Firearms & Prohibited Weapons

Question 1

What is a firearm and where would I find the Definition?

Answer 1

Section 4 of the Act

• Gun/other weapon
• Is or was capable of propelling projectile
• by means of an explosive
• Includes blank fire firearm or air gun
• Does not include anything the regulations declare not to be a firearm
• . Firearm includes anything that would be a firearm except that it is obstructed, has a defect or something is missing. (Section 4(2)).
• . Pistol is a firearm reasonably capable of being raised and fired with one hand and not exceeding 65cm long.
• . Use - fire or hold firearm so as to cause reasonable belief it will be fired, whether capable of firing or not.
• . An imitation pistol is taken to be a pistol and an imitation prohibited firearm is taken to be a prohibited firearm - S4D and Commissioner of Police (NSW Police Force) v Howard Silvers and Sons Pty Ltd [2017]

Question 2

What does Section 4D of the Firearms Act legislate?

Answer 2

This legislation relates to imitation firearms/pistols.

An imitation pistol is taken to be a pistol and an imitation prohibited firearm is taken to be a prohibited firearm.

However an imitation firearm does not include any object that is produced and identified as a children’s toy.qa

Question 3

What was held in the case of Commissioner of Police (NSW Police) v Howard Silvers and Sons Pty Ltd [2017]?

Answer 3

This was a case of “toy” guns which were found to be imitation pistols rather than toys.

• The objective evidence relevant to the identification of the items included:
• . The fact that the items were made of metal or die-cast metal rather than plastic or some other light weight material; and
• they were heavy to hold, similar to a comparable firearm.
• many of the items had moveable parts, consistent with the operation of a firearm;
• the items were in colours consistent with a firearm rather than bright colours associated with a child’s toy.

Question 4

Where would find the Definition of “Possession” of a Firearm under the Firearms Act?

Answer 4

Section 4(1) of the Firearms Act.

Includes KNOWINGLY:

• having custody, or
• having in custody of another, or
• having firearm in any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.

Further: If firearm parts are possessed or being carried by 2 or more persons, each is taken to be possessing or carrying the firearm - s4(3) Firearms Act.

Question 5

How does the prosecution prove possession of a firearm under Section 4A(1) of the Firearms Act?

Answer 5

Firearm is taken to be in possession as long as it is:

• in or on premises owned, leased, occupied by, in care, control or management of, person: UNLESS
• firearm placed in or on premises by or on behalf of person lawfully authorised to possession, or
• person did not know AND could not reasonably be expected to know firearm was there, or
• on the evidence, person not in possession of firearm

Question 6

What are the differences between the offences found at Section 7 and Section 7A of the Firearms Act?

Answer 6

Section 7 is the offence of unauthorised possession or use of pistols or prohibited firearms

Section 7A is the offence of unauthorised possession or use of firearms generally

Section 7
(1)  A person must not possess or use a pistol or prohibited firearm unless the person is authorised to do so by a licence or permit.

Maximum penalty: imprisonment for 14 years. (there is an alternative verdict under Section 7(3) for offences under 7A.)

7(3) If, on the trial for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 7A, it may find the person not guilty of the offence but guilty of an offence under section 7A, and the accused is liable to punishment accordingly.

Section 7A
(s6 exempts Police and security from certain requirements)

7A(1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.

Maximum penalty: imprisonment for 5 years.

Question 7

What did the case of R v Hussain find in relation to possession of a firearm?

Answer 7

In this case, the Court found a person guilty of possession, although he said he did not know what he had was a firearm.

Question 8

What does Section 82 of the Firearms Act legislate?

Answer 8

Parental responsibility and jurisdiction

If a person under the age of 18 years contravenes any provision of the Firearms Act or the regulations, each parent of the person is taken to have contravened the same provision if the parent knowingly authorised or permitted the contravention.

Question 9

What does Section 84 of the Firearms Act legislate?

Answer 9

This section sets out the jurisdictional for proceedings for offences under the Firearms Act.
84(1) Summary
84(2) T1 and T2 (may be on indictment or summarily)
84(3) Strictly indictable

Question 10

What does Section 85 of the Firearms Act legislate?

Answer 10

Section 85 gives the statute of limitations. 2 years to commence proceedings (from the date the offence was alleged to have been committed) for matters that may be dealt with summarily.

Question 11

What does Section 87 of the Firearms Act legislate?

Answer 11

Provides that a certificate provides prima facie evidence of:

• whether a person was a licence or permit holder
• conditions of the licence or permit
• whether the person was subject to a prohibition order
• whether the firearm was registered
• who the firearm was registered to and last known address.

Question 12

What does Section 80 of the Firearms Act legislate?

Answer 12

A Court can order forfeiture, returning or disposal of firearms, but firearm must be forfeited if Police have seized it and there is a finding of guilt for a Part 4 (safekeeping) Firearms Act offence

Question 13

What did Norton v O’Connor and Anor say in relation to forfeiture of firearms?

Answer 13

Norton v O’Connor and Anor found that a Section 10 counts as a finding of guilt and the Magistrate has no discretion regarding the ordering of forfeiture of firearms.

Question 14

What was found in the case of NSW Commissioner of Police v Eykamp and Anor [2017] in relation to the disposal of firearms after a finding of guilt?

Answer 14

Once there has been a finding of guilt, the Court has no discretion to make alternate orders in the disposal of the said firearms.

Question 15

What is the Definition of a Prohibited Weapon and under which Section of the Weapons Prohibition Act are the Definitions found?

Answer 15

Section 4 of the Weapons Prohibition Act

Prohibited weapon means anything described in Schedule 1 of the Act.

Question 16

What is the Definition of Posession under the Weapons Prohibition Act?

Answer 16

Possession of a prohibited weapon includes any case in which a person knowingly:

(a) has custody of the weapon, or
(b) has the weapon in the custody of another person, or
(c) has the weapon in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.

Question 17

Section 4(2)(b) and 4(2)(c) of the Weapons Prohibition Act legislates what (in relation to possession)?

Answer 17

(2) For the purposes of this Act:
(b) a person in or on (or in or on any part of) any premises, vehicle, vessel or aircraft in which there is a prohibited weapon is to be regarded as having possession of the weapon unless the person proves otherwise, and
(c) if parts of a prohibited weapon are in the possession of, or are being carried by, 2 or more persons, each of those persons is to be regarded as possessing the weapon.

Question 18

What offence is found at Section 7 of the Weapons Prohibition Act?

Answer 18

7 Offence of unauthorised possession or use of prohibited weapon

(1) A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit.
(2) Without limiting the operation of subsection (1), a person who is the holder of a permit to possess or use a prohibited weapon is guilty of an offence under this section if the person:
(a) possesses or uses the prohibited weapon for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the weapon, or
(b) contravenes any condition of the permit.

Question 19

What does Section 45 of the Weapons Prohibition Act legislate?

Answer 19

Section 45 legislates parental liability.

If a person under the age of 18 years contravenes any provision of the Weapons Prohibition Act or regulations, each parent of the person is taken to have contravened the same provision if the parent knowingly authorised or permitted the contravention.

(2) A parent may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the parent’s child has been proceeded against or convicted under that provision.

Question 20

What does Section 43 of the Weapons Prohibition Act legislate?

Answer 20

Generally offences under the Weapons Prohibition Act are heard summarily, however

43(1) summary
43(2) T1 and T2 (may be prosecuted on indictment).
43(3) Strictly indictable

Question 21

What does Section 48 of the Weapons Prohibition Act legislate?

Answer 21

Provides that a certificate provides prima facie evidence of:

• whether a person was a licence or permit holder
• conditions of the licence or permit
• whether the person was subject to a weapons prohibition order
• whether the weapon was approved
• the last known address of a specified person.

Question 22

What does Section 44 of the Weapons Prohibition Act legislate?

Answer 22

Section 44 provides the Statute of limitations. An offence under the Weapons Prohibition Act or the regulations may be dealt with in a summarily before the Local Court if the court attendance notice was issued within 2 years of the date on which the offence is alleged to have been committed.

Question 23

Section 12 of the Weapons Prohibition Act

Answer 23

Requirement to notify Commissioner if genuine reason ceases to exist

If a permit holder’s genuine reason for possessing or using a prohibited weapon can no longer be established by the holder, the holder must, within 7 days of ceasing to have that genuine reason, notify the Commissioner in writing of that fact.

Question 24

Which Section of the Firearms Act and which Section of the Weapons Prohibition Act legislates that a certificate is prima facie evidence of certain things?

Answer 24

Section 87 of the Firearms Act and Section 48

Question 25

How is “use” defined in the Weapons Prohibition Act?

Answer 25

Similar to the Firearms Act, “use a prohibited weapon” includes causing a reasonable belief that the weapon will be used.

Question 26

What is the definition of “use” under s4 of the Firearms Act?

Answer 26

Use - to fire or hold firearm so as to cause reasonable belief it will be fired, whether capable of firing or not.

Question 27

In the definition of firearm, under Section 4 of the Act, there is a further definition under Section 4(2) of the Firearms Act, what is that definition?

Answer 27

Firearm includes anything that would be a firearm except that it is obstructed, has a defect or something is missing. (Section 4(2)).

Question 28

What is a pistol regarded as (Under Section 4 of the Firearms Act)?

Answer 28

A pistol is a firearm reasonably capable of being raised and fired with one hand and not exceeding 65cm long.