Darestani v R [2019] NSWCCA 248

Darestani v R [2019] NSWCCA 248 · Read the judgment on AustLII

Catchwords: Possession of firearms – toys – time of possession

In this decision the CCA has held that when deciding whether something is an imitation firearm, the use and intention of the accused at the time of possession is relevant to the question of whether a toy falls within the statutory definition for the purpose of the offence.

The applicant was charged with two counts of possessing a pistol without a permit, and two counts of intimidation. The two complainants worked at a hire car company, and the applicant went there to get a car. He had a suitcase with him. He was refused a rental because he didn’t have a physical Driver Licence with him. There was an argument, culminating in the police being called because the applicant refused to leave the car yard. In the meantime the applicant reached into his suitcase and pulled something out; one of the complainants said what he pulled out looked like a gun and it made a clicking noise (the other complainant saw something pulled out, but not what it was). When he was eventually arrested, the applicant was found in possession of two imitation pistols. The applicant’s case was that they were toys, and (more to the point) that they fell within the children’s toy exception to the offence for possession of an imitation firearm, found in s4D(4) of the Firearms Act (‘the Act’). The applicant was convicted at trial. He appealed on the basis, amongst other things, that there was a miscarriage of justice because the Crown had failed to disprove that the items were produced and identified as children’s toys.

One issue which ultimately became important (and, plainly, will be important for future cases) was the specific point in time at which the Crown had been required to prove possession. In this particular case, it became clear that the relevant point was when the applicant was arrested, and not the time at which he produced one of the firearms in the car yard (at [42] to [47]).

One other dispute between the parties was how to read s 4D(4) of the Act which relevantly provides: ‘an imitation firearm does not include any such object that is produced and identified as a children’s toy.’ The dispute was whether that provision drew attention to the purpose for the manufacture of the object and its intrinsic qualities, or than the circumstances in which the object was being used at the time of possession. Here, the Court (Price J, with whom Hoeben CJ in CL and Lonergan J agreed) found that the circumstances at the time of possession are relevant: the verb ‘identify’, in this context, means to ascertain or assert what a thing is. It gives rise to consideration of matters intrinsic to the object, its use, and the intention of the person using it (if the object is being used at the time it is asserted to be in a person’s possession) (at [60] to [61]). The example given was of a plastic rifle which would normally be regarded as a children’s toy, but might lose that identification if pressed into the back of another person’s head with a threat to shoot. The use, and the intention which accompanied the use, would identify the plastic rifle otherwise than as a children’s toy (at [62]). In this case, because of the timing issue which was identified above, the past use of the imitation firearms in the car yard was irrelevant – the real question was at the time of arrest, which was when (in the circumstances of this case) the question of identification of the item arose (at [83]). Here, there was nothing in the applicant’s use of the pistols at the time of arrest which asserted them to be other than a children’s toy given they were simply in a bag (at [90]), so that the convictions for the firearms offences were quashed and verdicts of acquittal were entered.