R v Britten - [2017] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRITTEN
Criminal Trial by Judge Alone
[2017] SADC 95
Reasons for the Verdict of Her Honour Judge Cole
30 August 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Accused charged with the offence of possessing a prescribed firearm without a licence. The firearm was located in the front passenger seat foot well of a vehicle where the accused had been seated. The accused denied having possession of the firearm.
Verdict: Guilty.
Firearms Act 1977 (SA) ss 5, 11, 36 ; Firearms Regulations 2008 (SA) reg 4, referred to.

R v BRITTEN
[2017] SADC 95
Introduction

The accused is charged on information with possessing a prescribed firearm without a licence, contrary to s 11(1) of the Firearms Act 1977.
The charge on the information is as follows:
John Britten is charged with the following offence:
Statement of Offence
Possessing a Prescribed Firearm Without a Licence. (Section 11(1) of the Firearms Act 1977).
Particulars of Offence
John Britten on the 4^th day of September 2014 at Seaton, had in his possession a prescribed firearm, namely a sawn off Marlin .22 bolt action rifle, without holding a licence authorising possession of that firearm.
The Firearms Act 1977 provides, in s 11(1):
A person who has possession of a firearm without holding a firearms licence authorising possession of that firearm is guilty of an offence.
The Firearms Act 1977 provides, in s 5(14) and (15):
(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.
(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 firearms 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 Firearm Regulations 2008 provide, in reg 4, a list of firearms which are prescribed for the purposes of s 5(1) of the Firearms Act 1977. The firearm the subject of the charge falls within the description of a prescribed firearm by virtue of a portion of its barrel having been sawn off, reducing the barrel to less than 330mm in length. The overall length of the firearm is 392mm.[1]
[1] Transcript p 41 line 16, 17- evidence of Brevet Sergeant Sanders. See regs 4(1)(c) and 4(1)(f).
Pursuant to an election made by the accused, the trial was heard without a jury.
General Directions
As this trial proceeded without a jury, I am the judge of both the facts and the law. I remind myself that the accused is presumed innocent unless and until his guilt has been proven beyond reasonable doubt. The prosecution must prove each and every element of the offence beyond reasonable doubt before the accused can be convicted of the charge. If the prosecution does not satisfy me beyond reasonable doubt of each and every element of the charge beyond reasonable doubt, then the accused continues to be presumed innocent, and I must return a verdict of not guilty. When, in these reasons, I say that something has been proven, I am to be taken as saying that it has been proven beyond reasonable doubt.
There is no onus of proof upon the accused.
I must determine whether the witnesses called are truthful and reliable. I may accept part of a witnesses’ evidence and reject part of that evidence or I may accept or reject all of that evidence.
The accused did not give evidence at the trial. He was not obliged to give evidence; he has the right to remain silent. I draw no adverse inference to him or to his case from his exercise of that right.
I must determine the facts in accordance with the evidence, considered logically and rationally, but I may use my common sense and experience in assessing the evidence.
Where the case rests upon circumstantial evidence, I cannot return a verdict of guilty unless the circumstances are inconsistent with any reasonable explanation other than the guilt of the accused. It is necessary that not only his guilt should be a rational inference, but that it should be the only rational inference to be drawn from the circumstances.
The Elements of the Offence
If the accused is to be found guilty of the offence charged, the Prosecution must prove the following elements of the offence beyond reasonable doubt:
1That the accused was in possession of the firearm;
2That the firearm was a prescribed firearm, namely a sawn off Marlin .22 bolt action rifle;
3That the accused did not hold a firearms licence authorising possession of the firearm at the relevant time.
It was evident from the appearance of the firearm, which was tendered, that it is a prescribed firearm.
The prosecutor tendered a certificate pursuant to the Firearms Act 1977, s 36, certifying that the accused was not, on 4 September 2014, the holder of a firearms licence. The Firearms Act 1977 provides, in s 36, that such a certificate is proof of the matter certified in the absence of proof to the contrary. The content of the certificate was not disputed. The prosecution proved beyond reasonable doubt that the accused was not, on 4 September 2014, the holder of a firearms licence.
Possession
The issue in this matter is whether the accused was in possession of the firearm on 4 September 2014.
I have set out the definition of “possession” in the Firearms Act 1977, above. The prosecution relied upon s 5(14)(a) and (b).
The Evidence
Constable Mannering
Constable Mannering gave evidence in the prosecution case. He said that he was on patrol with Constable Telfer on day shift when they had cause to pull over a 2002 white two door Holden Astra (“the Astra”).[2] There were five people in the Astra. Constable Mannering spoke to the driver at the driver’s window. Whilst speaking to the driver, Constable Mannering smelt cannabis in the Astra. He asked the occupants of the car to get out of the car. The accused was in the front passenger seat.[3] The driver remained in the Astra, and the other passengers got out of the Astra by means of the front passenger door. Constable Mannering moved to the footpath. He asked if any of the passengers wished to present him with anything before he searched the car. One of the passengers, Mr Chenoweth, said that he had uncapped needles in a bumbag, which he was wearing.[4] Whilst Constable Mannering spoke to Mr Chenoweth, the accused walked back toward the front passenger door. Constable Mannering told him to stop, and he did so. Constable Mannering then looked into the Astra from the passenger door and saw a bolt action rifle, upon which the barrel and the stock had been shortened, in the footwell of the front passenger seat of the Astra.[5] The rifle was partly covered by a pair of tracksuit bottoms, but it was obvious to Constable Mannering that it was a firearm.[6] Constable Mannering could see that the bolt of the rifle was forward and closed down, which is the firing position.[7] Constable Mannering said that he did not touch the firearm. He arrested the accused and took him to the Port Adelaide Police Station, where the accused was interviewed. The interview was videotaped.[8]
[2]    Transcript p 6.
[3]    Transcript p 8.
[4]    Transcript p 9.
[5]    Transcript p 9.
[6]    Transcript p 10.
[7]    Transcript p 10.
[8]    Transcript p 12.
Whilst Constable Mannering was still at the scene, he observed Constable Telfer filming Sergeant Trenaman proofing the firearm. Constable Mannering said that, prior to Sergeant Trenaman proofing the firearm, it had not been touched by anyone in his presence.[9] In examination in chief, Constable Mannering was shown the video footage taken by Constable Telfer. Constable Mannering said that the tracksuit pants and the firearm were in the same position in the video as when he first saw them.[10]
[9] Transcript p 12.
[10] Transcript p 24.
Constable Telfer
Constable Telfer gave evidence in the prosecution case. Constable Telfer was driving the patrol car which pulled over the two door Holden Astra containing the accused on 4 September 2014. Once the Astra had pulled to the kerb, Constable Telfer got out of the patrol car and stood on the footpath to the rear left of the Astra.[11] He observed that there were five people in the Astra. He observed that the accused, who was in the front passenger seat had opened the car door, but did not immediately get out. He observed that the accused was smoking. He saw the accused lean his seat forward to allow Mr Chenoweth to climb out of the back seat. Constable Telfer searched Mr Chenoweth. At some point Constable Telfer went back to the patrol car to run checks on Mr Chenoweth.[12] Constable Telfer then returned to the footpath. By this stage everyone who had been in the Astra had gotten out of the Astra.[13] Constable Telfer saw the firearm and the track pants partially covering it when his attention was drawn to it by Constable Mannering.[14] Constable Telfer described the firearm as being “in the footwell of the driver’s side right up to, partly obscured by the seat itself [sic]”.[15] However, later in his evidence, Constable Telfer was shown the video footage of the firearm and the track pants in the Astra’s front passenger seat footwell. He said that he thought that they were a little further out from the seat in the video footage than they were when he first saw them.[16] He recalled seeing that portion of the firearm from the butt to the trigger.[17] He thought that the firearm was slightly more obscured when he initially saw it compared to where it was in the video.[18] The firearm in the video footage was clearly in the front passenger seat footwell, which is consistent with the evidence of the other witnesses who were present at the scene. I find beyond reasonable doubt that the firearm was in the front passenger side footwell when Constable Mannering and Constable Telfer saw it. It was not in the driver’s side footwell at any relevant stage. When he gave evidence to the contrary, Constable Telfer misspoke. Constable Telfer said that he did not see Constable Mannering move the firearm.[19]
[11]   Transcript p 44.
[12]   Transcript p 51.
[13]   Transcript p 52.
[14]   Transcript p 44.
[15]   Transcript p 44.
[16]   Transcript p 55.
[17]   Transcript p 55.
[18]   Transcript p 55.
[19]   Transcript p 45.
Sergeant Trenaman
Sergeant Trenaman gave evidence in the prosecution case. Sergeant Trenaman was tasked to the scene on 4 September 2014. His attention was drawn to the Astra and the firearm in the front passenger seat footwell.[20] He asked Constable Telfer to record his actions on video, and Constable Telfer did so. Sergeant Trenaman took charge of the firearm, and saw that it had thin black material wrapped around it in such a manner that the bolt could not be opened. He observed that the bolt was closed and in a position such that, if there were a round of ammunition in the firearm, it could be fired. Sergeant Trenaman took the black material off the firearm.[21] There was red elastic under the black material, and Sergeant Trenaman removed that also.[22] He opened the bolt and found that the firearm was not loaded.[23] He placed the firearm on the passenger seat.[24] He then searched the Astra and found a motorcycle helmet in the boot.
[20]   Transcript p 15.
[21]   Transcript p 16.
[22]   Transcript p 17.
[23]   Transcript p 17.
[24]   Transcript p 20.
Brevet Sergeant Surman
Brevet Sergeant Surman gave evidence in the prosecution case. He also attended the scene. He photographed the firearm, together with the black material and the red elastic, all of which was then located on the front passenger seat of the Astra.[25] He then took a swab from the firearm on the trigger, the trigger-guard, the bolt and the grip, using the same swab. He examined the firearm for finger prints but found none. He sent the swab to the Forensic Science Centre for analysis.[26]
[25] Transcript p 59.
[26] Transcript pp 59-60.
Brevet Sergeant Sanders
Brevet Sergeant Sanders gave evidence in the prosecution case. He is an expert on firearms. On 26 September 2014, he examined the firearm which had been seized on 4 September 2017 from the Astra. Brevet Sergeant Sanders said that the firearm is a sawn off bolt action Marlin repeating rifle. In its original form, the barrel would have been longer. He measured the firearm as 392mm long overall. He test fired the firearm and it functioned correctly with no obvious defects. Brevet Sergeant Sanders said that the firearm was a prescribed firearm.
The yellow/orange object
In the video recording of the firearm in the front passenger seat footwell of the Astra, there is a small rectangular yellow or orange object next to the tracksuit pants and the firearm in the footwell. None of the police officers who attended the scene recalled the yellow or orange object (which may have been a piece of paper). It was not seized. I do not consider that its presence in the footwell at the time that the video recording was made has any bearing upon the issue of whether the accused was in possession of the firearm.[27]
[27] Transcript pp 39-41.
The Firearm
The prosecution established that the firearm had been stolen from its registered owner in September 2012.[28]
[28] Exhibit P9, Affidavit of Graham Bartram dated 30 April 2017.
Analysis of oral evidence
All of the witnesses who gave evidence in Court before me were credible witnesses and did their best to give truthful and accurate evidence. In considering their evidence, I bear in mind that nearly three years elapsed between the events giving rise to the charges and the trial. Constable Mannering had a clear and consistent recollection of events, and I accept the whole of his evidence as factual. For the same reasons, I accept the whole of the evidence of Sergeant Trenaman, Brevet Sergeant Sanders and Brevet Sergeant Surman.
Constable Telfer was a truthful witness, but I find that he was mistaken about two important matters. The first matter is his evidence that the firearm was in the driver’s side footwell, which he then implicitly contradicted in his evidence about the video footage, which clearly show the firearm in the front passenger seat footwell. As I have said, I find beyond reasonable doubt that the firearm was in the front passenger side footwell when Constable Mannering and Constable Telfer first saw it. The second matter is Constable Telfer’s evidence that the firearm was in a different position in the video footage from the position in which he first saw it. I find that he is mistaken about that, probably on account of the different angle of view from which the video was taken, compared to Constable Telfer’s angle of view. I find beyond reasonable doubt that the firearm was not moved from the time that all of the occupants of the car left the car to the time that the gun was picked up by Brevet Sergeant Surman.
DNA
A statement of Sheree Tracey Brozyna, a forensic scientist, was tendered in the prosecution case.[29] Annexed to the statement was a report concerning the analysis of the swab taken by Brevet Sergeant Surman from the firearm on 4 September 2014 and the mouth swabs taken from the accused and the other occupants of the Astra. The analysis excluded as contributors to the sample in the swab taken from the firearm all of the occupants of the Astra on 4 September 2014 when it was pulled over, except for the accused. The analysis found that there was a likelihood ratio of 450 million to one that the accused was a contributor to the sample on the swab taken on 4 September 2014 from the firearm. This evidence was not contested. I find, beyond reasonable doubt, that the accused’s DNA was on the firearm.
[29] Exhibit P7, Statement of Sheree Tracey Brozyna dated 6 January 2015.
Interview of the accused
The video recording of the interview of the accused by Constable Mannering was played in court and tendered as an exhibit.[30] In that interview, the accused said, among other things:[31]
[30] Exhibit P5, Disc recording of interview.
[31] Statement of Daniel Mannering dated 24 October 2014, Appendix B p 1 line 36 - p 2 line 45.
QOk John, all right John so you’ve been arrested today after we stopped your vehicle you were the front passenger in
AThat’s right, yes
QAnd located in the front pass, front passenger foot well was a sawn off bolt action rifle
AOn the floor
QYeah
ARight, just right there in public view
QYeah
ANo
QWhat have you got to tell me about that
AI didn’t see that, I just saw a pair of pants there, yeah I was sitting there with the door open, he was looking through, there was no, it wasn’t visible
QYeah
A…
QIt appeared to be partial hidden under some clothing
AYeah they’re not my clothing, but I do recall you finding the gun in the vicinity of where I was sitting
QIn the foot well
AThe foot well means it’s under my feet
QYeah that’s where it was
ANo well it couldn’t have been
QWe
ACause you would have seen it, actually I couldn’t, that way it wasn’t on the floor so I didn’t see it
QWas is, I
ACould it have been under the seat
QNo, no it was, it was, you said you saw some clothing in the foot well, it was under that clothing
AI saw some clothing there but …
QYeah
AThe seat moves back and forth and
QOk
A…
QThat’s all right, do you have any prior knowledge to that, of that firearm
AI didn’t know it was there no
QOk, did you see me find it
ANo I saw you putting your hand on your gun and asked me to put my hand up and then I lent back and I saw a brown something
QOk
AThen you told me
QYep
AYep
QFair enough, John do you currently have a firearms licence
ANo
QNo, ok, do you have any prior knowledge of that firearm before it was located
ANo
QHow would you describe it, from what you saw, how would you describe it
AI didn’t really see much of it mate just a brown the handle sort of thing
QBut it’s the rifle, the barrel and
AThat’s right yeah, when the officer held it up and went to see if it was loaded
QYep
AI saw a barrel, I don’t know short, so looked like it was cut off, sort of gun yeah
QHow, how did you see it as being secured.
AWhat do you mean secured
QWas it in a case or was it
AI don’t think so… as you said it was under some clothing you said
…
QWho had possession of that firearm prior to being located by police[32]
[32] Statement of Daniel Mannering dated 24 October 2014, Appendix B p 3 line 23 - line 35.
ANobody had possession, it was in the car somewhere
QWho put it in the car
AI don’t know
QDo you know who has previously had possession of that firearm
ANo
QDo you know where that firearm has previously been
ANo
QDo you have absolutely, under Section 30 of the Firearms Act, do you have any knowledge of the history of that firearm
AI don’t know of the history
QHave you touched the firearm
ANo
…
QYep, when did you first notice the clothing on the floor, front passenger floor[33]
[33] Statement of Daniel Mannering dated 24 October 2014, Appendix B p 4 line 33 - p 5 line 9.
AOh I didn’t really take much notice of it, just it was in the front of the seat
QWhen did you first notice it
AWhen I got in the car. I just looked down and said who’s are they and then she said they’re his
QShe said they’re his
AYeah, I don’t know who’s they are, I don’t know, just the pants
QThat’s the guy who was in the back seat
AYeah that’s right, they’re not mine though
QSo the trousers were already in the foot well when you got into the car
AI don’t know about the foot well but it was right in the front of the seat yeah
QYeah well it wasn’t under the seat, because you could see the seat
AYeah I know
QSo
AThat’s like
QIn the foot well there’s the start of the foot well basically isn’t it
AYeah right at the back
QYep
ARight at the back of the seat yeah
QYeah
AThe pants were just there, yeah
QDid anyone make any mention of it at all
ANo
QWhen the police stopped
ANo
QNot a word
ANo

The prosecution tendered extracts from a transcript of evidence given by the accused under oath before Judge Muscat in an abortive attempt to plead guilty to a charge under the Firearms Act 1977, s 11(1) on a day other than the day in relation to which the charge was laid, rather than entering a plea in relation to the charge as laid. I gave a ruling on 4 May 2017 allowing the prosecution to adduce that evidence on the basis that it is an exception to the hearsay rule because it contains voluntary admissions by the accused adverse to the accused’s case.
In his evidence before Judge Muscat,[34] the accused gave an account of events which he said occurred on 3 September 2014, the day before the Astra was pulled over by Constable Mannering and Constable Telfer. The accused said that, on 3 September 2014, in the afternoon, he was picked up in the Astra from Salisbury. The driver was the same driver as on 4 September 2014. There was a woman called Libby and a man called Roscoe (also known as Ross) in the back seat. The accused sat in the front passenger seat. The accused said in evidence that he saw Ross showing Libby the firearm in the back seat. The accused grabbed the gun from Ross. The accused opened the gun and saw that it was loaded. He pulled the bullet out and threw it out of the car window. He yelled at Roscoe and placed the gun under the front seat of the Astra. The accused said that when the car next pulled over, Roscoe jumped out of the car and ran. The accused said that this may have occurred at traffic lights or a stop sign. The accused thought that this incident occurred “Main North Road and Grand Junction-ish” or close to Gepps Cross. The accused said that he did not handle the gun again after he put it under the seat. In evidence before Judge Muscat, the following exchange occurred:
QYour evidence is when you got into the car on 4 September you didn’t even think to check under the front seat to see if the sawn-off rifle was still there.
AThat slipped my mind as soon as I got into the chemist virtually. I didn’t think about it.
[34] Exhibit P8, Pages of the transcript of 15 June 2015.
Ms Salvemini applied to tender extracts from the same transcript of the hearing before Judge Muscat. It was not clear on what basis she sought to tender the extracts as part of the defence case (indeed, the only evidence adduced in the defence case), but I allowed the extracts to be tendered on the basis that the prosecution had no objection and the tender was probably allowable as part of the context of the extracts tendered by the prosecution.
The extracts of the transcript tendered in the defence case[35] consisted mostly of the accused explaining the effect that methadone has on him. He said that it slows down his thinking and makes him feel drowsy. He said that it can make him forget.
[35] Exhibit D10, Pages of transcript read into the transcript.
There was reference to a visit to the chemist in both of the extracts of the transcript of the hearing before Judge Muscat. I infer that at some point on 4 September 2014, prior to the Astra being pulled over, the accused went to the chemist and took some methadone. I am unable to say whether that occurred before or after he first got into the Astra on 4 September 2014.
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,[36] 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.
[36] Exhibit P3, DVD disc of investigation.
Lies
I direct myself that people lie for all sorts of reasons, including panic, shame, fear, embarrassment, to protect someone else and out of fear of not being believed if the truth is told. Usually, the telling of a lie does no more than reflect upon the credibility of the accused. I do not infer guilt from the simple telling of a lie or lies.
I remind myself that it is for the prosecution to prove each element of the offence beyond reasonable doubt. The accused does not bear an onus of proof in this matter.
The interview of the accused
As I have said, the accused was interviewed by Constable Mannering, in the presence of Constable Telfer, on 4 September 2014, and the interview was videotaped.[37]
[37] Exhibit P5, Disc recording of interview.
I do not accept as factual the statements made by the accused in the interview with Constable Mannering when the accused said that he did not know that the firearm was in the footwell of the front passenger seat of the Astra on 4 September 2014. He said that he had no prior knowledge of the firearm. He said that he did not know who put the firearm in the Astra. He said that he had not touched the firearm. All of these statements were contradicted by the physical evidence of the presence of his DNA on the firearm. They were also contradicted by the evidence of the presence of the firearm in the front passenger seat footwell of the Astra when the Astra was stationary at the kerb, having been pulled over, on 4 September 2014.
The transcript before Judge Muscat
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 “Roscoe”. 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 “Roscoe” getting out of the Astra when the Astra next stopped and running away is inconsistent with the Astra being a two door car.
Conclusion regarding the interview and the transcript
Nothing in the interview of the accused nor the transcript of his evidence before Judge Muscat forms a basis for reasonable doubt as to whether the accused was in possession of the firearm.
Mr Healy suggested that I draw an inference adverse to the accused from the presence of a motor cycle helmet in the boot of the Astra. I decline to do so. There are many possible explanations for the presence of the motor cycle helmet.
Conclusion
It has been established beyond reasonable doubt, and it is not contested, that the firearm is a prescribed firearm and that the accused did not, at the relevant time, hold a firearm licence.
I find, beyond reasonable doubt, on the evidence of Constable Mannering together with the video footage of the firearm in the front passenger seat footwell of the Astra, that the firearm was at the feet of the accused in the Astra, that the accused knew that the firearm was at his feet, and that the accused had possession of the firearm within the meaning of the Firearms Act 1977 whilst he was in the front passenger seat of the Astra on 4 September 2014.
I find the accused guilty.