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,…

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 Britten

Details

AGLC: R v Britten [2018] SASCFC 36
Case: [2018] SASCFC 36
Decision Date: 11 May 2018

CaseChat Overview and Summary

The appeal concerned a criminal conviction for possession of an offensive weapon, specifically a firearm. The appellant, R v Britten, was convicted by a trial judge of possessing a rifle found in the footwell of the front passenger seat of a car in which he was a passenger. The Court of Appeal of South Australia was required to determine whether the evidence established beyond reasonable doubt that the appellant had possession of, or had exercised access to, the firearm.

The central legal issue was whether the appellant's DNA found on the rifle, coupled with his prior inconsistent statements and testimony from a disputed facts hearing, was sufficient to prove beyond reasonable doubt that he possessed the firearm on the date of the offence, or had exercised access to it. The prosecution argued that the DNA evidence, particularly on the trigger guard, bolt, and grip, indicated the appellant had handled the weapon. The appellant, however, had provided conflicting accounts, initially denying any knowledge of the rifle and later admitting to having handled it the previous day, attributing his forgetfulness to methadone use.

The Court of Appeal reasoned that while the DNA evidence strongly indicated the appellant's biological material was on the rifle, it did not exclude the possibility that this contact occurred on a date prior to the alleged offence. The appellant's admission of handling the rifle on the day before the police stop, while incriminating, could not form the basis of a conviction for the offence charged on the later date due to the way the trial was conducted. The court found that the evidence did not establish beyond reasonable doubt that the appellant had custody of, or had exercised access to, the rifle on the specific date of the alleged possession.

Consequently, the Court of Appeal allowed the appeal, set aside the conviction, and ordered that an acquittal be entered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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