R v Dastagir
[2014] SADC 91
•30 May 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DASTAGIR
Criminal Trial by Judge Alone
[2014] SADC 91
Reasons for the Verdict of Her Honour Judge McIntyre
30 May 2014
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Accused charged with seven offences under the Firearms Act 1977. Held: Guilty all counts.
Firearms Act 1977 , referred to.
He Kaw The v R (1985) 157 CLR 523; R v GNN (2000) 78 SASR 293; R v Fuller; R v Zazzaro [2012] SASCFC 101, considered.
R v DASTAGIR
[2014] SADC 91Preliminary
Hameed Ullah Dastagir was charged on Information dated 2 April 2013 with firearms offences. The alleged offences took place on 28 April 2012 and 12 July 2012 at Para Vista.
The accused elected for trial by judge alone. The trial proceeded before me on 9 and 10 April 2014. The charges and particulars are as follows:
First Count
Statement of Offence
Possessing a Firearm without a Licence. (Section 11(1) of the Firearms Act, 1977).
Particulars of Offence
Hameed Ullah Dastagir on the 28th day of April 2012 at Para Vista, were in possession of a class H firearm, namely a silver revolver pistol, without a licence.
Second Count
Statement of Offence
Possessing an Unregistered Firearm. (Section 23(1) of the Firearms Act, 1977).
Particulars of Offence
Hameed Ullah Dastagir on the 28th day of April 2012 at Para Vista, were in possession of an unregistered class H firearm, namely a silver revolver pistol.
Third Count
Statement of Offence
Failure to Secure Ammunition. (Regulations 41(1) and 61 of the firearms Regulations, 2008).
Particulars of Offence
Hameed Ullah Dastagir on the 28th day of April 2012 at Para Vista, failed to secure ammunition in a locked container separately from firearms.
Fourth Count
Statement of Offence
Possessing a Firearm without a Licence. (Section 11(1) of the Firearms Act, 1977)
Particulars of Offence
Hameed Ullah Dastagir on the 12th day of July 2012 at Para Vista was in possession of a class H firearm, namely a silver single shot pistol, without a licence.
Fifth Count
Statement of Offence
Possessing a Firearm without Identifying Characters. (Section 24A(7)(b) of the Firearms Act, 1977).
Particulars of Offence
Hameed Ullah Dastagir on the 12th day of July 2012 at Para Vista, was in possession of a class H firearm, namely a silver single shot pistol that did not have identifying characters as required under the Firearms Act, 1977.
Sixth Count
Statement of Offence
Possessing an Unregistered Firearm. (Section 23(1) of the Firearms Act, 1977).
Particulars of Offence
Hameed Ullah Dastagir on the 12th day of July 2012 at Para Vista, was in possession of an unregistered class H firearm, namely a silver single shot pistol.
Seventh Count
Statement of Offence
Failure to Secure Ammunition. (Regulations 41(1) and 61 of the Firearms Regulations, 2008).
Particulars of Offence
Hameed Ullah Dastagir on the 12th day of July 2012 at Para Vista, failed to secure ammunition in a locked container separately from firearms.
Prosecution Case
The charges arise out of two police searches of the accused’s home address at Jan Street Para Vista. This was the accused’s family home. His parents purchased it in about 2002 or 2003 and the family lived in that house thereafter.
The first search occurred on the evening of 28 April 2012. At that time the accused was living at the house with his mother, his younger sister and his brother. Police attended at the front gate of the premises at about 8.36pm. It is an agreed fact that 40 seconds elapsed from the time of the police announcing their presence over the intercom until the front gate was opened by the police. It is further agreed that 120 seconds elapsed between the police entering through the gate and the front door being opened to allow them entry to the house.
When the police entered the house the accused, his brother Atiq Dastagir and his mother were present in the house. Police found Maurizio Mitolo in the back garden behind a shed. The police subsequently discovered a silver revolver close to the location in which Mitolo had been standing. This is the firearm that is the subject of counts 1 and 2 on the Information. Police also located three boxes of ammunition in the ground concealed by bricks behind the shed. This ammunition is the subject of count 3.
The police attended the accused’s home address on a second occasion on 12 July 2012 and conducted another search. By that time the accused’s brother was in gaol. The police located a single shot pistol in the roof cavity, which could be accessed by way of a hole in the eaves in the carport. This pistol is the subject of counts 4, 5 and 6. Police further located a single round of live ammunition next to that firearm. This is the subject of count 7.
It is the prosecution case that the accused was in possession of the firearms and the ammunition and that his motive for possession was self protection. The accused was, at the time of both searches, on home detention bail for a serious offence against the person in that it was alleged that he had stabbed Giovanni Focarelli at Ink Central on Hindley Street on 22 May 2010. The accused was subsequently convicted of aggravated unlawfully causing harm with intent to cause harm. The fact of the accused’s arrest, the charges against him and his subsequent bail hearings were the subject of considerable publicity. His name was not suppressed. He was released on home detention bail on 26 August 2010. The prosecution contends that the accused was concerned for his safety and that of his family given that publicity and the surrounding circumstances and that this provides a motive for the commission of the firearms offences.
The Proceedings
The trial was relatively short taking only two days. The prosecution case consisted of a number of police witnesses and two expert witnesses. The police officers who gave evidence about the two searches were Detective Brevet Sergeant Fitzpatrick, Senior Constables Van Dijk and Bailetti and Brevet Sergeant Salter. Detective Lienert gave evidence about the police investigation into the stabbing of Giovanni Focarelli, the charges laid against the accused in relation to that matter and the attendant publicity. Brevet Sergeant Sanders is a police ballistics expert who gave evidence about his examination of the two firearms and the ammunition seized by the police. Dr Abarno is a forensic scientist who gave evidence about the testing of DNA obtained from a swab of the silver revolver seized by police on 28 April 2012. Finally a number of documents were tendered and a number of facts were agreed as part of the prosecution case.
Much of the prosecution evidence was not in dispute. Specifically, it was not in dispute that the police search on both occasions was a valid and lawful search, nor was it disputed that the police found the items in the various locations asserted by the police. There was no dispute that the accused was an occupier of the premises. Likewise there was no dispute as to chain of evidence matters.
The only witness for the defence was the accused.
Legal considerations and general directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
1.An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
2. The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence.
3.The accused does not carry any onus of proof, except in relation to one issue. Subject to that, to the extent that the accused might put forward a defence, he does not have to prove it.
4.There are seven separate charges. They are tried together as a matter of convenience. Each is a separate offence. I must therefore consider each separately and return separate verdicts on each.
5.In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
6. I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
7.I further remind myself of the usual direction given to juries concerning expert witnesses in relation to the evidence of Brevet Sergeant Sanders and Dr Abarno.
8. The accused elected to give evidence in this court. I remind myself of the following matters:
·He was not bound to give evidence.
·He has gone into the witness box and he has taken the oath like any other witness.
·He has exposed himself to the test of cross-examination.
·He could have remained silent leaving the prosecution to discharge its burden of proving the case subject to the qualification upon which the accused bears an onus of proof.
·I should assess his evidence and the weight to be attached to it in the manner in which I assess the evidence of all of the other witnesses.
·I further note that by entering the witness box the accused does not assume any onus of proof. The onus remains with the prosecution subject to one qualification that I will address shortly.
Elements of the Offences
Possessing a Firearm without a Licence
In order to prove the offence of possessing a firearm without a licence (counts 1 and 4) the prosecution must prove each of the following elements beyond reasonable doubt:
1.That the accused had the firearm in his possession.
2.That the firearm was a class H firearm.
3.That the accused is not the holder of a firearms licence authorising such possession.
It was not in dispute that the accused did not hold a firearms licence on either 28 April 2012 or 12 July 2012. Certificates issued pursuant to section 36 of the Firearms Act 1977 were tendered by consent as exhibit P5 to confirm that this was the case. I therefore find this element proven beyond reasonable doubt.
The silver revolver the subject of count 1 and the single shot pistol the subject of count 4 were examined by Brevet Sergeant Sanders. He classified both the silver revolver and the single shot pistol as class H firearms as defined in section 5 of the Firearms Act 1977. Specifically both are handguns with a barrel length less than 400mm in length, designed for firing from the hand and reasonably capable of being carried concealed about the person. I accept Brevet Sergeant Sanders’ evidence on that point. It is consistent with my own observations of the firearms which were tendered as exhibits P10 and P14 respectively. I find this element of the offence proven beyond reasonable doubt in relation to both count 1 and count 4.
The contentious element of counts 1 and 4 is the first element relating to the accused’s possession of the firearm in each count. In proving that element, the prosecution has the benefit of the presumption contained in section 5(14) of the Firearms Act 1977. That section provides that, for the purposes of the Act the accused has possession of a firearm if, inter alia, he occupies, or has care, control or management of, premises where the firearm is found. In this case it was not in dispute that the accused occupied the premises.
This presumption may be displaced under section 5(15) of the Firearms Act 1977 if the accused establishes that he did not know and could not reasonably be expected to have known, that the firearm was on the premises or if he establishes that the firearm was in the lawful possession of another or he believed on reasonable grounds that the firearm was in the lawful possession of another. These matters do not have to be established beyond reasonable doubt. Rather, the onus is on the balance of probabilities. This is the qualification to the general principle that the onus always lies on the prosecution.
The accused does not contend that he believed that either of the firearms were in the lawful possession of another. Indeed Section 36 certificates have been tendered by consent indicating that none of the people present at the accused’s home address during the searches were the holder of a current firearms licence. In relation to the firearm that is the subject of count 4, the issue is whether the accused has displaced the presumption by establishing, that it is more likely than not that he did not know that the firearms were on the premises. In relation to count 1, the accused says that he knew that the firearm was on the premises but in different, and less serious, circumstances to those asserted by the prosecution.
Possessing an Unregistered Firearm
In order to prove the offence of possessing an unregistered firearm (counts 2 and 6), the prosecution must prove the following matters beyond reasonable doubt:
1.That the accused was in possession of the firearm
2.That the firearm was required to be registered.
3.That the firearm was not registered.
It was not in dispute, and I so find, that both the silver revolver and the single shot pistol were required to be registered and that they were not registered. The single shot pistol was not capable of registration because it did not have a serial number. A certificate issued pursuant to section 36 of the Firearms Act 1977 was tendered by consent as exhibit P4 which confirmed that the silver revolver (serial number 117175) was not registered on 28 April 2012. I therefore find elements 2 and 3 proven beyond reasonable doubt in relation to counts 2 and 6. The remaining issue in each count is the first element relating to possession and in proving that element the prosecution has the benefit of the presumption to which I have referred.
Failure to Secure Ammunition
In order to prove the offence of failing to secure ammunition (counts 3 and 7), the prosecution must prove:
1.That the accused possessed the ammunition.
2.That the accused failed to store the ammunition in a locked container separately from firearms.
The ammunition that is the subject of count 3 is the three boxes of ammunition located on 28 April 2012 concealed under bricks at the rear of the accused’s shed. I accept the evidence of the police officers as to the location and condition of this ammunition and I am satisfied beyond reasonable doubt that the second element of count 3 has been proven. The contentious issue is whether the accused possessed the ammunition. There is no presumption to assist the prosecution in proving that element.
The ammunition that is the subject of count 7 is the single live round located in the roof space of the accused’s house on 12 July 2012. I accept the evidence of the police officers as to the location and condition of this ammunition and I am satisfied beyond reasonable doubt that the second element of count 7 has been proven. The contentious issue is whether the accused possessed the single round of ammunition. Again there is no presumption to assist the prosecution in proving that element.
Possessing a Firearm without Identifying Characters
In order to prove count 5 that the accused possessed a firearm without identifying characters, the prosecution must prove the following matters beyond reasonable doubt:
1.That the accused possessed the firearm.
2.That the firearm was required to be registered.
3.That the firearm was required to have identifying characters.
4.That the firearm did not have identifying characters.
I am satisfied that the single shot pistol located by police on 12 July 2012 was required to be registered under Part 4 of the Firearms Act. I am further satisfied that it was required to have identifying characters under section 24A. I accept the evidence of Brevet Sergeant Sanders, which is consistent with my own examination of exhibit P14, that it did not have such characters. The issue is whether the prosecution have proven that the accused possessed the single shot pistol. In proving this the prosecution has the benefit of the presumption to which I have referred.
Possession
At common law a person has possession of whatever is to their knowledge physically in their custody or under their physical control. Knowledge of the presence of the item in question is not enough. There must also be physical control and an intention to exercise control.[1]
[1] He Kaw The v. R (1985) 157 CLR 523; R v GNN (2000) 78 SASR 293
The Firearms Act modifies the common law relating to possession of firearms as I have indicated above. Section 5 relevantly provides as follows:
(14)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.
(15)However, subsection (14)(c) does not apply if the person establishes that—
(a)he or she did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises, vehicle, vessel or aircraft; or
(b)the firearm was in the lawful possession of another or he or she believed on reasonable grounds that the firearm was in the lawful possession of another.
I am satisfied beyond reasonable doubt that the accused was an occupier of the premises at 5 Jan Street Para Vista on 28 April 2012 and 12 July 2012. It was his family home. He was on both occasions subject to a bail agreement with home detention conditions requiring him to reside and remain at that address. Prima facie the accused had possession of the silver revolver on 28 April 2012 and the single shot pistol on 12 July 2012 as contemplated in section 5(14)(c). It is therefore necessary for the accused to establish one of the matters set out in section 5(15) on the balance of probabilities if he is to displace the presumption of possession in section 5(14).[2]
[2] R v Fuller; R v Zazzaro [2012] SASCFC 101
The statutory presumption does not apply to the possession of the ammunition and accordingly the common law applies to those charges. Accordingly it is for the prosecution to prove beyond reasonable doubt that the accused knowingly had physical custody and control of the ammunition.
Silver Revolver
The silver revolver was located by police during the first search on 28 April 2012. Mitolo was seen by Senior Constable Van Dijk to be standing between the rear fence and the shed. I infer from Van Dijk’s evidence that Mitolo was effectively hiding behind the shed. Van Dijk took Mitolo back to the house. A subsequent search of the area where Mitolo was located yielded the silver revolver in the location depicted in Exhibit P8 photograph 5. Van Dijk said that it was a cool evening and the grass was dewy and damp. He observed that the revolver did not have the same appearance which indicated to him that it had been recently placed there. I accept his evidence. I find that the revolver was placed there by Mitolo shortly after the police arrived at the premises.
Senior Constable Bailetti was the exhibits officer on the occasion of the first search. He took possession of the revolver. He cleared the weapon. There were three rounds of ammunition which he also seized. There are photographs of this in Exhibit P8; namely photographs 6, 7 and 8.
The accused gave evidence that the first time he saw the silver revolver was at his home at 5 Jan Street Para Vista on 28 April 2012. He said that Maurizio Mitolo arrived at his home at about 5.00 pm to see his brother Atiq Dastagir. The accused let Mitolo into the house and showed him to his brother Atiq’s room. He then left. Mitolo and his brother were in his brother’s room for about an hour. The accused then went to see if they wanted coffee or tea. When he walked into the room his brother Atiq and Mitolo were standing. Mitolo was holding what looked like a silver gun. The accused didn’t know if it was real or fake. He did not ask. He says that he pushed it away and said:
…listen man, what are you doing with that in here? I am on home detention. Get that out of here I don’t want that around me.
Then the accused walked out of the room. He said he was concerned about being around guns, drugs or anything because he did not want to go back to gaol.[3] He said he then went to sit with his mother in the lounge room. They were there for one and a half to two hours when there was a bang at the front door and the police arrived. He said the police arrested Mitolo and left.
[3] Transcript p78-79
He was not shown a gun by the police nor did they show him any boxes of bullets. He said he had not seen the ammunition before he was shown photographs in court. He was shown exhibit P8 photographs 12, 14, 15 and 16. He denied having seen any of the items depicted in the photographs previously. He said he has never seen the ammunition or the ammunition boxes in real life. He said that the item in photograph 5 looked like the gun Mitolo had been holding in Atiq’s bedroom.
In cross-examination the accused said he did not hear any voices before going into his brother’s room. When he saw Mitolo, he was just holding the gun and “being a hero” with it; flashing it around. He couldn’t remember if Mitolo was pointing it at any particular direction. He said both the men were standing. They were pretty close to each other as the room was small. He did not ask Mitolo why he had the gun and did not ask him to leave. He said he did ask his brother to tell Mitolo to leave because he didn’t want that stuff around him and his mother had to pay $10,000 if he breached his bail.
He was then asked a series of questions about his interaction with Mitolo as follows:[4]
[4] Transcript p90
QWhy didn’t you challenge Mr Mitolo about it.
AI didn’t want to say nothing. I didn’t want to be rude to him.
QYou say you pushed the gun away, what was it that made you push the gun away.
ABecause he was holding it, sort of, like flashing it around. I said ‘Put that shit away’.
QYou said that in English to Mr Mitolo.
AYep.
QDid he say anything in response.
ANo.
QDid he offer to show you the gun.
ANo.
QDid you ask him whether it was loaded.
ANo.
QDid you ask him where he had got it from.
ANo.
QDid you ask him what the nature of his business was with your brother in your brother’s bedroom.
ANo.
QDo you know what the nature of their business was.
ANo.
QHe certainly wasn’t pointing the gun at you at the time you decided to push it away.
ANo.
QI suggest that this description you have given of pushing the gun away is simply an explanation that you are coming up with to explain that your DNA profile was found on a swab taken off a gun.
ASorry?
QYou’re saying that you pushed the gun away to explain the fact that your DNA was found on the gun, aren’t you.
AYes, pretty much.
QI am suggesting to you that it is not the truth, you didn’t push the gun away like that.
AYes, that’s true. How do you know it is not the truth?
QWhereabouts did you touch the gun when you pushed it away.
AHe had it in his hand so I grabbed his hand with it and I said ‘Listen man’, I said, pushed it and said ‘Please put it away’.
QDid he try to resist you in any way when you grabbed his hand.
ANo, he just smiled.
QHe didn’t say ‘Careful, this things loaded’.
AHow do I know.
QI am asking you.
AI didn’t know.
QI am not asking you whether you knew it was loaded, did he say anything to you when you grabbed his hand and pushed it away saying ‘Careful, this thing is loaded’, anything like that.
ANo.
QWhat direction did you push it.
ADownwards.
QWas it in the direction of Mr Mitolo’s body.
ANo.
QDid he struggle with you at all when you grabbed his hand.
ANo.
QHe didn’t say anything to you at all, this is on what you’re telling us, anything to you at all that would explain why it was that he had the gun in his hand at that point in time.
ANo.
Dr Abarno gave evidence was that there was a mixed DNA profile of three people on the revolver. The DNA profile was compared to the reference profiles of four known people; a woman who was excluded as a contributor to that DNA and the accused, his brother Atiq and Mitolo none of whom were excluded .
Dr Abarno gave evidence that he considered an hypothesis that the accused was a contributor to the DNA found on the revolver together with two unknown males. He calculated a likelihood ratio of 2 billion to one in favour of that hypothesis. In other words this DNA profile is 2 billion times more likely to be obtained if the accused and two unknown unrelated people were the sources of the DNA rather than three unknown unrelated people.[5]
[5] Transcript p65
Dr Abarno calculated likelihood ratios for further hypotheses compared to the hypothesis that three unknown and unrelated people were the source of the DNA as follows:
·The likelihood ratio for the hypothesis that Atiq Dastagir was a contributor to the DNA found on the revolver together with two unknown males was 210 to one in favour of that proposition.
·The likelihood ratio for the hypothesis that Mitolo was a contributor to the DNA found on the revolver together with two unknown males was 270,000 to one in favour.
·A mixed profile of the accused, his brother and Mitolo was excluded as a possibility.
·The likelihood ratio in favour of the accused, his brother and one unknown person was 96 million to one; and
·The likelihood ratio in favour of the accused, Mitolo and one unknown person was greater than 1 million to one in favour.
In cross examination Dr Abarno said that it is not possible to say which hypothesis is correct. His work is just a comparison of those hypotheses. He described the ways in which transfer of DNA to an object might occur. He agreed that it is not possible to tell where the DNA tested was located on the firearm.
As Dr Abarno said in his evidence, the determination of which hypothesis is the correct one requires other information. The DNA evidence excludes the possibility that Mitolo and the two Dastagir brothers each contributed to it. In view of my previous finding that Mitolo took the revolver outside and left it behind the shed it seems likely that his DNA was on the weapon. There was no testing of the hypothesis that Atiq Dastagir and Mitolo contributed to the DNA profile with one unknown person. However, the results are consistent with the proposition that the accused contributed to the DNA profile either with two unknown individuals or with Mitolo and an unknown individual.
Even if I accept that the revolver does contain the accused’s DNA it is only relevant if I find that his DNA came to be on the firearm in incriminating circumstances. The accused’s account, if I accept it, of pushing Mitolo’s hand and the firearm away may well explain the presence of the accused’s DNA on the firearm. This would be consistent with Dr Abarno’s evidence. To that extent the DNA evidence is somewhat neutral.
Single Shot revolver
The accused gave evidence that he did not know of the presence of the single shot revolver. The revolver was hidden in the roof cavity of the house.
This revolver was located on the second police search by Brevet Sergeant Salter. He saw a hole in the gyprock under the eaves. He thought it looked like an area where a heater flue would have been. He described it as having a metal shroud around it. He used a ladder and then reached into the hole. He felt something hard which he pulled towards the edge of the hole exposing a small brown handle consistent with a firearm. He pushed it back and then later removed some roof tiles to gain access to the area. Photographs were taken of the location of the hole and items within it following the removal of the roof tiles and tendered as exhibit P11. Other photographs were taken showing the hole from the carport area and tendered as exhibit P12. The items in the hole were the single shot pistol and a single round of ammunition. Brevet Sergeant Salter said that he moved the gun to approximately the location in which he found it but agreed that he moved his hand in a circular motion to try and find what might be in the eaves. He agreed that the scuff mark visible in the debris shown in the photographs may have been caused by this motion.
It is an agreed fact that:
On 28 April 2012 Senior Constable Shane Ellen performed a search of the roof space at 3 Jan Avenue Para Vista. He did not locate any firearms, ammunition or any item relevant to the police investigations. The prosecution cannot establish with any certainty that Senior Constable Ellen Searched the part of the roof where the single shot firearm was located on 12 July 2012.[6]
[6] Exhibit P18, #12
There was no evidence that police searched the carport on the occasion of the first search and no evidence that the hole was inspected. It is therefore possible that the single shot revolver was in that location on 28 April 2012.
The significance of this is that Atiq Dastagir was imprisoned on 11 May 2012 for firearms offences. The defence case is that the single shot revolver may well have been in that location prior to the second search and prior to Atiq Dastagir’s imprisonment. On the defence case the fact of Atiq Dastagir’s conviction for firearms offences provides support for the accused’s version of events. It is an agreed fact that no ammunition suitable for use in the single shot pistol was located at the Para Vista address but that .22 calibre short rounds of ammunition compatible with the pistol were located at a different premises associated with Mitolo.
Ammunition
The first quantity of ammunition was located during the first search on 28 April 2012 buried behind the garden shed close to the location in which the silver revolver and Mitolo were located. Senior Constable Bailetti, the exhibits officer, gave evidence that he seized three boxes of ammunition located under some bricks behind the shed. These boxes contained respectively 50 cartridges of American Eagle Brand 9mm pistol ammunition, 50 cartridges of Blazer pistol cartridges and a further 50 9 mm American Eagle brand pistol cartridges.
Brevet Sergeant Sanders is a police ballistics expert and gave evidence of having examined the ammunition seized by Senior Constable Bailetti. He said that the three rounds located in the revolver were three live rounds of 32mm auto calibre ammunition with the letters CCI stamped on them. The two boxes of American Eagle 9 mm pistol ammunition were not suitable for use in the silver revolver. They were live, centre fire rounds. He described the box of Blazer band ammunition as 32 auto calibre ammunition which was suitable for use in the silver revolver. They were also live, centre fire rounds.
Senior Constable Bailetti described the boxes containing the ammunition as being damp and weathered but not completely falling apart. His evidence is consistent with the appearance of the boxes in photographs 10, 14, 15 and 16. I accept his evidence. Contrasting this evidence with the evidence of SC Van Dijk about the condition of the revolver and taking into account the appearance of the boxes and the hiding place next to the shed as depicted in exhibit P8, I infer that the boxes had been secreted under the bricks some time prior to Mitolo leaving the revolver nearby.
Defence counsel in submissions referred to the “amazing coincidence” that Mitolo dropped the firearm adjacent to the location where the ammunition was buried. I do not consider that it is such a surprising coincidence given that the plan and photographs suggest that the shed provided the only cover for Mitolo if he wished to evade detection by the police. It does not necessarily establish that Mitolo knew about the ammunition hidden under the bricks as is contended.
The other ammunition was located on the second search in the same location as the single shot revolver; namely the eaves of the house accessed by the hole in the carport. Again it is possible that the bullet was in that location at the time of the earlier police search on 28 April 2012. Brevet Sergeant Salter said that he found a single round of ammunition near the single shot revolver. This is visible in the photographs in exhibit P1.
Brevet Sergeant Sanders, the ballistics expert, said that in his opinion it was a single CCI brand round in the centre fire calibre 32 auto. It was not suitable for use in the single shot pistol but it could have been used in the silver revolver. He said that round of ammunition was the same brand and calibre as the three rounds found in the silver revolver. As I have indicated above, none of the ammunition located at the accused’s home address was suitable for use in the single-shot pistol but ammunition which was suitable was located at premises associated with Mitolo.
The accused says that he did not know about the presence of any of the ammunition on his property. In proving possession, the prosecution do not have the benefit of the presumption that I have referred to. The prosecution contend that if I accept that he had possession of the silver revolver then the inevitable inference is that the accused had possession of the ammunition located on 28 April 2012 because one of the boxes was suitable for use in that weapon. Likewise, the single round located in the eaves was the same as the three rounds found in the chamber of the revolver and it is said that the inevitable inference is that the accused had possession of that round if I find that he had possession of the silver revolver.
The Accused
My assessment of the accused was that he was not a particularly articulate or sophisticated man. However making all due allowance for this he did not impress me as a witness of candour. Much of his evidence seemed illogical or inherently implausible as can be seen from a number of examples.
The accused has been convicted of aggravated unlawfully causing serious harm with intent to cause harm. His position that he is innocent is not a matter which impacts his credibility but what is surprising in the context of that conviction is his evidence that he was not at all concerned to discover any details about the allegations against him nor was he concerned about his safety.
The accused said that he had never heard of a gang called something like the New Boys that had a reputation for violence. He had never heard of Giovanni Focarelli, his father Vincenzo Focarelli or the Focarelli family. He did not know that Vincenzo Focarelli had been reported as an intended victim of a bombing that had failed. He said he did not watch the television news, listen to the radio or read newspapers. He said that he was nowhere near the INK Central Tattoo parlour at the time Giovanni Focarelli was stabbed. He said that when he was arrested some months after the stabbing this came completely out of the blue. He was aware that at the time of his arrest there was a lot of publicity surrounding the fact of his arrest and he was aware that he had been named in the paper. He said he was not interested to find out who Giovanni Focarelli was, whether he had any association with organised crime and was not interested in the allegations that the police made that he had stabbed a man he had never met. He said he was not worried at all or concerned about what the Focarelli family might think about the fact that the police believed that he had stabbed Giovanni Focarelli. This seems an extraordinary lack of curiosity about the circumstances surrounding serious charges.
Second there is his evidence that he was not concerned for his safety or that of his family following his arrest. The prosecution contends that his fear of possible retribution provides a motive for him to possess firearms and ammunition. The accused denies this saying:
AAll I know is that when I got released on bail the police rang my house and they were, keep saying stuff like ‘Oh please call the police station, please call the police station, we’ve put your life in risk’ or something I don’t know, they were just saying all this stuff and they were keep calling that night and I didn’t – I didn’t call the police or nothing and I just went to sleep. I said ‘They’ve gone crazy’.[7]
[7] Transcript p102
When pressed on this topic, specifically that he believed he was at risk from either a member of the Focarelli family or people associated with them he replied:
ANot really because – because I didn’t care, they’re not stupid, they would know who’s done it and that’s it.[8]
[8] Transcript p103
I do not accept the submission that the accused’s lack of acknowledgement of his guilt of the offence with which he has been convicted goes to his state of mind; specifically it was submitted that he did not do it therefore he had nothing to fear. The point is that he was charged with the offence and the fact of his being charged with the offence was widely publicised. The police were concerned about his safety and contacted him about that. The accused’s version that he was not in the least concerned about possible retribution does not ring true.
Likewise his evidence concerning his actions once he says he saw Mitolo and the silver revolver was implausible in the light of his evidence that he appreciated that the presence of the gun could potentially have adverse implications for his continued release on home detention bail. On the accused’s version Mitolo and his brother remained in his brother’s bedroom for a further two and a half hours after this interchange prior to the police arrival. The submission was made that his brother was significantly older than the accused and that he was not the power broker in the house. However on his own version he did raise the issue with his brother and he even remonstrated with Mitolo in his brother’s presence. Further it is not plain why the accused did not speak to his mother about the gun or Mitolo leaving. Given his comments about his mother’s guarantee of his bail one would have thought that this topic would have been raised with her rather than keeping her in ignorance whilst he sat with her in the lounge room.
The accused’s evidence on the question of the police arrival at the time of the first search is likewise implausible. On the prosecution case the delay between the use of the intercom and police attending at the front door was the opportunity for Mitolo to leave the house with the revolver. The accused denied that there was an intercom in the house. He said that the first he became aware of the presence of police was when they entered his house following banging on the front door.
Detective Fitzpatrick gave evidence which was not challenged that when the police arrived at Jan Street, it was thought that the front gate was padlocked shut. He therefore announced over an intercom that police were present and further stated that they intended to undertake a search of the premises. It was further not disputed that Atiq Dastagir responded by opening the front door and calling out that he would get the keys to the gate. It is unclear how this could have occurred if there was no intercom. Detective Fitzpatrick also said that there was a large dog barking in the premises. The police then found that the front gate was in fact open and went to the front door. I accept the police evidence that there was an intercom. I further note that the agreed fact about the time frames involved a reference to the intercom and was reached after counsel viewed the police video of these events. I therefore reject the accused’s evidence that there was no intercom.
The accused says he knows nothing about any of the events leading to the knock on the front door. Given the size of the house and the proximity of the lounge room to the front door I do not accept that he would not have heard the intercom, the dog or his brother Atiq opening the front door and calling out to Police if he had been sitting in the lounge room with his mother as he claimed. I consider it more likely as the prosecution contend that he was using this time to get Mitolo to depart with the revolver.
I also found the accused’s evidence about the hiding spot in the carport unconvincing. He said that whilst he had seen the hole he had never investigated it. This seems unlikely given the length of time he had lived there. It was clear that it was necessary to use a ladder to access the hole. The accused was at pains to say that the only ladder on the premises was broken and had been for some time. This begs the question of what was used to place the items that were undoubtedly placed there but more importantly his evidence about the ladder lacked cogency and credibility.
Likewise the accused’s evidence concerning the presence of the taser located in his bedroom in a blue expanding folder was improbable. He said the taser had always been in the folder. He agreed that the folder contained documents that were his and that it was located in his wardrobe. Whilst his evidence was not entirely clear he appeared to suggest that the taser was his brother’s because a long time ago his room was his brother’s room. This evidence was not particularly clear or satisfactory. He said that he never spoke to his brother about the taser or asked him to keep it in his room. He was asked:[9]
QIf you’re aware that there had always been a taser inside that folder and the folder was kept in your room, why did you let the taser be kept in there.
AI don’t know. It was there. I didn’t because – yeah.
QYou know a taser is an offensive weapon.
ANo, I didn’t really think so, no.
QYou know that the taser can be used to deliver, or you knew at the time a taser can be used to deliver a powerful electric shock to someone.
AI knew it was used for something like that because – I didn’t really know because I don’t know what it was used for.
[9] Transcript p97, line 38 – p98, line 12
His evidence that he did not know what the taser was was not convincing and further his asserted unconcern about the taser is at odds with his concern about the implications of the revolver in terms of his bail agreement. I reject this evidence. The presence of the taser also suggests an interest in self protection and is supportive of the prosecution case on motive.
Conclusion
Technically the accused’s version of events surrounding the silver revolver, if accepted, means that he has not displaced the presumption in favour of possession because he knew of the presence of the revolver in the house and therefore had possession of it for the purpose of counts 1 and 2 albeit under far less serious circumstances. In those circumstances the prosecution has proven beyond reasonable doubt that he had possession of the silver revolver for the purposes of counts 1 and 2. Accordingly I find the accused guilty of those two offences.
The question is whether I accept the accused’s version of events as the basis for that finding rather than the prosecution case. In effect the accused’s evidence was that Mitolo brought the revolver to the house on the afternoon of the search. I reject that suggestion. I am satisfied that the revolver had a connection with the Jan Street premises given the presence of the ammunition buried behind the shed and the single round in the eaves. I am satisfied that Mitolo did not bury the ammunition behind the shed at the same time as he deposited the revolver.
I have considered the defence submission that the accused’s version of events is supported by the fact of his brother’s conviction for firearms offences demonstrating Atiq Dastagir’s interest in firearms. This was not however the accused’s evidence. He did not suggest that his brother had any involvement with the revolver beyond seeing it in Mitolo’s hands in his bedroom. The clear tenor of his evidence was that Mitolo brought the revolver to the Jan Street address that day. Further, even if I were to accept that Atiq Dastagir had some involvement with the revolver this does not of itself absolve the accused. He could be in joint possession of the revolver. He must satisfy me on the balance of probabilities that the first time he saw the revolver was on the occasion he described. I am not so satisfied. I found his evidence on that topic unconvincing and improbable and I reject it.
I am satisfied that the prosecution has established that the firearm was in the possession of the accused. I am further satisfied that he possessed it for the purpose of protection and that he gave it to Mitolo to dispose of when the police arrived at his house.
The presumption in favour of the prosecution does not apply in relation to the ammunition that is the subject of count three. The ammunition was buried behind the shed in the accused’s garden. One box of the ammunition was suitable for use in the revolver. I am satisfied that the accused was in possession of the revolver and that he possessed the ammunition for use in that revolver. I reject his evidence that he did not know of the presence of the ammunition. I therefore find him guilty of count 3 on the Information.
The presumption in favour of the prosecution likewise does not apply in relation to the ammunition that is the subject of count seven. The single round was located in the eaves of the house. It was the same as the rounds found in the revolver. I am satisfied that the accused was in possession of the revolver. I am further satisfied that he possessed the single round for use in that revolver. I therefore find him guilty of count 7 on the Information.
I have considered the submission that the fact there was no ammunition suitable for use in the single shot pistol makes it an unsatisfactory method of self protection. I have also considered the submissions concerning the fact that suitable ammunition was located at premises associated with Mitolo. Notwithstanding those submissions, I do not accept the accused’s evidence that he did not know about the single shot pistol on the balance of probabilities. I therefore find that the prosecution has proven that he was in possession of that firearm on 12 July 2012 beyond reasonable doubt for the purposes of counts four, five and six.
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