ALJUNEID v Glynn
[2002] WASCA 220
•13 AUGUST 2002
ALJUNEID -v- GLYNN [2002] WASCA 220
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 220 | |
| Case No: | SJA:1047/2002 | 24 JULY 2002 | |
| Coram: | McKECHNIE J | 13/08/02 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed | ||
| B | |||
| PDF Version |
| Parties: | SYED ISKANDER ALJUNEID KEVIN JOSEPH GLYNN |
Catchwords: | Firearms Possession Knowledge of shotgun in boot of car Case turns on own facts No new principles |
Legislation: | Firearms Act 1973 (WA) |
Case References: | Nil Azzopardi v The Queen (2001) 75 ALJR 931 Bensegger v The Queen [1979] WAR 65 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Chan v The Queen (1989) 38 A Crim R 337 Davis v The Queen (1991) 5 WAR 269 He Kaw Teh v The Queen (1985) 157 CLR 523 Higgins v Dorries & Donnelly [1965] Qd R 389 House v The King (1936) 55 CLR 499 Keys v Kitto (1996-1997) 90 A Crim R 288 Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998 R v McGregor [1968] 1 QB 371 R v Tait (1979) 46 FLR 386 Reynolds v Wilkinson (1948) 51 WALR 17 Warner v Metropolitan Police Commissioner [1969] 2 AC 256 Weissensteiner v The Queen (1993) 178 CLR 217 Yeates v Hoare [1981] VR 1034 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ALJUNEID -v- GLYNN [2002] WASCA 220 CORAM : McKECHNIE J HEARD : 24 JULY 2002 DELIVERED : 13 AUGUST 2002 FILE NO/S : SJA 1047 of 2002 BETWEEN : SYED ISKANDER ALJUNEID
- Appellant
AND
KEVIN JOSEPH GLYNN
Respondent
Catchwords:
Firearms - Possession - Knowledge of shotgun in boot of car - Case turns on own facts - No new principles
Legislation:
Firearms Act 1973 (WA)
Result:
Appeal allowed
Conviction quashed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr L M Levy
Respondent : Mr J F O'Sullivan
Solicitors:
Appellant : Laurie Levy & Associates
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Azzopardi v The Queen (2001) 75 ALJR 931
Bensegger v The Queen [1979] WAR 65
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Chan v The Queen (1989) 38 A Crim R 337
Davis v The Queen (1991) 5 WAR 269
He Kaw Teh v The Queen (1985) 157 CLR 523
Higgins v Dorries & Donnelly [1965] Qd R 389
House v The King (1936) 55 CLR 499
Keys v Kitto (1996-1997) 90 A Crim R 288
Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998
R v McGregor [1968] 1 QB 371
R v Tait (1979) 46 FLR 386
Reynolds v Wilkinson (1948) 51 WALR 17
Warner v Metropolitan Police Commissioner [1969] 2 AC 256
Weissensteiner v The Queen (1993) 178 CLR 217
Yeates v Hoare [1981] VR 1034
(Page 3)
1 McKECHNIE J: On Saturday evening 15 September 2001, the appellant was a passenger in the rear seat of a Holden Commodore. Although the appellant owned the vehicle it was being driven by his father. There was another man who was a front seat passenger.
2 The car was pulled over by police in Manning Road at about 8.30 pm. The appellant's father was found to be in possession of a quantity of drugs and a number of shotgun cartridges.
3 The vehicle was conveyed to Cannington Police Station where some hours later it was searched. During the search, a black Maverick 12 gauge shotgun was found in the boot of his car.
4 The appellant participated in a video record of interview which included questions about the shotgun. He was subsequently charged with possession of the shotgun without a licence or permit.
5 He stood trial in the Court of Petty Sessions Perth on 7 March 2002. The appellant did not give evidence at the trial. He was convicted and fined the sum of $1500.
6 He now appeals against conviction and the fine.
7 The grounds of appeal are:
"2.1 The learned Magistrate erred in fact and law in finding beyond reasonable doubt that the Applicant was in possession of the firearm.
PARTICULARS
- (a) There was insufficient evidence upon which to conclude that the Applicant was in possession of the firearm.
(b) The inference that the Applicant had knowledge of the firearm was not the only inference available on the evidence.
(c) There was no evidence that the Applicant exercised control over the firearm at a time when he had knowledge of the firearm's presence."
(Page 4)
The appellant's knowledge
8 It is correctly accepted by counsel for the respondent that without proof of knowledge, the offence of possession cannot be made out. There are three matters relevant to the appellant's knowledge of the shotgun, the most relevant being any admissions made by him at interview.
(a) The position of the shotgun in the boot
9 The shotgun was located behind the rear seats, between the rear seats and a large speaker which was fitted in the boot. When the boot was open, the speaker was in the back of the boot, filling nearly two-thirds of it. The shotgun was not visible from the back of the car, but was visible from inside the car once one of the split back seats was lowered. I have taken account of a video record of the search and location of the shotgun. The officers were assisted by the light of a torch in their search.
(b) The use of the car
10 Although the appellant owned the car, he told police officers that his father and others would from time to time use the car and that his father would allow other persons to use the car. There is no evidence to contradict this assertion.
(c) The record of interview
11 The appellant's video record of interview is difficult to understand because many of the appellant's responses are inaudible.
12 I listened to the video a number of times. The Magistrate appears to have had only one opportunity to view and listen to the video in court. Therefore with regard to its content, I am in a better position than the Magistrate. This is no criticism of him. It is merely a reflection of the circumstances. The video record of interview contains material which is not relevant and which I have disregarded. My note of the relevant portion of the interview is as follows:
"01.54 am
Q. You know your dad drove the car? And you were with him tonight?
A. Inaudible. I was with him tonight.
(Page 5)
- Q. Yeah and you were with him in the back seat just next to where the shot gun was in the boot and this big knife?
A. Inaudible.
Q. Alright, have any explanation as to why you had all that stuff in the car?
A. Inaudible.
Q. Sorry?
A. Inaudible. Just …. Think …
Q. (155.30) Have you, - - we showed you that firearm. Have you handled that firearm?
A. It was in the boot, man.
Q. What I'm saying, it will be tested for fingerprints. OK?
A. Inaudible. There are speakers there.
Q. So, OK, you touched it.
A. I could have. I don't know.
Q. You couldn't have touched the firearm?
A. If it was there. I didn't know it was there.
Q. Have you seen the firearm?
A. No.
Q. Have you touched it?
A. No.
Q. You've been fingerprinted OK. Any explanation if your fingerprints are on the firearm?
A. I was playing with the amp today.
Q. When were you playing with the amp? You just said today?
(Page 6)
- A. I had to play with it before because it was disconnected.
Q. Did you play with it?
A. I disconnected the wires.
Q. From the boot or from inside.
A. From inside. …
Q. From inside so you were in the back seat?
A. Yeah turn round.
Q. So you pulled the thing down?
A. Yeah last night.
Q. Last night?
A. Last night.
Q. Today?
A. Today, tonight.
Q. A minute ago you said today - earlier today - before - -
Q. Today is Sunday morning.
A. Today tonight.
Q. Was it before 6 or 7 o'clock before you got in the car?
A. No I don't think.
Q. OK. While you've been driving around tonight?
A. No I wasn't driving.
Q. OK, while your Dad was driving around you had trouble with the amplifier?
A. Yes the system (inaudible).
Q. And you fixed it up while you've been driving?
A. Yeah.
(Page 7)
- Q. OK, did you seen the shotgun then?
A. Inaudible …
Q. I was the one who found the shot gun and the middle console, that split part, fell down. Did you see my reaction … I've gone 'Whoa the shotgun'. That's how obvious it was. The minute that thing fell down it was there. If you put that down the shotgun is there. So you couldn't honestly tell me that when you were fixing the amplifier approximately. We stopped you at 10.30. Prior to that you had the split fold seat down and didn't seen it. But you were playing with the amplifier in there. You couldn't have got through the split fold seat to the amplifier without touching it.
A. I haven't touched the gun!
Q. At the end of the day it …. When we get this gun - - do you think we will find your fingerprints there?
A. Don't know.
Q. Well you should know either way. If you've touched it, you've touched it. What do you think?
A. I didn't touch it, I didn't know … inaudible.
Q. You didn't touch it just saw it there?
A. It wasn't there I don't think as far as I can remember.
(158)
Q. You still … drop the seat down but didn't you - - you would have seen it. And you're telling me you didn't see it.
A. Don't know.
Q. Didn't know what? Didn't know what it was?
Q. Did you see a big black thing?
Q. It was full length of the boot straight underneath the amplifier - you don't expect that type of thing in the back
(Page 8)
- of the boot there. That's why I was surprised when I found it. That's how obvious it was when the seat fell down.
- A. R….. I suppose - you were looking for it, eh?"
13 The appellant never at any time admitted knowledge of the presence of the shotgun. In fact, throughout he denied knowledge of the shotgun. His fingerprints were not found upon it.
14 He advanced an explanation in answer to the hypothetical question as to an explanation if his fingerprints were on the firearm.
15 The Magistrate's opinion of this evidence was expressed as follows:
"I find that, on the evidence before me, very difficult to accept - that the firearm had been placed there, either on another occasion or on the night in question by any other person, and that he did not have any knowledge that the weapon was there. He was seated next to the weapon, which was in the boot of the motor vehicle; he had and did have access to the boot of the vehicle in the proximity of where the weapon was concealed. He admits that that was the case when he was confronted by the police as to the testing of the weapon.
In my view, that response from the defendant was simply to allay any question of guilt on his part should the police, in fact, turn up fingerprints from the weapon following forensic testing. However, there were no fingerprints found with regards to that. The responses of the defendant when he gave an interview with the police - which I might say was conducted fairly - there was no question that the defendant did not understand what was being put to him. He was cautioned; he was, in fact - - did respond as to his understanding of the caution and that he was fully conversant with what it was he was doing. His responses to the police, in my view, were calculated and unresponsive with regards to his knowledge of the weapon.
Drawing all the inferences from the evidence before me with regards to the weapon I'm satisfied the prosecution have proved that he had knowledge that the weapon was present in the vehicle, and that, should the occasion arise, he would be and could exercise dominion and control over the weapon."
(Page 9)
16 On all the material before the Magistrate it was not open for him to find beyond reasonable doubt that the appellant had knowledge of the presence of the shotgun. The appellant consistently denied knowledge. After listening to the video a number of times, I conclude the appellant's answers were not calculating and unresponsive. They were firm and repeated denials.
17 There is no positive evidence to the contrary sufficient to justify rejection of the denials and capable of proof beyond reasonable doubt. There is no evidence that there was any light on in the vehicle at the time he was disconnecting the amplifiers. The appellant's and answers undoubtedly gave rise to a suspicion of knowledge. However, suspicion is not enough.
18 An alternative explanation, which cannot be discounted as a reasonable possibility, was that the appellant's father, who had access to the vehicle, had himself planted the shotgun in the boot and thereafter carried the shotgun cartridges in his pocket. The appellant did not know of the presence of the shotgun. There is no admission by the appellant that he ever saw the shotgun when he had access to the boot to disconnect the amplifier. While the shotgun may have been obvious to police officers searching under lights, there is a reasonable possibility that it was not so obvious to the appellant who, in his video record of interview said: "You don't expect that type of thing in the back of the boot there."
19 As it was not open for the Magistrate to be satisfied beyond reasonable doubt that the appellant had knowledge of the existence of the shotgun, it is unnecessary to consider the question whether if the appellant had known of the existence of the shotgun he would have been in possession of it in the manner "possession" is defined in the Firearms Act 1973.
20 The appeal is allowed and the conviction is quashed.
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