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 onus of proof is beyond reasonable doubt. I must be satisfied, before I could convict the accused of the charge, that the prosecution has proved each element of the charge.
The accused gave evidence on oath. He was not obliged to do so. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all the elements of the charge. In assessing his evidence and the weight to be given to it, I approach the task in exactly the same way as with any other witness.
The Elements of the Offence
The first element the prosecution must prove is that the accused possessed the firearm in question. In doing so the prosecution is entitled to rely on the extended definition of possession, to which I refer below. Accordingly I must be satisfied, beyond reasonable doubt, that the firearm was located in the premises at Greenwith. I am satisfied beyond reasonable doubt on the evidence that the firearm was found by police in a backpack in a small room underneath the stairs at the Greenwith premises.[2] Further, I must be satisfied beyond reasonable doubt that the accused was in occupation of, or had the care, control or management of the Greenwith premises.
[2] T 10-11 & Exhibit P1.
I must then be satisfied beyond reasonable doubt that the firearm is a prescribed firearm. Whilst I have not received specific evidence to that effect, I am satisfied beyond reasonable doubt that the firearm is in fact a prescribed firearm. I have received photographs of a firearm,[3] and it is agreed that the photographs depict the firearm that is the subject of the charge.[4] It is apparent from the photographs that the barrel of the firearm has been sawn off, and I accept that the prosecution has established beyond reasonable doubt that the overall length of the firearm is less than 750mm.[5]
[3]    Exhibit P4.
[4]    T 28.
[5]    See Firearms Regulations 2008 (SA) reg 4(1) which provides that: For the purposes of the definition of prescribed firearm in section 5(1) of the Act, the following firearms are prescribed: … (f) Firearms having an overall length of less than 750 millimetres (but not handguns or power heads).
I must also be satisfied that the accused is not a holder of a firearms licence authorising possession of that firearm. I am satisfied that on 14 November 2013 the accused was not the holder of a current firearms licence authorising possession of that firearm, nor was he the holder of any firearms licence.[6]
[6] Exhibit P9 – Agreed Facts – Fact 1.
With respect to the aggravating feature, I must be satisfied beyond reasonable doubt that the loaded magazine containing two rounds of ammunition was in the immediate vicinity of the firearm. I am so satisfied, police having located the loaded magazine within the same backpack in which they found the firearm.[7]
[7] T 11 & Exhibit P1.
Extended Concept of Possession
The principal issue for determination is whether the prosecution has proved beyond reasonable doubt that the accused was in possession of the firearm. At common law, in order to prove possession the prosecution would need to show either physical contact with, or custody of, the firearm by the accused, together with the requisite intention to possess the firearm.[8]
[8] For example see Warner v Metropolitan Police Commissioner [1969] 2 AC 256; He Kaw Teh v The Queen (1985) 157 CLR 527.
Here, in considering whether the prosecution has established beyond reasonable doubt that the accused was in possession of the firearm, it is necessary to consider the extended concept of possession relied upon by the prosecution and contained within s 5(14) of the Act which provides:
5(14)For the purposes of this Act (other than Part 3 Division 2A), a person has possession of a firearm if—
(a)     the person has custody of the firearm or has the firearm in the custody of another; or
(b)     the person has and exercises access to the firearm; or
(c)     the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the firearm is found.
In R v Marafioti,[9] Kourakis CJ considered the scope of s 5(14) of the Act and said:[10]
I return to the extended definition of possession. I start by observing that s 5(14)(a) of the Act is, broadly, the equivalent of the common law concept of possession, but includes within it, possession by an agent. Subparagraph (b) extends the common law concept of possession by removing the requirement of exclusivity and providing that access to a firearm may constitute possession of the firearm. Section 5(14)(c) of the Act must be construed in the context of the preceding subparagraphs which manifest an intention to extend the concept of common law possession. That suggests a broad reading of the term “in charge of”.
[9] R v Marafioti [2014] SASCFC 8.
[10] R v Marafioti [2014] SASCFC 8 at [23].
Kourakis CJ went on to say:[11]
It can be seen that s 5(14)(c) of the Act in effect creates rebuttable presumption of possession of a firearm by a person who exercises a degree of control over the premises or vehicle in which it is found. With respect to both premises and vehicles, forms of control or relationship less than ownership are sufficient. With respect to premises it is important to observe that “care or management” of the premises, which will generally be something significantly less than control of the premises, is sufficient to found the inference.
[11] R v Marafioti [2014] SASCFC 8 at [25].
In R v Sandery,[12] decided before R v Marafioti, Tilmouth DCJ considered the meaning to be given to the broad concept of possession in the context of s 5(14)(c). He said:
As the section is cast disjunctively, proof of any one of ‘occupies’, ‘care’, ‘control’, or ‘management’ would suffice to invoke the operation of s 5(14). In ordinary parlance ‘control’ means ‘to exercise restraint or direction over’, or ‘the fact of checking and directing action’, concepts less demanding than possession at common law. Indeed at common law control was an integral albeit partial component of possession: Warner v Metropolitan Police Commissioner. As Lamer CJ pointed out in R v Gosset:
‘… control … supposes physical possession of something. One cannot have … control without access’. (citations omitted)
[12] R v Sandery [2013] SADC 38.
A Statutory Defence
If the prosecution fails to prove beyond reasonable doubt that the accused falls within the ambit of the extended concept of possession, then the accused is entitled to an acquittal. If the prosecution proves, beyond reasonable doubt, that the accused was in occupation of, or had the care, control or management of the premises in which the firearm was found, the accused may rely on a defence under s 5(15) of the Act which provides:
(15)    However, subsection (14)(c) does not apply if the person establishes that—
(a)     he or she did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises, vehicle, vessel or aircraft; or
(b)     the firearm was in the lawful possession of another or he or she believed on reasonable grounds that the firearm was in the lawful possession of another.
The onus on the accused to establish that he did not know and could not reasonably be expected to have known that the firearm was in the premises, is on the balance of probabilities.[13]
[13] R v Fuller; R v Zazzaro [2012] SASCFC 101 at [47].
I note that s 36A of the Act further provides that:
36A—General defence
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
Given the provisions of s 5 of the Act, s 36A does not afford the accused any additional avenue of defence in the circumstances of the present charge.
Prosecution Evidence
The prosecution case was generally undisputed, with exceptions to which I refer below.
On 14 November 2013 Constable Carcuro, in the company of another police officer, attended at an address at Paradise investigating an unrelated matter. The accused was arrested. At 1.55am on 15 November 2013 Constable Carcuro attended at the accused’s bail address in Greenwith in order to search those premises. Police gained entry to the premises using a key and searched the premises. Constable Carcuro however did not obtain the key, or use the key.[14] Constable Carcuro located a backpack in a small room under the stairs in the premises. He located the subject firearm in that backpack.
[14] T 33.
A video recording was made of the search of the contents of the backpack. That backpack also contained a pair of non-matching black gloves[15] (one larger than the other), two rounds of ammunition inside a magazine suited to that firearm, and a clear plastic box which contained .22 calibre ammunition. The firearm was not loaded when found. The firearm was wrapped in a floral table cloth. These items were seized by police.
[15] Exhibit P2.
Police observed in the room where the backpack was located, dog food, soft drinks and kitchen utensils. There was no dog at the premises. There were dishes on a bench in the kitchen and there was furniture in the house. The property appeared to be occupied. There was no evidence given as to what items of clothing were in the premises. A bong used for smoking cannabis was located at the address. No explanation was provided regarding the decision not to submit that item for forensic testing, nor was it seized by police.
Police interviewed the accused after locating the firearm. The accused admitted to owning an air rifle, a different firearm from the one found. During the interview police told the accused that he was required to answer questions relating to firearms. The following exchange took place:
AWhat if you don’t ... em, seriously, what if you don’t know em. I mean I haven’t lied to you. Apart from today just 5 seconds ago that I lost my shit and that’s just because of the welfare of my mother, have I not been cooperative. Haven’t I given you everything that I could get in trouble for? I am sorry have I not. You’ve been pretty much there from the very first start. I wouldn’t lie to you. I don’t know anything about firearms, honestly. Truthfully answer to what I can right and the only reason why I lost that is just that if I knew, I had have spoken to my mum I would have told you everything you freaking you know.
QA single barrel shotgun, sawn-off shotgun has been located at, in at unit 5 number 36 Debenham Court. Okay we have reason to suspect that you were possessing that firearm earlier today.
AShotgun
QIn Paradise
AShotgun
QDo you own a firearm?
ANo I don’t honestly
QHave you ever possessed a firearm of that type?
ANot a shotgun no
QOkay, do you have a, do you have a firearms licence
ANo I don’t
QHave you ever held any form of firearms licence?
AI … for it but I haven’t held one or anything like that
QSo you’ve never held one
ANo
QAt all
AI’ve never had, owned a shotgun so you’re sure it’s a shotgun
QThat’s what’s been located
A… shotgun. I don’t have a shotgun
QWhat is it then?
AI don’t know what it is but it’s but it’s not a shotgun
QThere was a firearm that you may have–
AAn air rifle may be. I have had an air rifle, a 22 slug sort of with a round; it’s got not actual projectile as such as in powdered projectile. It’s got a ball bearing with an air compressing system in it. Crack it open
QWhere’s that at the moment
AThat’s was in this garage on the left where the bins are. With a, with a, what do you call it, aluminium cans and 2 bins and it’s in there with fishing rods and –
QAt your parent’s house
AAt my house, the one that you said 5 6 whatever. I haven’t been at that address for over 3 weeks.
QWhere would that be, where would that be located that firearm. When’s the last time you saw it?
AOver 3 weeks ago. I’m telling you–
QWhat is the location–
AThe shed. I just told you near the bins where the fucking aluminium cans are.
QAnd how is it stored?
AWhat do you mean how is stored? You can see it near the fishing rods.
…
QDo you need a licence for that?
ANo I didn’t ever need a licence for that
QOkay
AI still can buy the ball bearings on line
QAlright
AThat’s why I’m saying are you sure it’s a shotgun cos I don’t, I don’t, I’ve never owned a proper firearm as such. This is enough to kill a bullet, a bird you know like sitting on a fence from here to that other gentleman away but that’s about it. I’ve been shot with it. It’s gone through the skin and that’s it.
QYeah. So apart from that there’s no other firearm
ANot that I know of. I have no other firearms
I note however that there was no evidence to suggest that police searched for an air rifle which the accused asserted was kept in a shed at the Greenwith premises. It appears that the accused was not charged in relation to possession of the air rifle, nor charged with breaching bail by possessing a firearm.
The accused denied any knowledge of the firearm located by police. He conceded that he did not hold a firearms licence. He said that he was the tenant of the premises, but said that the house had been empty for the preceding three weeks. He said that the last people residing at the premises were his cousins, and that he had not been there for about three and a half weeks.[16]
[16] Exhibit P7 – edited extract of ROI of accused.
Police subsequently undertook inquiries and ascertained that the accused held a current account for electricity supply for the premises with the electricity provider AGL,[17] and that payments had been made at Australia Post for that account between 27 November 2013 and 18 March 2014.[18] The accused’s driver’s licence showed his address to be that of the Greenwith premises.[19] Police also seized a Courts Administration Authority Notice of Warrant dated 1 October 2013,[20] addressed to the accused, from the door of the refrigerator at the Greenwith premises.[21]
Senior Constable Firth
[17] T 43 & Exhibit P8.
[18] T 43.
[19] Exhibit P9 – Agreed Facts – Fact 14.
[20] Exhibit P3.
[21] Exhibit P9 – Agreed Facts – Fact 2.
SC Firth said that on the evening of 14 November 2013 he had attended at an address in Paradise, and then attended at the Greenwith premises at about 1.45am the next morning, 15 November 2013. I pause to observe the fact that the Information charging the accused with possession of the firearm on 14 November 2013 does not afford the accused a defence, the date not being a material particular or an element of the offence. He said that he gained access to the Greenwith house using a key he had obtained from the accused.[22] He said that the accused was arrested and the key was part of the accused’s property as a prisoner.[23] He then said he had asked for the key from the accused and the accused had complied with that request.[24]
[22] T 19.2.
[23] T 19.16.
[24] T 19.22.
SC Firth conceded that he had not made any notes regarding his attendance at either address. He had however made a statement dated 29 December 2013. That statement contained no reference to a conversation with the accused about obtaining keys.[25] SC Firth said that he did not consider it important to note a conversation regarding obtaining from the accused the keys to the premises to be searched.[26]
[25] T 24.6.
[26] T 25.13.
I observe that there is tension within the evidence of SC Firth, between his evidence that he saw the keys taken from the accused by another police officer, and his evidence that he asked the accused for the keys and that the accused provided the keys to him. I prefer the evidence of the accused that he did not have the key to the Greenwith premises, but for reasons I will come to, little turns on that.
Ms Windram
Ms Windram, a forensic scientist, gave evidence regarding DNA material located at the Greenwith premises. I accept that she was a suitably qualified expert. I bear in mind the usual directions regarding expert evidence.
Ms Windram said a swab was taken from the firearm and submitted to Forensic Science South Australia for testing to identify whether any of the accused’s DNA was present on the firearm. There was insufficient DNA for any profiling to occur.[27]
[27] Exhibit P 5.

The two black gloves seized by police were also submitted for DNA profiling. The larger of the two gloves was analysed by conducting a tapelift of the inner surface, and conducting DNA testing of the material so obtained.[28] The result of the analysis from the larger glove was that the sample contained a mixed DNA profile from three contributors. The DNA profile obtained is 36 billion times more likely to have been obtained if the accused and two unknown persons were the contributors to the DNA, rather than three unknown contributors.[29] Further, there was a dominant contributor to the DNA profile (i.e. that person contributed more DNA than the other contributors) and that DNA profile is consistent with the reference sample of the accused.[30]
[28] T 32.2.
[29] T 32.9.
[30] T 32.27.
On the prosecution case, the accused’s DNA was present because he used the larger glove, and not as a result of secondary transfer. Ms Windram said in evidence that the fact that DNA material consistent with that of the accused was found on the larger glove did not establish conclusively that the accused had handled that item.[31] She could not exclude the possibility that the accused’s DNA was present because of secondary transfer,[32] although given the DNA material was extracted from a tapelift from the inner surface of the glove secondary transfer was less likely.[33] She said however that there were a number of possible mechanisms of secondary transfer including shaking hands,[34] the glove being placed on a surface containing the accused’s DNA in the residence,[35] and that could happen if the glove was inside out.[36] She said, the glove may have been inside out, and that there were many factors unknown to her, such that she could not properly express an opinion on secondary transfer.
[31] T 33.35.
[32] T 33.29.
[33] T 34.3.
[34] T 33.15.
[35] T 35.31.
[36] T 38.14.
A video recording[37] of the search appeared to show the larger glove, with a blue lining, rolled up together with the smaller glove, and placed on a surface within the premises. Ms Windram had earlier agreed that the fact that the accused lived at the premises may have meant that his DNA material was present on surfaces within the room.[38]
[37] Exhibit P1.
[38] T 34.31.
An analysis of DNA material from a tapelift of the inner surface of the smaller glove also revealed a mixed profile of three contributors. However the accused was excluded as a contributor.[39]
Agreed Facts
[39] T 33.4.
A number of facts were agreed. I set them out as follows:
1As at 14 November 2013 the accused was not the holder of a current firearms licence;
2Exhibit P3 was located by Police on the front of the refrigerator at the Greenwith property on 15 November 2013;
3The gloves Exhibit P2 were located by police in the same bag containing the firearm;
4The firearm was a Canadian Industries model 1171 bolt action repeating rifle;
5The detachable magazine located in the same bag as the firearm contained 11 rounds of ammunition and was the detachable magazine for this rifle;
6The accused was not charged with possession of the bong located by Police at the Greenwith property on 15 November 2013;
7The bong was not submitted to the Forensic Science Centre for examination or DNA analysis;
8On 24 July 2013 the accused was bailed at the Holden Hill Magistrates Court. One of the conditions of bail was that he reside at Unit 5, 36 Debenham Court, Greenwith;
9It was also a condition of his bail that he not possess a firearm, ammunition or any part of a firearm;
10Based on his admissions in the record of interview conducted on 15 November 2013 the accused was charged with breaching his bail by failing to reside at the Greenwith property. The accused subsequently pleaded guilty to the breach;
11As at 14 November 2013 the Peugeot sedan registration number CC932C was registered to Killa Pty Ltd of 961 Port Road, Cheltenham, SA 5014;
12Killa Pty Ltd is the registered proprietor of a car dealership in Cheltenham;
13The registration of the Peugeot was subsequently transferred into the name of Vicky Lorraine Dawn Morris on 8 January 2014;
14As at 14 November 2013 the accused’s driver's licence showed his address to be Unit 5, 36 Debenham Court, Greenwith;
15Vicky Lorraine Dawn Morris was the occupier of the Jennifer Street, Paradise address where Police attended prior to the search of the Greenwith property. It is also where the accused was arrested by Police on 14 November 2013.
Defence Evidence
The Accused
The accused was born in Afghanistan and in 1984 came to Australia with his parents and brothers. In 2007 the accused married in Afghanistan. He and his wife have two children.
The accused was the tenant of the Greenwith house.[40] The accused had lived there for four years. At the time of renting the premises the accused was in paid employment. However he ceased working about a year prior to the police attendance at the house. His wife was also unemployed.
[40] T 73.29.
The accused’s wife flew to Afghanistan on 18 September 2013, with the accused’s father, to attend her own father’s funeral. At that time the accused’s mother suggested that it would be best for the accused and his children to live with her in the family home which was a two storey home with five bedrooms, where she and the accused’s father had been living for 10 years.[41] His premises at Greenwith was a two bedroom townhouse.
[41] T 76.10.
The accused said he was happy to move in with his mother as she was in poor health, and it made sense for him to look after her and the children. When moving into his parent’s home, the accused took clothes for his children, his own clothes, and his children’s toys.[42]
[42] T 76.12.
The accused said that he took his wife and his father to the airport in order for them to travel to Afghanistan. I observe that the accused had some difficulty with dates. Ultimately he clarified his evidence regarding his wife’s departure for Afghanistan as having occurred on 18 September 2013.[43]
[43] T 119.4.
On 24 October 2013 the accused’s father and wife returned from Afghanistan. The accused said his wife was taking anti-depressant medication as a result of her grief. The accused, his wife and their children continued to reside with the accused’s parents for some time, until his wife felt well enough to return to the Greenwith premises. The accused continued to pay rent for the Greenwith premises.[44]
[44] T 77.22.
The accused said that at some stage earlier the Greenwith premises had been broken into and valuables were taken.[45] His evidence was unclear as to when that had occurred, although it appears to have been in 2011.
[45] T 78.21.
In any event, the accused said that he arranged for a former school friend, whom he named as Mr Markku Simpenon, to reside at the Greenwith premises whilst the accused was residing at his parent’s house, in order to secure the premises. The accused said that under that arrangement he continued to pay rent and Mr Simpenon was to reside at the premises free of charge. He said that it was a condition placed upon Mr Simpenon that he was not to let anyone else stay.
The accused said he had formalised that agreement, in writing, on 20 September 2013. The document had been signed by him and Mr Simpenon, and witnessed by the accused’s mother. He said, however, that he could not find the document. He said that he had told the landlord of the arrangement for Mr Simpenon to stay at the premises, but that he would continue to pay the rent.[46]
[46] T 105.13.
The accused said that Mr Simpenon attended at the Greenwith premises on 20 September 2013. The accused gave him a key to the premises. The rental agent had a key. The accused did not retain a key.[47] The accused said he originally had keys but lost one. On an earlier occasion he had locked his key in the house and had to arrange for the landlord to let him in.[48]
[47] T 79.19.
[48] T 80.28.
The accused said Mr Simpenon was residing at the Greenwith premises when the accused’s wife returned from Afghanistan.[49] After his wife had returned to Australia the accused attended at the Greenwith premises with his mother to collect a photograph album containing a photograph of his wife’s father. He entered the premises through the back sliding door and saw a man smoking cigarettes in the house. An argument ensued and the accused ejected the man from the house.[50] He said he did not know the man and that all he could say was that the man said he was a friend of Mr Simpenon. The accused said his mother said to him “Get in contact with Markku, sort it out with him. You don’t know this person, what is the point of fighting with him?”[51]
[49] T 81.17.
[50] T 82.2.
[51] T 82.9.
After the altercation with the man he encountered at the Greenwith premises, the accused said he was upset. He rang Mr Simpenon and demanded the return of the house key. He said that Mr Simpenon agreed, and said that the keys would be returned to the accused at the accused’s parent’s house. Mr Simpenon did not attend.[52]
[52] T 83.12.
The accused said he then received a telephone call from Mr Simpenon’s girlfriend, Ms Morris, requesting that the accused attend her address to collect the key.[53] He said that he attended her address, and he and Ms Morris went for a drive in Ms Morris’s new Peugeot convertible. He had not yet recovered the key from her. Upon returning to her address, a patrol car pulled alongside him and a police officer asked him for his address. He said he gave his parent’s address as his residential address. He said he was told he was under arrest for breaching bail, and was handcuffed.[54]
[53] T 83.27.
[54] T 85.10.
The accused said he had subsequently pleaded guilty to breaching bail by residing at his parent’s address which was not his bail address. He was sentenced to two weeks imprisonment which he served.[55]
[55] T 97.12.
The accused said he had never had a conversation with SC Firth, about keys to the Greenwith premises, nor about anything.[56] He said he did not have the keys when arrested, and that he understood that Ms Morris had the keys.[57]
[56] T 85.33.
[57] T 85.38.
The accused said that when he was questioned by police he told police he did not know anything about the subject firearm, and that he told police about an air rifle which was in the shed at the Greenwith premises. He agreed that he told police that the last people in the Greenwith premises were some cousins of his who attended to collect some chairs and that he hadn’t been back to the premises in about three and a half weeks. The accused explained the inconsistencies between his interview with police, and his evidence in court as being the result of his state of mind at the time of the interview.
The accused said he was taken to the city watch house. He was anxious, stressed, and emotional. He attributed that to a combination of factors including the fact that his wife had just returned from overseas and that his mother for whom he was in effect the principal carer, was ill, combined with being arrested.[58] He said that he suffered a bipolar disorder, and was required to take anti-anxiolytic and anti-depressant medication,[59] which had the tendency to cause confusion. The accused sought to explain his statement to police when interviewed, to the effect that the last people staying at the house were his cousins, as the product of his stress and confusion after he was arrested.[60]
[58] T 88.
[59] T 89.2.
[60] T 98.6.
The accused said that he assumed that the subject firearm belonged to Mr Simpenon, or to the other man he discovered at the premises.[61] He had not attended the premises between moving out, and finding the unknown man there on 14 November 2013.[62]
[61] T 95.36.
[62] T 96.16.
The accused agreed that he paid the rent and electricity accounts for the Greenwith premises during the time he lived at his mother’s house.
The accused denied being in possession of the subject firearm and denied ever having seen that firearm. The accused denied any knowledge of the bag in which the firearm was located, or any items in that bag,[63] including the gloves.[64] In cross-examination the following exchange took place regarding the gloves:
QHave you ever seen those gloves.
ANever.
QNot yours.
ANo.
QDon’t know whose they are.
ANo.
[63] T 92.16.
[64] T 92.2.
The accused said that he did not move back into the house until 5 May 2014 when he was released on bail after serving almost six months in custody related to this offending.[65] His wife and children had moved back in in February 2014.[66]
[65] T 108.14.
[66] T 109.22.
When cross-examined the accused said he did not tell police about Mr Simpenon because he was upset, confused and “all over the place.”[67] He was cross-examined closely about his responses to police questions and in particular about telling police not only that he had not been in the house for some weeks, but that the last people to live in the house were his wife, and subsequently three or four cousins who had stayed at the house briefly. He denied fabricating the evidence regarding Mr Simpenon. In cross-examination the accused conceded that although he had arranged for Mr Simpenon to move into the house he was still responsible for the premises, and that as far as the landlord was concerned he was still the tenant of the premises.[68]
Mrs Beedar
[67] T 110.19.
[68] T 104.33.
Mrs Beedar gave evidence about the accused and her grandchildren coming to live with her. She said that the accused and his two children moved in to live with her on the day that her husband and the accused’s wife left Australia for Afghanistan to attend the funeral.[69] They returned to Australia on 24 October 2013 and the accused’s wife then also lived at Mrs Beedar’s house.[70]
[69] T 122.3.
[70] T 124.1.
Mrs Beedar said she went, with the accused to his house, after he had arranged to have Mr Simpenon stay at the house. She met Mr Simpenon there.[71] She saw him sign an agreement and witnessed the agreement.[72] She said that she returned to the house with the accused on 14 November 2013, in order to collect a photograph album containing a photograph of her deceased brother.[73]
[71] T 123.3.
[72] T 127.18.
[73] T 123.35. – The accused and his wife are cousins.
She said that on the day she attended to collect the photograph album there was a man in the house, and he was smoking. She said it was not Mr Simpenon. She said he looked “like junkie person.”[74] There was a conversation between the accused and that person which she brought to an end.
[74] T 126.6.
Mrs Beedar said that after the accused’s arrest she and her daughter-in-law went to the house to clean it. She found clothing which she did not think belonged to the accused. It was not his style of clothing and was very large sized clothing.[75] She had retained that clothing.[76]
[75] T 126.16.
[76] Exhibit D12.
In cross-examination Mrs Beedar was challenged on the basis that her evidence was in fact based on what the accused told her to say. She said “No, the things I saw”.[77] It was put to her that she was merely trying to protect her son. She said “No, no, no. the things I see – I saw - I’m telling. Not to protect my son.”[78]
[77] T 127.36.
[78] T 128.14.
Agreed Facts
As part of the defence case, the following facts were agreed:
1That Markku Simpenon was the holder of a firearms licence until it was withdrawn on 11 June 2013.
2That his father Reina Simpenon was the holder of a class A and class B firearms licence up to and including 14 November 2013.
Discussion
I was assisted by the submissions made by counsel for the DPP and counsel for the accused. I do not intend, in these reasons, to deal with all of the arguments put forward. I have taken into account all the matters raised.
Counsel for the prosecution submitted that the accused’s evidence in court was inconsistent with what he had said to police, and that I should draw an adverse inference against the accused. Counsel for the prosecution submitted that the accused had either lied in his evidence, or had lied to police.
Counsel for the prosecution criticised Mrs Beedar and submitted that I should reject her evidence on the basis that she was very quick to answer defence counsel’s questions, was very exact regarding dates and times, and her account mirrored that of the accused. Counsel submitted that I should find that the accused had coached his mother. Counsel for the accused contended that Mrs Beedar’s evidence confirmed the account given by the accused, and that I should find that she was an honest and reliable witness.
I regard Mrs Beedar as a straightforward and reasonably impressive witness. She was clear in her evidence. She did not embellish her evidence. I accept her evidence regarding Mr Simpenon’s initial attendance at the house, her evidence as to the existence of an agreement between the accused and Mr Simpenon, and her evidence as to the altercation between the accused and the stranger smoking in the house. I also accept her evidence as to finding clothing at the house which did not apparently belong to the accused.
I accept the evidence of the accused as to the fact that Mr Simpenon was staying at the premises while the accused was living at his mother’s house. I do so on the balance of probabilities and on the basis that his evidence was corroborated by that of his mother, despite the fact that she had some difficulty with the English language. As I have said, I consider that she was a forthright and truthful witness. She was not shaken in cross-examination.
Counsel for the prosecution submitted that the admission by the accused that he was the tenant of the premises, the current account for electricity supply in the accused’s name and the payment of that account by the accused, and the fact that the premises was the accused’s bail address and driver’s licence address, when considered together should satisfy me beyond reasonable doubt that the accused occupied the premises within the meaning of s 5(14) of the Act.
When interviewed by police, the accused agreed that the Greenwith address was his bail address. He made admissions to the effect that he had breached his bail by not residing at the Greenwith premises. He was subsequently charged with the offence of failing to comply with a bail agreement,[79] and pleaded guilty to that charge. Having regard to the evidence of the accused, including his admission that he had breached bail, and the fact that he was charged and pleaded guilty to that offence on the basis that he was not living at his bail address, and having regard to Mrs Beedar’s evidence, I am not satisfied beyond reasonable doubt that the accused occupied or was in occupation of the Greenwith premises at the relevant time.
[79] Section 17 Bail Act 1995.
However in order to invoke the presumption in s 5(14) of the Act, it is not necessary for the prosecution to prove that the accused was in occupation of the premises. To repeat the observations of Tilmouth DCJ in R v Sandery:[80]
As the section is cast disjunctively, proof of any one of ‘occupies’, ‘care’, ‘control’, or ‘management’ would suffice to invoke the operation of s 5(14). In ordinary parlance ‘control’ means ‘to exercise restraint or direction over’, or ‘the fact of checking and directing action’, concepts less demanding than possession at common law.
[80] R v Sandery [2013] SADC 38 at [25].
While the evidence does not permit me to find that the accused was in occupation of the premises, despite my acceptance of the accused’s evidence that he did not have a key to the premises, such key being in the possession of the letting agent, and of Mr Simpenon, I find that he was in control of the premises within the meaning of s 5(14). He held a lease over the premises. He had the power to request a replacement key from the landlord. The fact that he may have permitted another person to occupy the premises on licence was not sufficient to displace that control.

Accordingly, although I may have a reasonable doubt as to the question of whether the accused possessed the firearm, the accused has the onus of establishing the defence under s 5(15) of the Act. In order for the verdict to be one of acquittal, the accused is required to establish that he did not know, and could not reasonably be expected to have known that the firearm was in the premises, and must do so on a preponderance of probability.[81]
[81] Thomas v The Queen (2010) 207 A Crim R 449 at [36]-[37].
In considering that issue I bear in mind the fact that the accused did not initially tell police about Mr Simpenon. I accept that may have been due to confusion, or possibly because of an unwillingness to disclose his arrangement with or connection to Mr Simpenon. Whilst on one view the presence of DNA material matching that of the accused being found on a glove found in the bag in which the firearm was located indicates a connection between that bag and its contents and the accused, there is, on the evidence, a reasonable prospect that DNA material was present due to secondary transfer given the way the search was conducted. That is a matter I take into account.
However, having accepted the accused’s evidence, supported as it was by that of his mother who I find to be a truthful witness, I am satisfied that the accused has 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.
Verdict
I find that the prosecution has established the elements of the offence, including possession within the extended definition, beyond reasonable doubt. I find that the accused has established the statutory defence set out in s 5(15) of the Act, on the balance of probabilities. I find the accused not guilty.