DPP v Starr - [2012] NSWSC 315

Supreme Court

New South Wales

Medium Neutral Citation: DPP v Starr [2012] NSWSC 315
Hearing dates: 4 April 2012
Decision date: 05 April 2012
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Appeal allowed.
(2) Set aside the order of Atkinson LCM made on 5 July 2011 dismissing the proceedings against the Defendant for the offence of "possess prohibited weapon" in breach of s 7 of the Weapons Prohibition Act 1998.
(3) An order that the matter be remitted to the Downing Centre Local Court to be determined according to law.
(4) Make no order as to costs.

Catchwords: CRIMINAL LAW - appeal from decision of the Local Court - weapons prohibition offence - mens rea for possession
- meaning of "the user" of knuckle-dusters
Legislation Cited: - Crimes (Appeal and Review) Act 2001
- Weapons Prohibition Act 1998
- Weapons and Firearms Legislation Amendment Act 2010
Cases Cited: - Commissioner of Police v Kennedy [2007] NSWCA 328
- Federal Firefighters' Union v Minister of State for the Capital Territory (1982) 62 FLR 341; 44 ALR 311
- Kelly v The Queen [2004] HCA 12; 218 CLR 216
- Mullaney v Taylor [2006] WASC 149
- Pascoe v Nicholson [1981] 1 WLR 1061
- Timbar Pty Ltd v ME Petrie Pty Ltd (in liq) (1982) 7 ACLR 111
- Waugh v Kippen [1986] HCA 12; 160 CLR 156
Texts Cited: - Pearce and Geddes, Statutory Interpretation in Australia (7th ed., 2011)
Category: Principal judgment
Parties: Director of Public Prosecutions (Plaintiff)
Dylan Starr (Defendant)
Representation: Counsel:
N Adams/J Davidson (Plaintiff)
Submitting appearance for Defendant
Solicitors:
Solicitor for Public Prosecutions (Plaintiff)
Watsons (Defendant)

File Number(s): 2011/00334695

Judgment

Introduction

The plaintiff appeals, pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001, against the dismissal by Atkinson LCM (the Court below) of an information pursuant to which the first defendant was charged with one count of possessing a prohibited weapon, namely, a knuckleduster, in contravention of s 7 of the Weapons Prohibition Act 1998 (WP Act). The plaintiff seeks orders that the dismissal be set aside and the proceedings be remitted to the Local Court to be dealt with according to law.

The plaintiff submitted that the information was dismissed because of an erroneous interpretation of the definition of "knuckleduster" which resulted in the Court below misdirecting itself of the matters of which it needed to be satisfied beyond reasonable doubt and that this involves a question of law alone.

The defendant filed a submitting appearance in this Court.

Relevant statutory provisions

Section 7 of the WP Act provides:

"7 Offence of unauthorised possession or use of prohibited weapon

(1) A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit.

Maximum penalty: imprisonment for 14 years.

(2) Without limiting the operation of subsection (1), a person who is the holder of a permit to possess or use a prohibited weapon is guilty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Starr

Details

AGLC: DPP v Starr [2012] NSWSC 315
Case: [2012] NSWSC 315
Decision Date: 05 April 2012

CaseChat Overview and Summary

The appeal before the Court was brought by the Director of Public Prosecutions, who sought to overturn a decision of the Local Court, which had dismissed a charge against the appellant, Starr, of possessing knuckle-dusters in a public place. The Local Court had found that the prosecution had failed to prove that Starr knew that the items were knuckle-dusters. The Court of Appeal was required to consider the meaning of "the user" of knuckle-dusters and whether it was sufficient for the prosecution to prove that the appellant knew that the items were for use as weapons.

The Court of Appeal found that the meaning of "the user" of knuckle-dusters was not limited to the person who would physically wear them. Instead, it was sufficient for the prosecution to prove that the appellant knew that the items were for use as weapons, regardless of whether they were intended for use by the appellant or another person. The Court found that the prosecution had presented sufficient evidence to prove that Starr knew that the items were knuckle-dusters and that they were intended for use as weapons. The Court of Appeal therefore overturned the decision of the Local Court and found Starr guilty of possessing knuckle-dusters in a public place.

The Court of Appeal ordered that Starr be sentenced in accordance with the Weapons Prohibition Act 1990. The Court also ordered that the appeal be allowed, the conviction of the Local Court be set aside and that a conviction be entered in the Court of Appeal. Starr was ordered to pay costs of the appeal.

Orders