SA Police v Sergio Ubaldo Fernando Ubaldi No. SCGRG93/1848 Judgment No. 4315 Number of Pages 5 Fire, Explosives and Firearms

[1993] SASC 4315

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA NYLAND J

CWDS
Fire, explosives and firearms - appeal against refusal by Magistrate to make order for forfeiture of firearm - firearm seized after respondent shot by own firearm - time lapse of more than two years since incident occurred - respondent made significant achievements in restructuring life - onus on appellant to establish on a balance of probabilities that the likelihood of undue danger on return of firearm to respondent was 'something real and not remote, more than a mere possibility' - no evidence that there was 'a substantial chance of undue danger' or that Magistrate had erred in refusing application. Firearms Act 1977 (SA) s.34(2). Brown v Shepherd (1986) 42 SASR
153, applied.

HRNG ADELAIDE, 8 November 1993 #DATE 7:12:1993
Counsel for appellant:     Ms M Panagiotidis
Solicitors for appellant:    Crown Solicitor
Counsel for respondent:     Mr E Fardone
Solicitors for respondent: Fardone and Co

ORDER
Appeal dismissed.

JUDGE1 NYLAND J This is an appeal against the refusal by a Magistrate to make an order for the forfeiture of a firearm pursuant to s.34(2) of the Firearms Act as amended. Section 34(2) of the Act is in the following terms:
    "(2) If the court is satisfied, in proceedings under
    subsection (1), that -
     (a) the owner of the firearm is not authorised by a licence to
    be in possession of the firearm; or
     (b) that the return of the firearm to its owner would be
    likely to result in undue danger to life or property; or
     (c) that the whereabouts of the owner of the firearm has not
    been, or could not be, ascertained by reasonable inquiry, it may
    order that the firearm be forfeited to the Crown, or may make
    such other order for the disposal of the firearm as it thinks
    appropriate." 2. The firearm was seized from the respondent on the 22nd day of February 1991 following an incident in which the respondent was shot by his own firearm. The complaint seeking forfeiture of the firearm was sworn on the 3rd day of April 1991. It did not, however, come to the attention of the respondent until about the 22nd of February 1993 when he received a letter from the Court advising him that, in his absence, the matter had been adjourned from 19/2/93 to 5/3/93. The appellant indicated that the delay was due to difficulties with respect to service. The respondent in evidence, however, maintained that apart from a period of about three months at the end of 1991 he had continued to reside at the address specified in the complaint. 3. The matter eventually proceeded before the learned Special Magistrate on 24/9/93. At the hearing evidence was led with respect to the incident which occurred on 26/2/91. 4. The evidence established that the respondent was involved in a car accident at about 10.23 p.m. on 26/2/91 at the intersection of O'Connell Street and Barton Terrace. He was the driver of a vehicle that had been in a collision and he had also been shot. Mr Kumaran was a witness to these events. He said that his vehicle was stationary at the traffic lights at the intersection at the time the accident occurred. He was one of the first persons to attend the scene. He had some experience with firearms as a result of five years with the Military Cadets as well as being a member of a Firearms Club. He observed a rifle in the car close to the ground with the barrel pointing towards the position where the driver would be sitting. The butt was resting on the floor against the passenger door with the rifle lying at 45 degrees across the compartment with the barrel resting on the central console. He observed that the cocking block had gone back as it would have if a shot had been fired to dispense a cartridge. He said that the next round was caught in the catch such that he believed that it may have discharged if it had been moved so he cleared the weapon. He said the trigger was well within reach of the driver's hand but agreed that the position was consistent with the gun being discharged accidentally. 5. Golding, a ballistics expert, said that 3450 grams had to be exerted on the trigger mechanism to cause the weapon to discharge, this being about three times the minimum accepted safety trigger pressure. He stated there were no circumstances in which the weapon could have been discharged without finger pressure on the trigger. 6. Schrader was a police officer who attended at the scene. He subsequently interviewed the respondent on the 4th March 3 1991. According to Schrader the respondent in that interview said that he thought the gun was empty, that he had been carrying it because he had been robbed on the 2nd January 1991. He could not explain how there came to be a round in the breech or how the gun was fired. He admitted carrying the rifle with the butt down between the passenger's seat and the console with the barrel pointing towards him. Schrader asked the respondent whether he had shot himself intentionally and the respondent said that it had gone off by accident. He said to Schrader that he was in financial trouble, although he disputed that he had told Schrader he had been declared bankrupt. He agreed he had said something to the effect "Look I'm no more depressed or in trouble than anyone else in the world". 7. The only other witness for the complainant was a Miss Izzo with whom the respondent had had a relationship. She said that earlier on the day of the shooting she had been with him and discussed ending the relationship and that he was upset and depressed. She said that suicide had been discussed in the general sense but the respondent did not say he wanted to kill himself. She told the Court the respondent was under a lot of strain due to business and personal circumstances. She said that she saw the rifle in the boot of his car that day although this was denied by the respondent. Miss Izzo also gave evidence relating to an incident which had occurred in November 1991 at Yulara when the respondent had threatened her with a starter pistol and had threatened to kill himself. The respondent admitted that an incident had occurred at Yulara but maintained that he had decided to create a scene to try to get her to understand how he felt about her. He was basically pretending that he was going to harm himself to get the message through to her in view of the problems in their relationship. Miss Izzo also stated that the respondent had admitted to her that he had pulled the trigger on the 26th February 1991, that is, that he had shot himself. 8. The respondent in evidence said that he had held a firearms licence for approximately 18 years up to and including 1991 and that he was a keen hunter. He said that he had been the victim of a theft on the 3rd of January 1991 and had received several anonymous phone calls. For those reasons he was carrying the rifle on the day of the shooting. He said that the gun discharged accidentally. He did not accept that the rifle was loaded and cocked in the firing position as he had no knowledge of having done that but he admitted to the position of the rifle in his car with the barrel pointing directly at him. He was unable to explain why the rifle was loaded in the car. He understood that it was not loaded. 9. He said that the partnership with his former wife, which had operated a travel agency business, had dissolved at the end of January 1991 but he continued operating the business until the accident. Subsequent to his admission to hospital the business closed down. He said that following the closure of the business he had re-assessed what he wanted to do in his life. Since July 1992 he had worked as a journalist and editor for a magazine called "Nuovopaese" and in about August 1992 had published a book of poetry. He said that he had received a grant from the Department of the Arts and Cultural Heritage to bring to completion another volume of poetry and he had also secured a part-time position as editor of "Sinaps" magazine with the Multicultural Arts Trust as well as the position as writer in the community with the Multicultural Writers' Association. At the conclusion of the evidence the learned Special Magistrate delivered ex tempore reasons for his decision and refused the application. In his reasons he said that he did not believe that he had to make any positive findings as to what had in fact occurred in February 1991 but said:
    "In terms of probability... that it is more likely than
    not that at that time Mr Ubaldi was suffering from some
    psychiatric disorder. There is every reason to suspect that
    he might have endeavoured to end his life." 10. He went on to say:
    "I agree with Mr Irrgang that, at best, the defendant's
    handling of his firearm in 1991 was irrational. The defendant
    had been most negligent with the carriage of the firearm... I
    have constantly considered the period of time lapse, that is
    between 1991 and the hearing of this application today. It is
    my view that that time lapse itself, coupled with the fact of no
    further incident, would lead me to conclude that there was no
    substantial danger in the return of this firearm to the
    defendant. Whatever the defendant's problems were in 1991,
    there is no evidence before me to suggest that they remain, and
    or represent a substantial hazard in September of 1993. I
    believe that the period of time lapse is so great as to
    counteract any inference which the prosecutor has sought to
    adduce arising out of the circumstances of the 1991 incident.
    For that to persuade me, it is my view that the prosecutor would
    have had to have called evidence of continuing irrational and
    irresponsible behaviour, and or evidence of some continuing
    psychological or psychiatric condition on the part of the
    defendant. Quite to the contrary, as Mr Fardone rightly
    asserts, the evidence and indeed the unchallenged evidence from
    the defendant is that in more recent months, he has directed his
    energies into an endeavour to restructure his life. He has good
    employment, and he is producing significant results, evidenced
    by a particular granting of funds to support a further project,
    namely publication of a second volume of poetry. The inference
    to be drawn from that evidence is that the defendant is
    presently a worthy citizen, and is going about and completing
    successfully his employment. That, in my view, is again
    contrary to the inference which the prosecutor has sought to
adduce from the 1991 scenario." 11. In Brown v Shepherd (1986) 42 SASR 153 Cox J considered and discussed the meaning to be attributed to the expression "would be likely to result in undue danger to life or property as set out in the Act". He said at p.159:
"Section 34 of the Firearms Act makes it possible for a
    Court to take a firearm away from the man who owns it. It thus
    represents a serious invasion of ordinary rights of property,
    but only in circumstances which make it desirable to remove an
    abnormal risk from a person's possession of a firearm. In my
    opinion, the expression 'likely to result in undue danger' in
    s.34 should be interpreted as involving a substantial chance of
    undue danger - something real and not remote, more than a mere
    possibility, but not, something that is to be measured in
    mathematical or gambling or other more precise terms.
     The meaning of the word 'undue' does not present any
    difficulty. There is always some risk involved in the use or
    even the possession of a firearm. What is envisaged here is
    something beyond the normal or inherent risk - circumstances
    that increase the danger to life or property significantly. In
    this context 'danger' has its normal meaning of 'liability or
    exposure to harm or injury; risk, peril' (SOED). The test thus
    envisages a heightened potentiality for harm, not necessarily an
    actuality." 12. The learned Special Magistrate, in refusing the application clearly placed considerable weight on the lapse of time that had occurred between the incident on the 26th of February 1991 and the date of the hearing. The appellant argued, however, that the time lapse did not outweigh the seriousness of the events of the 26th of February 1991. She submitted that the respondent bore the evidentiary onus of answering the evidence of the complainant which was not satisfied merely by establishing his more recent endeavours to restructure his life and his significant achievements in the areas of his employment and career. 13. The onus was, however, on the appellant to establish on the balance of probabilities that the return of the firearm to the respondent was "something real and not remote, more than a mere possibility" as referred to by Cox J (supra). 14. Whilst the circumstances surrounding the incident in February 1991 are unsatisfactory and may well have resulted in the appropriate order being made if the proceedings had been dealt with at that time, there is little evidence of conduct on the part of the respondent, apart from that relating to the Yulara incident, which would now justify the order being made. It is more than two years since the incident occurred. The appellant's evidence as to his personal circumstances was not challenged by the prosecutor at the hearing of this application. It seems to me, therefore, to be unreasonable to expect the respondent to call any additional evidence as to his present situation. There does not, in my view, appear to be any evidence upon which the court could have relied at the hearing to find that there was "a substantial chance of undue danger" as referred to by Cox J. The learned Special Magistrate, in considering the evidence, clearly bore in mind the comments of Cox J in Brown v Sheppard (supra) and, in my view, took all relevant matters into account when making his decision. The appellant has failed to satisfy me that the magistrate fell into error by refusing this application. 15. The appeal will therefore be dismissed.