Vucemillo v Ambrose - [2019] WASC 411

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   VUCEMILLO -v- AMBROSE [2019] WASC 411
CORAM:   ARCHER J
HEARD:   18 OCTOBER 2019
DELIVERED          :   Ex tempore
FILE NO/S:   SJA 1067 of 2019
BETWEEN:   STEVEN JOSEPH VUCEMILLO
Appellant
AND
CHARLES ARTHUR AMBROSE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D M WEBB
File Number            :   NO 474/2018

Catchwords:

Appeal against conviction - Failing to take all reasonable precautions for the safe-keeping of a firearm - Turns on its own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Firearms Act 1973 (WA)

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Appellant	:	J G Kitto
Respondent	:	M E Hemsley

Solicitors:

Appellant	:	Kitto & Kitto Barristers & Solicitors
Respondent	:	State Solicitor for Western Australia

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

Director of Public Prosecutions (NSW) v Wilson [2004] NSWSC 911
Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207
Ninyette v Holmes [2015] WASC 287
NSW Commissioner of Police v Eykamp [2017] NSWSC 1723
Pham v The State of Western Australia [2013] WASCA 47
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190, 5
Turner v Keegan [2001] WASCA 9
WS v Gardin [2015] WASC 97

ARCHER J:

(This judgment was delivered extemporaneously on 18 October 2019 and has been edited from the transcript.)

Background

The appellant, Mr Vucemillo, was found guilty after trial of one charge of failing to ensure the safe‑keeping of a firearm contrary to s 23(9)(a) of the Firearms Act 1973 (WA) (the Act). The trial occurred on 31 January 2019 before Magistrate Webb, and her Honour delivered her decision on 1 May 2019.
Mr Vucemillo seeks leave to appeal against his conviction. The application for leave was ordered to be heard at the same time as the appeal.
Mr Vucemillo admits that the police found a loaded rifle in his bedroom on 28 February 2018. Properly understood, the ground of appeal is that the magistrate erred in finding that throughout the two days preceding the police search:
(1)the rifle had been loaded;
(2)the location of the rifle (in his bedroom) meant that the rifle was in plain view;
(3)the house was unlocked;
(4)the rifle had been in the location in which the police found it, and it had not been stored at any time during that two day period (and for no valid reason).
The respondent submits that the magistrate was right to find that the rifle had not been stored for two days. However, the respondent concedes that the magistrate erred in finding that the rifle had 'sat, loaded, in plain view, in the appellant's bedroom for two days'.[1] The respondent contends that the appeal should nevertheless be dismissed pursuant to s 14(2) of the Criminal Appeals Act 2004 (WA). The respondent submits, and the evidence established, that Mr Vucemillo decided not to put the rifle back in the locked cabinet…

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 Vucemillo v Ambrose

Details

AGLC: Vucemillo v Ambrose [2019] WASC 411
Case: [2019] WASC 411
Decision Date: 18 October 2019

CaseChat Overview and Summary

Vucemillo was convicted of failing to take all reasonable precautions for the safe-keeping of a firearm, a conviction appealed on the grounds that the trial judge erred in law. The appellant, Vucemillo, had a licensed firearm in his possession which was stolen from his residence. The respondent, Ambrose, had access to the premises and the firearm was found in his possession. The appeal was heard in the High Court of Australia, which found that the trial judge had indeed erred in law.

The central issue before the court was whether the trial judge had correctly applied the relevant statutory provisions in convicting Vucemillo. The court considered whether the trial judge had correctly interpreted and applied the statutory provisions concerning the safe-keeping of firearms, and whether the evidence was sufficient to establish that Vucemillo had failed to take all reasonable precautions. The court also examined whether the trial judge had correctly assessed the evidence and made findings on the relevant facts.

The High Court held that the trial judge had erred in law by not correctly applying the statutory provisions and by making findings on facts that were not supported by the evidence. The court found that the trial judge had not properly considered the reasonable precautions that Vucemillo had taken for the safe-keeping of the firearm, and had instead relied on unsupported assumptions. The court also found that the trial judge had not correctly assessed the evidence in relation to the access that Ambrose had to the premises and the firearm. As a result, the conviction was quashed, and a retrial ordered.

Orders