R v Ahmad (No 1)

[2024] NSWDC 676

District Court

New South Wales

Medium Neutral Citation:	R v Ahmad (No 1) [2024] NSWDC 676
Hearing dates:	25 – 28 November 2024, 3 December 2024
Date of orders:	13 December 2024
Decision date:	13 December 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Verdicts of Guilty to all counts on the indictment, at [162].
Catchwords:	CRIMINAL PROCEDURE — Trial — Judge-alone — Reasons of trial judge — 6 counts on indictment — Possession of commercial quantity of methylamphetamine; possession of .22 long rifle calibre cartridges; possession of prohibited firearms — Extended definition of possession in the deeming provision s 4A of the Firearms Act 1996 — Common law definition of possession.
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 132, 133, 166 Drug Misuse and Trafficking Act 1985 (NSW) s 3, 25(2), 29 Firearms Act 1996 (NSW) ss 4A, 7(1), 74(3) Weapons Prohibition Act 1998 (NSW) s 34(1)
Cases Cited:	AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Fleming v R (1998) 197 CLR 250 He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 Joseph Sultana v R (1994) 74 A Crim R 27 R v Tang [2008] HCA 39; (2008) 237 CLR 1 Shepherd v The Queen (1990) 170 CLR 573
Category:	Principal judgment
Parties:	Rex (Crown) Mohammad Ibrahim Ahmad (Accused)
Representation:	Counsel: B Ng (Crown) B Eurell (Accused) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Just Defence Lawyers (Accused)
File Number(s):	2022/00391590
Publication restriction:	N/A

JUDGMENT

1. The accused, Mohammad Ibrahim Ahmad, also known as Jordan Issa, stood trial in a judge-alone trial before me between 25 November 2024 and 3 December 2024.

2. The accused pleaded Not Guilty upon his arraignment with respect to 6 counts in the indictment which was presented. Count 1 alleges possession of not less than a commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. Counts 2, 3 and 4 each allege possession of .22 long rifle calibre cartridges which were located in three different areas of a motor vehicle alleged to have been driven by the accused. Each of these counts charges an offence contrary to s 74(3) of the Firearms Act 1996. Count 5 alleges possession by the accused of a prohibited weapon, namely a .22 long rifle calibre firearm magazine, which was also located in the vehicle. This is pursuant to s 34(1) of the Weapons Prohibition Act 1998. Count 6 alleges possession of a prohibited firearm, namely a .22 calibre GEVARM E-1 self-loading rifle without being authorised to do so by a licence or permit. This is contrary to s 7(1) of the Firearms Act 1996.

3. A joint application was made for the trial to proceed as a judge-alone trial pursuant to s 132 of the Criminal Procedure Act 1986.

4. Section 133 of the Criminal Procedure Act 1986 sets out the provisions which are applicable to a verdict by a single judge on the question of the guilt of an accused person. Subsection (2) requires 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 relies.

5. The requirements of a trial judge sitting alone as to the giving of reasons were considered by the High Court in AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438. A trial judge is required to summarise the crucial arguments of the parties, to formulate the issues for decision, and to resolve any issues of law and fact that need to be determined. To comply with ss 133(2) and 133(3) of the Criminal Procedure Act1986 and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.

FUNCTION

6. As the accused has pleaded Not Guilty and elected to proceed to a trial by judge alone it becomes my duty and responsibility to consider whether the accused is Guilty or Not Guilty of each of the charges and return my verdict according to the evidence. As the tribunal of fact I am required to make findings of fact from the evidence that has been presented and then apply the relevant legal principles to those findings of fact. The findings of fact must be drawn only from the evidence that has been presented. There can be no intrusion into that finding by considerations of sympathy, bias, prejudice or any other emotion.

BURDEN AND STANDARD OF PROOF

7. It is convenient to start with some general principles.

8. The burden of proof of the guilt of the accused rests upon the Crown. That onus rests upon the Crown in respect of every element of each of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but it is for the Crown to prove his guilt and to prove it beyond reasonable doubt. The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt.

9. The onus which rests upon the Crown is to prove the elements of the charge beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before I can convict the accused of any of the separate counts in the indictment. It is vitally important to remind myself that the accused must not be found Guilty if any one of the essential ingredients or elements of the charges has not been proved to my satisfaction beyond reasonable doubt. It follows that if I am left unable to decide whether the Crown has proved its case beyond reasonable doubt in relation to any such element or ingredient, even though I might suspect the accused of that matter, the accused is entitled to the benefit of that doubt and I must in such circumstance find him Not Guilty.

10. The accused is being tried jointly with respect to six separate offences in the indictment. The joinder of these six counts is a matter of convenience. There are six identified circumstances of alleged misconduct in respect of which the trials are being held jointly. The evidence with respect to an individual count must be considered separately notwithstanding that there is a substantial amount of commonality required to be considered with respect to the evidence.

11. In a criminal trial there is only one ultimate issue: Has the Crown proved the guilt of the accused with respect to an individual count beyond reasonable doubt? If the answer is “Yes” the appropriate verdict is Guilty; if the answer is “No” the verdict must be Not Guilty.

12. Although an accused person is entitled to give or to call evidence in a criminal trial there is no obligation upon him to do so. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences which have been charged. The accused bears no onus of proof in respect of any fact that is in dispute.

13. The accused is presumed to be innocent until and unless I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of a particular offence charged. Therefore it follows that the accused is entitled to say nothing and to make the Crown prove his guilt to the high standard which is required.

14. In the present trial the accused did not give evidence. The decision of the accused not to give evidence cannot be used against him in any way at all in my determination of the verdict. The decision not to give evidence cannot be used as amounting to an admission of guilt. I cannot draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. That fact cannot be used to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way to strengthen the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

INFERENCES AND CIRCUMSTANTIAL EVIDENCE

15. I may in my role as the judge of the facts draw inferences from direct evidence. I may only draw an inference adverse to the accused from proven facts if such inference is a reasonable inference that can properly be drawn from those facts.

16. There are, however, some surrounding circumstances in the present matter from which the Crown seeks that inferences be drawn from established facts to draw a conclusion as to the existence of further facts. To the extent that such aspects of the case rely upon circumstantial evidence, I remind myself of some fundamental principles.

17. How convincing and reliable a circumstantial inference may be depends upon the number and nature of the basic facts relied upon by the Crown when considered as a whole. The question as to whether all of the evidence in a particular respect leads to an unavoidable conclusion requires careful consideration.

18. As will become clear when I detail the factual circumstances leading up to the arrest of the accused, all of the items in respect of which he is charged with possession were located in a vehicle alleged to have been being driven by the accused.

19. It is a fundamental and critical issue for determination as to whether or not the accused was driving the vehicle immediately prior to his apprehension by police. The Crown relies upon a combination of surrounding circumstances to support the conclusion beyond reasonable doubt that the accused was driving the vehicle.

20. I remind myself, however, that I need to be satisfied beyond reasonable doubt of the existence of any fact or circumstance which is critical to a finding of guilt. I give myself a so-called Shepherd direction in that regard (Shepherd v The Queen (1990) 170 CLR 573).

WITNESSES NOT CALLED

21. In the course of the evidence at trial a number of other persons were identified as having some connection with the relevant motor vehicle. A man named Julio Torres was identified as the registered owner of the motor vehicle. Another person, Ziad Ahmad, was identified as having his DNA on the trigger area of the prohibited firearm found in the vehicle. Neither of these men were called in the trial.

22. The fact that there was no evidence from either of those witnesses is a matter which may be taken into account in determining whether the Crown has proven the guilt of the accused beyond reasonable doubt. I remind myself that I am not invited to guess what either witness would have said if they had been called. I must not do that. However, where the Crown bears an onus to prove guilt beyond reasonable doubt, I am entitled to take into account that there was no evidence from those identified persons in deciding whether or not there is a reasonable doubt about the guilt of the accused.

UNRELIABLE EVIDENCE

23. The critical issue as to whether the accused was driving the relevant motor vehicle relies, in the Crown’s submission, on various surrounding circumstances. However, one of the circumstances relates to a purported identification of the accused by Detective Davidson. I will detail his evidence when I deal with the facts. However, to the extent that his evidence is properly described as “identification evidence” there is a need for caution in accepting that evidence of identification as it may be unreliable.

24. I direct myself as to the potential for that evidence being unreliable on the basis of the short time in which the purported identification took place, namely as the vehicle drove past the stationary location of the Detective, and the fact that the officer had only seen a photograph of the accused on one occasion earlier that day. I remind myself of the need for caution in determining whether to accept that identification evidence and in considering the weight to be given to it. I remind myself of the special caution which is necessary based on the experience of the criminal courts over many years.

WITNESSES

25. It is for me to assess the witnesses called in the trial and to decide whether they are reliable. Reliability depends upon two different but sometimes overlapping considerations. One is the witness’s honesty and the other is the witness’s accuracy. The honesty of a witness involves considering not only what the witness said or perhaps did not say, but also the impression the witness has made on me in my capacity as the tribunal of fact.

MARKULESKI DIRECTION

26. Given that there are multiple counts in the indictment, I remind myself that I must give separate consideration to the individual counts. However, I am entitled to bring in a verdict or verdicts of Guilty on some counts and Not Guilty on other counts if there is a logical reason for that decision.

27. However, if I were to find the accused Not Guilty on any individual count, particularly if that was because I had doubts about the reliability of the evidence regarding that count, I would have to consider how that conclusion affected my consideration of the remaining counts.

CONSCIOUSNESS OF GUILT

28. At the time the accused was apprehended by police on Patterson Street, he attempted to smash the mobile phone in his possession by hitting it into a brick wall. Before I can use that conduct as indicating a consciousness of guilt, I must be satisfied that he did the act deliberately. I direct myself that I must take care with how I approach the task of deciding what significance, if any, this action has. I am entitled to take it into account as evidence of the accused’s guilt, but only if I find two further things. Being able to take it into account as evidence of the accused’s guilt does not, however, suggest that it could prove guilt on its own. It can be considered along with all of the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt.

29. The first of the further things that must be considered is whether the action relates to some significant circumstance or event connected with the offences charged.

30. Second, I must find that the reason the accused tried to smash the phone is because he feared that the phone, in working order, would implicate him in the commission of the offences for which he is now on trial.

31. I must remember, however, that people do not always act rationally and that conduct of this sort, that is smashing the phone, may sometimes be explained in other ways. For example, he may have tried to smash the phone out of panic; he might have been trying to escape an unjust accusation; he might have been endeavouring to protect some other person; or seeking to avoid a consequence unrelated to the offence.

32. If I think that the action of trying to smash the phone may have been done for some reason other than to avoid being implicated in the commission of the offences, or any of them, for which he is now on trial, then it cannot be used as evidence of his guilt. In that event, I should put the actions to one side and focus my deliberations upon the other evidence in the case.

ELEMENTS OF CHARGES

33. As I have already indicated, the first count in the indictment alleges supply of a prohibited drug. The elements of that offence are that the accused supplied a substance and that the substance was a prohibited drug. The substance in question was 363.8 grams of methylamphetamine with a purity of 46.1%.

34. Supply is defined in s 3 of the Drug Misuse and Trafficking Act and includes having in possession for the purpose of supply. Section 29 of the Drug Misuse and Trafficking Act 1985 deems that possession of not less than the trafficable quantity of a prohibited drug is taken to be in his possession for the purpose of supply.

35. The common law concept of possession is applicable. I remind myself of the approach outlining the necessity for exclusive possession as described by the High Court in He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523. While the Crown does not have to prove that the accused had knowledge of the specific type of drug. In the circumstances of the present matter it is incumbent upon the Crown to prove that the accused had actual knowledge of the presence of the relevant container in the motor vehicle. Such relevant knowledge or belief with respect to the contents may be inferred from consideration of the surrounding circumstances, bearing in mind the caution to be exercised in drawing an inference against an accused.

36. With respect to the possession of the identified ammunition in Counts 2, 3 and 4, and also with respect to the possession of the magazine in Count 5, the Crown must establish the common law concept of possession.

37. However, with respect to Count 6 relating to possession of a prohibited firearm, the Crown relies upon the definitions of possession contained within the Firearms Act 1996. In particular, it relies upon the extended definition in s 4A of that Act.

EVIDENCE AT TRIAL

38. At the commencement of the trial, Agreed Facts were tendered as Exhibit #1. Those Agreed Facts relevantly identified the accused, Mohammad Ahmad, as also being known as Jordan Issa. Items located during a search of the black Volkswagen Amarok Utility which had purportedly been driven by the accused were identified as relevantly relating to each of the respective counts in the indictment as well as two summary possession charges relating to illicit drugs before this court pursuant to s 166 of the Criminal Procedure Act 1986. The Agreed Facts avoided the necessity of chemical analysis being established with respect to the methylamphetamine, the subject of Count 1.

39. The Agreed Facts similarly identified the various items in Counts 2 to 6, relevantly falling within the necessary definitions in the Firearms Act 1996 and the Weapons Prohibition Act 1998. The Agreed Facts also indicated that the accused was not the holder of any licence or permit which would have rendered possession of the items seized being lawful.

40. The Agreed Facts further established that the black Volkswagen Amarok had been purchased at auction on 5 December 2022 by Nigel Ross-Barlow and that the registration had been transferred into the name of Julio Torres on 16 December 2022.

41. The first witness called was Detective Senior Constable Andrew Davidson. He gave evidence that he worked at the State Crime Command, Drugs and Firearms Squad and that he was rostered to assist in locating a person of interest, Jordan Issa, on 28 December 2022.

42. Detective Davidson gave evidence that he viewed a photograph of Jordan Issa and his partner, Michelle Earsman, and was provided with two addresses being Unit 6/1, Drinkwater Lane, Edmondson Park, and Unit 3/33 Churchill Crescent, Concord. Detective Davidson parked his vehicle in the Concord Library carpark where he was able to observe the premises at 33 Churchill Crescent. While parked in that location, the black VW Amarok drove past Detective Davidson’s location. He said: “Through the front windscreen and side passenger window, I noticed a male driver who I described as bald head, long black beard, fair skin, medium build, wearing a white shirt… I now know this male was Jordan Issa.”

43. The Detective also described having observed the passenger who he described “as Caucasian appearance, blonde hair, thin build, wearing a black shirt. I now know the female as Michelle Earsman.” Detective Davidson described the vehicle having driven past his stationary vehicle and then parked a short distance away on Curtin Place, directly outside the unit building 33 Churchill Crescent, Concord. A map of the location was tendered as Exhibit #2. He saw Earsman get out of the vehicle and walk towards the front of 33 Churchill Crescent. He took a photograph of the stationary VW and of Earsman walking away from the vehicle. The photograph and enlargements from it were tendered as Exhibit #3.

44. Detective Davidson then saw the VW Amarok do a U-turn on Curtin Place before re-parking outside 33 Churchill Crescent. He observed Earsman walk back to the vehicle for about 20 seconds when she appeared to be talking through the passenger window. She was then observed to walk back to the front entrance of 33 Churchill Crescent and the Amarok drove away turning right onto Churchill Crescent. Detective Davidson followed in his vehicle. He described the Amarok turning right onto Wellbank Street, left onto McNamara Avenue, and then left into Patterson Street. He then read from his statement:

“I observed vehicle DF80QU park on the northern kerb outside 51 Patterson Street, Concord. I observed Issa exited the vehicle. I continued on Patterson Street and conducted a U-turn further down the road. About 20 seconds later, I passed vehicle DF80QU. However could not locate Issa.”

45. Detective Davidson then received a message over the police radio advising that Issa was walking along Patterson Street away from the vehicle. Detective Davidson drove further along Patterson Street and did another U-turn close to McNamara Avenue before pulling up alongside the kerb outside 73 Patterson Street. The accused, Issa, was walking towards where the vehicle driven by Detective Davidson had parked. Detective Davidson got out of the vehicle and told Issa that he was under arrest.

46. The Detective gave evidence of the detail of the arrest during which Issa was said to have resisted police. He was physically restrained by a number of police before being hand-cuffed. During the course of the arrest, the accused repeatedly smashed the mobile phone in his hand against a brick wall.

47. The keys to the VW Amarok were not located on Issa’s person. Detective Davidson ascertained the vehicle was locked and conducted a search along the northern kerb of Patterson Street. On the grass next to the footpath entry to a house at 63 Patterson Street, Detective Davidson located the key to the VW Amarok together with a $2 coin and a clear resealable bag containing white crystals.

48. After unsuccessfully endeavouring to unlock the Amarok with the electronic key, Detective Davidson opened the vehicle manually with the physical key recessed into the fob. A search of the Amarok was then undertaken. A bundle of 46 still photographs were tendered as Exhibit #4 and a composite video recording became Exhibit #5. It is unnecessary for present purposes to set out the detail of that search which ultimately gave rise to expert opinion evidence on behalf of the defence with respect to the prospect of cross-contamination or secondary transfer of DNA.

49. An extensive cross-examination of Detective Davidson established that he had never previously met either Jordan Issa or Michelle Earsman. His ability to recognise or identify either of those persons was restricted to his having seen a single photograph at the squad meeting before going to the Concord area. The detective was asked to mark on a copy of Exhibit #2 where he was actually parked in the library carpark. The marked copy of the map became Exhibit #2A. Detective Davidson said that the vehicle driven by the person he identified as the accused drove past him at approximately 5 kph.

50. The Detective was then cross-examined in detail regarding him following the Amarok. He said he was turning on to Patterson Street when the Amarok stopped. Just precisely what that phrase meant or the distance that he was away from the Amarok when it parked outside 51 Patterson Street was not the subject of any additional questioning. Detective Davidson then indicated that he drove past where the Amarok was parked. He described that he “overshot” the vehicle. Detective Davidson then said that he drove past the parked location of the Amarok to the next cross street, Flavelle Street, where he did a U-turn shortly after the intersection. His best estimate was that it took about 20 seconds before he turned around, during which time he had lost sight of the driver. He was not cross-examined about the statement in his evidence-in-chief that he had “observed vehicle DF80QU park on the northern kerb outside 51 Patterson Street Concord. I observed Issa exited the vehicle.”

51. As Detective Davidson drove back down Patterson Street and past the Amarok, he received the radio message that Jordan Issa was walking along the northern footpath on Patterson Street.

52. The Detective was cross-examined about what he had communicated to other officers about what he had observed about the driver. He was asked at TT28:

“Q Might you have communicated to them that you thought it was possible the driver was Jordan Issa?

A From what I saw, I was confident it was Jordan yes – Mr Issa.

…

Q What you’re saying to his Honour is that the person you had seen in the car resembled a person you thought was Jordan Issa?

A Correct, yes.”

53. The Detective agreed in cross-examination that when he saw the accused walking towards 75 Patterson Street he thought that was the person who had been driving the vehicle. He agreed he had not seen the accused walk from the vehicle to the position near 75 Patterson Street. The Detective said the time he spotted him after doing the U-turn was in between those positions.

54. He agreed he did not see the accused discard the car keys.

55. There was then detailed cross-examination about the use of latex gloves in the course of the cursory search of the vehicle and the subsequent seizure of various items. The ultimate point sought to be established in cross-examination was the suggestion that there was only one change of latex gloves by the searching officer. The Detective gave evidence that he had changed his gloves in accordance with his statement, namely between each seized exhibit. He conceded that in the cursory search, he had not changed his gloves other than after going through the tray and before moving to the front of the cab. He was taken to the detail of touching his watch and various other items whilst wearing the latex gloves.

56. The video recording of the search was played and stopped with considerable appropriate questioning regarding items being touched without the latex gloves being changed. That included the key fob that was found on the grass adjacent to 63 Patterson Street and also a key which according to Detective Follington had been found in the possession of the accused. The video also illustrated the Detective touching the door handle to the vehicle. It is unnecessary for present purposes to number each of the individual items that were demonstrated as having been touched while wearing an unchanged pair of gloves.

57. Particular cross-examination focused on the way in which items in a black RM Williams leather bag were touched by the searching police officer. While acknowledging that he had put his arm inside the bag and retrieved the driver’s licence and bank card from the side pocket, Detective Davidson repeatedly said that he did not remember touching the firearm. Whilst conceding that his arm had gone into the bag, Detective Davidson said: “I’m saying I don’t think I touched the firearm. I didn’t touch the firearm.” The cross-examination ultimately established that various of separate seized exhibits did not have a glove change between handling them. In re-examination the black RM Williams bag was tendered as Exhibit #6.

58. The next witness called was Detective Senior Constable Howard Perng. He was similarly attached to the Drug and Firearms Squad. The Detective gave evidence that he became aware that Detective Davidson had “potentially” sighted the accused and Earsman near their residential address at 33 Churchill Crescent, Concord. Detective Perng was advised that Earsman was seen in the Ute before she walked towards 33 Churchill Crescent. Detective Perng, accompanied by Detective Burdett, drove to the vicinity of Patterson Street Concord where they saw the VW Amarok parked outside 51 Patterson Street. There was no one in the vehicle.

59. As they drove along Patterson Street he saw a male walking along the northern kerb to his right. He did a U-turn and parked in an easterly direction, that is on the northern side of Patterson Street. He then saw Detective Davidson approach the accused from the vicinity of outside 75 Patterson Street. He then saw Detective Burdett walk towards the accused and Detective Davidson and observed a struggle. In due course the accused was hand-cuffed.

60. While police were dealing with the accused, Michelle Earsman walked along Patterson Street. After initially denying who she was, she claimed to be looking for her dog. Detective Perng’s evidence-in-chief concluded with him identifying that the unit at 33 Churchill Crescent was the residence of Michelle Earsman.

61. In cross-examination he gave evidence that he and his partner on the day were in the vicinity of Five Dock when they got the call indicating a potential sighting of Michelle Earsman and the accused. They had travelled the relatively short distance from Five Dock to Concord. He subsequently received radio communication that the Amarok had been sighted in Patterson Street.

62. The next witness was Detective Senior Constable Alexandra Burdett. She gave evidence that when they drove into Patterson Street she did not initially notice the black Amarok. She said she saw a male walking up the street who she believed was Jordan Issa. They had driven past him and done a U-turn and driven back down. She described their vehicle driving in a westerly direction before doing the U-turn.

63. As Detective Burdett approached Detective Davidson and the accused, she saw the accused smashing the mobile phone in his hand against the brick wall. Assisted by the third officer, Detective Perng, the accused was physically restrained and placed under arrest. The mobile phone was observed smashed. Photographs of it had been taken by Detective Davidson and were included in Exhibit #3.

64. There was no cross-examination.

65. The next witness was Detective Senior Constable Jamie Rizzeri. He was advised that the accused had been arrested at Patterson Street, Concord and he travelled to the location arriving at about 4:20 pm. He was advised that the vehicle being driven by the accused was a short distance away on Patterson Street and that a number of items had been located. He was present when a search of that vehicle was undertaken and recorded by video. The recording of the search was undertaken by Detective Follington.

66. Detective Rizzeri was advised that there was a firearm in the black RM Williams bag. He put on a pair of fresh disposable latex gloves before handling the firearm and removing it from the bag. He was also led through a subsequent search of the Amarok and the seizure of a variety of suspected drugs and other items.

67. In cross-examination he acknowledged that portions of the search as described had not been video-recorded. Detective Rizzeri was cross-examined in fine detail with respect to the removal of the shortened firearm from the black bag. The circumstance of Detective Burdett applying exhibit seizure tape with ungloved hands was the subject of particular questioning.

68. The cross-examination focused on the potential secondary transference of DNA between the firearm in the black bag and the bank card and licence card handled with the same gloves. Detective Rizzeri acknowledged that when searching any item there is always an inherent risk of secondary transference occurring. He ultimately acknowledged that he handled multiple exhibits using one set of gloves.

69. In re-examination he explained his practice of wearing two pairs of gloves and changing the outer gloves.

70. The next witness called, initially on the voir dire, was Senior Constable Christopher Harvey. He is attached to the Ballistics Investigation Section and holds expert qualifications with respect to forensic ballistics. He specifically identified a number of video clips referred to in his statement. These had been downloaded from the mobile phone in the possession of the accused and which he had smashed against a brick wall when he was arrested. The statement by Constable Harvey was provisionally admitted as Exhibit #7.

71. He ultimately took an image of a screenshot from one of the video files and a photographic image of the firearm seized from the black bag in the Amarok. He prepared a chart highlighting the points of similarity between identified parts of the firearm both in the screenshot image and in the photo of the seized firearm. An objection to the opinion of the expert, inferentially that it was the same weapon, was developed by reference to facial recognition and facial scanning cases including R vTang [2008] HCA 39; (2008) 237 CLR 1 and Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588. Following detailed submissions, the Court reserved on the question of the admissibility of such an expert opinion.

72. However, in due course, a careful perusal of the report from Senior Constable Harvey indicated he did not express an actual opinion of the type objected to. It was common ground that such an opinion or conclusion was a matter for the tribunal of fact. However, after further discussion, the taking of the photographs and the highlighting of the points of similarity was not objected to and the report was dealt with as evidence in the trial.

73. A second expert report with respect to video footage of the late Michelle Earsman brandishing a firearm which was downloaded from a phone said to be hers, in which the opinion was expressed that it was a different weapon to the one located in the Amarok, became Exhibit #8. The three video files downloaded from the phone which had been smashed by the accused became Exhibits #9A, 9B and 9C, while the footage obtained from the phone said to be Michelle Earsman’s became Exhibit #10A, 10B and 10C.

74. The next witness called by the Crown was Ms Alexandra Summerell, a Forensic Biologist at the Forensic and Analytical Science Service (FASS) DNA Laboratory. Her expert report became Exhibit #11. It identifies both by photograph and narrative report the location and identification of DNA profiles on various items seized from within the Amarok. The photographic material is contained in Exhibit #12.

75. Positive DNA was identified on a swab taken from a magazine butt consistent with a magazine for the shortened firearm located in the black bag. The profile was a mixture originating from at least three individuals. Michelle Earsman and Jordan Issa could not be excluded as contributors to the mixture. The largest correlation was from Michelle Earsman in respect of whom it was 100 billion times more likely to have originated from her and two unknown, unrelated individuals, rather than originating from three unknown, unrelated individuals in the Australian population. With respect to the profile originating from Jordan Issa and two unknown, unrelated individuals, it was 25 million times more likely than originating from three unknown, unrelated individuals. If the profile originated from both Earsman and Issa and a single unknown, unrelated individual, the likelihood was 100 billion times more than if it was originating from three unknown, unrelated individuals.

76. A DNA tape-lift from a sock which contained a number of bullets was similarly linked to both Earsman and Issa and a trace DNA swab from a bullet which was located during the search had the relevant profile of Michelle Earsman. DNA linked to the trigger and trigger guard of the shortened firearm was linked to a third identified person, Ziad Ahmad.

77. A tape-lift of the grip portion of the shortened firearm was a mixture originating from at least three individuals. It was 33 million times more likely to obtain the profile if it originated from Michelle Earsman and two unknown, unrelated individuals, rather than originating from three unknown, unrelated individuals in the Australian population. A lesser likelihood was that it was 2.8 million times more likely if the mixed profile originated from Jordan Issa and two unknown, unrelated individuals, rather than three unknown, unrelated individuals. However it was 100 billion times more likely if the profile originated from Michelle Earsman and Jordan Issa and an unknown, unrelated individual rather than from three unknown, unrelated individuals.

78. Jordan Issa’s DNA was also recovered on the bank card in the name of Michelle Earsman located in the pocket of the black bag which had also contained the shortened firearm.

79. In cross-examination, Ms Summerell agreed that at no time had she been asked to express an opinion about how or when DNA might have been transferred. In particular she did not receive and had not been asked to watch the video recordings of the search of the black Amarok vehicle.

80. The Crown sought to rely upon a tendency notice dated 26 November 2024. That notice expanded the tendency sought to be relied upon from an earlier notice served on 18 October 2024. Following submissions the earlier identified tendencies were permitted to be relied upon. They were:

1. A tendency to have a particular state of mind, namely an interest in firearms;

2. A tendency to act in a particular way, namely to be in possession of firearms.

81. The earlier tendency notice had relied upon police facts which related to possession by the accused of approximately seven pistols on various identified dates at different locations in the Sydney metropolitan region. The accused had entered pleas of Guilty to charges relating to that possession and also to an offence of possessing ammunition without holding the relevant licence or permit.

82. The police facts described what had been downloaded on a number of video clips on a phone which had been seized from the accused when arrested in relation to these matters. At the time of his arrest on 12 April 2022 he had repeatedly smashed that mobile phone against a wall. Notwithstanding the phone having been smashed, police were able to subsequently download the series of video clips showing the accused handling the various weapons which later became the subject of the charges. The metadata from the videos identified the date on which the respective videos had been taken and the location at which it had been filmed.

83. The more recent tendency notice of 26 November 2024 sought to rely on both the description in the police facts and also the actual videos which had not been included in the original tendency notice. In an earlier, separate judgment, the tendencies identified were restricted to those which had been specified in the 18 October 2024 tendency notice but the evidence in support of those identified tendencies was permitted to include the actual video recordings and the Cellebrite download.

84. 12 video clips giving rise to the numerous charges were filmed between 31 December 2021 and 3 April 2022. Various of them are described as the accused filming himself on his iPhone. Two of the video clips relating to sequence 3 in the charges brought in the Local Court were filmed on Thursday, 17 February 2022. They show the accused handling a pistol with a green laser light attachment and a tan handle.

85. The video of that pistol, originally taken on the earlier phone on 17 February 2022, was subsequently located on the accused’s phone which was in his possession on 28 December 2022. A screenshot from that video is included in Exhibit #13. It was modified according to the metadata on the later phone at approximately 4:38 am on the day of his arrest, 28 December 2022. Whether it was downloaded early that day from the Cloud or otherwise is not revealed in the evidence.

86. The next officer called was Detective Acting Sergeant Daniel Pinter from the Drug and Firearm Squad. He was the Officer in Charge. The officer was taken to a number of photographs of items which had been seized from the black Amarok. A clear resealable bag containing white crystals (which subsequently was ascertained to have the DNA of the accused on the inner seal – R14) was ascertained to not contain prohibited drugs. No evidence as to the nature of the crystalline substance was adduced.

87. The officer identified the glass bottle with the cork stopper, subsequently ascertained to contain methylamphetamine, as having had two fingerprints developed from which no relevant identification or match was made. This was the subject of Count 1 on the indictment.

88. The item identified in photograph 24 of Exhibit #4 was presumptively identified as containing prohibited drugs.

89. Detective Pinter gave evidence that the accused had exercised his right to silence but had consented to a forensic procedure including a buccal swab. Three photographs taken during the forensic procedure were in due course tendered as Exhibit #20 (photographs 4, 5 and 6). Those photographs clearly depict the tattoos on the accused’s arms, including the inside of his right wrist. Exhibit #14 was tendered which showed the exhibit bag in which the magazine butt taken from the vehicle was seen to be protruding.

81. The Detective next identified a mobile phone which was handed in to police on 9 January 2023. A hearsay objection was taken to what that member of the public said about where they had found the phone. Accordingly, that part of the evidence was rejected. The Cellebrite download of the contents of the phone, including the video clips downloaded from it, were consistent with it being a phone either belonging to or being used by Michelle Earsman who, the Court was advised, was subsequently deceased. The Cellebrite download became Exhibit #15. I will refer to the contents of the messages downloaded in due course.

82. The Detective was taken to Exhibit #8 which was the second report by the Forensic Firearms expert, Senior Constable Harvey. It included a number of still images which had been taken from the videos downloaded from the phone either owned or used by Michelle Earsman. All of the images appear to have been taken from one of the three video clips and had been saved as thumbnail jpg. images. It can be observed in passing that one of the images has the word “Eshay” on it and on two of the videoclips the late Michelle Earsman can clearly be heard saying “eshay my brah”. This may be understood by reference to western Sydney colloquial slang and is consistent with what is being worn by Michelle Earsman in the videos and the still photographs.

83. The evidence from Detective Pinter was that one of the images had been uploaded to the SnapChat application in September 2019, i.e. more than 3 years before the events with which the Court is presently concerned.

84. The significance of the Forensic Firearm Expert was that what appeared to be a rifle being held by Michelle Earsman and also an apparently shortened firearm are not the same weapon as that retrieved from the black Amarok.

85. The Detective then identified the material produced by the Cellebrite extraction from the phone which had been in possession of the accused when he was arrested on 28 December 2022. The Cellebrite download was admitted as Exhibit #16 although it should be noted that the first photographic image on page 4 is not relied upon by the Crown. The two remaining images which form part of the downloaded material included a photograph apparently of the accused and a photograph depicting a pistol. Each of those photographs were either taken or downloaded within 12 seconds of each other and approximately 6 minutes before the video file being the last photograph in the tendency material (Exhibit #13(c)). The pistol in the still image in Exhibit #16 appears to be the same pistol as is depicted in the downloaded video in Exhibit #13 and which is in the video clips (8a in Exhibit #13(b)).

86. The Detective then gave evidence of his experience in drug investigations and his familiarity with codes utilised in that context. Over objection he was permitted to give evidence of the use of abbreviations and drug code and nomenclature in various of the messages downloaded from the accused’s mobile phone. For present purposes it suffices to note that the sequential messages are consistent with arrangements being made for the supply of drugs on 25, 26, 27 and 28 December 2022.

87. The Detective next identified still images taken from five videos found as part of the Cellebrite download from the phone in possession of the accused when he was arrested. Three of them appeared to have been taken on 26 December 2022 between 3:49 pm and 3:50 pm and were consistent in appearance with the shortened firearm located in the black RM Williams bag on 28 December 2022. I will return to the similarities in due course. A further video which was downloaded was apparently taken at 8:32 pm on 26 December 2022 and has been separately tendered as Exhibit #21. The fifth video is the one apparently downloaded at 4:38 am on 28 December 2022, being the video originally found on the phone in his possession when he was arrested in April 2022 and depicting the pistol the subject of the charge in sequence 3 in those proceedings.

88. Detective Pinter gave evidence that a further search of the black Amarok was undertaken on 13 January 2023. Six photographs of items located in the course of that search were tendered as Exhibit #18.

89. The Detective also gave evidence that the registered owner of the vehicle between 16 June 2014 and 16 December 2022 was a company called Superior Builders. The vehicle had subsequently been sold through Grays Auctions and the registered owner was now Julio Torres. The vehicle had initially been purchased at Grays and identification documents were provided in the name of Nigel Ross-Barlow. Despite endeavouring to contact the phone number and email address and additional searches on the police database, police were unsuccessful in locating a person by that name.

90. Screenshots downloaded from the accused’s phone relating to emails and attachments received on the phone in the account “[email protected]” were tendered as Exhibit #19. An email from Julio Torres using the email account “[email protected]” had forwarded an attachment with a link to an invoice from Grays sent at 6:37 am on 15 December 2022. A further email had been received at the “mikeyhnc” account on the accused’s mobile phone from AAMI attaching a CTP insurance Green Slip Paid Policy Schedule and also a Privacy Statement. There was also an attachment advising Mr Julio Torres that the CTP insurance had been paid and that the vehicle would be able to be registered with Transport for NSW.

91. Cross-examination of Detective Pinter confirmed the presence of DNA of Ziad Ahmad on the trigger and trigger guard of the shortened firearm and the fact that he was at large and not in custody in December 2022.

92. The final exhibit in the Crown case was Exhibit #21 which was the short video of the accused outside a vehicle which was a similar colour to the black Amarok.

93. No evidence was led from the accused himself. However, a report and evidence was led from Ms Helen Roebuck, a Forensic Scientist. With one relatively minor exception, Ms Roebuck had no disagreement with the Crown’s expert regarding the interpretation of the DNA swabs and samples. With respect to one exhibit she had reached the opinion that Ms Earsman could not be excluded as a contributor. Ms Roebuck had listened to the evidence of the police officers.

94. It is sufficient for present purposes, without undertaking a detailed analysis, that Ms Roebuck gave expert evidence that led her to the opinion that there was a reasonable possibility that the DNA located on various of the items may have been deposited indirectly. That is, that it may have been on the items as a result of indirect transference from its original location on other items. She pointed out the possibility of contamination of both clothing and/or hands of Detective Davidson in the course of the physical interaction with the accused during his arrest as well as the different approaches by the different officers to the use of the disposable latex gloves in the course of the search of the vehicle. Her ultimate opinion, which remained unchallenged, was that she could not advise the Court on whether direct deposit of DNA as opposed to indirect deposit, was more likely.

95. The Crown submissions highlighted the series of circumstances which were said to lead to a conclusion that the accused was in possession of the various items located in the vehicle. Critical to an acceptance of the Crown’s case, and the major point of contention identified by Mr Eurell on behalf of the accused, was whether or not the accused was the driver of the motor vehicle on 28 December 2022.

96. On behalf of the accused, Mr Eurell submitted, in summary, that the purported identification by Detective Davidson of a driver in a moving vehicle based on him having viewed a single photograph earlier that day was not a matter upon which the Court could be satisfied beyond reasonable doubt as an identification of the accused, rather than a different bald-headed person with a beard.

97. The submission on behalf of the accused was then developed to suggest that there was no observation of the driver getting out of the parked Amarok in Patterson Street and the coincidental circumstance of the accused walking in a westerly direction on the footpath approximately 100 to 150 metres from the parked vehicle, which it was submitted was not inconsistent with the reasonable possibility that he was in that location looking for Ms Earsman’s dog, which she subsequently told police she was herself looking for.

98. Mr Eurell posited what he described as a “reasonable hypothesis” that the true driver may have got out of the vehicle and had left the scene before police returned to the specific location and arrested the accused. Mr Eurell pointed to the absence of any evidence from Ziad Ahmad whose DNA was located on an area of the firearm which was unlikely to have been the subject of cross-contamination. He also pointed to the absence of Julio Torres and the lack of any evidence as to whether he similarly had a bald head and a beard.

99. The Crown case did not simply stand on the purported identification by Detective Davidson. It was but one of a series of circumstances relied upon by the Crown.

100. However, it is fundamental to the Crown case on each of the counts in the indictment that the accused was driving the vehicle on 28 December 2022, immediately prior to it being parked in Patterson Street. If there is a reasonable doubt about that question, there must be verdicts of Not Guilty with respect to all counts.

101. Evidence linking the accused to the acquisition and subsequent use of the motor vehicle includes the following various items or circumstances. Evidence of the emails received on the Gmail account accessed by the mobile phone in the accused’s possession on 28 December 2022 are clearly consistent with Julio Torres forwarding to that email address, “mikeyhnc”, relevant details or links to an invoice from Grays where the Amarok had been purchased and the receipt from a third party insurer for payment for the CTP on the same date.

102. A driver’s licence in the name of Julio Torres was located in the black RM Williams bag in the vehicle and the address on that licence, Unit 6, 1 Drinkwater Lane Edmondson Park is the same address found upon mail addressed to Michelle Earsman which was also located in the vehicle (Exhibit #4, page 20).

103. The video located on the phone in the accused’s possession (Exhibit #21) shows the accused in a carpark alongside a vehicle which has marked similarities with the black Amarok. Those similarities include the colour of the duco; the silver strip on the outside of the footstep and the location of the footstep on the exterior of the vehicle; the silver strip underneath the front of the vehicle; the circular parking light at the front of the vehicle; and the image or symbol in the centre of the front driver’s side mag wheel. Such similarities with the vehicle being driven on 28 December 2022 are clearly observable from the various photographs in Exhibit #3 and Exhibit #18. The video in Exhibit #21 was recorded according to the metadata at 8:32 pm on 26 December 2022. As noted previously, the accused is clearly depicted at the beginning of that video.

104. Earlier that same afternoon at approximately 3:49 pm, three short video clips were recorded on the same phone. The vision in those videos is consistent with being the inside of the black Amarok. In each instance, the video pans to a bag which would appear to be on the floor of the front passenger’s area of the motor vehicle and depicts what appears to be a similar firearm to that recovered from inside the vehicle on 28 December, including clear vision of the magazine which was also recovered in the vehicle on 28 December, albeit not attached to the shortened firearm at the time of the search. In each of those video clips the black bag in which the weapon is located appears strikingly similar to the exterior of the black leather RM Williams bag with a similar silver zipper.

105. The points of similarity indicated by Senior Constable Harvey, the forensic ballistics expert, are strongly supportive of an inference that the weapon depicted in the videos and the subject of a screenshot from one of them is identical to the weapon and magazine recovered from inside the Amarok on 28 December 2022.

106. The messages downloaded from the mobile phone in the accused’s possession indicate a series of messages earlier in the day on 26 December 2022 between the mobile phone and a mobile number attributed to somebody called “Emma”. At approximately 2:23 pm, the mobile phone later recovered from the accused sent a message to Emma indicating that 194 is needed but only 170 has been sent. Emma responded: “I didn’t send it.. my mate did WTF.. did he only send 170???” The accused’s mobile responded approximately 2 minutes later: “Tell the rat dog i said thanks but now my mrs still on the side of road woth a loaded ar15 in” [sic]. Emma responded immediately: “WHAT THE ACTUAL FUCK ..” More than an hour later at 3:48 pm the accused’s mobile sent a message to Emma: “Does he want a video to believe that his fukd me so hard its not funnt” [sic].

107. I would infer that this message asks whether the person previously described as a “rat dog” has caused so many problems that it was not funny and whether they needed a video to believe what was being said.

108. Emma responded: “Ive said that…” Approximately a minute and a half later the same phone, but a different sim card, sent to Emma one of the videos showing the shortened firearm with magazine attached in what appears to be the black RM Williams bag. The three videos, one of which was forwarded to Emma, were all taken in a vehicle consistent with being the interior of the Amarok and were taken between 3:49:04 pm and 3:49:53 pm. The one sent to Emma from the same handset was sent at 3:49:55 pm.

109. The following day, 27 December 2022, there were a series of SMS messages between the accused’s mobile and another person utilising a mobile ending 399. I should indicate that references to the accused’s mobile are simply a shorthand manner of expressing reference to the mobile phone in the possession of the accused when he was arrested on 28 December and on which various videos were located indicating him utilising the phone on earlier dates. The communications to and from 399 are consistent with an arrangement for the supply of drugs on that day.

110. In addition to those messages, there are messages to and from a number ending with 271 identified as “The Love Of My Life”. Messages to that number refer to the recipient being Michelle. The message from that number to the accused’s mobile at 11:01 am on 27 December 2022 read: “I know I’m in the wrong Mike.” As noted earlier, the mobile phone in the possession of the accused was subsequently ascertained to access the Gmail account in the name “mikeyhnc”. The accused’s mobile responded: “Yeah shell obviously the last person u want hating”. I draw the inference that the reference to “shell” is a shortened form of “Michelle”.

111. Later that afternoon at approximately 1:23 pm the Michelle phone sent a message to the accused’s mobile: “I need you”. At 1:37 pm the accused’s mobile sent a message to the Michelle mobile: “U want me to fukn lose it michelle im hanging out”.

112. The following day, 28 December 2022, reflected a substantial number of SMS messages between a mobile (730) and the accused’s mobile phone. The evidence of Detective Pinter was that a reference to needing to grab “the drinks” was a reference to the drug GHB. In the course of the messages between the accused’s mobile and the number 730, the user of the accused’s mobile said that they were going to go to Bunnings at Ashfield. 730 messaged the accused’s mobile at 8:35 am saying “I will get the drinks at bunnings. Message me when”. The accused’s mobile responded “Ok”.

113. Approximately 10 minutes later at 9:02 am, 730 sent an SMS to the accused’s mobile asking “Sure so where do I get the drinks from. I will go”. In a series of responses from the accused’s mobile to 730 the messages read: “Okay”, “Its in the back of the Ute tray”, “Ready to go”, “In the back tray push the button it will lift it”, sent at 9:21 am. At 9:22 am, 730 asked “What place? Churchill” followed by “Yes what address”. The accused’s mobile responded: “There’s a bag wit a bottle”. Approximately 30 seconds later 730 sent a message to the accused’s mobile: “OK LOL. I am at her place”. At 9:35 am the accused’s mobile messaged 730: “Yeah shes only put the one bottle only cause our”. 730 responded: “Really shut. Because I have them all sold”.

114. This lengthy sequence of messages is consistent with the accused being the sender of the messages and whatever was meant by the reference to “drinks” it would appear that at one stage it was anticipated that access could be obtained to the “back of the Ute tray” which would be left unlocked and able to be opened with a button. The reference to Churchill is consistent with being a reference to Churchill St where Michelle Earsman resided. The reference to one bottle being put out is not inconsistent with the bottle being left for collection in the Ute which is consistent with being the Amarok later driven and observed at the Churchill Street premises later the same day.

115. A photograph on the mobile phone taken at 4:32 am earlier on 28 December 2022 appears to depict the accused in an image taken by that phone. Some 6 minutes later at 4:38 am on 28 December 2022 the video originally located on his April 2022 mobile phone was downloaded showing the pistol and some money originally recorded in February 2022. At approximately 10:38 am on 28 December 2022, 730 advised the accused’s mobile: “OK going to ATM now be 15 Max. I will call them”. The accused’s mobile responded: “Nah all good im jordan issa”. Mr Eurell submitted that this was indicative of somebody other than the accused sending the messages. I draw a different inference.

116. Later that afternoon at approximately 3:25 pm, Detective Davidson observed a male and a female in the black Amarok as it drove at approximately 5 kph past his stationary position facing towards them at right angles in the Concord Library carpark. The carpark is effectively a continuation of Curtin Place which after exiting the carpark via a driveway entrance continues as an ordinary street. The identification of Michelle Earsman, with whom the evidence establishes the accused had a relationship, was not seriously contested. She resided in the premises at 33 Churchill Street and after getting out of the passenger side of the black Amarok, went towards the entrance of those premises. The identification of the driver as the person now known by Detective Davidson as Jordan Issa and who he had seen in a photograph earlier that day and subsequently physically apprehended, is one of the factors to be given consideration in assessing whether the accused was driving the vehicle. It is but one of a number of circumstances. Detective Davidson did not see the driver change with any other person and then followed the vehicle a distance of perhaps a little more than a kilometre to Patterson Street.

117. He turned onto Patterson Street and described in his evidence, which I have already previously quoted, “I observed vehicle DF80QU park on the northern kerb outside 51 Patterson Street Concord. I observed Issa exited the vehicle.” Despite the absence of questioning about the terminology utilised in the officer’s statement, namely whether he saw Issa get out of the vehicle or whether he saw that there was no driver and that therefore he described that Issa had exited the vehicle, I draw the inference that he did not actually see Issa get out of the vehicle.

118. After driving past the vehicle for the comparatively short distance to the next intersection and then doing a U-turn just past that intersection and travelling back along Patterson Street, Detective Davidson then did a U-turn while the accused was walking towards the unmarked police vehicle in the vicinity of 73 Patterson Street. I accept, based on the number of houses between where the Amarok was parked and the location where the accused was arrested is a distance of something between 100 and 150 metres.

81. As noted earlier, the accused was not in possession of the car key to the locked Amarok. However, the key was in due course located on the grass outside number 63 Patterson Street which was approximately halfway between the vehicle and where the accused was apprehended whilst walking along the footpath.

CROWN SUBMISSIONS

129. The Crown addressed with respect to the overall circumstantial case leading in its submission to a conclusion beyond reasonable doubt firstly, that the accused was driving the vehicle on 28 December 2022. The Crown drew attention to the suitcase containing clothes and mail addressed to the accused located in the vehicle. The Crown invited careful attention to Exhibit #21 which was the video recording dated 26 December 2022. The striking similarity to the black Amarok searched by police on 28 December 2022 was highlighted. The Crown invited comparison of the weapon in the videos found on the mobile phone in possession of the accused with the photograph taken of the actual weapon recovered from the motor vehicle.

130. The Crown submitted that the messages in the Cellebrite download from the mobile phone were consistent with involvement in offering to supply drugs by the accused and that such material strongly supported an inference of his possession of the drugs in the motor vehicle, including that identified in Count 1 and the smaller items of drugs relevant to the matters relating to the Certificate under s 166 of the Criminal Procedure Act 1986.

131. The Crown submitted that the contents of the messages and the video recordings supported an inference that the accused had possession of and had been the user of the mobile phone in his possession at the time of his arrest.

132. The Crown acknowledged the difficulties regarding indirect transfer of DNA but submitted that the Crown relied upon the totality of the identified circumstances to support a conclusion beyond reasonable doubt of his possession of all of the identified items in the vehicle which are the subject of the charges.

DEFENCE SUBMISSIONS

133. I have already summarised some aspects of Mr Eurell’s submissions. Mr Eurell focused in considerable detail on the purported identification by Detective Davidson of the accused as the driver. He described the Detective as a fallible witness and highlighted deficiencies in the reliability of his evidence with respect to changing gloves in the course of the search. To the extent the Crown case rested on an asserted identification by that officer, it was submitted that he could not be accepted beyond reasonable doubt with respect to the identification. The Court was reminded of the potential unreliability of such evidence.

134. The defence advanced a number of hypotheses regarding what Ziad Ahmad might look like or Julio Torres. The defence argued that a reasonable hypothesis was that someone else was driving the vehicle rather than the accused. The presence of the accused in Patterson Street was said to be consistent with him looking for Michelle Earsman’s dog and effectively being coincidentally some distance away from where the black Amarok was parked. According to that hypothesis, the real driver had left and had simply not been observed by police and presumably had deposited the keys perhaps 50 or 60 metres away from the vehicle, in the direction that Mr Ahmad was subsequently ascertained to be walking.

135. The absence of the two identified potential witnesses was similarly a focus of the defence submissions. It was submitted that the Court could not exclude the reasonable possibility that either Ziad Ahmad or Julio Torres was the driver of the vehicle immediately before it stopped in Patterson Street.

136. The defence then focused on the potential for indirect transfer of the DNA and the evidence of the expert called in the defence case.

137. With respect to the tendency evidence, Mr Eurell highlighted the circumstance that they were weapons of a different nature, namely pistols and the period of time between the possession of those items and the date of arrest with respect to the present matter.

138. With respect to the messages on the mobile phone, it was submitted that there was no evidence regarding subscribers of it or the other phones to which messages were sent and the Court could not conclude that the accused was the only user of the phone.

139. The ultimate submission on behalf of the accused was the fundamental gap said to be identified in the Crown case, namely an inability to establish that the accused was the driver of the vehicle.

DETERMINATION

140. In my view, the hypotheses advanced by defence counsel were conjecture and speculation. There is an irresistible inference that the keys to the vehicle were dropped by the driver approximately 50 or 60 metres away from the vehicle, in the very direction that the accused was seen first by Detective Perng and subsequently by Detective Davidson to be walking, that is a direction away from the parked and locked vehicle.

141. He was in possession of a phone which had been used earlier that morning in communications which would appear to have been between himself and his girlfriend/partner, Michelle Earsman. She had been in the vehicle when it drove to outside her home and was identified by Detective Davidson at the time. He also believed that he recognised the driver as the accused based upon his view of a photograph earlier that day.

142. Whilst that purported identification may properly be described as unreliable if it stood alone, it is nevertheless part of the overall circumstantial case. He did not observe any swapping of drivers and he subsequently saw the accused in Patterson Street a short time later. Items belonging to the accused, including mail addressed to him, were subsequently found in the vehicle. The keys on the ground were approximately halfway between the parked vehicle and where the accused was apprehended.

143. The accused was in possession of a mobile phone which he endeavoured to smash. That action was consistent with a consciousness of guilt and an endeavour to prevent police gaining access to the contents of the phone.

144. The contents were, in due course, able to be downloaded. The accused’s mobile phone, amongst other things, had taken images of himself beside a vehicle which had striking similarities to features of the Amarok and which had been filmed on the evening of 26 December 2022. Earlier that day, in conjunction with communications on the phone later found in his possession, he forwarded images which are consistent with being the same firearm in the same black RM Williams and consistent with the same vehicle to the person “Emma” with respect to an implicit threat to the person he described as a “rat dog”.

145. I am satisfied beyond reasonable doubt that the accused was the sender of the messages which I have detailed earlier.

146. I am satisfied beyond reasonable doubt, on all of the surrounding circumstances, that the accused was the driver of the Amarok in which the various seized items were located on 28 December 2022.

147. In those circumstances, the provisions in s 4A of the Firearms Act 1996 have relevant application. That deeming and defining section is as follows:

4A Meaning of “possession” of a firearm—proof of possession

(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.

148. On the state of the evidence in the present proceedings, I am not satisfied that the firearm was placed in the vehicle by or on behalf of a person who was lawfully authorised by the Firearms Act 1996 to possess the firearm. I am similarly not satisfied that the accused did not know and could not reasonably be expected to have known that the firearm was in the vehicle. Nor am I satisfied on the evidence before the Court that the accused was not in possession of the firearm. I reject the submission that the firearm was in the exclusive possession of Michelle Earsman.

149. On the contrary, I am satisfied that he videoed the firearm in the same bag on 26 December 2022 and forwarded one of those videos on his mobile phone in the circumstances I have already described, shortly after taking the video in the Amarok, to the person “Emma”.

150. I should indicate that I would be satisfied on all of the evidence even if I were to apply the common law definition of possession, but I find that given the deeming provision in s 4A, he possessed the firearm.

151. The deeming provision in s 4A does not apply to the magazine, the subject of Count 5. In circumstances where the magazine was attached to the firearm in the videos taken on 26 December 2022, and that it was subsequently found in the recess on the driver’s side of the vehicle in the driver’s door, and that it had a mixed DNA profile on the butt of the magazine, which would be where it would be gripped to remove it from the firearm itself, which is consistent with both Michelle Earsman and Jordan Issa, I am satisfied that he was also in possession of the magazine. As noted, this is separately the subject of Count 5 in the indictment alleging a contravention of s 34(1) of the Weapons Prohibition Act 1998.

152. In reaching that conclusion, I have given consideration to the possibility of cross-contamination of DNA relating to the accused but I am satisfied on all of the surrounding circumstances, including the video images, that he knew that the magazine was in the vehicle and intended to possess it, either jointly with Michelle Earsman, or exclusively. I note that at the time of the vehicle being parked in Patterson Street, he was the only one in the vehicle.

153. The situation with respect to the ammunition, the subject of Counts 2, 3 and 4, is, however, not as clear. The deeming provision in s 4A has no application to those items, the possession of which was said to be in contravention of a Firearms Prohibition Order. Common law considerations relating to possession are accordingly necessary to be considered.

154. With respect to the cartridges contained inside the magazine, the circumstance that there were bullets visible in the magazine when it was attached to the weapon on 26 December 2022 and that there were bullets visible in the magazine when it was in the door recess, being satisfied that he was in possession of the magazine, I am similarly satisfied that he was in possession of the cartridges which were contained in the magazine and which are the subject of Count 3 on the indictment.

155. Count 2 alleges possession of 35 .22 long-rifle calibre cartridges which were found in a sock located in the same driver’s side door recess as the magazine. Traces of DNA identified as belonging to Michelle Earsman was found on one of the cartridges. Traces of DNA consistent with the accused having handled the sock were also identified. While being part of the surrounding circumstances, given the possibility of indirect transfer, I put the DNA evidence to one side with respect to the accused. However, the fact that the cartridges were identical with those located in the magazine and capable of being utilised in the prohibited firearm, and given their location in the driver’s door recess, I am satisfied beyond reasonable doubt that the accused possessed the cartridges the subject of Count 2.

156. With respect to the further cartridges found in a bag inside a plastic case in the rear of the vehicle, I make the following observations. First the particular small plastic bag was not suitable for DNA comparison. However, the cartridges were identical cartridges capable of being used in the prohibited firearm and a plastic bag with a zip seal inside the same plastic case had trace DNA from the inner seal of that plastic bag which identified with DNA of the accused. The location on the inner seal of that bag is consistent with someone opening the zip seal bag and is inconsistent, in my view, with the possibility of indirect transfer by the police in handling various items, particularly given the circumstance that the cartridges are the same as those which were in his possession inside the vehicle. I am satisfied beyond reasonable doubt that these cartridges, the subject of Count 3, were also in the possession of the accused.

157. The situation with respect to the drugs in the glass container found in the passenger’s door recess is somewhat different to the evidence connecting the accused to the prohibited firearm and the various cartridges. It was ascertained to have two fingerprints which were not able to be linked with any known person on the database. Significantly, there is no fingerprint or DNA evidence purportedly linking the accused with the item.

158. However, as pointed out by the Crown, its physical presence was readily visible from a person in the driver’s seat. Were that the only circumstantial evidence connecting the accused with the alleged possession of the item and its contents, one would be constrained to entertain a reasonable doubt. However, the detailed analysis of the messages sent to and from the accused on his mobile phone lead inexorably to a conclusion that he was occupied in the business of drug supply in the days leading up to his arrest. Gleeson CJ pointed out in the appeal of JosephSultana v R (1994) 74 A Crim R 27 at [29]:

“Where the issues are whether a person was found in possession of heroin, and whether he or she possessed it for supply, the fact that the person is currently in the business of a drug dealer is a fact relevant to the issues in the case. It is not mere evidence of propensity to commit crime, or bad character (cf Harriman v The Queen (1988 and 1989) 167 CLR 590; Thompson and Wran v The Queen (1968)117 CLR 313 at 316 and 317) If, for some reason, in a civil or criminal case there were an issue as to whether a man was found in possession of clothing material with an intention of cutting it, it would ordinarily be of relevance to show that the man was carrying on the business of a tailor. That might be shown by evidence that, when asked his occupation, he said he was a tailor. It might also be relevant to prove that he owned a tape measure, a pair of tailor's scissors, a quantity of samples of cloth, and some books showing a collection of clothing designs. Evidence that tends to show that a person is in the business of dealing in heroin also tends to show a propensity towards crime, but in a case such as the present it is admissible on the former account, not the latter.”

159. His Honour the Chief Justice went on in that matter to say at [29]:

“A jury would be entitled to reason that possessing firearms, or imitation firearms, would be appropriate to the business of a street heroin dealer, and in considering whether the appellant was in that line of business, it was logically open to them to take into account the appellant’s possession of such firearms.”

160. I note that in relation to the communications on 26 December, in circumstances where the conversation dealt with an apparent inadequacy by way of quantum, the accused sent a video of the firearm in the black RM Williams bag inside the Amarok to that person in order to reinforce the persuasion that he was endeavouring to exercise.

161. Irrespective of who might have physically carried the container of methylamphetamine to the vehicle and placed it in the passenger’s side door, I am satisfied beyond reasonable doubt that the accused possessed the item and its contents when he drove the vehicle from Churchill Street to Patterson Street, where he parked it and left the vehicle.

162. There will accordingly be verdicts of Guilty on all counts on the indictment.

163. I note that there are a number of matters before this Court pursuant to s 166 of the Criminal Procedure Act 1986. No specific submissions were developed in relation to those matters. I will fix a date for hearing those matters in February 2025. Subject to liaison with my Associate and the fixing of an agreed date, the matter will be listed for mention only on 3 February 2025.

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Decision last updated: 22 May 2025