R v Beedar - [2016] SADC 159

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BEEDAR
Criminal Trial by Judge Alone
[2016] SADC 159
Reasons for the Verdict of His Honour Judge Soulio
21 December 2016
CRIMINAL LAW
Accused charged with aggravated possession of a prescribed firearm without a licence - whether accused in occupation, or had care, control or management of premises where firearm found - whether accused did not know and could not reasonably be expected to have known firearm was in the premises.
Verdict: Not guilty.
Firearms Act 1977 ss 5, 11; Juries Act 1927 s 7; Firearms Regulations 2008 reg 4, referred to.
Warner v Metropolitan Police Commissioner [1969] 2 AC 256; He Kaw Teh v The Queen (1985) 157 CLR 527; R v Marafioti [2014] SASCFC 8; R v Sandery [2013] SADC 38; R v Fuller; R v Zazzaro [2012] SASCFC 101; Thomas v The Queen (2010) 207 A Crim 449, considered.

R v BEEDAR
[2016] SADC 159
Introduction

The accused is charged with aggravated possession of a prescribed firearm without a licence, contrary to s 11(1) of the Firearms Act 1977 (‘the Act’) said to have been committed on 14 November 2013 at Greenwith, South Australia. Pursuant to an election made by the accused, the trial was heard without a jury.[1]
[1] Juries Act 1927 s 7.
The charge on the Information is as follows:
Baktash Beedar is charged with the following offence:
Statement of Offence
Aggravated Possessing a Prescribed Firearm Without a Licence. (Section 11(1) of the Firearms Act, 1977).
Particulars of Offence
Baktash Beedar on the 14^th day of November 2013 at Greenwith, had in his possession a prescribed firearm, namely a sawn off Canadian Industries Ltd Model 171 Bolt Action .22 calibre rifle, without holding a licence authorising possession of a firearm.
It is further alleged that the firearm to which the offence relates was found in the immediate vicinity of a loaded magazine that could be attached to and used in conjunction with the firearm.
Section 11(1) of the Firearms Act provides:
(1)A person who has possession of a firearm without holding a firearms licence authorising possession of that firearm is guilty of an offence.
Background Circumstances
The accused was being investigated for unrelated offending. Police searched the accused’s bail address at Greenwith. During the search a bag was located under stairs in the house. That bag contained a sawn-off Canadian Industries Ltd Model 171 bolt action .22 calibre rifle wrapped in cloth, a magazine to suit that firearm loaded with ammunition, 69 rounds of .22 calibre ammunition and a pair of mismatched black gloves. Forensic analysis of one of the gloves returned a positive response for DNA from three donors of which there was a strong likelihood that the accused was one of those donors.
General Directions
I remind myself of a number of general matters. The accused is presumed innocent unless and until his guilt has been proved. The burden of proving the charge lies with the prosecution. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Beedar

Details

AGLC: R v Beedar [2016] SADC 159
Case: [2016] SADC 159
Decision Date: 21 December 2016

CaseChat Overview and Summary

In the District Court of South Australia, the accused, Baktash Beedar, was charged with aggravated possession of a prescribed firearm without a licence, contrary to s 11(1) of the Firearms Act 1977. The court had to determine whether the prosecution proved beyond reasonable doubt that the accused was in possession of the firearm. The prosecution argued that the accused was in possession of the firearm under the extended definition of possession in s 5(14) of the Act. The accused argued that he did not know, and could not reasonably be expected to have known, that the firearm was in the premises. The court found that the accused had established the defence under s 5(15) of the Act on the balance of probabilities, and the accused was acquitted. The court considered the evidence of the accused and his mother, who corroborated the accused's evidence. The court also considered the evidence of the police and the forensic scientist. The court found that the accused had established that he did not know, and could not be reasonably expected to have known that the firearm was in the premises, and that the more likely explanation is that Mr Simpenon, or his acquaintance who was present in the premises when the accused and his mother attended unexpectedly at the premises, was responsible for bringing the firearm to the premises, and that they, or one of them, did so without informing the accused of that fact.

Orders