R v Coaby
[2023] SADC 86
•10 July 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COABY
Criminal Trial by Judge Alone
[2023] SADC 86
Reasons for the Verdicts of his Honour Judge Alexandrides
10 July 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Accused is charged with one count of possessing a Category A firearm without a licence, and one count of breaching a firearms prohibition order – whether accused occupied, or had care, control or management of premises where firearm was found – whether accused did not know and could not reasonably be expected to have known firearm was in premises.
Verdict: Not Guilty
Firearms Act 2015 (SA) s 4, s 6, s 9, s 39, s 45, s 74; Firearms Act 1977 (SA) s 10, referred to.
R v COABY
[2023] SADC 86Case Summary
As at 19 September 2021, the defendant, Leonard Coaby was living at unit 19/8 Lawhill Court, Taperoo. The premises were leased from the SA Housing Authority. The defendant was the only tenant listed on the tenancy agreement.
The one-bedroom unit was on the upper floor of a two-storey complex of units.
At 8:40 p.m. on 19 September 2021, Detective Ryan Flavel (Detective Flavel) together with other police officers attended the premises to execute a Parole Board warrant and to search the premises.
Detective Flavel found the door to the defendant’s unit closed and locked. He knocked and called out loudly identifying himself as a police officer repeatedly for about 10 minutes. There was no response and Detective Flavel instructed other police to force entry through the door. The police used a battering ram against the door for two to three minutes before entry to the unit was forced.
Police entered the premises and immediately attempted to locate any occupants.
The defendant was located sleeping in the single bedroom of the unit. There were no other occupants. Detective Flavel spoke to the defendant and after a short time aroused him from his sleep.
The defendant had an injury to his right arm or hand and it was apparent that he was in significant pain. He was arrested on the Parole Board warrant, removed from the premises and taken to hospital by police for treatment.
Detective Flavel and other police remained at the premises and conducted a search.
A short time after the defendant was removed from the premises, Detective Flavel located three items which appeared to be a firearm and firearm parts on the floor of the living room adjacent to the bedroom.
Brevet Sergeant White, a crime scene examiner attended the premises at about 10:30 p.m. on 19 September 2021. He took a series of photographs of the unit complex, the defendant’s unit itself including the firearm and firearm parts in situ.
Brevet Sergeant White took swabs from the firearm and firearm parts for the purpose of obtaining any DNA material on the items.
The firearm and firearm parts were seized by Detective Flavel and subsequently photographed by Brevet Sergeant White.
The firearm and firearm parts located on the floor of the defendant’s living room were the components of an inoperative gel blaster of plastic construction which on the prosecution case is a Category A firearm under the Firearms Act.
The defendant did not hold a firearms licence authorising possession of a firearm of any type. He had been subject to a firearms prohibition order under the Firearms Act since 3 May 2016. Under the terms of the order the defendant was, amongst other things, disqualified from obtaining a firearms licence or permit, he was not permitted to be in possession of a firearm or firearm parts and he was not permitted to reside at premises where there is a firearm or firearm parts.
On 22 October 2021, Detective Flavel arrested the defendant in connection with the alleged unauthorised possession of the firearm and firearm parts located in his unit on 19 September 2021. The defendant was formally interviewed under caution about the firearm or firearm parts located in his premises. The defendant was also interviewed in relation to a potential breach of a firearms prohibition order under the Firearms Act.
In his record of interview, the defendant denied any knowledge of a firearm in his premises. The defendant acknowledged that he was subject to a firearms prohibition order.
The defendant denied having taken a firearm to his premises. He told Detective Flavel that there was a gel blaster. He said that he had just got his car back which had been taken by his niece. He said he reported that to Kerry, his parole officer and told her that he had found the item in the boot of the car. The defendant said that he told Kerry that it looks like a firearm but it is not a firearm. He said it looks like a plastic water pistol. The defendant said that he could not see Kerry and she could not come and fix it up. The defendant said that he put the item he found in the boot in the bushes right next to his place.
The defendant said that he did not put the item in his house. He said he did not put any weapons in his house.
The defendant said that he had not seen the gel blaster the police located in his house and could not say if it was the same item that he removed from his boot.
The defendant was not shown the firearm and firearm parts located in his premises or photographs of the items during the record of interview.
The defendant asked the police to contact Kerry to confirm his version of events.
Following the interview, a buccal swab was taken from the defendant to obtain sample of his DNA.
It transpires that on 17 September 2021 the defendant’s then parole officer Ms Kerry Eguchi, at the time an employee of the Department for Correctional Services, was contacted by telephone by the defendant. He informed her that his car had been returned after it was taken by his niece. He told her that there was something in the boot. He initially said it was something he should not have and went on to say that he thought it was a broken part of a plastic toy gun. The defendant was heightened and distressed when making the telephone call. Ms Eguchi documented the call but no further action was taken by her or the Department for Correctional Services.
The swabs taken from the firearm and firearm parts located in the defendant’s unit were examined by forensic scientists at the Forensic Science Services of South Australia for traces of DNA. The examination revealed traces of DNA from 4 contributors.
The DNA recovered from the firearm and parts of the firearm located in the defendant’s premises was compared with the DNA obtained from the defendant. The defendant’s DNA profile matched the DNA profile of a contributor to the DNA recovered from the swabs taken from the firearm or firearm parts. The results of the analysis favoured the hypothesis that the defendant was the contributor of some of DNA located on the items seized from his unit. The statistical weighting in favour of that hypothesis was more than 100 billion times greater than the hypothesis that he was not the contributor.
The Charges
The defendant was charged on an Information dated 17 June 2022 with the following offences:
First Count
Statement of Offence
Possessing a Firearm Without a Licence. (Section 9(1) of the Firearms Act, 2015).
Particulars of Offence
Leonard Robert Coaby between the 16th day of September 2021 and the 20th day of September 2021 at Taperoo, possessed a Category A firearm, namely a gel blaster, without holding a firearms licence authorising possession of that firearm.
Second Count
Statement of Offence
Breaching a Firearms Prohibition Order. (Section 45(2) of the Firearms Act, 2015).
Particulars of Offence
Leonard Robert Coaby between the 16th day of September 2021 and the 20th day of September 2021 at Taperoo, being a person against whom a firearms prohibition order was in force, breached that order by possessing a firearm, namely a gel blaster.
The defendant contested the charges and elected for trial by judge alone.
Legal Principles
Onus and Burden of Proof
The prosecution carries the onus of proof. The defendant is presumed to be innocent unless and until the prosecution can prove each of the elements of the offence beyond reasonable doubt. If there remains a reasonable doubt about any of the essential elements of the offence, then the prosecution has not proven its case and the defendant is entitled to an acquittal on that charge. Expressed in another way, if there is a reasonable possibility that the defendant has not committed the offence as alleged the prosecution case must fail. The defendant is not obliged to prove anything to secure his acquittal.
The elements of each of the offences with which the defendant has been charged and which the prosecution must prove beyond reasonable doubt are discussed below.
In this case there is a limited qualification to the fundamental principle that the prosecution bears the onus of proof beyond reasonable doubt. The Firearms Act creates a rebuttable presumption of possession where the prosecution has first proven certain facts in connection with the finding of the firearm. The effect of the rebuttable presumption will be dealt with when considering the elements of the offence.
Evidence of the Defendant
The defendant elected not to give evidence. He was not required to give evidence. I remind myself that no adverse inference can be drawn against the defendant for maintaining his right to silence.
The exercise of the right to remain silent does not constitute an admission and cannot be used to fill gaps in the prosecution’s evidence where it is required to prove a fact in issue. It does not make the prosecution’s evidence stronger, or more persuasive.
I also remind myself that, subject to the exception in this case to which I have previously referred, the onus and burden of proof remains on the prosecution to prove the offences charged beyond a reasonable doubt.
Discreditable Conduct
The evidence in this case suggests that the defendant has previously engaged in discreditable conduct.
The court heard that the police attended the defendant’s premises on 19 September 2021 to execute a Parole Board warrant and to search the premises for firearms. The court also received documents indicating that the defendant was incarcerated at the Port Lincoln Prison at the time he was served with a firearms prohibition order. The evidence necessarily discloses that the defendant had been issued a firearms prohibition order because of a previous criminal conviction.
The evidence also discloses that, at the time of the alleged offences, the defendant was under the supervision of the High Intensity Team of the Department for Correctional Services.
That evidence shows that the defendant has a criminal history.
I remind myself that although the defendant has been proven to have committed offences in the past and even if I were to accept that he had engaged in other wrongdoing in the past, I cannot reason that he is therefore more likely to have committed the offences with which he is now charged.
The evidence which suggests past criminal behaviour and possibly other wrongdoing, is relevant only to explain the background and circumstances of the police attendance, which was necessary to put in context other relevant evidence including the explanation provided by the defendant in his record of interview.
Separate Verdicts
I remind myself that the prosecution is obliged to prove each of the charges based on the evidence relevant only to the charge. The defendant is not to be convicted on the basis that if he were to be found guilty of one of the offences, he must therefore also be guilty of the other offence.
I note though that there is considerable overlap and cross-admissibility in the evidence relevant to both counts.
Elements of the Offences
To prove the offence of possession of a firearm without a licence contrary to s 9 of the Firearms Act in the context of this case the prosecution must prove;
1. The defendant had between 16 September 2021 and 20 September 2021 possession of a firearm,
2. The firearm was a Category A firearm, namely a gel blaster,
3. The defendant did not have a firearms licence authorising possession of that firearm.
Turning to consider the legal concept of possession.
The concept of possession for the purposes of the Firearms Act is dealt with under s 6 of that Act. Section 6(1) of the Firearms Act provides that the terms of that section apply to a range of items, including firearms and firearm parts.
Section 6(2) of the Firearms Act defines the meaning of ‘possession’ when used in the Act. Section 6(2) provides as follows;
(2)For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if—
(a)the person has physical possession or control of the item or has the item in the physical possession or control of another; or
(b) the person has and exercises access to the item; or
(c) the person controls access to the item; or
(d)the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the item is found.
In this case the prosecution alleges that the defendant had possession of the gel blaster firearm under s 6(2)(d) of the Firearms Act by virtue of his occupancy of the premises where the firearm was located.
Section 6(3) of the Firearms Act creates an exception by excluding the operation of the circumstances referred to at s 6(2)(d) above which relies upon proof of possession by (amongst other things) the person’s occupancy of premises where the firearm is found.
Section 6(3) of the Firearms Act relevantly provides;
(3) However, subsection (2)(d) does not apply if the person proves that—
(a)he or she did not know, and could not reasonably be expected to have known, that the item was on or in the premises, vehicle, vessel or aircraft; or
(b) *
It is apparent therefore that s 6(2)(d) of the Firearms Act creates a presumption of possession against a person who occupies premises where the relevant firearm is found; furthermore s 6(3) provides that the presumption is rebuttable.
It is important to observe that for the presumption to apply the prosecution must first prove beyond reasonable doubt the circumstances of possession referred to under s 6(2)(d) of the Firearms Act, namely that the defendant was the occupant of, or had the care, control or management of premises and that the firearm was found at those premises.
If so proven, it is for the defendant to rebut the presumption by proving on the balance of probabilities that he did not know and could not reasonably be expected to have known that the item was on the premises.
The operation of the presumption and the onus of proof in rebuttal of the presumption is the qualification to the obligation upon the prosecution to prove its case beyond reasonable doubt to which I previously referred.
Turning now to consider the requirement that the prosecution prove that the item is a firearm.
Section 4(1) of the Firearms Act relevantly defines the term ‘firearm’ to mean;
(a) a device designed to fire bullets, shot or other projectiles by means of burning propellant or by means of compressed air or other compressed gas; or
(b) *,
and includes a receiver of a firearm and any device or devices which (whether or not rendered temporarily or permanently unusable) would, if in working order, or if assembled and in working order, be a firearm within the meaning of this definition ….
In this case there is no real dispute that one of the items allegedly found in the defendant’s position is a firearm within the meaning of the Firearms Act.
Finally, the prosecution must prove that the defendant did not have a firearms licence for the firearm allegedly found in his possession.
Again, there is no real dispute in this case that the defendant did not possess a firearms licence authorising possession of any firearm.
To prove the offence under s 45(2) of the Firearms Act of breaching a firearm prohibition order the prosecution must prove that;
1. Between 16 September 2021 and 20 September 2021, a firearms prohibition order issued under s 45(1) of the Act was in force against the defendant,
2. The defendant was in possession of a gel blaster firearm.
Turning to the issue of proof that the defendant was at the time of the offence subject to a firearms prohibition order.
Section 74 of the Firearms Act relevantly provides as follows;
Evidentiary provisions
(1)In proceedings for an offence under this Act or other legal proceedings, an apparently genuine document purporting to be signed by the Registrar and to certify that, at a specified time—
(a) a firearms prohibition order applied to, or was in force against, a person;
(b) –(u) *
(2)is to be accepted, in the absence of proof to the contrary, as proof of the matter so certified.
A document was tendered as Exhibit P9, without objection by counsel for the defendant, signed by the delegate of the Registrar of Firearms certifying that the defendant was issued with a firearms prohibition order dated 12 April 2016. The certificate erroneously purported to be issued under s 10B of the Firearms Act 1977 which has been repealed and replaced by the current Firearms Act of 2015.
Despite the irregularity of the document Exhibit P9, it complies with the provisions of s 74 of the Firearms Act. The document is in my view a valid certificate under s 74 of the Firearms Act.
The defence did not dispute that the defendant was subject to a firearms prohibition order. The defence did not submit any evidence or point to evidence contrary to the certification by the delegate of the Registrar of Firearms.
In relation to the issue of possession, in this case the prosecution is required to prove possession of the gel blaster firearm, which is the subject of Count 1. This gives rise to the same legal issues as discussed with respect to proof of possession of the firearm referred to under Count 1 which I need not repeat.
If the prosecution proves possession of the firearm the subject of Count 1 it has satisfied this element of the offence under Count 2.
Prosecution Case
Detective Brevet Sergeant Ryan Flavel
Detective Brevet Sergeant Ryan Flavel (Detective Flavel) gave evidence. He attended 19/8 Lawhill Court, Taperoo on 19 September 2021 at 8:40 p.m. He attended the premises with Officer Boucher, Officer Forest, Officer Howard and some other officers.
The property is within a unit complex. Outside the unit block there is a joint common area, which includes car parks. Entry to the unit complex is gained through an external glass door, which has a keypad lock. The entrance leads into an enclosed staircase. The staircase leads up one flight to where unit 19 is located on the first floor. The glass door at the front of the complex was either unlocked or open when Detective Flavel attended.
When he arrived, he knocked on the door of the unit for about 10 minutes. He announced himself as “Police” and said that they were there to search the unit. He continued to knock on the front door and did not get a response for 10 minutes. The door was locked. The door was quite heavy with a heavy-duty locking mechanism and a steel door frame.
Eventually, access was gained to the unit by using a battering ram. That took between two to three minutes. Prior to using the battering ram, the door did not appear to be damaged. Once the battering ram had broken the door, he entered as the first officer. He walked into the loungeroom. Other officers entered behind him. He opened the sliding door separating the loungeroom and the bedroom and located the defendant laying on the bed. The defendant was the only person present.
A floor plan of the unit was tendered as Exhibit P3.
After Detective Flavel located the defendant, he conducted a search of the unit. The unit was messy. There did not appear to be any forced entry, other than from the battering ram.
When the defendant left the unit with other officers, Detective Flavel noticed a firearm stock in the loungeroom. He then saw the firearm frame, also known as a receiver, and barrel on the loungeroom floor. Detective Flavel said that all three parts were located on the loungeroom floor in plain sight. The firearm components were located about 1 ½ - 2 metres from where the defendant was located lying on the bed.
The firearm receiver and parts were located at 9:00 p.m. He did not touch any parts of the firearm. A crime scene examiner, Brevet Sergeant Steven White attended the premises at 10:30 p.m. Detective Flavel then conducted a walkthrough of the unit and stairwell with Officer White. A bundle of photographs tendered as Exhibit P2 were identified by Detective Flavel as photographs taken of the unit complex stairwell in the unit itself.
Detective Flavel identified from the photographs the front door of the complex, which he said was either unlocked or ajar or open. He did not need the keypad or code to get in.
He said that the damage to the door of the unit depicted in photographs 8 and 9 was caused by police. The black scuff mark and the broken wood was caused by the battering ram. Detective Flavel said that the damage on the external side of the door near the metal bar/latch was consistent with normal wear and tear and was not caused by police. All the damage that the police caused was around the handle. Detective Flavel said that there did not appear to be any damage near the internal security latch which allows the door to be secured while ajar.
Detective Flavel said that photographs 19-22 depict where the firearm was positioned when they attended the residence. He said photograph 20 depicts the receiver resting on a black piece of clothing. The firearm is also depicted in its original position in photograph 17. The stock is shown on the bottom left of the photograph, the receiver is shown in the middle and the barrel is located at the top right of the photograph.
Detective Flavel said that the sliding door was located behind the archway. He said he could recall seeing male clothing hanging through the archway.
Detective Flavel said that there was only one bedroom in the unit and only one bed.
After the firearm was swabbed, he entered it into the Police Property Management System (PPMS).
As a result of locating the firearm, he arrested the defendant on 22 October 2021. He conducted an interview with the defendant that day.
The audio-visual recording of the record of interview was tendered as Exhibit P4. A transcript prepared by police of the record of interview was submitted and marked MFI P5.
Detective Flavel said that at the completion of the interview a DNA sample was obtained from the defendant using a buccal swab. The DNA sample was submitted for analysis. The swab of the firearm was also submitted for analysis.
Under cross-examination, Detective Flavel said that the outside sections of the lock at the front door of the unit appeared to have a key snapped off inside of it.
While trying to gain entry to the premises, he examined the lock and tried to unlock the door handle to see if it was unlocked. He could not say if the key was the correct key for that lock. He does not recall examining the other side of the door handle after gaining entry to the premises.
Detective Flavel said that before attending the unit, he had been told by Officer Miller that she had gained access to the unit through an unlocked front door. Detective Flavel said that he was informed by Miller that she had attended that unit in the early hours of the same day that he, Detective Flavel had attended. Miller informed him that on her arrival the door was closed. He was aware that she had knocked. She discovered that the door could be open. She then opened the door and entered the unit after calling out for the defendant. The defendant was not present at the time Miller attended.
Detective Flavel confirmed that before opening the sliding door to the bedroom, he had not seen the gel blaster. He did not recall whether the lights were on or off when he entered the unit.
Detective Flavel said that when he opened the sliding door, he saw the defendant lying on top of the cover of the bed, with his head closest to the sliding door. He said he entered the sliding door, stepping onto and over the bed. He said the defendant appeared to be asleep.
Detective Flavel said that when the police entered the unit they were yelling “police with a warrant”.
He said when the defendant was located, he said “show me your hands”. The defendant eventually responded.
Detective Flavel said the defendant had an injury to his right arm and appeared to be in pain. He arrested the defendant on the Parole Board warrant and other officers led the defendant out of the unit. He said he saw the gel blaster after the defendant had been taken out of the unit.
Detective Flavel agreed that in the record of interview, before the defendant mentioned the “small black firearm”, he Detective Flavel, had used that phrase.
He agreed that no photographs were shown to the defendant of the gel blaster located in his unit. He said that was because the defendant was in a heightened state.
Detective Flavel said the first time that he had heard about the defendant contacting Kerry Eguchi was during the record of interview.
Detective Flavel said he recalled a green space at or around the car park but could not recall any bushes. He attended at night, so he is not sure how large or vegetated the space was. He said the green space was on the opposite side of the building and about 10 metres from where the stairwell entrance was located.
He said that he did not have any reason to search the outside of the building.
Detective Flavel said that he did not make any inquiries with the defendant’s niece as part of his investigation.
The Defendant’s Record of Interview
In his record of interview the defendant made the following statements.
P12, line 39 I don’t have no firearm.
P12, line 43What black firearm, there was, there was, there was a gel blaster, it was a gel blaster.
P13, line 1A gel blaster, a wind thing that was in the boot of my car. My car was stolen by my niece. I went and reported to Kerry. I said Kerry, I just got, I just got my car back. She was aware that my car was stolen from my niece and I said Kerry I found this in the boot. I said when I went and searched my car. I said Kerry this is what I found in the boot.
P13, line 23HIT team from city corrections. She’s my parole officer. I rang her and said Kerry this is what I found in the boot of my car. I think my niece is trying to fucking set me up.
P13, line 33 [referring to the gel blaster] Well it’s not mine.
P13, line 37 I don’t know what it looks like.
P13, line 46 I don’t know what size it was, all I’m saying is there was something in my car and said to Kerry it looks like a firearm but it’s not a firearm.
P14, line 6 It looks like a, it looks like a fucking plastic fucking water pistol. This is in the boot of my car, what do I do and she goes oh obviously fucking you need to try and set up you’ve done something wrong she goes put it away but then I got arrested.
P14, line 26 I rang Kerry and she said I put the gun away to fucking whatever it was, gel blaster away and can you please come and sort it.
P14, line 31 Coz it was 12 o’clock, 11 o’clock at night he (sic) said I will fix it up tomorrow.
P14, line 36 I put it outside.
P14, line 40 In the bushes right there, in the bushes right there next to my place.
P15, line 9 Anyway it’s not a fucking gun, it’s a plastic fucking thing.
P15, line 17 Yeah, but it looked like a firearm, it’s not my fucking firearm.
P16, line 2Right so it wasn’t in my fucking house. It wasn’t in my fucking possession it was right there in the front of the bushes. I don’t touch the gun.
P16, line 36 Yeah well that’s when I just before yous come, I just got back to my house.
P16, line 41 My house was broken into, my house is home invaded. I just got back in my house, right I try to cut my bracelet off.
P16, line 46 I not me but my bracelet got cut off, right and, and I took off. I was on the run, like you know that.
P17, line 3 I got back to my house and what is my fucking house, I did not put nothing in my house.
P17, line 8 I just got back to my flat, lay down on the bed went to sleep. My fucking hand was hurting. You seen how fucked up that was.
I popped three fucking Lyricas and went to sleep and I woke up and yous were around me.
If there’s anything in my fucking house, I never put it there, my fucking house my fucking house is wide open.
I’ve got no locks on my fracking back door so every, every people break into my house all the time.
P17, line 42 [responding to the statement that a gel blaster in three different pieces was found]
I did not, I tell you right now I did not put no weapons in my house. I’m not that fucking stupid.
P18, line 3 I’m not that stupid right. I never put a weapon in my house. I don’t have no gun. I have no weapon. That gel blaster was outside. That gun thing was outside right outside my flat.
P18, line 9 Right, that’s why I spoke to Kerry on the phone same time as I rang Kerry you can ask, ring Kerry right now and she will tell you then I told her I saw, I saw, I stuck it in the bushes man right next to my flat when you walk into my flat the bushes right there.
P18, line 19 I took off, that’s why I went on the run.
P18, line 23 All right I went on the run. I got back and my house was, if that was in my fucking house I did not put the cunt there.
P18, line 36 [when asked if the gun found in the unit is the same one he put into the bushes]
I don’t, I don’t know, I don’t know what you’re talking about I didn’t see no gun in my house.
I didn’t put no gun in my house.
P19, line 3 I found something in my car that I thought might’ve been a firearm. I said to Kerry. You can ring Kerry.
P24, line 8 That, that thing it was about, it was about 12 o’clock midday that early on the Friday that it was thrown in the bushes
P24, line 13 On the Friday that was thrown in the bushes right.
Brevet Sergeant Steven White
Brevet Sergeant Steven White gave evidence. He is a crime scene examiner stationed with the Forensic Services Branch at the Norwood Police Station.
On 19 September 2021, Brevet Sergeant White attended 19/8 Lawhill Court, Taperoo. He described the premises as a block of double storey units. Unit 19 was on the first floor. The building can be accessed through a door at the front of the building. Upon entry, there is a foyer which leads to a staircase. Police entered the front door of the building. The front door had a keypad entry lock, which was unlocked when he arrived.
The unit contained a living area, kitchen, one bedroom and a bathroom/laundry. He arrived at 10:30 p.m. There were no civilians present. Officers Flavel and Forest were also present. He conducted a walkthrough with Detective Flavel. They located a gel blaster on the floor of the living area. It was in plain sight.
A booklet of photographs taken by Brevet Sergeant White was tendered as Exhibit P2.
Brevet Sergeant White said he used a cotton-tip swab on the gel blaster components. He swabbed the three parts for DNA. The swabs he collected were packaged and then lodged in the PPMS.
Under cross-examination Brevet Sergeant White was asked to examine and identify certain items depicted in the photographs he took at the crime scene.
His attention was drawn to a light-coloured boot depicted in photographs 17 and 18. He said he did not make any observations about the boot at the time he attended the scene. He agreed that it appears to be a woman’s boot.
In relation to Photograph 20, he agreed that there appeared to be two items of clothing next to the component of the firearm. He said that had to move the dark-coloured item prior to repositioning the plastic pieces. He did not recall making any observations about the dark-coloured item. He agreed that the light-coloured item appears to be a bra. He did not make a note of whether female clothing was present and if so, how much female clothing. He said he only focused on the gel blaster.
The floor in the living room was lino. He could not recall if the floor was clean. In other parts of the unit they located blood. He took swabs of blood in other parts of the unit.
Brevet Sergeant White confirmed that photographs 8 and 9 depict the outside of the door to the unit. He did not make an examination or observation in relation to the lock. He agreed that it was probably not a deadlock. He could not comment on the possible ease of overcoming the locking system. He could not recall if the door to the unit was closed or ajar. He could not comment on whether the front door required a key to open or be locked.
Brevet Sergeant White was referred to photograph 17. He could not identify the small red jar with a gold or silver cap. He did not document any observations about the items on the floor other than the gel blaster. He did not make any observations about the pink items.
Kerry Eguchi
Kerry Eguchi gave evidence at trial. In September 2021 she was employed by the Department for Correctional Services for a period of approximately eight months. Ms Eguchi was assigned as the case manager for the defendant for about six or seven months.
On 17 September 2021 she received a call from the defendant. He sounded distressed. He said that he had received his car which he had lent, she believed, to his niece. He was upset that there was some damage to the car. Ms Eguchi said that there was something in the boot. He initially said it was something that he should not have. He then went on to say that he thought it was a broken part of a plastic toy gun.
Ms Eguchi said that the defendant’s demeanour was heightened and distressed. She said he spoke constantly.
She said that she did not believe that she provided him with any suggestions about what to do with the item.
Ms Eguchi said that the defendant ended the telephone call.
She said that she discussed with her manager whether the matter needed to be reported. She said that given the information was very vague and there was no suggestion that the defendant was a risk to himself or others the incident was documented and there was no further follow-up. The matter was not reported to any other authorities.
Ms Eguchi said that she believed that the defendant had told her that he had thrown the piece of plastic into the bushes. She could not recall whether she responded to that information.
Ms Eguchi said that the call was documented in the case notes. She said that she did not have access to her case notes to refresh her memory about the call.
Christopher Sanders
Mr Christopher Sanders was formerly a member of the South Australia Police. He retired in September 2019. At the time of his retirement, he was attached to the Forensic Response Unit predominantly involved in ballistic examinations. Since early 2020 he has been employed as a civilian by the South Australia Police undertaking ballistic examinations. His role includes determining which class a particular firearm falls within.
Mr Sander’s duties involve examination reporting on crime scenes, collection of evidence, preservation of evidence including examining and testing firearms and ammunition, and restoration of firearm serial numbers. He has received ongoing training and instruction in these areas and has given evidence in court in connection with his work.
Mr Sanders said he examined the 8mm gel blaster rifle which is the subject of the offence. It consisted mostly of plastic components. It had a plastic receiver, a plastic stock and two plastic barrels that could be interchanged.
He said the firearm had evidence that the stock at some point had been broken. There was a clear white glue that was evident around the mounting bracket. The firearm was in poor condition.
Mr Sanders said the receiver is the part that has a conventional pistol grip and a magazine clip.
The firearm was inoperative at the time that it was examined. It was missing the battery, the internal wiring and the bore, which is the tube down which the gel pellet would pass.
Mr Sanders determined that it was a gel blaster and as a result a Class A firearm. He determined that it was a firearm, because it was a device designed to fire a shot or projectile by means of compressed air or gas.
He said if he had only examined the barrel, he would have concluded that it was a gel blaster barrel. If he had examined the stock, and none of the other items, he would have concluded that it was a firearm part.
Mr Sanders said a receiver is classified as a firearm under the Firearms Act.
Under cross-examination Mr Sanders explained that the bore is a separate part that attaches to the front of the receiver.
He said the wiring was missing from the receiver, and the battery was not supplied. He said ordinarily the battery would be readily removable and replaceable. He said the wiring is not designed to be removed readily and would have been difficult to remove.
Mr Sanders said the gel blaster functioned using compressed air.
He explained that the gear cogs which are involved in the operation of the compressor were out of alignment. He said the gear cogs may be simply realigned within the gearbox or may require the replacement of the unit. He said it would depend on the brand or type of gel blaster.
Mr Sanders said the receiver itself was not complete, but it was missing the crucial parts to make it functional. If all of the [recovered]components of the gel blaster were fitted together, it would not have been functional. To make it a functional firearm it required the wiring and battery to be fitted, and the gear cogs correctly aligned.
Mr Sanders said the receiver was classified as a Class A firearm regardless of whether it was functional.
Patricia King
Ms Patricia King gave evidence at trial. Ms King holds a bachelor’s degree with honours in biotechnology and is a forensic scientist employed at the Forensic Science Centre South Australia. Ms King is a member of the Australian and New Zealand Forensic Science Society. She undertakes ongoing training in the area of her expertise.
Ms King said that her role with the Forensic Science Service is a reporting officer. Her duties include overseeing cases involving DNA examinations, analysis, comparison and reporting.
Ms King identified a report dated 10 November 2022 containing her findings and DNA analysis in connection with the defendant’s case. The report was tendered as Exhibit P6.
Ms King said that she was provided with two separate samples in connection with the case. One sample of unknown origin was obtained from swabs taken from the gel blaster firearm. The second sample came from a buccal swab taken from the defendant.
She said that the sample of unknown origin taken from the gel blaster firearm resulted in a mixed DNA profile that had four contributors. She was able to establish the proportion each of the four contributors contributed to that DNA profile.
Ms King said that Contributor One represented 69.83%t of the profile, Contributor Two provided 23.31% of the DNA profile, Contributor Three provided 4.55% of the profile and Contributor Four provided 2.31% of the DNA profile.
Ms King explained that the information tells us that there is a contributor that has given more DNA than others in that sample.
She said the sample from Contributor One was a complete sample which contained information across all 24 regions of DNA available for testing and comparison.
Ms King said that the DNA profile obtained from the gel blaster firearm from contributor one was compared with the DNA profile obtained from the defendant. A statistical weighting was assigned to the comparison which was included at page 3 of her report. The statistical weighting was that it is greater than 100 billion times more likely that the defendant was the contributor of DNA as against him not being the contributor.
Ms King explained that there is extremely strong support for the conclusion that the defendant is a contributor to that DNA profile.
Ms King said she was unable to determine who the other contributors were.
Under cross-examination Ms King confirmed that there were considerably more X chromosomes than Y chromosomes present in the sample taken from the gel blaster firearm. She said that the imbalance was consistent with a woman contributing to the sample but that it is also consistent with the natural small imbalance between X and Y chromosomes that can occur because of the process of amplification involved in the testing procedures.
Ms King confirmed that there are a considerable number of explanations for the variation in the amount of DNA from each of the contributors. She agreed that differences might arise depending on how the DNA was transferred namely whether it resulted from a primary or secondary or tertiary processes of transfer. She said some individuals shed more DNA and may contribute more than others. She agreed that the level of contributions from each of the contributors cannot tell us how recently or how much contact each of those individuals had with the item that was tested.
It was suggested to Ms King that the degree contributed by each of the individuals is, if not intractably neutral, as to be so close to intractably neutral in terms of the information it can provide in search of the truth all the facts. In response, Ms King said it is just a piece of information that needs to be taken into account with all the other evidence. She said it is part of the jigsaw puzzle to actually take that information in. She said that it is up to the Court to decide whether it is important information or not.
Ms King agreed that the concentrations from each of the contributors tells us very little about the dynamics by which the DNA was deposited.
Ms King examined the photographs in Exhibit P2 showing the gel firearm and firearm parts in situ on the loungeroom floor of the defendant’s unit. She agreed that the items on the floor may have had DNA transferred from the floor or from the garments on the floor making contact with the item.
Agreed Facts
A statement of agreed facts in the following terms was tendered by consent as Exhibit P8.
Firearms Licence and Registration
1. As at 19 September 2021, Leonard Robert Coaby did not hold a firearms licence.
2. As at 19 September 2021 the article (22/B26765-10) was not registered.
Firearm Prohibition Order
3. On 3 May 2016, Leonard Robert Coaby was served with Firearms Prohibition Order pursuant to s 10B of the Firearms Act1977 (SA). As at 19 September 2021, Leonard Robert Coaby was subject to that prohibition order.
An agreed fact was also read to the court and recorded on the transcript with the consent of counsel for the defence that follows:
At 1:25 a.m. on 19 September 2021, Senior Constable Alicia Miller attended unit 19/8 Lawhill Court, Taperoo. The door to the premises was closed but unlocked. Senior Constable Alicia Miller entered the premises and did not locate the defendant. Senior Constable Alicia Miller did not observe a firearm on the floor and Senior Constable Alicia Miller left the premises closing the door but left the door unlocked.
Statement Regarding the Housing Agreement for the Premises where the Defendant was Arrested Exhibit P1
A witness statement in the form of an affidavit affirmed on 13 June 2023 by Julie Cottrell was tendered by consent as Exhibit P1.
In the affidavit, Ms Cottrell deposes that she is employed by the SA Housing Authority in the capacity of a Senior Freedom of Information Officer and is authorised to speak on behalf of the authority on certain matters.
She states in her affidavit that a Freedom of Information request was received from South Australia Police.
Ms Cottrell states that according to SA Housing Authority records, Mr Leonard Coaby was the sole occupant at 19/8 Lawhill Court, Taperoo and began his tenancy at the address on 3 May 2021.
A copy of the tenancy agreement for the defendant was attached as Annexure A to Ms Cottrell’s affidavit. The tenancy agreement forms part of Exhibit P1.
Consideration
Issues to be Determined
In relation to Count 1, unauthorised possession of a firearm, there is no real dispute about the elements of the offence requiring the prosecution to prove that the item which is the subject of the offence was a Category A firearm, namely a gel blaster, or that the defendant did not hold a firearms licence authorising possession of that firearm.
The evidence of Christopher Sanders was that one of the items seized by the police on 19 September 2021 and which he examined was a gel blaster receiver. He identified the receiver depicted in several the photographs taken by Brevet Sergeant White as the receiver he examined.
Mr Sanders’ evidence established that the receiver was a device to fire projectiles by means of compressed air, if assembled and in working order, whether or not it was temporarily or permanently unusable. Such a device falls within the definition of a firearm for the purposes of the Firearms Act. Mr Sanders identified the receiver as the item depicted in several the photographs taken by Brevet Sergeant White.
Counsel for the defence did not take issue with the evidence that the gel blaster found in the defendant’s unit is a Category A firearm.
Also, in relation to Count 1, the agreed evidence establishes that the defendant did not hold any class of firearms licence on 19 September 2021.
The element of possession which the prosecution is required to prove in relation to Count 1 is in dispute. I shall return to this issue in due course.
In relation to Count 2, breaching a firearms prohibition order, there is no real dispute about the element of the offence requiring the prosecution to prove that the defendant was subject to a firearms prohibitions order at the time of the alleged offence.
The document signed by the Registrar of Firearms tendered as Exhibit P9 certifies that the defendant was issued with a prohibition order pursuant to s 10B of the Firearms Act 1977 on 12 April 2016. The certificate states that the defendant is not a fit and proper person to possess a firearm and that it is in the public interest prohibited from possessing and using a firearm. The order prohibits the defendant from, amongst other things, acquiring, possessing, or using a firearm, firearm part or ammunition.
Pursuant s 39 under transitional provision in Schedule I to the Firearms Act 2015 the prohibition order issued under s 10B of the repealed Firearms Act 1977 and in force immediately before the commencement of the transitional arrangements, applies as if it was such an order under the Firearms Act 2015.
Pursuant to s 74 of the Firearms Act in proceedings for an offence under that Act the matters certified are to be accepted in absence of proof to the contrary, as proof of the matter certified.
Counsel for the defence did not take issue with the tender of the certificate or its contents.
Exhibit P9 also includes signed certificate service deposing that the firearms prohibition order was served on the defendant on 3 May 2016 at a location at Port Lincoln. Counsel for the defence did not take issue with the tender of that document.
The prosecution allegation in relation to Count 2 is that the order was breached by the defendant having a firearm, namely a gel blaster, in his possession.
The firearm which it is alleged the defendant has in his possession in breach of the order is the same firearm, the gel blaster receiver, which is the subject of Count 1.
For reasons elaborated upon above the device which is said to be a firearm for the purpose of Count 2 is a gel blaster firearm. There is no need to further consider that issue.
However as observed in relation to Count 1, the possession of that firearm by the defendant is disputed.
Accordingly, the only element in contest for each of the offences is possession.
Was the Defendant in Possession of the Gel Blaster Firearm Located in his Unit?
The prosecution relies upon the presumption created under s 6(2)(d) of the Firearms Act to establish possession.
I have observed above that the presumption applies if the prosecution can establish beyond reasonable doubt that the defendant occupied or had the care, control or management of the premises where the alleged firearm was found.
I am satisfied that the defendant did occupy the premises where the alleged firearm was found. The evidence in support of that conclusion is;
·there was a current tenancy agreement at the time of the alleged offence in the defendant’s name for the premises, which were owned by the South Australian Housing Authority, (Affidavit of Julie Cottrell and tenancy agreement annexed to the affidavit),
·the defendant was located alone, sleeping at the premises at the time of the alleged offence, (Evidence of Detective Flavel)
·the defendant made admissions in his record of interview that he occupied the premises, (Record of Interview Exhibit P4).
The defendant’s possession of the gel blaster firearm at the time of the offence is therefore proven subject to the exclusion of the presumption by proof to the contrary by the defendant on the balance of probabilities.
It is important to observe what it is precisely that the defendant is required to prove to rebut the presumption and bring himself within the scope of the exclusion under s 6(3) of the Firearms Act. The defendant is required to prove that;
·he did not know, and
·could not reasonably be expected to have known,
·the item was in the premises.
The defendant is not required to prove how the gel blaster firearm came to be in his premises, who brought the firearm into the premises or their purpose or motives for so doing.
Of course, such evidence would be relevant to rebut the presumption. However, I reiterate that it is not something the defendant is required to prove to avoid the presumption under s 6(2)(d) of the Firearms Act.
The prosecution has asked me to conclude that on all the evidence, the only plausible inference to be drawn, the inescapable conclusion, is that the defendant was in possession of the firearm.
The Defendant’s Version
The defendant did not give evidence at trial. I have previously noted that he was not required to give evidence and that I am not to draw any adverse inference against him for having exercised his right to silence.
The defendant participated in a record of interview in which he gave a version of events, which if accepted provides evidence to the contrary to the presumption that he was in possession of the firearm found in his premises.
The defendant’s interview is not evidence in court under oath. He was not cross-examined by prosecution counsel at trial. I can assess the weight I give to the defendant’s version at the interview taking those factors into account.
I can also consider the defendant’s demeanour at the interview, as well as his responses to questions, in assessing the credibility and reliability of the version he gave the police. I can assess whether he did his best to be helpful and to tell the truth and whether his account was otherwise reliable.
I note here that the defendant was in a very agitated state at the interview and showed an apparent inability to regulate his emotions. On a number of occasions, he interrupted the detective with repeated assertions of innocence. His demeanour and behaviour contributed to what was an unsatisfactory interview. The detective was not able to properly question and explore the issues raised by the defendant’s explanation. It is not possible to say whether this was a deliberate ploy on the part of the defendant and I do not speculate about that.
In assessing the defendant’s version to determine whether I accept the defendant’s defence that he did not know and could not reasonably be expected to have known the firearm was in his premises, I will be required to consider;
·the plausibility of his account,
·whether his account is consistent with or to the extent it is consistent with the surrounding relevant circumstances established by the evidence.
The Defendant’s Record of Interview
A synopsis of the defendant’s version of events leading up to the finding of the firearm in his premises is detailed above. I intend to rely on the full version of the defendant’s record of interview in arriving at my conclusions. However, the following significant features can be distilled;
1. He denies taking the gel blaster inside his premises.
2. The gel blaster in his premises was not his, he did not see it and he does not know what it looks like.
3. He saw something in the boot of his car after it had been returned by his niece and contacted his parole officer Kerry to inform her.
4. He told Kerry that the thing in his boot looked like a firearm, but it was not a firearm.
5. He put the item from his boot in the bushes next to his place.
6. His [home detention] bracelet was cut off and he took off on the run.
7. He returned to his house and his hand was hurting.
8. He had taken three Lyrica tablets and went to sleep.
9. He woke up with the police there.
10. His house is wide open and he has no lock on the back door.
11. Other people break into his house all the time.
12. He did not see a gun in his house.
13. He rang Kerry about 12 o’clock midday on Friday when he threw it in the bushes.
Is the defendant’s version consistent with the surrounding facts?
¾ The object in the boot that looked like a gun.
There is no objective evidence independent of the defendant’s account that there was an object in his boot that looked like a firearm.
On the defence case, the account given by the defendant at his interview is supported by the report he made to his parole officer Kerry Eguchi before his arrest about the firearm-like object in the boot.
The fact of the report to the parole officer was confirmed by the evidence of Kerry Eguchi, who received the call from the defendant on 17 September 2021. Her evidence confirms not only that the defendant called, but also that he told her that the item resembled a firearm and was broken. In her evidence she also said that she believed that the defendant had told her that he had thrown the object in the bushes at his premises.
The prosecution submitted that the defendant’s version was fabricated to deflect his responsibility. It further submitted that the fact that the defendant is subject to a firearms prohibition order, meant that he had even more reason to come up with an alternative explanation for the firearm being in his possession.
In considering the prosecution submission, it is relevant to note that the defendant contacted the parole officer before the police attendance on 19 September 2021, when the police first detected the alleged offences. The police who attended and located the gel blaster were unaware that the defendant had contacted his parole officer about a gel blaster in the boot of his car.
It would be unusual to say the least, that a person would contact the authorities and inform them that he had a firearm, knowing he was not permitted to do so, in circumstances where the authorities had no knowledge that he had a firearm. It might be thought that contacting the authorities before the offence was suspected or detected might in fact not be in his interests.
I note that it was not suggested by the prosecution that he contacted the authorities to provide a pretext for his admitted breach of home detention.
On balance I accept that the defendant discovered the gel blaster firearm in the boot of a car generally in the circumstances he contemporaneously reported to his parole officer.
¾ One or two gel blasters
On all the evidence including the defendant’s version, I am satisfied that the plastic object that looked like a firearm which the defendant admitted he handled and said he threw in the bushes, was the same as the gel blaster parts found in his unit.
The object matches the description he gave Kerry Eguchi, including that it was broken. The defendant’s DNA profile matched the DNA from an unknown contributor of the DNA detected on the gel blaster found in the unit. In all the circumstances I find that the DNA was deposited by direct, that is primary, contact by the defendant.
¾ Access by others to the defendant’s unit
When the police arrived the door to the defendant’s unit was locked. It is clear there was no forced access to the unit before the police arrived and who then forced access with a battering ram. The prosecution asks the Court to conclude therefore that third parties could not have accessed the defendant’s unit leaving behind the gel blaster firearm.
However, the evidence about the security and access to the defendant’s unit was not conclusive.
There is evidence from the police that access was gained through a ground floor door to the foyer area and stairwell, despite there being a keypad lock at the entrance. Detective Flavel and other officers entered through that door without difficulty, as did the crime scene examiner Brevet Sergeant White. It appears Senior Constable Miller entered the same area in the early hours of the morning unimpeded.
The crime scene examiner did not make detailed observations of the door to the unit or its locking mechanism. He was able to say that it did not appear that there was a deadlock on the door.
Other evidence showed that there was a broken key jammed in the outside locking mechanism of the door. The evidence also shows that when Senior Constable Miller attended earlier on 19 September 2021, the door to the unit was closed but unlocked. The defendant was not at home and she let herself in through the unlocked but closed door. She left leaving the door in the same way, closed but unlocked.
The defendant on his version says that his unit is wide open, there is no lock on the door and third parties can and do, enter his unit in his absence. Certainly, that was correct in the case of Senior Constable Miller.
On the defendant’s version, he returned to the unit sometime that day, let himself in and immediately went to sleep. When the police arrived, the door was locked.
The objective evidence cannot preclude a scenario whereby the defendant was absent from his unit when Senior Constable Miller attended and returned entering through the closed but unlocked door and locking the door behind him. The police then arriving to find the premises locked and having to force entry.
The circumstances are not inconsistent with third party attending the premises after Senior Constable Miller’s attendance and before the defendant returned. Under this scenario it is possible that a person attending had the opportunity to leave items at the unit including possibly a gel blaster firearm.
There is further evidence to support the defendant’s version that third parties have access to his unit. The photographs forming Exhibit P2 and the evidence of the crime scene examiner indicate the presence of women’s clothing and footwear in the loungeroom, including near to and possibly on the gel blaster receiver and parts. There are other indications that a woman was present or has used the premises, including what appears to be a bottle of nail polish and items of pink clothing and accessories.
I conclude that the objective evidence is consistent with the defendant’s version that a third party or parties had previously accessed the defendant’s unit in his absence.
I conclude therefore, that access was available to the defendant’s unit in his absence by third parties in the earlier part of the day leading up to the police attendance and the defendant’s arrest.
In this context I note that on the prosecution case, based on the observations of Senior Constable Miller, the gel blaster firearm was not at the premises in the early hours of 19 September 2021.
Accordingly, I conclude that it is likely the gel blaster firearm was deposited in the defendants living room sometime after Officer Miller attended and before Detective Flavel and others attended.
¾Did the defendant see the gel blaster receiver and parts when he returned to the unit
The defendant in his version denies seeing that gel blaster in his unit.
The prosecution submits in effect that the defendant must have seen the gel blaster receiver and firearm parts if, on his version, he returned to the unit after another or others left the items in the unit. In support of that submission the prosecution points out that the items are on the loungeroom floor a very short distance from the sliding door to his bedroom. The prosecution submits that the items were in plain sight and the defendant could not have failed to see them when, on his version, he returned home.
The submission overlooks some important evidence.
First, (but not foremost) the police did not observe the gel blaster receiver and parts when they first attended. In fact, it was only after the defendant was taken from the premises and the police commenced a detailed search that the gel blaster receiver and parts were found on the loungeroom floor. The prosecution submits that the evidence discloses that for safety reasons, the priority of the police when they entered was to identify occupants. While that is correct, it beggars’ belief that they would not also be conscious of and on the lookout for the obvious safety risk posed by firearms, when a purpose of their attendance was to conduct a search for suspected firearms. That evidence suggests the firearm and firearm parts were not ‘in plain sight’.
Second, the defendant told the police in his interview that he was in pain and had taken three Lyrica, a strong pain relief drug, and went to sleep. This is consistent with the police observations when they attended and could not rouse the defendant until after they noisily gained forced entry to the unit and entered his bedroom.
In that state it is reasonable to think that the defendant may not have taken great notice and observed the items on the floor, which was messy and littered with a substantial number of other items. The chaotic state of the room is clearly shown in the photographs.
Third, there is no evidence that the defendant entered his bedroom through the sliding door leading from the loungeroom.
The evidence of the crime scene examiner, the floor plan of the unit Exhibit P3 and to some extent the photographs establish that there was a second door to the bedroom leading from kitchen area.
It is possible that the defendant when, on his version he returned to the unit and went to his bed and fell asleep, entered the bedroom through the door leading from the kitchen area and not the sliding door from the loungeroom where the firearm receiver and parts were located.
The evidence, to some extent supports a conclusion that it is likely the defendant entered the bedroom from the kitchen and not the loungeroom.
Detective Flavel told the court that the sliding door was closed and he entered the bedroom only after opening the door. Photographs 14 and 15 of Exhibit P2 clearly show that there were items of clothing and other personal effects on the loungeroom floor in the bedroom doorway. Those items were undoubtedly against the door itself when Detective Flavel opened the door. He also told the court that he had to step on to and over the bed to gain access to the bedroom.
In all those circumstances I think it quite unlikely that the defendant, knowing the layout of the unit, entered the bedroom through the loungeroom and not the kitchen. If so, he is therefore even less likely, on his version, to have seen the gel blaster parts ‘in plain sight’ on the loungeroom floor.
Conclusions
I am not prepared to dismiss the defendant’s report to the authorities as a fabrication and an excuse concocted in advance for his possession of the firearm.
On balance I consider that the report made by the defendant to the authorities of the existence of the gel blaster firearm provides support for his version about his observations of and physically handling of the firearm.
On the evidence, the first connection between the defendant and that gel blaster firearm was on 17 September 2021 when he contacted his parole officer. On the prosecution case when Senior Constable Miller attended the defendant’s unit at about 1:25 a.m. on 19 September 2021, she did not see a gel blaster in the loungeroom. That evidence adds some support to the defendant’s version that he threw the gel blaster in the bushes on 17 September 2021.
I have already concluded that the gel blaster reported by the defendant on 17 September 2021 is the same firearm located by police on 19 September 2021.
The gel blaster therefore was deposited in the defendant’s unit sometime between 1:25 a.m. on 19 September 2021 and when the police arrived to search the premises at about 10:30 p.m. the same day.
The gel firearm was likely to have been deposited in the defendant’s unit by himself or by an unknown third party or parties.
On a cursory view it seems unlikely that a third party or parties would have recovered the gel blaster firearm from the bushes outside the unit and taken them into the defendant’s unit.
However, so too does the proposition that the defendant was responsible given the circumstances. He was on parole and under intensive supervision when he contacted the authorities alerting them to his possible connection to a firearm. He could not have known how the authorities would respond to the report. The defendant would have taken a great risk if he had subsequently placed the firearm in his unit in the circumstances notwithstanding his report.
Having regard to the consistencies between the defendant’s version and the objective evidence I am more inclined to accept that an unknown third party or parties were responsible for leaving the firearm in the defendant’s unit without his knowledge while he was absent.
I am also inclined to accept given the layout and chaotic state his unit, his physical condition and his use of medication, the defendant could not reasonably be expected to have known that the firearm was in his premises when he returned and fell asleep.
Accordingly, I am persuaded on the balance of probabilities that the defendant did not know and could not be reasonably expected to know that the firearm was in his premises on 19 September 2021.
The prosecution has therefore not established that the defendant was in possession of the firearm for the purposes of Count 1 and Count 2.
I therefore find the defendant not guilty on both counts.
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