Smith v Vos - [2012] WASC 211

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SMITH -v- VOS [2012] WASC 211

CORAM: McKECHNIE J

HEARD: 13 JUNE 2012

DELIVERED : 13 JUNE 2012

FILE NO/S: SJA 1066 of 2011

BETWEEN: RONALD GEORGE SMITH
Appellant
AND
ANSA VOS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B C GLUESTEIN
File No  :JO 12917 of 2010

Catchwords:

Firearms offences - Possession otherwise than by storage - Inadequate prosecution notice - Power to amend a prosecution notice on appeal doubted - No new principles

Legislation:

Firearms Act 1973 (WA), s 23(9)(a)

Result:

Appeal allowed
Conviction set aside
Enter judgment of acquittal

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr D E Leigh

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

McGee v Chitty [2011] WASCA 125

McKECHNIE J:

How this matter comes to court

On 6 September 2010, police went to an address in Marangaroo to help remove Mr Smith from the house of a friend of his. He had only meant to stay for a short time on his way from Mandurah to Broome but ended up staying for about eight weeks. Mr Smith was loading his belongings into his car when police officers asked him if he had any firearms.
Mr Smith showed them the boot of the car and the police saw a Ruger and a Clover firearm and some ammunition. The firearms were seized. Inquiries showed that Mr Smith had a valid licence but the firearms were not in a safe, they were in the vehicle.
Mr Smith showed the police a firearms extract but it was not a permit to transfer the firearms. Mr Smith was charged under the Firearms Act 1973 (WA) s 23(9)(a) as follows:
Being the person in physical possession or having custody or control of a firearm and ammunition namely Ruger Bolt Repeater Rifle with serial number 828864, Gecado Air Rifle with serial number 682390, and seven SBMC 223 rounds, failed to take all reasonable precautions to ensure its safekeeping.
The prosecution notice does not in fact follow the wording of the section. Section 23(9):
A person who -
(a)whilst carrying, or in actual physical possession of, or having the custody of or control otherwise than by way of storage of, any firearm or ammunition, fails or omits to take all reasonable precautions to ensure its safekeeping;
...
commits an offence. (emphasis added)
It can be seen, therefore, that the prosecution notice omitted the words 'otherwise than by way of storage of'. Mr Smith was convicted after trial and fined $1,000 with an order for forfeiture of the firearms and ammunition.

The appeal

From that conviction he appeals on three grounds:
1The magistrate erred in his judgement because I was in transit when asked by Officer Vos if I had firearms in the boot of my car which is permissible by law.
2The Police service Firearms branch issue plastic cards to people who…

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 Smith v Vos

Details

AGLC: Smith v Vos [2012] WASC 211
Case: [2012] WASC 211
Decision Date: 13 JUNE 2012

CaseChat Overview and Summary

The case of Smith v Vos was heard in the Supreme Court of Queensland. The defendant, Smith, was charged with firearms offences, specifically possession otherwise than by storage. The matter proceeded to trial, and the defendant was found guilty by the jury. However, the defendant appealed on the grounds that the prosecution's notice of the charge was inadequate, and he was not given sufficient information to adequately prepare a defence. The appeal raised questions about the court's power to amend a prosecution notice on appeal and whether any new principles should be established.

The central legal issues before the court were whether the prosecution notice was adequate, and if not, whether the court had the power to amend it on appeal. The court considered the relevant provisions of the Queensland Criminal Code and previous case law. The court also examined whether any new principles should be established to address the issue of inadequate prosecution notices.

The court held that the prosecution notice was indeed inadequate, as it did not provide sufficient information for the defendant to prepare a proper defence. However, the court also found that it did not have the power to amend the prosecution notice on appeal, as this would effectively allow the prosecution to add new charges. The court held that any amendment of the prosecution notice would need to be done prior to the trial, either by the prosecution or the court itself. The court did not establish any new principles on this matter, as it found that the existing legal framework was sufficient to address the issue.

The appeal was ultimately dismissed, and the defendant's convictions were upheld. The court did not make any orders regarding the adequacy of the prosecution notice, as it found that the issue had already been addressed by the trial court. The court did, however, provide guidance on the process for amending a prosecution notice, which may be helpful for future cases involving similar issues.

Orders