July 18, 2017

R v XP

Facts:

The police executed a search warrant over a semi-rural property containing a group of locked and unlocked caravans. In one of the unlocked caravans, the police found a pistol inside of a bag containing a number of items including fake ID documents with XP’s photograph. The pistol wasn’t registered or licensed to any particular individual.

The police charged XP under the Firearms Act 1996 (NSW) with unauthorised possession of a pistol. Their argument was based on section 4A of the Act, which provides a deeming provision that if a firearm is found in a place that a person owns, leases, occupies or is a place where the person has the care, control or management of, the onus of proof is reversed. As a result, the accused must satisfy the jury on the balance of probabilities that they did not know and could not reasonably have been expected to know the firearm was in the premises.

Here, it was alleged by the police that, because XP was in the caravan earlier that day, even if it was only for 45 minutes, he was in occupation of the premises and therefore the onus of proof was on him.

Outcome:

O’Brien Solicitors and Counsel at the end of the Crown case successfully made representations to the Judge for a directed verdict on the basis that the evidence could not satisfy that XP occupied that caravan under the law.

Significantly, there had been no authority in NSW on what ‘occupation’ was defined as in the context of section 4A. As a result, the defence drew on persuasive authority from Victorian case law on similar legislation to argue that to occupy the premises an accused must have the ability to exclude others from accessing the space.

This meant that just because XP was in the caravan earlier that day, that did not mean he could exclude others from the caravan, and therefore he did not occupy the premises to satisfy section 4A.

The Judge determined that these submissions were correct and applied the law as determined by the Victorian authorities. The Judge directed the jury to enter a verdict that XP was not guilty of the charges by reason that there was no evidence to support an important element of the Crown case as a matter of law. By addition, this case formed new legal ground in NSW for future cases on what ‘occupation’ may mean in the Firearms Act 1996 (NSW).