Citation: Fahma v Director of Public Prosecutions (NSW) [2021] NSWDC 329
Court: District Court of NSW
Date: 21 July 2021
Judge: Colefax SC DCJ
Background
The appellant had held a valid firearms licence and owned five registered rifles. Following concerns about improper firearm storage and his association with an outlaw motorcycle gang, a firearms prohibition order (FPO) was made against him in May 2019. An FPO is a formal order under the Firearms Act 1996 (NSW) prohibiting a person from possessing firearms, parts, or ammunition.
When police served the FPO on the appellant in June 2019, they immediately searched him, his vehicle, and his residential premises. During that search, officers found sixteen rounds of .38 calibre ammunition in a bedroom. The appellant acknowledged the ammunition was his, purchased during the period when he held a licence.
He was subsequently charged under s65(3) of the Firearms Act with possessing ammunition without holding a licence. After a contested Local Court hearing, he was convicted and fined. He appealed to the District Court on all grounds, challenging both the lawfulness of the search and the admissibility of the evidence it produced.
Legal Issues
- Whether police were required, before searching the appellant's premises immediately after serving the FPO, to give him a reasonable opportunity to comply with the order first.
- If a reasonable opportunity was required, whether the appellant's subjective circumstances were relevant to what counted as "reasonable."
- Whether the evidence obtained in the search was admissible under s138 of the Evidence Act 1995 (NSW), given that the prosecution charged the appellant under s65(3) rather than under the FPO-specific offence provision in s74(3).
- Whether the application to adduce fresh evidence on appeal should be granted.
Decision
Application for fresh evidence. The appellant applied to adduce fresh evidence during the appeal hearing. His Honour refused leave because the evidence had been reasonably available to the appellant at the time of the Local Court hearing, no prior notice had been given to the Crown, and the nature of the evidence was vague.
Lawfulness of the immediate search. The appellant argued that s74(1) of the Firearms Act implicitly required police to give a newly-served FPO recipient a reasonable opportunity to comply before searching their premises. His Honour rejected that construction. The phrase "reasonably required" in s74A(1) directs attention to the manner in which search powers are exercised, not to a precondition that the subject first be given time to remove prohibited items. Any other reading would undermine the clear purpose of the FPO regime and the plain terms of s73(2), which states the order takes effect upon service. This conclusion aligned with the reasoning of Fagan J in DPP (NSW) v Shaba [2018] NSWSC 811.
Subjective circumstances. His Honour addressed the alternative argument: if a reasonable opportunity were required, should it be assessed subjectively? The court noted that the appellant's own characteristics, as recorded by the Commissioner's delegate when making the FPO, including his associations with an organised criminal group, were among the very reasons the order was made. Those characteristics could not assist him in arguing he needed more time to comply.
Admissibility of the evidence. The appellant argued that because police charged him under s65(3) rather than the FPO-specific offence in s74(3), the search was being used outside its authorised purpose, rendering the evidence inadmissible under s138 of the Evidence Act. His Honour disagreed. The search was lawful when conducted, and the subsequent prosecutorial decision to charge under the less serious provision did not make the evidence improperly obtained. Even if that conclusion were wrong, his Honour found that the desirability of admitting the evidence clearly outweighed any undesirability under the s138(3) balancing factors. The appeal against conviction was dismissed.
Orders Made
• The appeal against conviction is dismissed.
Key Takeaways
- Under s74A of the Firearms Act 1996 (NSW), police may search a person subject to an FPO immediately upon service of that order. There is no requirement to first give the subject a reasonable opportunity to comply.
- The phrase "reasonably required" in s74A(1) governs the manner in which search powers are exercised, not whether a grace period must be afforded before any search can begin.
- A prosecution's subsequent decision to charge an FPO subject under a lesser offence provision (s65(3)) rather than the FPO-specific provision (s74(3)) does not retrospectively render a lawfully conducted s74A search improper or the evidence inadmissible.
- Where evidence was not improperly obtained, a s138 Evidence Act exclusion argument faces a high threshold. Even where some impropriety is arguable, courts must weigh the desirability of admission against any undesirability under the s138(3) factors.
- In the District Court, a defendant's conviction appeal requires leave to adduce fresh evidence that was reasonably available at first instance, consistent with the Court of Appeal's guidance in DK v DPP [2021] NSWCA 134.
Legislation and Cases Referenced
Legislation
- Firearms Act 1996 (NSW), ss 65(3), 73, 74, 74A
- Evidence Act 1995 (NSW), s138
Cases
- DK v Director of Public Prosecutions [2021] NSWCA 134
- Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811
- R v Shaitly [2019] NSWDC 762