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Abraham v The The King

Abraham v The The King

Case [2022] NSWCCA 242 22 November 2022

Appeal

Unreasonable Verdict

Possession of Firearms

Presumption of Possession

DNA Evidence

Firearms Act 1996 (NSW)

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Abraham v R [2022] NSWCCA 242
Hearing dates: 24 June 2022
Date of orders: 22 November 2022
Decision date: 22 November 2022
Before: Brereton JA at [1];
Wilson J at [55];
Cavanagh J at [58]
Decision:
(1) Grant leave to appeal; and
(2) Dismiss the appeal.

Catchwords:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Possession of firearms – Circumstantial case – Firearms and ammunition containing applicant’s DNA found in wall cavity of premises leased by applicant’s business – Whether reasonable possibility of secondary transfer of DNA during police search excluded – Presumption of possession under Firearms Act1996 (NSW), s 4A on some counts – Open to jury to be satisfied beyond reasonable doubt of applicant’s guilt of all counts – Appeal dismissed

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5(1)
Firearms Act 1996 (NSW), ss 4A, 7, 36, 66,
Weapons Prohibition Act 1998 (NSW), s 7

Cases Cited:
Atai v R [2014] NSWCCA 210
Barca v R (1975) 133 CLR 82; [1975] HCA 42
Dansie v The Queen [2022] HCA 25; (2022) 96 ALR 728
De Silva v R (2019) 268 CLR 57; [2019] HCA 48
Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78
Frew v R [2022] NSWCCA 165
Liberato v R (1985) 159 CLR 507; [1985] HCA 66
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
May v R [2012] NSWCCA 250
Seifeddine v R [2021] NSWCCA 214
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: Tim Abraham (Applicant)
The Crown (Respondent)
Representation:
Counsel:

K Stares SC (Applicant)
G Newton SC (Respondent)

Solicitors:
Hanna Legal (Applicant)
Office of Director of Public Prosecutions (Respondent)

File Number(s): 2017/242701
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW at Parramatta

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

25 July 2019

Before:

Woodburne SC DCJ

File Number(s):

2017/242701

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was convicted by a jury following trial in the District Court of three counts of possessing a pistol (Firearms Act 1996 (NSW) s 7(1)); three counts of possessing an unregistered firearm (s 36(1)); one count of possessing a defaced firearm (s 66(1)(b)); and two counts of possessing a prohibited weapon, namely an ammunition magazine (Weapons Prohibition Act 1998 (NSW), s 7(1)).

The offences related to three handguns and two ammunition magazines, all of which were found in a bucket, inside a lockable storage hatch in a wall cavity, within premises leased by the applicant’s restaurant business. The applicant’s DNA and that of his co-accused was detected on the bucket and some of the firearms. At trial, the possibility of secondary transfer of DNA was at issue; the police officer conducting the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abraham v The The King

Details

AGLC: Abraham v The The King [2022] NSWCCA 242
Case: [2022] NSWCCA 242
Decision Date: 22 November 2022

CaseChat Overview and Summary

Abraham, the appellant, appealed against his conviction for various firearms offences under the Firearms Act 1996 (NSW). The dispute involved the possession of firearms and ammunition, with DNA evidence found in a cavity within the premises leased by the appellant's business. The court of appeal was tasked with determining whether the conviction was unreasonable and whether the evidence was sufficient to establish the appellant's guilt beyond reasonable doubt.

The legal issues before the court centred on the sufficiency and reliability of the evidence, particularly the DNA evidence. The court needed to assess whether the possibility of secondary transfer of DNA during the police search was sufficiently excluded, and whether the jury was correct in applying the presumption of possession under section 4A of the Firearms Act. The court also needed to determine if the appellant's possession of the firearms and ammunition was established beyond reasonable doubt.

The court found that the possibility of secondary transfer of DNA had been adequately addressed by the prosecution, and that the jury was entitled to rely on the presumption of possession. The evidence, including the DNA findings and the circumstances surrounding the discovery of the firearms and ammunition, was deemed sufficient to support the jury's verdict. The court concluded that the conviction was not unreasonable, and dismissed the appeal.

The final orders of the court were to dismiss the appeal against the appellant's conviction on all counts. The appellant remained convicted of the firearms offences as determined by the trial court.

Orders