Christopher John Saunders v David Anthony Crowe
[2010] ACTSC 78
•6 August 2010
CHRISTOPHER JOHN SAUNDERS v DAVID ANTHONY CROWE
[2010] ACTSC 78 (6 August 2010)
APPEAL – appeal from Magistrates Court – appeal against conviction and sentence – unlawful possession of stolen property charge dismissed – penalty for possess/use a firearm while not authorised dismissed – penalty for possess/use a prohibited weapon while not authorised dismissed
CRIMINAL LAW – unlawful possession of stolen property – not apparent that appellant took possession of stolen property – unchallenged explanation of appellant as to how property came to be in his possession – charge dismissed
CRIMINAL LAW – possess/use a firearm while not authorised – posses/use a prohibited weapon while not authorised – appellant’s explanation for possession of weapons not rejected by trial judge – convictions upheld – penalties dismissed
Firearms Act 1966 (ACT), ss 4B, 24
Prohibited Weapons Act 1996 (ACT), ss 3, 17
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 98 of 2008
Judge: Higgins CJ
Supreme Court of the ACT
Date: 6 August 2010
IN THE SUPREME COURT OF THE )
) No. SCA 98 of 2008
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:CHRISTOPHER JOHN SAUNDERS
Appellant
AND:DAVID ANTHONY CROWE
Respondent
ORDER
Judge: Higgins CJ
Date: 6 August 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The orders made by Magistrate Fryer on 3 November 2008 be set aside and the following orders be substituted:
(a) A conviction be recorded for charge 2007/9143 and no further penalty be imposed.
(b) A conviction be recorded for charge 2007/9144 and no further penalty be imposed.
(c) A conviction be recorded for charge 2007/9145 and no further penalty be imposed.
(d) Charge 2007/9146 be dismissed.
No order as to costs or levies be made.
This is an appeal against the conviction of the appellant on 3 November 2008 in the ACT Magistrates Court in respect of four charges namely:
·2007/9143 That he, in the Australian Capital Territory, on 13 September 2007, did possess a firearm, to wit a Sureshot .22 calibre rifle whilst not authorised by a licence or a permit or the Firearms Act 1996.
·2007/9144 That he, in the Australian Capital Territory, on 13 September 2007, who possessed a firearm, to wit a Sureshot .22 calibre rifle, did fail to take all reasonable precautions to ensure its safekeeping that it not be stolen or lost, and that it does not come into the possession of a person who is not authorised to possess the firearm.
·2007/9145 ... possessed a prohibited weapon while not authorised to do so by the Prohibited Weapons Act 1996.
·2007/9146 ... did have in a premises (sic), property namely personal paperwork in the name of Christopher McFarlane, ACT Registration plates YCL00X and envelopes and mail items identified in Annexure A, being property that is reasonably suspected of being stolen or otherwise unlawfully obtained.
There was also an order for costs made against the appellant on 21 August 2008. It is conceded, however, that the order was made without affording the appellant an opportunity to be heard in respect of it and that it should be set aside accordingly.
The substantive facts were not themselves in issue.
The appellant was the occupier of business premises “Southlands Locksmiths” at Mawson and a residence at Kambah.
On 10 September 2007, police obtained a search warrant from Magistrate Lalor to search those premises. On 13 September 2007, the warrant was executed.
On attending the residence, there was a Miss Martin in occupation. She was the sole occupant of bedroom one. A black taser was found in bedroom two of the house. Also located, relevantly, were various mail items addressed to various persons. There were also in a plastic “Home Care” bag items apparently in the name of Christopher McFarlane. Also found on the premises was a .22 calibre Sureshot rifle, broken down to two pieces. In the rear yard there was a vehicle with ACT registration plates YCL00X fitted to it.
The firearm was in a cupboard in the main bedroom which was not, itself, a secure container. The licence plates were reported as having been stolen on 16 July 2007.
Another resident of the Kambah residence, Ms Thompson, has pleaded guilty to having stolen numerous mail items. It is reasonable to suppose that she had stolen the mail items found on the premises at Kambah on 13 September 2007.
The matters came on for hearing before Magistrate Fryar on 3 November 2008. The matter was difficult and confusing, a circumstance in large measure arising from the fact that the appellant was self-represented and demonstrated little understanding of the elements of the offences alleged or of proper legal process or procedure.
Certificates were tendered in respect of the rifle and the taser. The former, under s 124 (as it then was) of the Firearms Act 1966 (ACT) (Firearms Act) certified that the appellant was not, as at 13 September 2007 the holder of a firearms licence or permit or authorised by the Registrar to possess the firearm seized by police. The latter, under s 17 of the Prohibited Weapons Act 1996 (ACT) (Prohibited Weapons Act), certified that the appellant was not, as at that date, authorised by the Registrar to possess a “taser” that being an item specified in Schedule 1 at item 9 of the Prohibited Weapons Act as it was at 13 September 2007, that is, “a device known as a Taser Self-Defence weapon or any similar device”.
Constable Crowe had not been present at the search of the Kambah residence. Constable Raven had been. When he arrived no other person was present in the residence or grounds. A person, Miss Martin, did arrive and said she was a resident.
Constable Raven deposed that the Taser was located in bedroom 2 in the second drawer of the bedside table by Sergeant Crocker. That room, he understood to be the appellant’s bedroom. That, of itself, would not have established that fact.
The mail items were located in a laptop bag which was found in the “spare bedroom”, that was designated as bedroom one, which Constable Raven believed was Miss Martin’s room.
The items, apparently related to Mr McFarlane, were found in the plastic bag in the bedroom designated as bedroom three.
The licence plates were found on a blue Holden Calais in the carport on the premises. It was one of a considerable number of vehicles on the property most of which seemed to be inoperable.
The appellant was not present at the commencement of the search but arrived towards its conclusion.
There was a taped recording of the conversation which occurred during the search. Much of it was with Miss Martin and, hence, not admissible against the appellant. However, she did confirm that Ms Thompson, another resident, had brought “a heap of mail” into the house and the appellant had told her to “get it out of the house”.
The appellant participated in a conversation after his arrival. The only parts of relevance related to the rifle. The appellant said of it “It’s not mine, the rifle, so”.
Detective Sergeant Crocker was present at the search of the Kambah premises but added nothing otherwise to the case against the appellant. Detective Senior Constable Zuzek gave evidence of the finding of the rifle. Neither it nor the Taser had been in plain view. It was not suggested that either weapon was operable. Indeed the rifle was, apparently missing the bolt needed to operate or fire it.
Constable Guest noted and seized the car number plates and ascertained that they were reported to be stolen.
A more substantive witness was Mr Christopher McFarlane. He deposed that he “did a little bit of work on some vehicles” for the appellant. That was in May 2007. He acknowledged that he had stayed at the Kambah residence for five nights in May. In June 2007 he reported his vehicle stolen. There were items of his, he said, in the car at that time. He identified some of those items from the photographs of items seized in the search of the Kambah house. He denied that he had ever owned or possessed a rifle.
In cross-examination, he denied staying at the appellant’s house for 6 – 8 weeks. He was shown a document allegedly assigning a car to the appellant. He accepted it was similar to his signature but denied that it was his.
Her Honour then addressed the question as to whether there was, on the evidence before her, a prima facie case.
Mr Lundy pointed out that possession of a firearm or weapon falls within the relevant Act even if the item is not functional. Her Honour agreed and found a prima facie case on all charges. She then offered the appellant an opportunity to give evidence.
The appellant deposed that Mr McFarlane had stayed at the Kambah residence, leaving owing $1,000. Mr McFarlane had, he said, assigned title to his vehicle in discharge of that debt. However, the appellant said, he lent the vehicle to a girl whose sister had died, about 11 June 2007. She had abandoned the vehicle in Ainslie as it was unregistered apparently after police had pointed that out to her. The vehicle was returned by police to Mr McFarlane as the last registered owner. Mr McFarlane had thereafter promised to pay the money owed to the appellant instead of redelivering the vehicle but did not do so. His goods which he claimed to have been in the vehicle were, the appellant pointed out, still at the Kambah residence when police searched the premises.
Having located the taser and gun amongst the goods left by Mr McFarlane, the appellant decided to place them in his bedroom wardrobe for safekeeping. He was satisfied that neither weapon was operative.
The mail items were within baggage owned by Ms Kelly Thompson who had gone to “rehab”, leaving that behind.
He had no knowledge, he said of the number plates. There were up to 10 vehicles there in the backyard.
As far as he was concerned, he did not have possession of any of those items. He did not believe he could “throw away the laser or gun belonging to Mr McFarlane”.
He called two witnesses. The first was Mr John Parlov. He confirmed that the golf bag, containing the weapons had been brought by Mr McFarlane to the appellant’s house where he had stayed with the appellant for some time. He was challenged on that evidence by Mr Lundy.
Ms Kim McCormic was the next witness. She deposed that the appellant, while Mr McFarlane was residing at his house, as she was, lent her a white Commodore wagon. It was then empty. She used it to move her belongings but it was stolen. That was the evidence in the case.
Following submissions, her Honour pointed out to the appellant that the rifle, albeit inoperable, was in his possession, referring to s 4B of the Firearms Act:
A person shall be taken to have possession of a firearm if the firearm is on or in any premises occupied by the person.
Accordingly, her Honour found that offence proved.
As to the storage of the weapon, her Honour found the wardrobe to be insufficiently secure and found that offence proved also.
There was a similar provision in s 3(3) of the Prohibited Weapons Act which applied to the taser. The issue was not ownership but possession. The appellant had placed that weapon in his wardrobe also. Hence her Honour considered he had custody of it and, hence, possession without legal authority or a licence or permit.
The paperwork of Mr McFarlane, her Honour agreed, had not been shown to have been unlawfully possessed and hence that offence was found not proved.
Her Honour, noting that the registration plates, apparently stolen, YCL00X, were on a vehicle owned by the appellant, found that offence proved.
It was, however, not apparent that the appellant placed the plates on that vehicle or was aware of them. It seems to me that issue not having been addressed, the appellant is entitled to an acquittal in respect of charge.
As to the envelopes, they were apparently addressed to other persons. It was not open to dispute that they had been possessed by Ms Thompson and left on the premises by her. It was not apparent that the appellant took possession of them in any relevant sense.
Her Honour in finding that offence proved put it “you have given no explanation for how they came to be in your possession or in your premises”. The appellant had done so. His explanation was not challenged.
It follows, therefore, that that charge should have been dismissed.
The relevant legislation did, as the prosecutor submitted, deem possession to be sufficiently proved if the firearm and weapon were, at least to the knowledge of the appellant, on his premises without a relevant authority. Further, the appellant had, albeit to preserve the items, taken custody of them. The wardrobe was not secure, albeit that the items were inoperable. Nevertheless, they could have been used to menace persons had they fallen into the wrong hands.
The finding of guilt of those three offences was, therefore, unassailable.
However, the explanation for the possession of the two weapons, albeit inconsistent with Mr McFarlane’s evidence, was not rejected by her Honour.
I have therefore to consider in light of that explanation the appropriateness of penalties imposed of $300 plus $61 costs and $50 service levy for the rifle possession charge, plus $200 for the taser possession charge.
Her Honour did not address the safe keeping charge. No sentence was pronounced in respect of that charge, though it was found proved. That may have been due to inadvertence.
The appellant did point out that he could not abandon or destroy the weapons once he found them. That is true. Though he could and should have notified a police officer of the finding of the weapons. The possession by the police of the weapons pending enquiry of the owner would have been lawful and relieved the appellant of any criminal liability.
However, I do appreciate his dilemma. I consider that, accordingly, whilst convictions should be recorded on the three matters found proved no further penalty should be imposed.
In the light of the history of the matter I consider that no orders as to costs or levies should be made.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 6 August 2010
Counsel for the Appellant: Self represented
Counsel for the Respondent: Ms K Weston-Scheuber
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 30 October 2009, 4 December 2009 and 12 February 2010
Date of judgment: 6 August 2010
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