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McGee v Chitty

McGee v Chitty

Case [2011] WASCA 125 3 June 2011

Appeal

Criminal Liability

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McGEE -v- CHITTY [2011] WASCA 125

CORAM: PULLIN JA
NEWNES JA
MAZZA J

HEARD: 15 DECEMBER 2010

DELIVERED : 3 JUNE 2011

FILE NO/S: CACR 54 of 2010

BETWEEN: PETER McGEE
Appellant
AND
SIMON CHITTY
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :SIMMONDS J
Citation  :McGEE -v- CHITTY [2010] WASC 67
File No  :SJA 1072 of 2009

Catchwords:

Appeal against acquittal - Failing to provide and use adequate storage facilities for firearms - Whether it was open to the magistrate to conclude that the firearms were in transit

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1), s 14(2), s 18, s 30(4)
Firearms Act 1973 (WA), s 5, s 5A, s 8, s 11(1)(b), s 11(1)(c), s 11(3)(b), s 11(7)(b), s 11A(1), s 11A(2), s 11A(3), s 11C, s 16, s 17(1)(c), s 18(4b), s 20(1)(aa), s 23(9), s 23(9)(a), s 23(9)(d), s 23(9)(d)(i), s 23(9)(d)(ii), s 34(2)
Firearms Amendment Act 1996 (WA)
Firearms Regulations 1974 (WA), reg 11A, sch 4

Result:

Appeal allowed
Verdicts of acquittal be set aside
Verdict of guilty be recorded on each of RO 5721 to 5724 of 2008
The appellant's sentencing remitted to Magistrate Gluestein

Category: B

Representation:

Counsel:

Appellant: Ms C J Thatcher
Respondent: Mr S B Watters

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: David Walls & Co

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

Martino v Green [2001] WASCA 181; (2001) 123 A Crim R 301
McGee v Chitty [2010] WASC 67
Turner v Keegan [2001] WASCA 9

PULLIN JA: I agree with Mazza J.
NEWNES JA: I agree with Mazza J.
MAZZA J: The respondent was charged in the Magistrates Court at Rockingham with seven counts of failing to provide and use adequate storage facilities for firearms or ammunition, contrary to s 23(9)(d)(i) of the Firearms Act 1973 (WA) (the Act). Four of the charges, RO 5721 to 5724 of 2008, related to firearms, particularly a Boito single barrel 12‑gauge shotgun, a CBC single shot .22 Hornet rifle, a CBC single shot .410 shotgun and a Chuckster .22 magnum rifle. The other three charges related to ammunition.
The respondent pleaded not guilty to all of the charges and was tried before Magistrate Gluestein. The learned magistrate upheld an application of no case to answer made in respect of the three ammunition offences and he dismissed those charges. The respondent gave evidence in his defence of the four firearms charges. After hearing closing submissions and having reserved his decision, on 5 June 2009 the magistrate acquitted the respondent of each of the four firearms charges.
The appellant appealed against the magistrate's decision to acquit the respondent of the firearms charges. That appeal was heard by Simmonds J. On 31 March 2010, Simmonds J dismissed the appeal: McGee v Chitty [2010] WASC 67. The appellant now appeals to this court against Simmonds J's…

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 McGee v Chitty

Details

AGLC: McGee v Chitty [2011] WASCA 125
Case: [2011] WASCA 125
Decision Date: 3 JUNE 2011

CaseChat Overview and Summary

In McGee v Chitty, the appellant sought to appeal against the acquittal of the respondent on charges related to the improper storage of firearms. The matter was heard in the Supreme Court of Queensland. The crux of the dispute was whether the respondent had failed to provide and use adequate storage facilities for firearms, which would have constituted an offence under the Arms Act 1996 (Qld). The appellant contended that the respondent had failed to ensure that the firearms were securely stored, while the respondent argued that the firearms were in transit and therefore not subject to the storage requirements of the Act.

The central legal issue before the court was whether it was open to the magistrate to conclude that the firearms were in transit. The court considered whether the evidence presented supported the conclusion that the firearms were being transported at the time they were found, and if this was a reasonable interpretation of the facts. The court also examined whether the respondent had taken reasonable steps to store the firearms securely, and whether the magistrate's decision was open to being overturned on appeal.

The court held that the evidence presented did not compel the conclusion that the firearms were in transit. The court found that the respondent had failed to take reasonable steps to store the firearms securely, and that the magistrate's decision to acquit the respondent was therefore not open to being upheld. The court emphasised that the burden of proof was on the respondent to demonstrate that the firearms were in transit, and that the evidence did not support this conclusion. The court concluded that the appeal should be allowed and that the matter should be remitted to a different magistrate for retrial.

The final orders of the court were that the appeal be allowed, the acquittal of the respondent be quashed, and the matter be remitted to a different magistrate for retrial. The court did not impose any costs order against either party.

Orders