R v Smith - [2023] NSWDC 254

District Court

New South Wales

Medium Neutral Citation: R v Smith [2023] NSWDC 254
Hearing dates: 25 January 2023; 27 January 2023; 30 January 2023; 31 January 2023
Decision date: 07 February 2023
Jurisdiction: Criminal
Before: P Conlon SC ADCJ
Decision:
In respect of Counts 6 & 8, I am satisfied beyond reasonable doubt that the taser with the seven cartridges fell within the definition of a prohibited weapon. I am satisfied beyond reasonable doubt that the accused was in possession of that item without being authorised to do so by permit.
In respect of Counts 10, 16, 23 and 29, I am satisfied beyond reasonable doubt that the accused possessed more than three firearms. I am satisfied beyond reasonable doubt that each of the items specific in the charge fell within the definition of a firearm. I am satisfied beyond reasonable doubt that at least one of the items was a pistol and I am satisfied beyond reasonable doubt that the firearms were not registered and the accused was not authorised by licence or permit to possess the firearms.

Catchwords:
CRIME – Judge alone trial – possess prohibited weapon – possess more than three firearms – interpretation of “firearm” per s 4(1) Firearms Act insofar as it relates to a “gel blaster”

Legislation Cited:
Weapons Prohibition Act 1998 (NSW)
Firearms Act 1996 (NSW)
Paintball Act 2018 (NSW)
Criminal Procedure Act 1986 (NSW)
Interpretation Act 1987 (NSW)

Cases Cited:
Fleming v R (1998) 197 CLR 250
Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981
Darestani v R [2019] NSWCCA 248

Category: Principal judgment
Parties: The King
Adam James Smith
Representation:
Counsel:
N Marney – The Crown

J Korn – The Accused

Solicitors:

The Director of Public Prosecutions – The Crown
Higgins Lawers – The Accused

File Number(s): 2020/00349602

Judgment

On 25 January 2023 at the District Court Downing Centre the accused, Adam Smith, appeared for trial by judge alone. He had earlier been arraigned on an Indictment containing 33 counts. He has pleaded guilty to Counts 1 to 5, 7 and 9 on that Indictment but not guilty to the remaining counts, being Counts 6, 8 and Counts 10 to 23. (It should be noted at the outset that the entry of guilty pleas in respect of Counts 7 and 9 came at the conclusion of the prosecution evidence in the trial).
Counts 6 and 8 are charges of possess a prohibited weapon contrary to s 7(1) Weapons Prohibition Act 1998 (NSW).
Count 10 is a charge of possessing more than three firearms, at least one of which being a pistol or prohibited firearm that was not registered and which the accused was not authorised to possess by virtue of the licence or permit. That charge is contrary to s 51D(2) Firearms Act 1996 (NSW).
Each of the Counts 11 to 15 are in the alternative to Count 10. They are individual charges of possessing a pistol, not being authorised to do…

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 Smith

Details

AGLC: R v Smith [2023] NSWDC 254
Case: [2023] NSWDC 254
Decision Date: 07 February 2023

CaseChat Overview and Summary

In the case of R v Smith, the respondent, Smith, was charged with various offences related to the possession of prohibited weapons and firearms. The matter was heard before the court without a jury, as it involved the interpretation of the Firearms Act in relation to a "gel blaster". Smith was charged with possessing a taser with seven cartridges, and multiple counts of possessing more than three firearms. The court was required to determine whether the taser with cartridges and the gel blasters constituted a "firearm" under the Firearms Act and whether Smith was authorised to possess them.

The court examined the definition of "firearm" under section 4(1) of the Firearms Act, considering whether it encompassed a "gel blaster". The court found that the taser with seven cartridges was a prohibited weapon, and that Smith was in possession of it without authorisation. Regarding the gel blasters, the court determined that they fell within the definition of a firearm. The court further found that Smith possessed more than three firearms, at least one of which was a pistol, and that these firearms were not registered and Smith was not authorised to possess them by licence or permit.

The court's reasoning was based on the statutory definitions and the evidence presented in the case. The court found that the taser with cartridges was a prohibited weapon as it met the criteria of a firearm under the Act. The gel blasters were also found to be firearms, as they were designed to shoot projectiles and had a barrel, trigger, and magazine. The court considered the design, purpose, and functionality of the gel blasters in making this determination. The court also found that Smith did not have the necessary authorisation to possess the firearms, as they were not registered and he did not hold the required licence or permit.

The court made orders in respect of Counts 6 and 8, finding Smith guilty of possessing a prohibited weapon, and in respect of Counts 10, 16, 23, and 29, finding Smith guilty of possessing more than three firearms. The court found that each of the items specified in the charges fell within the definition of a firearm, that at least one of the items was a pistol, and that the firearms were not registered and Smith was not authorised to possess them by licence or permit.

Orders

Orders of the court

In respect of Counts 6 & 8, I am satisfied beyond reasonable doubt that the taser with the seven cartridges fell within the definition of a prohibited weapon. I am satisfied beyond reasonable doubt that the accused was in possession of that item without being authorised to do so by permit.

In respect of Counts 10, 16, 23 and 29, I am satisfied beyond reasonable doubt that the accused possessed more than three firearms. I am satisfied beyond reasonable doubt that each of the items specific in the charge fell within the definition of a firearm. I am satisfied beyond reasonable doubt that at least one of the items was a pistol and I am satisfied beyond reasonable doubt that the firearms were not registered and the accused was not authorised by licence or permit to possess the firearms.

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 Smith [2023] NSWDC 254
Hearing dates:	25 January 2023; 27 January 2023; 30 January 2023; 31 January 2023
Decision date:	07 February 2023
Jurisdiction:	Criminal
Before:	P Conlon SC ADCJ
Decision:	In respect of Counts 6 & 8, I am satisfied beyond reasonable doubt that the taser with the seven cartridges fell within the definition of a prohibited weapon. I am satisfied beyond reasonable doubt that the accused was in possession of that item without being authorised to do so by permit. In respect of Counts 10, 16, 23 and 29, I am satisfied beyond reasonable doubt that the accused possessed more than three firearms. I am satisfied beyond reasonable doubt that each of the items specific in the charge fell within the definition of a firearm. I am satisfied beyond reasonable doubt that at least one of the items was a pistol and I am satisfied beyond reasonable doubt that the firearms were not registered and the accused was not authorised by licence or permit to possess the firearms.
Catchwords:	CRIME – Judge alone trial – possess prohibited weapon – possess more than three firearms – interpretation of “firearm” per s 4(1) Firearms Act insofar as it relates to a “gel blaster”
Legislation Cited:	Weapons Prohibition Act 1998 (NSW) Firearms Act 1996 (NSW) Paintball Act 2018 (NSW) Criminal Procedure Act 1986 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	Fleming v R (1998) 197 CLR 250 Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981 Darestani v R [2019] NSWCCA 248
Category:	Principal judgment
Parties:	The King Adam James Smith
Representation:	Counsel: N Marney – The Crown J Korn – The Accused Solicitors: The Director of Public Prosecutions – The Crown Higgins Lawers – The Accused
File Number(s):	2020/00349602