Firearms Lawyer Simon Munslow answers your legal questions.

What constitutes possession of a firearm?


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“I was wondering if you can clarify a question some mates and I have been debating about. What constitutes ‘possession’ and at what point does an unlicensed person finds themselves to be in possession of a firearm. 

Some examples could be:

1. An unlicensed person staying in a hunting lodge or camp where firearms are stored on an unsecured rack or in a locked vehicle.
2. An unlicensed person coming with you on a hunt and you put the gun down while you climb a fence and they had it to you.
3. You stop at a service station and leave an unlicenced person travelling in the vehicle with you alone in the vehicle with firearms while you are paying for fuel.’’

Great question, thanks. I shall set out the relevant law first, and then I will track through it in respect to each scenario.

The legislation below has been copied directly out of the NSW Firearms Act 2006 because the person asking the question is in NSW.

I do not like doing comparative articles dealing with the law in different states because it can involve me doing the homework for someone wishing to tighten laws. If you want me to deal with an issue involving your state, you only have to ask.

THE LAW

39(1) A person who possesses a firearm must take all reasonable precautions to ensure:

(a) Its safe keeping, and

(b) That it is not stolen or lost, and

(c) That it does not come into the possession of a person who is not authorised to possess the firearm.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case.

(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

S4″possession” of a firearm includes any case in which a person knowingly:

(a) has custody of the firearm, or

(b) has the firearm in the custody of another person, or

(c) has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.

4A (1) Without restricting the meaning of the word

“possession” , for the purposes of any proceedingsunder this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that:

(a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or

(b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or

(c) on the evidence before it, the person was not in possession of the firearm.

(2) In this section,

“premises” means any place, vehicle, vessel or aircraft.

DICTIONARY DEFINITIONS

Dictionaries define possession as:

‘The exercise of the right of ownership, whether rightfully or wrongfully.  This has been defined as ‘physical detention’, coupled with the intention to use the thng detained as ones own. Mozley & Whiteley’s Law Dictionary.

Physical detention coupled with the intention to hold the thing detained as ones own.  The oontinuing exercise of a claim to exclusive physical possession.  Possession has two elements, physical possession and animus possidenti, the intention to appropriate to oneself the exclusive use of the thing possessed,

Possession is prima facie evidence of ownership. Possession can ripen into ownership by effluxion of time.  Osborn’s Law Dictionary

‘Possession from Latin posidere- to sit on.  Effective physical or manual’ control or occupation.  Butterworths Concise Australian Law Dictionary.

‘Possession to have as property, to have or belong to one, to dominate’ Macquarie Concise Dictionary

Still confused?

INTERPRETING ‘POSSESSION

An easier way of considering possession may be to consider the use of the original forms of the words that have evolved to be ‘possession custody and control’ after the Norman Conquest of England, where William the Conqueror introduced a system that used three words to describe legal concepts.

The coupling of these words combined a word of Norman / French origin, with an English Saxon word and a Latin word.  This helped make the law understandable to Norman aristocracy, the Latin educated church and the common man who at that time spoke a dialect of the Saxon language.

Examples that survive today, but which are disappearing due to the so called plain English drafting are ‘Give Devise and Bequeth’ in will and estate law, and ‘Possession Custody and Control’ in criminal law.

If you use the words ‘Possession Custody and Control together, it is easier to see what the law demands of you.

Therefore, If a firearm is still within your control it is within your possession.

If you have taken adequate care dealing with custody and control nobody else be in possession of the firearm.

Turning now to your scenarios.

SCENARIO 1

I am assuming that the unlicenced person is the only person present. The firearm has not been adequately secured, and is therefore not still under the control of its owner.

If the unlicensed person knows the firearm is there, they are likely to be considered to be in possession of it.

At the least the firearm needs to be locked in a vehicle where the unlicensed person cannot access it.  It should also be secured and ideally also disabled to prevent use.

SCENARIO 2

You can still in control of the firearm and have not relinquished possession of the Firearm.  Your companion is standing beside you, and he is trustworthy and will obey your instruction to hand you the firearm.

SCENARIO 3

This scenario is probably quite common, particularly if you are in a party where there may be bow hunters who may have lost their ability to own firearms because of an AVO.

As with scenario 1, this is a dangerous situation for the firearms owner to be in, and for the same reasons as I discussed there.

I suggest you read my May 4 2014 blog and consider the above.

Simon Munslow

This is for information only, it does not constitute legal advice.  If needed seek an opinion dealing with your particular circumstances.  Reading this article does not give rise to a solicitor- client relationship.


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