSW)

Cases cited: No cases were cited in the judgment.