R v Fuller & Zazzaro - [2012] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FULLER; R v ZAZZARO
[2012] SASCFC 101
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
22 August 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - PROCEDURE - WITNESSES - POWERS OF JUDGE - LEAVE TO REOPEN CASE AND CALL WITNESSES - PROSECUTION EVIDENCE IN REBUTTAL - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeals against conviction – appellants convicted by jury verdict of two counts of possessing a firearm without a licence contrary to section 11(1) of the Firearms Act 1977 (SA) – count one related to a home-made pen gun and count two related to an imitation revolver – whether the trial Judge erred in directing the jury with respect to section 15(5) of the Firearms Act 1977 (SA) – whether the trial Judge misdirected the jury as to the state of knowledge required for the pen gun – whether the trial Judge failed to properly put the defence case to the jury – whether the trial Judge intervened excessively during the trial – whether the trial Judge erred in permitting the prosecution to re-open its case – whether the verdicts in relation to count one were unsafe and unsatisfactory.
Held: appeals dismissed – the trial Judge was correct in his charge to the jury regarding the operation of s 5(15) of the Firearms Act 1977 (SA) – the trial Judge misdirected the jury as to the state of knowledge required for the pen gun but the misdirection was an error that was to the advantage of the appellants – the trial Judge properly put the defence case to the jury – the trial Judge’s questioning was neither excessively lengthy or unfair and falls far short of constituting excessive interference or involvement which could amount to a departure from the due and ordinary process of a fair trial – the trial Judge did not err in permitting to prosecution to re-open its case to illicit evidence in rebuttal – there was no miscarriage of justice – the verdicts were not unsafe and unsatisfactory.
Firearms Act 1977 (SA) s 11(1), s 5(14), s 5(15), s 5(15), s 36A; Criminal Law Consolidation 1935 (SA) s 15C(2), s 15(5); Firearms (Firearms Prohibition Orders) Amendment Act 2008 (SA), referred to.
R v Carr-Briant [1943] 1 KB 607; He Kaw Teh v R (1985) 157 CLR 523; R v Mohammadi (2011) 112 SASR 17; Killick v The Queen (1981) 147 CLR 565; R v Chin (1985) 157 CLR 671, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"establish"

R v FULLER; R v ZAZZARO
[2012] SASCFC 101
Court of Criminal Appeal: Nyland, Anderson and David JJ

NYLAND J: I agree that both appeals should be dismissed for the reasons expressed by David J. I should add that in particular I agree with David J’s analysis of ss 5(14), 5(15) and 36A of the Firearms Act 1977 (SA) and to the procedure which applies upon a prosecution for possession of a firearm without a licence, pursuant to s 11(1) of the Act.
ANDERSON J: In my opinion both appeals should be dismissed. I agree with the reasons of David J.
DAVID J: These two appeals against conviction were heard together and are both the subject of these reasons.
Christopher Martin Fuller and Amy Lee Zazzaro, the defendants and appellants, were jointly charged with two counts of possessing a firearm without a licence on 21 May 2010 contrary to s 11(1) of the Firearms Act 1977 (SA) (“the Act”). Both were convicted of each of the charges following a trial in the District Court.
Both appellants and a third person were on the premises at the time of the police search which led to the discovery of the firearms. At trial it was agreed that at the relevant date, the appellant Fuller resided at the premises on which the firearms were located. The appellant Zazzaro denied she resided at the premises. Both appellants denied having any knowledge of the firearms.
The issues on appeal arise primarily from the Judge’s summing up.
Trial
I set out the Information in full:
First Count
Statement of Offence
Possessing a Firearm Without a Licence. (Section 11(1) of the Firearms Act, 1977).
Particulars of Offence
Christopher Martin Fuller and Amy Lee Zazzaro on the 21st Day of May 2010 at Salisbury Plains, had in their possession a Class H firearm, namely a home-made pen gun, whilst not holding a firearms licence authorising possession of that firearm.
Second Count
Statement of Offence
Possessing a Firearm Without a Licence (Ibid)
Particulars of Offence
Christopher Martin Fuller and Amy Lee Zazzaro on the 21st day of May 2010 at Salisbury Plains, had in their possession a Class H firearm, namely a Bruni BBM imitation revolver, whilst not holding a firearms licence authorising possession of that firearm.
The prosecution case
On 21 May 2010 police attended at number 6 Bennett Street, Salisbury Plains (“the Bennett Street premises”) to search the property. At the rear of the property was a large shed which had been converted into residential premises. Both appellants as well as a man named Mark Boyce were present when police attended. The appellants were in a relationship together at the time.
Police conducted a search of the shed at the rear of the premises which consisted of a lounge area, a kitchen area, a bathroom area and a sleeping area on an upper level. Police located two loaded class H firearms on the floor of the raised bedroom area, namely a home-made pen gun (Count 1) and a Bruni BBM imitation revolver (Count 2). It was agreed that neither appellant had ever held a licence authorising them to possess firearms of any classification.
Ballistics analysis revealed that the Bruni BBN imitation revolver was designed to fire blank, rather than live ammunition. The revolver was loaded with six unfired blank cartridges that were suitable for use in that type of firearm. It was not functioning at the time it was seized by police.
The pen gun was an improvised single shot firearm, meaning that it had been made with parts not necessarily designed for firearms. It was in working order. Police also discovered a quantity of ammunition in a tin on the premises. Fingerprint analysis was conducted on the two firearms and the tin containing the ammunition but no fingerprints were located. There was insufficient DNA obtained from swabs taken from both firearms for any analysis to be conducted.
Police located male and female clothing on racks in an area under the upper bedroom level. Documents addressed to the appellant Zazzaro at the Bennett Street premises were found by police on a table in the living room. These consisted of three expiation reminder issues issued to the appellant Zazzaro and a letter from St Augustine’s Parish school.
It was agreed that the appellants jointly enrolled Fuller’s son at St Augustine’s Parish School on 27 October 2009 for the 2010 school year. On the enrolment form both Mr Fuller and Ms Zazzaro were recorded as having 6 Bennett Street, Salisbury Plains as their residential and postal address.
The appellant Zazzaro provided the address of 6 Bennett Street, Salisbury Plains as her address upon arrest. It was agreed that as at Friday 21 May 2010, the appellant Fuller was residing at the Bennett Street premises.
Mr Buckoke owned the land that comprised numbers 6, 8, and 10 Bennett Street, Salisbury Plains. Mr Buckoke gave evidence that he entered into a verbal agreement on or around 10 February 2010 to lease the Bennett Street premises to the appellant Fuller who was to use it as a car yard for repairing and enhancing motor vehicles. Mr Buckoke owned and operated a motor trimming business which was adjacent to the Bennett Street premises. He gave evidence that in 2010 he would see the appellant Zazzaro at the Bennett Street Premises two to three times per week and that, on occasions, she would come over to his premises to pay the rent for Mr Fuller.
Mr Buckoke also gave evidence that in 2010 he would receive mail addressed to the Bennett Street premises in his mail box every two to three days and that it was not uncommon for some of those letters to be jointly addressed to the appellants.
The defence cases
Fuller
The appellant Fuller denied having any knowledge of the imitation revolver or the pen gun. He gave evidence that the appellant Zazzaro would stay at the Bennett Street premises “a few nights a week” but denied that she was living with him.
The appellant Fuller gave evidence that he would sleep on a fold-out sofa bed in the lounge area of the shed (depicted as “lounge 2” in exhibit P2). It was this sofa bed, Mr Fuller said, where the appellant Zazzaro would also sleep on the occasions when she stayed the night at the Bennett Street premises. He gave evidence that neither he nor the appellant Zazzaro had ever slept on the mattress situated in the upper loft area where the firearms and ammunition were discovered and said that that area was a storage area.
Zazzaro
The appellant Zazzaro denied having any knowledge of the imitation revolver or the pen gun and said that she had never been into the loft area in which the firearms were found.
The appellant Zazzaro gave evidence that as at May 2010, her home address was a unit situated at 22 Balmoral Road, Dernancourt. She said that 22 Balmoral Road, Dernancourt consisted of a two storey block of about six units that had been built in approximately 2006. On her evidence, she would spend at least three nights a week there. The appellant Zazzaro would sleep with the appellant Fuller on the fold-out sofa bed in the lounge on those occasions when she stayed overnight at the Bennett Street premises.
The appellant explained that she used the Bennett Street premises as her postal address and it was for this reason that the application for enrolment at St Augustine’s Parish School she completed on behalf of Fuller’s son bore that address.
In relation to photograph 14 of Exhibit P1 which depicted three expiation reminder notices addressed to the appellant Zazzaro at the Bennett Street premises, she gave evidence that the police had originally attended her address at Dernancourt to make enquires regarding the vehicle the subject of the notices and it was during the course of these enquiries that she provided the address for the Bennett Street premises.
In cross-examination, the appellant Zazzaro said that the expiation notices had been put into her name by somebody else who had provided the Bennett Street premises as her address.
The appellant Zazzaro denied telling police upon arrest that her address was the Bennett Street premises, rather on her evidence she told the police “you know my address, you’re there.” The appellant denied that the response she gave to police regarding her address upon arrest implied that her address was the Bennett Street premises, rather her evidence was that she was “being a smart arse” and was not going to be helpful to police.
The appellant Zazzaro admitted that after being charged with the present offences, she was bailed to the Bennett Street premises but said that this address was entered onto the bail application by the police officer at the station. She did not challenge this address at the time as she feared that if she were bailed to her Dernancourt address, her bail agreement may contain a no contact clause in relation to the appellant Fuller.
Re-opening of prosecution case
Following the cases for the appellants, the prosecution applied to re-open the case on the basis of the appellant Zazzaro’s evidence that she lived in a block of six units at 22 Balmoral Road, Dernancourt. The prosecution sought to call a Mr John Moyle, an employee of the City of Tea Tree Gully to adduce evidence that from about 2001, 22 Balmoral Road, Dernancourt has been a vacant block. The prosecution also sought to call Senior Constable Hocking, the investigating officer, who had driven past and taken photographs of 22 Balmoral Road, Dernancourt and the surrounding properties.
Against the objection of the appellant Zazzaro’s counsel, the trial Judge granted the prosecution leave to re-open its case.
Mr Moyle gave evidence that as at January 2002, there was no infrastructure on 22 Balmoral Road, Dernancourt and, further, that the block remained vacant to this day.
Re-opening of case for appellant Zazzaro
Defence counsel for the appellant Zazzaro applied to re-open the defence case to enable the fresh material regarding the Dernancourt address to be put to his client. The trial Judge granted this application.
The appellant Zazzaro indicated that she had been residing in one of the townhouses situated at 20 Balmoral Road, Dernancourt as depicted in exhibit P9.
The appellant Zazzaro admitted that her original evidence was that she lived at number 22 Balmoral Road, Dernancourt. She denied having changed her story about her address because she had been caught out on a lie.
Appeal
There are a number of grounds of appeal which were common to both appellants. I deal with each in turn.
The learned trial Judge erred in directing the jury with respect to s 5(15) of the Act (Fuller Ground 1, Zazzaro Ground 8)
The appellants complain that the trial Judge erred in his charge to the jury regarding the operation of s 5(15) of the Act.
At trial the prosecution relied on the presumption provided by s 5(14)(c) of the Act to prove that each of the appellants were in possession of the firearms. By operation of s 5(14)(c) of the Act, a person is deemed to be in possession of a firearm if the person occupies or has care, control or management of premises where the firearm is found. On the prosecution case, both appellants jointly had and exercised access to both firearms and occupied, or had care, control or management of the Bennett Street premises, where both those firearms were found.
I set out s 5(14) of the Act below:
(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.
Section 5(15)(a) of the Act provides the basis upon which an accused can rebut the presumption of possession by establishing that they did not know, and could not reasonably be expected to have known that the firearm was on or in the premises:
(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.
(Emphasis added)
Accordingly, if the prosecution proved beyond reasonable doubt that the appellants occupied the premises in which the firearms were located, they are presumed to be in possession of those firearms pursuant to s 5(14)(c) of the Act.
The onus then shifted to the appellants to establish that they did not know, and could not reasonably be expected to have known, that the firearms were on the premises. It is the standard to which the appellants were required establish that they did not know, or could not reasonably be expected to have known of the presence of the firearms which is central to this ground of appeal.
The trial Judge directed the jury that in order to rebut the presumption of possession created by s 5(14)(c) each appellant had to establish on the balance of probabilities that he or she did not know and could not reasonably be expected to know that the firearm was on the premises.
I set out the trial Judge’s direction on this topic below:
There is no doubt that the two firearms in this case were found in the premises at 6 Bennett Street, Salisbury Plain so the issue in this third way is whether you are satisfied beyond reasonable doubt that either or both accused occupied those premises or had care, control or management of them.
If you are so satisfied beyond reasonable doubt then the element of possession of the firearms will have been proved beyond reasonable doubt, unless either of the accused establishes that he or she did not know and could not reasonably be expected to have known, that the firearm was on or in the premises.
The accused do not have to establish this beyond reasonable doubt. They need only establish it to your satisfaction on the balance of probabilities. That is a lower onus of proof than the criminal onus of beyond reasonable doubt. To be satisfied of something on the balance of probabilities, you must be satisfied that it is more probable than not that the matter to which I have just referred was the situation.
If you are satisfied that it is more probable than not that either of the accused did not know, and could not reasonably be expected to have known, that the firearm you are considering was on or in the premises, then the Crown would not have proved beyond reasonable doubt that either accused had possession of that firearm because he or she occupied or had care, control or management of the premises at 6 Bennett Street, Salisbury Plain.
The appellants complain that the word “establish” as used in s 5(15) of the Act did not require them to prove on the balance of probabilities (as the trial Judge directed the jury) that they did not know, and could not reasonably be expected to have known, that the firearm or firearms were on or in the premises. Rather, on the appellants’ argument, they simply had to raise, in a reasonable fashion, the defence that they did not know or could not reasonably be expected to have known that the firearm or firearms were on the premises, after which it was up to the prosecution to rebut that defence beyond reasonable doubt.
In support of their argument, the appellants refer to s 15C(2) of the Criminal Law Consolidation 1935 (SA) which provides:
(2)In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant’s conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that—
(a)     the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and
(b)     the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and
(c)     the defendant’s mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.
(Emphasis added)
On the appellants’ argument, the inclusion of the phrase “on the balance of probabilities” in s 15C(2) clearly indicates that the term “establish,” of itself, does not mean to establish on the balance of probabilities.
The appellants also refer to the defence of self-defence as provided in s 15(5) of the Criminal Law Consolidation Act 1935 which provides:
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.

The appellants argue that s 15(5) indicates that the mere raising of a defence is analogous to establishing. I disagree. Had the Act intended the mere raising of absence of knowledge as sufficient to establish a defence to the element of possession, the Act would have indicated this by using similar terms to s 15(5) of the Criminal Law Consolidation Act 1935.
The Firearms (Firearms Prohibition Orders) Amendment Act 2008 inserted s 5(14) and s 5(15) of the Act. The Second Reading Speech, Firearms (Firearms Prohibition Orders) Amendment Bill 1 May 2008 at 3288 provides:
Matters involving specific firearms related offences, not involving violence, tend to be heard summarily, and as a consequence the penalties applicable tend to be low, and in many cases involving career criminals, offences under the Firearms Act are withdrawn or not proceeded with in deference to other more serious charges.
This has been compounded with difficulties of prosecuting a person for possession of offences with regards to non-registered and unrecorded firearms, wherein purported ignorance of the existence of the firearm, such as in a car in which a criminal is travelling in, can severely limit, if not negate, a successful prosecution.
It is in consideration of this that the focus should be on the behaviour of persons, rather than on the firearm itself.
On this basis, when inserting s 5(14) and s 5(15) of the Act, it is clear that Parliament was seeking to limit the ability of individuals charged with firearms offences to avoid conviction by merely claiming ignorance of the existence of the firearm. In my view, the amendments to the Act create a system whereby if an accused wishes to rely upon a lack of knowledge of a firearm as a defence to a charge of possession, they should bear the onus of establishing such lack of knowledge on the balance of probabilities.
It would not be sufficient, as the appellants argue, for a defendant to simply raise a defence that he or she did not know, or could not reasonably have been expected to know, that the firearm was on the premises, after which it was up to the prosecution to rebut that defence beyond reasonable doubt. If this were the case, it is arguable that the presumption of possession which s 5(14) gives rise to would become superfluous. Situations such as those contemplated by the Second Reading speech of the Firearms (Firearms Prohibition Orders) Amendment Bill, whereby purported ignorance of the existence of the firearm, such as in a car in which a criminal is travelling in, can severely limit, if not negate, a successful prosecution, would persist.
In R v Carr-Briant[1] the English Court of Criminal Appeal held:[2]
In our judgment, in any case where, by either by statute or at common law, some matter is presumed against an accused person “unless the contrary is proved,” the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.
[1] [1943] 1 KB 607.
[2] [1943] 1 KB 607 at 612.
In relation to the Act, where the prosecution proves beyond reasonable doubt one of the circumstances provided for in s 5(14), an accused is presumed to be in possession of a firearm. Section 5(15) provides a method by which an accused can prove to the contrary the presumption of possession created by operation of s 5(14)(c). The term establish as used in the context of s 5(15) of the Act means more than to simply raise. In order to rebut the presumption of possession provided for by s 5(14)(c), it is necessary for the defendant to prove on the balance of probabilities one of the defences provided by s 5(15) of the Act.
The trial Judge was correct in his charge to the jury with respect to the operation of s 5(15) of the Act and the obligation on the appellants to rebut the presumption of possession provided for by s 5(14) on the balance of probabilities.
I would dismiss this ground of appeal.
Misdirection as to the state of knowledge required for the pen gun (Fuller Ground 3, Zazzaro Ground 1)
Fuller
The appellant Fuller complains that his conviction of Count 1 on the information, in relation to the possession of the pen gun, is unsafe and satisfactory. The appellant refers to his evidence on the topic of the pen gun, where he denied knowing that it was a firearm after being shown a photograph of it (photographs 8 and 9 of P1). On the appellant Fuller’s argument, the principles enunciated in He Kaw Teh v R[3] apply and accordingly, the prosecution were required to prove that the appellant knew that the object was a firearm. The appellant Fuller argues that he was not cross-examined on the topic of his belief about the pen gun, nor was his evidence that he did not know it was a firearm contradicted. Accordingly, the conviction in relation to Count 1 was unsafe and unsatisfactory as the prosecution were required to, and failed to prove that the appellant knew that the object was a firearm.
Zazzaro
[3] (1985) 157 CLR 523 at 572.
The appellant Zazzaro complains that the trial Judge’s directions to the jury at page 26 of his summing up were inadequate. The appellant Zazzaro shares the appellant Fuller’s argument that in relation to Count 1, the prosecution were required to prove that the appellant knew that the pen gun was a firearm. On the appellant Zazzaro’s argument, the presumption of possession created by s 5(14)(c) can be rebutted under s 5(15)(a) if the appellant did not know, and could not reasonably be expected to have known that the firearm was on or in the premises or if the appellant did not know that the object that was the pen gun was a firearm. The appellant argues that the trial Judge’s directions to the jury should have reflected this.
The appellant Zazzaro also complains that the verdict was unsafe and unsatisfactory.
The trial Judge’s summing up on the issue of the pen gun
In his summing up, the trial Judge directed the jury that there were four possible approaches that they may take when considering each of the two counts against each of the two appellants:
I summarise the approaches you may take when considering each of the two counts against each of the two accused. The first is what I have referred to as the traditional way. The other three are what I have referred to as the statutory ways.
1.Whether you are satisfied beyond reasonable doubt that either accused was in possession of either firearm on 21 May 2010 when police came to 6 Bennett Street, Salisbury Plain. If you are so satisfied, your verdict will be guilty of the count you are considering and you need go no further.
2.Whether you are satisfied beyond reasonable doubt that either accused was in possession of either firearm because he or she had custody of either firearm on the day and at the place referred to above. If you are so satisfied your verdict will be guilty, and you need go no further.
3.Whether you are satisfied beyond reasonable doubt that either accused was in possession of either firearm because he or she had and exercised access to either firearm. If you are so satisfied, your verdict will be guilty and you need go no further.
4.Whether you are satisfied beyond reasonable doubt that either accused was in possession of either firearm because he or she occupied, or had care, control or management of the premises at 6 Bennett Street, Salisbury Plain. If you are so satisfied you will then need to consider whether you are satisfied that it is more probable than not that he or she did not know and could not reasonably be expected to have known that the firearm was on or in the premises. If you are not satisfied of that on the balance of probabilities you will then, and only then, find the accused guilty under this fourth way because you will be satisfied beyond reasonable doubt that the accused was in possession of either firearm by virtue of his occupation, care or management of the premises at 6 Bennett Street.
The first of these four was in accordance with the “common law” concept of possession (referred to by the trial Judge as “the traditional way”). The other three ways were what the trial Judge referred to as “the statutory ways.” In referring to the statutory ways, the trial Judge was referring to s 5(14) of the Act which provides a statutory scheme by which a person will be presumed to be in possession of a firearm if one of three particular circumstances are proved by the prosecution beyond reasonable doubt.
After the jury retired to consider its verdicts, counsel for the appellant Zazzaro asked the trial Judge to direct the jury that in order for them to return a guilty verdict in relation to Count 1, they also had to be satisfied that the appellant knew the pen gun was actually a firearm.
The trial Judge informed counsel that he proposed to call the jury back to direct them regarding knowledge of possession in relation to both accused. The prosecutor agreed that the issue required clarification.
The trial Judge provided the following direction when the jury returned:
I should have gone on in respect of this case because both accused said something about the pen gun. There is no issue that it was a pen gun but Mr Fuller told you in evidence that he wouldn’t have even known what that thing was, and Ms Zazzaro said if she had seen it she would have thought it was a flute.
You must be satisfied not only that they have knowledge of the existence of that thing, which we know now is a pen gun, but they must have knowledge that it was a pen gun or at least a firearm.
If you are satisfied that they say, for example Ms Zazzaro knew that that thing was there but she thought it was a flute, then that’s not enough. You need to be satisfied not only that she knew it was there but she knew it was a firearm of some sort. She doesn’t necessarily have to know that it was called a pen gun. I don’t even know whether there is a particular name. Perhaps it’s in the statement of agreed facts. No, ‘pen gun’ was used in the statement of agreed facts. For all we know it’s got some sort of name. But all we know it as is a pen gun.
So both of them have got to know, or either of them, not only that it was there but it was a firearm of some sort.
The respondent complains that the judge erred in providing the above direction as it imposed upon the prosecution an additional obligation to prove beyond reasonable doubt that the appellants knew that the item which was a pen gun, was a firearm.
The jury retired at 12:27pm and returned at 2:28pm with the following question:
Does the fact that Miss Zazzaro does not know what a pen gun actually is make any difference to the charge against her even though she knew the gun was real?
The jury returned to court at 2:31pm where the Judge provided the following direction:
So, as to the pen gun, do you remember I have given you four possible ways. Three of those, the first three, require you to be satisfied beyond reasonable doubt that Ms Zazzaro knew, or first of all she had to know it was there, that she knew not only that it was there but that she was aware or she knew that it was a firearm.
If you think it is a reasonable possibility that she thought it was a flute when she knew it was there, then you would acquit her on the pen gun for three of those four ways I said because where the knowledge applies to each of the first three ways it is not the same in respect of the last, the fourth way, because the Act says, deems her if you like, to be in possession of that firearm if you are satisfied she occupies the house and then if you are satisfied of that, you will only acquit her with respect of the pen gun if you were satisfied she didn’t know it was there. You don’t have to be satisfied that she knew it was there and she knew it was a firearm.
I am not too sure whether that helps. As to the gun, I can’t remember her being asked any questions about the gun other than the fact she said she didn’t know it was there. It will be a matter for you to determine whether you are satisfied when you are looking at knowledge in respect of the first three of the four approaches, if you are satisfied that she knew it was there, you then have to go that extra step to infer that she knew it was a firearm and you can use your own commonsense because you have seen it. There is a photograph of it. You might think it looks like a firearm, it looks like a particular (side issue) and an imitation revolver. For the first three ways she doesn’t have to know it is an imitation revolver, she just has to know it is a firearm of some sort.
When the jury retired a further time at 2:36pm, counsel for the appellant Zazzaro sought a re-direction to the effect that the presumption of possession created by s 5(14)(c) could be rebutted under s 5(15)(a) if the appellant did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises or if the appellant did not know that the object that was the pen gun was a firearm. The trial Judge declined to re-direct the jury on this issue and shortly after, at 2:45pm the jury returned their verdicts. This was some seven minutes after the jury had resumed its deliberations following the trial Judge’s initial re-direction. The appellant contends that the temporal connection between the supplementary direction to the jury and the return of the verdict indicates that importance the jury attached to the trial Judge’s answer to their question.
The essence of the appellant Zazzaro’s argument is that the trial Judge’s final direction gave rise to a situation whereby the jury were required to return a verdict of guilty in relation to Count 1 if they rejected her evidence that she did not know that the pen gun was on the premises but accepted her evidence that had she seen the pen gun, she would have thought it was a flute and not a firearm. On the appellant’s argument, it is unlikely that Parliament intended that the consequences of committing an offence as serious as possessing a firearm without a licence should be visited upon a person who had no intention to do anything wrong and no knowledge that she was doing so. Put simply, a person in possession of an object they think to be a flute should not be liable to be convicted of the offence of possessing a firearm where the item they thought to be a flute was in fact a firearm.
On appeal, the appellant submits that the correct direction to the jury should have concluded in the following terms:
You will only acquit her with respect of the pen gun if you were satisfied she didn’t know it was there, or that she did not know or could not reasonably be expected to have known that it was a firearm.
(Emphasis added)
The respondent submits that in his final direction to the jury, the trial Judge has again placed additional burden on the prosecution to prove beyond reasonable doubt that the appellants knew that the pen gun was a firearm and that this was an error that was to the advantage of the appellants.
I deal firstly with whether s 5(14) and s 5(15) of the Act require that an accused have knowledge that the object the subject of the charge is indeed a firearm. As I have mentioned, s 5(14) of the Act gives rise to a presumption of possession where one of the three circumstances stipulated in the subsection are proven, beyond reasonable doubt, to exist. Of particular relevance to the present appeal, under s 5(14)(c), a person will be presumed to be in possession of a firearm where 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.
Section 5(15)(a) of the Act provides a method by which an accused can rebut the presumption of possession provided for by s 5(14)(c) by establishing that 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.
Further, s 36A of the Act provides a general defence to the charge of possessing firearms without a licence:
36A—General defence
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
The existence of this section prevents a person who can prove that they had no intention to do anything wrong and no knowledge that they were doing so from being convicted of an offence against the Act. This defence would extend to an accused who was deemed to be in possession of a firearm by operation s 5(14) but can prove, for example that they did not know that the object the subject of the charge was in fact a firearm.
In my view, s 5(14) does not require an accused to have knowledge that the object is a firearm in order for them to be presumed to be in possession of it, nor does s 5(15)(a) enable an accused to rebut the presumption of possession created by s 5(14)(c) by establishing that they knew did not know that the object the subject of the charge was in fact a firearm. Section 5(15) of the Act is directed only to the presence of the firearm at the premises and not knowledge that it was in fact a firearm. Both sections are concerned with custody of the firearm and do not require proof of any knowledge, or lack thereof, on behalf of an accused that the object over which they have custody is indeed a firearm.
It follows that the prosecution was not required to prove that either appellant knew that the pen gun was a firearm. Once the elements necessary to prove the offence were established under s 5(14)(c), a prima facie offence contrary to s 11 of the Act was made out. The burden then shifted to each appellant to either rebut the presumption of possession under s 5(15) or to prove a defence pursuant to s 36A of the Act. Aside from counsel in their opening, the issue of s 36A defence was never raised.
Initially, the trial judge correctly directed the jury as to the four possible approaches that they may take when considering each of the two counts against each of the two appellants with the following exception. The trial Judge should have informed the jury of the general defence that exists under s36A of the Act. Namely the judge should have directed the jury it is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. It would be a defence under s 36A, if a defendant could prove that they did not commit the offence intentionally, for example because they thought that the object the subject of the charge was something other than a firearm. Thus, even if the jury were satisfied that the appellants were in possession of the pen gun, they were then required to consider whether a defence under s36A had been made out.
None of the four approaches the jury were entitled to take when considering the counts against the appellants required the prosecution to prove beyond reasonable doubt that the appellants knew that the object was a firearm. Accordingly, the trial Judge erred in directing the jury (both after the jury were first sent out and also in response to the jury question) that they needed to be satisfied both that the appellants knew that the firearm was on the premises and that they knew that the object that was the pen gun was in fact a firearm of some sort. In directing the jury as he did, the trial Judge imposed on the prosecution a further burden in relation to the first three approaches, to prove beyond reasonable doubt that each appellant knew the object was a firearm. This was an error that was to the advantage of the appellants.

The trial Judge’s misdirection does not extend to the fourth method of proving possession, namely that provided for by s 5(14)(c) of the Act. In my view, the trial Judge made it clear that if the jury thought it was a reasonable possibility that the appellant thought the pen gun was a flute they should only acquit her on the that charge for three of those four ways. The trial Judge made it clear that the in respect of the method provided for by s 5(14)(c) (the fourth way) the jury should only acquit if they were satisfied she did not know it was there. Further, and more importantly, the trial Judge made it clear than in order to convict the appellant in relation to the pen gun using the fourth way, they did not have to be satisfied that she knew it was there and that she knew it was a firearm. It was therefore clear that if the appellant did not rebut the presumption of possession as provided for by s 5(15), the jury were entitled to convict the appellant with regard to the pen gun without the need for them to be further satisfied that the appellant knew the pen gun was a firearm.
Despite the trial Judge erring in his directions to the jury regarding the state of knowledge required in relation to the pen gun, the respondent submits that the errors were to the advantage of the appellants and no miscarriage of justice has occurred.
It should also be noted that both appellants gave evidence denying all knowledge of the presence of the pen gun at the Bennett Street premises.
The appellant Fuller gave the following evidence in relation to the topic of the pen gun:[4]
[4] T109.22-33.
Q.Looking at photograph 8, were you aware that this item was on your premises.
A.No. I wouldn’t even know that that item is.
Q.Similarly with, I think it is, the same item in photograph 9.
A.No.
Q.Is it the fact that your evidence is you had no knowledge of that being at 6 Bennett Street at all.
A.None at all.
Q.Had you ever discussed an item such as this being at 6 Bennett Street.
A.No.
The appellant Zazzaro gave the following evidence on the topic of the pen gun:[5]
Q.The pen gun, had you ever seen that before.
A.No.
Q. If you look at it in the photographs, and I will just for a moment get you to move on to photograph No.9, if you had seen that, what would you have thought it was.
A.A flute.
Q. But had you ever seen it at all.
A. No.
[5] T131.38-T132.7.
Even though the judge erred in failing to direct the jury as to the general defence under s36A, there was no evidentiary basis upon which the jury could have found that either appellant did not know that the pen gun was a firearm. It was never argued by either appellant that they knew the pen gun was on the premises, but did not know that the object was a firearm. The evidence from both appellants was clear - they had never seen the pen gun before and were completely unaware of its existence at the Bennett Street Premises. As I have mentioned, aside from counsel in their opening, the issue of s 36A defence was never raised.
If the jury arrived at their guilty verdict in relation to count 1 by one of the first three ways the trial Judge mentioned in his summing up, then they must have been satisfied beyond reasonable doubt both that the appellants had possession of the pen gun and that they knew the items were firearms. This would mean the prosecution had proved beyond reasonable doubt an element that they were not required to, namely that the appellants knew the pen gun was a firearm.
If accepted by the jury, the appellants’ evidence that they had no knowledge of the pen gun would have, pursuant to s 5(15)(a), rebutted the presumption of possession created by operation of s 5(14)(c) and, based upon the trial Judge’s directions, the jury would have been entitled to acquit each appellant of Count 1.
The jury were equally entitled to convict the appellants if they accepted that the appellants were in possession of the pen gun due to the operation of s 5(14)(c), but rejected their evidence that they had no knowledge of the presence of the pen gun at the Bennett Street premises. This is because the appellants would have failed to rebut the presumption of possession by establishing on the balance of probabilities that they did not know of, and could not reasonably be expected to have known of, the presence of the pen gun at the Bennett Street premises in accordance with s 5(15)(a).
There has been no miscarriage of justice. The verdict was not unsafe and unsatisfactory.
I would dismiss this ground of appeal in relation to both appellants.
The trial miscarried due to the failure of the learned trial Judge to properly put the defence case to the jury and there was excessive intervention by the learned trial Judge during the trial (Fuller Ground 2, Zazzaro Ground 7)
Both appellants argue that a combination of excessive intervention by the trial Judge and a failure to properly put the defence case was unfair and amounted to a miscarriage of justice. As far as failing to put the defence case, both relied upon the argument that the trial Judge did not fully explain to the jury the defence submission that there was no forensic evidence presented by the prosecution linking either of the appellants to the guns which were the subject of the charge. Such evidence might include DNA or fingerprint evidence. The appellant Fuller also complains that in his charge to the jury, the trial Judge failed to properly emphasise the defence argument that the sofa bed Fuller slept on at the Bennett Street premises was situated in a different area to where the firearms were located.
In my view, neither of these arguments have substance. It was plain to the jury that the prosecution did not rely upon any form of forensic evidence to prove the charges and the evidence of the appellant Fuller that he slept downstairs was clearly set out by the learned trial Judge.
Both appellants also complain that the trial Judge unfairly intervened during the evidence of both of them. It is clear that the trial Judge asked a number of questions, both during the cross‑examination of prosecution of witnesses and during the evidence of both appellants. I set out by way of footnote those questions that are complained about by both appellants.[6] Generally speaking, the topics upon which both appellants argue that the trial Judge questioned them excessively concerned the sleeping arrangements at the Bennett Street premises and the expiation notices and living arrangements in relation to Ms Zazzaro. I have carefully looked at that cross‑examination and, consistent with the principles set out in R v Mohammadi,[7] such questioning falls far short of an excessive interference or involvement by a judge which could amount to a departure from the due and ordinary process of a fair trial as to result in a miscarriage of justice. The questioning is neither excessively lengthy nor, in my view, unfair.
[6] T115.14-22; T117.11-26; T119.31-T120.17; T120.27-34; T126.8-T129.25; T139.12-29; T140-141; T143.12-33.
[7] (2011) 112 SASR 17.
I would dismiss those grounds of appeal.
The learned trial Judge erred in permitting the prosecution to re-open its case
The appellant Zazzaro gave evidence in chief that her home address was 22 Balmoral Road, Dernancourt, that it was a unit owned by her aunt and that she slept there at least three nights per week.
I set out the appellant Zazzaro’s evidence on this topic:[8]
[8] T123.25-T124.9.
Q. As at May 2010 where was your actual home address.
A. 22 Balmoral Road, Dernancourt.
Q. What sort of premises is that.
A.That’s a unit.
Q. Who owns that unit.
A.My aunty.
Q.Does she own that unit or a number of them.
A.Yes, there are six units in total.
Q.Does she live in that same blocks of units.
A.No.
Q.Did you share that unit with anyone.
A.No.
Q.Were your clothes kept at that unit.
A.Yes, they were.
Q.Did you sleep there more often than not.
A.It really depended but I would say I stayed there at least three nights a week.
Q.Looking at this item, the card that you’ve just been handed, can you explain to the ladies and gentlemen of the jury what that is.
A.This is my Centrelink pension card which has my address on it which is, and has been since 16 July 2008, 22 Balmoral Road, Dernancourt and still is to this day.
During cross-examination it was put to the appellant Zazzaro that 22 Balmoral Road was a vacant block. The appellant denied that assertion.
Prior to trial a declaration of Robert John Moyle, an employee of the City of Tea Tree Gully, dated 23 January 2011 was filed and served on the appellants’ counsel. It declared that 22 Balmoral Road, Dernancourt had been a vacant block since the previous dwelling had been demolished in 2002.
At trial, the prosecutor sought to re-open the prosecution case to illicit evidence in the nature of rebuttal, namely evidence from Mr Moyle that 22 Balmoral Road, Dernancourt had been a vacant block since 2002. Counsel at trial opposed this application.
The trial Judge granted the prosecution permission to re-open its case. The trial Judge also granted defence counsel for the appellant Zazzaro permission to re-open the defence case to enable the fresh material regarding the Dernancourt address to be put to his client.
Mr Moyle gave evidence that there is currently no dwelling on the allotment at 22 Balmoral Road, Dernancourt. Records kept by the City of Tea Tree Gully indicated that on 21 March 2001 full development approval was provided for an application to demolish a class 1 and class 10 building on 22 Balmoral Road, Dernancourt. Mr Moyle explained that a class 1 building relates to a dwelling and that a class 10 building generally referred to a verandah. From the date of the approval, the applicants had 12 months within which to undertake the demolition work.
Mr Moyle also gave evidence that the City of Tea Tree Gully uses a software program called Exponare which uses satellite photographs to provide an aerial view of infrastructure within the council boundaries. Satellite images of 22 Balmoral Road, Dernancourt indicate that as at January 2002, there was no infrastructure visible on the property. Mr Moyle referred to a number of further satellite images of 22 Balmoral Road, the most recent being from February 2010, all of which indicated that there was no structure on the property. The upshot of Mr Moyle’s evidence was that 22 Balmoral Road, Dernancourt has been a vacant block since January 2002.
The prosecution also called the investigating officer, Senior Constable Hocking. Senior Constable Hocking had visited Balmoral Road, Dernancourt on the morning of him giving evidence to take photographs. A booklet of five of these photographs was subsequently tendered. During cross-examination by trial counsel for the appellant Zazzaro, Senior Constable Hocking agreed that in investigating the matter before the court, he had become aware that the police system showed the appellant’s address as 22 Balmoral Road, Dernancourt.
Counsel called for the production of documents relating to any occasions where 22 Balmoral Road, Dernancourt had been entered as the appellant’s address into the Police Information Management System. An incident offence report produced by Senior Constable Hocking revealed that in March 2007 the appellant was a witness to an alleged crime and provided her address to Police as 22 Balmoral Road, Dernancourt.
The appellant Zazzaro complains that the trial Judge erred in permitting the prosecution to re-open its case. On the appellant’s argument, a fact in issue relating the appellant was whether she occupied, or had care control or management of the Bennett Street premises where the firearms were found. The appellant’s address was relevant as it directly related to the presumption of possession in s 5(14)(c) of the Act.
The evidence of Senior Constable Hocking revealed that the police had knowledge that an address used by the appellant on the police system was 22 Balmoral Road, Dernancourt. The appellant submits that this, combined with the fact that the prosecution had obtained a declaration from Mr Moyle regarding the state of 22 Balmoral Road, Dernancourt, illustrates that prosecution were well aware that the appellant’s address was a fact in issue at the commencement of the trial. Accordingly, the prosecution having been forewarned that the appellant had used the address of 22 Balmoral Road, Dernancourt as her residential address, should have led evidence regarding the block being vacant at first instance.
The respondent submits that the prosecution could not have reasonably foreseen that the appellant would rely on a vacant block of land as her place of residence and that it was not until the appellant gave that evidence that this became a fact in issue. The respondent further submits that it was not an error in the exercise of the learned trial Judge’s discretion to allow rebuttal evidence to be called in the circumstances and any unfairness to the appellant was cured by her receiving an opportunity to give further evidence on the topic.
The principles of when the prosecution may split its case and introduce evidence in rebuttal at the end of the defence case are clearly set out in Killick v The Queen[9] and R v Chin.[10] Particularly, in the joint judgment of Gibbs CJ and Wilson J in Chin, the principle was set out as follows:
The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. The Queen; Killick v. The Queen and Lawrence v. The Queen. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen.
(Footnotes omitted)
[9] (1981) 147 CLR 565.
[10] (1985) 157 CLR 671.
In my view, the rebuttal evidence was properly admitted. The fact that the address at 22 Balmoral Road, Dernancourt was a vacant block did not become significant until the appellant Zazzaro had given her evidence. The fact that she would give evidence of that nature could not reasonably have been foreseen.
I would reject this ground of appeal.
Conclusion
I would dismiss the appeals against conviction.