Conant v The Queen

Case [2021] SASCA 56

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

CONANT v THE QUEEN

[2021] SASCA 56

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Livesey)

10 June 2021

FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - OFFENCES - POSSESSION OR USE GENERALLY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

On 3 April 2018, police searched premises where the appellant was a tenant and located firearms and ammunition buried in a crate in the garage. A starter pistol and ammunition were also located near and in a tree in the backyard. The appellant and his then partner were arrested on multiple firearms offences. A judge sitting alone convicted the appellant and his partner of possession of the buried firearms, but acquitted them of possession of the starter pistol in the tree.

The appellant appealed the conviction on the basis that he was not an occupier of the premises at the time of the search and therefore not in possession of the firearms; that the Trial Judge's reasoning was inadequate as convictions on counts 1 to 6 were inconsistent with the acquittal on count 7; and that the verdicts of guilty are in any event unreasonable.

Held (by the Court), granting permission to appeal but dismissing the appeal:

1. It was open on the evidence to find the appellant an occupier of the premises.

2. The reasoning of the Trial Judge was not inconsistent and demonstrates that she had regard to the whole of the evidence.

3. It was open to the Trial Judge to find the appellant guilty of counts 1 to 6.

Firearms Act 1977 (SA) s 5(14); Firearms Act 2015 (SA) s 6, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; JGS v The Queen [2020] SASCFC 48; M v The Queen (1994) 181 CLR 487; Pell v The Queen [2020] HCA 12; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; R v A2 (2019) 93 ALJR 1106; R v Becerovic [2017] SASCFC 156; R v Gjergji (2016) 126 SASR 106; R v Marafioti (2014) 118 SASR 511; R v Phung (2003) 141 A Crim R 311, considered.

CONANT v THE QUEEN
[2021] SASCA 56

Court of Appeal – Criminal:    Lovell, Doyle and Livesey JJA

THE COURT:

  1. The principal issue on this appeal is whether the appellant was in occupation of a property on which police located a number of firearms when the appellant was…

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Conant v The Queen [2021] SASCA 56
Case
[2021] SASCA 56
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CaseChat Overview and Summary

The appellant, Conant, appealed his convictions for firearms offences to the Court. He and Ms Avenell were convicted by the Trial Judge of offences relating to firearms found at premises they occupied, but were acquitted of a seventh count. Ms Avenell did not pursue her appeal. The central dispute at trial concerned whether the appellant was an occupier of the premises at the time of the police search on 3 April 2018, given that his de facto relationship with Ms Avenell was strained and he claimed to have moved out.

The legal issues before the Court were whether the Trial Judge erred in finding the appellant guilty of the firearms offences. Specifically, the Court considered whether it was open to the Trial Judge to find that the appellant was an occupier of the premises, and whether the Trial Judge's reasons for conviction were adequate and demonstrated that she had considered all the evidence. The appeal also raised the question of whether the verdict was unreasonable or insupportable having regard to the evidence.

The Court reasoned that it was open on the evidence to find the appellant an occupier of the premises, noting that he had nominated the address for home detention bail the day before the search and Ms Avenell stated he was still living there part-time. The Court found that the Trial Judge's reasoning was not inconsistent and showed she had regard to the entirety of the evidence presented. Consequently, the Court concluded that it was open to the Trial Judge to find the appellant guilty of counts 1 to 6.

The Court granted permission to appeal but ultimately dismissed the appeal, upholding the Trial Judge's convictions.

Orders

Orders of the court

Held (by the Court), granting permission to appeal but dismissing the appeal:

1. It was open on the evidence to find the appellant an occupier of the premises.

2. The reasoning of the Trial Judge was not inconsistent and demonstrates that she had regard to the whole of the evidence.

3. It was open to the Trial Judge to find the appellant guilty of counts 1 to 6.

Background

Background to the litigation

The Trial Judge convicted the appellant and Ms Avenell of the offences related to the firearms the subject of counts 1 to 6 but acquitted them of count 7. The appellant appeals those findings of guilt. Ms Avenell has not pursued an appeal against the convictions.Background It was common ground that leading up to April 2018, the appellant and Ms Avenell had been in a de facto relationship for about five to six years. Ms Avenell was pregnant with the couple’s first child. It was also common ground that as at April 2018 their relationship was strained. At trial both the appellant and Ms Avenell gave evidence. Their evidence as to the status of the relationship as at April 2018 was conflicted. The appellant said that as at 3 April 2018 he was no longer living at the premises. Ms Avenell stated that the appellant was still living at the premises one to two days per week. Whether the appellant was occupying the premises as at 3 April 2018 was the major issue at trial.The search On 2 April 2018, the day before the police search, the appellant was arrested on unrelated matters. On 3 April 2018, he appeared before the Elizabeth Magistrates Court and applied for home detention bail, nominating the Parafield Gardens premises as an appropriate address. The Magistrate ordered a bail enquiry report for that address. Ms Avenell was present in the court during the bail application. At about 5.00pm that day, police attended the premises and conducted a search. Ms Avenell was present. Police observed that the premises were heavily fortified; there were a number of CCTV cameras with four monitors and a live feed running, a thicker than usual front door and a security bollard at the front of the premises. Having entered the premises, the police spoke to two men present, Mr Nisbet and Mr Piccolo, before allowing them to leave. Both men were known to police. Mr Nisbet was known to be a member of an Outlaw Motorcycle Gang. During the search, a drug detection dog located a dirt pit in the garage. The police dug in the area and found a crate containing a canvas bag with four firearms wrapped in white plastic and a bag containing ammunition. Another firearm was located on the ground under a palm tree in the backyard. Ammunition suitable for use in that firearm was found on a frond in the palm tree, although this was not the subject of a charge. A single round of ammunition was located in a linen press in the hallway of the house. A 12-gauge shotgun barrel was located on a chest of drawers on the veranda. The single round of ammunition and shotgun barrel were not the subject of any charges. There was no dispute that the firearms were located as alleged by the police. It was an agreed fact that the following items were located in the pit:1. A sawn-off Norinco self-loading rifle without a serial number (counts 1 and 2)There was no dispute that the rifle was a prescribed firearm which did not have an identifying mark in compliance with the requirements of the Firearms Act 2015 (SA) (the Act).2. An Erma self-loading rifle without a serial number (counts 3 and 4)There was no dispute that the rifle was a category C firearm found in the immediate vicinity of 46 live rounds of ammunition suitable for use in the firearm and that it did not have an identifying mark in compliance with the requirements of the Act.3.A sawn-off Sportco single barrel 12-gauge break action shotgun (count 5)There was no dispute that the shotgun was a prescribed firearm and was found in the immediate vicinity of 118 live shot shells suitable for use in the firearm.4. A sawn-off Franchi self-loading 12-gauge shotgun (count 6)There was no dispute that the shotgun was a prescribed firearm and was found in the immediate vicinity of 118 live shot shells suitable for use in the firearm. They are the same shotgun shells that were suitable for use in the Sportco gun.5.Ammunition suitable for use in the Erma, Sportco and Franchi firearms

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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