Darestani v R [2019] NSWCCA 248

Darestani v R [2019] NSWCCA 248

Upon the whole of the evidence, including intrinsic features of the plastic pistols (weight, material, orange trigger and cap), it was not open to the jury at trial to be satisfied beyond reasonable doubt that the plastic pistols were imitation self-loading pistols under s 7(1) of the Firearms Act 1996 (NSW); the Crown did not exclude as a reasonable possibility that the items were produced and identified as children's toys; accordingly, the convictions on counts 1 and 2 must be quashed and verdicts of acquittal entered.

Parties
Applicant: Makan Khalili Poor Darestani; Respondent: Regina
Jurisdiction
Australia
Judgment Date
21 October 2019
Procedural Posture
Criminal Appeal / Leave to Appeal Against Conviction and Sentence, Judgment on Appeal
Outcome
Appeal allowed in part; convictions on counts 1 and 2 quashed; applicant resentenced on counts 3 and 4.
Legal Topics
Appeal Against Conviction, Imitation Firearm, Construction of S 4 D(4) Firearms Act, Children's Toy Exception, Resentencing, Aggregate Sentence
Criminal Law Appeal Against Conviction Imitation Firearm Construction of S 4 D(4) Firearms Act Children's Toy Exception Resentencing Aggregate Sentence

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Parties

Makan Khalili Poor Darestani

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Leave to Appeal Against Conviction and Sentence, Judgment on Appeal

Legal Issues

  1. 1 Whether plastic pistols were imitation firearms or children's toys under s 4D(4) Firearms Act 1996 (NSW)
  2. 2 Whether jury's verdicts on counts 1 and 2 were unreasonable
  3. 3 Proper construction of 'produced and identified as a children's toy' in s 4D(4)

Ratio Decidendi

Upon the whole of the evidence, including intrinsic features of the plastic pistols (weight, material, orange trigger and cap), it was not open to the jury at trial to be satisfied beyond reasonable doubt that the plastic pistols were imitation self-loading pistols under s 7(1) of the Firearms Act 1996 (NSW); the Crown did not exclude as a reasonable possibility that the items were produced and identified as children's toys; accordingly, the convictions on counts 1 and 2 must be quashed and verdicts of acquittal entered.

Court Disposition

Appeal allowed in part; convictions on counts 1 and 2 quashed; applicant resentenced on counts 3 and 4.

Orders

  • Grant leave to appeal against the convictions on the first and second counts of possess an imitation self-loading pistol without authorisation by licence or permit contrary to s 7(1) of the Firearms Act 1996 (NSW).
  • Allow the appeal.