May v R - [2012] NSWCCA 250

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: May v R [2012] NSWCCA 250
Hearing dates: 16 October 2012
Decision date: 30 November 2012
Before: McClellan CJ at CL at [1]
Johnson J at [35]
Bellew J at [36]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - appeal - conviction - conviction for possession of firearm contrary to Firearms Act 1996 - where firearm found in bedroom of appellant - where appellant denied knowledge of firearm - whether trial judge failed to give reasons that complied with s 133 of the Criminal Procedure Act - reasons of trial judge sufficient - whether verdict was unreasonable and cannot be supported by the evidence - where burden on appellant to prove that she did not know, or could not reasonably be expected to know, about firearm - verdict not unreasonable - appeal dismissed.
Legislation Cited: Firearms Act 1996
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: AK v Western Australia [2008] HCA 8; 232 CLR 438
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3
R v Gardiner [2006] NSWCCA 190; (2006) 162 A Crim R 233
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category: Principal judgment
Parties: Michelle May (Appellant)
Crown
Representation: Counsel:
K Averre (Appellant)
S Dowling (Crown)
Solicitors:
Purcell Felton Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/322559
Decision under appeal

Date of Decision:

2011-07-28 00:00:00

Before:

Finnane DCJ

File Number(s):

2009/322559

Judgment

McCLELLAN CJ at CL: The appellant was convicted after trial of one count of possessing an unauthorised firearm contrary to s 7(1)of the Firearms Act 1996 ("the Act"). The trial proceeded without a jury. There is no application for leave to appeal the sentence.

There are two grounds of appeal against the conviction:

Ground 1: the trial judge failed to give reasons that complied with s 133 of the Criminal Procedure Act 1986.

Ground 2: the verdict is unreasonable and cannot be supported by the evidence.

Facts

In December 2009 the appellant was the lessee of a three bedroom house where she lived with three of her children aged 9, 16 and 18 respectively. Another son had been in custody since 2006.

The appellant's home was a two storey townhouse. Entry to the living area was from the street. The appellant's bedroom was located upstairs at the front of the house.

On 20 December 2009 police attended the appellant's home in relation to a stabbing incident. After the appellant (who was charged in relation to that matter) had been removed from the premises, the police established a crime scene and the property was searched. During the search the police located a blue box containing a 12 gauge Mossberg pump action repeating shotgun in the appellant's bedroom and under her bed.

Neither the appellant's fingerprints nor DNA were located on the gun or the box.

The appellant participated in a very brief record of interview and the following exchange occurred:

"Q:…

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 May v R

Details

AGLC: May v R [2012] NSWCCA 250
Case: [2012] NSWCCA 250
Decision Date: 30 November 2012

CaseChat Overview and Summary

The case of May v R involved the appellant who was convicted of possessing a firearm in contravention of the Firearms Act 1996. The firearm was discovered in the bedroom of the appellant, who denied any knowledge of its presence. The central issues in the appeal were whether the trial judge failed to provide adequate reasons for the conviction as required by s 133 of the Criminal Procedure Act and whether the verdict was unreasonable and unsupported by the evidence. Furthermore, the court had to consider the burden of proof on the appellant to establish that she was unaware of, or could not reasonably be expected to be aware of, the firearm's presence.

The court examined the reasons provided by the trial judge and found them to be sufficient. It was held that the trial judge's reasons met the requirements of s 133, providing a clear and comprehensive explanation of the evidence and the application of the law. Regarding the reasonableness of the verdict, the court noted that the burden rested on the appellant to prove her lack of knowledge or reasonable expectation of knowledge about the firearm. The court concluded that the verdict was not unreasonable, as it was based on the evidence presented and the trial judge's assessment of the appellant's credibility.

In light of the above, the court dismissed the appeal, affirming the conviction. The decision underscored the importance of the trial judge's role in providing adequate reasons for a conviction and the appellant's burden to disprove knowledge or reasonable expectation of knowledge of the firearm. The court's reasoning highlighted the necessity for a careful assessment of the evidence and the trial judge's findings to ensure the verdict's reasonableness.

Orders