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 101Court 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,…
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- AGLC
- R v Gjergji [2016] SASCFC 101
- Case
- [2016] SASCFC 101
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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].