FAZIO -v- ZANETTI [2012] WASC 426

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 426
Case No:	SJA:1068/2012	Heard:	19 OCTOBER 2012
Coram:	HALL J	Delivered:	19/10/12
No of pages:	7	Judgment Part:	1 of 1
Result:	Extension of time granted Leave to appeal granted Appeal allowed Conviction set aside and acquittal substituted
Category:	B
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Parties:	PHILLIP DANIEL FAZIO JASON DAVID ZANETTI
Catchwords:	Criminal law Appeal against conviction Firearms offence Whether appellant was in law guilty of offence Whether the appellant exercised control over firearm and ammunition 'otherwise than by way of storage' On admitted facts control was by way of storage Not open to substitute an improper storage conviction on appeal
Legislation:	Criminal Appeals Act 2004 (WA), s 4 Firearms Act 1973 (WA), s 23
Case References:	Anderson v Pankhurst (No 2) [2012] WASC 326 Borsa v The Queen [2003] WASCA 254 Hogue v The State of Western Australia [2005] WASCA 102 Liberti v The Queen (1991) 55 A Crim R 120 McGee v Chitty [2011] WASCA 125 Smith v Vos [2012] WASC 211

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : FAZIO -v- ZANETTI [2012] WASC 426 CORAM : HALL J HEARD : 19 OCTOBER 2012 DELIVERED : 19 OCTOBER 2012 FILE NO/S : SJA 1068 of 2012 BETWEEN : PHILLIP DANIEL FAZIO

Appellant

AND

JASON DAVID ZANETTI

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE L H JONES

File No : FR 2153 of 2012

Catchwords:

Criminal law - Appeal against conviction - Firearms offence - Whether appellant was in law guilty of offence - Whether the appellant exercised control over firearm and ammunition 'otherwise than by way of storage' - On admitted facts control was by way of storage - Not open to substitute an improper storage conviction on appeal

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 4

Firearms Act 1973 (WA), s 23

Result:

Extension of time granted

Leave to appeal granted
Appeal allowed
Conviction set aside and acquittal substituted

Category: B

Representation:

Counsel:

Appellant : Ms B J Lonsdale

Respondent : Ms H L Stapp

Solicitors:

Appellant : Timpano Legal

Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Anderson v Pankhurst (No 2) [2012] WASC 326
Borsa v The Queen [2003] WASCA 254
Hogue v The State of Western Australia [2005] WASCA 102
Liberti v The Queen (1991) 55 A Crim R 120
McGee v Chitty [2011] WASCA 125
Smith v Vos [2012] WASC 211

(Page 3)

HALL J

(These reasons were given orally and have been edited from the transcript).

Introduction

1 On 27 March 2012 the appellant was convicted of failing to take reasonable precautions to ensure the safekeeping of a firearm and ammunition that were in his control, contrary to s 23(9)(a) of the FirearmsAct 1973. He was fined $1600 and an order was made revoking his firearms licence for an unspecified period.

2 On 4 July 2012 the…

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 Fazio v Zanetti

Details

AGLC: FAZIO -v- ZANETTI [2012] WASC 426
Case: [2012] WASC 426
Decision Date: 19 OCTOBER 2012

CaseChat Overview and Summary

The case of Fazio v Zanetti was heard in the High Court of Australia. The appellant, Mr Fazio, was convicted of a firearms offence and sought leave to appeal against that conviction. The central issue in the appeal was whether Mr Fazio was in law guilty of the offence, specifically concerning whether he exercised control over a firearm and ammunition otherwise than by way of storage. The conviction rested on the interpretation of the relevant statute and the nature of control exercised by Mr Fazio over the items in question.

The court had to determine whether the appellant's control over the firearm and ammunition was by way of storage, as admitted in the facts, or if it could be construed as exercising control otherwise than by storage. The statutory provisions in question were closely examined to understand the meaning of 'otherwise than by way of storage' and whether the appellant's actions fell within this category. The court held that, based on the admitted facts, the control exercised by Mr Fazio was indeed by way of storage. Consequently, it was not open to the court to substitute an improper conviction for storage with a conviction for exercising control otherwise than by way of storage on appeal.

In conclusion, the High Court allowed the appeal and set aside the conviction, substituting it with an acquittal. The court granted leave to appeal, extended the time for the appeal, and ultimately acquitted Mr Fazio of the firearms offence. This decision underscores the importance of correctly interpreting statutory provisions and the limitations of appellate courts in substituting convictions based on different interpretations of the law.

Orders

Orders of the court

Extension of time granted

Leave to appeal granted

Appeal allowed

Conviction set aside and acquittal substituted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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