The offence can arise where police allege that a person fired a firearm or spear gun:

This makes it particularly important to obtain legal advice before determining how a section 93H charge should be defended.

• in a building;
• into a building;
• on land;
• onto land; or
• in other circumstances falling within the wording of section 93H(2),

The legislation places the onus concerning that matter upon the defendant.

and the person did not have the relevant ownership, occupation, permission, reasonable excuse or lawful purpose recognised by the legislation. 

• ownership or occupation;
• permission;
• reasonable excuse; or
• lawful purpose,

At Chidiac & Associates, we provide strategic Criminal Defence representation to individuals facing dangerous use of a firearm charges throughout Sydney and New South Wales.

This means that where a person relies upon:

We understand the serious consequences that can follow a firearms conviction and the importance of carefully examining the circumstances in which the firearm was discharged, where it was discharged, who owned or occupied the relevant land or building and whether a lawful purpose, reasonable excuse or permission existed.

Unlike the usual position in criminal proceedings, where the Prosecution bears the burden of proving the elements of an offence beyond reasonable doubt, section 93H(3) expressly provides that the onus of proving the matters identified in section 93H(2)(a), (b) and (c) lies with the defendant.

Our approach involves detailed examination of the Prosecution evidence, the circumstances of the alleged firing and all available legal and factual issues that may assist in defending the charge.

One of the most important features of section 93H is subsection (3).

What is Dangerous Use of a Firearm?

The Reverse Onus Under Section 93H(3)

The offence commonly described as dangerous use of a firearm is contained in section 93H(2) of the Crimes Act 1900 (NSW).

The precise facts and applicable legislation must be considered before determining whether a particular activity was lawful.

Section 93H is headed:

• lawful shooting activities;
• authorised firearms training;
• lawful hunting or pest control;
• lawful employment;
• property management;
• firearms collection or sporting activities; or
• other circumstances capable of constituting a lawful purpose.

"Trespassing with or dangerous use of firearm or spear gun"

Depending upon the circumstances, issues may include:

Section 93H(2) provides that a person who fires a firearm or spear gun in or into any building or on or onto any land is liable to imprisonment for 10 years, unless one of the statutory circumstances applies.

The question of whether the firearm was fired for a lawful purpose can therefore be critical.

Those circumstances include where the person:

"does so for a lawful purpose"

• is the owner or occupier of the building or land;
• has the permission of the owner or occupier;
• has a reasonable excuse; or
• fires the firearm for a lawful purpose.

Section 93H(2)(c) also provides an exception where the person:

This is an important distinction because the offence does not simply prohibit every discharge of a firearm on private property.

Lawful Purpose

The circumstances surrounding the discharge, the person's authority and the purpose for which the firearm was used can all become important issues.

A reasonable excuse should be carefully assessed according to the facts rather than assumed to apply.

Legislation - Section 93H Crimes Act 1900 (NSW)

• why the firearm was discharged;
• where the firearm was discharged;
• the circumstances in which it occurred;
• whether there was an emergency;
• whether the person believed they had permission;
• what the person was attempting to accomplish; and
• the surrounding circumstances.

Section 93H contains two separate offences.

Relevant evidence may include:

Section 93H(1) - Trespassing With a Firearm

A person may therefore need to establish the factual circumstances giving rise to the alleged reasonable excuse.

Section 93H(1) concerns a person who, while possessing a firearm, imitation firearm, spear gun or imitation spear gun, enters a building or land other than a road without:

Whether an excuse is reasonable depends upon the circumstances of the particular matter.

• being the owner or occupier;
• having the permission of the owner or occupier;
• having a reasonable excuse; or
• having a lawful purpose.

Section 93H(2)(b) also recognises a reasonable excuse.

The maximum penalty is:

Reasonable Excuse

5 years' imprisonment

At Chidiac & Associates, we carefully investigate the circumstances surrounding any alleged permission.

This offence should be distinguished from the dangerous use offence under section 93H(2). 

Evidence concerning when permission was given, by whom and what was authorised may be important.

Section 93H(2) - Dangerous Use of a Firearm

• a shooting activity on private property;
• a rural property;
• a firearms training activity;
• pest control;
• recreational shooting;
• permission from a property owner;
• permission from an occupier; or
• another person with authority over the relevant land.

Section 93H(2) applies where a person fires a firearm or spear gun in or into a building or on or onto land, unless one of the statutory exceptions applies.

For example, the circumstances may involve:

The maximum penalty is:

Permission can therefore become a central issue in some cases.

10 years' imprisonment

"the permission of the owner or occupier"

This is the offence generally referred to as dangerous use of a firearm.

Another statutory exception applies where the person had:

Maximum Penalties for Section 93H

Permission of the Owner or Occupier

The maximum penalties under section 93H are:

The legal position should be considered carefully according to the particular circumstances.

• property ownership records;
• tenancy agreements;
• residential arrangements;
• business records;
• employment arrangements;
• rural property arrangements;
• permission to occupy the property; and
• evidence concerning actual occupation and control.

The maximum penalty is the highest penalty available under the legislation. It does not mean that every person convicted of the offence will receive a sentence of imprisonment, or that a sentence of 10 years will be imposed.

Evidence may include:

The sentencing outcome depends upon the circumstances of the offence and the offender.

Accordingly, ownership or occupation may be an important issue in the defence.

What Must the Prosecution Prove?

"is the owner or occupier of the building or land"

A charge under section 93H(2) involves a number of factual issues.

Section 93H(2)(a) provides an exception where the person firing the firearm:

The Prosecution will generally need to establish that:

Ownership or Occupation of the Land

1. The accused fired a firearm or spear gun;
2. The firearm or spear gun was fired in or into a building, or on or onto land; and
3. The statutory circumstances relied upon by the accused do not apply.

• the boundaries of the relevant property;
• whether the location constituted a building;
• whether the location constituted land for the purposes of the provision;
• where the accused was standing;
• the direction in which the firearm was discharged;
• where the projectile travelled;
• whether the firearm was discharged inside or outside a building; and
• the relationship between the firearm and the relevant premises.

Section 93H(3) specifically provides that the onus of proving the matters in section 93H(2)(a), (b) and (c) lies with the defendant. 

A defence may need to examine:

This makes section 93H somewhat unusual because the legislation expressly places the burden concerning the statutory exceptions upon the defendant.

The precise location can therefore be important.

At Chidiac & Associates, we carefully examine both the Prosecution evidence and any evidence capable of establishing the relevant exception.

• in a building;
• into a building;
• on land; or
• onto land. 

What Does "Fires a Firearm" Mean?

Section 93H(2) specifically refers to firing a firearm:

The precise circumstances of the alleged discharge can be important.

Where Was the Firearm Fired?

The Prosecution may rely upon evidence concerning:

The reliability and interpretation of this evidence should be carefully examined.

• the firearm itself;
• ammunition;
• spent cartridges;
• bullet impacts;
• forensic examination;
• photographs;
• CCTV;
• witnesses;
• admissions;
• police observations;
• firearms examination; and
• other circumstantial evidence.
• spent ammunition;
• cartridge cases;
• bullet strikes;
• damage to buildings or property;
• projectile evidence;
• firearms residue;
• forensic testing;
• witness observations;
• CCTV footage; and
• admissions.

The defence should carefully examine whether the evidence establishes that the accused actually fired the firearm.

Depending upon the circumstances, evidence may include:

A firearm being present at a location does not necessarily establish who fired it.

In some matters, whether the firearm was actually discharged may become an important issue.

Dangerous Use of a Firearm vs Causing Danger With a Firearm

Dangerous use under section 93H(2) should not be confused with the separate offence of causing danger with a firearm or spear gun under section 93G.

Section 93G is broader in a number of respects.

It applies to circumstances including where a person:

• possesses a loaded firearm in a public place;
• possesses a loaded firearm in another place so as to endanger another person's life;
• fires a firearm in or near a public place; or
• carries or fires a firearm in a manner likely to injure or endanger a person or property, or with disregard for safety.

The maximum penalty under section 93G is:

10 years' imprisonment

Section 93G also provides a statutory exception where the person establishes a reasonable excuse or lawful purpose. The precise charge therefore matters.

Dangerous Use of a Firearm vs Firing at a Building

Section 93GA of the Crimes Act 1900 creates a separate and more serious offence involving firing a firearm at a dwelling-house or other building with reckless disregard for the safety of any person.

The basic offence under section 93GA carries a maximum penalty of:

14 years' imprisonment

The maximum can be higher in circumstances involving a public disorder or organised criminal activity.

Section 93GA also expressly provides that it is not necessary for the Prosecution to prove that a person was actually placed in danger by the firing.

A person facing a firearms charge should therefore obtain advice about the exact section and subsection appearing on the charge.

Dangerous Use of a Firearm and Firearms Licensing

A person can potentially face a dangerous use charge regardless of whether they hold a firearms licence.

Having a firearms licence does not automatically authorise every use or discharge of a firearm.

The circumstances of the particular use, the location, the firearm involved, the applicable licence conditions and the purpose for which the firearm was used may all be relevant.

Separate offences under the Firearms Act 1996 (NSW) may also arise depending upon the circumstances.

At Chidiac & Associates, we consider both the criminal allegation and any potential firearms licensing consequences.

Firearms Act 1996 (NSW)

The Firearms Act 1996 (NSW) regulates the possession and use of firearms in New South Wales.

Depending upon the circumstances, a person charged with dangerous use of a firearm may also need advice concerning:

• firearms licensing;
• firearm registration;
• prohibited firearms;
• safe storage;
• licence conditions;
• possession offences;
• seizure of firearms;
• suspension or revocation of a firearms licence; and
• Firearms Prohibition Orders.

The criminal charge under section 93H and any separate firearms licensing consequences should be considered together where appropriate.

Evidence in Dangerous Use of a Firearm Cases

Firearms cases can involve substantial forensic and circumstantial evidence.

The Prosecution may rely upon:

• police statements;
• CCTV;
• body-worn video;
• photographs;
• firearms examination;
• ballistic evidence;
• spent cartridge cases;
• projectile evidence;
• firearms residue;
• DNA;
• fingerprints;
• witness evidence;
• admissions;
• telephone evidence;
• location data;
• photographs of property damage; and
• evidence concerning ownership or occupation of the land.

At Chidiac & Associates, we carefully analyse the evidence relied upon by the Prosecution and consider whether it establishes the alleged offence.

Challenging Forensic Firearms Evidence

Firearms evidence may require specialist examination.

Depending upon the circumstances, issues may arise concerning:

• whether the firearm was capable of firing;
• whether ammunition was discharged;
• whether particular ammunition was fired from the firearm;
• whether cartridge cases are connected to the firearm;
• whether firearms residue is present;
• how forensic samples were collected;
• how exhibits were handled;
• whether testing procedures were properly followed; and
• whether expert conclusions are supported by the underlying evidence.

Expert evidence should not simply be accepted without examination.

CCTV Evidence

CCTV can be particularly important in dangerous use of a firearm matters.

Footage may establish:

• who was present;
• where people were standing;
• who possessed the firearm;
• whether the firearm was discharged;
• the direction of the firearm;
• the circumstances before and after the discharge;
• whether permission was given; and
• what occurred immediately afterwards.

The defence may need to obtain CCTV from:

• neighbouring properties;
• businesses;
• residential premises;
• roads;
• security systems;
• vehicles; or
• other locations.

At Chidiac & Associates, we carefully review available video evidence against the allegations made by police.

Witness Evidence

Witnesses may provide evidence concerning:

• seeing the accused with the firearm;
• hearing a gunshot;
• seeing the firearm discharged;
• where the firearm was pointed;
• the location of the accused;
• permission to use the property;
• the purpose of the firearm discharge; or
• what occurred immediately before or afterwards.

Witness evidence should be carefully examined for consistency, reliability and accuracy.

Important questions may include:

• Where was the witness standing?
• How far away were they?
• What could they actually see?
• How long did they observe the accused?
• Was the lighting adequate?
• Did they know the accused?
• Did they immediately report what they saw?
• Are their statements consistent with CCTV?
• Are their accounts consistent with the physical evidence?

Possible Defences to Dangerous Use of a Firearm

Depending upon the circumstances, potential defence issues may include:

• the accused did not fire the firearm;
• the firearm was not capable of being discharged;
• the firearm was fired by another person;
• the accused was the owner of the relevant land;
• the accused was the occupier;
• the accused had permission from the owner or occupier;
• the accused had a reasonable excuse;
• the firearm was discharged for a lawful purpose;
• the Prosecution has incorrectly identified the location;
• the Prosecution evidence is unreliable;
• forensic evidence does not establish that the accused discharged the firearm;
• CCTV contradicts the Prosecution case;
• witness evidence is inconsistent;
• the firearm was not the firearm alleged by the Prosecution; or
• the statutory requirements of section 93H have not been established.

The availability of any particular defence will depend upon the evidence and circumstances of the individual case.

Ownership and Possession Are Not the Same as Firing the Firearm

A person may own or possess a firearm without having fired it.

Accordingly, evidence that a firearm belonged to or was accessible to the accused does not necessarily establish who discharged it.

The defence may need to examine:

• who had access to the firearm;
• who had possession of it;
• where it was stored;
• who was present at the relevant time;
• who had access to the premises;
• who had access to ammunition; and
• whether forensic evidence connects the accused to the discharge.

Multiple People Present at the Property

Cases involving several people at a property can present complex evidentiary issues.

For example, police may allege that a firearm was discharged at a rural property, residence or gathering where several people were present.

The defence may need to investigate:

• who owned the property;
• who occupied the property;
• who had permission to be there;
• who owned the firearm;
• who had access to it;
• who had ammunition;
• who was present when the firearm was discharged;
• who witnessed the incident; and
• whether another person could have fired the firearm.

The mere presence of a person at a property does not necessarily establish that they discharged a firearm.

Dangerous Use of a Firearm and Property Damage

Some dangerous firearm matters involve alleged damage to:

• buildings;
• vehicles;
• fences;
• doors;
• windows;
• sheds;
• other structures; or
• property.

Photographs, forensic evidence and ballistic evidence may be relied upon to establish how the damage occurred.

The nature and location of any damage may also be relevant to distinguishing a section 93H allegation from a more serious charge such as section 93GA.

Sentencing for Dangerous Use of a Firearm

If a person pleads guilty or is found guilty of dangerous use of a firearm, the Court will consider the circumstances of the offence and the offender when determining the appropriate sentence.

Sentencing considerations may include:

• the circumstances of the firearm discharge;
• the type of firearm;
• whether the firearm was loaded;
• the number of shots fired;
• where the firearm was discharged;
• the direction in which it was fired;
• whether anyone was present;
• whether anyone was injured;
• the potential risk created;
• the degree of danger;
• the purpose for which the firearm was used;
• whether the person had permission;
• the person's criminal history;
• any previous firearms offences;
• the person's personal circumstances;
• prospects of rehabilitation;
• remorse;
• the timing of any guilty plea; and
• other aggravating or mitigating circumstances.

The maximum penalty of 10 years' imprisonment is reserved for the most serious circumstances and does not represent an automatic sentence.

Guilty Pleas and Sentencing

An early guilty plea can be relevant to sentencing.

The circumstances in which a plea is entered and the timing of the plea can affect the sentencing process.

However, a person should not plead guilty simply to obtain a sentencing discount without first obtaining advice concerning:

• whether the Prosecution can prove the offence;
• the strength of the evidence;
• the precise charge;
• any available defence;
• the appropriate jurisdiction; and
• the potential sentencing consequences.

At Chidiac & Associates, we provide advice about the advantages and disadvantages of a guilty plea in the context of the individual matter.

Character References and Apology Letters

In appropriate sentencing matters, evidence of a person's character, remorse and rehabilitation may be relevant.

This may include:

• character references;
• an apology letter;
• counselling records;
• rehabilitation evidence;
• employment evidence;
• educational achievements;
• evidence of treatment;
• evidence of community involvement; and
• other material demonstrating positive changes since the offence.

An apology letter should be prepared carefully and should be consistent with the plea and factual circumstances of the matter.

At Chidiac & Associates, we can advise clients about appropriate sentencing material.

Firearms Prohibition Orders

A firearms offence may also have consequences beyond the criminal Prosecution.

A person may need advice about the possibility of a Firearms Prohibition Order (FPO) under the Firearms Act 1996 (NSW).

An FPO is separate from the criminal sentence imposed by a Court.

Depending upon the circumstances, an FPO can have significant consequences for a person's ability to:

• possess firearms;
• use firearms;
• acquire firearms;
• retain firearms;
• obtain or maintain firearms licences; and
• participate in firearms-related activities.

Local Court, District Court and Criminal Proceedings

At Chidiac & Associates, we can advise clients about the potential interaction between criminal firearms proceedings and firearms licensing or prohibition-order issues.

The appropriate Court and procedure will depend upon the particular charge and the way in which the matter proceeds.

Section 93H offences are capable of being dealt with in the Local Court in appropriate circumstances, while the legislation also provides for proceedings in higher Courts.

The maximum penalty that applies in the particular jurisdiction and the applicable sentencing powers should therefore be considered carefully.

At Chidiac & Associates, we advise clients about the procedural pathway of their matter and represent clients throughout the criminal Court process.

Preparing Your Defence

A dangerous use of a firearm allegation requires detailed preparation.

At Chidiac & Associates, we can assist with:

• obtaining and reviewing the Prosecution brief;
• examining police statements;
• reviewing CCTV;
• reviewing body-worn video;
• analysing firearms and ballistic evidence;
• examining photographs and property damage;
• identifying independent witnesses;
• investigating ownership and occupation;
• investigating permission;
• examining reasonable excuse issues;
• investigating lawful purpose;
• challenging identification evidence;
• reviewing forensic evidence;
• considering the operation of section 93H(3);
• negotiating with the Prosecution where appropriate;
• preparing contested hearings;
• preparing matters for trial;
• preparing sentencing submissions; and
• advising regarding appeals where appropriate.

Our approach is built on meticulous preparation, strategic advice and strong Criminal Defence representation.

How Chidiac & Associates Can Help

At Chidiac & Associates, we understand that a dangerous use of a firearm allegation can have serious consequences for a person's liberty, criminal record, employment and firearms rights.

We can assist with:

• early legal advice;
• advice during police investigations;
• advice before a police interview;
• bail applications;
• analysing the precise charge;
• examining the Prosecution evidence;
• investigating potential defences;
• reviewing firearms evidence;
• examining CCTV and body-worn video;
• challenging witness evidence;
• investigating permission and lawful purpose;
• negotiating with the Prosecution where appropriate;
• Local Court representation;
• District Court representation;
• trial advocacy;
• sentencing submissions;
• firearms licensing advice; and
• advice concerning Firearms Prohibition Orders.

Contact Our Dangerous Use of a Firearm Lawyers Sydney

If you or someone you know has been charged with dangerous use of a firearm under section 93H(2) of the Crimes Act 1900 (NSW), obtaining experienced Criminal Defence advice as early as possible is important.

The precise circumstances of the firearm discharge, the location, ownership or occupation of the relevant land, permission, the alleged purpose and the available forensic and witness evidence can all be critical to the outcome.

The offence carries a maximum penalty of:

10 years' imprisonment

However, the maximum penalty is not an automatic sentence. The appropriate outcome depends upon the particular facts, the evidence and the circumstances of the offender.

At Chidiac & Associates, we provide confidential Criminal Defence advice and representation for dangerous use of firearm charges throughout Sydney and New South Wales.