May v R

[2012] NSWCCA 250

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	May v R [2012] NSWCCA 250
Hearing dates:	16 October 2012
Decision date:	30 November 2012
Before:	McClellan CJ at CL at [1] Johnson J at [35] Bellew J at [36]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW - appeal - conviction - conviction for possession of firearm contrary to Firearms Act 1996 - where firearm found in bedroom of appellant - where appellant denied knowledge of firearm - whether trial judge failed to give reasons that complied with s 133 of the Criminal Procedure Act - reasons of trial judge sufficient - whether verdict was unreasonable and cannot be supported by the evidence - where burden on appellant to prove that she did not know, or could not reasonably be expected to know, about firearm - verdict not unreasonable - appeal dismissed.
Legislation Cited:	Firearms Act 1996 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	AK v Western Australia [2008] HCA 8; 232 CLR 438 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 R v Gardiner [2006] NSWCCA 190; (2006) 162 A Crim R 233 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category:	Principal judgment
Parties:	Michelle May (Appellant) Crown
Representation:	Counsel: K Averre (Appellant) S Dowling (Crown) Solicitors: Purcell Felton Lawyers (Appellant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2009/322559
Decision under appeal	Date of Decision: 2011-07-28 00:00:00 Before: Finnane DCJ File Number(s): 2009/322559

Judgment

1. McCLELLAN CJ at CL: The appellant was convicted after trial of one count of possessing an unauthorised firearm contrary to s 7(1)of the Firearms Act 1996 ("the Act"). The trial proceeded without a jury. There is no application for leave to appeal the sentence.

1. There are two grounds of appeal against the conviction:

Ground 1: the trial judge failed to give reasons that complied with s 133 of the Criminal Procedure Act 1986.

Ground 2: the verdict is unreasonable and cannot be supported by the evidence.

Facts

1. In December 2009 the appellant was the lessee of a three bedroom house where she lived with three of her children aged 9, 16 and 18 respectively. Another son had been in custody since 2006.

1. The appellant's home was a two storey townhouse. Entry to the living area was from the street. The appellant's bedroom was located upstairs at the front of the house.

1. On 20 December 2009 police attended the appellant's home in relation to a stabbing incident. After the appellant (who was charged in relation to that matter) had been removed from the premises, the police established a crime scene and the property was searched. During the search the police located a blue box containing a 12 gauge Mossberg pump action repeating shotgun in the appellant's bedroom and under her bed.

1. Neither the appellant's fingerprints nor DNA were located on the gun or the box.

1. The appellant participated in a very brief record of interview and the following exchange occurred:

"Q: OK I am going to ask you a number of questions about a firearms offence. My questions and any answer you give ..

A. Firearms.

Q: ... will be recorded on this machine as they're asked and ...

A: Oh well, I've got nothing to say about that, cause I ain't got no firearms.

Q: No dramas. Your rights were explained to you by the custody manager again.

A: Yeah, yeah. Yep, yep.

Q: Yep

A: Yep. Yep.

Q: And you were given a copy of those rights?

A: Yeah. I think they're in there or in the other, yeah, yeah.

Q: Do you want to exercise any of your rights right now?

A: Yeah I want to ring me son to get a lawyer, to get a lawyer here.

Q: You want a lawyer here?

A: Yep."

1. Other evidence was tendered at the trial that established that the appellant had lived at her property for many years.

1. The weapon was a prohibited firearm and the appellant was not authorised to possess or use it.

1. There was evidence that the appellant's son was a dangerous criminal who used guns and associated with other dangerous criminals who used guns, including a man named Mirko Coffen who was seen outside the appellant's premises on the day of the offence.

1. The appellant did not give evidence at her trial.

1. There was also evidence given by the appellant's daughter that although her mother's belongings were in the main bedroom, her mother usually slept on the sofa in the sitting room and one of the children slept in the main bedroom. There was also evidence that the appellant had been away from home for four days between 3 December 2009 and 7 December 2009 when she was hospitalised with a broken arm. The daughter gave evidence that various people had keys to the house and sometimes her brother's friends would come to the house. The witness said that she did not see any associates of her brother's go into her mother's bedroom. She never saw the gun case and had never looked under the bed.

The reasons of the trial judge

1. The trial judge recited the evidence led in the Crown case and referred to the appellant's hospitalisation and her absence from the premises. His Honour observed that there was a lack of dust on the gun case, which supported an inference that the gun had not been under the appellant's bed for very long.

1. His Honour referred to the evidence of the daughter that various people came to the house sometimes and that she vacuumed the appellant's bedroom but had never seen the gun. His Honour found that due to the age of the appellant's children who lived at the premises it was extremely improbable that they were in possession of the gun. His Honour also noticed that the appellant's eldest son was in gaol at the time but also that the known criminal Coffen was seen by the police near the house on the day the appellant was arrested.

1. The trial judge referred to the lack of the appellant's, or any known person's, fingerprints or DNA on the gun case. His Honour also referred to the appellant's denial of any knowledge of the firearm when she was interviewed by the police and noted that the investigating policeman gave evidence that he could not remember where he obtained information about the presence of the gun. His Honour said:

"It is clear the information did not come from the accused. She did not say to him, there is a firearm under the bed. Regardless of what the source was, a firearm was found. Subsequent to its finding she was confronted about its presence, and I have seen a short video extract of an interview in which she indignantly denies and appears to be quite surprised that there was a firearm, indignantly denies that she had anything to do with a firearm, and demanded that they call a lawyer."

1. The trial judge found that the appellant was the tenant of the premises and was, in the relevant sense, the occupier. His Honour noted that the only evidence led in the defence case was that of the daughter and documentary evidence relating to the appellant's hospitalisation.

1. It is apparent from his Honour's reasons that he directed himself in accordance with s 89 of the Evidence Act 1995. His Honour also referred to the elements of the offence as provided by s 7 of the Act and the definition of possession set out in sections 4 and 4A of the Act. His Honour referred to the burden of proof carried by the appellant under s 4A and the standard of proof required to discharge that burden.

1. Section 7 provides as follows:

"(1) A person must not possess or use a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit.

Maximum penalty: imprisonment for 14 years.

(2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person:

(a) uses a prohibited firearm or pistol for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the prohibited firearm or pistol, or

(b) contravenes any condition of the licence.

(3) If, on the trial for an offence under this section, the jury is not satisfied that the accused is guilty of the offence but is satisfied on the evidence that the person is guilty of an offence under section 7A, it may find the person not guilty of the offence but guilty of an offence under section 7A, and the accused is liable to punishment accordingly."

1. Sections 4 the Act relevantly provides:

"(1) In this Act:

...

possession of a firearm includes any case in which a person knowingly:

(a) has custody of the firearm, or

(b) has the firearm in the custody of another person, or

(c) has the firearm in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.

Note. See also section 4A."

1. Section 4 A further provides that:

"(1) Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that:

(a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or

(b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or

(c) on the evidence before it, the person was not in possession of the firearm.

(2) In this section, premises means any place, vehicle, vessel or aircraft."

1. His Honour ultimately resolved the matter after considering the burden of proof carried by the appellant. His Honour said:

"Nobody has given any evidence to show that and I cannot be satisfied that she did not know and could not be reasonably expected to have known the firearm was in or on the premises.

The fact that she was not there for four days is not to the point. It is improbable in the extreme in my opinion even though she gave keys to her children, and perhaps to the man who was her companion, that someone could bring a firearm into the premises without her knowing. If it be said she might have known there was a blue case, but she did not know anything about a firearm being in it, that might be, but there is no evidence that she knew there was a blue case, nor is there any evidence that she turned her mind to anything about the contents of anything. The evidence establishes that the firearm was in her premises, the premises were leased and occupied by her and under her control and I am not satisfied that she did not know or could not reasonably be expected to have known that the firearm was in or on the premises and therefore I find her guilty."

Ground 1

1. Section 133 of the Criminal Procedure Act 1986 provides for a trial by judge alone. Subsection 2 provides that the judge must include in his or her judgment the principles of law that the judge has applied and the findings of fact on which the judge relied.

1. The requirements of a trial judge sitting alone as to the giving of reasons were recently considered by the High Court in AK v Western Australia [2008] HCA 8; 232 CLR 438. A trial judge is required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve any issues of law and fact that need to be determined [85].

1. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Kirby P discussed the obligations of a trial judge in the following terms at 259:

"This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues."

See also Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386.

1. Section 4A of the Act places an onus on an accused person to satisfy the court on the balance of probabilities of the matters enumerated in s 4A(1): R v Gardiner [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [109]. Otherwise the firearm "is taken to be in the possession of a person in occupation of the relevant premises."

1. In Gardiner at [106] I said of these provisions:

"Section 4A(1)(b) of the Firearms Act is clearly aimed at the situation where the Crown could not prove knowledge to the requisite standard but the accused cannot adequately explain his alleged lack of knowledge of the presence of the weapons."

1. It was submitted by the appellant that notwithstanding the fact that she did not give evidence, the lack of knowledge on her part was explained in the evidence admitted at the trial but the trial judge failed to address the evidence of that explanation in his reasons. It was submitted that the trial judge should have directed his mind to whether there was evidence to satisfy the court on the balance of probabilities that the appellant did not know, nor could reasonably be expected to know, of the presence of the weapon. It was submitted that "there was no consideration of the question of the defence of the appellant not being in possession [sic]."

1. It was further submitted that the evidence that the appellant sought to rely on was both direct and circumstantial. Direct evidence was said to be found in the denials of knowledge made to the investigating police officer when he interviewed the appellant. The circumstantial evidence was said to be the absence of the appellant from the premises for a period of time, the fact that she did not sleep in the bedroom and the presence of a known criminal outside the premises on the relevant day.

1. I reject these submissions. Consideration of his Honour's reasons reveals that each of these matters was identified by his Honour and considered. His Honour concluded that the evidence did not show, and his Honour could not be satisfied, that the appellant did not know or could not be reasonably expected to have known the firearm was on the premises. Although his Honour appreciated that the appellant had denied knowledge of the firearm in her interview with the police (evidence which his Honour did not accept to the relevant standard) his Honour emphasised that there was no evidence in relation to the question of whether the appellant could be reasonably expected to have known of the presence of the weapon. His Honour had identified all of the significant evidence and the issues that were raised in the proceedings and expressed a conclusion in relation to them. To my mind there is nothing more that could have been asked of his reasons.

1. Ground 1 must fail.

Ground 2

1. It will be apparent from my earlier remarks that I am not persuaded that the verdict was unreasonable. Indeed, to the contrary. If it had been necessary I would have concluded that the proviso should be applied, there being no miscarriage of justice.

1. The legislature has framed an offence in respect of which a person in occupation of premises where an unauthorised firearm is located will be criminally liable unless they can, on the balance of probabilities, discharge the burden provided in s 4A(1) of the Act. That subsection requires the occupier to establish on the balance of probabilities that they did not know or could not be reasonably expected to know of the presence of the weapon. This requires more than evidence from which a possible inference could be drawn. The accused must satisfy the trial court that he or she either did not know or could not be reasonably expected to know of the presence of the weapon.

1. I have reviewed the entirety of the evidence in the present case. If I had myself been required to determine the matter I would have reached the same conclusion as the trial judge. The verdict was not unreasonable and no miscarriage of justice has occurred.

1. In my opinion the appeal should be dismissed.

1. JOHNSON J: I agree with McClellan CJ at CL.

1. BELLEW J: I agree with McClellan CJ at CL.

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Decision last updated: 29 January 2013