R v Gjergji - [2016] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v GJERGJI
[2016] SASCFC 101
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Doyle)
9 September 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
The appellant was charged with possessing a fireman without a licence. After a trial before a judge alone, the appellant was convicted of this charge. In his appeal against conviction, the appellant relied upon various grounds which challenged the trial judge’s finding that the appellant was in possession of the firearm, and the adequacy of the trial judge’s reasons.
Held per Doyle J (with Kourakis CJ and Bampton J agreeing):
1. The appellant was “in charge of” the vehicle in which the firearm was located, and hence in presumptive possession of the firearm within s 5(14)(c) of the Firearms Act 1977 (SA) (at [49]).
2. The trial judge did not equate ownership (as opposed to ownership in the context of this case) with presumptive possession (at [53]).
3. The trial judge’s reasons were not inadequate (at [65]-[66]).
4. In any event, to the extent there was any inadequacy in the trial judge’s reasons, there was no substantial miscarriage of justice with the result that it was appropriate to apply the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (at [73]).
Firearms Act 1977 (SA) s 11, s 5; Criminal Law Consolidation Act 1935 (SA) s 353, referred to.
R v Marafioti (2014) 118 SASR 511, discussed.
R v Gjergji [2015] SADC 171; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Filippou v The Queen (2015) 256 CLR 47, considered.

R v GJERGJI
[2016] SASCFC 101
Court of Criminal Appeal: Kourakis CJ, Bampton and Doyle JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Doyle J.
BAMPTON J: I agree with the reasons of Doyle J and would dismiss the appeal.
DOYLE J:
The appellant was charged with possessing a firearm without a licence in breach of s 11(1) of the Firearms Act 1977 (SA). The allegation was that on 13 February 2012, he was in possession of a class H firearm, namely a self-loading .45 calibre pistol, whilst not holding a firearms licence authorising possession of that firearm.
After a trial before a judge alone, the appellant was convicted of this charge.
In this appeal against his conviction, the appellant relies upon various grounds which in essence challenge the trial judge’s finding that he was in possession of the firearm, and the adequacy of her Honour’s reasons in relation to the same.
Background
At about 9.40 am on 13 February 2012, police attended premises in Seacombe Gardens (the Seacombe premises). They found the appellant alone inside the premises,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gjergji

Details

AGLC: R v Gjergji [2016] SASCFC 101
Case: [2016] SASCFC 101
Decision Date: 9 September 2016

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, R v Gjergji, for being in possession of a firearm. The dispute centred on whether the trial judge had erred in finding the appellant in possession of the firearm and whether her Honour's reasons for this finding were adequate. The appeal was heard by Kourakis CJ, Bampton and Doyle JJ.

The legal issues before the court were whether the trial judge had wrongly equated ownership of a vehicle with presumptive possession of a firearm found within it, and whether the trial judge's reasons for finding possession were sufficiently detailed, particularly in light of the appellant's evidence regarding lending his vehicle to another individual and his lack of knowledge about the firearm's location.

The court reasoned that the trial judge's references to ownership should not be interpreted too narrowly. When read in the context of the appellant's presence at the premises with his vehicle, which contained his personal belongings and documents, the judge's conclusion that the appellant was in charge of the vehicle and therefore presumptively in possession of the firearm was not an error. The court also considered the appellant's evidence about lending his car and his denial of knowledge of the firearm. However, the court ultimately found that the trial judge's reasons, when read as a whole, adequately addressed the relevant considerations and that the appellant had not been deprived of a fair chance of acquittal.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

In this appeal against his conviction, the appellant relies upon various grounds which in essence challenge the trial judge’s finding that he was in possession of the firearm, and the adequacy of her Honour’s reasons in relation to the same.Background At about 9.40 am on 13 February 2012, police attended premises in Seacombe Gardens (the Seacombe premises). They found the appellant alone inside the premises, and a large number of cannabis plants under cultivation.[1][1] The appellant pleaded to a charge of cultivating more than the prescribed number of cannabis plants in the Magistrates Court, and was fined $700. The police searched a Toyota sedan (the vehicle) parked at the end of the driveway to the Seacombe premises. The appellant was the registered owner of the vehicle. One of the police officers found a calico bag under the driver’s seat of the vehicle. It contained a self-loading .45 calibre pistol with a magazine attached that contained eight cartridges of ammunition. The bag also contained black leather gloves and two magazines containing six and eight cartridges respectively. Analysis revealed the appellant was a contributor to the DNA found on the gloves and the firearm. The police located three knives in the vehicle. Two were under the mat in the driver’s side footwell. The third knife was under the mat in the front passenger side footwell. The appellant’s fingerprint was on one of the knives. The police also found various other items in the vehicle, including the appellant’s mobile phone, various documents in his name,[2] and the appellant’s wallet (containing cards and cash). [2] The documents included various membership applications and notices, a registration certificate related to the vehicle, an application for a passport in the appellant’s name, and a motor vehicle defect notice. At trial, the defendant pleaded not guilty. He denied any knowledge of the firearm or magazines, or that he was in possession of these items. He gave evidence to the effect that he had, through his soccer club, met and become friends with a man named Mark Lukaj. By February 2012 he had known Mr Lukaj for about four months, but he did not know his address, or whether he had a partner or children. Mr Lukaj had on a few occasions paid the appellant $500 to help him by filling containers with water at the Seacombe premises. He said that when found by the police this was the third occasion on which he had done this. In relation to the presence of his vehicle at the Seacombe premises, the appellant said that he had lent it to Mr Lukaj on a few occasions – maybe five times – because Mr Lukaj’s car had broken down. The last time he lent him his vehicle was on the Friday night before the Monday he was arrested. The appellant stayed the weekend at a friend’s house. Mr Lukaj picked him up from that friend’s house on the Monday morning. Mr Lukaj was driving, and they drove to the Seacombe premises. They arrived at the Seacombe premises at about 9.00 am. Mr Lukaj gave him the keys to open the door and they both went inside. The appellant unlocked the back door. He turned on the water for the plants. While the appellant was watching the water, Mr Lukaj said he was going to check the letterbox. Mr Lukaj had been gone for about fifteen minutes when the police arrived.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

To the contrary, by reason of the three considerations set out above, and in particular the third consideration, I am satisfied the appellant did not lose the possibility or chance of an acquittal that was fairly open to him. There has been no substantial miscarriage of justice.Conclusion For the reasons set out above, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

I turn now to address the particular complaints made on appeal.Consideration of the appellant’s grounds of appeal The first complaint made by the appellant is that the trial judge proceeded on the basis that ownership was sufficient to establish s 5(14)(c) presumption of possession. I have earlier set out the trial judge’s two references (in paragraphs [11] and [96] of her reasons) to the presumption of possession being made out, or triggered. In both places, the only matter expressly identified by her Honour as supporting this conclusion was the fact of ownership. However, in my view, it is important not to take too narrow or literal an approach to the relevant passages of her Honour’s reasons. Her Honour’s reasons must be read as a whole, and her references to ownership understood as references to ownership in the context of this case. As to that context, her Honour set out elsewhere in her reasons – as was obvious and not in dispute – that the appellant was present with the vehicle at the Seacombe premises, and that the vehicle contained possessions and documents belonging to the appellant. When her Honour’s references to ownership are understood in this context, the trial judge has not fallen into error in the manner contended. Her Honour did not go as far as suggesting, or holding, that ownership simpliciter, or ownership in the abstract, sufficed to establish that a person is in charge of that vehicle and hence presumptively in possession of any firearm located in it. The appellant further complains that even if the trial judge did not err by equating ownership with presumptive possession in this way, her reasons were nevertheless inadequate. They were inadequate because they did not address, in the context of whether the appellant was in charge of the vehicle, the significance of his evidence as to the loan arrangement with Mr Lukaj and his lack of knowledge of the location of the key while the vehicle was at the Seacombe premises. It is accepted that a trial judge has an obligation to give reasons for the verdict reached, and that a failure to give adequate reasons may constitute an error of law.[11] The rationale for this obligation is multi-faceted. The provision of reasons facilitates the appeal process.[12] It promotes good decision making.[13] It enables the parties and the community more generally to understand why the judge decided the case the way he or she did, and in particular in the case of the losing party, enables that party to understand why their contentions and case were rejected.[14] Related to this, reasons for decisions both promote their acceptability, and ensure a level of accountability or responsibility on the part of the judiciary.[15] Reasons thus assist in the administration of justice, and promote confidence in the same. [11] Papps v Police (2000) 77 SASR 210 at [33]; R v Keyte (2000) 78 SASR 68 at [51].[12] AK v Western Australia (2008) 232 CLR 438 at [107]-[108]; R v Keyte (2000) 78 SASR 68 at [34]-[41].[13] AK v Western Australia (2008) 232 CLR 438 at [89], [108].[14] AK v Western Australia (2008) 232 CLR 438 at [108]; R v Keyte (2000) 78 SASR 68 at [42].[15] AK v Western Australia (2008) 232 CLR 438 at [89].