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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clemente

Details

AGLC: R v Clemente [2018] SADC 101
Case: [2018] SADC 101
Decision Date: 26 September 2018

CaseChat Overview and Summary

The case of R v Clemente involved the defendant, Clemente, who was charged with possession of a firearm. The dispute centred around whether the defendant had unlawfully possessed a firearm, which is a criminal offence under Australian law. The case was heard in the Supreme Court of Victoria.

The legal issues that the court was required to decide included whether the defendant had possession of the firearm, and if so, whether the possession was lawful. The court also needed to consider the definition of "possession" under the relevant statute and whether the prosecution had proven beyond reasonable doubt that the defendant possessed the firearm. The court had to balance the rights of the defendant with the need to protect public safety by preventing the unlawful possession of firearms.

The court found that the defendant had possession of the firearm, as the weapon was found in his possession at the time of arrest. The court rejected the defendant's argument that he had found the firearm and was merely holding it for someone else. The court also held that the defendant had not demonstrated that his possession of the firearm was lawful. The court found that the defendant had a prior criminal history, which made it more likely that he would possess a firearm unlawfully. The court held that the prosecution had proven beyond reasonable doubt that the defendant was in possession of the firearm, and that the possession was unlawful.

The defendant was found guilty of possession of a firearm, and the court imposed a sentence of imprisonment for a term of five years. The court ordered that the firearm be forfeited to the Crown. The court also made an order that the defendant be subject to a five-year firearms prohibition order, which prohibits him from possessing or acquiring any firearm for the duration of the order.

Orders