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

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”

The accused pleaded not guilty to that charge.

JUDGE ALONE TRIAL

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.
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

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…

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 R v Bartuccio

Details

AGLC: R v Bartuccio [2017] NSWDC 286
Case: [2017] NSWDC 286
Decision Date: 20 October 2017

CaseChat Overview and Summary

The case of R v Bartuccio involved the accused being charged with possession of a firearm without a permit. The case was heard in a court of criminal jurisdiction, where the matter was to be determined by a judge alone, without the involvement of a jury. The central issue for the court was whether the accused was indeed in possession of the firearm, as alleged by the Crown. The Crown sought to rely on an extended definition of possession, arguing that the accused was "occupying" the premises where the firearm was found. The defence, on the other hand, argued that the statutory defence under the Firearms Act was applicable on the facts presented.

The court had to consider whether the accused could be said to be in possession of the firearm under the extended definition provided by the Crown. This involved interpreting the statutory language and determining whether the accused's presence on the premises constituted "occupation" in a way that would establish possession of the firearm. The court also needed to assess whether the statutory defence was made out based on the circumstances of the case. In examining these issues, the court had to weigh the evidence presented and apply the relevant legal principles to the facts of the case.

The court found that the Crown had not proven the offence beyond reasonable doubt. The evidence did not sufficiently establish that the accused was in possession of the firearm in the manner defined by the statutory provisions. The court concluded that the statutory defence was applicable based on the facts and circumstances of the case, leading to the determination that the accused was not guilty of the offence. The court's reasoning was based on a detailed analysis of the statutory language, the evidence presented, and the application of the legal principles relevant to the possession of firearms. The final order of the court was that the offence was not proved, and the accused was found not guilty.

Orders

Orders of the court

I find the offence not proved and the accused not guilty

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:	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