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, 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.
The appellant said he did not see Mr Lukaj again that day. A couple of months later he did see Mr Lukaj, but believes he subsequently returned to Albania as his brother passed away.
The appellant’s evidence was that when they arrived at the Seacombe premises, Mr Lukaj did not give him the key for the vehicle. When spoken to by the police, he told them that maybe the key was in the house, or in the vehicle, but he was not sure where it was.
The appellant said that while he had been a passenger in his vehicle on the relevant day, he did not know anything about the firearm under the driver’s seat, or the black leather gloves. He had not previously seen the calico bag, the grey material wrapped around the gun, or the magazines wrapped in yellow cloth. He had not looked under any of the seats in the week prior to his arrest.
The appellant accepted that the knives were his. They had been purchased back in 2012, and the last time he saw them they were in the boot of the car. He did not know how they came to be in the footwell of the car. He did not take his phone and wallet into the Seacombe premises. He accepted that the wallet (with about $400 cash in it) that the police found in the centre console of the car was his. He said that he had the false driver’s licences found in the vehicle because he did not want people to recognise him as Albanian. The photographs of him were for his application for an Albanian passport.
Relevant provisions of the Firearms Act
As the trial judge explained, guilt of the offence of possessing a firearm without a licence under s 11(1) of the Firearms Act required proof of three elements beyond reasonable doubt:
1.   The appellant was in possession of a firearm.
2.   The firearm was a class H firearm.
3.   The appellant did not hold a firearms licence authorising possession of that firearm at the relevant time.
As the trial judge also explained, the second and third elements were not in dispute. The issue at trial was whether the appellant was in possession of the firearm.
The concept of possession is addressed in ss 5(14) and (15) of the Firearms Act:
(14)For the purposes of this Act (other than Part 3 Division 2A), a person has "possession of a firearm" if—
(a)     the person has custody of the firearm or has the firearm in the custody of another; or
(b)     the person has and exercises access to the firearm; or
(c)     the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the firearm is found.
(15)    However, subsection (14)(c) does not apply if the person establishes that—
(a)     he or she did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises, vehicle, vessel or aircraft; or
(b)     the firearm was in the lawful possession of another or he or she believed on reasonable grounds that the firearm was in the lawful possession of another.
The prosecution alleged possession under either s 5(14)(a) by reason of the firearm being in the appellant’s custody, or s 5(14)(c) by reason of the appellant being in charge of the vehicle in which the firearm was found.
As to s 5(14)(a), it was accepted that having custody required proof that the appellant knew that the firearm was in the vehicle.
On the other hand, satisfaction of s 5(14)(c) did not require proof of knowledge of the firearm. That subsection operated to give rise to a presumption of possession upon proof (beyond reasonable doubt) by the prosecution that the person was in charge of the vehicle in which the firearm was found. That presumption, however, was rebuttable by proof (on the balance of probabilities) by the defendant of the matters in ss 5(15)(a) or (b).
The Firearms Act also provides a general defence under s 36A in the following terms:
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
While this defence was mentioned in the prosecution opening, it was not subsequently addressed at trial. Nor do any of the grounds of appeal seek to engage this defence.
The trial judge’s reasons
After setting out the legislative articulation of “possession of a firearm” in ss 5(14) and (15), the trial judge commenced her analysis by observing:[3]
[11]Evidence proving Mr Gjergji was the owner of the vehicle allows for the application of the presumption and he is presumed to be in possession of the firearm unless the presumption is displaced. To rebut the presumption of possession of the firearm, Mr Gjergji must prove on the balance of probabilities one of the defences provided for by s 5(15) of the Act.
[3] R v Gjergji [2015] SADC 171 at [11].
The trial judge then summarised the evidence from the various police officers (the investigating officer, the crime scene investigator, the exhibits officer, the officer who searched the vehicle) and a forensic scientist. Their evidence focused upon their observations at the Seacombe premises, and the items found in the vehicle. The trial judge also summarised the appellant’s evidence.
In commencing her analysis of this evidence, the trial judge said that she found each of the prosecution witnesses to be credible and reliable. However, her Honour did identify several deficiencies in the search of the vehicle, and the way in which the exhibits were recorded and stored. Her Honour noted that the prosecution had quite properly conceded that there was a possibility of cross contamination or transfer of DNA such that reliance could not be placed on the presence of the appellant’s DNA on the gloves and firearm as directly linking him to those items.
However, none of these deficiencies prevented her Honour making a finding that the firearm was in the vehicle, under the driver’s seat. After making this finding the trial judge added that the prosecution “have proved possession beyond reasonable doubt as I am satisfied that the gun was found in the accused’s car.”[4]
[4] R v Gjergji [2015] SADC 171 at [93].
The trial judge then listed various matters which she found to have been established beyond reasonable doubt. The first of these was that the appellant was the owner of the vehicle. The balance of the findings related to the location of various items within the vehicle, and the second and third elements of the offence.
The trial judge then reasoned:[5]
[96]Having made those findings, it follows that the second and third of the elements that go to make up the offence have been proven by the prosecution beyond reasonable doubt and the prosecution are entitled to the benefit of the presumption provided by s 5(14)(c) of the Act.
[97]Accordingly Mr Gjergji will be found to have been in possession of the firearm and guilty of the offence unless he establishes on the balance of probabilities that he did not know the firearm was in the vehicle and that he could not reasonably have been expected to have known that the firearm was in the vehicle.
[5] R v Gjergji [2015] SADC 171 at [96]-[97].
These paragraphs were followed by a section of the trial judge’s reasons under the heading “Did Mr Gjergji know the firearm was in the vehicle?” In undertaking an analysis of the appellant’s evidence, the trial judge said that his evidence was “unconvincing and in many respects, implausible.” Her Honour expressed various doubts about the appellant’s evidence in relation to Mr Lukaj. She said, for example, that it would be expected that through their social interactions the appellant would have learnt some of his personal details. Her Honour also considered it difficult to understand his evidence as to Mr Lukaj’s absence for some fifteen minutes prior to the police arriving.
The trial judge described the appellant’s evidence denying any knowledge of how the knives came to be in the footwells of the car as “fanciful”, and “designed to distance himself from knowledge of the firearm.” Her Honour noted that on the appellant’s version of events, he had been a passenger in the vehicle, and so would have had his feet resting on top of the mat in the passenger footwell under which one of the knives was found.
The trial judge addressed the defence submission in relation to the inability of the police to identify precisely where the key to the vehicle was found, and the fact that the vehicle was left unlocked in the driveway of the Seacombe premises. The defence submission was that it was unlikely that the appellant would have left the vehicle unlocked, and apparently with the key in it, if he was aware of the firearm and that the knives had been secreted under the floor mat. It was submitted that Mr Lukaj, on the other hand, had afforded himself protection by using a vehicle that did not belong to him, and so would not have been concerned to secure the vehicle or the keep the key with him. The trial judge did not accept this submission. Her Honour said that in her assessment “it is more likely to be the case that Mr Gjergji was apparently unconcerned about leaving his vehicle unlocked, with the key inside, given he had parked it at the end of the driveway and had left both his phone and wallet in the vehicle.”
The trial judge concluded her reasons in the following terms:[6]
[108]For all of these reasons I reject the evidence of Mr Gjergji and find his explanation was not sufficient to rebut the presumption of being in possession of the firearm. I am satisfied on balance that he knew of the presence of the firearm in the footwell of the vehicle. In view of those findings, it is not necessary for me to consider whether Mr Gjergji could not have been reasonably expected to have known of the firearm pursuant to s 5(15)(b) and I find him guilty.
[6] R v Gjergji [2015] SADC 171 at [108].
The appeal
As mentioned, 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.
While the prosecution alleged possession under both ss 5(14)(a) and (c), the trial judge did not address, and did not make findings sufficient to sustain a conclusion of, possession by reason of the appellant having “custody” of the firearm under s 5(14)(a). Rather, the trial judge approached the matter solely by reference to s 5(14)(c), and hence presumptive possession by reason of the appellant being “in charge of” the vehicle in which the firearm was located. Her Honour found beyond reasonable doubt that the appellant was in charge of the vehicle, with the result that the s 5(14)(c) presumption of possession was triggered. Her Honour also found that the appellant failed to rebut that presumption under s 5(15)(a) by establishing on the balance of probabilities that he did not know, and could not reasonably be expected to have known, that the firearm was in the vehicle.
In his grounds of appeal, as distilled by me, the appellant alleges that the trial judge erred:
1. in holding that proof of ownership was sufficient to establish that the appellant was in charge of the vehicle and hence to trigger the presumption of possession under s 5(14)(c);
2. in failing to provide adequate reasons for her conclusion that the presumption of possession was triggered; and
3. in failing to consider, or reject as a reasonable possibility, the appellant’s evidence relevant to the issue whether he was in charge of the vehicle.
Before addressing these grounds of appeal more directly, it is convenient to consider the meaning of being “in charge of” a vehicle for the purposes of s 5(14)(c) both generally and in the context of the evidence in this case.
The meaning of “in charge of” a vehicle for the purposes of s 5(14)(c) of the Firearms Act
As Kourakis CJ (with whom Vanstone and Stanley JJ agreed) observed in R v Marafioti,[7] there is good reason to adopt a broad reading of the concept of being “in charge of” a vehicle in s 5(14)(c) of the Firearms Act:[8]
I return to the extended definition of possession. I start by observing that s 5(14)(a) of the Act is, broadly, the equivalent of the common law concept of possession, but includes within it, possession by an agent. Subparagraph (b) extends the common law concept of possession by removing the requirement of exclusivity and providing that access to a firearm may constitute possession of the firearm. Section 5(14)(c) of the Act must be construed in the context of the preceding subparagraphs which manifest an intention to extend the concept of common law possession. That suggests a broad reading of the term “in charge of”.
A purposive approach to the construction of s 5(14)(c) of the Act also provides strong support for a wide construction of that term. The danger to the community posed by the unregulated possession of firearms is notorious. There is a strong public consensus in Australia that favours close regulation of the possession of firearms.
[7] R v Marafioti (2014) 118 SASR 511.
[8] R v Marafioti (2014) 118 SASR 511 at [23]-[24].
In addition to the textual context and apparent purpose of the provision, it is significant that the effect of establishing that the appellant is “in charge of” a vehicle is not to impose criminal responsibility without more. It merely triggers a rebuttable presumption of possession. It thus effects a reversal of the onus, rather than conclusively establishing the element of possession.
Turning to the content of the concept of being “in charge of” a vehicle, in R v Marafioti the police pulled over a hire car which the defendant was driving. After speaking to the defendant and his passenger, they searched the vehicle and discovered a loaded firearm in the driver’s side footwell. In holding that the defendant was in charge of the vehicle in that case, Kourakis CJ said:[9]
It can be seen that s 5(14)(c) of the Act in effect creates rebuttable presumption of possession of a firearm by a person who exercises a degree of control over the premises or vehicle in which it is found. With respect to both premises and vehicles, forms of control or relationship less than ownership are sufficient. With respect to premises it is important to observe that “care or management” of the premises, which will generally be something significantly less than control of the premises, is sufficient to found the inference.
The most natural and obvious way in which a person may be in charge of a vehicle, vessel or aircraft is to be the driver, captain or pilot respectively. True it is that the legislature could easily have chosen to use the word “driver” if it intended the presumption of possession to apply to all drivers. However, if the section had been so drawn it would have been necessary, in order to achieve the Act’s manifest purpose, to add further words to capture the person who has just alighted from, or is about to step into a vehicle, vessel or aircraft for the purposes of driving it. Further text would also have been necessary to apply the presumption to persons who have left a vehicle, vessel or aircraft in a car park, dock or hangar. The failure to use the word driver is therefore not an indication that some additional degree of control, over and above being a driver, is required.
I acknowledge that the precise scope of the phrase “in charge of” in its application to persons other than drivers may throw up difficult questions. The extent to which a person, who has legal or de facto authority to dictate how the driver must manage the vehicle, is also a person “in charge of” the vehicle will be a matter of fact and degree. So, too, difficult questions might arise as to whether a driver who is acting under some form of compulsion approaching duress is a person in charge.
I also observe that it is not obvious to me that there need be only one person “in charge of” a vehicle.
Be all that as it may, in the generality of cases, persons voluntarily driving a vehicle have cast on them a practical responsibility to take steps to ascertain whether the vehicle they drive carries a firearm.
As I have already observed, the natural meaning of the term “in charge of” includes the driver of a motor vehicle.
In the ordinary course, a person who voluntarily drives a vehicle will know or be in a position to ascertain whether or not it carries a firearm. It is consistent with the community protection objects of the Act to construe the term “in charge of” to include a voluntary driver. There is therefore no reason to give the term a restrictive construction.
On the evidence in this case the appellant was undoubtedly in charge of the vehicle. It follows that his conviction must stand.
[9] R v Marafioti (2014) 118 SASR 511 at [25]-[32].

It seems to me that the concept of being “in charge of” a vehicle so as to trigger the presumption of possession requires a degree of practical control over the vehicle that is suggestive of some knowledge of, or connection with, items located in the vehicle. This is consistent with the nature of the presumption (ie a presumption of possession of a firearm located in the vehicle, rebuttable by proof of a lack of knowledge), and the approach taken to possession in the same subsection in respect of premises (ie possession by reason of occupancy, care, control or management of the premises).
As is implicit in the first paragraph from the extract of Kourakis CJ’s reasons in R v Marafioti above, ownership of a vehicle will often be sufficient to establish that a person is in charge of a vehicle. The rights associated with ownership will generally suffice to establish the requisite degree of control. However, given the focus upon a degree of practical control, rather than merely formal or legal control, there will be circumstances in which ownership will not be sufficient. For example, where an owner of a vehicle has lent it to someone for an extended period of time, and has relinquished any day to day knowledge of its use, or involvement in its use, ownership will unlikely be sufficient to establish that the person is in charge of the vehicle. While retaining formal rights of ownership, and hence formal control over the vehicle, the nature of the loan of the vehicle will likely involve relinquishing the degree of practical control that in my view is inherent in the notion of being in charge of the vehicle for the purposes of s 5(14)(c) of the Firearms Act.
In this case, the appellant relied upon his evidence as to the loan of the car to Mr Lukaj, and as to his lack of knowledge of the whereabouts of the keys to the vehicle. In my view, even accepting as true (or as a reasonable possibility) the appellant’s version of events in relation to these matters, they were not sufficient to resist a finding beyond reasonable doubt that the appellant was in charge of his vehicle. This was not a case of mere ownership without the requisite degree of practical control. Even assuming the appellant had lent his vehicle to Mr Lukaj over the weekend, it was not a long standing arrangement, as exemplified by the appellant having left some of his personal documentation and other possessions in the vehicle. More significantly, on the morning in question, the appellant was present and in a position to exercise a degree of control over the vehicle.
I do not think it matters whether or not the loan of the vehicle was intended to continue beyond the morning in question. Nor do I think it matters whether Mr Lukaj was driving, and chose the route and destination of their travel that morning. The first reason for this is that the appellant was not an unwilling passenger, and was aware of where they were headed. The second reason is that the concept of being in charge of a vehicle is not always an exclusive one. More than one person may be in charge of a vehicle at a particular point in time.[10] The fact that Mr Lukaj also exercised some control over the vehicle, and may also have been in charge of it during that morning, does not prevent a finding that the appellant was in charge of the vehicle.
[10] R v Marafioti (2014) 118 SASR 511 at [28].
Related to this last observation, I also do not think it matters that Mr Lukaj may have had the physical ability to defy or override the appellant’s control over the vehicle on the morning in question. It was sufficient in my view that the appellant was in a position to assert practical control over the vehicle. It is for this reason that I do not consider that the appellant’s evidence as to his lack of knowledge as to the whereabouts of the key (or indeed of Mr Lukaj after he went to check the letterbox), or the evidence to the effect the vehicle was unlocked, was of much significance. While possession of the key was required to drive the vehicle, the appellant’s ownership and presence were sufficient to ensure that he remained in charge of the vehicle while at the Seacombe premises. If Mr Lukaj had retained possession of the key (or had left it in the vehicle or some other location without informing the appellant), this might have resulted in an impediment to the appellant driving the vehicle, or have left the appellant vulnerable to having his control overridden by Mr Lukaj. However, I do not think it was sufficient to avoid the conclusion that the appellant was in charge of the vehicle while it was at the Seacombe premises.
Finally, I also do not think it matters that the appellant was not in the vehicle when the police arrived. A person may be in charge of a vehicle without being in it, or even in the immediate vicinity of it. In any event, even on the appellant’s evidence, he was in the vehicle earlier that morning and hence at a time when the firearm was in the vehicle.
In summary, I consider that the only conclusion reasonably open on the evidence (even accepting as true, or as a reasonable possibility, the appellant’s version of events in relation to the loan arrangement and keys) was that the appellant was beyond reasonable doubt in charge of the vehicle at the relevant time.
It follows from this conclusion that the s 5(14)(c) presumption of possession was triggered. Given her Honour’s rejection of the appellant’s evidence as to his lack of knowledge of the presence of the firearm in the vehicle, it also follows that the presumption of possession was not rebutted. As there was no other issue in dispute, a finding of guilt was inevitable.
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].
As to the content of the obligation to give reasons, what is adequate will depend upon the circumstances of a particular case.[16] The reasons need not be elaborate or extensive. However, as a general guide, it will usually be necessary to state the grounds that have led the court to prefer one conclusion to another in respect of disputed issues.
[16] R v Keyte (2000) 78 SASR 68 at [57]; Papps v Police (2000) 77 SASR 210 at [34].
Significantly, the content of the obligation to give reasons, and hence the adequacy of the reasons given, will fall to be considered by reference to the way in which the trial has been conducted, and by reference to the issues as identified by the parties. This is consistent with the rationale for the requirement to give reasons. The parties are entitled to know why they won or lost by reference to the issues they chose to put in dispute. The appellate process requires reasons in relation to the issues in dispute between the parties.
There are limits to the relevance of the way in which the trial has been conducted, and the parties’ identification of the issues. There may be some issues that arise on the evidence, and are so fundamental, that they require some mention or analysis by the trial judge even though not expressly adverted to by counsel. The point I make is merely that the content of the general obligation to give reasons must be considered in the context of the particular case, including by reference to the way in which the parties have conducted the matter and the issues they have chosen to put in issue.
Here, there is no doubt the trial judge addressed and expressed her conclusion in relation to the element of possession, and in particular the issue whether the appellant was in charge of the vehicle. The complaint in this case is thus not that her Honour failed to consider, or reach a conclusion, whether the appellant was in charge of the vehicle so as to trigger the presumption of possession under s 5(14)(c) of the Firearms Act. Rather, the complaint is as to the extent of her Honour’s reasons for this conclusion. In particular, the complaint is that her Honour failed to set out reasons explaining why ownership in the context of this case was sufficient to sustain that conclusion, and why the appellant’s evidence as to the loan arrangement and whereabouts of the keys to the vehicle did not operate to prevent a finding that the appellant was in charge of the vehicle.
In assessing this asserted inadequacy in the trial judge’s reason, it is significant in my view that the trial of these proceedings was conducted on the basis that the issue in dispute was whether the appellant knew that the firearm was in the vehicle. On the way the prosecution pitched its case, proof beyond reasonable doubt of such knowledge was a precondition to establishing possession by reason of custody of the firearm under s 5(14)(a) of the Firearms Act. Knowledge was also relevant to the defendant proving on the balance of probabilities the matters in s 5(15)(a) so as to overcome the presumption of possession under s 5(14)(c). Importantly, not only was the case conducted on the basis that knowledge was the real issue in the case, but also defence counsel never positively disputed, or otherwise expressly put in issue, that the appellant was in charge of his vehicle such that the presumption of possession in s 5(14)(c) was triggered.
In the prosecution opening, counsel contended both that the appellant had custody of the firearm under s 5(14)(a) and that, by reason of his ownership of the vehicle, he was in charge of it under s 5(14)(c). In her very brief opening, defence counsel said merely:
The issue in this trial will be that the accused says he knew nothing about the firearm or the magazines, so that the issue is very confined indeed.
By the time of closing addresses, while still maintaining a case of possession based upon custody of the firearm under s 5(14)(a), the prosecutor focused his address on the presumption of possession by reason of the appellant being in charge of the vehicle in which the firearm was located under s 5(14)(c). However, in the context of that second limb of the prosecution case, the prosecutor put the case in terms of what the defence needed to establish under s 5(15)(a) in order to rebut the presumption. The prosecution case was that the appellant’s evidence on this issue (ie as to his knowledge of the firearm’s location in the vehicle), and indeed more generally, should be rejected as implausible. The prosecutor did refer the trial judge to the passages in the reasons of Kourakis CJ in R v Marafioti relating to the construction of the words “in charge of” in s 5(14)(c), but did not suggest that there was any dispute in the present case that the presumption had been triggered.
More importantly, the defence closing proceeded on a very similar basis. After referring to the offence requiring proof of three elements, counsel for the defendant accepted that it was the first element (possession) that was in issue in the trial. Further, in respect of that issue, defence counsel commenced by adopting what the prosecutor had said about the construction of ss 5(14)(c) and 5(15)(a) of the Firearms Act, and “accept[ed] that it is the accused who must satisfy you, on balance, that he didn’t know or could not reasonably have been expected to know of the existence of the firearm.”
The balance of defence counsel’s address was taken up by an analysis of the evidence in the case in an attempt to meet the prosecution case as to the appellant’s knowledge of the firearm, and the contended implausibility of his evidence on this issue and more generally. In this context, defence counsel put various submissions in support of a finding that Mr Lukaj was not only present at the Seacombe premises but had also borrowed and driven the vehicle, and had not given the key to the appellant upon their arrival at the Seacombe premises. However, there was no suggestion by defence counsel that the appellant was not in charge of his vehicle so as to trigger the presumption of possession. The address was directed to the rebuttal of this presumption.
In my view, in circumstances where defence counsel did not ever suggest that there was any dispute that the appellant was in charge of the vehicle, the trial judge was not required to do more than make reference to her Honour’s conclusion that ownership (in the context of this case) was sufficient to establish presumptive possession under s 5(14)(c). I do not accept that the trial judge was required to explain why the evidence as to the loan arrangement and key did not affect or undermine this conclusion in circumstances where it was never suggested to her Honour that his evidence might have that effect.
For similar reasons, I do not think it was necessary for the trial judge to address whether, despite his evidence as to knowledge of the firearm being rejected, there was nevertheless a reasonable possibility that his evidence as to the loan arrangement and key was reliable. As there was no suggestion by defence counsel that this aspect of the appellant’s evidence was relevant to whether he was in charge of the vehicle, I do not accept that her Honour’s reasons were inadequate on account of a failure to address this possibility.
I should add that in observing that defence counsel did not suggest that there was any dispute that the appellant was in charge of the vehicle, I do not intend any criticism of defence counsel. To the contrary, on my analysis of the evidence set out above, it was clear that the appellant was in charge of the vehicle and that nothing was to be gained by putting this matter in dispute.
Related to this is a further observation that the outcome of this appeal might have been different had the evidence given rise to a reasonable possibility that the appellant was not in charge of the vehicle. If that was so, then there may well have been a miscarriage of justice regardless of whether defence counsel put the matter in issue, and regardless of any inadequacy in the trial judge’s reasons. But for the reason I have set out earlier, I do not consider that there was any reasonable doubt that the appellant was in charge of the vehicle. In my view, even accepting as true his evidence in relation to the loan arrangement and key, it was proven beyond reasonable doubt that he was in charge of the vehicle.
The proviso
For completeness, I state my view that even if the trial judge’s reasons were inadequate, with that inadequacy involving an error of law, this is an appropriate case in which to invoke the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA).
I am conscious of the need to exercise caution when invoking the proviso in the context of error arising from the inadequacy of a trial judge’s reasons. AK v Western Australia[17] is a reminder of this.
[17] AK v Western Australia (2008) 232 CLR 438 at [58]-[59].
However, there are three considerations of significance in this case. The first is that if (contrary to my view) the trial judge’s reasons were inadequate, the inadequacy related to a failure to address a particular aspect of the issue arising under s 5(14)(c), and not a failure to address, or express any conclusion about, the issue at all. The second is that the aspect of the issue not addressed was not a matter ever said to be an issue between the parties at trial. The third is my conclusion that, even accepting the appellant’s evidence as to the loan arrangement and key, I consider a finding that the appellant was in charge of the vehicle was inevitable or inescapable.
By reason of these three considerations, this was not a case where any inadequacy in the trial judge’s reasons was so fundamental as to warrant a conclusion that there was a departure from the requirements of a fair trial (regardless of the strength of the prosecution case), or that this Court’s ability to determine whether the conviction was just has been frustrated.[18] By way of contrast, in AK v Western Australia the inadequacy in the trial judge’s reasons was in relation to the complainant’s evidence on the very issue that had been put in dispute in the case.[19]
[18] AK v Western Australia (2008) 232 CLR 438 at [23], [54], [58]-[59], [87], [110]; Filippou v The Queen (2015) 256 CLR 47 at [15].
[19] AK v Western Australia (2008) 232 CLR 438 at [46], [58].
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.