Simon Chitty v Peter McGee

[2012] HCASL 134

SIMON CHITTY

v

PETER MCGEE

[2012] HCASL 134
P37/2011

1. On 19 March 2008, the applicant transported firearms and a firearms cabinet in the process of moving house. The following morning, upon police inspection in an unrelated matter, the firearms were discovered in an unstored fashion, leaning against a wall in the applicant's bedroom. The applicant was charged with multiple counts of failing to provide and use adequate storage facilities for firearms in breach of s 23(9)(d)(i) of the Firearms Act 1973 (WA) ("the Act"). The applicant asserted that a power failure the previous night had prevented him from being able to bolt the firearm cabinet to the wall for the purposes of complying with the Act.

2. On 5 June 2009, the applicant was acquitted of the charges in the Magistrates Court of Western Australia.  The Magistrates Court (Magistrate Gluestein) held that the firearms were "in transit" with the consequence that the statutory obligations concerning storage did not arise.  The prosecution appealed to the Supreme Court of Western Australia.

3. On 31 March 2010, the Supreme Court (Simmonds J) dismissed the appeal and found that as the firearms were in transit there was insufficient evidence to prove beyond reasonable doubt that the applicant's responsibility to comply with s 23(9)(d)(i) of the Act had arisen. The prosecutor then appealed to the Court of Appeal of the Supreme Court of Western Australia.

4. On 3 June 2011, the Court of Appeal (Pullin and Newnes JJA, Mazza J) allowed the appeal and set aside the verdicts of acquittal.  In delivering the reasons for the Court, Mazza J held that once placed in the appellant's bedroom the firearms were no longer in transit and there arose an unperformed duty to use adequate storage facilities.

5. The applicant seeks special leave to appeal and requires an extension of time.  There are insufficient prospects of success to warrant a grant of special leave.  The extension of time should be granted but special leave should be refused.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow
15 August 2012 S.M. Kiefel