SSAA NSW

22 Sporting Shooters Association of Australia (NSW) Inc. Michael Diamond Case Michael was charged with three firearm offences, of which he was found guilty of all three at Local Court level. There was also a charge of high range drink driving, which he was found guilty of, but which was not the subject of appeal. Below is a summary of the judgment, in the Judge's own words. "When police located the appellant, his vehicle was parked on the side of the road at Shoal Bay and locked. He was standing nearby. His firearm was inside a metal gun case. It was disassembled, unloaded and packed into a purpose built gun case. The gun case was on the floor between the front and back seats of his parked and locked vehicle. Ammunition was located loose within the vehicle. At all relevant times Mr. Michael Diamond was the holder of a Category AB firearms licence. In relation to the first count the Crown elected to prosecute for a breach of Section 39(1)(a) and not Section 39(1)(b) or (c). Section 39(1)(a) states that "A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping". Further it was clear from the wording of the charge and the reference to Section 39(1)(a) in the Court Attendance Notice that this is not a prosecution pursuant to Section 40. I will deal with Section 40 in more detail shortly but it is important to note that Section 40 provides for the requirements for the storage of firearms when they are not actually being carried or used. It is trite to say that a firearm that is being stored is not being used or carried. Clearly, Parliament quite reasonably intended to provide conditions or requirements for storage (Section 40) and for circumstances when firearms were not being stored, namely, when used for legal purposes and when such firearms were carried or transported. These general requirements of care are provided for in Section 39 of the Act. Section 39 requires all persons who possess a firearm to take all reasonable precautions to ensure, relevantly in this case, the safe keeping of the firearm. Further, taking all reasonable precautions does not involve being perfect; it does not involve all possible precautions; it does not involve being prescient as to all conceivable or even unique possible safety problems and circumstances; and, it does not involve second-guessing all possible criminal conduct of unknown individuals. (See Holmes v Arato (1983) 32 SASR 106 Zelling J at 109). The Section 39(1)(a) offence Leaving aside the question of the legality of the police search the evidence reveals that the following steps were taken by the appellant to ensure the safety of his firearm: 1. The firearm was disassembled, unloaded, and packed securely in a metal gun case of less than one metre in length. 2. Clearly the firearm was not capable of discharging a projectile. 3. The metal case itself gave no indication of its content and in fact the short length of the case suggested content other than a firearm. 4. The metal case was secreted on the floor of the vehicle between the front driver's seat and the rear passenger seat. 5. The vehicle had heavily tinted windows which made it very difficult to see within the vehicle, for instance, the police could not see the ammunition inside the vehicle until they opened the door. 6. The vehicle was a modern four wheel drive and it was locked. 7. The owner of the firearm and vehicle was at all relevant times within reasonably close proximity to the vehicle. 8. The keys to the vehicle were in the grass adjacent to where the appellant was standing about 20 metres from the vehicle. 9. The area in which the vehicle was parked was very public and well lit. 10. There were very few people in the vicinity of the vehicle and very few people travelling that road at that time according to the Police. 11. The vehicle was parked at the particular location for a reasonably short period of time. Other than the fact that when standing near his vehicle the appellant was intoxicated the Crown did not hear any evidence or put any other submission in terms of what further precaution the appellant could have taken to ensure the safety of his firearm during the relevant period, that is, during the short period of time after leaving his brother's residence, the parking of the vehicle and the arrival of police.

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