R v Clemente - [2018] SADC 101

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLEMENTE
Criminal Trial by Judge Alone
[2018] SADC 101
Reasons for the Verdict of Her Honour Judge Davison
26 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Accused charged with aggravated possessing a firearm without a licence and possessing a firearm contrary to a Firearms Prohibition Order. Circumstantial case on possession. Prosecution fail to prove possession beyond reasonable doubt.
Verdict: Not guilty of both counts.
Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34; Firearms Act 1977 (SA) s 5; Shepherd v The Queen (1990) 170 CLR 573; Barca v The Queen (1975) 133 CLR 82; Knight v The Queen (1990) 170 CLR 573; R v Hillier (2007) 228 CLR 618; Smith v The Queen (2001) 206 CLR 650; R v Marafioti (2014) 118 SASR 511; R v Britten [2018] SASCFC 36; R v Joyce [2014] SADC 125, referred to.

R v CLEMENTE
[2018] SADC 101
Introduction

Christopher Paul Clemente is charged with one count of aggravated possessing a firearm without a licence and one count of possessing a firearm in contravention of a firearms prohibition order (FPO).
On the evening of 6 October 2016, police observed a Holden sedan parked at the On The Run (OTR) service station at Mawson Lakes. The accused was seated in the vehicle with another male, Mr Stephen Biancardi. As the marked police car approached, Mr Clemente alighted from the passenger side of the vehicle with his satchel. The accused stood outside the vehicle for a period of time. It is alleged that the accused was in possession of a class H firearm, concealed within his satchel. He then, on the prosecution case, reached into the satchel, removed the firearm and passed it through the passenger side of the vehicle to Mr Biancardi, who was still in the vehicle. The accused then slowly walked away from the vehicle. The accused did not hold a firearms licence and was subject to a FPO at that time.[1] The prosecution relies upon circumstantial evidence including the location of the firearm on 7 October 2016, the behaviour of the men on the night as captured on closed circuit television (CCTV) footage, and DNA evidence, to prove this case beyond reasonable doubt.
[1] Exhibit P13 (Firearms Prohibition Order) and Exhibit P14 (Statement of Agreed Facts).
The accused elected for trial by Judge alone. The application was granted and the trial proceeded before me without a jury.[2]
[2] Juries Act 1927 (SA) s 7.
The Charges
First Count
Statement of Offence
Aggravated Possessing a Firearm Without a Licence. (Section 11(1) of the Firearms Act, 1977).
Particulars of Offence
Christopher Paul Clemente on the 6th day of October 2016 at Mawson Lakes, possessed a Class H firearm, namely a Pietro Beretta semi-automatic pistol, without holding a firearms licence authorising possession of that firearm.
It is further alleged that the firearm was loaded.
Second count
Statement of Offence
Possessing a Firearm in Contravention of a Firearms Prohibition Order. (Section 10C(3) of the Firearms Act, 1977).
Particulars of Offence
Christopher Paul Clemente on the 6th day of October 2016 at Mawson Lakes, being a person against whom a Firearms Prohibition Order was in force, possessed a firearm, namely a Pietro Beretta semi-automatic pistol.
Elements of the Charged Offences
In order to prove the offence of aggravated possessing a firearm without a licence, the prosecution must prove three elements beyond reasonable doubt. The first is that the accused was in possession of the firearm. Secondly, that the firearm was a class H firearm. The third element is that the accused did not hold a licence authorising possession of that firearm at the relevant time.
If the prosecution proves each of these three elements, then the accused is guilty of the basic offence. In order to prove the circumstance of aggravation, the prosecution must prove beyond reasonable doubt that the firearm was loaded.
In respect of the second count, possessing a firearm in contravention of a firearms prohibition order, the prosecution must prove two elements beyond reasonable doubt. First, the prosecution must prove that there was an FPO in force against the accused. The second element is that the accused was in possession of a firearm.[3]
[3] This is an element of the offence against s 10C(3) and also contrary to a term of a condition of the FPO (Exhibit P13) itself.
It was not in dispute at this trial that the firearm was class H firearm or that Mr Clemente did not hold a licence authorising possession of that firearm.[4] Nor was it disputed that the firearm was loaded or that there was an FPO in force against the accused at the time.[5] Therefore, the only legal element in dispute with respect to both of the charged offences is whether the accused was in possession of the firearm at the relevant time.
Legal Directions
[4] Exhibit P14, agreed fact 2.
[5] Exhibit P14, agreed fact 1.
General Directions
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the word proved, established, or satisfied then I have meant in each case to an extent that excludes reasonable doubt.
The accused is presumed by law to be innocent of the charges unless and until the evidence that I accept satisfies me that each and every element of the offence has been proven beyond reasonable doubt.
If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then he remains innocent and I must return a verdict of not guilty.
There are two charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
The accused did not give evidence. That was his right. I cannot and do not draw any adverse inference against him or the case he presents for declining to give evidence.
During the course of the trial there was evidence from which an inference could be drawn that the accused has in the past engaged in activities that indicate he may have committed offences or been of bad behaviour. I make it plain that I have not used any evidence in a way that is impermissible.
In this case, witnesses said to be experts in particular fields, have been called to give evidence. The ordinary rule is that witnesses may speak only to the facts and not express opinions. An exception to that rule is that persons who are qualified in a particular area may express an opinion. That opinion must be relevant to their particular areas of expertise and that opinion must be based wholly or substantially on their knowledge, training or experience. As I am a sole judge of the facts, I am entitled to accept or reject any opinion evidence as I see fit. Before rejecting that evidence, I must give it consideration, and consider how it fits with any other evidence that I have heard and accepted on that topic.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and not influenced by public opinion in relation to this matter.
Circumstantial Direction
The prosecution relies here upon circumstantial evidence to prove the offence. Before Mr Clemente can be convicted on this evidence, his guilt must be the only rational inference which can be drawn from the circumstantial evidence.[6]
[6] Shepherd v The Queen (1990) 170 CLR 573; Barca v The Queen (1975) 133 CLR 82.
When a case against an accused person rests wholly or substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances exclude any reasonably hypothesis other than the guilt of the accused. If an inference or hypothesis consistent with innocence is open on the evidence, an accused person must be given the benefit of the doubt necessarily created by those circumstances.[7] If there is a reasonable explanation for the circumstances which is consistent with innocence, then Mr Clemente must be found not guilty. This is because a reasonable doubt would necessarily arise where any other inference consistent with innocence is reasonably open on the evidence.
[7] Knight v The Queen (1992) 175 CLR 495.
In determining whether an inference is reasonable, I am to consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference. I am not required to analyse each circumstance individually, none of which by itself would support an inference of guilt. While guilt must be established beyond reasonable doubt, the individual primary facts used to establish guilt need not themselves each be proved beyond reasonable doubt.[8]
[8] Shepherd v The Queen (1990) 170 CLR 573 at 575 and 585.
I do not have to reject one circumstance because, considered alone, no reasonable inference can be drawn from it. I must consider the weight which is to be given to the united force of all the circumstances. One piece of evidence may resolve a doubt about another.[9]
[9] R v Hillier (2007) 228 CLR 618.
It is not for the defence either to establish that some inference other than guilt should reasonably be drawn from the evidence, or to prove particular facts which would tend to support such inference. If the evidence viewed as a whole is susceptible of a reasonable alternative explanation then the accused is entitled to be acquitted.
The Trial
Ms Litster delivered the prosecution opening. She outlined the charges, the witnesses to be called, and particularised each of the charges as they appear on the Information. She gave a summary of the evidence that she expected each witness to give.
Mr Healy, for the accused, did not outline the issues in contention.
The Prosecution Case
The prosecution case primarily relies upon a disc tendered by the prosecution containing CCTV footage from four separate cameras located at the OTR service station at Mawson Lakes.[10] It is agreed between the parties that the CCTV cameras are activated by motion and operate by taking a series of still photographs. The resultant footage appears stilted and is not all together clear. The zoom function of the software used to view the footage does not assist to make the footage clearer. The footage is time and date stamped. It is also agreed between the parties that the time and date stamp is the same on all cameras/channels, and is accurate. As a consequence of being motion activated, there are some time gaps in the recording where there is a clear absence of motion.
[10] Exhibit P1.
The prosecution presented an aide-memoire, authored by Senior Constable Russet, the Investigating Officer in this matter, which contains her opinion as to the contents of the footage. I have not relied upon her opinion as to what she can see in the footage as she is in no better position to determine that than the tribunal of fact.[11]
[11] Smith v The Queen (2001) 206 CLR 650, 655-6 [11]-[12] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
Two of the cameras at Oporto fast food restaurant located at the OTR complex show the accused as the passenger of a white Holden commodore sedan driving through the Oporto drive through. There appear to be two people seated in the front of the vehicle. Both cameras, one positioned at the order point and the other where the food is collected,[12] show the accused seated in the front passenger seat, wearing a white t-shirt with a satchel bag across his body. This is more clearly captured by the “drive through” CCTV footage. In this footage, the driver of the vehicle, who is seen wearing a black T-shirt, receives a bag of food and two drinks which are placed in the centre console of the vehicle. The pair then drive from the drive through to the manual bay car washing area, which is captured by the “manual bay south” CCTV footage. The white Holden sedan, SA registration WLY 280, can be seen in the top left hand corner of the footage, parked in the corner of the washing bay to the right of an ETSA box.
[12] The cameras respectively labelled “drive-through order point” and “drive through”.
At approximately 8.25:45 pm, the accused is seen getting out of the vehicle. He then adjusts his satchel, moving it to the left side of his body. He leans over the satchel and appears to be handling the satchel. Mr Clemente then leans back towards the car before walking away from the vehicle, in the direction of the Interchange. Shortly thereafter, at approximately 8.26:08pm, the driver gets out of the car, walks around the front of the car, behind the ETSA box and then out of view of the CCTV camera.
From the footage captured by the manual bay south camera, a number of photographs were taken.[13]
[13] Exhibit P2.
As the accused and the driver walk away from the vehicle, the marked police vehicle driven by Senior Constable Jarrod Peter Aitchison and Constable Hayley Lee Milligan can be seen in the bottom left corner of the manual bay south footage.
Senior Constable Aitchison and Constable Milligan were called to give evidence. Senior Constable Aitchison gave evidence that on the evening of 6 October 2016, he was conducting uniformed mobile patrols in Mawson Lakes in a marked SAPOL vehicle, driven by Constable Milligan. They were travelling on Central Link Road, towards Metro Parade.[14] As they approached the BP Station on Central Link Road, they saw the white Holden Commodore SA registration WLY 280.[15] That vehicle was of interest to police for an unrelated matter.[16] Senior Constable Aitchison saw the driver and a passenger in the front of the vehicle. He would have described the occupants as in their mid-twenties. The driver was bald with darker skin wearing a dark coloured T-shirt. The passenger was Caucasian with brown hair wearing a white T-shirt.[17]
[14] TT Page 18 lines 6-11.
[15] TT Page 18 lines 21-5.
[16] TT Page 17 line 35.
[17] TT Page 19 lines 9-14.
Constable Milligan completed a U-turn and the officers travelled back towards the service station.[18] The officers entered the complex and parked the marked police vehicle approximately in the middle of the service station driveway. They remained in the vehicle and saw the driver get out of the vehicle, walk around the front of the vehicle along the footpath on Central Link and past the ETSA box, walking across the road into Capital Street. The driver threw a can in a dumpster that was parked close to the intersection of Capital and Central Link Street on the southern side.[19] The officers asked the driver to come over and had a discussion with him near the police vehicle in the driveway of the service station. Senior Constable Aitchison remembered seeing the passenger within the OTR complex, while the officers spoke to the driver. The passenger walked past the officers, walking east towards Oporto,[20] in the direction of the Interchange.
[18] Evidence of Constable Milligan. TT Page 32, line 29; TT Page 33 lines 7-8.
[19] TT Page 19 lines 25-33; TT Page 20 lines 9-11.
[20] TT Page 20 lines 25-37; Page 21 lines 2-4.
It struck Senior Constable Aitchison as unusual that both the passenger and driver got out of the vehicle and then walked in opposite directions.[21] He lost sight of the passenger when talking to the driver. At that time, Constable Milligan conducted a check of the name provided by the driver.[22]
[21] TT Page 21 lines 10-12.
[22] Evidence of Constable Milligan. TT Page 36 lines 26-7.
When asked, the driver denied that there was anything in the vehicle that should not have been in there. Senior Constable Aitchison approached the vehicle and saw a knife tucked between the centre console and seat.[23] The driver ran from the scene, down Central Link towards Elder Smith Drive, crossing over the barrier of Elder Smith Drive and into the swamp.
[23] TT Page 21 lines 24-30.
Senior Constable Aitchison and Constable Milligan pursued the driver to the swamp where he was located and placed under arrest. Upon his arrest, the driver complained he was having an asthma attack. Senior Constable Aitchison sought medical attention for him and went with the ambulance to the Royal Adelaide Hospital. Senior Constable Aitchison had no further involvement in the matter.[24]
[24] TT Page 25 line 37.
Senior Constable Aitchison was cross-examined. It appears that the driver wore a bumbag when he spoke to police,[25] which he discarded during the pursuit.[26] Senior Constable Aitchison could not recall whether the passenger’s side window was up or down when he approached the vehicle.[27]
[25] TT Page 27 line 19.
[26] TT Page 28 line 1.
[27] TT Page 31 lines 3-9.
Constable Milligan gave evidence that she took possession of the exhibits located in the sedan, those being a glass pipe, a bottle containing blue liquid and a dagger.[28] She was not cross-examined.
[28] TT Page 38 line 6.
Constable Andrew Colin McIntyre also gave evidence. He was in company with Constable Willis at 8.30 pm on 6 October 2016 when a call for assistance came from Senior Constable Aitchison.[29] They attended at a residential area north of Elder Smith Drive where the driver had been placed under arrest, then the Interchange and then to the service station to secure the Holden sedan and make observations of the vehicle.[30] They searched and photographed the vehicle in situ. The photographs showing the knife wedged between the driver’s seat and centre console, and an Oporto bag, as well as the bumbag on the ground a few metres form the driver’s side door.[31] They seized all items, and stayed until the vehicle was towed and impounded.[32]
[29] TT Page 48 line 5.
[30] TT Pages 48-50.
[31] TT Page 50 line 6.
[32] TT Page 52 line 15.
In cross-examination, Constable McIntyre could not recall whether the passenger’s window was up or down, but said he did take four photographs through the open window.[33] When the officers first attended, they had information from Senior Constable Aitchison or Constable Milligan that one of the males had dropped something in the vicinity of the car.[34] This was why he took photographs of the bumbag.[35] He denied that he examined the inside the bumbag as part of his search. No evidence was led as to its contents.
[33] TT Page 52 line 30.
[34] TT Page 53 line 17.
[35] TT Page 54 line 17.
The prosecution also called Senior Constable Christopher Luke Emmanuel. On 6 October 2016, he was requested to attend at Mawson Lakes to assist Senior Constable Aitchison. He attended in the vicinity at approximately 8.55pm.[36] Senior Constable Emmanuel was travelling from Salisbury Highway towards the OTR at Mawson Lakes. He had information that a male had left the OTR. As he approached the Railway Interchange, he saw a male running up the bridge towards the access to the Interchange.[37] He realised it was the male who had decamped from the service station. Senior Constable Emmanuel went down to the Interchange and located the male in a poorly-lit area, hiding behind a pillar. He asked the male for identification. The male was identified as Chris Clemente. Senior Constable Emmanuel conducted a search of the accused’s person,[38] placed the accused under arrest, put him in the police vehicle and drove him back to the OTR. In cross-examination, Senior Constable Emmanuel could not recall whether he approached the driver’s side of the white Holden vehicle or whether he went around the passenger side at all.[39]
[36] TT Page 40 lines 27, 29 and 38.
[37] TT Page 41 line 38.
[38] TT Page 43 line 25.
[39] TT Page 47 lines 5 and 8.

Mr Dimitrios Kosmas was also called by the prosecution. Mr Kosmas was employed at the OTR in an “assistant manager” capacity. As part of his role, he was responsible for ensuring the site worked correctly and that it was clean and tidy.[40] On 7 October 2016 at about 9.15am, Mr Kosmas was outside cleaning when he noticed something in the dirt by the fuse box. It looked like an old sock and was slightly covered under the bark.[41] The firearm was not buried far underneath the bark chips and it was easy to lift. The handle came up where the ankle might go. It was red, black and dirty; he picked it up and noticed that it was heavy and was the shape of a pistol. Mr Kosmas opened the sock and saw the back part of a pistol. He noticed a small hole where the foot of the sock was. When he looked in the toe, he could see the barrel of the firearm. He immediately went inside and locked the gun in his locker.[42] After locking the gun in his locker, he telephoned the police who attended and seized the firearm; no one else accessed his locker in the interim.[43] Mr Kosmas did not put his hands directly on the firearm as he did not want to get his fingerprints on it.[44]
[40] TT Page 55 line 6.
[41] TT Page 56 line 13.
[42] TT Page 56 line 32.
[43] TT Page 59 line 3.
[44] TT Page 59 line 15.
Mr Kosmas said in cross-examination that he had not looked around the ETSA box earlier that day, nor had he looked over that area the day before.[45] Other team members are also tasked with clearing rubbish around the site.
[45] TT Page 60 line 5.
Brevet Sergeant Lyndon Keith Lawson was also called to give evidence. He is trained in examining crime scenes and recording evidence.[46] He conducts firearm analysis and, in the current matter, swabbed the Beretta firearm and magazine which were received on 17 October 2016.[47] A foam popule swab was used on the rough areas to collect potential DNA.[48] The “grips” or “undergrips” are circled in red on Exhibit P8 and is the place where a hand is placed; it can be unscrewed. He unscrewed this and swabbed the underside and the edge of the inner area as DNA would be more readily apparent coming inside from the exterior.[49] DNA could have been deposited in this place due to someone taking the gun apart or could come there from the exterior.[50]
[46] TT Page 62 line 7.
[47] TT Page 62 line 34.
[48] TT Page 63 line 7.
[49] TT Page 66 line 18.
[50] TT Page 66 line 27.
In cross-examination, Brevet Sergeant Lawson said that the grip fits onto the firearm (usually plastic) and there will be a slight gap around the edge; the edge of the undergrip will be swabbed as DNA might slip through that gap.[51]
[51] TT Page 67 line 9.
Ms Sheree Tracey Brozyna, a forensic scientist who analyses and interprets DNA profiles for the courts, was called by the prosecution.[52] Ms Brozyna has worked at the Forensic Science Centre since 2008. She has qualifications in medical sciences and pharmaceutical biotechnology, and she undertakes consistent and ongoing training regarding DNA analysis and interpretation.
[52] TT Page 68 line 11.
She prepared two DNA reports for this matter, one dated 10 February 2017[53] and the second dated 19 July 2017.[54] To obtain a DNA profile, there is an extraction process followed by a quantification step and an amplification step where information obtained is copied.[55] The pieces of DNA are then separated according to size and that information is put into software programme, Gene Mapper, after which the DNA profile can be visualised. They looked at 24 regions from the reference profile and compared that against the firearm swab.[56]
[53] Exhibit P10.
[54] Exhibit P11.
[55] TT Page 71 line 34.
[56] TT Page 73 line 7.
A program called STRmix is used to analyse the DNA profiles. Once Ms Brozyna determined the number of contributors to a DNA profile, she analysed the profile in STRmix, which splits the profile into its different components. This then enables them to compare a reference to that DNA profile and calculate a statistical weighting in the form of a likelihood ratio. STRmix gives a rough percentage (“an approximation”) of mixture proportions that each contributor makes up that profile.[57]
[57] TT Page 80 lines 6-16.
Swab 079-8, the swab from the firearm, showed a mixed DNA profile of two contributors, greater than 100 million times more likely to have obtained a DNA profile if Mr Clemente and an unknown individual are the source of the DNA rather than two unknown individuals.[58] The swab from the magazine (078-7) contained low/no amounts of DNA for analysis.[59]
[58] TT Page 73 line 32.
[59] TT Page 74 line 7.
Later, a buccal swab of Mr Biancardi was sent for analysis also; the result of a comparison of this was the exclusion of the possibility that he contributed to the DNA sample.[60]
[60] TT Page 74 line 24.
A sock was received on 6 June 2017 and was examined in the evidence recovery section.[61] The entire outer and inner surfaces of the sock were examined and tape lifts taken. A DNA profile from the tape lifts was obtained. There were four contributors.[62] That profile was tested against Mr Clemente and Mr Biancardi separately; it is greater than 100 billion times more likely to have obtained this DNA profile if Mr Clemente and three unknown individuals are the source of the DNA rather than four unknown individuals.[63] In regards to Mr Biancardi, it was 25 million times more likely to have obtained this DNA profile if four unknown individuals were the source of the DNA rather than Mr Biancardi and three unknown individuals. Thus there is strong support for the possibility that Mr Biancardi was not a contributor and very strong support that Mr Clemente was.[64]
[61] TT Page 75 line 18.
[62] TT Page 76 line 2.
[63] TT Page 76 line 27.
[64] TT Page 76 line 35.
In relation to the inner surface of the sock, there was a likelihood ratio greater than 100 billion that the accused contributed to that DNA profile.[65] Mr Biancardi was excluded as being a contributor to that profile. The firearm undergrips (079-11) produced a profile that was 25 million times more likely to contain Mr Clemente as a contributor.[66] An unidentified male was seen to take part in the mixed DNA profile; Mr Clemente was the minor contributor.[67] In relation to the tape lift of the inner sock surface, Mr Clemente was the major contributor to the profile. It is greater than 100 billion times more likely to have obtained the DNA profile if Mr Clemente and two unknown contributors were the source rather than three unknowns. Mr Biancardi was excluded as a source.
[65] TT Page 78 line 9.
[66] TT Page 78 line 29.
[67] TT Page 79 line 10.
A sample marked 079-11, the swab from the undergrip of the firearm, was tested. A mixed DNA profile with two contributors was obtained. Again, the DNA sample from Mr Clemente was compared to that DNA profile and two explanations were considered: one that Mr Clemente and an unknown person are the source of the DNA and the second being that there are two unknown sources of the DNA. A likelihood ratio of 25 million was calculated. In other words it was 25 million times more likely to have obtained that DNA profile if Mr Clemente and an unknown contributor are the source of the DNA rather than two unknown contributors.[68] Mr Biancardi was excluded as being a contributor to the mixed DNA profile.[69]
[68] TT Page 78 lines 35-8.
[69] TT Page 79 line 4.
Ms Brozyna went on to say you cannot gain information such as where or when DNA was transferred onto an object from a DNA profile.[70] The transfer of DNA is highly variable, for example, there is direct and indirect transfer. It is logical that the more times an item is transferred, the less DNA might be on it.[71] Saliva and skin cells can be transferred; rough surfaces are more likely to catch and transfer DNA than smooth surfaces. If an item is protected in the right conditions, DNA can be preserved to an extent.[72] Heat and UV from the sun can break down DNA.[73]
[70] TT Page 81 line 37.
[71] TT Page 83 line 2.
[72] TT Page 84 line 25.
[73] TT Page 85 line 3.
In cross-examination, Ms Brozyna agreed that it is not possible to date DNA. She was unable to say how long the DNA has been on the items analysed or when the DNA was deposited.[74] A warm, unwashed sock could be a good source of DNA.[75] There is a possibility that the DNA from the sock passed onto the gun via secondary transfer.[76] DNA can potentially be mobile if the item is moved around.[77]
[74] TT Page 86 line 3.
[75] TT Page 86 line 11.
[76] TT Page 86 line 30.
[77] TT Page 87 line 7.
In re-examination, Ms Brozyna said that the washing of clothing or items can also be a means by which DNA is transferred between items.[78] Washing can also cause DNA to be removed. “Mobility” refers to the cell containing the DNA becoming mobile.[79] If it is assumed that a sock had been worn before and then had a gun placed inside, DNA from the sock could be transferred to the gun and vice versa.[80]
[78] TT Page 87 line 19.
[79] TT Page 87 line 32.
[80] TT Page 88 line 7.
There is potential for DNA from the outside of the gun to move inside through a crevice in the undergrip as skin cells are small, however, Ms Brozyna has not inspected the gun and was not certain.[81] She recalled a time when those areas of the firearm were sampled as parts of a project but they do not often receive information of exactly where the swabs are taken by police.[82]
Agreed facts
[81] TT Page 89 line 3.
[82] TT Page 89 line 18.
A statement of agreed facts was tendered pursuant to section 34 of the Evidence Act 1929 (SA).[83] Those agreed facts are as follows:
[83] Exhibit P14.
Firearms Prohibition Order
1.   Christopher Clemente was the Subject of a Firearms Prohibition Order dated 16 May 2012 as at 6 October 2016 in the terms contained in Exhibit P 13. He was aware of its terms.
The accused does not hold a firearms licence
2.   The accused was not the holder of a firearms licence as at 6 October 2016.
Beretta Handgun, Classification and Examination
3.   The firearm (PPMS item 17B18079 -1) was seized by Constable Coulthard from the West Lakes [sic] “On the Run” on 7 October 2016 shortly after 10am and was checked into secure police property storage that day at Salisbury Police Station. In the process of securing the firearm for the purposes of placing it into police property, Constable Coulthard removed the magazine and observed it was loaded with seven bullets at that time.
4.   That firearm had the serial number E60867 which appeared to have been altered. The only firearm of that serial number is a rifle located in Queensland. The firearm the subject of the charge was not registered.
5.   On 23 November 2016, PPMS item 17B18079 -1 was examined by Michael De Mestre Pickburn a firearms expert.
6.   He determined that item was a handgun - a Pietro Berretta M 1934. The firearm was therefore a “Class H firearm” as defined by the Firearms Act 1977 (SA).
7.   The handgun was a pistol chambered to fire 9 mm CORTO centre fire ammunition. The ammunition located in the magazine was 9 mm ammunition compatible with its use. Testing of the firearm confirmed it was in working order.
8.   The handgun, consistent with its model, was semi-automatic. This simply means that after discharging one round of ammunition, no manual re-loading of ammunition is required before the trigger can be pulled again to discharge any further round of ammunition already in the magazine.
Swabs of “undergrips”
9.   On 23 June 2017 the underside of the grips of the firearm were swabbed by Brevet Sergeant Forsyth in the manner described by Brevet Sergeant Lawson.
CCTV Footage
10.   The closed circuit television footage (CCTV) in P1 was recorded by the equipment at the On the Run Service Station complex on Centre Link at Westlakes [sic].
11.   This footage was recorded onto a disc provided to SaPol on 7 October 2016. The time and date stamp is the same on all cameras/channels and is accurate.
12.   The unit recorded events by taking a series of still images each second. This is what causes movements to appear stilted. However, the unit records events in real time.
13.   Further, the cameras recordings are activated by movement, which means that an absence of clear motion within the field of view of the CCTV camera will not be recorded and time gaps appear in the footage.
14.   The still photographs in P2 are extracted from the footage. The times matching those images set out in aide memoire MFI P3 are accurate.
Timing of Photographs - P7 - Booklet
15.   P7 contains 9 photographs taken at the following times on 7 October 2016:
a.   Photo 001 - Photo 003 (photos of ETSA utility box and area) - 10.10am
b.   Photo 004 - Photo 005 (photos of red sock)- 10.15am
c.   Photo 006 - Photo 009 (photos of firearm and magazine) - 1.30 pm.
Fingerprints
16.   The firearm was examined for fingerprints and none suitable for analysis were found.
Vehicle Registration
17.   WLY 280 was registered to Frank Cooney.
Defence Case
The accused elected not to give evidence and did not call any evidence.
Prosecution Address
Ms Litster addressed on behalf of the prosecution.[84] She submitted that the coalescence of evidence led by the prosecution gives rise to an inference beyond reasonable doubt that the accused was in possession of the firearm on 6 October 2016.
[84] TT Pages 93-106.
In terms of the manner in which the firearm was concealed, Ms Litster submitted that the evidence of Mr Kosmas, that he could see the sock amongst the bark chips and that it was not hard to undercover, gives rise to an inference that the bark chips roughly covered the sock and that it had not been buried in a careful way. A further inference may be drawn that it would not have taken long to conceal the sock in that way and that it could have been covered by kicking the bark chips over the sock. The manner in which the firearm was concealed was said to be more consistent with someone having disposed of it in the manner described than someone having buried it more carefully for safekeeping or storage.
As outlined elsewhere in this verdict, it is not disputed that the firearm was loaded. From this fact, together with the fact the firearm was packaged within the sock, the prosecution submits that an inference arises that at the time the firearm was disposed of, it was ready for use rather than storage. This, in turn, is said to be consistent with the hypothesis that the firearm was hastily discarded by someone carrying it for personal protection.
It is said that the visible modification to the sock,[85] having been cut down at the ankle end, suggests that the sock was a pouch intended to provide ready access to the firearm. The prosecution submits this is consistent with Mr Kosmas’ evidence that when the firearm was within the sock, he could easily see and touch the handle from the larger opening at the end. The prosecution submitted that, logically, it is unlikely that someone looking to make an accessible pouch for their firearm would obtain someone else’s sock to do so, particularly if the sock is dirty or used. It therefore follows that the firearm belonged to the owner of the sock. Further, the DNA evidence can give rise to a strong inference that the accused was the person who regularly wore the sock or at least had handled the sock.
[85] Exhibit P15.
There was a mixed DNA profile on both surfaces of the sock and the prosecution acknowledges that the science and analysis cannot provide any clear information about precisely how the DNA came to be deposited on the sock. However, it is the prosecution’s submission that it is improbable as a matter of logic that the DNA profiles matching the accused’s DNA profile would be located on the outside and inside of the sock, and on the areas of the firearm from where the swabs were taken. It is said to be improbable that that DNA analysis and results would be yielded in circumstances other than the accused having had some contact with the sock and with the firearm. Mr Biancardi is excluded as a contributor to the DNA profile on the firearm, although it is submitted that this does not conclusively show that he has never touched the firearm.
The CCTV footage, it is submitted, is entirely consistent with the prosecution case, although the prosecution acknowledges that the footage does not show everything. The prosecution also acknowledges that an inference cannot be drawn from the footage alone as to the ultimate conclusions beyond reasonable doubt, having regard to the limitations of the footage outlined elsewhere in this verdict. Notwithstanding those limitation, the CCTV footage is consistent with the prosecution allegations that Mr Clemente passed the firearm into the vehicle to Mr Biancardi and that Mr Biancardi got out of the vehicle, moved in front of the vehicle and disposed of the firearm. The location of the firearm is consistent with where Mr Biancardi passes in front of the vehicle.
In particular, it is submitted that the inferences which can be drawn from CCTV footage are that: the Holden sedan vehicle pulls into the parking bay near the ETSA box shortly after the purchase from Oporto; the accused and Mr Biancardi sit inside the car for some time before getting out; and the accused spends some time outside the car handling his satchel, with his back largely towards Capital Street. This particular aspect of the footage is displayed in the screen captures contained in Exhibit P2 between the images of 5-10. This, on the prosecution case, occurs after the time police travelled past on Elder Smith Road before heading down Central Link.
It is submitted that the footage then clearly shows that the accused leans towards the car and then leans further into the car, reaching back into the car, and that he does so in a motion which is consistent with him passing something to the driver. It is further contended that he moves in a way that suggests he actually makes contact with someone else’s hand to pass them something. His motion and the time he takes to complete the action is said to be consistent with the accused passing something directly to Mr Biancardi at that time. In the prosecution’s submissions, it is unlikely that the accused would have passed a drink to Mr Biancardi given that the earlier footage in the drive through shows the pair purchased drinks shortly beforehand and that Mr Biancardi had his own drink.
Ms Litster does not suggest that the fact that an FPO was in force against the accused has any sort of permissible propensity use in this case, but says it is relevant to the accused’s state of mind at the time police approach. The accused was also a suspect for a breach of bail at the time. Inferences can be drawn from the circumstantial evidence of what was found within the car, being the knife on the driver’s side of the car and drug paraphernalia found within the car, that there was a thought on the part of the occupants that they required self-protection at the time.
In terms of the evidence that the accused left the scene as the police arrived, it is submitted that he did so slowly and in an attempt to evade detection by police. It is not submitted that the only reason the accused left the scene was because of the firearm in his possession. The prosecution contends it does show, taking into account the accused’s behaviour and state of mind as to the existence of the FPO, that he wanted to get away from the police at the time that he saw them arrive. That said, he is seen to stop and takes the time to find something within his satchel which delays his exit from the scene. The prosecution submits that in the circumstances outlined, there must have been something very important in his bag that he took the time to find, remove from the satchel and pass to Mr Biancardi, that delayed his exit. The FPO also places into context the action of passing the firearm to another person when the police are nearby. He did so mostly with his back to the area where the police arrived. This strongly suggests that what he needed to remove from his bag was important.

It was submitted that the reason why the accused would not have disposed of the firearm is of small moment; that it may be that he realised he had the firearm as he left or that he needed to stand up to be able to physically remove it from his bag.
On the prosecution case, Mr Biancardi gets out of the car and then walks across the front of the car to the ETSA box.
It is submitted that the location in which the firearm is deposited is consistent with the prosecution case. Further, this would have been largely out of sight of the police officers and a convenient place to deposit the firearm. It is the Crown’s submission that both men were acting at that point in a way to avoid detection from the police, moving slowly and not at great speed.
The prosecution ultimately submits that it is the improbability of all of those circumstances, and the inferences arising from them, coalescing in circumstances other than those contended by the prosecution that lends the case its strength. The prosecution submits it is appropriate to draw an inference beyond reasonable doubt that the accused was in possession of the firearm on 6 October 2016.
Defence Address
Mr Healy addressed on behalf of the accused.[86] He said that the links in the prosecution chain of reasoning to the guilt of Mr Clemente beyond reasonable doubt are very weak. The evidence does not reach the high standard and at most it is highly suspicious of guilt, although this was not conceded.
[86] TT Pages 106-14.
Mr Healy also focused on the limitations of the CCTV footage and, more particularly, what the footage does not show. The footage does not show the accused reaching into a satchel and drawing from it an item the same shape and size as the sock containing the firearm. While the accused can be seen leaning, he cannot actually be seen leaning into the car. The footage does not show Mr Biancardi alighting from the vehicle with anything in his hand other than a can, nor does it show Mr Biancardi stopping at any time to partially conceal the firearm. Mr Healy questioned why Mr Biancardi would have accepted the firearm from the accused if he was aware of the police car behind him. Mr Healy also questioned why the accused would have gotten out of the car with the firearm and leant back into the car to pass the firearm to Mr Biancardi.
In relation to photographs 6 and 7 of Exhibit P2, it was submitted that it was just as likely that the accused leans into his satchel and pulls out food, the wrappers which Mr Healy says can be seen in photograph 7. Mr Healy submits that it could be inferred from the evidence of Mr Kosmas, regarding the location where he noticed the food wrapping, was where the white items can be seen in the CCTV and photographs.
Given police were all over the scene and vehicle at various times, and that they were looking for anything that might have been dumped, having found the bum bag, Mr Healy contends it is incredulous that the police would not notice anything in the bark chips that close to the vicinity of their search. In respect of the firearm having been located 13 hours later, Mr Healy submitted that there is no evidence that the firearm was at that location at the time police arrested the accused.
Mr Healy submitted that the DNA evidence is not of assistance because, as Ms Brozyna said, transference can occur from the sock to the firearm and perhaps the firearm to the sock, and that the DNA evidence supports equal propositions. Mr Healy said, even if I am satisfied that the sock belonged to the accused or that he had handled the sock, that does not put the firearm in the possession of the accused. More significantly still, even if I am satisfied that the accused has handled the firearm in the past, there is no evidence of the circumstance of that handling. It is submitted that even if I were of the view that it was too much of a coincidence that the firearm with the accused’s DNA was located next to the car, and that the CCTV footage captures Mr Biancardi getting out of the vehicle and walking in the vicinity of where the firearm was located, this does not put the firearm in the custody of the accused. The irresistible conclusion is that the prosecution has not proved beyond reasonable doubt that the accused was in possession of the firearm.
Discussion
The only issue in dispute is whether the accused was in possession of the firearm on the night of 6 October 2016. Section 5(14) of the Firearms Act 1977 (SA) provides that:
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.
The prosecution did not contend at the trial that the accused had possession of the firearm in the manner prescribed by subparagraphs (b) or (c). Subparagraph (c) has no application to the accused, who was not a driver or otherwise in control of the vehicle, and the prosecution case does not rely on subparagraph (b). The prosecution case was put on the basis that the accused had possession of the firearm by having “custody of the firearm” pursuant to s 5(14)(a).
The term “custody” is not defined in the Firearms Act 1977 (SA) and there is little case law interpreting the term specifically within the context of that Act. “Custody” is broadly defined in the Encyclopaedic Australian Legal Dictionary as “[c]ontrol, responsibility for, or confinement of a person or thing”. In R v Marafioti,[87] Kourakis CJ observed of subparagraph (a) that it “is, broadly, the equivalent of the common law concept of possession, but includes within it, possession by an agent.”[88] In R v Britten,[89] Kourakis CJ observed of s 5(14) generally that it extends the concept of possession beyond the common law concept.[90]
[87] (2014) 118 SASR 511.
[88] R v Marafioti (2014) 118 SASR 511, 515 [23] (Kourakis CJ). His Honour continued: “Subparagraph (b) extends the common law concept of possession by removing the requirement of exclusivity and providing that access to firearms may constitute possession of the firearm. Section 5(14)(c) must be construed in the context of the preceding subparagraphs which manifest an intention to extend the concept of common law possession. That suggests a broad reading of ‘in charge of’.”
[89] [2018] SASCFC 36.
[90] Ibid [17].
In Britten, the Court of Criminal Appeal considered whether 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 the appellant had custody of the rifle even though the prosecution had not put its case on that basis, relying instead on the “exercise access” limb of the extended definition of possession in s 5(14)(b). The grounds of appeal to be determined by the Court were: whether the Judge erred in finding as a fact that the appellant knew the rifle was in the foot well; and, if her Honour did not so err, whether the evidence established beyond reasonable doubt that the appellant was in possession on either limb of the statutory definition.
Kourakis CJ, with whom Bampton and Parker JJ agreed, held that the trial Judge correctly found that the appellant knew the rifle was at his feet. His Honour proceeded to consider whether the appellant had possession of the firearm on the basis that he had custody of or had exercised access to it. Chief Justice Kourakis held that knowledge of the presence of the rifle in the footwell of the car did not, of itself, make out the objective elements of the offence of possessing a prescribed firearm.[91] Further, His Honour determined that the appellant did not have possession of the firearm under either limb of the statutory definition, and said in relation to whether the appellant had custody pursuant to s 5(14)(a):[92]
The only evidence that the appellant had custody of the rifle was that it was at his feet in the front passenger foot well of the Astra. There was no evidence that the appellant said or did anything to assert his control to the exclusion of the other occupants of the car. A driver of a car, and even a backseat passenger, may assert and exercise custody and control over an item in a car even if that item is not next to, or within arm’s reach, of him or her. It is a matter of common experience that the belongings of a driver, or other occupant of a car, might be in more easy reach of others, but that fact alone does not support a conclusion that the occupant seated nearest to the item has exclusive control over it. I acknowledge that the DNA evidence establishes that at some time on or before 4 September 2014 the appellant handled the rifle. However, that may have happened on a day or days before 4 September 2014. Moreover, it is well accepted that the mere handling of an item of property does not establish possession or control. Nor was there any evidence from which it could be inferred that the appellant and any one or more of the occupants of the car possessed or exercised control over the rifle together. There was no evidence, for example, from which to infer that the occupants were embarking upon a criminal, or other, enterprise which would allow a conclusion that they were in joint possession of the rifle.
(footnotes omitted)
[91] Ibid [16].
[92] Ibid [18].
The definition of possession under the “custody” limb of the definition of possession pursuant to s 5(14)(a) was considered in R v Joyce[93] by Judge Lovell, as he then was. In that case, the accused rented a locker at a Kennards Storage Facility in which firearms were located. His Honour adopted a conservative approach and applied the reasoning from Marafioti when interpreting subparagraph (a).[94] His Honour went on to say that a person has possession of an object if he knowingly has “physical custody of the item” or has the firearm in the custody of another. That includes control of it. Control includes the power to dispose of the object and having access to it.[95] Further, his Honour considered that the prosecution in that case had to “prove both physical control and an intention to exercise the physical control over that object”.[96] His Honour found the accused in possession of the firearms pursuant to s 5(14)(a).
[93] [2014] SADC 125.
[94] Thus His Honour assumed that s 5(14)(a) is broadly the equivalent of the common law concept of possession but includes within it possession by an agent: [90]-[91]
[95] At [92], [94]. However, s 5(14)(b) removes the need for exclusivity: at [102].
[96] Not only did the Prosecution have to prove the accused has custody of the item but also that he knew the item was a firearm (in a general sense): [101]. The requirement of knowledge of an accused that an item is a firearm was discussed at [87]-[90], where his Honour considered the case of R v Fuller [2012] SASCFC 101. Had Parliament intended to alter the law relating to knowledge and possession, such intention should be clearly stated: at [89], citing He Kaw Teh v The Queen (1985) 157 CLR 523 (Gibbs CJ, Mason, Brennan and Dawson JJ).
In this case, Ms Litster submitted that the definition of possession as it relates to count 1 is the same as it relates to count 2. That is, possession of the firearm requires that the accused was knowingly in control of the firearm to the exclusion of others, except those that are in joint possession of it. It is the prosecution case, however, that on the evening of 6 October 2016, the accused was in sole possession of the firearm. The prosecution does not rely upon any presumptions that operate in respect of FPOs in relation to count 2.
Mr Healy submitted that in the context of the Firearms Act 1977 (SA) “custody” means care and control.[97]
[97] TT Page 111 line 36.
Turning to the facts of this case, I am not satisfied that the accused had custody of the firearm and am therefore not satisfied that he was in possession of the firearm on the evening of 6 October 2016. I am satisfied on the prosecution case that Mr Clemente has at some time handled the Berretta firearm. I cannot, however, be satisfied beyond reasonable doubt that he did so on the evening of 6 October 2016.
The CCTV footage of the manual bay south area, upon which the prosecution case heavily rests, is captured from a considerable distance from the vehicle. I pause here to add that during the course of the trial, it was necessary to use the zoom function of the software through which the footage was played in court, in particular when viewing the manual bay south footage. The resultant image, however, was pixilated. Further, the footage is stilted and there are clear gaps in time in the recording, as has been noted elsewhere. While the accused can be seen getting out of the vehicle, leaning over his satchel and appears to handle the satchel, I am not satisfied from the footage alone, or even in combination with the other evidence of Mr Clemente being a contributor to the DNA profile on the firearm, that the firearm was in his possession in the manner in which the prosecution contends. That is, I am not satisfied that the firearm was in his satchel. Although Mr Clemente does then lean towards the vehicle, and even onto the vehicle, I am not satisfied that the accused leans into the vehicle and at that time passes the firearm, which he is said to have removed from his satchel, to Mr Biancardi.
The footage clearly shows the accused walking away from the vehicle and that Mr Biancardi, shortly thereafter, alights from the vehicle. Mr Biancardi then walks in front of the car and then behind the ETSA box. I am satisfied that the location of the firearm next to the ETSA box, in front of the vehicle, is consistent with Mr Biancardi’s trajectory after he got out of the vehicle. It is my view, however, that the prosecution have not excluded as a reasonable possibility that the firearm had been in the car prior to its disposal by Mr Biancardi, in which case, even if Mr Clemente had knowledge of its presence in the vehicle, this would not be sufficient to establish the objective elements of the offence. The prosecution did not put its case on the basis that Mr Clemente possessed the firearm in that way. Nor was it asserted that the accused and Mr Biancardi had joint custody of the firearm. Further, I consider that there is no evidence that the accused said or did anything to assert control over the firearm on the night in question. I do not consider that the DNA evidence, of itself, nor in combination with any other evidence, is sufficient to exclude as a possibility that Mr Biancardi was in possession of the firearm.
Even if it were the case that Mr Clemente removed an object from his satchel and passed it back into the car to Mr Biancardi, the prosecution has not excluded as a reasonable possibility that the accused passed an object other than the firearm to Mr Biancardi. While it does seem unlikely that the accused would pass a drink to Mr Biancardi in the circumstances outlined, I cannot conclude that it was the firearm he passed to Mr Biancardi, if indeed anything was passed. For example, the accused could have passed the knife or ice pipe to Mr Biancardi. This possibility does not seem improbable taking into account that the accused was a suspect in relation to a breach of bail.
The prosecution’s submission that Mr Clemente may have decided to dispose of the firearm in the manner contended by the prosecution, as opposed to disposing of it while inside the vehicle, does not sit well with the prosecution’s submission as to the accused’s state of mind at that time. The contention that he may have decided to dispose of the firearm until after he had alighted from the vehicle because he had forgotten about the firearm in his satchel or because he needed to stand up in order to remove it from his satchel seems to be, to some extent, inconsistent with the submission that the accused was at that time trying to evade detection by police, who, on the prosecution case, the accused knew to be behind him.
The prosecution did not submit that an inference could be drawn as to a consciousness of guilt on the part of the accused by virtue of Mr Clemente apparently trying to avoid detection by fleeing the OTR and attempting to evade police at the Interchange by hiding behind a pillar in poorly-lit area. Nor was it reasonably open in the circumstances given that the accused was wanted by the police in relation to other matters.
I accept that in all likelihood the firearm was deposited in the area in which it was subsequently located by Mr Kosmas, by the driver Mr Biancardi. I accept that the accused has handled the firearm at some stage. However, I cannot be satisfied that the accused had possession of the firearm in the manner suggested by the prosecution on 6 October 2016.
Verdicts
I find the accused not guilty of both counts on the information.