R v Brook - [2023] SADC 75

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BROOK
Criminal Trial by Judge Alone
[2023] SADC 75
Reasons for the Verdict of her Honour Judge Tracey
27 June 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - RELATIONSHIP BETWEEN COMMONWEALTH AND STATES GENERALLY
The accused is charged with one count of possessing a firearm without a license, between 1 June and 31 July 2020.
Police attended the accused's house at on 5 August 2020 and located the firearm in a fuse box in the rear shed of the property. During the search, police located 31 rounds of .22 calibre ammunition in a safe, which was capable of use in the seized firearm.
The prosecution relies on the evidence of a roommate and friend to the accused, who was present at the property at the time of the seizure.
Verdict: Not guilty.
Firearms Act 2015 (SA) s 6(2)(d) referred to.

R v BROOK
[2023] SADC 75

Mr Brook (the accused) is charged with the offence of possessing a firearm without a licence. He pleaded not guilty to the charge and elected to be tried by judge alone. The charge is as follows:
First Count
Statement of Offence
Possessing a Firearm Without a Licence. (Section 9(1) of the Firearms Act, 2015).
Particulars of Offence
Evan John Brook between the 1^st day of June 2020 and the 31^st day of July 2020, at Mount Gambier, possessed a prescribed firearm, namely a cut-down Lithgow model 1B .22 single shot rifle, without holding a firearms licence authorising possession of that firearm.
Elements of the offences
The offence requires proof of three elements
1.      The accused had possession of a firearm;
2.      The firearm was a prescribed firearm;
3.     The accused did not have a firearms license authorising possession of that    firearm.
Prosecution Case
The prosecution alleged that between 1 June 2020 and 31 July 2020 the accused, was in possession of a sawn-off Lithgow model 1B .22 single shot rifle and relied largely on the evidence on two civilian witnesses, Ms Naomi Eatts (Ms Eatts) and Mr Stephen Knill (Mr Knill).
Ms Eatts was previously in a relationship with the accused and lived with him at his house at Playford Street in Mount Gambier from around late 2019 until June 2020. Ms Eatts observed a firearm at the property. By mid-2020 Ms Eatts and the accused’s relationship had broken down and she moved to a property on Orr Street, Mount Gambier and Mr Knill then moved in with the accused, living in a rear bedroom of the property, attached to a shed. Sometime around July 2020 the accused spoke to Mr Knill, telling him he had a firearm inside a safe and was concerned he might use the firearm on Ms Eatts. The accused asked Mr Knill to remove the firearm from the property. Mr Knill went to the safe, retrieved the firearm, placing it in a bag and then hid it in a small alcove at an abandoned cinema complex (the complex). Sometime later, Mr Knill resolved that the hiding place for the firearm was unsafe. He retrieved the firearm and placed it in a fuse box situated in his rear bedroom so that it was out of sight from the accused.
Mr Knill then spoke to Ms Eatts who became concerned as to Mr Knill’s mental health and whether Mr Knill might use the gun on himself. The following day, that is, 5 August 2020, Ms Eatts telephoned Mount Gambier police, which led to a search of the accused’s property on that day. When police arrived, they located the accused at the front of the house and on searching the rear shed, they found Mr Knill in his rear bedroom. Mr Knill directed police to the fuse box where the firearm was found and to a safe in the floor of the shed from where he had first retrieved the firearm.
During their search, police located 31 rounds of .22 calibre ammunition in the floor safe. The ammunition was capable of use in the seized firearm. Police noticed that the firearm bolt appeared to be missing, and Mr Knill and police attended at the complex and found a bolt in the alcove where Mr Knill had said the firearm had previously been left.
The prosecution case was therefore that prior to Mr Knill handling the firearm, the accused was in possession of the firearm which he had been storing at his property, and which he been observed physically handling.
While the prosecution case was that there were a number of bases upon which the accused could be found to be in possession of the firearm as defined under s.6(2) of the Firearms Act 2015 (the Act), it was accepted that Mr Knill's account was fundamental to the issue of possession and that should I be unable to accept his evidence beyond reasonable doubt, it would not be necessary to consider whether the presumption provided by s 6(2) (d) of the Act applied.
General Directions
I direct myself as follows:
·The accused is presumed innocent unless or until his guilt has been proved beyond reasonable doubt.
·The burden of proving the charge lies wholly on the prosecution and the accused was not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.
·The accused did not give or call evidence. That was his right and I must not treat his silence as an admission or to fill gaps in the prosecution evidence. It is for the prosecution to prove its case beyond reasonable doubt.
·I must assess each witness as to their truthfulness and reliability and must determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’s evidence.
·Where, as in this case, the prosecution relies upon circumstantial evidence to prove the offence, before the accused could be convicted on this evidence, his guilt must be the only rational inference which can be drawn from the circumstantial evidence. A verdict of guilty cannot be returned unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused. In determining whether an inference is reasonable, I must consider the evidence as a whole.
·The accused entered a guilty plea to an offence of possession of ammunition, relating to the ammunition that was found in the floor safe by police on 5 August 2020. I allowed evidence of that plea to be led on the prosecution case for a non-propensity purpose in that it operated as a piece of circumstantial evidence by which I could draw a clearer association between the ammunition and the firearm. Having done so, I make it plain that I have not used any evidence, including evidence of the threats alleged to have been made by the accused against Ms Eatts and her family in a way that is impermissible.
Prosecution Evidence
The prosecution called:
·Mr Knill,
·Ms Eatts
·Brevet Sergeant Owen Wales (BS Wales)
·Brevet Sergeant Michael Pickburn (BS Pickburn)
·Constable Nigel Halleday (Constable Halleday)
·Senior Constable Chad Chewter (SC Chewter)
Evidence of Stephen Knill
Mr Knill said he had known the accused since early 2020 and had met Ms Eatts around the same time. He would regularly attend at the accused’s address, and they all got along well. When Ms Eatts moved back to the address at Orr Street, he moved into the accused’s property, living in a room in the back of the shed.
He said that he had many conversations with the accused about Ms Eatts and one at the end of June stood out. The accused told him that he felt like ‘slitting Ms Eatt’s granddaughter’s throat and making her watch’. The accused told him that he had a firearm in the safe in the shed and he did not feel safe holding onto it because he felt tempted to use it and asked Mr Knill to remove the firearm from his reach. The accused had previously mentioned to Mr Knill that he had access to firearms. At the time, Mr Knill was aware there was a safe in the shed but unaware of the contents. Mr Knill said he went to the shed, opened the safe which was already unlocked, and removed the firearm, placing it in a black Woolworths bag. He put the firearm in his backpack and left the property, taking it to the complex, which he said was an abandoned building, and hid the firearm in an alcove underneath one of the rooms. He decided to go to that location because it was out of the way and not somewhere that anyone visited frequently. He said he had believed at that time that it would be a safe hiding place.
Mr Knill said he removed it from the alcove about a week later, after he realised that it was not a very safe place. When he retrieved the firearm, he did not open the bag. He took it back to Playford Street and placed it in the fuse box in the back of his room and left it there.
He recalled then going to Ms Eatts house that same day, within a matter of hours and talking to her about having removed the firearm from the safe, telling her that it was no longer in the accused’s possession. It was late in the evening. He told Ms Eatts he did not feel safe holding onto the firearm because he was getting into a bad state of mind and was starting to feel very suicidal. He told her he did not know what to do with the firearm and asked her to call police to let them know that he had it and where it was.
He said he told Ms Eatts that:
“You know the gun Evan’s got in his safe? She said yes, so I said it’s no longer there. I’ve got it in my possession now. I don’t remember whether or not I told her where it was, I don’t believe I did, but I’ve actually said quite clearly that I didn’t feel capable of going to the police myself and handing it in, but I said that if the police were to come and ask me the right questions, I was happy to comply with their investigation”.[1]
[1] T 19-20.36-38 & 1-6.
After speaking with Ms Eatts, he went back home and locked himself in his room and went to sleep. The next thing he recalled was being woken by police the next day around lunchtime. He said he removed a barricade from the door and allowed police into the room. When they asked him if there was anything in the room that they should be aware of he told them there was in the fuse box. He was removed from the room and he then saw police bring out the black bag he had put into the fuse box. He was then placed under arrest. He told police where the safe was from where the firearm had originally come.
The following day he was taken by police to the complex to locate the firing bolt, which had fallen out of the bag when he removed the bag from the alcove.
Mr Knill described the firearm as “… a saw-off rifle with a wooden stock and a black barrel”.[2]
[2] T 23. 1-2.
Mr Knill said that since leaving Mt Gambier in January 2023 he has not had any further dealings with Ms Eatts. He said, “we’re estranged, we haven’t spoken in a while”.[3]
[3] T 24. 19.
In cross-examination, Mr Knill said that the last time he saw Ms Eatts would have been early 2022. When he lived with the accused, he was not aware that the accused had another partner. When asked whether he was aware of a Ms Grosser sleeping in the same bed as the accused, Mr Knill said “I wasn’t totally aware of that, no. I was aware that somebody else had stayed occasionally but I wasn’t aware that they actually slept in the same bed as partners”.[4] He then said that he was aware that they were in a relationship and aware that they had been in the same bed on a couple of occasions. He denied being jealous of the accused. He said he was annoyed with him at the time because he had expressed interest in Ms Grosser himself. He said he had a certain attraction to her, but it was more “psychological than physical”[5] and did not recall telling police that he had “a bit of a crush on”[6] Ms Grosser. He thought that was probably the best way that he could phrase it. He said he had believed that the relationship between the accused and Ms Grosser was destroying his friendship with her in that she was becoming a stranger to him and spending more time with the accused. He agreed that Ms Eatts was also upset with the accused.
[4] T 25. 8.
[5] T 26. 3.
[6] T 26. 25-26.
As to his conversation with Ms Eatts on 4 August 2020, Mr Knill said that he told Ms Eatts he was not comfortable handing the firearm in to police himself and asked her to do so. They had both agreed that getting police involved was the best step. He agreed that he had stored the firearm in the Complex for almost a week and was worried he was going to get into trouble.
Mr Knill said he was sure that police asked him whether there was anything that they should be aware of in his room and did not remember police asking whether there was anything in there that could get him into trouble. He had installed the fuse box in his room a couple of days before removing the firearm from the complex, explaining that he did so to use for storage for himself but had not decided what he would store there.
Mr Knill denied having made up the story that the gun was in the safe. He said he told police about a security surveillance system in operation that could show him removing the gun from the safe. He said that when the accused told him that the safe was unlocked this sent chills down his spine but because the accused was a friend, he did not feel that he should take it to police.
Mr Knill said he had told Ms Eatts about the threats the accused had made, despite not having said so in his earlier evidence.
Mr Knill described his mental health at the time he was dealing with the firearm as strained and broken and that he had been feeling suicidal. He said that the longer he held onto the gun the more he felt tempted to use it to end his life, but that had not been the initial reason he had acted.
He was not aware that the bolt had fallen out until police asked him where it was. He said that the bolt which had fallen out onto the ground inside the alcove, most likely fell out of the bag when he was removing the firearm from there.
Mr Knill agreed he had originally told police he left the firearm in the alcove for an hour. He said that due to his poor mental health that had been ‘bad recall’.[7] He said that was not because he was trying to make sure he did not get into too much trouble but rather, it had not felt like it had been a week. He was sure it could not have been longer than a week and his drug use had not affected his memory.
[7] T 41. 12.
With respect to his conversation with Ms Eatts, he did not recall what room the conversation took place in or whether they were sitting or standing. He said it was late evening. He had been to the complex and had removed the firearm from the alcove and put it in the fuse box.
After he put the firearm in the fuse box, he barricaded the doors and went and spoke to Ms Eatts. Mr Knill said that while he had been using drugs around the time, he had not used on the night he spoken with Ms Eatts and had last used methamphetamine probably two days beforehand. He denied he had taken drugs with Ms Eatts at the time as she had stopped using drugs by that point. He was using methamphetamine when he put the gun in the alcove. Mr Knill said he had a heavy substance abuse problem and there were not many days where he did not use, but denied his recall was affected by his drug use. While he was using drugs at the time he spoke with the accused about the firearm, he had remembered key aspects of the conversation.
While accepting that he was inherently unstable at the time, Mr Knill denied that the instability in his mental health had led him to obtaining a firearm or that he was waiting to use it until it was the right time to kill himself. He agreed that he was upset with the accused at the time but had only a suspicion that the accused and Ms Grosser were sleeping together. He denied that getting the accused into trouble was his way of getting to Ms Grosser and denied he was giving evidence to avoid being arrested again.
Mr Knill said that when he retrieved the firearm from the safe, he did not notice anything else there. He said that he was not looking in the safe to notice anything. He took the firearm out and that was it.
Evidence of Naomi Eatts
Ms Eatts said she had known the accused for about 20 years and was living with him as his partner in around October 2019 until June 2020. During that time she had observed a firearm at the property somewhere between 6 and 10 times. The first time was when she was cleaning the accused’s room and vacuuming the floors about a week after she had moved into the property. The vacuum sucked up a cloth which uncovered the handle of a gun on the accused’s side of the bed.
Under the bed she had seen a brown, wooden, curved like a handle which she initially described as a little shorter than a ruler, around 20 centimetres long and around 3 or 4 centimetres wide. Ultimately, Ms Eatts said that handle was 30 centimetres in length and around 6 centimetres in width. She knew it was a firearm because she could see where you put your finger to pull the trigger. She did not discuss it with the accused. She saw the firearm probably a couple of weeks later, when she walked into the shed and saw the accused sitting with the firearm on his lap while he was cleaning it. She had been looking at the firearm for a few minutes and saw that it had been modified and cut so was not what it was supposed to look like. When asked to compare what she saw on that occasion with what she had seen under the bed, she said that the handle was the same and that it was ‘all up probably’[8] about the same size as what she had seen under the bed. When she saw it in the shed, she thought the barrel was a lot shorter. The handle was wooden and brown. When asked whether she recalled any other occasions when she saw the firearm, she said that it had only been when the accused was moving it to put it in different places to hide. Towards the end of her time living with the accused, she only ever recalled the accused moving the firearm and hiding it in the wall of the shed. She said that had happened half a dozen times. She had also observed some bullets in the shed in a box in a drawer and a few loose ones on a shelf on the accused’s work bench.
[8] T 118.10.
After she moved out, Mr Knill, who had been living at her house on Orr Street, moved in with the accused. She continued to have some contact with the accused where he would message her a couple of times and she would message him to try and organise to get her belongings back. After she moved out of the property, she never saw the firearm again.
She recalled the first time she had a conversation with Mr Knill about the firearm was after Mr Knill had moved out of her house. The conversation was in June. Mr Knill raised his concerns about what the accused would do with the firearm. She said this made her feel nervous and scared. She understood from Mr Knill that the accused was threatening to use the gun on her and her family.
About a week later, Mr Knill told her that he had got the gun and was not giving it back to the accused. He was worried his fingerprints would be on the firearm. Ms Eatts said she told Mr Knill that she was going to contact police and that he would have to be arrested. Police would have to ask him where the firearm was because she was not sure, and he would not tell her.
Ms Eatts said she had a few conversations with Mr Knill about his mental health and at that time his mental health was not good. She rang the police the next day because she was scared for Mr Knill’s safety and scared for her family.

Ms Eatts was asked to look at photographs of the firearm seized from the accused’ property and compare them to the item she said she had seen at Playford Street. She said that it was a very similar handle shape, was the same colour and was made of wood. She thought the diameters were roughly the same. She said the barrel section looked a little different but the handle was pretty much very similar.
In cross examination, Ms Eatts said she maintained the handle of the firearm he saw was around 30 centimetres long. The last time she saw the firearm or the ammunition at Playford Street was in May 2020. She ended the relationship with the accused because she had some concerns that he was cheating on her. She said that she was not aware that the accused had started a relationship with Ms Grosser and that Mr Knill had not told her about that.
Ms Eatts said that she had not known Mr Knill very well before he had moved into her house, and that it was only a period of days when she moved back to Orr Street and Mr Knill moved to the accused’s house. When asked whether she was sure that Mr Knill had told her that the accused was threatening to use the gun on her and her family in June, she said “would have been close to it, yeah”.[9] She said she did not know why she did not call the police after that conversation. Ms Eatts said that when Mr Knill came to her address and said that the accused was threatening to use the gun on her and her family, she did not know where it was and did not think to call the police.
[9] T 126, 24.
When Mr Knill told her that he had the gun he said that he was worried that his fingerprints would be on it. That conversation was in June. She told Mr Knill that she would contact police. She would tell them that Mr Knill’s fingerprints would be on the gun and Mr Knill would tell police where the gun was.
Ms Eatts maintained her conversation with police was in June and denied she called them on 5 August 2020 at around 10:30am. She said she had not called police because of Mr Knill’s mental health and could not be mistaken about the time in which she called police. Ms Eatts then agreed that in the statement she provided to police on 6 August 2020, she said that on the Tuesday night Mr Knill had come to her house and she had been really worried about him. He had been down for a while, and she had the impression that he was thinking about using the gun on himself. Mr Knill had told her that he was really worried that because he had taken the gun from the accused and had touched it, and that if police found it, he would be blamed and would go to prison.
In her evidence, Ms Eatts said she had also called police because of the threats that the accused had made towards her and her children. The threats concerned killing her three children, her two-year-old granddaughter in front of her and then herself. When she called police, she had told them that there had been threats made to her and her family and that Mr Knill had managed to get the gun from the accused and they would have to ask Mr Knill where the gun was.[10] They would also need to arrest him when they seized the gun. She was certain that she told police about the threats the accused had made about killing her family and making her watch and then killing her. Ms Eatts said there were other messages between herself and the accused and in particular messages calling her names and telling her that she was lying and owed him money. There was a text message where the accused threatened to shoot her and kill her family. She gave her phone to police and gave them access to all her messages.
[10] Transcript in error, reads ‘Hadn’t managed’. T 129. 34.
Ms Eatts agreed that when Mr Knill turned up to her address the night before she called police, she was concerned about his mental health. She agreed that she was not happy with the accused at the time. She said she did not call police the night Mr Knill turned up because it was late. She denied she had known for about a week beforehand that that Mr Knill had the firearm.
As to the chronology of events, Ms Eatts said that Mr Knill came to her house in June and said that the accused was making threats. Around a week later, also in June, Mr Knill said that he had the gun, was not giving it back and was worried his fingerprints would be on it. Ms Eatts said the next day she rang police. Mr Knill had not told her he had the gun about a week before she called police. He told her he was trying to get it, but he did not say that he had it.
Ms Eatts ultimately agreed that the conversation to police could have been on 5 August 2020 at around 10:30am and it would have then been 4 August that Mr Knill told her he had the gun. She denied that all she said to police was that there was a gun at the address of the accused and that Mr Knill knew where it was. She said that she had probably not outlined to police exactly the threats made by the accused. She elaborated on everything when she made her statement. She said she had given them a rough idea that there had been threats made to her and her family, that Mr Knill had the gun and had received it from the accused and that there were fingerprints on it.
Ms Eatts said that the last time she saw the firearm was when the accused put it in the wall of the shed. She said “he took a couple of screws out of the tin on the outside of the wall of the shed, near the back door, the side door that accessed the backyard and stuck it in the wall there and then put the screws back in”.[11] She said the gun that she saw in the photos was ‘not completely different but there’s a lot of similarities.’[12] She agreed she would not know when exactly when the firearm came into Mr Knill’s possession. The whole time that Mr Knill was living at Playford Street, his mental health was not great. She agreed that she had been using drugs at the time.
[11] T 133, 4-7.
[12] T 133, 18-19.
Mr Knill told her that he had taken the firearm and that the accused would not find it. That happened the night before she called police. She denied it could be that he told her about a week earlier that he had firearm. She said that if she had known he had the firearm a week earlier, she would have rung police a week earlier.
She agreed she did not tell police about the threats the accused had made when she first heard about them. She denied that she had thought this was a good way to set the accused up or that Mr Knill had a firearm and did not want it anymore and she did not want him to have it so they both thought ‘let’s get [the accused] into trouble’.[13] She agreed she did not know for sure whether the firearm that she saw in May 2020 was the same firearm that Mr Knill had in August 2020.
[13] T 135, 19.
She did know that Mr Knill was not mentally well and was concerned that he was going to use the firearm on himself. She agreed that when Mr Knill came to her address on 4 August 2020, she had raised calling police.
Evidence of BS Wales
BS Wales attended at the accused’s address on 5 August 2020 at around 11:30am. Other police officers were already present. Police entered through the front door of the property and spoke to the accused. They moved out of the property to the shed and became aware that there was someone in the back room. Once Mr Knill emerged and police explained they were looking for a firearm, Mr Knill indicated that they should look in a cabinet on the wall at the back of the room. BS Wales opened the cabinet and located a bag containing a sawn-off rifle. He noticed that the bolt for the firearm was missing.
Mr Knill pointed out a safe in the floor, which was photographed. The safe had been unlocked and contained a box of .22 calibre ammunition.
The following day he and other officers attended at the complex with Mr Knill, where he had said he had secreted the bolt for the rifle.
Mr Knill had told him where the firearm was and that he had hidden it so the accused could not access it. He said that he had taken the firearm to keep it away from the accused and had put it at the complex. Sometime later he had brought it back to the house. BS Wales could not remember whether Mr Knill had said that he had either forgotten the bolt or did not want to bring the bolt back so that it could not be operated.
In cross-examination, BS Wales said that no one had measured the length and width of the safe. He said that the conversation with Mr Knill was “…we’ve got information there is a firearm on the property, is there anything you want to tell us about that?”.[14] Mr Knill replied something along the lines of “you might want to have a look in the cabinet”.[15] He agreed it was possible that Mr Knill had been asked whether there was anything that was in the room that could get him into trouble.
[14] T 63, 15-16.
[15] T 63, 17-18.
BS Wales said that once they got back to the police station after arresting Mr Knill, he provided his version of events. Information from a phone call earlier that day confirmed what Mr Knill told them. On that basis he made the decision to ‘unarrest’[16] Mr Knill and treat him as a witness.
[16] T 64, 5.
Evidence of BS Pickburn
BS Pickburn is the Crime Scene Investigator who examined the firearm, which he described as a single shot rifle in its original condition. He identified the firearm as a Lithgow brand, .22 long rifle calibre which he described as in poor condition and modified. A section of the barrel was missing, and the shoulder stock had been removed from the firearm itself. There was a bolt separate to the firearm. He tested the firearm and noted it correctly discharged ammunition. He characterised the firearm as ‘prescribed’[17] due to the length of the entire firearm and the length of the barrel. The overall measurement was 284mm. As a result of the modifications made to the firearm, it also complied with the category H handgun criteria. At the time of his examination, he was not provided with any ammunition. The firearm he examined would use .22 long rifle calibre ammunition.
[17] T 102, 33.
In cross examination, BS Pickburn said that .22 long rifle ammunition is the most common ammunition that he deals with and agreed that the item he assessed could be considered either a prescribed firearm or a category H firearm.
Evidence of Constable Robert Halleday
Constable Halleday recalled receiving a telephone call during his shift on 5 August 2020. The information to him was that there may be a firearm at an address.
He said he remembered taking some notes on a piece of paper and made a formal statement about three days later. He had been unable to find the notes. He remembered receiving a call from Ms Eatts who told him her ex-partner had a firearm and that she was afraid for her family. She said that the firearm was hidden and that the person who had hidden it would not just hand it over to police.
Constable Halleday confirmed that he had refreshed his memory from a statement he had made only a couple of days before he was giving his evidence. He could not recall entering anything into the police system before he made his statement.
In cross-examination Constable Halleday said that Ms Eatts told him that she was away and safe and that there was another male at the address with the accused, who had hidden the firearm.
Constable Halleday had provided a further statement on 18 March 2023 and agreed that in his statement in August 2020 he did not refer to having made any notes. His March 2023 statement did not refer to using notes to assist with completing his initial statement.
Evidence of SC Michael Chewter
On 5 August 2020 SC Chewter, who was the investigating officer, received a tasking at around 10 am about a firearm potentially hidden within a property at Playford Street. He arrived at the address at around 10:45am and entered the property, observing the accused and his girlfriend Ms Grosser. The house was searched and then he went to search a small shed in the back yard. He was not aware of anyone else being present until after the search had been completed and he received a call from another police officer. He was aware police seized a sawn-off shotgun.
The firearm was sized and submitted for forensic analysis. He took photographs of ammunition found at the house and provided those photographs to the ballistician.
Investigations revealed that the accused was not the holder of a valid or current firearms license at the relevant time.[18]
[18] Exhibit P6.
SC Chewter said that during the course of his investigation, requests were made for him to ascertain whether CCTV was seized from the premises. Those investigations revealed that a hard drive disk recording box had been seized along with a portable expansion drive for storage. SC Chewter said that they were not able to be accessed. He said: “so HDMI cabling and remotes were not seized for the hard drive. I conducted a check of the expansion drive and that was completely blank; there was no information on that whatsoever”.[19]
[19] T 156, 23-24.
In cross examination SC Chewter said his notes in relation to the matter were made the day before giving evidence. They were the only notes he had made and he had not make any notes at the time of the alleged offending. He said this was because he had body-worn camera activated and when he conducted the record of interview the hand-held camera was activated. He made no notes of what Constable Halleday had said in relation to the phone call that had been received earlier in the day. He agreed that he had asked Constable Halleday to put the contents of the phone call on the CAD. He did not provide a statement until 9 August 2020. He repeated that the search was conducted with a body-worn video and the interview was conducted with a hand-held camera. He said the CCTV footage was either not accessible or there was nothing on the hard drive.
As to a conversation with Ms Eatts in relation to text messages that she received from the accused, he said “that only came up in conversation yesterday while I was taking an addendum statement, but I did not view or read those messages at all”.[20] He did not ask what the content of those messages were. He agreed that telephone calls to Mount Gambier Police Station are not recorded, and police relied on notes being made at the time. He said that was why he asked Constable Halleday to put the job on CAD, so that the item was recorded.
[20] T 158, 32.
In relation to the photographs of the ammunition, he said that as far as he was aware no one had touched the box of ammunition since it had been photographed in situ and bagged up. He had no knowledge as to why bullets would have been moved.
In relation to the body-worn camera, he was not actually present at the scene when the firearm was located, so his body worn footage would not show any of that process. There were no DNA results found.
A certificate of record of the accused’s plea of guilty was tendered as Exhibit P7.
SC Chewter agreed that when he interviewed the accused on 5 August 2020, the accused denied knowledge or possession of the firearm.
Agreed Facts
The following facts were agreed:
1.Police did not seize the text messages between Ms Naomi Eatts and Mr Evan Brook during the course of their investigation.
2.During the course of the police search of the property at 12 Playford Place, Mount Gambier on 5 August 2020, police did not locate or seize any firearms other than the firearm given Exhibit number P21-A54236-20.
Addresses
The prosecutor identified that the key issue in dispute was whether the prosecution had proven beyond reasonable doubt that the accused possessed the firearm as between 1 June 2020 and the end of July 2020. It was the prosecution case that during that period the accused was storing a firearm at his property and had access and control over that firearm at the relevant time.
The prosecution relied on a combination of the evidence around that time and placed considerable reliance on the evidence of Mr Knill in that he found the relevant firearm on the property during the charged period. Ultimately, it is the acceptance of Mr Knill’s evidence which is fundamental to the prosecution case. Finding the firearm followed a conversation Mr Knill had with the accused whereby the accused told him that he had a firearm in the shed of the property.
Mr Knill’s evidence as to the accused’s admissions of possession, if accepted, reflected the accused’s knowledge, access and control over a firearm that was stored at the premises. The evidence, if accepted, tended to reveal that the accused had access and control over the firearm by virtue of storing it on his property at the relevant time.
There was, the prosecution submitted, other circumstantial evidence which might assist in determining what to make of Mr Knill’s account. It was a combination of evidence that had been led which would allow me to make a finding on the element of possession beyond reasonable doubt. Mr Knill’s evidence of his conversation with the accused and subsequentially locating the firearm in the shed, was not the limit of the evidence in that Mr Knill also said that the accused had mentioned a few weeks earlier that he had access to firearms.
Ms Eatts said she had seen a firearm of a similar description at the property on a number of occasions in the months preceding the charged period. This evidence the prosecution submitted was relevant in that it tended to demonstrate that the accused at a time proximate to the allegations, was storing a firearm at the premises, making more plausible Mr Knill’s assertion that he too saw a firearm of a similar description at the premises in the months that followed.
While the prosecution accepted that the admission by the accused regarding the ammunition did not conclusively establish that the accused stored a firearm during the charged period, it nonetheless made Mr Knill’s account more plausible.
The prosecutor submitted that the experience of giving evidence would no doubt have been unpleasant for Mr Knill given he had handled the firearm rather than simply handing it into police and assisted in informing on a housemate. Mr Knill was forthright about those matters and was willing to admit when he had made poor decisions and had prior poor judgement.
The prosecutor conceded that I might find that the chronology Mr Knill gave did not sit well with other matters in that police were not contacted until 5 August 2020 which would suggest that on Mr Knill’s account, if he had a conversation with the accused a week earlier, he had been storing a firearm at the alcove for that week. Accordingly, his evidence that the original conversation was in June 2020 could not be correct. The prosecution submitted that those inconsistencies in terms of dates and times were not matters that ought cause much concern when I turned to the reliability of his account of the charged offence. While Mr Knill might not have been confidently able to account as to exact dates and times of conversations, he was very confident as to the conversation with the accused, the fact that it had occurred a week prior to police attendance, and the fact that he had a conversation with Ms Eatts the night before police were contacted and attended the address
The prosecutor suggested that the inconsistencies might assist with my assessment of Mr Knill’s credit in that he did not come before the court seeking to make up or to fabricate specific dates. He was quite plain about his poor memory and his difficulty remembering a specific date
The peculiarity of these events was what gave Mr Knill’s testimony a ring of truth. That he would, on the prosecution case, learn that there was a gun being stored on the property near his bedroom, a gun his housemate had thought about using on a woman he considered to be a friend quite understandably, would throw someone into a state of panic
While it became very evident in cross-examination that Ms Eatts was confused and unclear in relation to dates and times, the prosecution suggested she gave an honest and credible account to the best of her memory. She was asked numerous questions about when she called police and when she had certain conversations, which did not neatly match up with the evidence in terms of the phone call to police on 5 August 2020. Those inconsistencies the prosecution alleged, are entirely consistent with a witness speaking from their memory about events that occurred 3 years ago.

The accounts given by Ms Eatts and Mr Knill differed in relevant ways, adding in the prosecution’s submission, to their credibility in that had they got their heads together and formed a plan they would have been more consistent. What they were consistent about was that they had a conversation the night before where the topic of a firearm was raised, where Mr Knill made admissions to having taken the firearm from the accused and bringing it into his possession.
Ms Eatts’ evidence was that she was residing at the property prior to the charged period in question and Mr Knill gave evidence of his observations during the charged period. Ammunition was seized at the property and a bolt fitting a description of an item capable of use within the firearm was found. The location of the bolt on Mr Knill’s account was entirely consistent with the account of him removing the item from the property, storing it for a period of time, and then bringing it back to the address.
Had Ms Eatts and Mr Knill come with a plan to incriminate the accused, Mr Knill would not have had any cause to tell police about the bolt or indeed might have ensured that the bolt was with the item placed in a location proximate to the accused. Similarly, he might have ensured the firearm was found closer to the accused at the property.
The prosecution conceded that if I could not accept Mr Knill’s evidence beyond reasonable doubt, then there would in this case, be no need to consider whether the presumption applied.
Defence submissions
Defence counsel submitted that to find the accused guilty I would have to find that Mr Knill was telling the truth as to how he came to be in possession of the firearm. On his own evidence, Mr Knill was at the relevant time inherently unstable, suicidal, a drug user, upset with the accused and in possession of a firearm.
Mr Knill did not notice anything else in the safe when he retrieved the firearm and was, in defence counsel’s submission, being deliberately vague as to the safe, while obviously understanding the significance of what he did not see. While the accused admitted possessing the ammunition in the safe on 5 August 2020, it cannot be reasoned that he therefore possessed the ammunition in the safe at an earlier date.
Defence counsel argued that I could not be satisfied that the firearm located at the address on 5 August 2020 was in fact the same firearm that Ms Eatts alleged she had seen at the address and Ms Eatts could not say what the firearm that Mr Knill had looked like. Ms Eatts said that the barrel section of the firearm looked different and that the handle was around 30cm long. The entire firearm that was seized was 28 centimetres in length. Ms Eatts and Mr Knill differed as to where the firearm was stored and defence emphasised that the accused could not be convicted on perhaps having had a firearm at some point.
Defence counsel argued that I could not be satisfied beyond a reasonable doubt that the firearm in Mr Knill’s possession was in fact in the accused’s possession during the charged period. If the firearm that Ms Eatts saw had been modified further, for that to be the firearm that was ultimately seized, you would think that Mr Knill, who was living in the shed in proximity to the firearm would be aware of any modifications that had occurred inside that shed. There was, defence counsel argued, no evidence of the accused having ever been seen with the firearm that was ultimately seized.
Defence counsel was critical of the police investigation. Mr Knill said he could provide the password to the security surveillance system which could show him removing the gun from the safe. Potentially conclusive CCTV footage was not sourced, and text messages alleged by Ms Eatts to have been shown to police were not seized. Police officers involved in the investigation failed to make notes.
Importantly, there was no evidence of the dimensions of the safe. From the photographs the safe looked small and police did not bother to check whether the firearm could fit to verify a crucial aspect of Mr Knill’s evidence.
The accused admitted possession of what was described as very common ammunition, found inside the safe on 5 August 2020, somewhere between one to nine weeks after he allegedly had possession of the firearm. While it might be thought strange that the accused had ammunition at that time, the difference in timing is crucial, particularly considering Mr Knill’s evidence about what was allegedly in or not in the safe.
While Ms Eatts said she had been using drugs at the time, Mr Knill denied that was the case. Ms Eatts said she was aware of alleged threats made in June 2020 but said she did not tell police about those threats at the time. She waited until she knew the firearm was no longer in the accused’s possession to tell police that the accused had made threats to kill her with a firearm. It was surprising, defence counsel submitted, for her not to have raised alleged threats with police at the time that they were made when she understood the accused had access to a firearm that she alleged he was going to use to harm her.
When examined in chief, Ms Eatts did not give evidence about the threatening text messages from the accused and said that the messages that she had with him from the time she moved out of the house in June 2020 until the time that the house was searched, were in relation to her obtaining some of her property back. She ultimately maintained she had shown the messages to police, which it is agreed, police did not seize. If Ms Eatts was telling the truth and showed police the threatening messages, it would be assumed those messages would have been seized by police. Furthermore, on being informed of such threats, it would be surprising to have waited calling police until the next morning.
When Ms Eatts called police some 12 hours after the conversation with Mr Knill, she knew that Mr Knill had a gun and knew two months prior that the accused had made threats towards her. She also knew that Mr Knill’s mental health was not good and was concerned at what he might do with the firearm. It is awfully convenient that in the two-month period from where Ms Eatts found out about the alleged threats to when she called police, she never attempted to contact police about the threats.
The events occurred against a background of a breakdown in the relationship when Ms Eatts thought that the accused was cheating on her and was understandably upset. All she knew was what Mr Knill told her. She could not say when Mr Knill came into the possession of the firearm.
Defence counsel argued that it could be inferred that Mr Knill made no reference to the threats in his evidence initially because alleged threats did not occur on that night. Ms Eatts called police because she was worried about the mental health of her friend. If she was worried about the threats, she would have called police two months prior when she heard about them and when she was under the impression that the accused had a gun in his possession.
Mr Knill said that at the relevant time he was inherently unstable and a drug user. Mr Knill had a motive to lie in that he accepted that he was upset with the accused because he was sleeping with someone who Mr Knill had previously expressed an interest in.
Mr Knill installed the fuse box in his bedroom a couple of days before retrieving the firearm from the complex. He said that at the time of installation he had no plans to store anything in the box.
Mr Knill could not remember what happened when he went to Ms Eatts address and told her what happened. Mr Knill did not take the firearm straight to police because the accused was a friend and thought it would seem not to be a betrayal if police asked “the right questions”.[21] He said he was just trying to keep the firearm safe and out of the hands of the public, especially out of the hands of children. Quite contrary, defence counsel argued, to his decision to leave it in a public place. Mr Knill said he was using drugs at the time he put the firearm in the alcove but had stopped at the time he removed it. If Mr Knill was so concerned about Ms Eatts’ safety, he would have taken the firearm to police or at least stayed somewhere else rather than putting himself back in harm’s way. Much more plausible defence counsel argued, was that Mr Knill had possession of a firearm and was suicidal and worried that he was going to use the firearm. He saw an opportunity to blame the accused by bringing Ms Eatts into the situation. Mr Knill had a firearm that he did not want to have in his possession and did not know what else to do. Mr Knill only proffered information about where the firearm was when he was asked by police if there was anything in his room that could get him into trouble.
[21] T 20, 5.
It was reasonable, defence counsel argued, to suspect that it could have been Mr Knill’s firearm or at least in his possession in the charged period. It is reasonable to suspect that it was a different firearm to the one that Ms Eatts saw in May, if she saw one. It is also reasonable to suspect that Ms Eatts and Mr Knill were angry with the accused and wanted to set him up. It is reasonable to suspect that Mr Knill, an inherently unstable drug user, had taken everyone for a ride including Ms Eatts.
Analysis
The only issue in dispute in this trial is whether at some time between 1 June 2020 and 31 July 2020 the accused was in possession of the firearm that police found at his address on 5 August 2010.
As the prosecution conceded, the case against the accused rests primarily upon the findings that I make as regards the evidence given by the civilian witnesses.
For the reasons I set out below, I have found that I cannot accept the evidence of either Mr Knill or Ms Eatts to the necessary standard. There were several matters which in my view so seriously impacted upon their credibility and reliability that it would be unsafe to find the accused guilty of the offence based on their evidence.
There was nothing in Mr Knill’s presentation that led me to believe he was deliberately fabricating his evidence to shift any blame from himself and on to the accused. He appeared to be doing his best to answer the questions put to him by counsel, to the best of his capabilities. Analysis of the evidence he gave did however raise concerns about the accuracy of his recollections, not the least of which concerned his mental health, thoughts of self-harm and his drug use around the relevant time.
Given the specific time frame identified by the prosecution when the accused was alleged to have been in possession, the reliability of a witness’s recollection as to when certain acts and conversations occurred, assumes some significance. Although it was at times difficult to follow Mr Knill’s evidence as regards a timeline of the events, I have found the chronology of events according to Mr Knill’s evidence was as follows:
·In June 2020, Mr Knill had a conversation with the accused where the accused asked him to remove the firearm as he felt tempted to use it and, made threats towards Ms Eatts and her family.
·Mr Knill took the firearm from the safe and placed it in an alcove at the complex.
·He removed the firearm from the complex a week later [having originally told police he had left it there for 1 hour] and placed it in a fuse box which he had installed at the accused’s property, inside the shed, a few days prior.
·That night, he went to see Ms Eatts and told her he was not feeling safe and was suicidal, asking Ms Eatts to call police.
Ms Eatts’ presentation did not strike me as having been deliberately fabricated. She too, appeared to be doing her best to answer the questions put to her by both counsel. Her evidence provided much difficulty as to the accuracy of any timeline, she having conceded that the events she had said occurred in June were likely to have been in August. I have found the chronology of events according to Ms Eatts’ evidence was as follows:
·In June, Mr Knill told her he was concerned about what the accused was going to do with the firearm and that the accused had made threats towards her and her family. The threats made her feel nervous and scared.
·Ms Eatts did not call police at the time she became aware of those threats.
·One week later, Mr Knill attended late in the evening telling her he had the firearm.
·Ms Eatts was worried about Mr Knill’s mental health and the threats the accused had made and called police the next morning.
·Ms Eatts conceded that her phone call to police was on 5 August 2020.
Assuming that the discussions discussion Ms Eatts had with Mr Knill regarding calling police was accurately attributed to 4 August 2020, that would allow for Mr Knill’s removal of the firearm around one week prior, and within the time frame it is alleged the firearm was in the accused’s possession. Had it been only 1 hour, as Mr Knill originally asserted, that would be more problematic and as I have indicated, reliance on the evidence of either Mr Knill or Ms Eatts’ as to chronology is difficult.
While Ms Eatts was unable to say for certain that the firearm she had seen was the one found by police, her description was not so dissimilar from the photographs or SC Pickburn’s description to cause me to dismiss out of hand that it was the same firearm. The uncertainty has not however assisted in arriving at a conclusion that the prosecution has proved beyond reasonable doubt that the firearm found was one and the same
Ms Eatts’ evidence was that she had seen the firearm stored either under the bed, on the accused’s lap in the shed, or in a box on the outside of the accused’s shed. While there is no evidence before me as to whether there was such a box on the outside of the shed, and I do not speculate, it raises some concern that Ms Eatts merely attributed her recollection to a box from into which she understood Mr Knill said he placed the firearm, but that was in fact inside the shed.
I was also unable to accept Ms Eatts’ evidence as regards the conversations she had with Mr Knill regarding the threats she understood the accused had made against her. Given the nature of the threats and what she said she knew as to the accused’s possession of a firearm when she resided with him, her delay in reporting those matters to police when she first became aware of them was detrimental to her credibility.
Adding to my concerns in this matter is the way in which police conducted their investigation. It would appear, somewhat inexplicably, that little effort was made to ensure that the equipment seized from the accused’s premises was properly assessed, which as Mr Knill identified, may have supported his version of events. That equipment was not fully assessed because cords fitting the equipment were not seized, demonstrated, at the very least, significant deficiency in the police investigation. Furthermore, I have accepted that the photographs showing the floor safe from where it was said Mr Knill retrieved the firearm, show it possibly to be of such dimensions that would not allow for the storage of the firearm police ultimately seized. Not to have taken measurements of the safe, given the dimensions described by BS Pickering, was in my view of significance as to whether I could be satisfied the firearm was even capable of being stored as alleged. If Ms Eatts did offer her phone to police, it was not seized. Attention to the importance of making and keeping notes was apparently lost on officers who had been involved in the investigation. Reliance on body worn footage was clearly misguided.
Even allowing for Mr Knill’s apparent poor mental state, I have concluded that little sense could be made of the decisions he made regarding the firearm and in particular, his decision to remove the firearm from the safe and not hand it into police, given what he said he understood of the risks posed to Ms Eatts. Against a background of at least some friction between himself and the accused as regards Ms Grosser, I cannot accept that he was not inclined to take the firearm to police at the outset because he thought of the accused as a friend. A position he obviously had reconsidered over the course of a week. There was no satisfactory explanation given by Mr Knill as to why he had thought it necessary to install a fuse box on the wall inside the shed for which he had no planned use, but where he had stored the firearm.
I cannot exclude the reasonable possibility that the firearm police found was in Mr Knill’s possession and that police were contacted on 5 August 2020 because Mr Knill was concerned about the use he might make of the firearm, and in particular on himself. I cannot exclude the reasonable possibility that the version of events Mr Knill gave police and in his evidence, that the firearm had been in the accused’s possession, was to exonerate himself from any involvement in the possession of the firearm.
I have concluded that the accused’s plea to possession of ammunition on 5 August 2020 must be of little evidentiary relevance given that it is an offence outside of the time frame for the firearm offence and ammunition of that kind is most common.
In conclusion, the evidence before me has not allowed for a finding that the firearm was in the accused’s possession between 1 June 2020 and 31 July 2020, or for that matter, in his possession at any time.