Pettersen v The The King

[2022] NSWDC 512

District Court

New South Wales

Medium Neutral Citation:

Pettersen v R [2022] NSWDC 512

Hearing dates:

26 October 2022

Date of orders:

26 October 2022

Decision date:

26 October 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   Appeal allowed.

(2)   I set aside the conviction and the penalty imposed by the magistrate.

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction

Legislation Cited:

Crimes (Appeal and Review) Act2001

Weapons Prohibition Act 1998

Cases Cited:

AGv Director of Public Prosecutions [2015] NSWCA 218

Chararav R [2006] NSWCCA 244

Fox v Percy (2003) 214 CLR 118

GianoutsasvGlykis [2006] NSWCCA 137

Lumney v Director of Public Prosecutions [2021] NSWCA 186

McNab v Director of Public Prosecutions [2021] NSWCA 298

R v Hillier (2007) 228 CLR 619

The Queen v Baden-Clay (2016) 258 CLR 308

Category:

Principal judgment

Parties:

Neil Andrew Pettersen (Appellant)
Regina (Crown)

Representation:

Counsel:
S Odgers SC (Appellant)

Solicitors:
Berrell Tinker Solicitors (Appellant)
Office of the Director of Public Prosecutions (Crown)

File Number(s):

2021/77442

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Downing Centre Local Court

Jurisdiction:

Local Court

Date of Decision:

24 February 2022

Before:

Magistrate Virgo

Judgment

1. On 24 February 2022 Neil Andrew Pettersen (the appellant) was convicted of an offence of possess prohibited weapon contrary to s 7(1) Weapons Prohibition Act 1998 (the Act), by a magistrate sitting at the Downing Centre Local Court. The appellant brings an appeal as of right against that conviction.

2. On 18 March 2021 police searched a self-storage unit at Camperdown (the unit) and located a soft armour vest (the vest) in a black material carry bag with a zipper. The vest fell within the definition of a prohibited weapon and the appellant was not authorised by a permit to possess the vest.

3. The search of the unit was filmed and the video recording of the search was in evidence.

4. The unit was rented in the name of the appellant’s girlfriend. The appellant visited the unit on a number of occasions prior to 18 March 2021 and stored property owned by him in the unit. The appellant also allowed a person, Tyrone Priest, to store items in the unit. The vest belonged to Mr Priest.

5. The prosecution case was that the appellant was in possession of the vest, pursuant to the extended definition of “possession” in s 4 of the Act. The appellant accepted that if he knew that the vest was stored in the unit he had “possession” of it, for the purposes of s 7 of the Act.

6. In an electronically recorded interview with police, the appellant denied any knowledge of the presence of the vest in the unit. There was evidence that Mr Priest had stored the vest in the unit without the appellant’s knowledge.

7. A tape lift from the inside of the collar of the vest contained DNA. The appellant could not be excluded as the major contributor to that DNA…