R v Colenso - [2016] SASCFC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLENSO
[2016] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
8 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS
Appeal against conviction and sentence.
The appellant was found guilty by a jury of aggravated possession of a firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA).
Early in the morning on 14 December 2014, a Senior Constable came across an Audi parked in a dark area of a road. The Senior Constable knew that area of the road was commonly used to take illicit substances, perform lewd acts or commit acts of self-harm. He pulled in behind the car, turning his headlights to high beam and activating his emergency lights to alert the occupants of the vehicle to his presence. The Senior Constable testified that at that time his intent was to check the welfare of the occupants.
When the Senior Constable exited his vehicle, he was immediately approached by the appellant, Mr Colenso. Mr Colenso had been in the driver’s seat of the car. When asked, the appellant handed over his driver’s licence to the Senior Constable. After returning to his car to check the appellant’s licence, the Senior Constable spoke to Mr Alawazan who was seated in the passenger seat. Mr Alawazan was hunched over a bum bag as if he was trying to hide it. The Senior Constable described Mr Alawazan's demeanour as nervous and defensive.
These circumstances enlivened the Senior Constable's suspicion and he decided to search the vehicle pursuant to s 52(9) of the Controlled Substances Act 1984 (SA), and called for other police to assist. A sawn-off shotgun was found under the driver’s seat. Eight shotgun shells were found in a jacket in the back of the car. That jacket was Mr Colenso’s. Mr Colenso and Mr Alawazan had trace particles on their hands which identified that they had handled a firearm. As the driver of the vehicle, Mr Colenso was deemed to be in possession of the firearm. Other drug paraphernalia was also found.
At trial a jury found Mr Colenso guilty of aggravated possession of a firearm without a licence. The learned sentencing Judge sentenced him to two and a half years imprisonment with a non-parole period of 15 months.
The appellant appeals his conviction and sentence. The appellant argues that the Senior Constable’s search which found the shotgun was not lawful. He argues that the trial Judge should not have admitted the firearm’s discovery into evidence. The appellant also submits that he is not a serious firearm offender because the relevant provision does not extend to offenders who are convicted of a firearms offence by virtue of their complicity in the offending.
Held…

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 Colenso

Details

AGLC: R v Colenso [2016] SASCFC 128
Case: [2016] SASCFC 128
Decision Date: 8 December 2016

CaseChat Overview and Summary

The case of *R v Colenso* concerned appeals against conviction and sentence. The appeals arose from an incident where police stopped a vehicle driven by Mr Colenso.

The central legal issue before the court was whether the police officer's actions in stopping the vehicle and subsequently searching it, leading to the discovery of an offensive weapon, were lawful. This involved an examination of the officer's grounds for stopping the vehicle, the legality of demanding the driver's licence, and the subsequent search.

The court considered the officer's testimony that he stopped the vehicle to conduct a "welfare check" based on his experience of the location and time of night, and his curiosity about the occupants' activities. The court affirmed that a police officer, like any citizen, is entitled to make observations of persons in public places. Crucially, the court found that the officer was empowered by section 96 of the *Motor Vehicles Act 1959* (SA) to demand the production of Mr Colenso's driver's licence without needing to hold any suspicion. The court dismissed the appeals against conviction and sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would therefore dismiss the appeals against conviction and sentence. I elaborate on my reasons below. The Evidence SC McGregor testified that on 14 December 2014 at 2.30 am he came across Mr Alwazan’s Audi parked in a dark area on the side of Coach Road, Rosslyn Park. It was SC McGregor’s policing experience that the occupants of cars on that road, at that time of night, frequently used illicit substances, performed lewd acts or committed acts of self-harm. As he drove past the Audi, SC McGregor saw that there was a male driver and a couple of other passengers in the car. He executed a U-turn and pulled up behind the Audi activating his emergency lights and placing his front head lights on high beam to alert the occupants to his presence. SC McGregor testified that he wanted to speak to the occupants of the car to perform a ‘welfare check’ and to ascertain more generally what they were doing. He testified that he was curious about what the occupants might be doing but, at that time, he had not formed an intention to search the vehicle. The first reason given related, no doubt, to his experience of the frequency of persons self-harming in that area. As to the second reason, there can be no objection to a police officer making observations of persons in public places in the same way as any citizen can and without recourse to any special police power. As SC McGregor got out of the police vehicle Mr Colenso approached him quickly and told him that he had pulled the car over because it was overheating. When SC McGregor asked to see Mr Colenso’s driver’s licence he readily handed it over. SC McGregor moved back to the police car and conducted licence checks. I pause here to observe that it was implicit in Mr Colenso’s acquiescence in handing over the licence that SC McGregor could keep it for a reasonable time to verify the validity of his identity and the licence. SC McGregor ascertained that Mr Colenso had a minor criminal history and that his South Australian driver’s licence was current. In any event, SC McGregor was empowered to demand production of Mr Colenso’s driver’s licence without holding any suspicion. Section 96 of the Motor Vehicles Act 1959 (SA) (MVA) provides:96—Duty to produce licence or permit(1)The driver of a motor vehicle, if requested by a police officer to produce his or her licence or learner’s permit, must produce the licence or learner’s permit either—(a) forthwith to the police officer who made the request; or(b) within 48 hours after the making of the request, at a police station conveniently located for the driver, specified by the police officer at the time of making the request.Maximum penalty: $1 250.(2)A document purporting to be signed by the Commissioner of Police and purporting to certify that a licence or learner’s permit has not been produced as required by this section is, in the absence of proof to the contrary, proof of the matter purporting to be so certified.(3)A person must not falsely represent to a police officer that he or she is the person named in a licence or learner’s permit.Maximum penalty: $750.(4)In this section—driver includes—(a) a person sitting next to the holder of a learner’s permit in a vehicle being driven by the holder of the permit;(b) a person being carried as a passenger on, or in a sidecar attached to, a motor bike being driven by the holder of a learner’s permit;police officer includes an authorised officer.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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