R v Britten - [2018] SASCFC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRITTEN
[2018] SASCFC 36
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)
11 May 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Appeal against conviction imposed in the District Court for an offence of possessing a prescribed firearm contrary to s 11(1) of the Firearms Act 1977 (SA).
The appellant had earlier pleaded guilty to the offence before another Judge of the District Court, but, after a disputed facts hearing, that Judge refused to accept his guilty plea and the matter was listed for trial. The information alleged that on 4 September 2014 the appellant had in his possession a sawn-off Marlin .22 bold action rifle which was found by police in the footwell of the front passenger seat of a two door Holden Astra.
The trial Judge found that the appellant had custody of the rifle even though the prosecution had not put its case on that basis, instead relying on the “exercise access” limb of the extended definition of possession in s 5(14) of the Firearms Act 1977 (SA).
Held per Kourakis CJ (Bampton and Parker JJ agreeing), allowing the appeal:
1. The trial Judge was entitled to infer from the presence of the rifle in the front passenger footwell that the appellant saw it, either before he got into the car or at some point whilst he sat there (at [15]).
2. The evidence established beyond reasonable doubt that the appellant saw the rifle before the police pulled over the Astra (at [15]).
3. Knowledge of the presence of the rifle in the footwell of the car does not, of itself, make out the objective elements of the offence of possessing a prescribed firearm (at [16]).
4. Because of the way in which the trial was conducted, it was not open to the trial Judge, and it is not open to this Court, to convict the appellant (at [19]).
5. The conviction of possession of the firearm on 4 September 2014 cannot be sustained. The Court orders instead that an order of acquittal be entered (at [20]).
Firearms Act 1977 (SA) s 5(14), s 11(1), referred to.
R v Britten [2017] SADC 95, not followed.
R v Myall (1986) 43 SASR 258, discussed.

R v BRITTEN
[2018] SASCFC 36
Court of Criminal Appeal: Kourakis CJ, Bampton and Parker JJ

KOURAKIS CJ: This is an appeal, following a trial by Judge alone, against a conviction for an offence of possessing a prescribed firearm contrary to s 11(1) of the Firearms Act 1977 (SA) (the Firearms Act). The appellant had earlier pleaded guilty to the offence before another Judge but, after a disputed fact hearing, that Judge refused to accept his guilty plea and the information was listed for trial. The information alleged that on 4 September 2014 the appellant had in his possession a sawn-off Marlin .22 bolt action rifle (the rifle) which was found by police in the footwell of the front passenger seat of a two door Holden Astra. The car belonged to Ms S, who was driving the vehicle when it was pulled over by police. The appellant was seated in the front passenger seat and three others were seated in the rear of the car.
The trial Judge found that the appellant had custody of the rifle even though the prosecution had not put its case on that basis, relying, instead, on the “exercise access” limb of the extended definition of possession in s 5(14) of the Firearms Act. As a result of permission to amend the grounds of appeal in the course of the hearing, the questions on appeal are:
·Whether the Judge erred in finding as a fact that the appellant knew the rifle was in the foot well; and
·If her Honour did not so err, whether the evidence established beyond reasonable doubt that the appellant was in possession on either limb of the statutory definition.
For the reasons which follow I would hold that the trial Judge correctly found that the appellant knew the rifle was at his feet but that the evidence did not establish beyond reasonable doubt that he had custody of, or had exercised access to, it.
The evidence
After pulling over the car the police asked the occupants to get out of the car. The evidence of two of the police officers conflicted as to whether the appellant or the rear seat occupants alighted first. On the testimony of one of the police officers therefore, it is possible for rear passengers of the Astra to get out of the vehicle even whilst a passenger remains seated in the front. That evidence bears on an account given by the appellant of events of the preceding day, to which I turn below. After the passengers alighted from the Astra, a police officer looked in through the open passenger’s door and saw the rifle in the footwell of the front passenger seat. It was partly covered by a pair of tracksuit bottoms but it was apparent to the police officer that it was a firearm. The rifle had red elastic and other black material wrapped around the bolt and part of the barrel.
A single swab of the trigger guard, bolt and grip of the rifle revealed DNA with a profile which matched (by a likelihood ratio of 450 million to one) that of the accused. Not surprisingly, therefore, the trial Judge, in a finding which is not challenged, found that the biological material on the firearm which produced that result was that of the appellant’s.
After he was arrested the appellant told police he saw a pair of pants in the footwell of the front passenger seat when he first got into the Astra. He denied that it was his clothing. He denied that he knew the rifle was under the clothing and any prior knowledge of it.
The trial Judge received into evidence the transcript of testimony given by the appellant in the earlier disputed facts hearing. In that hearing, the accused had testified that on 3 September 2014, the day before the police pulled over the Astra, he was travelling in the Astra with Ms S. Another woman, L, and a man, R, were in the back seat. R produced a rifle which he showed to L. The appellant became angry that R had the rifle in the car and took it away from him. The appellant saw that it was loaded and opened the bolt to eject the bullet, which he then threw out of the window, before placing the rifle under the front seat of the Astra. The appellant testified that when the car next came to a stop at traffic lights, R jumped out of the car and ran away. In his evidence on the disputed facts hearing, the appellant claimed that he had forgotten that the rifle was there when, on the following day, he again got into the car. He attributed his forgetfulness to the fact that he had just taken methadone. That account is of course inconsistent with the appellant’s claim to police that he had no prior knowledge of the rifle. It should also be noted that the account implies that it was possible for R to get out of the back seat of the Astra whilst the appellant and Ms S remained seated in the front seats. Finally, the appellant did not mention in his evidence in the disputed fact hearing, that there was any material wrapped around the rifle.
The basis for admission of the appellant’s testimony could only have been that it was an admission against interest in that he knew of the presence of the rifle on the previous day and, by inference from that admission, that he must have known it was there on the next day when the police found it in the foot well of the Astra. The appellant’s self‑serving exculpatory claim in that testimony, that he had forgotten about the rifle the next day, was also admissible because it supplied context to the admission, but was of little weight.
The trial Judge rejected the appellant’s exculpatory account of the events of 3 September 2014 for the following reasons:
[40]I do not accept as factual aspects of the account given by the accused of the events of 3 September 2014 under oath in the hearing before Judge Muscat in relation to his interaction with the firearm and the behaviour of “[R]”. The accused’s account of his interaction with the firearm is inconsistent with the physical evidence, in that the firearm, when found by Constable Mannering, had red elastic and black material wrapped around the bolt and portion of the barrel. The account of the accused before Judge Muscat makes no mention of wrapping the gun in red elastic and black material subsequent to taking the bullet out and throwing it out of the window and prior to placing the firearm under the front passenger seat. The account of “[R]” getting out of the Astra when the Astra next stopped and running away is inconsistent with the Astra being a two door car.
I make the following observations about that paragraph.
First, the inconsistency in the appellant’s account based on the presence of material around the rifle on 4 September 2014 assumes that the rifle was in the same condition on 3 September 2014. However, there was no evidence excluding the possibility that the rifle had been taped up at some time on 3 September 2014, or on 4 September 2014 before police pulled over the Astra.
Secondly, as I earlier observed, the testimony of one of the police officers implicitly accepted that it is possible for a backseat passenger to get out of the Astra even whilst the passenger remains in the car. There is nothing in the evidence to suggest that a passenger could not also get out from behind the driver’s seat in a similar way. Indeed, photographs of the Astra received into evidence show that the lever to move the driver’s seat was accessible from the rear seat. Moreover, Ms S was considerably smaller than the appellant, which would ordinarily allow for more room for a backseat passenger, given that she sat in one of the front seats.
Finally, and most importantly, I observe that in any event the rejection of the appellant’s account about the incident on 3 September 2014 did not extend to a rejection of the possibility that the appellant had some contact with the rifle before 4 September 2014. Indeed it is to be remembered that the prosecution led the evidence to prove that because the appellant was aware of the presence of the rifle on 3 September 2014 he would not have forgotten about it just one day later. There was therefore no evidence which could exclude the possibility that the appellant held the rifle, leaving his DNA on it, on 3 September 2014.
In the ordinary course, the date of possession of a firearm for the purposes of s 11 of the Firearms Act would not be material. However, the Director of Public Prosecutions (the Director) accepted on the appeal that the date of possession was treated as material in the conduct of the trial. Indeed the appellant applied at trial to amend the Information so that it would allege possession on 3 September 2014, but the prosecutor opposed the making of that amendment. Plainly enough, on the appellant’s own admission in the disputed fact hearing, he accessed the firearm on 3 September 2014. Acceptance by the Director of the appellant’s admission to handling the firearm on 3 September 2014 would not necessarily have entailed an acceptance of the mitigating circumstances claimed by the appellant which, if contested, would have resulted in a disputed facts hearing. Nonetheless, for whatever reason, the Director persisted in prosecuting a case of possession on 4 September 2014.
The trial Judge found that the appellant was in possession of the rifle on 4 September 2014 for the following reasons:[1]
[35]Ms Salvemini argued, in summary, that the accused was not in possession of the firearm because, although he placed it under the front passenger side seat of the Astra on 3 September 2014, he had forgotten about it on 4 September 2014, partly because he took methadone that day. I reject this argument. I reject the submission that the firearm was completely concealed under the front passenger seat of the Astra on 4 September 2014. Plainly, from the video footage, the firearm was in the front passenger footwell and at least a substantial portion of it was to the front of the seat, visible and obviously a firearm. The accused would have had to make an effort to avoid treading on it as he got out of the Astra. In so finding, I bear in mind the possibility that the accused, having gotten out of the car himself, may have then moved the seat forward to let the passengers in the rear of the Astra get out of the Astra. However, even if the firearm had been completely concealed by the front passenger seat, the accused would still have been in possession of it. The accused’s DNA was on the firearm, and he admitted placing it under the seat. He knew it was in the Astra. In order to have custody of the firearm, the accused does not have to be consciously thinking about where it is all of the time. He does not have to have a line of sight to it at all times. He simply needs to know where it is, and have control over it. That control need not be to the exclusion of others. It is possible for two or more people to have joint custody of something, though in this matter there is no evidence of joint custody. It is also possible for a person to have custody of something whilst they are under the influence of methadone. I find beyond reasonable doubt that the accused had both knowledge of and control over the firearm on 4 September 2014. He had custody of the firearm. He had possession of the firearm.
[1] R v Britten [2017] SADC 95 at [35].
The appellant’s first complaint is that the trial Judge was wrong to find that the appellant was aware of the presence of the rifle on 4 September 2014. I reject that complaint. The trial Judge was entitled to infer from the presence of the rifle in the front passenger footwell that the appellant saw it, either before he got into the car or at some point whilst he sat there. True it is that a passenger might not always notice everything that is in the footwell. However, in this case the appellant admitted to police that he saw the tracksuit which, at some point, had been placed over the rifle. That admission makes it even more likely that the appellant noticed it beneath the tracksuit. Moreover, the appellant had, on his own admission, seen the rifle on the previous day, and had, on the DNA evidence, handled the firearm sometime before the police pulled the Astra over. The trial Judge was entitled to infer from that evidence that the appellant saw the rifle, or part of it, on 4 September 2014 at some time before the police pulled over the Astra. I acknowledge that the position of the rifle might have been changed at some point between when the appellant first got into the Astra and when the police found it. However, the trial Judge was not bound to accept the hypothesis that the rifle only became visible after everyone had exited the Astra. The evidence established beyond reasonable doubt that the appellant saw the rifle before the police pulled the Astra over.
However, knowledge of the presence of the rifle in the footwell of the car does not, of itself, make out the objective elements of the offence of possessing a prescribed firearm. That is the subject of the appellant’s second complaint.
Section 11(1) of the Firearms Act makes it an offence to possess a firearm without a licence, but the concept of possession is extended beyond the common law concept by s 5(14) of the Firearms Act, which provides:
(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.
Subparagraph (c) can be put to one side because it has no application to the appellant, who was not a driver or otherwise in control of the Astra. The prosecution case was that subparagraph (b) applied. The trial Judge, however, as has been seen, found that the appellant had custody of the rifle pursuant to subparagraph (a).[2]
[2]    R v Britten [2017] SADC 95 at [35].
The only evidence that the appellant had custody of the rifle was that it was at his feet in the front passenger foot well of the Astra. There was no evidence that the appellant said or did anything to assert his control to the exclusion of the other occupants of the car. A driver of a car, and even a backseat passenger, may assert and exercise custody and control over an item in a car even if that item is not next to, or within arm’s reach, of him or her. It is a matter of common experience that the belongings of a driver, or other occupant of a car, might be in more easy reach of others, but that fact alone does not support a conclusion that the occupant seated nearest to the item has exclusive control over it. I acknowledge that the DNA evidence establishes that at some time on or before 4 September 2014 the appellant handled the rifle. However, that may have happened on a day or days before 4 September 2014. Moreover, it is well accepted that the mere handling of an item of property does not establish possession or control.[3] Nor was there any evidence from which it could be inferred that the appellant and any one or more of the occupants of the car possessed or exercised control over the rifle together. There was no evidence, for example, from which to infer that the occupants were embarking upon a criminal, or other, enterprise which would allow a conclusion that they were in joint possession of the rifle.
[3] R v Myall (1986) 43 SASR 258 at 261.
On the appeal, the Director supported the conviction, consistently with its case at trial, on the basis that the appellant had exercised access to the firearm. The access was particularised at the general level of touching or holding the firearm in the area of the trigger, bolt or grip, an inference which it was said could be drawn from the presence of the matching DNA profile. The difficulty with that submission is, as I earlier remarked, that that evidence does not exclude possession of the firearm on some day prior to 4 September 2014. In the ordinary course, a conviction of exercising access to the firearm on 3 September 2014, might properly have been returned on the appellant’s admission in the disputed facts hearing. However, because of the way in which the trial was conducted, it was not open to the trial Judge, and is not open in this Court, to convict the appellant of an offence committed on 3 September 2014.
Conclusion
The conviction of possession of the firearm on 4 September 2014 cannot be sustained. I would allow the appeal. I would set aside the conviction and order instead that an order of acquittal be entered.
BAMPTON J: I would allow the appeal for the reasons given by the Chief Justice. I agree with the orders he proposes.
PARKER J: I agree with the reasons of the Chief Justice and the orders he proposes.