Garcia v The King

[2024] NSWDC 449

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Garcia v R [2024] NSWDC 449

Hearing dates:

17/9/24, 23/9/24

Date of orders:

23/9/24

Decision date:

23 September 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Conviction appeal upheld. Convictions quashed

Catchwords:

Crime – Conviction appeal - Not keep firearm safely - Possess unauthorised pistol

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Firearms Act 1996

Cases Cited:

Commissioner of Police v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981

Darestani v R [2019] NSWCCA 248

McNab v DPP [2021] NSWCA 298

Category:

Principal judgment

Parties:

NSW DPP – Crown
Ricardo Garcia - Appellant

Representation:

Ms Sotiropoulos for Crown
Mr Cole for Appellant

File Number(s):

23/56218

 Decision under appeal 

Court or tribunal:

Liverpool Local Court

Date of Decision:

10 April 2024

conviction appeal judgment

1. This is an appeal by Ricardo Garcia against his conviction by a Magistrate for two offences:-

1. Firstly, an offence under s.7(1) of the Firearms Act 1996 of possessing an unauthorised pistol; and

2. Secondly, an offence under s.39(1)(a) of the Firearms Act 1996, of not keeping a firearm safely.

2. In an appeal such as this it is necessary to demonstrate a factual, legal or discretionary error in order for the appeal to succeed: McNab v DPP [2021] NSWCA 298. If error is demonstrated, I am required to give the judgment which in my opinion ought to have been given at first instance.

3. The appeal is a rehearing based on the evidence in the court below, and I am required to form my own judgment of the facts in so far as I can, but recognising any advantage that the Magistrate may have had in seeing and hearing the witnesses. That of course includes taking into account, if relevant, the Magistrate's assessment of the credibility of witnesses who gave evidence in the Local Court.

4. In this appeal, it has been submitted that the Magistrate erred in finding the offences proven because:-

1. Firstly, there was no evidence that the Appellant was not authorised by a licence or permit to be in possession of an imitation firearm; and

2. Secondly, that the Prosecution had failed to exclude the reasonable possibility that the subject item was “produced and identified as a children’s toy” (as contemplated by the exception in subs 4D(4) of the Firearms Act 1996).

5. As the proceedings involve criminal allegations, the Prosecution at all times carried the onus of proof of the elements of the charges. The Appellant is and was presumed innocent unless and until his guilt was proved beyond reasonable doubt.

Elements

6. The elements of an offence under subs 7(1) are as follows:-

1. That the Appellant had in his possession;

2. A firearm;

3. Without being authorised by licence or permit to do so.

7. The elements of an offence under subs 39(1)(a) are as follows:-

1. That the Appellant was in possession of a firearm;

2. The Appellant failed to take all reasonable precautions to ensure the safe keeping of that firearm.

The evidence

8. The relevant events occurred on…