Houlakis v The Queen - [2015] NSWDC 127

District Court

New South Wales

Medium Neutral Citation: Houlakis v R [2015] NSWDC 127
Hearing dates: 10 March 2015
Date of orders: 10 March 2015
Decision date: 10 March 2015
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Convictions recorded in respect of sequences 5 to 13 set aside
Convictions recorded in respect of sequences 14 and 15 confirmed
Catchwords:
APPEAL – Conviction appeal – Whether appellant took all reasonable precautions to ensure safekeeping of firearms – Firearms stored in safe at residence of appellant’s estranged wife – Wife had access to safe key – Appellant not living at premises – Section 4A Firearms Act 1996 not applicable – No evidence wife not responsible person with whom key may be left
APPEAL – Conviction appeal – Whether appellant took all reasonable to ensure safekeeping of firearms – Firearms stored at residence of appellant’s estranged wife – Appellant uncertain at time of offence where firearms were stored – Lack of knowledge of location of firearms establishes a failure to take all reasonable precautions for safekeeping
Legislation Cited: Firearms Act 1996
Cases Cited: Director of Public Prosecutions v Wilson [2004] NSWSC 911
May v R [2012] NSWCCA 250
Category: Principal judgment
Parties: James Houlakis (Appellant)
Director of Public Prosecutions (NSW) (Respondent)
Representation: Mr J Klarica (Appellant)
Solicitor for Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/00169277
Publication restriction: No
Decision under appeal

Court or tribunal:

Burwood Local Court

Jurisdiction:

Criminal

Date of Decision:

09 September 2015

Before:

George LCM

File Number(s):

2014/00169277

Judgment

HIS HONOUR: This is an appeal against 11 convictions recorded by Magistrate George sitting in the Local Court at Burwood on 9 September 2015. The appellant was charged with 17 offences contrary to the provisions of the Firearms Act 1996. Whilst each court attendance notice is given a sequence number, one will forgive me, I trust, if I refer to each of the sequences as a count, as if the 17 charges were all on one indictment. His Honour dismissed counts numbered 1 to 4 and counts 16 and 17. There is no ability for the Crown to appeal from an acquittal in the Local Court to this Court. His Honour found proved counts numbered 5 to 15. Each of those counts was an allegation contrary to s 39(1)(a) of the Firearms Act1996.
It is worthwhile considering the proper interpretation of that provision which has been set forward in the judgment of James J in Director of Public Prosecutions v Wilson [2004] NSWSC 911. Commencing [10] his Honour said this:

“[10] Counsel for the plaintiff submitted that s 39(1)(a) should be given a purposive construction, so as to carry into effect the underlying principles and objects of the Firearms Act, as set out in s 3 of the Act.
[11] By s 3(1) of the Act the underlying principles of the Act are stated to be:
(a) to confirm possession and use as being a privilege that is conditional on the overriding need to ensure…

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 Houlakis v The Queen

Details

AGLC: Houlakis v The Queen [2015] NSWDC 127
Case: [2015] NSWDC 127
Decision Date: 10 March 2015

CaseChat Overview and Summary

The appeal against the conviction and sentence of the appellant, Houlakis, was heard by the court. The appellant was charged with offences under the Firearms Act 1996 for failing to take all reasonable precautions to ensure the safekeeping of firearms. The firearms in question were stored at the residence of the appellant's estranged wife, who had access to the key to the safe in which the firearms were kept. The appellant was not living at the premises where the firearms were stored, and it was unclear whether he knew the exact location of the firearms at the time of the offence. The central issue before the court was whether the appellant took all reasonable precautions to ensure the safekeeping of the firearms.

The court considered whether the appellant took all reasonable precautions to ensure the safekeeping of the firearms. The court found that the appellant was not living at the premises where the firearms were stored, and there was no evidence that his estranged wife was not a responsible person with whom the key to the safe could be left. However, the court found that the appellant's lack of knowledge of the location of the firearms established a failure to take all reasonable precautions for their safekeeping. The court noted that the appellant was uncertain as to the whereabouts of the firearms at the time of the offence, which was a failure to take all reasonable precautions. The court also noted that section 4A of the Firearms Act 1996 did not apply in this case as the firearms were not stored in a location prescribed by that section.

The court set aside the convictions recorded in respect of sequences 5 to 13 and confirmed the convictions recorded in respect of sequences 14 and 15. The court found that the appellant had not taken all reasonable precautions to ensure the safekeeping of the firearms, and therefore, the convictions for sequences 5 to 13 were set aside. However, the court found that the appellant was guilty of the offences in respect of sequences 14 and 15, and therefore, those convictions were confirmed. The court ordered that the convictions recorded in respect of sequences 5 to 13 be set aside and that the convictions recorded in respect of sequences 14 and 15 be confirmed.

Orders

Orders of the court

Convictions recorded in respect of sequences 5 to 13 set aside

Convictions recorded in respect of sequences 14 and 15 confirmed

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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Medium Neutral Citation:	Houlakis v R [2015] NSWDC 127
Hearing dates:	10 March 2015
Date of orders:	10 March 2015
Decision date:	10 March 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Convictions recorded in respect of sequences 5 to 13 set aside Convictions recorded in respect of sequences 14 and 15 confirmed
Catchwords:	APPEAL – Conviction appeal – Whether appellant took all reasonable precautions to ensure safekeeping of firearms – Firearms stored in safe at residence of appellant’s estranged wife – Wife had access to safe key – Appellant not living at premises – Section 4A Firearms Act 1996 not applicable – No evidence wife not responsible person with whom key may be left APPEAL – Conviction appeal – Whether appellant took all reasonable to ensure safekeeping of firearms – Firearms stored at residence of appellant’s estranged wife – Appellant uncertain at time of offence where firearms were stored – Lack of knowledge of location of firearms establishes a failure to take all reasonable precautions for safekeeping
Legislation Cited:	Firearms Act 1996
Cases Cited:	Director of Public Prosecutions v Wilson [2004] NSWSC 911 May v R [2012] NSWCCA 250
Category:	Principal judgment
Parties:	James Houlakis (Appellant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Mr J Klarica (Appellant) Solicitor for Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2014/00169277
Publication restriction:	No
Decision under appeal	Court or tribunal: Burwood Local Court Jurisdiction: Criminal Date of Decision: 09 September 2015 Before: George LCM File Number(s): 2014/00169277