Deemed possession of a firearm except for a lawful purpose – possession presumed (Sections 45 and 66 Arms Act 1983)

Charge 1: Deemed possession of a firearm except for a lawful proper and sufficient purpose under section 45 and 66 of the Arms Act 1983

Note: : To rebut the presumption of possession under s 66 the defendant must show, as required by questions 3 and 4, on the balance of probabilities that the firearm was not their property and that it was in the possession of some other person. Questions 3 and 4 will almost always be incompatible with the alternative at question 5. The question trail should reflect the specific facts of the case.

On questions 1–2 the Crown must prove the element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove the elements in questions 1–2 beyond reasonable doubt. This is called the standard of proof. It means you must be sure that each element is proved.

1.	Are you sure that a 12-gauge model 88 Maverick pump action shotgun was found in a bedroom at 12 Third Avenue?
	If no, find Mr Smith not guilty. If yes, go to question two.
2.	Are you sure that Mr Smith occupied the property at 12 Third Avenue in which the 12-gauge model 88 Maverick pump action shotgun was found?
	If no, find Mr Smith not guilty. If yes, go to question three.
On questions 3, 4 and 5 the burden of proof lies on Mr Smith, who must satisfy you on the balance of probabilities, which means “more likely than not”.
3.	Has Mr Smith satisfied you that it is more likely than not that he did not possess the 12-gauge model 88 Maverick pump action shotgun?
	“Possession” has four aspects: Awareness of where the firearm is. Awareness that the item is a firearm. Actual control of the firearm, whether through personal custody of—or through the ability to direct another person to deal with—that firearm or shared custody (with someone other than Mr Smith). An intention to exercise personal or shared control (with someone other than Mr Smith) over that firearm. If yes, go to question four. If no, find Mr Smith guilty.
4.	Has Mr Smith satisfied you that it is more likely than not that the 12-gauge model 88 Maverick pump action shotgun was in the possession of some other person?
	If yes, find Mr Smith not guilty. If no, go to question five.
5.	Has Mr Smith satisfied you that it is more likely than not that he had a lawful, proper and sufficient purpose for having possession of the 12-gauge model 88 Maverick pump action shotgun?
	If yes, find Mr Smith not guilty. If no, find Mr Smith guilty.