Conant v The Queen - [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:

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 not present.
Overview
On 3 April 2018, the police raided and searched premises at Parafield Gardens (the premises). During a search of the premises the police located four firearms buried in a pit in the garage (counts 1, 3, 5 and 6). Two of the firearms did not have identifying marks (counts 2 and 4). A starter pistol was also located under a palm tree (count 7). Also located, but not the subject of any charges, were ammunition in a palm tree frond, ammunition in a linen cupboard and the barrel of a shotgun located on top of a set of drawers on the veranda.
Mr Conant, the appellant, and his then partner, Ms Avenell, had a tenancy agreement allowing occupation of the premises from November 2017. They were jointly charged with multiple firearms offences arising from the search. The appellant and Ms Avenell elected for trial by judge sitting alone.
The appellant gave evidence at trial that he had been arrested the day before the police search. He was in custody at the time of the search. He said that at the time of the search, and for some time beforehand, he was no longer living at the premises. The Trial Judge rejected the appellant’s evidence as to his living arrangements immediately prior to his arrest and found that despite being in custody at the time of the search, he was the occupier of the premises. The Trial Judge further rejected the appellant’s evidence that he did not know of the presence of the firearms.
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
As mentioned earlier, police also located a self-loading starter pistol on the ground under a palm tree in the rear yard (count 7). There was no dispute that the starter pistol was a category H firearm. As mentioned, the Trial Judge acquitted both the appellant and Ms Avenell of count 7.
Ammunition located on a frond in the palm tree was also suitable for use in the Erma self-loading rifle. That ammunition is not the subject of a charge.
Ms Avenell was arrested at the premises on 3 April 2018. The appellant was arrested for these offences on 5 April 2018 at Yatala Labour Prison.
Tenancy agreement
The appellant and Ms Avenell had entered into a tenancy agreement for the Parafield Gardens premises in November 2017. While the agreement for the premises listed John Thornton as the landlord and James and Kate Taylor as the tenants, it was common ground that the appellant and Ms Avenell rented the premises. A cash bond of $1,400 was paid to John Thornton by the appellant.
The appellant and Ms Avenell initially dealt with John Thornton; however, there were problems dealing with him and so his brother, Andrew Thornton, took over the management of the premises around Christmas 2017. Andrew Thornton entered into a verbal agreement with the accused and Ms Avenell to collect rent. He attended the premises on four occasions – twice to collect payments in person and twice to follow up outstanding payments. The appellant and Ms Avenell were both present on both occasions that rent was collected. No one was home on the third occasion and on the fourth occasion only Ms Avenell was present. Rent was not collected on the last two occasions. The last rental payment made on

16 February 2018 by the appellant was for rent in arrears.
Since entering into the tenancy agreement, the appellant had made modifications to the premises including installing CCTV cameras, a security bollard and a heavier than usual front door.
Relationship status
Parts of Ms Avenell’s evidence, particularly in relation to the status of her relationship with the appellant as at April 2018, was admissible in the case for and against the appellant.
As mentioned earlier the relationship between the appellant and Ms Avenell was strained at the time of the search. The Trial Judge summarised the relevant parts of Ms Avenel’s evidence as follows:
Avenell gave evidence she found out she was pregnant whilst she was living at the premises. She said the pregnancy was unplanned. She suffered from pre-eclampsia. Her daughter was born 5 weeks premature on 18 May 2018. Avenell said that in early April 2018, six weeks before her daughter was born, she was swollen, sore, tired and stressed. Avenell said that Conant spent long periods away from the premises and she did not always know where he was, but it was obvious to her that he was seeing other women.
Avenell said that on 2 April 2018, she was expecting Conant to return home for dinner but he never arrived. She said that was not unusual and she did not think anything of it. Later that night, Avenell received a phone call from the police during which she was told that Conant had been arrested. Avenell said she attended the Elizabeth Police Station to see Conant, but upon her arrival she was told she could not see him. Avenell said she was followed home from the station and so she took detours home.
…
During cross-examination by the prosecutor, Avenell agreed Conant would stay overnight once or twice a week during most weeks from January to April 2018. She agreed that it was Conant’s underpants and tracksuit pants on the floor of the main bedroom but she said that they could have been there for a long time. Avenell agreed Conant’s shirt was in the wardrobe. Avenell was unsure whether Conant had visited her at the premises on 1 April 2018, that is, the day before he was arrested. She said she spoke to him before his arrest and asked him whether he would be home for dinner. Avenell did not recall seeing Conant on 2 April 2018.
(citations omitted)
The appellant said that he had not slept over for some time. The Trial Judge rejected the appellant’s evidence and accepted Ms Avenell’s evidence about this topic.
The Arunta calls
Following his arrest in custody on 5 April 2018, the appellant made numerous phone calls to Ms Avenell. There were 15 calls made within a two-week period, beginning about two weeks after the appellant’s arrest. The Arunta calls were tendered at trial to show the relationship between the appellant and Ms Avenell. In the calls, the appellant asks Ms Avenell to obtain false statutory declarations and rent receipts showing that he was living at other addresses in the months leading up to the search. The calls were not used as evidence of guilt, rather as evidence undermining the credibility and veracity of the evidence given by the appellant.
The defence case
The appellant gave evidence at trial. He said that his relationship with Ms Avenell in 2018 was “a little rocky”, they were “together, but not”. He said he would go over to the Parafield Gardens premises sometimes but he was “all over the place” and seeing other women. He would have arguments with Ms Avenell about whether he was the father of the unborn child. He would go to the premises to check on Ms Avenell and the baby to make sure they were okay and to help pay bills. The appellant admitted he had some clothes and “bits and pieces” at the property.
The appellant said that he last attended the premises around 31 March 2018 and that he had not slept there for a little while. This was also the last time that he spoke to Ms Avenell before his arrest. He said that he had difficulty obtaining her number and so did not speak to her for about two and a half weeks after his arrest.
The appellant said that after he was arrested on 2 April 2018, he called his ex-partner (not Ms Avenell) to ask if he could nominate her address for home detention bail. She told him that it would not be appropriate, so he nominated the Parafield Gardens address as the home detention bail address. He had not spoken to Ms Avenell about this.
The appellant said that he would see Mr Piccolo at the premises pretty much every time he was there. He said that Mr Piccolo had personal property at the address.
Under cross-examination the appellant conceded that, despite the difficulties he was having with Ms Avenell, his primary residence remained the Parafield Gardens address until his arrest. He accepted that the photographs of the main bedroom showed his tracksuit pants on the floor near the bed. He also accepted that some of the male clothing seen hanging in the bedroom wardrobe may have been his. After his release on bail to a different address, he attended the premises and picked up items including clothing.
Grounds of appeal
The appellant relied on three grounds of appeal:
1. The Learned Trial Judge erred in finding that on the date of the alleged offending, 3 April 2018, the appellant occupied the premises in which the firearms were found;
2. The Learned Trial Judge erred at law in engaging in inadequate reasoning, in that the reasons provided by the Learned Trial Judge were internally inconsistent and do not rationally support the ultimate finding of facts; and
3.The verdicts of guilty in respect of counts 1 to 6 are unreasonable and cannot be supported having regard to the evidence.
Chief Justice Kourakis referred all grounds to this Court on the question of permission to appeal.
Ground 1: Whether the appellant ‘occupied’ the premises
To prove possession at trial the prosecution relied on the deeming provision contained in s 6 of the Act. Section 6 substantially reproduces s 5(14) of the Firearms Act 1977 (SA) and in particular s 6(2)(d) of the Act is expressed in almost identical terms to s 5(14)(c) of the 1977 Act. Section 6 relevantly states:
6—Possession of firearms etc
(1)     …
(2)For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if—
(a)     the person has physical possession or control of the item or has the item in the physical possession or control of another; or
(b)     the person has and exercises access to the item; or
(c)     the person controls access to the item; or
(d)     the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the item is found.
(3)     However, subsection (2)(d) does not apply if the person proves that—
(a)     he or she did not know, and could not reasonably be expected to have known, that the item was on or in the premises, vehicle, vessel or aircraft; or
…
(my underlining)
The prosecution alleged that the appellant was a person who occupied, or alternatively, had care, control or management of the premises and thus was deemed to be in possession of the firearms unless he could prove the matters contained within s 6(3)(a) of the Act. The Act does not define the term “occupies” nor what is meant by the expression “care, control or management”. At trial, and on appeal, the issue was whether the appellant either occupied or had care, control or management of the premises at the time the police searched the property.
The method to be applied in construing a statute to ascertain the intended meaning of the word used is well settled. In assigning legal meaning to the words of a provision, the court starts with a consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Consideration of context in its widest sense includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. The purpose of the statute informs the interpretive task throughout. The text of the statute is important, for it contains the words being construed, and a very general purpose may not detract from the meanings of the words. The consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context and purpose of the provision. When a literal meaning of words and the statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of the statute is to be preferred.[1]
[1] R v A2 (2019) 93 ALJR 1106; 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; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.
In R v A2,[2] the High Court considered the approach to be adopted when interpreting a provision in a statute involving criminal offences. Kiefel CJ and Keane J stated:[3]
A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any "loose" construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.
(citations omitted)
[2] (2019) 93 ALJR 1106.
[3] R v A2 (2019) 93 ALJR 1106 at [52].

Edelman J stated:[4]
To allow the context and purpose of a purely criminal provision to give a word a meaning that it would not bear in other contexts is no different from the role that context and purpose play in the interpretation of statutes that concern civil law, or both civil and criminal law. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation, Mason and Wilson JJ observed that "[i]n earlier times" an anxiety about judicial intrusion into the legislative sphere sometimes led courts to adopt literal constructions of provisions that diverged from the meaning that any reasonable person would have understood Parliament to have intended. But it is well established that courts no longer interpret civil statutes that way. Nor do courts employ a different regime of interpretation or construction of statutory words merely because conduct is proscribed as an offence. In any instance of interpretation of intended meaning, the process "must begin with a consideration of the text itself" but, since the intended meaning of words can never be acontextual, the process must also "begin by examining the context”.
When this Court said in Milne v The Queen that "[p]urposive construction does not justify expanding the scope of a criminal offence beyond its textual limits" it was not suggesting the existence of a separate principle of interpretation for criminal statutes that circumscribed the role of purpose or context to operate only within the covers of the dictionaries of the time. The point being made by this Court was that once courts have interpreted the meaning of the words of a provision they cannot expand that meaning in an attempt to give the words a wider effect. It is not open to courts, independently of their interpretation of the statutory words, to "suppose the law-maker present, and that you have asked him this question: Did you intend to comprehend this case?". As McHugh J said in Krakouer v The Queen,a decision cited with approval in Milne:
If conduct of a particular kind stands outside the [meaning of the] language of a penal section, the fact that a Court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than [the meaning of] its language admits.
There might sometimes be a fine line between asking: "In light of its legislative purpose, what would Parliament have intended in these circumstances?" and asking: "Does the intended meaning of the words used by Parliament extend to these circumstances?" But the proper question to ask in statutory interpretation is always the latter. Where the relevant meaning of the words of a statute concerns a criminal offence it is particularly important to respect the difference between the two questions, lest the judiciary create, and apply retroactively, a new criminal offence. …
(citations omitted)
[4] R v A2 (2019) 93 ALJR 1106 at [163]-[165].
Thus, when construing a statute that contains criminal provisions the ordinary rules of statutory interpretation are applied.
The Macquarie dictionary defines the verb “occupy” as meaning:
1. to take up (space, time, etc.).
…
5. to be resident or established in (a place) as its tenant; to tenant.
[7] [2017] SASCFC 156.
[5] (2014) 118 SASR 511.
In construing s 5(14) of the Firearms Act 1977, Kourakis CJ observed in

R v Marafioti[5]
that the danger to the community posed by the unregulated possession of firearms is notorious. Kourakis CJ considered that a purposive approach to the construction of s 5(14)(c) of that Act provided for a wide construction of the concept of “possession”.[6] The same approach was adopted in

R v Becerovic.[7]
[6] (2014) 118 SASR 511 at [24].
In our view a wide construction of the terms of s 6 is appropriate. Section 6, in context, manifests a clear intention to extend the concept of common law possession.
In addition to the textual context and apparent purpose of the provision, it is significant that the effect of establishing that a person occupies certain premises is not to impose criminal liability without more. Proof of a person occupying premises triggers a rebuttable presumption of possession. It effects a reversal of the onus, rather than conclusively establishing possession.[8]
[8] R v Gjergji (2016) 126 SASR 106.
Turning to the interpretation of “occupies’, this expression should be given a wide meaning. That was the approach adopted by the Victorian Court of Appeal, in R v Phung,[9] when construing similar legislation. Vincent JA, in relation to the term “occupied” in the legislation stated:[10]
[9] (2003) 141 A Crim R 311.
[10] R v Phung (2003) 141 A Crim R 311 at [25]-[27].
With respect to the term "occupy", the Privy Council stated in Madrassa Anjuman Islamia of Kholwad v. Municipal Council of Johannesburg:
The word “occupy” is a word of uncertain meaning. Sometimes it denotes legal possession in the technical sense, as when occupation is made the test of rateability; and it is in this sense that it is said in the rating cases that the occupation of premises by a servant, if such occupation is subservient and necessary to the service, is the occupation of his master: R v Spurrell ... At other times “occupation” denotes nothing more than physical presence in a place for a substantial period of time, as where a person is said to occupy a seat or pew, or where a person who allows his horses or cattle to be in a field or to pass along a highway, is said to be the occupier of the field or highway for the purpose of s 68 of the Railway Clauses Act 1845: Dawson v Midland Ry Co ...; Luscombe v Great Western Ry Co ... Its precise meaning in any particular statute or document must depend on the purpose for which, and the context in which, it is used.
…
The word "occupied" in s 5 does not stand alone. It is used in conjunction with "used, enjoyed or controlled" to encompass a wide variety of factual situations. Whether an accused person's connection with premises falls within the provision is, as his Honour instructed the jury, a matter of fact. It was not, of course, to be determined by reference to indicia of occupancy applicable in other contexts. The question posed by Roskill LJ in R v Tao "[W]hat is the mischief against which this section is aimed?" arises here. In that matter, it was the punishment of those who permitted the smoking of cannabis in premises under their control. His Lordship then said:
This suggests that Parliament was intending not that a legalistic meaning should be given to the phrase “the occupier” but a common sense interpretation, that is to say 'the occupier' was to be regarded as someone who, on the facts of the particular case, could fairly be said to be “in occupation” of the premises in question, so as to have the requisite degree of control over those premises to exclude from them those who might otherwise intend to carry on those forbidden activities I have already indicated.
There can be no doubt that the "mischief" with which the legislature was concerned included the trafficking in and possession of drugs of dependence when enacting the relevant provisions of the Drugs, Poisons and Controlled Substances Act. Accordingly, the kinds of connection with premises encompassed by s 5 must be seen to be related to and inextricably linked with the deemed possession which arises once the required occupation, use, enjoyment or control is found to exist.
(citations omitted)
Occupier is a word of uncertain meaning. It must be interpreted in its statutory context and its meaning in other contexts is of limited use. In s 6(2) the word “occupies” does not stand alone and the sub-section must be read as intending to cover the full range of proprietary relations between an individual and premises.[11]
[11] R v Becirovic [2017] SASCFC 156 at [226].
Whether a person occupies premises at a particular time for the purpose of

s 6(2) is a question of fact. A person occupying premises does not cease to be an occupier simply because they may be away from the premises. A simple example is an occupier leaving their premises to attend work, whether for the day or a number of days. Nor does a person’s absence from the premises for a period of time, of itself, necessarily mean they cease to be an occupier. For example, a holiday interstate would again, of itself, be unlikely to mean that the person ceases to be an occupier. However, the position may well be different if the absence is of an indefinite duration.
However, there must usually be a degree of control over the premises. The connection with premises encompassed by s 6(2) must be seen to be related to and inextricably linked with the deemed possession which arises once the required occupation, use, enjoyment or control is found to exist.[12] A mere visitor to the premises, although present at the particular time, would not be sufficient, without more, to establish them as an occupier or indeed having care, control or management of the premises.
[12] R v Phung (2003) 141 A Crim R 311 at [27].
The Trial Judge’s reasons in relation to occupancy
The Trial Judge found the appellant to be an occupier of the Parafield Gardens premises. She highlighted the following matters:
1.The verbal tenancy agreement entered into by the appellant with John Thornton and the $1,400 bond paid;
2.The appellant’s dealings with Andrew Thornton in December 2017 and the last rent payment on 16 February 2018;
3.The requests by Andrew Thornton via text message asking for rent as late as March 2018, where the appellant did not indicate that he was no longer responsible for the rent;
4.The conversation between the appellant and Andrew Thornton discussing the appellant’s desire to purchase the property;
5.The alterations made by the appellant including the installation of hooks on the wall, erection of a safety bollard, placement of screens on the windows and installation of CCTV cameras and one monitor;
6.The appellant’s concession at trial that he considered that the premises remained his primary residence until his arrest. Ms Avenell gave uncontradicted evidence that the appellant was provided with the PIN code to the front door as late as a week prior to his arrest. The PIN code was known to only the appellant, Ms Avenell and Mr Piccolo;
7.The appellant was in a long-term relationship with Ms Avenell and they were expecting a child and sharing a pet. The Arunta calls two weeks after the search of the premises confirmed the closeness of that relationship;
8.Ms Avenell’s evidence that the appellant stayed overnight once or twice a week during most weeks between January and April 2018. This evidence directly contradicted the appellant’s evidence that he had not stayed overnight for some time prior to April 2018. The Trial Judge found that Ms Avenell’s evidence was supported by the appellant’s concession that his track pants were on the main bedroom floor on the day of the search. While Ms Avenell said the pants could have been there for some time, there were numerous other items of male clothing in the wardrobe in the main bedroom which the appellant admitted might have belonged to him. There was also male shower gel in the bathroom. The Trial Judge rejected the appellant’s evidence and accepted the evidence of Ms Avenell on this topic. There is no challenge on appeal to those findings; and
9.The appellant provided the Parafield Gardens address as a proposed home detention bail address and returned to the premises after being granted home detention to another address in June to collect his belongings.
In reaching this conclusion the Trial Judge considered and accepted that the relationship between the appellant and Ms Avenell was strained in the months preceding the search by reason of the appellant’s “dalliances” with other women, a less than settled lifestyle and the appellant’s staying some nights at other properties with other women. The Trial Judge accepted that the appellant and

Ms Avenell had fallen behind in rent but found that those matters did not ultimately detract from a finding that the appellant occupied the premises on 3 April 2018, albeit it was not his exclusive residence.
Having found that the appellant occupied the premises as at 3 April 2018, the Trial Judge then considered whether the appellant had established on the balance of probabilities that he did not know, and could not reasonably be expected to have known, that the firearms were on or in the premises.
The Trial Judge found that the appellant was not an impressive witness who understated his connection with the premises and whose evidence was in part directly contradicted by Ms Avenell. She found that his credibility was significantly undermined by the Arunta calls. The Trial Judge was not persuaded on the balance of probabilities that the appellant did not know the firearms located in the crate buried underground in the garage were on the premises.
In reaching this conclusion, the Trial Judge had regard to the presence of

Mr Piccolo and Mr Nisbet at the premises just prior to the search and their close proximity to the firearms in the crate and the starter pistol. She also considered

Mr Piccolo’s ready access to the premises in the months preceding the police search.
However, the Trial Judge was persuaded on the balance of probabilities that the appellant was not aware of the starter pistol at the base of the palm tree. She considered it likely that it was on the person of either Mr Piccolo or Mr Nisbet who rapidly disposed of it after becoming aware of the presence of the police at the premises. The location of a firearm in the open and in close vicinity to both men supported this conclusion.
Appellant’s submissions
It was common ground that the appellant, the day before the police search of the premises, had been arrested on unrelated matters. While he had applied to a Magistrate for home detention bail at the premises (the Magistrate ordered a home detention report be obtained), at the time of the police search he remained in custody. The appellant contended that, in those circumstances, he was not an occupier of the premises on 3 April 2018 because he had no ability to exercise his legal right to evict anyone on the property and could not communicate with

Ms Avenell.
The appellant submitted the following circumstances are indicative of him no longer being an occupier of the house as at the date of the offending:
1.He was in custody at Yatala Labour Prison as at 3 April 2018;
2.There was a reduction in the frequency of his staying at the property to one or two nights a week;
3.The deterioration of his relationship with Ms Avenell; and
4.He ceased paying rent in February 2018; the rent paid on 16 February 2018 was in arrears.
The appellant contended that the weight given by the Trial Judge to the evidence of the tenancy agreement, the alterations to the property made by the appellant, and the discussion he had with Andrew Thornton in early 2018 about purchasing the property, should have been minimal. The appellant conceded that he had a firmer connection as an occupant of the premises at the time that he entered into the tenancy agreement, paid the bond and when he resided at the house more frequently and the relationship was not as strained. However, he submitted, the Trial Judge was required to look at the question of occupancy at the date of the offending, rather than placing too much weight on circumstances that had since changed. The alterations to the house may have been indicia of an intention to remain at the premises, but that was at the time of the changes being made. Given that the alterations were made in December 2017 and January 2018, her Honour was not entitled to place much weight on whether this was evidence of occupancy.
Respondent’s submissions
The respondent submitted that the fact that the appellant was in custody as of 3 April 2018 did not detract from his status as an occupant. The appellant had only been in custody 24 hours before the search was conducted. It was the respondent’s submission that the tenancy agreement, the relationship, the frequency of visits, the belongings found in the house, the home detention application to that address and the collection of the appellant’s belongings from the house are all consistent with him being an occupier. The respondent supported the findings of the Trial Judge.
Discussion
In our view, there was a strong prosecution case that the appellant, as at the time of the police search, still occupied the premises for the purposes of s 6(2). He was a joint tenant of the premises and as such had legal rights regarding the premises. He was still responsible for paying the rent, although the rent was in arrears. While his relationship was strained, he was still staying at the premises once or twice a week. He admitted that he considered the premises his primary residence. His clothing, or at least some of his clothing, was at the premises. The appellant applied to the Magistrate on 3 April 2018 for home detention bail to the premises. At the time the appellant made his application for bail there was a prospect bail would be granted. That is, as at 3 April 2018, when the police searched the premises, his intention was to return and reside at the premises. As it transpired he was unsuccessful in obtaining bail for some time. This was not known as at 3 April 2018.
The appellant’s involvement in making improvements to the premises and his expressed interest, although a few months before his arrest, in purchasing the premises are factors the Trial Judge was entitled to take into account. The Trial Judge correctly addressed the question of whether he was an occupier as at

3 April 2018. When he was finally granted bail, he returned to the premises to retrieve his belongings.
The Trial Judge had regard to the fact that other persons had access to the premises on 3 April 2018. However, she found, correctly in our view, that their presence did not detract from the position that the appellant still, for the purposes of s 6, occupied the premises.
We reject the appellant’s submissions. The Trial Judge correctly addressed the evidence. Not only was the finding open that the appellant was an occupier of the premises as at 3 April 2018, in our view it was correct.
It is unnecessary for us to consider the alternative prosecution case that the appellant had care, control or management of the premises.
We would dismiss Ground 1.
Ground 2: Irreconcilable findings
The appellant submitted that the Trial Judge erred by engaging in inadequate reasoning in that the reasons provided do not rationally support the ultimate finding of facts.[13] The appellant complained about the significant tension between two findings of her Honour. The first finding held:
… I consider it highly unlikely that other persons such as Nisbet and Piccolo would have brought firearms onto the premises after the accused was arrested and applied for home detention bail at the premises. There was too high a risk of detection. …
[13] JGS v The Queen [2020] SASCFC 48 at [204]-[209].
The second finding held that the starter pistol the subject of count 7 was likely:
… on the person of either Piccolo or Nisbet, and upon becoming aware of the presence of the police…either Piccolo or Nisbet rapidly disposed of the starter pistol...
The appellant submitted that the reasons are inadequate in that they fail to articulate why, on one analysis, Mr Nisbet and Mr Piccolo would not bring firearms onto the premises after the appellant applied for home detention bail and then, on another analysis, bring a firearm (and ammunition) onto the premises in the exact same circumstances. The appellant submitted that the first finding identifies the unlikelihood of Mr Nisbet and Mr Piccolo bringing firearms onto the premises after the appellant’s arrest and bail application was made. The second finding identifies the likelihood of Mr Nisbet and Mr Piccolo bringing the starter pistol onto the premises after the appellant’s arrest and disposing of the pistol and ammunition once they were alerted to the presence of the police. The appellant submitted that the tension was irreconcilable and that the Trial Judge’s reasons fail to address the tension between the two findings.

We reject the appellant’s submissions. The Trial Judge clearly explained how she arrived at the impugned findings.
The Trial Judge first determined that the appellant was an occupier. Having made that finding the onus of proof shifted to the appellant. He bore the onus of proof in relation to establishing that he did not know, and could not reasonably be expected to have known, that the firearms were on or in the premises.
The circumstances in which the starter pistol was found are completely different to the findings of the firearms buried in the pit. Accepting that the starter pistol was close to Mr Piccolo and Mr Nisbet says nothing about the appellant’s liability and responsibility for the firearms in the pit.
The Trial Judge reasoned that it was unlikely that persons such as Mr Nisbet and Mr Piccolo would bring firearms onto the premises to be buried after the appellant had been arrested and applied for home detention bail at the premises. The Trial Judge reasoned:
There was too high a risk of detection. Avenell was aware of the bail application several hours before police attended to search the premises. Avenell also immediately made Piccolo aware of the bail application at 12.36pm and left a message for Nisbet at 3.11pm to call her. Nisbet was at the premises when police attended at 5pm. The premises was known to the authorities, and thus it would have been apparent to others that there was a real likelihood of those firearms being detected by the authorities. Nor do I think it likely that other persons could or would have secreted firearms at the premises in the days, weeks or months preceding Conant’s arrest without his knowledge given my earlier finding that Conant spent more time at the premises than he conceded in evidence, and his concession that it was his primary residence. It is also to be noted that Piccolo and Nisbet were Conant’s associates. Piccolo had introduced Conant to Thornton, and assisted Conant make modifications to the house and Nisbet was Conant’s drug dealer.
The fact that the firearms were buried stood in stark contrast to the location of the starter pistol. The starter pistol was located in the open and in close vicinity to where Mr Piccolo and Mr Nisbet were first seen by the police. There is no suggestion that any of the persons present at the time the police searched the premises expected the police to arrive at that time. That Mr Piccolo or Mr Nisbet may have been surprised by the arrival of the police at that time says nothing about why they would be involved in burying firearms at premises that were likely, at some stage, to be assessed for home detention bail or raided by the police. The finding of the Trial Judge that the starter pistol was on the person of Mr Piccolo or Mr Nisbet, who disposed of it once they became aware of the presence of police, was a logical finding.
We agree with the respondent’s submissions that the very nature of the state in which the firearms the subject of counts 1 to 6 were found, compared to the circumstances in which the starter pistol the firearm the subject of count 7 was found, provided an ample basis for the different findings and verdict of the
Trial Judge. Rather than indicating an inconsistency in approach, the reasoning of the Trial Judge demonstrates that she had regard to the whole of the evidence and the onus of proof.
We would dismiss Ground 2.
Ground 3: Unsafe and unsatisfactory
The principles that apply when determining whether evidence at trial is sufficient to support a conviction are well settled. The majority of the High Court in M v The Queen stated:[14]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(citations omitted)
[14] (1994) 181 CLR 487 at 493.
In Pell v The Queen, the High Court stated:[15]
[15] [2020] HCA 12 at [43]-[45].
At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:
whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt.
(Footnote omitted; emphasis in original)
As their Honours observed, to say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.
(citations omitted)
The appellant contended that the verdicts of guilty in regards to counts 1 to 6 are unreasonable and cannot be supported by the evidence. The appellant submitted that the Trial Judge’s reasons identify persons other than the appellate, namely Mr Nisbet and Mr Piccolo, who were in temporal and physical proximity to the firearms buried in the pit. It was further submitted that there was evidence supportive of Mr Nisbet and Mr Piccolo having an interest in, and access to, illegal firearms. This, the appellant submitted, meant that the evidence was incapable of excluding a reasonable hypothesis consistent with the innocence of the appellant.
We reject the appellant’s submissions. The starting point of analysis was whether, at the time of the police search of the premises, the appellant occupied the premises. We have already dealt with that aspect of the evidence. The

Trial Judge, when assessing the issue of occupancy, had regard to the presence of

Mr Nisbet and Mr Piccolo. The fact that they were present at the premises at the time the police arrived was not irrelevant to the question of whether the appellant was an occupier at that time but it was not of great weight. The Trial Judge, correctly in our view, found that the appellant was an occupier. As discussed earlier, the onus then fell on the appellant to establish that he did not know or could not reasonably have known that the firearms were buried at the premises. Again, the question of the presence of Mr Nisbet and Mr Piccolo was relevant to that question but the appellant bore the onus of proof. The Trial Judge found that the appellant failed to satisfy her on the balance of probabilities that he did not know that the firearms the subject of counts 1 to 6 were not on the premises. The

Trial Judge provided the following reasons:
1.The unlikelihood that Mr Nisbet and Mr Piccolo would bring firearms onto the premises after the appellant applied for home detention bail;
2.The evidence of a round of ammunition in the linen press and the shotgun barrel located in open view on the veranda militate against the appellant being unaware of firearms at the premises;
3.The heavy fortification of the premises by the appellant; and
4.The accused was not an impressive witness who understated his connection with the premises and who gave directly contradicted evidence about that topic, as well as his personal items found in the main bedroom.
Having made those findings, the Trial Judge reasoned:
Ultimately, it was for the accused Conant to persuade the Court on the balance of probabilities that he did not know that the firearms the subject of the charges were at the premises. I reject Conant’s evidence that he did not know of the four firearms secreted in the crate buried in the hole in the garage. I am not persuaded on the balance of probabilities that he did not know those firearms were at or on the premises for the reasons set out above. In reaching that conclusion I have carefully considered the evidence and counsel’s submissions in their entirety. I have had close regard to the presence of Piccolo and Nisbet (men associated with drugs, firearms and an OMG) at the premises and, in close proximity, to the firearms in the crate and the starter pistol. I have also borne in mind Piccolo’s ready access to the premises in the days, weeks and months preceding the police search on 3 April 2018. I have not overlooked that there was no forensic evidence directly linking Conant to the firearms and ammunition in the buried crate or their packaging. Notwithstanding those matters, I am not persuaded on the balance of probabilities by Conant’s evidence or any other evidence that he did not know that the firearms located in the crate buried in the ground were at or on the premises on 3 April 2018, for the reasons set out above.
It is clear that the Trial Judge, when deciding whether the appellant had discharged the onus of proof had regard to the temporal and physical presence, as well as their backgrounds, of Mr Nisbet and Mr Piccolo. The finding that the appellant had not discharged the onus of proof was open to the Trial Judge. The appellant was then deemed to be in possession of the firearms the subject of counts 1 to 6 beyond a reasonable doubt. It was not then necessary for the Trial Judge to further consider whether the presence of Mr Nisbet and Mr Piccolo in temporal and physical proximity raised a reasonable hypothesis consistent with the innocence of the appellant. To put that another way, the operation of ss 6(2) and (3), as found by the Trial Judge, established the appellant’s possession of the firearms beyond a reasonable doubt.
On review of the evidence the matters raised by the appellant do not support the submission that the Trial Judge must have had a reasonable doubt. It was open to the Trial Judge to find the appellant guilty of counts 1 to 6. In our view the

Trial Judge’s conclusions are correct.
We would dismiss Ground 3.
Orders
We grant permission to appeal on all grounds but order that the appeal be dismissed.