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District Court 23 September 2024

Garcia v R

[2024] NSWDC 449

Firearms & weapons
CRIME CONVICTION APPEAL NOT KEEP FIREARM SAFELY POSSESS UNAUTHORISED PISTOL

Citation: Garcia v R [2024] NSWDC 449
Court: District Court of New South Wales
Date: 23 September 2024
Judge(s): Bourke SC DCJ

Background

The appellant was convicted by a Magistrate of two offences under the Firearms Act 1996 (NSW): possessing an unauthorised pistol (s 7(1)) and failing to keep a firearm safely (s 39(1)(a)). The charges arose after police attended his premises on 27 February 2023 following a dispute with a neighbour. During that attendance, a police officer discovered an item which the prosecution alleged was an imitation firearm.

The appellant told police the item was a toy. The attending constable agreed in evidence that it was made of plastic and was lightweight. A forensic firearms examiner, whose report was admitted without cross-examination, concluded the item substantially duplicated a self-loading pistol in external appearance and fell within the definition of "imitation firearm" in s 4D(3) of the Act.

A third charge, alleging the appellant had brandished the item to intimidate his neighbour, was dismissed by the Magistrate on the basis it was not proven beyond reasonable doubt. The two remaining convictions were the subject of this appeal.

  • Whether the prosecution proved beyond reasonable doubt that the appellant was not authorised by licence or permit to possess the item (an element of the s 7(1) offence)
  • Whether the prosecution excluded the reasonable possibility that the item was "produced and identified as a children's toy" within the meaning of s 4D(4) of the Firearms Act 1996, which would take the item outside the definition of "imitation firearm" entirely
  • Whether the Magistrate erred in finding both offences proven

Decision

On the authorisation question, the prosecution sought and was granted leave under s 18 of the Crimes (Appeal and Review) Act 2001 to adduce fresh evidence in the form of a certificate under s 87 of the Firearms Act 1996, confirming the appellant held no relevant licence or permit at the time. The appellant's solicitor conceded no specific prejudice would result from admission of that evidence, and the District Court allowed it. That element of the offence was therefore addressed.

The central issue on appeal was the s 4D(4) exception. Bourke SC DCJ examined the authorities on what "produced and identified as a children's toy" requires. His Honour accepted the approach in Commissioner of Police v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981, which held that the two words "produced and identified" form a composite phrase and that "identification" as a children's toy can be established by the intrinsic features of the object itself, not only by external packaging or labelling.

Applying that analysis to the item in question, the court found the evidence left open a reasonable doubt. The item was made of plastic, was very lightweight, and those characteristics would have been apparent to anyone handling it. No evidence was led of the item being pointed or held in anyone's hand during the relevant period. In those circumstances, the prosecution had not proven beyond reasonable doubt that the item was not produced and identified as a children's toy. The Magistrate therefore erred in finding the contrary.

Because the item could not be established as an imitation firearm within the Act, the foundations for both offences fell away. The convictions for possessing an unauthorised pistol and failing to keep a firearm safely were both set aside.

Orders Made

  • Appeal allowed
  • Findings of guilt and convictions on both charges set aside

Key Takeaways

  • Under s 4D(4) of the Firearms Act 1996, an object that otherwise substantially duplicates a firearm in appearance is not an "imitation firearm" if it was "produced and identified as a children's toy." The prosecution bears the burden of excluding this exception beyond reasonable doubt.
  • The phrase "produced and identified" in s 4D(4) operates as a composite concept. Identification as a children's toy can arise from the intrinsic physical characteristics of the object itself, such as lightweight plastic construction, and is not confined to cases where packaging or labels make that identification explicit.
  • Where the prosecution fails to exclude a reasonable doubt on the s 4D(4) exception, a conviction cannot stand, even where forensic evidence establishes that the object substantially duplicates a firearm in appearance.
  • Fresh evidence going to an element of an offence not contested at first instance may be admitted on appeal under s 18 of the Crimes (Appeal and Review) Act 2001, provided no specific prejudice to the appellant is demonstrated.
  • A conviction appeal to the District Court requires demonstration of factual, legal, or discretionary error at first instance; if error is found, the court gives the judgment that ought to have been given, forming its own view of the facts while acknowledging any advantage the Magistrate had in assessing witness credibility.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 4D, 7(1), 39(1)(a), 87
- Crimes (Appeal and Review) Act 2001 (NSW), s 18

Cases
- McNab v DPP [2021] NSWCA 298
- Commissioner of Police v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981
- Darestani v R [2019] NSWCCA 248