R v Ghamrawi - [2022] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GHAMRAWI
Criminal Trial by Judge Alone
[2022] SADC 81
Judgment of his Honour Judge Press
8 July 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION

The accused is charged with three counts of aggravated possessing a firearm without a licence, two counts of possessing a firearm without a licence, five counts of contravening a provision of the code of practice by failing to correctly store a firearm and one count of contravening a provision of the code of practice by failing to correctly store ammunition. The aggravating circumstance charged in three of the offences is that the firearm in question was in the immediate vicinity of ammunition suitable for use in the firearm. The accused elected for a trial by judge alone.
Police attended at the accused’s house at Seacombe Gardens on 14 August 2018. In the attic police located five firearms in firearm bags and considerable amounts of ammunition. The accused gave evidence and denied knowing about either the firearms or the attic being used for storage.
The issue is whether the accused has proved on the balance of probabilities that he did not know and could not reasonably be expected to have known that the firearms and/or ammunition was on or in the premises.
Held: Guilty of all counts.
Firearms Act 2015 (SA) s 6; Firearms Regulations 2017 (SA) schedule 1, referred to.
Barca v The Queen (1975) 133 CLR 82; Knight v The Queen (1992) 175 CLR 495; R v Hillier (2007) 228 CLR 618; R v Jones [2018] SASCFC 96; Shepherd v The Queen (1990) 170 CLR 573, considered.

R v GHAMRAWI
[2022] SADC 81
Introduction

Mr Ghamrawi (the accused) elected for trial by judge alone. He is charged on an Information dated 26 July 2019 with three counts of aggravated possessing a firearm without a licence, two counts of possessing a firearm without a licence, five counts of contravening a provision of the code of practice by failing to correctly store a firearm and one count of contravening a provision of the code of practice by failing to correctly store ammunition. Each offence is said to have occurred on 14 August 2018 at Seacombe Gardens. The aggravating circumstance charged in three of the offences is that the firearm in question was in the immediate vicinity of ammunition suitable for use in the firearm.
The five firearms the subject of the charges are a Mossberg Silver Reserve double barrel shotgun (category A), a Remington 700 single shot bolt action rifle (category B), a Tikka T3 bolt action repeating rifle (category B), a Weatherby Vanguard bolt action repeating rifle (category B) and a Ceska Zbrojovka bolt action repeating rifle (category A). Each firearm was the subject of a charge relating to possession without a licence and improper storage.
Police attended at the accused’s house at Seacombe Gardens on 14 August 2018. In the attic police located the five firearms in firearm bags and considerable amounts of ammunition.
There was evidence that the five firearms had been stolen in September 2017, that the accused had been renting the property since 21 March 2018 and that at the time police searched the premises, he was the sole occupant. In the attic police also located documents in the name of the accused which pre-dated the commencement of his tenancy at the address.
Upon his arrest the accused confirmed he resided at the address and that his partner sometimes stayed at the address but did not live there. He gave evidence. He denied knowing about either the attic space or the firearms. His evidence allowed for a person he knew to have had access to his house at around the time the accused moved in and when the accused was not at home.
For the reasons which follow I am not satisfied on the balance of probabilities that the accused did not know and could not reasonably be expected to have known, that the firearms and the ammunition were on his premises. I am satisfied beyond reasonable doubt that he was in possession of each of the firearms and the ammunition and the other elements of each offence and I find the accused guilty of each count.
General Directions
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is presumed by law to be innocent of the charges unless and until the evidence that I accept satisfies me that every element of the offence has been proven beyond reasonable doubt.
A guilty verdict cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than guilt. Guilt must be the only rational inference the proven facts enable me to draw. My resolution of the case depends upon my assessment of all the evidence and that includes not just inferences in favour of the prosecution, but inferences and explanations put forward on behalf of the accused.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice or fear. I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence. The accused gave evidence. I will assess his evidence in the same way as any other witness.
In this case, a witness has been called to give expert evidence. I note that persons who are qualified in a particular area may express an opinion. That opinion must be within their particular areas of expertise and that opinion must be based on their knowledge, training or experience. I am entitled to accept or reject any opinion evidence however before doing so I must consider the person’s qualifications, whether their opinion is based upon a fact I accept, whether the opinion is in dispute and whether it fits with any other evidence that I have heard and accepted on that topic.
As regards the record of interview I will have regard to both the parts which the prosecution relies on and the parts the accused relies on. It is a matter for me what weight I give these statements.
Some evidence was led to the effect the accused was placed under arrest shortly after he answered the door on 14 August 2018. To the extent it may be inferred police were involved in some other investigation involving the accused, I ignore this evidence and draw no adverse inference against the accused from the fact police suspected him of some other offence.
Evidence was also led of documents being found in the attic in the accused’s name. One was a bail variation agreement and another was a document which contained details of a debt for victim of crime compensation against the accused.
I am satisfied each document is a business record and insofar as each document is dated, that date is evidence of the date the document was brought into existence.[1] I do not use any evidence of other facts asserted in the documents for two reasons; the use to be made of the documents makes any other facts irrelevant and the video does not permit of closer examination of the matters asserted in the documents. I do however take into account that each document referred to the accused. The presence of his name on the document is a fact from which it can be inferred the accused has a connection with that document and its location. They are the only ways I will use that evidence.
[1] I also accept the prosecution written submissions that the bail agreement seen in the video is also admissible pursuant to s. 21 of the Bail Act 1985.
Insofar as the bail agreement indicates he had previously been charged with an offence and the compensation debt indicates his conviction for an offence I will not reason that either makes it more likely, by any path of reasoning, that he committed any or all of these offences.
The accused also gave evidence he used drugs at that time. That evidence provided a context for his relationship with a man called SN, why the accused’s recollection of events may be impacted and why in his words, some of his “actions weren’t really consistent….”. That is the only way I will use that evidence. I will not reason his use of drugs makes it more likely, by any path of reasoning, that he committed any or all of these offences.
Similarly, I will not reason that the accused has committed some previous offence therefore he is or must be guilty of one or more of the charged offences.
In light of the onus of proof on the accused as regards the matters in s. 6(3)(a) and (b) of the Firearms Act 2015 I further warn myself that evidence of other criminal acts or discreditable conduct of the accused must not be used to undermine his credibility when considering whether he has satisfied me of a matter on the balance of probabilities or when otherwise considering his evidence in the context of the prosecution’s burden of proof.[2]
[2] See for example R v Jones [2018] SASCFC 96 per Kourakis CJ at [3-6].
There are eleven charges on the information. Whilst there is no suggestion different verdicts may arise in relation to different charges I have kept in mind the need to consider the charges separately.
The issues
As regards counts 1, 3, 5, 7 and 9 it was not disputed that each item was a firearm, that each firearm was in the category alleged in the charge, that the accused did not have a licence authorising possession of that firearm and that the aggravating circumstance alleged in counts 1, 3 and 9 had been proved beyond reasonable doubt.[3]
[3] The ammunition was stored in a cooler bag in the same attic space as the firearms. I am satisfied the firearms in those counts were in the immediate vicinity of ammunition suitable for use in that firearm.
I indicate I am satisfied beyond reasonable doubt of all those matters. [4]
[4] Agreed Facts 3-8 and 11-18.
As regards counts 2, 4, 6, 8 and 10 it was not disputed that the firearm the subject of each count was incorrectly stored and as regards count 11 that the ammunition was incorrectly stored. Each item was unsecured in the attic. The issue as regards these counts was whether the accused was in possession of the firearm and/or the ammunition and therefore responsible for ensuring the firearm and/or the ammunition were correctly stored.[5]
[5] Clause 3 of the Code of Practice provides; “unless the contrary intention appears this Code of Practice applies to the possession of a firearm by a person whether the person is in possession of the firearm under a firearms licence or not.” Clause 11(3)(b)(1A) further states; “when a firearm in the possession of a person is not in use the person must secure the firearm at the premises if the total number of firearms is less than 25 firearms and none of those firearms is a category C, D or H firearm and where the firearm is kept under the main roof of a person’s residence or place of business by locking the firearm in a level 1 safe”. Lastly, clause 2 of the Code of Practice states; “a person who has possession of ammunition must, when the ammunition is not in use, keep the ammunition in a locked container safely from the firearms”.
I indicate I am satisfied beyond reasonable doubt each item was incorrectly stored.
Section 6 of the Firearms Act 2015 relevantly defines possession in the following terms:
(1)This section applies to the following items:
(a)     a firearm;
(f)     ammunition
(2)For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if—
…
(d)     the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the item is found.
(3)However, subsection (2)(d) does not apply if the person proves that—
(a)     he or she did not know, and could not reasonably be expected to have known, that the item was on or in the premises, vehicle, vessel or aircraft; or
(b)     the item was in the lawful possession of another or he or she believed on reasonable grounds that the item was in the lawful possession of another.
If the prosecution proves the matters in s. 6(2)(d) beyond reasonable doubt then unless the accused proves the matters in s. 6(3)(a) or (b) on the balance of probabilities, s. 6(2)(d) applies and possession of the firearm will have been proved.
The accused gave no evidence as to the matters raised in s. 6(3)(b) and there is no evidence relevant to those matters. I will have no further regard to s. 6(3)(b).
The accused agreed he was the sole occupant of the premises and that s. 6(3) was engaged either because he was the occupier or because he had care, control or management of the premises.
Pursuant to clause 3 of the Code of Practice, the Code of Practice applies to a person in possession of a firearm. I therefore proceed on the basis that it is also an element of counts 2, 4, 6, 8, 10 and 11 that the accused be in possession of the firearm or ammunition the subject of the charge. I further proceed on the basis that the possession referred to in the Code of Practice is a reference to possession as defined in s. 6 of the Firearms Act.
The issue as regards each count is therefore whether the accused has proved on the balance of probabilities that he did not know and could not reasonably be expected to have known that the firearm and/or ammunition was on or in the premises.
Witnesses called at the trial
Police and FSSA witnesses
Brevet Sergeant Rudevics (Rudevics) attended on 14 August 2018. A portion of the video taken by his body-worn camera was tendered as P1. In cross-examination he agreed there were a number of sheds in the backyard which contained some tools and old boxes containing items. No further detail was given as regards the contents.
Senior Constable Pellas (Pellas) also attended the address. She was the exhibits officer. A floor plan (P2) and the exhibits log (P3) were tendered through this witness. In addition to the firearms located in the roof cavity she confirmed a Lyrica tablet and a prescription for Lyrica in the name of Henry Lampard were located in the kitchen.[6] The firearms were swabbed for DNA on or about 21 September 2018. In cross-examination she confirmed she wore one pair of gloves as regards the first eight exhibits she received but then used a new pair when handling the firearms.[7] When each firearm was presented to her in a bag she removed the firearm from the bag, rendered it safe, recorded the brand and serial number and then placed it back in the bag. She confirmed she used the same pair of gloves when handling each of the firearms.[8] She confirmed she did not believe there was any furniture in bedroom 1 and bedroom 3 as she would have noted such items on the floorplan.
[6]     The tablet was in a three-blister pack on a kitchen bench and the script was on top of the oven.
[7]     T32.
[8]     T34.
Senior Constable Rozek (Rozek) searched the attic with Senior Constable Thomas (Thomas). He stated the room was darker than the house but there was still visibility in the attic. The items in the attic were all within a four square metre area of the manhole. He videoed Thomas searching the attic. He said the white plastic container containing documents was within one and a half metres of the manhole and the firearms were another one and a half metres away from that container.[9]
[9] T44.
In the house, Thomas saw a small mattress, such as would be used for a child, in bedroom 1 and a piece of children’s clothing. He saw a Centrelink card in the name of Kirsten Johnston. He did not locate any adult clothing. He located the pole which opens the manhole on a dressing table in the lounge room. When he entered the attic he saw a large mound to the right hand side of the attic and he checked that location to ensure no person was hiding underneath the blankets and doona. Under the blanket he located the first firearm and the other four firearms were under a black and white doona. Each firearm was in a firearm bag. Within about 40 centimetres of the firearms was a red cooler bag containing ammunition. While in the attic he opened each firearm bag and inspected the working parts of the firearm to ensure they were not loaded.
He wore the same black gloves when searching the bedroom and the attic and when handling the firearms and the bags containing the firearms.[10]
[10] T89.
After checking each firearm he continued to search the attic. He located various documents including a bail variation agreement in the name of the accused dated 19 January 2018 and another document regarding victims of crime compensation dated 16 March 2018. He stated that to the best of his recollection there were no documents with another person’s name on them.[11]
[11] T115.
As to lighting he said there was enough light to work with but not to read documents. It was sufficiently light to discern shapes.
He confirmed he twice attended at the home of SN and he asked SN’s mother to ask SN to make contact with police. He did not hear from SN.
He confirmed police documents indicated each of the firearms were reported stolen on 13 September 2017. It was agreed those documents are business documents.[12] In cross-examination he confirmed particles of dust were floating in the air during the search. While this may mean the attic had remained undisturbed for some time I do not consider it takes long for dust to settle on items.
[12] T81, Exhibit P9.
Detective Brevet Sergeant Middleton (Middleton) searched bedroom 2 and stated there was a filing cabinet and a double bed in that room. The filing cabinet was not empty but she could not say what was in it. No other evidence as to the contents was led.
Senior Constable Paton (Paton) found two documents in the house. They were not seized. He could only say he recalled searching the rear lounge, the front lounge and the two front bedrooms. He therefore assumed he located the documents in one of those rooms. One document was a tax invoice in the name of SN dated 22 January 2018. It was for a storage facility. The second document was in the name of the accused and was dated 1 September 2017. It related to a self-storage facility. There are photographs of these documents in exhibit P6.
Both parties indicated reliance on the date in the photographed documents.[13] To do so I consider the document must be admitted as a business record. Notwithstanding the documents were not seized I am satisfied each is a business record. I will therefore use the documents as business records for the purpose of establishing that the document was brought into existence by the named business for a person using the name recorded on the document and on the date recorded on the document. The other facts asserted in the documents were not relied upon by either party.
[13] T185.
The accused was interviewed on 14 August 2018. He told police that his partner Kirsten stays at the house but does not live there and nor does she have a key to the house.
Ms King from Forensic Science SA gave evidence as to DNA testing of the firearms and the results thereof. She stated as follows;
·The DNA profile obtained from the swab from the Vanguard rifle was too complex for analysis;[14]
·Low or insufficient amounts of DNA or no DNA were located on the swab taken from the Ceska Zbrojovka rifle and therefore no further analysis was undertaken;
·The amount of DNA on the swab from the Remington 700 rifle was very low and therefore was not analysed;
·The DNA profile obtained from the swab taken from the Winchester rifle was too complex for analysis.
[14] DNA from five people or more will be “too complex” for DNA analysis.

A mixed DNA profile of four contributors was located on the swab taken from the shotgun. Of the two competing hypotheses the result favoured the hypothesis that the accused was a contributor. The statistical weighting was nine in favour of the accused being a contributor. Such a statistical weighting may be described as “slight support” for that hypothesis. The analysis of the swab from the shotgun also provided a statistical weighting in favour of Mr Muravolgyi[15] not being a contributor and that one of the four contributors was a female. The profile which was not inconsistent with the accused’s DNA was 1% of the DNA profile located. That only a low proportion of that DNA contributed to the profile was not relevant to indicating whether transfer was primary, secondary or tertiary.
[15] The original owner of the firearms.
The witness agreed that secondary transference may occur no matter what type of gloves are being worn.
Civilian witnesses
A friend of the accused, Mr Lampard was called. He stated he had left some of his belongings with the accused when the accused lived in Edwardstown. He left items with the accused because they were safer with the accused. He left a Nike black backpack, a plastic zip up bag with several zips on it and a toiletries bag. In one of the bags were some speakers and some clothes.
He said he visited the accused at the Seacombe Gardens address but did not go inside the house. He attended to pick up one of his scripts that he had left with the accused. He confirmed one of his medications was Lyrica. He stated he was self-medicating and moving around a lot during that period. He was not shown the video of the search in the attic and he did not identify any of the bags located by police as the ones he had left with the accused.
He was cross-examined on what was said to be a prior inconsistent statement. In his statement to police in June 2019 he said “through last year I was living in Adelaide and stopping at all different places. One of the houses I stayed at a couple of times was Usama Ghamrawi’s. He was living in a house in Seacombe Gardens near Westfield Marion shopping centre.” He did not deny making the statement. He did deny ever staying at the Seacombe Gardens house. It was put to him he had stayed on one or two occasions for one or two nights. He denied that. As to his statement he said, “I was probably confused because it was a random knock on the door, I wasn’t aware what they were there for and yeah, I just remember them asking me questions about if my stuff was there at his house.” He said he couldn’t recall saying that he had stayed at the address a couple of nights. I note that the prior statement to police does not unambiguously state he stayed at the Seacombe gardens address. The sentence structure of that statement could be read in that way, but it is not necessarily so. He gave evidence he did not leave any firearms with the accused and more significantly he was not cross-examined about whether he had access to firearms, whether he had placed the firearms in the attic or whether he was even aware of the existence of the attic. Whilst he frankly admitted he was self-medicating around that time I accept Mr Lampard was attempting to tell the truth and was reliable as to his recollection of visiting the premises. In any event, the accused agreed in his evidence that Mr Lampard did not enter the house and that they only spoke at the gate.[16] In any event I do not consider very much turns on the evidence of Mr Lampard.
[16] T251.
The owner of the firearms, Mr Muravolgyi, stated that the five firearms, the bags in which they were found and the ammunition were all stolen from his house in October 2017. He confirmed the shotgun had been modified since he owned it. He further confirmed that he had touched the firearms prior to them being stolen and he had held them. No evidence was led as to the value of the firearms but I infer such items do have a value.
The two owners of the premises were called and gave evidence. Both owners confirmed real estate agents managed the property for them. Mr Kyriakopoulos stated he purchased it in 2016 and sold it in 2019. He had never been inside the property. He had never met the tenants and he did not have a key to the premises. He had no knowledge of any firearms being stored at the premises. Mr Georgiou also confirmed the purchase and sale dates. He had never stepped inside the house. He had never met the tenants and he did not allow firearms to be stored at the premises. He recalled a clean-up of the rear yard, possibly in 2018. There was no cross-examination to challenge their evidence as to not entering the premises or having no knowledge of the firearms.
The real estate agent for the address at Seacombe Gardens gave evidence. In large part her evidence relied on the information contained in P10[17], P11[18] and P12.[19] Each of these exhibits was tendered as a business record. She confirmed the normal practice as to tenants signing leases and conducting property inspections. She confirmed the previous tenant commenced his lease on 7 March 2017 and that it ended in about February 2018.
[17] Copy of Residential Tenancy Agreement schedule.
[18] Letter from Century 21 dated 7 February 2018.
[19] Residential Tenancy Agreement from Century 21.
She was unable to say whether the owners of the property kept a key. I note P12 shows a photocopy of two different keys. Whilst the witness was not asked this would be consistent with the tenant only being given the keys photocopied. If so, the accused had two keys although I note they appear to be for different locks.
She stated the records indicated an inspection on 20 March 2018 however she did not perform the inspection. The witness interpreted a note on the inspection sheet which made reference to the passageway ceiling in the following terms; “white paint, 1 x smoke alarm, 1 x base, 1 x large mahole [sic] / attick [sic] stairs?”. She stated the question mark would be consistent with the agent not knowing if there were stairs on the basis a question mark would not normally be used if something was known. Irrespective of her evidence I would have formed the same view. She confirmed there was nothing within the inspection sheet to confirm whether anyone had looked in the attic. In fact I infer from the inspection sheet and the question mark next to the word stairs that no one looked in the attic at the time of the inspection. She confirmed the inspection was conducted prior to the accused taking possession of the property. She confirmed that the sheet also recorded that there were old pots and items in the shed which had been left. She confirmed a clean-up of the gardens was foreshadowed.
I note that P12 indicates the tenancy commenced on 21 March 2018 but that the two keys were signed for on 29 March.
The previous tenant was also called by the prosecution. He confirmed his rental period was between March 2017 and February 2018. He lived there with his three children who were three, six and seven. He stated he had never opened the manhole or entered the attic. He confirmed no one stored any items at the premises, no one stayed at the house except for his family and he had no knowledge of any firearms at the premises. In cross-examination he confirmed his partner stayed with him for the last two months of the lease but did not have her own key. He confirmed he returned all keys to the real estate agent. There was no challenge to his evidence as to not entering the attic or his lack of knowledge as to the firearms. I also note there is no evidence that any item in the attic is connected to him.
I am satisfied each of the witnesses called for the prosecution was attempting to tell the truth. No suggestion was made to the contrary. I am also satisfied that each witness was reliable as to their recollection as to having no knowledge of any firearms.
The accused
The accused is now 31 years old, employed and living with his partner Kirsten and three children. In 2017 he was living with his parents in Para Hills. He moved to Campbelltown with Kirsten and her two young girls for a couple of months but then moved to Ascot Park due to issues in their relationship.
He moved to Ascot Park in early 2018 to live with Rebecca – a person he met through SN. He and SN had reconnected approximately five months before and would use drugs together. He lived at Ascot Park for approximately two months and then moved to the Seacombe Gardens address.
Prior to moving to Campbelltown the accused had couches, a TV cabinet, a TV, pots and pans, crockery and a bed. Those items were moved into the Campbelltown address but were not then moved to Ascot Park. He arranged with SN to collect some of his belongings from that address. He also believed or assumed Kirsten had also moved some of them because she moved house as well after he moved out. He stated he may have offered to give SN some money for storage. He understood that SN placed that property into storage. He said he took very few items with him to Ascot Park.
He stated however that a number of items that he left at Campbelltown were never seen by him again.
He confirmed he signed the document marked as exhibit P12. After signing the lease he stated it took a while to move in. He stated if he had items or bags he would simply have put them in one of the spare rooms.[20]
[20] T219.10-12.
When he moved to Seacombe Gardens he arranged for his ex-partner Kirsten and SN to move some of his belongings. He stated Kirsten moved the fridge, washing machine, crockery, pots and pans and SN moved “the tools and whatnot”.
He stated that when he moved into Seacombe Gardens he and Kirsten were “on the mend”. He gave a key to Kirsten and she delivered items on two occasions; once before he moved in and once after. On the first occasion items such as pots and pans, a fridge, washing machine and maybe the TV and on the second his couches and his bed. At the first visit he said he was not home and they were delivered to the kitchen and outside the house.
He said he believed Kirsten arranged for Kirsten’s cousin to help her move things to the Seacombe Gardens address. The accused had not met her cousin before. When Kirsten and perhaps her cousin delivered some items the accused said some things were moved inside the house and some were left outside. A drill box, the washing machine and a blow-up pool toy were outside and the fridge and pots and pans were inside. There was no explanation or cross-examination as to why he wasn’t home at that time or what he was doing at that time. Assuming Kirsten’s cousin did assist on the first visit I find it implausible that he would or could have secreted firearms in the attic having never met the accused before and having no contact with him afterwards. It is even more unlikely given Kirsten and the accused were ‘on the mend’ and the cousin would have had to hide what he was doing from her also. I reject that as a probable or possible explanation for the firearms being in the attic.
The accused was however at home on the occasion of the second delivery when Kirsten and her cousin moved the bed and some couches to the house.
He was not sure how many keys he had but he thinks he only had one key.
He further stated that he gave SN a key so that SN could move the tools to the house. This occurred after he obtained the keys but before he moved in. He stated he could not remember if he asked SN to leave the items in the shed however he did remember giving him a key.
The accused stated SN did deliver some of the tools to the house but the paint air sprayer and the air compressor and drills were not returned. He also did not return the TV. He did say that he could not recall whether SN placed them in the house or in the shed or at the back of the house.
He also said that he tried to contact SN about his missing belongings and he believed SN had visited him once at Seacombe Gardens. He had not seen SN since that time or heard from him.
As to the Western Self-Storage tax invoice/receipt photographed at his house the accused agreed he had lived in Seacliff Park with Kirsten and that he had previously used a storage facility near Marion Road more than five, maybe 10 years ago when he stored furniture. The document was however dated 5 September 2017. I note police were unable to say where this invoice was located. This document was not seized and only a photograph was tendered. That document is relevant to show a connection between the accused and the house however that is not a matter in dispute. The only other possible relevance is that it appears to be consistent with some of the accused’s old paperwork accompanying him to his new address at Seacombe Gardens. I do not however consider this evidence is particularly relevant to the issues I must determine.
As to the document in photographs 12, 13 and 14 of Exhibit P6 the accused did not recognise that document although he thought he may have seen it in the kitchen or somewhere at the Seacombe Gardens address. Its relevance is therefore that a document dated 22 January 2018 for a storage unit in the name of SN was in the accused’s house. This provides some support for the accused’s evidence that he had contact with a person by the name of SN during that period and that SN had a sufficient connection with the Seacombe Gardens address that a document with his name on it was at the house.
As to the documents shown on P5, the accused stated that he did not recall the yellow envelope addressed to him and nor did he recall the specific bail variation agreement or the green folder in which it was located. He did not however deny they were his. As to a patient election form, he agreed he had been a patient prior to August 2018 but he did not recall any documentation. He said he would normally keep documents that he received from the court or a lawyer. He stated if he received a letter he would have opened it. He said he did not recall receiving a letter about victims of crime and that if he had received it, he may just have “put it aside”. He said he was “in a bit of a shit state at the time” and “probably my actions weren’t really consistent”. He further stated that he did not remember if he did or did not have the bail variation documents when he was at Ascot Park when he lived with Rebecca. There was also a letter from Community Bridging Services TAFE. It was addressed to his parent’s address in Para Hills. He agreed he had done a TAFE course online in 2018. Given there is no evidence as to when in 2018 he did such a course and given the letter was not seized and it is not clear to what it referred I have not drawn any inference against the accused to the effect that letter may have come into his possession after he started living at Seacombe Gardens. Such an inference is not open on the evidence.
He stated he had never opened the manhole cover, he had never been in the attic, he had no knowledge as to who else may have been in the attic and no one had ever told him that items had been placed in the attic.
He said he was not curious as to what was in the attic space. He stated he was not aware of the existence of a ladder and had never seen the manhole cover opened. He agreed he knew about the pole which opened the manhole cover. He thought it had probably been moved around by both himself and the children living in the house. He had never used it in connection with the manhole. I note that the previous tenant clearly also had access to the pole and had never opened the manhole cover. The previous tenant was not asked whether he knew there was an attic space or that the pole could be used to open the manhole. That the previous tenant had never been into the attic space however confirms my own view that it is not unusual for a tenant of a house not to explore every part of a house.
The accused stated that there was a further inspection of his property after he moved in when he was present. He stated the land agent entered the passageway and there was no discussion about the manhole cover and no questions were asked of the accused as to the manhole cover. He did not see the agent enter the roof space. I note the residential tenancy agreement refers to inspections being carried out every three months. There was no challenge to this aspect of the accused’s evidence.
He denied ever having seen the lantern that can be seen in the video or the quilt which was covering the firearms or the firearms or the firearm bags. When shown the video he denied having seen the black box at 1:13 on the video, the black and yellow items at 1:04, the rope at 4:06, the bag at 4:37, the bag holding the ammunition or the ammunition. He accepted some items in a bag may have been at his Campbelltown address however he was not able to positively identify the items in the bag. The video footage was not clear. He also stated that the item which was a part of a shisha or hookah was “quite possibly” his and that he had last seen it at Campbelltown or Para Hills. He stated he had never owned a typewriter.
The accused stated that his brothers would visit him sometimes but no one regularly spent time at that address. Kirsten would stay the weekend. The accused did not suggest that Mr Lampard had stayed overnight at the house.
Chronology
19 December 2016: Property purchased.
3 March 2017: Mr Cullabine applies for tenancy.
7 March 2017: Commencement date of Mr Cullabine’s lease.
5 September 2017: Western Self Storage invoice /receipt to accused indicates overdue balance.
13 September 2017: 5 firearms stolen.[21]
Late 2017: Accused leaves his parent’s address at Para Hills and moves to Campbelltown to live with Kirsten and her children. SN visited this address.
Early 2018: Accused moves to Ascot Park to live with Rebecca.[22]
19 January 2018: Bail variation agreement in accused’s name.
22 January 2018: Storage agreement signed in the name of SN from Storage 2000.
7 February 2018: Letter to Mr Cullabine to vacate the premises.
5 March 2018: Accused applies for tenancy.
13 March 2018: Accused signs the lease.
[21] Although the owner believed the firearms were stolen ion October 2017 police records confirm this is the date they were reported stolen.
[22] T197.
16 March 2018: Letter dated 16 March 2018 sent to accused at Ascot Park address as regards compensation.
20 March 2018: Agents inspect house.
21 March 2018: Accused’s lease commences.
29 March 2018: Photocopy of keys signed by accused on P12.
14 August 2018: Police search house.
The Prosecution Case
I will briefly summarise the circumstantial evidence relied upon by the prosecution:
i. The accused was the sole occupant of the house.
ii.The tool to open the manhole was in the living room in a position which suggested it was known to the accused and accessible to him.
iii.Given the firearms were stolen in September 2017 they could not have been in the attic when the previous tenant Mr Cullabine moved into the Seacombe Gardens address. It was submitted Mr Cullabine’s evidence that he had never opened the manhole, left nothing behind in the house, that no one had ever stored items at his house and that he had no knowledge of the firearms was only consistent with the firearms being placed in the attic sometime during the tenancy of the accused.
iv.The firearms were within about one and a half metres from the manhole entrance. They were not secreted in some far corner of the attic. They would therefore have been readily seen by anyone entering the attic notwithstanding they were covered by a blanket and doona.
v.The firearms were approximately 40-50 centimetres from the red cooler bag containing the ammunition. The red cooler bag was in plain sight in the attic.
vi.The white tub and the Rebel sports bag, both of which contained documents in the accused’s name, were within one to one and a half metres of the firearms.
vii.The following documents bearing the accused’s name were in the attic; a bail variation document dated 19 January 2018, a document outlining details of victims of crime compensation dated 16 March 2018 addressed to an Ascot Park address, Centrelink documents and a letter from TAFE addressed to a Para Hills address.
viiiMr Lampard gave evidence that he left a black Nike backpack, a plastic zip-up bag with numerous zips and a toiletries bag with the accused at his previous address in Edwardstown. It was submitted the black backpack seen in the roof space on the video taken by police is consistent with that description. It is submitted that the presence of the backpack in the attic is consistent with it being stored there by the accused relocating his items, including those given to him by Mr Lampard, from his previous address to the Seacombe Gardens address.
ix. The hookah in the white tub was said by the accused to be possibly his.
x.That DNA consistent with that of the accused was located on one firearm.[23]
[23] The prosecutor accepted the DNA evidence had minimal weight.

The prosecution submitted that the easy access to the attic via the manhole, the obviousness of the manhole in the hallway, the accessibility of the pole used to open the manhole cover, the proximity of documents in the accused’s name to the firearms, the improbability of the accused not being curious about the manhole and the space beyond it, the improbability of the accused not working out that the pole was connected to the manhole and the improbability of anyone but the accused placing his paperwork in the attic were all such that I should reject the accused’s evidence as to having no knowledge of the firearms.
I was asked to consider why SN or Kristen would take the documents up into the attic. It was submitted the documents were the sort of documents that the accused would not want others to see and therefore that is why they were placed in the attic and why they were placed there by him and not another person. It was further submitted there was sufficient visibility in the attic to see what was there. It was submitted the accused’s evidence was vague and not believable.
The Defence Case
On behalf of the accused it was submitted that his evidence was given in a forthright and honest manner and that there was nothing implausible about it. I was asked to consider that the accused was at a particularly low point in his life during this period and was obviously using drugs with at least one other person. It was suggested there is no reason for the accused to be embarrassed by the documents located by police in the attic. Being on bail was hardly likely to cause any issues with the accused’s friends. If he brought those documents into the house why, asked the defence, wouldn’t he just put them into one of the spare rooms.
It was submitted the presence of DNA of other individuals on the firearms supported the accused’s evidence that someone else must have been responsible for placing the firearms in the roof.
In submissions, it was accepted that SN was the most obvious person to have left the firearms in the attic. It was submitted that it was likely that the documents were left in the attic with the firearms as part of a design to mislead police. It was also submitted that it was no coincidence the police could not contact SN in the course of their investigation.
It was submitted there is nothing implausible about a person living in a house and not entering or knowing about an attic; particularly when neither the previous tenant nor the real estate agent appears to have been aware of it.
It was further submitted that as a tenant it may be thought to be a bold move on the part of the accused to keep firearms in a house knowing that there would be inspections by the real estate company.
In light of his presentation and those matters which support his evidence it was submitted I should be satisfied on the balance of probabilities that the accused did not know about the firearms.
Lastly it was submitted that even if I rejected the accused’s evidence that he had never been in the attic I could still accept his evidence that he did not know about the firearms in the attic. It was submitted that it was reasonable that the accused did not know about the firearms because even if he had been in the attic he may not have seen the firearms given the visibility issues, their position and that they were hidden under blankets and a quilt.
Discussion
It is obviously not for the accused to prove who placed the firearms into the attic without his knowledge, but he must prove on the balance of probabilities that he did not know about them and could not reasonably have known about them. The evidence as to who may have placed the firearms there and whether and when there was an opportunity for another person to place them there are relevant to both issues.
The firearms were stolen during the period of the previous tenant’s tenancy which necessarily increases the time frame over which they could have been placed in the attic.
The owners of the property were questioned about whether they had access to keys and the accused gave evidence that his present partner Kirsten and her cousin assisted in moving some of his items to the house. [24] It was not however seriously suggested that either the owners or the previous tenant or Kirsten were likely, or even possibly, responsible for placing the firearms in the roof. The accused gave evidence that apart from Kirsten no other people stayed at his house overnight and apart from his brothers no-one regularly spent time at the house.[25]
[24] I have already indicated why I reject the cousin as a possible explanation for the presence of the firearms in the attic.
[25] T215.
In the closing address the defence accepted that the most obvious person who had opportunity to place the firearms in the roof, who was at the house alone with access to the inside of the house and who could have had access to the documents which made their way into the attic was SN.[26] I consider this was a realistic submission. The inference to be drawn from the accused’s evidence is that SN is the only person who may have placed the firearms in the attic without his knowledge. It was also not suggested to any of the witnesses called by the prosecution that they were responsible for placing the firearms in the roof and nor was their evidence that they had no knowledge of the firearms challenged in any way.
[26] See closing address at T312.38-T313.1-2.
In any event I accept the evidence of the owners of the house, the previous tenant and Mr Lampard as to having no knowledge of the attic and no knowledge of any firearms in the attic.
The owners of the house had never been inside the house. This was not challenged and in the circumstances of their purchase and their use of the real estate agents it is clearly plausible and believable. As to the previous tenant, there is no obvious reason why he would not have removed the firearms when he left if they were placed there by him. The firearms obviously had a value. There is no evidence from Mr Lampard that he stayed at the house or even entered the Seacombe Gardens house. I believe and accept the accuracy of his account of when he attended at the house and why he remained outside. The accused also agreed that Mr Lampard did not enter the house at Seacombe Gardens.[27]
[27] T251.
Before turning to the accused’s evidence as to the opportunity of SN to place the firearms and the ammunition in the attic I make the following comments. An assessment of the accused’s evidence necessarily requires consideration of all the evidence led in the trial and the inferences which may be drawn from that evidence however I have given little or no weight to some of the evidence.
Firstly, I give the evidence that DNA consistent with that of the accused was located on one firearm no weight in determining the issues. The results were so weak that I consider on that basis alone it has no weight. In the circumstances of this case I also consider the possibility of secondary transference is quite real. It appears that Thomas was wearing the gloves he used during the search of the attic when he searched the bedroom and when he used the pole to open the manhole cover. If so, the opportunities for the accused’s DNA to be on the officer’s gloves prior to handling the firearms are obvious.
The presence of DNA from multiple sources on the firearms was also said by the accused to support his account. The evidence is consistent with multiple persons handling them but the fact someone else has handled them at some unknown time in the past does not in my view weaken or strengthen the accused’s evidence. There are so many unknowns I do not consider any reasonable or logical inference can be drawn from that fact. The presence of multiple profiles is not inconsistent with his evidence but that is all. Similarly, the presence of DNA on the firearm which is not inconsistent with his DNA is not inconsistent with the prosecution case, but again, that is all. I do not consider the DNA evidence undermines or supports the accused’s evidence and nor do I consider it strengthens the prosecution case.
Secondly, an aspect of the prosecution case is that it is implausible that the accused was unaware of the attic and the roof space. It was submitted the accused’s evidence should be rejected on the basis that the manhole was obvious, the pole was in the lounge and anyone would be curious about the manhole. I do not agree with that submission. Of course, I accept that the accused’s evidence must be assessed having regard to all the evidence, however I do not consider there is anything implausible about his evidence on the basis suggested. I do not consider someone renting a house with few possessions is as likely to explore every aspect of a house as the owner of the house who also resides there. In any event the previous tenant also stated he did not know of the attic and that was not said to be implausible.
Thirdly, I note that some items in the attic may not belong to the accused. I accept the typewriter is a possible example. I accept it is possible that some items had remained there from a time prior to the present owners purchasing the house. The fact the real estate agents do not appear to have inspected the space also suggests this is possible. Old items left in the shed would also support such an inference. I do not however consider the fact some worthless items have been left at the house is significant in the determination of the issues.
Lastly, Mr Lampard gave evidence that he left a black Nike backpack, a plastic zip-up bag with numerous zips and a toiletries bag with the accused at his previous address in Edwardstown. It was submitted a bag in the attic is consistent with that description and therefore consistent with it being stored there by the accused when he moved in. In the absence of any identification by Mr Lampard of the backpack or evidence of the presence of a plastic zip-up bag with numerous zips in the attic I decline to infer the bag has any connection with Mr Lampard.
Aspects of the accused’s evidence as to SN and his opportunity
I do not consider there was anything about the accused’s presentation or demeanour which assists me in an assessment of his evidence. There were aspects of the accused’s account which were vague and I note he initially stated he “would have” given SN a key but then said he recalled giving him a key. I have however put this difference down to a mode of expression rather than the accused realising he had to be certain so as to inculpate SN.[28] I also consider there were times when the accused delayed answering questions in cross-examination however I have taken into account that he was giving evidence about matters from some time ago and his drug use around that time may also have impacted his memory. I do not therefore reject his evidence as a result of my impressions of his demeanour or general presentation.
[28] T244.34-37; T245.15-18.
I reject his evidence because it is implausible and inconsistent with other evidence.
The accused’s evidence is that he gave SN a key to the house and that items to which SN had access turned up at the house when the accused was not present. Implicit in the accused’s account is that SN was prepared to take advantage of their friendship and to hide firearms in the house without informing the accused of what he had done.
I therefore considered the plausibility of those aspects of the accused’s evidence which deal with SN having the opportunity to place the firearms in the attic and which deal with the documents in the accused’s name being in the attic.
The accused could not recall how many keys there were however P12 indicates that the accused signed for two keys on 29 March and the two keys appear to be for different locks. The video in P1 appears to show that the garage door, the screen door on the front door and the back door have locks. It is not possible to discern the type of key each lock requires. In any event, the accused says he gave SN a key after he received the keys but before he moved in.[29] Why he did not agree to assist SN to collect the items and transport them to Seacombe Gardens or simply meet SN at the house was not explained by the accused. I also note it was not explained how he could have given both Kirsten and SN a key in the period between receiving the keys and moving in. The evidence as to these arrangements was quite vague but given the passage of time and the absence of more questioning on these topics I ignore those potential issues when assessing his evidence.
[29] T245.
There was no dispute that a person named SN did exist and that he had a connection with the accused during the relevant period. The document in the name of SN located in the house supported such a connection. The evidence as to SN and their relationship was not particularly detailed. There is evidence they knew each other from school, they reconnected about five months before the accused moved into Seacombe Gardens, they took drugs together, they saw each other most days, the accused moved into a house with a woman SN was seeing when the accused’s relationship broke down, SN agreed to collect and store the accused’s belongings from Campbelltown, SN agreed to collect and transport those belongings to the new house at Seacombe Gardens and a document in SN’s name was at the house.
It appears therefore that they were far more than acquaintances during this period. Although the accused stated SN failed to return some of the accused’s tools and possibly a TV the evidence of their relationship was generally of a positive nature. I accept that it is not unknown for those within the drug-taking fraternity to lie to their “friends” however it is the whole of the evidence which must be considered.
Firstly, I do not consider it is believable or plausible that the accused gave SN a key and then SN, who was a friend, of sorts, of the accused, delivered some of the accused’s property to the house when the accused was not present, entered the house, discovered the attic, decided to place some of the personal belongings and documents of the accused in the roof space rather than any of the spare rooms, realised that the attic would also lend itself to hiding firearms, placed the firearms into the roof space, determined not to tell the accused of the presence of the firearms or the documents and then soon thereafter cut off contact with the accused.
I consider this combination of events is highly unlikely and improbable.
I consider it is unlikely the firearms would have been placed in the attic without then informing the accused. SN was not to know whether the accused knew of and would use the attic. To hide such items in the house without telling the accused, risked the items being discovered by the accused and the accused then disposing of them.
Placing the documents in the attic could also only increase the risk of the accused demanding to know what had happened to his documents. The documents were clearly of a personal nature. If the intention was to keep the firearms secret from the accused it makes little sense to hide the documents, which the accused may ask questions about, in the same place. Again, I consider such a scenario to be highly unlikely.
In this regard I reject the defence submission that placing the documents in the attic was consistent with being part of a plan to incriminate the accused if the firearms were located by police. The very fact the firearms are in the attic of a house he leases and which he occupies is incriminating. I do not consider the defence theory on this topic to be plausible.
Notwithstanding there is no evidence of the value of the firearms I also accept that each firearm would be of some value and could be sold. The evidence of the date of the accused’s last contact with SN is not clear however on any interpretation of his evidence there had been no contact between them for some months. To risk the firearms being discovered by not telling the resident is unlikely, but to hide such items and then cut off contact with that person is even more unlikely. This aspect of the defence case is one further aspect which I consider to be implausible.
That SN had access to firearms which he needed to hide in that particular timeframe, that he discovered the attic on that visit when the accused was not present, that he decided to put the documents in the attic and that he then decided to betray his friend by storing the firearms and ammunition in the roof without informing the accused and that he then then effectively abandoned the firearms soon thereafter, is a highly implausible and unlikely sequence and combination of events.
Secondly and significantly, there are also aspects of the accused’s evidence which I am satisfied are unlikely to be true when regard is had to the documents located in the attic.
The documents
The accused gave evidence that when he moved to the house at Ascot Park in early 2018 he only took “some clothes, toiletries, a couple of bags worth.”[30] This is consistent with him only having a small number of items to move from the Ascot Park house to the house at Seacombe Gardens.
[30] T199.
As to his belongings at Campbelltown some had apparently been kept by Kirsten or put into storage when she also moved from that house and SN had also collected some items and stored them somewhere. The accused was not particularly clear on who had taken what.[31]
[31] T225.
Later he arranged for Kirsten to transport the items she had kept to his house at Seacombe Gardens. At this time their relationship was “on the mend”. She did so with her cousin. These items included a bed, couches, chairs, a washing machine, pots and pans, and a fridge. She moved items on two occasions - just before he moved in and within 1-2 weeks after he moved in. On the first occasion the accused was not at home and on the second he was.
The accused also arranged for SN to bring to Seacombe Gardens the items SN had taken.[32] The accused believed these included tools, an air compressor, a paint air sprayer and maybe a TV.[33] The accused says he gave SN a key after he received the keys but before he moved in. The lease commenced on 21 March 2018 and he signed for the keys on 29 March 2018. It is not clear precisely when he moved in. He said some tools were delivered to his house but many were not. He could not recall if the tools were put in the house by SN or just left at the back.[34]
[32] T203.
[33] T200.
[34] T248.
As to the documents in the attic the accused said he did not remember whether he had them at Ascot Park.[35] He said he only recognised his name on the documents but not the documents themselves.[36] He also said he did not recognise or recall receiving the document dated 16 March 2018 which was addressed to him at Ascot Park as regards a victims of crime debt.[37]
[35] T270.
[36] T211.
[37] T271.
The presence of documents in the accused’s name in the attic is for obvious reasons significant evidence against the accused as to his knowledge of that space and his use of that space for storage. In light of the significance of the presence of documents in his name, I have given careful consideration to aspects of the investigation which may impact the inferences to be drawn from the presence of those documents.
No documents from the attic were seized. Thomas stated that from his recollection there was nothing else in the roof with the accused’s name on it other than what was shown on the video. He further stated that “to the best of my recollection there was nothing else containing anybody else’s name”. The video footage indicates that police did not carefully examine each document however each document I can see in the green folder appears to be linked to the accused.
If documents had been located with dates from May 2018 onward then the evidence would clearly be inconsistent with SN having taken the opportunity to put the firearms in the attic at the time that he assisted the accused to move into the house. Similarly, any letters addressed to the accused with the Seacombe Gardens address on it would have strongly suggested the accused had knowledge of the attic. No documents in either category were located or filmed.

Most of the documents were in a green folder in a white plastic tub. The use of the folder is consistent with the documents being stored in one place. The white plastic tub also contains part of what may be a hookah. Police also searched what appears to be a plastic bag containing various documents. The bag is proximate to the tub. Inside that bag police located an envelope addressed to the accused at a Para Hills address with a reference to TAFE on it. There is no date that I can see on the video. Inside the bag appear to be other “bits and pieces” which I cannot identify.
The bail variation agreement is dated 19 January 2018 and the document notifying of a victims of crime debt is dated 16 March 2018 and is addressed to the accused at the address at which he lived in Ascot Park.[38] I note the date does not indicate the date it was received. There is also a police field receipt dated 16 January 2018 in the accused’s name. These documents predate the accused moving into the house at Seacombe Gardens.
[38] Ibid.
The accused’s evidence is that he did not put them in the attic. As they are documents which were obviously in the accused’s possession at some time, the only inference open on the accused’s account is that someone with access to those documents brought them to the house and stored them in the attic without then informing the accused. Given one of the letters is addressed to the accused at Ascot Park and the bail document is dated January 2018 there is no suggestion or evidence to explain how the previous tenant, Mr Lampard or Kirsten or her cousin could have accessed these documents.
I reject the accused’s evidence as to his lack of knowledge and recognition of the documents and how they came to be in the attic. [39] I am in fact satisfied beyond reasonable doubt that these were documents in the accused’s possession at the time he moved to Seacombe Gardens and that he was lying about his knowledge of the documents and how they came to be in the attic.
[39] T212.
The documents were sensitive and significant. I note they also included a form titled Patient Election Form.[40] The documents in the green folder are the types of document I would expect a person to keep. The different addresses on the documents are also consistent with them being documents he had intentionally retained over a period of time.
[40] As regards the patient election form, I have not used that document as a business record. Its relevance is that it is the type of document upon which sensitive information may be recorded and it is the type of document which I would expect the owner to keep along with other important or sensitive documents. That it was found in a folder with a bail variation agreement and other documentation is entirely consistent with that conclusion.
That the bail variation agreement is dated January 2018 which is about the time that he moved to Ascot Park and that one of the letters is addressed to him at Ascot Park, is only consistent, in my view, with those documents being in his possession at the Ascot Park address. These were not documents he could have left at the Campbelltown address which SN could have collected if he picked up the accused’s tools. His possession of these documents at Ascot Park is also entirely consistent with this collection of documents being of a type which the accused had decided to keep with him.
Given the number and nature of the documents I also do not consider the accused’s evidence that he did not recognise the documents to be believable.
I further note that the accused did not give evidence as to which items he personally moved from Ascot Park to Seacombe Gardens. However, he stated he had only taken a few items with him to Ascot Park and therefore on his account he had very little to transport himself. On his evidence he had left most items at Campbelltown and had only taken some toiletries and two bags to Ascot Park.
In circumstances in which they are personal documents and the accused had little or nothing to move from Ascot Park, I consider it is highly unlikely that these documents would have been transported by SN to the new address at Seacombe Gardens. That the documents are of a personal nature further strengthens my view that these documents had been retained by the accused and would have been transported by him to Seacombe Gardens when he transported his two bags and his toiletries.
Of equal significance is however the timing of SN’s supposed attendance at the house. The accused says he gave SN a key after he received the keys but before the accused moved in. There is no obvious reason SN would have gone to the accused’s house at Ascot Park, collected a few documents -presumably without the accused’s knowledge - and then transported them to Seacombe Gardens while the accused was still living at Ascot Park. Such a scenario is highly unlikely. I further note it is also inconsistent with the arrangement the accused said he had with SN which was to transport the items SN had collected from Campbelltown.
Lastly, I have carefully viewed exhibit P5 and the documents which can be seen. At 44-45 seconds of exhibit P5, a unit inspection sheet for the premises at Seacombe Gardens can be seen. I can clearly see on the video that a document in the green folder appears to be identical to the first page of the unit inspection sheet in exhibit P12. I am satisfied that the document in the green folder is a copy of page 1 of the unit inspection sheet located in P12. In addition to referring to the address and the accused I note the entries under ‘smoke alarms’ and ‘general comments’ are identical.
The unit inspection sheet has a handwritten note which appears to say, “please return within 14 days” and immediately underneath that is a date of 14 April 2018. As there is no evidence as to who wrote the date and to what it refers, I place no weight on the date that is written on that document. I do however consider the presence of that unit inspection sheet in the attic is relevant.
This document could only have come into his possession after he began discussions about leasing the premises. The existence of that document within the green folder provides further support for my conclusion that the accused had those documents with him at Ascot Park and that he has not told the truth about his lack of knowledge as to how they came to be in the attic
The accused was not directly questioned about that document in evidence-in-chief or in cross-examination however exhibit P5 was tendered and I have simply watched it frame by frame. If its presence was inconsistent with my findings I would have taken it into account. However, whilst I do not consider there is any impediment to me taking its presence into account when assessing his evidence, I indicate I have not done so for the purposes of determining the issues. Whilst its presence provides further support for my findings I indicate I would have made the same findings and I would have found the accused guilty of each count irrespective of the existence of that document in the green folder.
In all the circumstances I reject the accused’s evidence that he has never been in the attic, that he did not place those documents in the attic and the implication that SN delivered those documents and placed them into the attic without the accused’s knowledge. In doing so I have taken into account that there are other more convenient places in the house the accused could have stored those documents however that consideration does not outweigh those other matters which I consider to be more significant.
It was submitted that if I rejected the accused’s evidence that he had never been in the attic I could still accept part of his evidence as to a lack of knowledge about the firearms and the ammunition. It was submitted that the accused could have been in the attic and yet not seen the firearms as it was dark and they were under blankets. It was submitted hiding the firearms in the attic would be so bold as to suggest he would not do so. I do not consider the accused hiding the firearms in the attic involves any degree of boldness on his part. Firstly, the attic is out of the way and relatively difficult to access. If the accused’s partner’s children were present in the house, it would make sense that the firearms would be stored somewhere to avoid the children finding them. The accused would also have been aware that the real estate agent had not inspected the attic.
I further consider that my rejection of the evidence from which it could be inferred that it was SN who placed the documents in the attic seriously undermines the credibility of the other aspects of his account as to SN being at his house when the accused was not present and SN having an opportunity to hide the firearms and ammunition in the roof.
However, my rejection of his evidence that he did not know about the attic, that he had never been in the attic and that he did not place the documents in the attic is more significant than that. His lies on those significant topics impact his credibility to such a degree that I do not believe his other denials and I reject his evidence as to having no knowledge of the firearms and or ammunition.
In making those findings I have also had regard to the fact I consider it is significant that the documents in his name were in the attic in circumstances in which I accept he had possession of those documents when he moved to the house, that he was the sole occupant of the house, that other people did not frequent his house, that the location of the attic means there would be significant difficulties for anyone trying to access the attic without the accused’s knowledge, that the layout of his house and his living arrangements mean there would be significant difficulties for anyone trying to bring five large firearms into the house without the accused’s knowledge, that it is unlikely someone would use his house to store the firearms without his knowledge and that the documents were proximate to the firearms and the ammunition. That it was dark in the attic and the firearms were under covers do not undermine or weaken the inferences I draw from those matters.
Having regard to all the evidence, including his evidence, the accused has not satisfied me on the balance of probabilities that he had no knowledge of the firearm the subject of each count and/or the ammunition on his premises.
Conclusion
The accused has not satisfied me on the balance of probabilities that he did not know about the presence of each of the firearms in counts 1 to 10 and nor has he satisfied me on the balance of probabilities that he had no knowledge of the ammunition in count 11.
Accordingly, s. 6(2)(d) of the Firearms Act applies and I am therefore satisfied beyond reasonable doubt that the accused was in possession of each of the firearms the subject of counts 1 to 10 and the ammunition the subject of count 11. I have already indicated I am satisfied of the other elements of each charge and accordingly I am satisfied beyond reasonable doubt that the prosecution has proved each element of each count. I therefore find the accused guilty of counts 1-11.