R v Bartuccio

[2017] NSWDC 286

District Court

New South Wales

Medium Neutral Citation:	R v Bartuccio [2017] NSWDC 286
Hearing dates:	17 – 18 October 2017
Date of orders:	20 October 2017
Decision date:	20 October 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	I find the offence not proved and the accused not guilty
Catchwords:	CRIMINAL LAW – TRIAL BY JUDGE ALONE – directions   POSSESS FIREARM WITHOUT PERMIT – whether accused in possession of firearm – where Crown relies on extended definition of possession – whether accused “occupied” premises – whether statutory defence made out on facts
Legislation Cited:	Evidence Act 1995 (NSW) s 191 Firearms Act 1996 (NSW) ss 4, 4A(1), 7A(1) and 87 Criminal Procedure Act 1986 (NSW) s 133
Cases Cited:	Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fleming v R (1998) 197 CLR 250 Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 May v R [2012] NSWCCA 250 Monis v the Queen (2013) 249 CLR 92; [2013] HCA 4 Moufid Saad v Ryan Jeffcoat [2013] NSWSC 1585 R v IL (No 4) [2014] NSWSC 1801 Shepherd v The Queen (1990) 170 CLR 573
Category:	Principal judgment
Parties:	Regina (Crown) Mr Vincenzo Bartuccio (Accused)
Representation:	Counsel: Mr C Allison (Trial Advocate for the Crown) Mr D Randle (Accused)   Solicitors: Solicitor for the Director of Public Prosecutions (Crown) Anderson Boemi Lawyers (Accused)
File Number(s):	2016/370998
Publication restriction:	Nil

Judgment

INDICTMENT

1. The accused, Mr Vincenzo Bartuccio, has been arraigned on an indictment dated 17 October 2017, that he, contrary to s 7A(1) of the Firearms Act 1996 (NSW) [1] :

On 8 December 2016 at Rossmore in the State of New South Wales, did possess a firearm, namely a .22 long rifle calibre/20 gauge Savage Arms model 24H-DL combination rifle/shotgun, not being authorised to do so by a licence or permit.

1. Hereinafter referred to as the “1996 Act”

2. The accused pleaded not guilty to that charge.

JUDGE ALONE TRIAL

3. As this is a judge alone trial, s 133(2) of the Criminal Procedure Act 1986 (NSW)requires me to state the principles of law to be applied, as well as findings of fact which are made. s 133(3) of the same Act states that where the law requires a warning to be given to a jury, I must take the warning into account in dealing with the matter.

4. I approach these statutory obligations in accordance with the statements made in both Fleming v R[2] and Filippou v The Queen. [3]

DIRECTIONS

2. (1998) 197 CLR 250

3. (2015) 256 CLR 47; [2015] HCA 29 at [6] and [52] (French CJ, Bell, Keane and Nettle JJ with whom Gageler J agreed)

The presumption of innocence

5. The accused is entitled to the presumption of innocence. He has pleaded not guilty to the charge and has elected to proceed to a trial by Judge alone – it is my duty and responsibility to consider whether he is guilty or not guilty of the charge and to return my verdict according to the evidence.

6. The accused is not required to prove his innocence. The accused is presumed to be innocent of the crime charged unless the evidence led in the trial satisfies me to the appropriate standard that he is guilty of the crimes.

7. During the trial, the accused has been bail refused. There is also evidence before me in agreed facts pursuant to s 191 of the Evidence Act1995 (NSW) that on 8 December 2016, enquiries by police revealed that the accused was subject to bail. In relation to the matters the subject of this trial, no adverse inference is to be drawn against the accused by reason of his bail status or any charge to which it relates.

Onus and standard of proof

8. The prosecution bears the onus of proof, from the beginning to the end of the trial, to establish the guilt of the accused. The accused bears no onus and is not required to prove anything in the trial, with the exception of the defence that it has raised under s 4A(1) of the 1996 Act in circumstances that I will later come to.

9. The standard of proof is beyond reasonable doubt. Those words have their ordinary English meaning. It is not enough for the Crown to show suspicion of guilt or to demonstrate that the accused is probably guilty.

10. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. In the circumstances of this trial, the critical questions are whether the Crown has proved beyond reasonable doubt that the accused (1) possessed a prohibited firearm, namely, the .22 long rifle calibre/20 gauge Savage Arms model 24H-DL combination rifle/shotgun; and (2) that the accused was not authorised to do so by a licence or permit.

11. However, the Crown is not required to prove the truth and reliability of every disputed fact nor to answer every question that might be posed concerning the evidence in the case.

12. In a criminal trial the only one ultimate issue is: Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “yes”, the appropriate verdict is “guilty”. If the answer is “no”, the verdict must be “Not Guilty”.

13. In this case, the Crown relies on the extended definition of “possession” contained in s 4A(1) of the 1996 Act based on the assertion that it has established that on 8 December 2016 the firearm was on the premises occupied by the accused. The Defence disputes that the Crown has established occupation however in the alternative raises the Defence provided 4A (1) (b) and (c) of the Act. This has been described as a “reverse onus” that is “cast upon the [accused]”. [4] This defence for it to succeed must be established on the balance of probabilities. [5]

    4. R v IL (No 4) [2014] NSWSC 1801 at [30] (Hamill J) and Moufid Saad v Ryan Jeffcoat [2013] NSWSC 1585 at [73] (Button J)

    5. See May v R [2012] NSWCCA 250 at [25] (McClellan CJ at CL with whom Johnson and Bellew JJ agreed); Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [109] (McClellan CJ at CL with whom James and Simpson JJ agreed)

Dispassionate approach

14. It is necessary to consider the evidence in the trial impartially and dispassionately. The Court must not let sympathy or emotion affect its judgment.

15. In the same manner as required of a jury, I will approach the assessment of evidence in this trial in a dispassionate manner and without emotion or sympathy and without any element of prejudice.

Election not to give evidence

16. In this case, the accused has not given evidence. The only witness called by the Defence was Mrs Evagelia (Julia) Bartuccio – the accused’s wife.

17. As I have already noted, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged.

18. Subject to what I have earlier referred to, the accused bears no onus of proof.

19. In respect of any fact that is in dispute he is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged.

20. As a matter of law, the accused’s decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used as amounting to an admission of guilt. I must not and I do not, draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

21. In particular the Court is not to speculate about what might have been said in evidence if the accused had given evidence.

Accused did not participate in an interview

22. I further observe that the accused was offered the opportunity to participate in an electronically recorded interview with police. The accused declined this opportunity.

23. That is, Mr Bartuccio chose not to answer questions put to him by the police at the time of his arrest. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. That is what the police officer told him when he was asked if he wanted to answer their questions. This is referred to in Exhibit A by reference to the caution. There are some exceptions to this right, but those exceptions do not apply here.

24. In this case, it would be quite wrong if the accused, having listened to what the police said, and having decided to exercise his right to silence, later found that I were to use that fact against him. I must not do that and it is important, therefore, that I bear in mind that his silence cannot be used against him in any way at all. The fact that he took note of the caution given by the police and chose to remain silent cannot be used against him. Under our law, an accused person has a right to silence.

Inferences

25. I may in my role as the Judge of the facts, draw inferences from direct evidence. I may only draw an inference adverse to the accused from proven facts if such inference is a reasonable inference that can be properly drawn from those facts. There are, however, surrounding circumstances from which the Crown seeks that inferences be drawn from established facts to draw a conclusion as to the existence of further facts. To the extent that such aspects of the case rely upon circumstantial evidence it is necessary to state and apply some fundamental principles.

26. Just how convincing and reliable a circumstantial case is will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole and whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that the circumstantial aspect of the case be approached by considering and weighing as a whole all of the facts established by the evidence. If such a conclusion does not reasonably arise, then the Crown circumstantial case fails.

27. If, however, a conclusion of guilt is a reasonable one to draw based upon a combination of the established facts then, before the Court can convict the accused, it must be determined whether there is any other reasonable conclusion arising from the facts that is consistent with the conclusion that the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because the Court would not be satisfied beyond reasonable doubt of the accused’s guilt.

28. The Court must not base its conclusion upon mere speculation, conjecture, or supposition.

Circumstantial case – links in a chain

29. Following on from that direction, the Crown asks me to draw an inference or conclusion of guilt that the accused possessed the firearm in question beyond reasonable doubt from the facts in this case.

30. It will not be open to me to come to a conclusion favourable to the Crown unless I were first to find as a fact that the subject firearm was on the premises occupied by the accused on 8 December 2016 This is because the Crown relies on the extended definition under s 4A(1) of the 1996 Act, and it must satisfy me beyond reasonable doubt that the accused occupied the premises where the firearm was located. I will later outline the various pieces of evidence that the Crown relies on in order to prove this fact.

31. As that fact is essential to my coming to a conclusion in favour of the Crown — because the Crown must prove its case beyond reasonable doubt — then I would first have to be satisfied as to the existence of that particular fact beyond reasonable doubt. [6] This particular fact must be proved beyond reasonable doubt not because it alone proves the guilt of Mr Bartuccio but because it is an essential step in the reasoning that the Crown asks me to follow in order to establish its case.

    6. Shepherd v The Queen (1990) 170 CLR 573

32. As I have already said, in relation to facts which are not essential to my process of reasoning, I would not consider those facts I find established by the evidence in isolation, but I would have regard to them as a whole.

33. If I were satisfied beyond reasonable doubt as to the existence of the essential fact, then I can take that fact together with all the other facts I find established and ask myself whether I can draw an inference or conclusion in favour of the Crown from those facts considered as a whole. If such a conclusion that the Crown asks me to find is not available then the Crown’s circumstantial case fails. But it is for me to determine what conclusion, if any, can reasonably be drawn from the established facts, and then consider whether there is any other reasonable explanation for those facts other than that of the accused’s guilt. If there is no other explanation consistent with all the established facts considered together, then it would be open to convict the accused.

34. If, however, I am not satisfied beyond reasonable doubt as to the essential fact to which I have referred, I must return a verdict of not guilty. I should also find the accused not guilty if, looking at the established facts as a whole, I cannot conclude beyond reasonable doubt that he is guilty. As I have said, this would also be the position if, at the end of my deliberations, I am of the view that some other reasonable explanation exists for those facts other than that the accused is guilty.

ELEMENTS OF THE OFFENCE

35. As stated earlier, in order to be able to establish the guilt of the accused, the Crown must prove beyond reasonable doubt, the following two elements of the offence:

1. That on 8 December 2016 the accused possessed the firearm, namely, the .22 long rifle calibre/20 gauge Savage Arms model 24H-DL combination rifle/shotgun; and

2. That the accused was not authorised to do so by a licence or permit.

EVIDENCE

Evidence not in dispute

36. The accused’s father Mr Pasquale Bartuccio together with his wife has for some 40 years prior to 16 December 1996 resided at a large semi-rural property at 160 Devonshire Road Rossmore. They have six children between them although the evidence was that the last of his children moved out of home about ten years ago.

37. The property consists of a one storey fibro home with four bedrooms, two kennels for dogs, a glass green house, a structure for pigs, a chicken coop and sheds used when the farm was operating for operating and packing. There was also a large shed.

38. It is not in issue that on 8 December 2016 police went to the property at 160 Devonshire Road Rossmore and in a room in a shed depicted in a diagram marked in exhibits 1 and D located a firearm in a black coloured carry case being a Savage Arms Model 24 H-DL combination rifle/shotgun [7] .

    7. Exhibit A at [10]

39. As to the second element, this was also not in dispute. A certificate issued under s 87 of the 1996 Act dated 13 October 2017 authored by Ms Julieanne Andrews – the Team Leader, Probity as the Delegate for the Commissioner of Police stated that:-

Vincenzo Bartuccio was not between 01/01/2000 and 21/05/2011 and 03/03/2004 and 08/12/2016, the holder of a Firearms Licence or Permit in New South Wales, which authorised the possession, or use of firearms.

Mr Bartuccio was the holder of a category AB firearms licence number 406055642. This licence was issued on 22/05/2012 and expired on 22/05/2014.

Mr Bartuccio’s licence was Suspended on 03/03/2014 and subsequently Revoked on 19/08/2014. [8]

8. Exhibit E

40. Based on this document I am satisfied beyond reasonable doubt that on 8 December 2016 the accused was not authorised to hold a Firearms License or Permit in NSW. Accordingly, I am satisfied that the second element of the offence has been established.

What is possession?

41. The essence of the concept of possession in law is that, at the relevant time, a person intentionally has control over the object in question, in this case, a firearm. A person may have this control alone or jointly with some other person or persons. A person must have the right to exclude other people from it. If these conditions are fulfilled, it may be said that the person has possession of that object, whether it is his own sole possession or whether it is a joint possession with somebody else.

42. It is not necessary for a person to have something in their hand, pocket, wallet or purse before the law says that he has it in his possession. Further, a person does not need to own something in order to possess it. A person can possess something temporarily, or for some limited purpose. A person can possess something jointly with one or more other persons.

43. In defining possession earlier, I used the phrase “intentionally have control”. This is to make clear that if something has been, for example, slipped into a custody unknown that person is not regarded as having possession of it in law, even though the case that the person is carrying could be said to be under their control.

44. s 4 of the 1996 Act provides that the defines “possession”:

4 Definitions

‘possession’ of a firearm includes any case in which a person knowingly:

(a) has custody of the firearm, or

(b) has the firearm in the custody of another person, or

(c) has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.

NB: See also section 4A.

45. s 4A of the 1996 Act relevantly provides:-

4A Meaning of “possession” of a firearm – proof of possession

(1) Without restricting the meaning of the word “possession”, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that:

(a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or

(b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or

(c) on the evidence before it, the person was not in possession of the firearm.

46. As the Crown is seeking to rely on the extended definition of the essential fact, the Crown must prove beyond reasonable doubt that the firearm was on 8 December 2016 on premises owned, leased or occupied by, or in the care, control or management of the accused.

47. The Crown for its part asserted that the accused on 8 December 2016 occupied the premises at 160 Devonshire Road Rossmore and as a consequence of the firearm being found there the accused was in possession of the firearm in the absence of the Court being satisfied that the accused made out the grounds in ss 4A(1)(b) – (c) of the 1996 Act. The Crown conceded that there was no evidence of the accused owning or leasing the property and could not draw attention to any evidence of the accused having control or management of the premises.

48. The word “occupied” is not defined in the 1996 Act.

49. The evidence in this case was:

1. That on 8 December 2016, Mr Pasquale Bartuccio took police when they were searching his home to a bedroom that he indicated was being used by his son, being the accused. He accepted that that was a room with a single bed along one wall. He later added that the room was his but occasionally people come to sleep there. In his statement (being Exhibit C), he stated that he had visitors and family members come to the house to visit randomly but they did not store any items in the bedroom. In cross-examination, Mr Pasquale Bartuccio accepted that when he told police officers that the room it was “Vincenzo’s room”, what he meant was that it was the room his son had when he was a child and living with him and his wife;

2. Mr Pasquale Bartuccio also stated that (apart from the master bedroom and a room he uses to get dressed and ready) there were two other bedrooms are used by his children or grandchildren when they come to sleep there but also by him to go to sleep in the daytime;

1. At the time of the search, Mr Pasquale Bartuccio accepted that there were some letters on the bed of one of the rooms addressed to the accused. There is no evidence of the nature of the letters and when they were received. Nevertheless, Mr Pasquale Bartuccio stated that he picked up the letter from the mailbox and placed them on the bed referred to earlier because they were the accused’s letters and sometimes children would be around and it was a way so that they would not get lost;

2. Also in the room were some keys and a log book. They are photographed in Exhibit B, in photograph 6. The agreed facts in Exhibit A establish them as relating to a Holden utility vehicle in the yard. Ms Michelle Cassar was in a relationship with the accused from 2010 to about July 2015. She gave evidence that she was aware of the accused getting a silver Commodore utility that was stored on the accused’s parent’s property which she knew to be 160 Devonshire Road in Rossmore. Sometime after that she became aware of the accused getting a silver coloured Mercedes Benz which was stored at the same property. Ms Cassar’s evidence was that whilst she was in a relationship with the accused she knew him to live at his parent’s address;

3. In the room where the keys and letters were found, police also found:

1. Two ammunition belts with six shotgun rounds in the belt hanging on the wall of the room;

2. A “Black Rhino” brand 4 x 32 optical scope;

3. A gun cleaning kit;

4. 550 x Magnum .22 calibre rounds;

5. 34 x .22 calibre rifle rounds;

6. 36 x .22 calibre Long Rifle rounds; and

7. 2 x 12 gauge buckshot rounds.

There was no evidence as to how those items came to be there or when they were placed there. Mr Pasquale Bartuccio stated that the items did not belong to him;

6. In the shed area, police located items described in paragraph 11 of Exhibit A, being:

1. Framed pictures of animal;

2. Tools;

3. Super-X Xpediter .22 calibre Long Rifle cartridges in a bag;

4. 4 x .308 calibre rounds and 1 x .22 calibre round in a small bag on the pool table;

5. 4 x .308 calibre rounds and 1 x 12 gauge shotgun shell in a sunglasses cover; and

6. A metal tin containing 41 x .22 calibre rounds.

7. On a desk in the office area, the police found the following items:

1. A bail reporting receipt for the accused dated 19 September 2016;

2. A letter addressed to the accused at 160 Devonshire Road, Rossmore;

3. A wooden box containing 6 x .22 calibre rounds; and

4. Various quantities and types of other ammunition.

8. The police also located in a kitchen cupboard in an area within the shed:

1. Vehicle registration plates including registration plates AOF 37W, being the plate on the silver coloured Mercedes Benz the accused was driving when stopped by police on 26 May 2016 for the purposes of a random breath test.

9. Mr Pasquale Bartuccio’s evidence was that none of the ammunition at the property belonged to him. He denied putting the bail slip, the vehicle registration plates or the letter addressed to the accused in the shed;

10. Ms Cassar also knew the accused to work between five and six days a week being self employed as a bricklayer. Mr Pasquale Bartuccio gave evidence that the accused stored things in the shed on the property being a level, mixer, shovel, a row of pallets of bricks and “all work things”;

11. In his statement to police on 16 December 2016, Mr Pasquale Bartuccio said that the shed on the premises where the firearm was located was only used by him and the accused. He said that the shed was open and he did not lock it because he did not want to fuss around with opening and shutting doors. However the door closed by itself and to open it he uses a five cent coin which he inserts into the door knob to unlock it. He referred to a rusty old car stored in the shed. He gave evidence that that the accused had told him the vehicle was given as a gift and was sprayed. In evidence however he stated that his son in laws used to paint cars in the shed as they worked as panel beaters. Mr Pasquale Bartuccio’s also stated that the shed was used by himself, the accused and occasionally his grandsons;

12. Mr Bartuccio’s statement to police records that before 8 December 2016 there were three cars on the property which did not belong to him. He described them as being a blue utility, a Mercedes Benz and a Commodore. Later in his statement Mr Pasquale Bartuzzio describes the utility as being grey and in his evidence as possibly being silver;

13. Mr Bartuccio stated that three or four months before December 2016 he saw a Mercedes parked in the front of his shed and two months before a Holden Commodore was parked near the front of the palm trees at the front of his property. In his statement he said that the utility was parked in front of the shed a few weeks after the Mercedes

14. The accused’s wife, Mrs Evagelia Bartuccio, gave evidence that she married the accused on 4 January 1997 and they separated from January 2011 and December 2015. At the time of separation she knew the accused was living at 160 Devonshire Road, Rossmore. She stated that in late December 2015, after the accused was released from residential rehabilitation they were on good terms and starting to rekindle things. Her evidence was that in late 2015, the accused would stay over at her house at 12 Redpa Close, West Hoxton between 3 to 4 times a week and the balance of the week he was staying at 160 Devonshire Road, Rossmore. Thereafter, in July 2016, Mrs Bartuccio stated that the accused moved in with her and stayed fulltime at her address – a position that continued until the time of his arrest. She stated that at no time since July 2016 until the time of his arrest was the accused not living fulltime at her residence.

Were the premises occupied by the accused?

50. The Defence says that the Crown has not established beyond reasonable doubt that the accused occupied the premises where the firearm was found. It therefore submits that s 4A(1) of the 1996 Act does not apply.

51. The Defence refers to the Macquarie Dictionary definition of “occupy”. That Dictionary defines “occupy” as:

occupy

- verb

1. to take up (space, time, etc.).

2. to engage or employ (the mind, attention, etc., or the person).

3. to take possession of (a place), as by invasion.

4. to hold (a position, office, etc.).

5. to be resident or established in (a place) as its tenant; to tenant. [9]

9. See: Macquarie Dictionary, “Occupy”, Macmillan Publishers Australia (2017)

52. Specifically, the Defence relies on the fifth use of the term arguing that the word must be given its ordinary meaning in the context in which it appears and that context includes the surrounding words of the provision. It argues that it is significant that it has been coupled with the term leased and implies a requirement of dominion. [10] In this sense the Defence contends that it is insufficient to establish occupation beyond reasonable doubt that there were items that the accused stored on the premises.

    10. Reliance was placed on the reasoning in Monis v the Queen (2013) 249 CLR 92; [2013] HCA 4 at [310]

53. Further the Defence argues that the evidence does not establish that the accused occupied the premises on 8 December 2016 whether they be defined as the land in question or the shed where the firearm was found.

54. It contends that the high water mark for the Crown case is the bail receipt however it was dated some six weeks earlier.

55. The Crown asks me to find that that the accused “occupied” the premises where the firearm was located by the police from the personal items (including correspondence in the form of letters) discovered in the bedroom, that was identified by the accused’s father as being used by the accused [11] , the motor vehicles, the keys, and logbook, and in the shed, the accused’s work items, the bail slip and the registration plates for the vehicle that he was driving as he was stopped by NSW Police. Further it draws attention to the fact that the accused was according to Exhibit A, bailed to reside at the Rossmore address.

    11. T 15.35 – .39

56. Whist I accept that the term “occupied by” can also embrace a tenant or resident, the term in my view extends beyond such a boundary to include taking up space and to take up possession. In my view, the use of the words “occupied by” is to be given its ordinary meaning in its context as an extended definition. I do not accept that it is to be restricted by its positioning in the section. In my view, that term is used disjunctively. Whilst the Defence has drawn attention to the potential penal consequences the context of the term is such that those consequences do not arise where one of the exceptions is made out.

57. In this case, I am satisfied that the accused did in fact occupy the subject premises as at 8 December 2016. Mr Pasquale Bartuccio’s gives evidence as to the circumstances of cars coming onto his property. Ms Cassar gives evidence of them belonging to the accused. There is evidence of the storage of work items belonging to the accused in the shed, the presence of mail belonging to the accused and number plates which included the plate of the vehicle which the accused was driving on 26 May 2016 being AOF 37W. A log book and keys of the silver Holden utility in the yard were located in the bedroom. There was also evidence as to the accused’s use of the shed. In all the evidence establishes the accused’s continuing occupation of the premises including through the storage of his work and other items including a bail receipt he was required to keep for twelve months. The number of items, their nature and timing of their presence along with the observations from the witnesses satisfies me beyond reasonable doubt that that the accused occupied the premises where the firearm was located on 8 December 2016 within the terms of s 4A of the 1996 Act.

Has the accused discharged the onus?

58. The Defence argued that, should the Court find that s 4A (1) of the 1996 Act is enlivened then it had on the balance of probabilities discharged the onus under ss 4A(1)(b) or 4A(1)(c) of that Act in that, the accused did not know and could not reasonably be expected to have known that the firearm was on the premises or that the accused was not in possession of the firearm.

“Did not know and could not reasonably be expected to have known that the firearm was in or on the premises”

59. In respect of s 4A(1)(b) of the 1996 Act, the Defence relies on the unchallenged evidence of Mr Pasquale Bartuccio in Exhibit C that:

[19] To the best of my knowledge, no one knew about the gun except my wife. I never used the gun in front of my children and I have no reason to suspect any of them knew about the gun or the ammunition. [12]

12. Exhibit C, NSW Police Force Statement of a Witness – Mr Pasquale Bartuccio dated 16 December 2016 at [19]

60. That evidence was preceded by a paragraph that read

[17] … Until the 8th of December 2016, the gun has always been, to my knowledge, at the property at the back of the shed. I stored the gun amongst my property, behind a door in between bits of iron and steel. It was kept inside a bag and unloaded. I suppose that anyone could easily access the gun by using a five cent coin to open the door and get it. However, if they are unaware of it, they would not be able to open it. Vincenzo did not have knowledge of the gun, and he’s never asked about it. Vincenzo knows how to get into the shed using the five cent coin … [13]

13. Exhibit C, NSW Police Force Statement of a Witness – Mr Pasquale Bartuccio dated 16 December 2016 at [17]

61. The requirement of s 4A(1)(b) of the 1996 Act is that the accused did not know and could not reasonably be expected to know that the firearm was in or on the premises. The accused’s reliance on Mr Pasquale Bartuccio’s knowledge does not discharge the onus placed on him. At its highest it tells us no more that the state of Mr Pasquale Bartuccio’s belief but even then, he acknowledges that the location of the firearm was such that anyone could easily access it. In May v R, McClellan CJ at CL stated:

[32] … This requires more than evidence from which a possible inference could be drawn. The accused must satisfy the trial court that he or she either did not know or could not be reasonably expected to know of the presence of the weapon (emphasis in original). [14]

14. May v R [2012] NSWCCA 250 at [32] (McClellan CJ at CL with whom Johnson and Bellew JJ agreed)

62. Therefore, it follows that I do not find the accused has discharged the onus in s 4A(1)(b) of the 1996 Act.

“The person was not in possession of the firearm”

63. In respect of s 4A(1)(c) of the 1996 Act, the Crown does not dispute that the relevant firearm was owned by the accused’s father – Mr Pasquale Bartuccio. In his statement to police Mr Pasquale Bartuccio stated that when the police executed the search warrant at 160 Devonshire Place, Rossmore on 8 December 2016 they showed a shotgun to him and he told police:

[16] … I told the police, “That is my gun, I’ve had it for forty years, and I had it on the property to kill feral animals.” [15]

15. Exhibit C, NSW Police Force Statement of a Witness – Mr Pasquale Bartuccio dated 16 December 2016 at [16]

64. Further Mr Bartuccio added;

[16] … “I had forgotten that I had the gun because I hadn’t used it for forty years.” The gun has two barrels, one up top (.22 Calibre) and one on the bottom (20 gauge shotgun). The handle is brown and the barrel is black. I have not used the gun for many, many years. [16]

16. Exhibit C, NSW Police Force Statement of a Witness – Mr Pasquale Bartuccio dated 16 December 2016 at [16]

65. The Crown argued that despite the ownership of the gun the accused should still be found in joint possession of it in light of the extended definition in s 4A of the 1996 Act, his access to the shed and the storage of personal items in the shed. It argued that the accused still exercised control over the firearm arising from his occupation of the shed.

66. The Crown sought to rely on inferences which it says are available from items (which it described as “peripheral items”) [17] located inside the house being ammunition and the gun cleaning kit as well as items located in the living quarters of the shed to the extent that their use may have been compatible with the firearm.

    17. T 42.32 – .42

67. The Crown further relied on the evidence of Ms Cassar who stated that during her relationship with the accused from 2010 to July 2015 she had seen a firearm in the shed and she recalled seeing it a couple of times. [18] She could not recall when it was but stated the first time she recalled she was with the accused and her friend Kylie. [19] She stated that it was a shotgun Because of it being that long and from the shooting game that I usually play, like, you have to, like, cock it back and load it … ” [20] She added that what it actually was she did not know. [21] She also thought she may have seen it on another occasion wrapped in a sheet up against the wall but she was not a hundred per cent certain. [22] Later she said it was behind a chair in the shed at 160 Devonshire Road in the living area. [23] She confirmed in cross-examination that the one occasion she saw the object she described the accused to her knowledge held a firearms licence. [24] There was no evidence that the firearm the subject of the charge was ever registered in the accused’s name during the time he was licensed.

    18. T 23.13 – .17

    19. T 24.7 – .23

    20. T 25.10 – .11

    21. T 25.11 – .12

    22. T 26.36 – .41

    23. T 27.32 – .35

    24. T 28.37 – .41

68. The evidence further does not disclose when or how the firearm related items in particular those compatible with use of the firearm in question came to be located in the house or the shed.

69. I accept Mrs Evagelia Bartuccio’s evidence that the accused had been residing fulltime with her at West Hoxton since July 2016. [25] She was not challenged except to suggest that there were days where the accused stayed at his parents’ property in September 2016. She rejected this suggestion. [26]

    25. T 39.5 – .21

    26. T 40.27 – .34

70. The Crown conceded the locking device on the shed did not require a high degree of sophistication. It is clear that others, apart from the accused, used the area in the house and the shed where the firearm related items were located.

71. The evidence of Ms Cassar does not establish that the firearm she recalls seeing was that found on the property on 8 December 2016. Her evidence was at times quite vague but in any event described seeing a gun with different features at a time the accused held a firearms license.

72. The Defence argued that the evidence did not establish that the accused held, used or handled the firearm. The evidence of the Mr Pasquale Bartuccio was that had not told the accused about the gun. He had told his wife but not the accused. The location of the gun was where Mr Pasquale Bartuccio described it had “always been.” He said he stored the gun amongst his property behind the door in between bits of iron and steel. There is no suggestion that that was not consistent with the location police found it as depicted in Exhibit B in photograph 10 and Exhibit 1 and D. Nor was Mr Pasquale Bartuccio challenged as to his assertion of owning the gun for forty years.

73. Exhibit A evidences that the firearm seized from the property was scientifically examined by NSW Government Forensic and Analytical Service, however the testing of the trigger and trigger guard was not suitable for comparison and other testing was unsuccessful.

74. As at 8 December 2016 the accused was living at the property of his wife. Whilst I am satisfied that at times prior to that date the accused did access the shed in which the firearm was located, so did others despite any lock which may have been on the door. When I raised with the Crown the significance of this in assessing the level of satisfaction, I was advised that security was not a matter that I needed to consider except on the question of occupation. No submission was made as to the significance of security and access on the question of possession. Instead I was advised this was a matter the Defence might address on.

75. The Defence for its part drew attention to comments of Simpson J (as her Honour then was) in Gardiner v R, where her Honour stated:

[138] Even if the evidence of the presence of the firearms in the clubhouse were capable of having probative value, the significance of that probative value had to be assessed in the light of the evidence of the comings and goings from the clubhouse of other members of the club. This must have weakened any inferences available as to the appellant’s possession of those firearms: see R v Filippetti (1978) 13 A Crim R 335. [27]

27. (2006) A Crim R 233; [2006] NSWCCA 190 at [138] (Simpson J)

76. Those comments need to be considered in their context acknowledging that in the circumstances of this case the onus placed on the accused pursuant to s 4A(1)(c) of the 1996 Act. The Defence acknowledged that the accused had access to the shed area however it contended nonetheless that as possession [28] was not exclusive the inferences are significantly weakened. Accepting that accused’s counsel intended to refer to occupation of the shed, I accept that this argument is correct.

    28. T 70.24 – .31

77. Based on the evidence as a whole in particular the unchallenged evidence of Mr Pasquale Bartuccio and largely unchallenged evidence of Mrs Evagelia Bartuccio I am satisfied that on the balance of probabilities that the accused did not intentionally have control of the firearm on 8 December 2016 such as to amount to possession at law either temporary or otherwise.

VERDICT

78. The Defence having discharged the onus under s 4A(1)(c) of the 1996 Act, I find the offence not proved and the accused not guilty.

Endnotes

Decision last updated: 23 October 2017