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District Court 7 February 2023

R v Smith

[2023] NSWDC 254

Firearms & weapons
CRIME JUDGE ALONE TRIAL POSSESS PROHIBITED WEAPON POSSESS MORE THAN THREE FIREARMS

Citation: R v Smith [2023] NSWDC 254
Court: District Court of New South Wales
Date: 7 February 2023
Judge: P Conlon SC ADCJ

Background

The accused faced a 33-count indictment arising from the possession of a range of items, including multiple gel blasters, a taser with cartridges, and a body armour vest. He was not authorised by licence or permit to possess any of the items. Possession itself was not in dispute.

The accused pleaded guilty to several counts (including Counts 7 and 9, which were entered at the close of the prosecution's evidence) and elected a judge-alone trial on the remaining counts. The contested counts covered charges under both the Firearms Act 1996 (NSW) and the Weapons Prohibition Act 1998 (NSW).

The central contested question was whether gel blasters, devices that propel water-absorbent gel beads, fall within the statutory definition of a "firearm," and specifically whether they qualify as "airguns" under s 4(1) of the Firearms Act.

  • Whether gel blasters meet the definition of a "firearm" under s 4(1) of the Firearms Act 1996 (NSW), specifically whether they constitute "airguns" within the meaning of that section
  • Whether, if gel blasters technically satisfy the definition, the legislature nonetheless intended to exclude them from the prohibition
  • Whether one particular gel blaster (the subject of Count 33) qualified as an "imitation firearm" under s 4D of the Firearms Act
  • Whether the taser and cartridges possessed by the accused constituted a "prohibited weapon" under Sch 1 of the Weapons Prohibition Act 1998 (NSW)
  • Whether the body armour vest constituted a prohibited weapon under Sch 1 of the same Act

Decision

Gel blasters as airguns (firearms): The court was satisfied beyond reasonable doubt that the gel blasters the subject of the relevant counts fell within the definition of "airgun" in s 4(1) of the Firearms Act. An airgun is defined as a gun that can propel a projectile by means of gas (including air, but not an explosive-generated gas) or by a spring, and that is operated by a trigger or similar device. The court found the gel blasters satisfied those elements.

The legislative intent argument: The court rejected the defence contention that the legislature did not intend gel blasters to fall within the firearm definition. The court applied the statutory text and was not persuaded that any implied exclusion existed. The court noted, however, that the issue appeared ripe for parliamentary clarification, observing that Queensland treats possession of gel blasters as lawful while NSW attracts significant maximum custodial penalties for the same conduct.

Imitation firearm (Count 33): The court was satisfied that the gel blaster the subject of Count 33 fell within the definition of an imitation firearm under s 4D of the Firearms Act, and was therefore captured by the Act in the same way as an actual firearm. The exception for children's toys did not apply.

Prohibited weapons (Counts 6 and 8): The court was satisfied beyond reasonable doubt that the taser and its cartridges fell within Sch 1, cl 2(18A) and (18B) of the Weapons Prohibition Act, and that the body armour vest fell within Sch 1, cl 4(1) of that Act. Guilty verdicts were returned on both counts.

Counts 10, 16, 23 and 29 (possessing more than three firearms): On each of these counts, the court was satisfied beyond reasonable doubt that the accused possessed more than three firearms, that the items fell within the statutory definition, that at least one item was a pistol or prohibited firearm as required by the relevant count, and that none were registered or authorised.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court held that gel blasters fall within the definition of "airgun" under s 4(1) of the Firearms Act 1996 (NSW) and therefore constitute "firearms" for the purposes of that Act, at least on the facts of this case.
  • A defence argument that legislative intention impliedly excluded gel blasters from the firearm definition was rejected; the court applied the statutory text as written.
  • Under s 4D of the Firearms Act, imitation firearms are treated identically to actual firearms, except for objects produced and identified as children's toys.
  • The District Court expressly noted that gel blaster regulation varies markedly between states, with Queensland permitting possession and NSW attaching serious maximum penalties, and flagged the issue as one warranting specific legislative attention.
  • Possession of a taser (with cartridges) and a body armour vest, without a permit, satisfied the elements of the prohibited weapons charges under the Weapons Prohibition Act 1998 (NSW).

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 4, 4D, 7(1), 51D(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1), Sch 1 cls 2(18A), 2(18B), 4(1)
- Paintball Act 2018 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Interpretation Act 1987 (NSW)

Cases:
- Fleming v R (1998) 197 CLR 250
- Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981
- Darestani v R [2019] NSWCCA 248