Police v Harris
[2009] QMC 3
•26 October 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Harris [2009] QMC 003
PARTIES:
POLICE
(prosecution)
v
LAWRENCE GEORGE HARRIS
(defendant)
FILE NO/S:
MAG171365/08(2)
DIVISION:
Magistrates Court
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Mareeba
DELIVERED ON:
26 October 2009
DELIVERED AT:
Mareeba
HEARING DATE:
24 September 2009
MAGISTRATE:
Braes TJ
ORDER:
Defendant is convicted
CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – WEAPONS – POSSESSION – having knowledge of a weapon – having ability to gain custody of a weapon
COUNSEL:
Hafner (sgt) for prosecution
Barnes (sol) for defendant
SOLICITORS:
Prosecution for themselves
The Defendant Lawrence George Harris appears before me charged by way of Notice to Appear that between the 13th day of July, 2008 and 22nd day of July, 2008 at Chillagoe he was found in possession of the part of the carcass of an animal namely cattle which animal was suspected on reasonable grounds of having being stolen and further that between the 13th of March, 2008 and the 1st of August, 2008 at Chillagoe he unlawfully possessed a weapon namely a category B centrefire rifle and further that between the 13th of March, 2008 and the 1st of August, 2008 at Chillagoe he possessed an unauthorised explosive namely forty-nine 7.62 calibre bullets.
The Defendant entered a plea of guilty to the first charge of being found in possession of part of the carcass of an animal. To the other two charges he says that he is not guilty.
At the hearing he was legally represented by Mr Barnes, Solicitor. Sergeant Hafner appeared for the prosecution.
In order for me to find the Defendant guilty of the charges I must be satisfied that all of the elements of the charges have be proved to the standard required, that being beyond a reasonable doubt. The onus of proving those elements and of negativing any excuse raised to such standard is of course upon the Prosecution. Should the Prosecution fail to prove those elements to the standard required then I must of necessity acquit the Defendant of the charge.
At the commencement of the hearing I was informed by the parties that the only element to be determined by me in respect of the charges was whether the Defendant was in possession of the firearm and ammunition. All other elements of the offences charged were admitted.
THE ISSUES TO BE DETERMINED BY ME ARE:
1. Did the Defendant have possession of the rifle and ammunition.
THE EVIDENCE
Plain Clothes Senior Constable Doyle
On the 1st of August, 2008 Constable Doyle went to a mining lease property near Chillagoe known as the Red Cap Lease. He was in company with Detectives Malone and Whittle. The purpose of the officers going to the Red Cap Lease was to execute a search warrant which had been issued under the Police Powers and Responsibilities Act 2000. The search warrant was not put into evidence and I do not know the purpose for which it was issued. On arrival at the property it was apparent that no one was present. Detective Malone left the property while Detectives Doyle and Whittle remained. While Detective Malone was away Detectives Doyle and Whittle had a bit of a look around and then when Detective Malone returned they conducted a search of the property which was recorded on a video camera. During the search a quantity of meat was found as well as a rifle, some ammunition and a bag of cut tobacco. Documents identifying the Defendant and a Monty Lee-Chew were found in the premises. The officers took possession of the meat, tobacco, rifle and ammunition and left the property. The tobacco was found in the section called the tarped area where the Defendant and his partner had their bed. Some of the meat was in an esky being corned and some was in a small freezer. The esky and the freezer were in what might be called the annex area between the caravan and the tarped area. The rifle and ammunition were found in a cupboard at the end of the caravan where the TV and DVD player were. Mr Harris was located and at the Chillagoe police station he participated in a record of interview. Mr Lee-Chew was also interviewed later in respect of the matter, the officers satisfying themselves that Mr Lee-Chew was no longer an occupant of the Red Cap Mining Lease.
Detective Doyle approached the Defendant for a further interview however on this occasion the Defendant declined to be interviewed. The Defendant did provide Constable Doyle with the names of some witnesses to be interviewed in respect of the matter; they being Ms Jodie Fitzgerald (the partner of Mr Lee-Chew) and Mr Dave Fitzgerald (the father of Ms Jodie Fitzgerald).
On the 5th of May 2009 Plain Clothes Constable Millgate then relieving at the Chillagoe police station was directed to approach Jeanie Lyall and Lawrence Brumby to obtain statements in respect of the matter. Constable Millgate approached Ms Lyall and Mr Brumby however they declined to provide a statement to police. Both Ms Lyall and Mr Brumby subsequently gave evidence for the Defendant.
During the course of the hearing I had the benefit of viewing the video of the search and listening to the record of interview conducted with the Defendant. Subsequent to the hearing I also listened to the C90 cassette, Exhibit 3, which is a short recording by Detective Doyle of his initial attendance at the Red Cap Mining Lease.
Later the Defendant agreed to participate in a record of interview. Throughout the record of interview the Defendant protested his innocence repeating that he knew nothing about a gun and that he hadn’t committed any offence. He told Detective Doyle “I know nothing about the gun.I didn’t even know there was a gun there.That is the honest truth.” So far as the meat found by the officers was concerned he told Detective Doyle that a fellow who he could not or would not name came to Red Cap and that this fellow wasn’t selling the meat but he was short of money so he gave him $50 or $60 for the meat. He was not going to dob anyone in. It was obvious that the meat was not from a butcher shop. He said that this was a week or a week and a half ago. The evidence of Detective Doyle was that the meat appeared to have been butchered in the last day or two as some of it was frozen and some was not yet quite frozen. This appeared clearly on the video recording. During the interview the Defendant confirmed that he and his partner lived out in the tarped which was near the caravan. He said that they had been living there since April/May. He said that they went to town every fortnight and that Monty (Mr Lee-Chew) hadn’t been there for at least a week or a week and a half, that he had been in town with his girl friend. The Defendant confirmed that he had been in the caravan to get food and watch DVDs. Detective Doyle put to the Defendant that when he spoke to him at 11 Atherton Street, Chillagoe the Defendant came straight out and said that the gun was not his. Obviously it appeared that Detective Doyle was attempting to make the point in the interview that the Defendant had mentioned the gun prior to Detective Doyle mentioning it. However the Defendant said that he knew of the gun as it had come out of Detective Doyle’s mouth. Detective Doyle appeared to drop that particular line of questioning from then. The Defendant again confirmed “that’s right I didn’t know the gun was there”. The Defendant also agreed in answer to a question by Detective Doyle that he had never seen the gun out there.He didn’t know there was a gun there. The Defendant then said that the last time he had seen Monty was yesterday when he had come out to change a tyre to go fishing with his boss Bill Price.
Clearly the Defendant was not being honest with Detective Doyle. He was no doubt concerned about being found in possession of the beef and the cut tobacco and did not want to take the blame for the weapon. The Defendant’s dishonesty became apparent during his evidence when he admitted that he was aware of the weapon as it has been brought to the premises by Mr Lee-Chew and Ms Fitzgerald, the rifle having been given to them by Ms Fitzgerald’s father, Dave Fitzgerald. By his own admission the Defendant lied to Detective Doyle notwithstanding his protestation that the information he was giving in the interview was the “honest truth”.
Detective Doyle agreed under cross examination that he had not found anything in the caravan that had any markings of Mr Harris on it and he had not found anything in the tarped area that had any reference to Mr Lee-Chew on it.
Ms Fitzgerald
Ms Fitzgerald has been in a relationship with Mr Lee-Chew for three years, they have one child with another on the way. She is 18 years of age.
She said that in July 2008 she was staying with her mother in Chillagoe and that Mr Lee-Chew had gone to Kowanyama fishing. She got word that there had been a raid at Red Cap. The person who had informed her indicated to her that she was being blamed for dobbing to the police. She said that the Defendant came to her mother’s place to ask if she had dobbed on him to the police. She said that the Defendant was talking about a rifle and asking when Mr Lee-Chew was going to be back. The Defendant informed her that the police had found a rifle out there, she asked whose rifle it was, and he replied that it was not his. He said that he didn’t know whose it was. The Defendant then asked her if she could take the blame for the rifle but she replied that she couldn’t because of her infant son Damian.
The Defendant also said that the rifle was not Monty’s; that he, the Defendant, was not going to take the blame for it and that she would have to take the blame for it. About this time the baby started to cry and she indicated to him that if he wanted to discuss the matter further he could come back later. The Defendant left and she has not spoken to him since. As a result she got in touch with Mr Lee-Chew who returned to Chillagoe that night. The following day Mr Lee-Chew went to the police station about the matter.
Under cross-examination she confirmed that she was not aware of any guns kept at The Red Cap property. She also said that they had moved out of Red Cap one or two months prior to the raid and that they were living in town and that Mr Lee-Chew would go back every now and then to check on the place.
Mr Barnes for the Defendant put to her that her father had given the rifle to her. She said again that she didn’t know anything about the gun. She did say that Mr Lee-Chew did return to Red Cap some afternoons but not to live.
Ms Stewart
Ms Stewart is the mother of Ms Fitzgerald. She said that at about 3pm on the 1st of August 2008 the Defendant came to her house in Chillagoe. She went out with her daughter to see the Defendant. He wanted her daughter to take the blame for the weapon found at Red Cap. She said that he had been caught with a gun, his finger prints were all over it, he said that he wanted Ms Fitzgerald to take the blame as none of his family could take the blame as they already had history. In reply Ms Stewart said that Ms Fitzgerald was having nothing to do with it. Ms Stewart then said the Defendant begged Ms Fitzgerald but she said no. As the baby was crying they then left to return into the house.
Ms Stewart was not cross-examined about her evidence of the Defendant saying that he had been caught with a gun and that his finger prints were all over it. Mr Barnes did put to Ms Stewart that she and Ms Fitzgerald had in fact asked the Defendant to take the blame for the rifle, Ms Stewart replied that that statement was so incorrect and that she had never heard such garbage.
The same proposition that she and Ms Fitzgerald asked the Defendant to take the blame for the gun was not put to Ms Fitzgerald.
Mr Lee-Chew
Mr Lee-Chew said that the Red Cap Mining Lease was owned by his boss and that he and Ms Fitzgerald had moved there in about November of 2007. The Defendant and his partner were moved from Almaden and asked whether they could move on to the Red Cap Lease as well. Mr Lee-Chew obtained permission for this to happen and the Defendant and his partner moved onto the property. The arrangement was that the Defendant and his partner helped pay for the food and he provided diesel for the generator. He said that after the child, Damian, was born on the 13th of March 2008 they moved into town and he was going backward and forwards to Red Cap checking up. He was shown photographs of the weapon and asked if he had ever seen it before. He said that he had seen it on the table at Red Cap. He had finished work for the day and gone home when he saw the rifle sitting on the table. He picked it up and had a look then put it back in its case and told the Defendant that “we have to get rid of it”. He said that he had not long lost his own gun licence and got rid of his own rifles and didn’t want to get into any further trouble. He said that he had simply got into his car and left and did not speak to the Defendant again about the matter. He had not seen the rifle prior to that day and he had not seen it since.
Under cross-examination it was put to him that the rifle had come from Ms Fitzgerald’s father. He denied that allegation and said that Mr Barnes must be mistaken. Mr Barnes put to him that he was aware that the rifle was there and that he had control over it but Mr Lee-Chew said that he was not aware that it was there and had no control over it.
Mr Barnes also put to Mr Lee-Chew that he had offered the Defendant money to take the blame for the weapon. This also was denied. Mr Lee-Chew was not cross-examined on his evidence about how the weapon came to be on the property other then it being put to him that the weapon was given to him and Ms Fitzgerald by her father.
Defendant
The Defendant gave evidence and said that the gun was taken to the Red Cap Mining Lease by Mr Lee-Chew and Ms Fitzgerald. That Ms Fitzgerald had wanted a rifle for protection from snakes, and her father Dave Fitzgerald had given the rifle to them. The Defendant said that on the 2nd or 3rd of August (after the raid) he saw Mr Lee-Chew and asked him what he was going to do about the rifle. Mr Lee-Chew said that he couldn’t take the blame as he had already had charges and fines on him for a rifle. The Defendant responded that he was not going to take the blame for it either as it was not his. He said that Mr Lee-Chew and Ms Fitzgerald had taken the gun to Red Cap.
The Defendant said that the only time he went into the caravan was to get tin food out of one of cupboards. He said that that was not very often and he wouldn’t spend time in there unless he was watching a DVD or something.
The photographs show that the caravan has a room at each end. The TV/DVD player is situated in the room at the end of the caravan where the cupboard containing the weapon was.
The Defendant said that Ms Fitzgerald had moved out of Red Cap but Mr Lee-Chew was backward and forwards and would sometimes stay overnight. The Defendant said that Ms Fitzgerald had moved out before the baby was born. The Defendant confirmed that the gun was not his and that it belonged to Mr Lee-Chew, Ms Fitzgerald and Ms Fitzgerald’s father.
The question to be determined by me is of course not who might own the weapon but whether or not the Defendant had possession of it.
The Defendant confirmed that he and his partner Geraldine Ned went to Ms Stewart’s place to talk to Ms Fitzgerald about the matter; and that they were speaking to Ms Fitzgerald at the fence and Ms Stewart came out. He said that this was a day or two after the raid at Red Cap and that he wanted Ms Fitzgerald and Mr Lee-Chew to own up for the rifle. He said that Ms Stewart said that Ms Fitzgerald was too young and that she was not going to take the blame for anything. The Defendant responded that someone had to take the blame for it and it was not going to be him.
Under cross-examination the Defendant confirmed that Mr Lee-Chew had moved from the property and that he would return to the property occasionally and that he would occasionally stay over night. Generally he would visit the property, check things out and then leave again. The Defendant said that Mr Lee-Chew and Ms Fitzgerald had vacated the property, that they were not residing there permanently, that they were coming and going, that they were not permanent there after the baby was born.
Under cross-examination the Prosecutor framed a question to the effect that Mr Lee-Chew was still responsible for the premises and later put to the Defendant that he was effectively sub-leasing the premises from Mr Lee-Chew. I gained the impression that the Defendant become somewhat fed up with the questioning and simply acknowledged every question that was put to him.
Overall the question of when Mr Lee-Chew and Ms Fitzgerald moved out permanently and where they then took up residence and the arrangement in respect of the Red Cap Mining Lease is somewhat unclear. However, as a finding of fact, I find that Mr Lee-Chew and Ms Fitzgerald were residing at the Red Cap Mining Lease under the authority of Bill Price, the owner of the lease and Mr Lee-Chew’s employer; that towards the end of 2007 Mr Lee-Chew obtained permission for the Defendant and his partner to move on to the property; that about the time that the child Damian was born in March of 2008 Mr Lee-Chew and Ms Fitzgerald moved from the Red Cap Mining Lease to reside in Chillagoe; that Mr Lee-Chew would return to the Mining Lease occasionally to check on the property and occasionally he would stay overnight. There is no evidence before me as to the authority of the Defendant so far as the property is concerned, however, it is I believe a safe assumption that the Defendant assumed something of a caretaker role and would have acted to repel anyone who attempted to enter the property or to remove any of the movable property that was there unless they had authorisation from Mr Lee-Chew or Mr Price. The Defendant and his partner clearly had free range and access to the property.
The Defendant confirmed that he initially told police that he didn’t know anything about the gun being there. He said that he had lied to the police to protect Mr Lee-Chew. The Defendant denied to Sergeant Hafner that Mr Lee-Chew had found the weapon on the table at the camp as he said he had and that he had told him to get rid of it. The Defendant admitted that he had gone to speak to Ms Fitzgerald and Ms Stewart. He denied that he had said anything about his finger prints being all over the gun. He admitted that he had asked Ms Fitzgerald to take responsibility for the gun as it was her gun and she should take responsibility for it.
Under re-examination to a question from Mr Barnes “did you know the gun was in the cupboard” the Defendant replied yes. The Defendant replied “I knew Monty had it the cupboard yes”. Mr Barnes then asked the Defendant whether he knew the gun was in the cupboard at the time of the raid. The Defendant replied that he didn’t know that the gun was in the cupboard at that time that he had thought that Mr Lee-Chew might have taken the gun away. Mr Barnes persisted and asked the Defendant “when was the last time you had seen the gun before the raid” to which the Defendant replied “before Monty (Mr Lee-Chew) went to Kowanyama a couple of days or a week before that”. This passage of evidence would indicate that the Defendant knew that the weapon was in the cupboard and that he had seen it very recently just prior to the Defendant going on the fishing trip to Kowanyama.
The evidence as I have found it is that Mr Lee-Chew and Ms Fitzgerald vacated the property sometime in March 2008. I find the Defendant’s evidence to be unreliable, he confirmed before me under oath that he had lied to the police and that he was actively trying to find someone to take the blame for the weapon. In the record of interview the defendant contradicted himself saying on the one hand that Mr Lee-Chew had not been to Red Cap for a week or a week and a half, yet on the other that he had been there the day before the raid to change a tyre. He clearly had knowledge that the weapon was in the caravan; he clearly had access to the caravan, and whatever was within it.
Ms Ned
Ms Ned is the partner of 14 years of the Defendant and was residing with him at the Red Cap Mining Lease. She said that they had moved on to the mining lease in March of 2008 and that they were living there with Mr Lee-Chew and Ms Fitzgerald. Mr Lee-Chew is her nephew. She said that she was not aware that there was a gun on the property. She appeared to be unclear as to whether or not Mr Lee-Chew and Ms Fitzgerald had moved out of the property. She said that they were staying there for one or two weeks and then would go back into town, that all of the baby’s belongings were still on the property and that they were still living in the caravan. She did confirm that she and the Defendant would go into the caravan to get food and to watch a DVD. She was not aware that the police had found a gun on the property but she remembered the conversation which took place at Ms Stewart’s place. She and the Defendant had gone to Ms Stewart’s residence looking for Mr Lee-Chew and Ms Fitzgerald. Mr Lee-Chew was however in Kowanyama. She said the Defendant told Ms Fitzgerald if she could take the blame for the gun because the gun wasn’t belonging to him. She said that Ms Stewart said that she was not going to take the blame for it, that she was too young to go to jail.
Under cross-examination Ms Ned again confirmed that she didn’t know about the gun and that she had not seen the gun. Ms Ned then did an about-face and said in fact that she had seen the gun out there before and that she had seen Mr Lee-Chew clean it there one day. Mr Barnes had through his questioning of the witnesses and the evidence of the Defendant and Ms Ned indicated that contrary to the other evidence that Ms Ned had remained in the car when the Defendant spoke to Ms Fitzgerald and Ms Stewart that she had in fact stood with the Defendant at the fence during the conversation.
Under cross-examination from Sergeant Hafner Ms Ned agreed that she waited for the Defendant in the car while he spoke to Ms Fitzgerald and Ms Stewart. In re-examination she said to Mr Barnes that she was in fact standing at the fence. Although nothing appears to hinge particularly on the evidence of Ms Ned I find her evidence to be unreliable.
Ms Lyall
Ms Ned is the aunty of Ms Lyall. On the day of the raid which was the 1st of August 2008 people in town were talking about the raid at Red Cap. She said that on that afternoon at about 5.00 – 5.30 she spoke with Ms Fitzgerald at Jennifer Sellars place. She asked Ms Fitzgerald if she had heard that there had been a raid at Red Cap and commented if Mr Lee-Chew got into trouble he was likely to go jail, to which Ms Fitzgerald replied that she was not going to let that happen and that she would tell them the gun was given to her by her father. She did not appear to be aware that Mr Lee-Chew and Ms Fitzgerald had moved from the property. She said that as far as she was aware they were still there and that they went backward and forward all the time.
Mr Brumby
Mr Brumby is the partner of Ms Lyall. He said that he had heard about the raid at Red Cap and that there was a gun involved. He confirmed Ms Lyall’s evidence that they told Ms Fitzgerald that if Mr Lee-Chew was caught with a gun he would go to jail. He said that he knew that the gun was not the Defendant’s and that Ms Fitzgerald had told them that she was to take the blame for the gun for Mr Lee-Chew as she didn’t want him to go to jail.
The evidence of Ms Lyall and Mr Brumby regarding the conversation where Ms Fitzgerald is said to have indicated that she would take the blame for the gun and say that it had been given to her by her father to save Mr Lee-Chew going to prison was not put to Ms Fitzgerald, she therefore did not have the opportunity to comment on those allegations. The thrust of the evidence of Ms Lyall and Mr Brumby appears to be to bring that conversation to the Court but in circumstances where it was not put to Ms Fitzgerald it is of little value and assistance in determining the issue which is to be determined by me.
The Weapons Act 1990 Schedule 2 defines possession -
“possession includes in relation to any thing—
(a) having the thing in one’s custody; and
(b) having the thing under one’s control in any place, whether or not another has custody of the thing; and
(c) having an ability to obtain custody of the thing at will; and
(d) having a claim to custody of the thing which the claimant has committed to the custody of another, notwithstanding that the thing is temporarily not in the control of the person having such claim.”
The Explosives Act 1999 Schedule 2 defines possess-
“possess an explosive includes-
(a) have custody or control of the explosive; and
(b) have an ability or right to obtain custody or control of the explosive.”
“Custody” as used in the definition of possession is not defined. Custody may be regarded as holding property under one’s control. “Control” is not defined but may be regarded as to dominate, command; exert control over.
I have not had to consider the definition of unauthorised explosive or the register of authorised explosives as all elements of the charge other than possession are admitted.
Neither Mr Barnes or Sergeant Hafner addressed me on the definitions that I have referred to here. Cases on “possession” abound, generally with reference to the law relating to possession of drugs.
I don’t believe that I know the full story about the gun. It would seem unusual that if Mr Lee-Chew’s story is correct that after having told the Defendant to get rid of the gun he was not aware that the gun was still on the property. Ms Fitzgerald’s father was not called to give evidence and there was no evidence as to the presence of finger prints on the gun or the ammunition. Ultimately I do not believe that these questions are critical to the determination of the primary issue. The witnesses, have, it would appear, been looking to pass the buck of responsibility for the gun from one to the other. The evidence before me appears to be littered with lies, half truths and uncertainties.
The evidence is however I believe clear so far as the issue to be determined by me is concerned.
The question to be determined by me may be broken down further;
(a) Was the Defendant aware the weapon and ammunition were in the caravan? and
(b) Did the Defendant have the ability to obtain custody of them at will.
I am satisfied beyond reasonable doubt that the Defendant knew the rifle and ammunition were in the caravan, and that he had, at the very least the ability to obtain custody of them.
I find the defendant guilty as charged.
0
0
0