R v Gjergji - [2015] SADC 171

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GJERGJI
Criminal Trial by Judge Alone
[2015] SADC 171
Reasons for the Verdict of Her Honour Judge Tracey
17 December 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
Firearm located in vehicle owned by the accused. Consideration of the operation of s 5(14) and (15) of the Firearms Act and the rebuttal presumption - elements of offence proved beyond reasonable doubt - accused failed to discharge onus.
Verdict: Guilty.
Firearms Act 1977 (SA) s 5(14) & (15), s 11, s 36A, referred to.
R v Fuller & Zazzaro [2012] SASCFC 101, discussed.

R v GJERGJI
[2015] SADC 171
Introduction

The accused Edmond Gjergji is charged with possessing a firearm without a licence in breach of s 11(1) of the Firearms Act 1977 (SA) (‘the Act’). It is alleged that on 13 February 2012 Mr Gjergji 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.
At about 9.40 am on 13 February 2012, police attended premises at 4 Mulga Street, Seacombe Gardens (‘the premises’). Police found Mr Gjergji alone inside the premises and a large number of cannabis plants under cultivation.[1]
[1] On 8 November 2012, Mr Gjergji pleaded guilty to cultivating more than the prescribed number of cannabis plants in the Magistrates Court and was fined the sum of $700.
Police searched a Toyota sedan (‘the vehicle’) parked at the end of the driveway of the premises. It was not disputed that Mr Gjergji was the registered owner of the vehicle. Detective Brevet Sergeant Zetter found a calico bag under the driver’s seat. That bag 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 eight and six cartridges respectively. Analysis revealed Mr Gjergji was a contributor to the DNA found on the gloves and the firearm. Mr Gjergji’s mobile phone, various documents in his name and a wallet containing cards and cash were located inside the vehicle. Located under the foot well floor mats were three knives which Mr Gjergji accepted belonged to him. His thumb print was identified on the blade of one of the knives. Police located a small Rottweiler puppy at the premises, but there was nothing found to indicate that anyone had been living there.
Mr Gjergji pleaded not guilty and gave evidence that he knew nothing about the firearm or the magazines. He elected to be tried by a judge sitting without a jury.
Prosecution Case
To be found guilty of the offence, the Prosecution must prove three elements beyond reasonable doubt:
1that Mr Gjergji was in possession of the firearm;
2that the firearm was a class H firearm; and
3that Mr Gjergji did not hold a firearms licence authorising possession of that firearm at the relevant time.
The classification of the firearm as a class H firearm as defined by the Act, was not in dispute, nor was the fact that Mr Gjergji was not, at the relevant time, the holder of a firearms licence.
Possession
The Act defines ‘possession of a firearm’ as follows:
(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.
Accordingly, in this case, Mr Gjergji was in possession of the firearm if he had custody of the firearm or if he was in charge of a vehicle where the firearm was found.
The presumption provided by s 5(14)(c) may be rebutted pursuant to s 5(15) if Mr Gjergji is able to establish:
(a)he did not know, and could not reasonably be expected to have known, that the firearm was in the vehicle; or
(b)the firearm was in the lawful possession of another or he believed on reasonable grounds that the firearm was in the lawful possession of another.
Furthermore, pursuant to s 36A, the Act provides a general defence, which although raised in the Prosecution opening, was not referred to in the course of the trial. Section 36A provides as follows:
36A—General defence
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
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.[2]
[2] R v Fuller & Zazzaro [2012] SASCFC 101 at [50].
The Prosecution called evidence from the investigating officer Constable Napper, crime scene examiner Brevet Sergeant Judy Stanley, exhibits officer Senior Constable Klemm, the police officer who conducted the search of the vehicle Brevet Sergeant Zetter, and forensic scientist Dr Oliva Handt.
Brevet Sergeant Judy Stanley
Brevet Sergeant Stanley was a crime scene examiner in 2012 and attended at the premises on 13 February 2012 in that role. At the direction of the investigating officer Constable Napper, she took a series of 45 photographs. The photographs form Exhibit P1. The photographs show both the exterior and interior of the vehicle. Once she had photographed the interior, Constable Napper removed the calico bag from the vehicle and photographed items removed from the bag.[3] She then photographed the firearm, which had been unwrapped in her presence and separated from the attached magazine.[4] The two magazines that had been wrapped in a yellow cloth were also photographed.[5]
[3]    Photograph 13 of Exhibit P1.
[4]    Photograph 14 of Exhibit P1.
[5]    Photograph 16 of Exhibit P1.
On 14 February she was asked to take a further 16 photographs, which form Exhibit P2. She took swabs from the firearm and magazine for DNA and examined the knives for fingerprints.
In cross examination, Brevet Sergeant Stanley said that by the time she had arrived at the premises, the accused was no longer there. She was not aware whether items in the vehicle had been moved around prior to her taking photographs. She agreed that it appeared from the photographs that the firearm, the black cloth that it had been wrapped in, and the calico bag had all been in contact with each other in the manila envelope in which they had been stored and given one exhibit number.
She agreed that the photograph of the contents of the manila envelope marked ‘2’ showed only the yellow cloth and one magazine. She did not know what happened to the gloves or the second magazine. She agreed there was no separate identification number for the grey cloth or the calico bag.
Senior Constable Nina Klemm
Senior Constable Klemm attended at the premises and was given the role of exhibits officer. Police officers conducting the search presented items to her and she gave the item an exhibit number or a ‘marked for identification’ number, before transporting the items back to the police station where they were officially lodged into the police property management system (‘PPMS’).
On 13 February 2012 she had recorded items seized onto a paper exhibit log but was unable to say where that paper log now was. When presented with an item she had marked that particular exhibit by either putting it into a marked envelope or marking the item with an identification sticker. She made a note of where the item had been found using for example, the letters ‘BT’ for items found in the vehicle and the identity of the officer who handed her the item, indicated by their initials. She said the officer would later confirm the exhibit and sign the exhibit log once the item had been logged into the PPMS, but could not recall specifically if that was what happened in this case.
She said that when booking exhibits into the PPMS, she would have referred to the paper log and the numbers that had been assigned to each item. A property receipt log which listed all the items that had been logged into the PPMS in relation to this investigation was tendered.[6] She believed that at the time she prepared her declaration dated 2 April 2012, she had her paper exhibit log with her and had checked that she had accurately reflected what she had recorded on the log prepared at the premises. With reference to the log, she said she had recorded that Brevet Sergeant Zetter had located the firearm under the driver’s seat of the vehicle.
[6] Exhibit P3.
In cross examination Senior Constable Klemm said that prior to taking up her position at the premises as exhibits officer, she stood by as Brevet Sergeant Zetter searched the vehicle. She could not recall what was searched or where items were located and although she thought she would have, could not actually recall if she had the paper exhibit log with her when she prepared her declaration.
Senior Constable Klemm agreed that in her declaration she had referred to ‘item 1’ of the property seized as the ‘.45 calibre firearm loaded with magazine Exhibit number BT1’. She agreed that accordingly, the manila envelope marked ‘1’ should contain the firearm with the magazine attached. ‘Item 2’ was described as ‘magazine from BT1 loaded with 8 rounds’. She said they would have been marked and packaged separately for safety reasons. ‘Item 3’ and ‘item 4’ were the two other magazines packaged separately.
Senior Constable Klemm said that she packaged the exhibits so as to keep them safe to be sure all exhibits could be accounted for and accepted somewhat reluctantly that one of the reasons for packaging items separately was to keep them safe from cross-contamination because they are to be sent for DNA and fingerprint testing.
Senior Constable Klemm described photograph 2 of Exhibit P2 as showing the calico bag, the firearm and the black cloth that had wrapped the firearm, on top of a manila envelope numbered ‘1’. She said the photograph also showed an envelope numbered ‘2’ with a magazine she described as the magazine found in the firearm.
Detective Brevet Sergeant Craig Zetter
Detective Brevet Sergeant Zetter attended at the premises with other officers at about 9:40 am on 13 February 2012. Police knocked on the door and he saw Mr Gjergji behind a locked screen door. Mr Gjergji unlocked the door and came out. Detective Brevet Sergeant Zetter showed the accused his general search warrant and then went into the house. He saw three rooms set up to grow cannabis hydroponically. It appeared no one was living in the house and that at the time Mr Gjergji had been there alone.
Detective Brevet Sergeant Zetter searched the vehicle, which he said was not locked. He searched the centre console where he located an Italian driver’s licence that was not in Mr Gjergji’s name but showed Mr Gjergji’s photo. He also found a wallet containing Mr Gjergji’s South Australian driver’s licence, Medicare card and another Italian driver’s licence in a different name but with Mr Gjergji’s photograph. He gave a cursory look to a number of other documents in the vehicle. He left those documents in the vehicle and gave the wallet to Constable Napper. He said he located a mobile phone in the centre console.
Detective Brevet Sergeant Zetter said when he pushed back the driver’s seat he found a calico bag. Inside the bag he saw an item in the shape of a handgun wrapped in cloth and secured with rubber bands, gloves and other items wrapped in yellow material. He told his colleagues that he thought he had found a firearm before shutting the bag and returning it to the foot well. He said he could not recall moving the seat forward to its original position.
Crime scene officers arrived shortly after he had alerted other police of the possible presence of a firearm. Crime scene investigator Brevet Sergeant Judy Stanley took photographs of the exterior and interior of the vehicle. The contents of the calico bag were removed and unwrapped by the exhibits officer Senior Constable Klemm, and then photographed.
After photographs had been taken he organised for a tow truck to tow the vehicle.
He said that while at the premises he was handed a set of keys by Constable Napper. He said these keys opened the front, rear and rear screen doors to the premises. He also received the key to the vehicle, but was unable to recall who it was who gave it to him.
In cross examination, Detective Brevet Sergeant Zetter said he was unsure when it was that he received the key to the vehicle, or where he was at the time. In particular he was unsure whether he received the key before or after searching the vehicle. He said that the video recording of Mr Gjergji’s arrest[7] did not assist with his recollection.
[7] Exhibit P11.
He said photograph 6 of Exhibit P1 showed how the interior of the vehicle would have looked after it had been searched in that he had moved items and not returned them to their original place. Certainly by the time that photograph 11 had been taken, assuming the photographs were taken in chronological order, things would have been moved. He denied unwrapping the items in the calico bag and looking at them before re-wrapping them and returning them to the calico bag. He also denied that the firearm was lying unwrapped on the ground before Detective Brevet Sergeant Stanley arrived.
He thought that when the firearm was unwrapped, Senior Constable Klemm and Detective Brevet Sergeant Stanley were with him. As he remembered handing an item to Senior Constable Klemm, he thought it was she who put the firearm onto the police vehicle for photographing and that the firearm was left with Senior Constable Klemm as the exhibits officer once the photographs were taken.
He could not remember if Mr Gjergji had been taken away in the police car by the time Detective Brevet Sergeant Stanley arrived, nor could he remember when he gave the wallet to Constable Napper or in what circumstances. He agreed that if Constable Napper went with the accused back to the Sturt police station then he must have given the wallet to Constable Napper prior to the accused and Constable Napper leaving.
He agreed that to see the calico bag in the vehicle, the driver’s seat had to be moved back and that he would have had a look inside the calico bag prior to photograph 6 of Exhibit P1 being taken.
Constable Jake Michael Napper
Constable Napper was the investigating officer. He attended at the premises on 13 February 2012 and arrested Mr Gjergji.
He said he had attended the premises with a Constable Adam Brown on 10 February 2012, and made observations of the outside of the premises. He did not see any vehicles or people around the premises on that occasion.
When he arrived on 13 February 2012, Constable Napper went to the rear of the premises when he heard Constable Brown call out that there was someone inside. Mr Gjergji opened the wooden door first and then unlocked the screen door with a set of keys. After Mr Gjergji came outside Constable Napper took the keys shown in photograph 44 of Exhibit P1 from Mr Gjergji. Once he had arrested Mr Gjergji he handed the keys to Constable Brown while he spoke with Mr Gjergji. They were then given back to him and he in turn handed them to Brevet Sergeant Zetter when he left the premises.
From the video footage seen on Exhibit P11, Constable Napper said he recognised it was him handing the house keys to Constable Brown. He said he was not provided with another set of keys after he arrived at the premises. He noted that police arrived at the premises at 9:40 am and Mr Gjergji’s arrest occurred at 9:47 am and he was conveyed to the Sturt Police Station at 10:35 am.
Either Constable Brown or Brevet Sergeant Zetter told him a firearm had been found. He said he had searched Mr Gjergji when they were standing in the backyard, just back from the pergola area where they stayed the majority of the time until they left in the cage car. He found nothing of interest in his search of Mr Gjergji.
At some stage he was aware that there was a second set of keys that may have been compatible with the vehicle. He said he may have asked Mr Gjergji where the vehicle keys were and that Mr Gjergji had said he was not aware of where they were but that they were possibly in the vehicle.
After Mr Gjergji was arrested and conveyed to the Sturt Police Station, Constable Napper undertook further enquiries in relation to the vehicle, which revealed that the vehicle was registered to Mr Gjergji.
Constable Napper said that the day after Mr Gjergji’s arrest he searched the vehicle. He located four small photographs of Mr Gjergji in the glove box, together with a driver’s licence located on the front passenger seat of the vehicle in the name of Antonio Di Russo.[8]
[8] Exhibit P14.
On searching the boot of the vehicle, he found paperwork made up of various membership applications and notices. He seized all of those documents and booked them into the PPMS individually. These documents included a membership to Jetts Fitness Centre, a registration certificate related to the vehicle, an application for a passport in Mr Gjergji’s name and a motor vehicle defect notice. Inside the wallet, he found documents relating to dog registration.
During the search of the vehicle he also located three knives. The first knife, with a 15 cm blade, was located under the mat in the driver’s foot well. The second knife was located under the front passenger mat. The third knife, also located under the driver’s mat, was a larger curved knife about 25 cm long. The knives were not wrapped and were taken to the crime scene office where Detective Brevet Sergeant Stanley took photographs and examined the knives for fingerprints.
In cross examination, Constable Napper said that between 13 February and 24 December the calico bag was in a box with other exhibits including the firearm. He agreed that looking at the photographs in Exhibit P2, it would appear that the calico bag, the firearm and the grey piece of cloth all came from the same manila envelope. From looking at Exhibit P3, he agreed the calico bag was not separately received, documented or treated until he took steps to do so on 24 December 2012, when he took it out of the PPMS to deliver it to the Forensic Science Centre and have it separately identified and packaged.
He agreed that the grey material was with the firearm until he separated it out and that the calico bag did not get a separate identification number from the firearm until 24 December 2012.
Constable Napper said he did not direct Constable Brown to film the search of the vehicle as that was not common practice.
Dr Oliva Handt
Dr Handt is a forensic scientist who works at Forensics SA. On 5 March 2012, four items were submitted to Forensics SA for DNA analysis.
The item described as ‘Contact DNA swab of firearm’ was submitted for a DNA comparison and a mixed DNA profile of at least four contributors was obtained.
On 24 December 2012 there was a further request for a scientific examination. This request concerned the gloves, the calico bag and piece of grey cloth.
The inner lining of the gloves showed mixed profiles from at least four contributors. Dr Handt explained that a computer program was used to aid in the interpretation of the DNA profile calculating what is described as a ‘likelihood ratio’ in relation to Mr Gjergji. She said that a likelihood ratio is the ratio obtained when two different scenarios are compared, the first being that the DNA was left by a specific person and the second that the DNA was left by a person who coincidentally has exactly the same DNA profile. The DNA profile in relation to the left glove was that it was 4,300 times more likely to have been obtained if Mr Gjergji and three unknown people had left the DNA rather than four unknown people. The number of 4,300 could be said to provide what Dr Handt described as ‘very strong’ support for the scenario that Mr Gjergji and three other unknown people left the DNA.

The profile obtained from the right glove was 77 billion times more likely to have been obtained from Mr Gjergji and three unknown people than four unknown people. This according to Dr Handt provided extremely strong support for the first scenario.
Dr Handt said that the cloth bag was deemed too complex for analysis and that Mr Gjergji was excluded as being a contributor to the mixed DNA profile of the tape lift taken from the grey piece of cloth and rubber band.
The firearm was originally analysed in April 2012. Dr Handt said Forensics SA changed to a different interpretation model and the firearm DNA profile was re-analysed. As a consequence of the second analysis, DNA was found on the swab of the firearm, with four contributors to the mixed DNA profile. The DNA profile obtained was approximately 240 times more likely to have been obtained if Mr Gjergji and three unknown people contributed DNA to this mixed DNA profile, rather than four unknown individuals. This according to Dr Handt provided strong support for the first scenario.
In cross examination, Dr Handt said that when she first tested the swab taken from the firearm, a weak and incomplete mixed DNA profile with at least two contributors was obtained. Mr Gjergji was not excluded but as no calculations could be made, it was of limited evidentiary value. On re-testing, the threshold for analysis was changed, allowing an expansion of the material that could be taken into account.
In respect of the left and right glove with four contributors, it could not be said it was the same four contributors for both the left and right glove, nor could DNA be aged to determine when the DNA had been deposited.
Dr Handt described how DNA could be transferred. She agreed that it was possible to transfer DNA between two items kept in the same envelope. If more than four contributors are found on an item, it is too complex and there is no further analysis. With respect to the calico bag, it was not possible to say either way, whether Mr Gjergji was a contributor. It was not possible to exclude there was a transference from the calico bag to the piece of cloth or from the calico bag to the firearm, if they were all stored together.
Dr Handt said that depending on where the calico bag was kept in the vehicle and how much DNA of the driver was in the vehicle, it was possible that DNA could have gone from the driver to the calico bag to the firearm. A high likelihood ratio could still come from such a secondary transfer. Furthermore, Dr Handt agreed that depending on how much DNA was present, if a driver handled a steering wheel and then put their hands into gloves, the DNA of the driver could be deposited into the gloves.
Edmond Gjergji
Although under no obligation to do so, Mr Gjergji elected to give evidence, subjecting himself to cross-examination. He is entitled to have his evidence assessed, scrutinised and evaluated in the same way as all other witnesses in the case.
Mr Gjergji said he was 26 years old and born in Albania. At age 15 he travelled to Italy, working there for three and a half years, coming to Australia on 7 April 2009. He came to Australia using a false Italian passport to avoid the difficulties associated with Albania’s non-European Union status. As his girlfriend is an Australian citizen, he had been granted a visa allowing him to reside in Australia permanently.
He said that during the time when his visa was being processed, he had been charged with the cultivation offence which was resolved in the Adelaide Magistrates Court by way of a fine.
Since coming to Adelaide he had obtained his own building licence, working on general maintenance.
Through the Pooraka Soccer Club he had met someone called Mark Lukaj. This man also went by the surname of his hometown. They became friends, and would have coffee and talk together.
At that time, Mr Gjergi had expenses associated with his immigration and dental fees. When he told Mark that he had little work, Mark suggested he might have some work for him.
Mr Gjergji said he lent his vehicle to Mark a couple of times as Mark’s car had broken down. The last time he lent his vehicle to Mark was on the Friday night before he was arrested on Monday, 13 February 2012. Mark picked Mr Gjergji up in the vehicle on that Monday morning. Mr Gjergji said he had stayed with a friend that weekend as on the Sunday he had gone out until three in the morning.
He recalled being sleepy when Mark collected him from his friend’s address. Mr Gjergji had his dog with him. Mark was driving and they went to the premises. Mr Gjergji said he had been there before as Mark had offered him some cash to fill containers with water. He said this was the third time that he had been to the premises. He said he had always taken his puppy when he went there. He had not rigged up the dog food bowl but had put the dog food in there the second time he went there. Mark told him he would pay him $500.00 each time he attended the premises. He was paid that for the first two times that he had attended and he was expecting another $500.00 on the Monday.
They arrived at the premises at around 9.00 am. Mark gave him the keys to open the door and they both went inside. Mr Gjergi said he took the puppy out of the car, leaving the puppy in the backyard, and unlocked the back door. Mr Gjergji said he turned on the water for the plants and Mark went out to check the letterbox. Mr Gjergji said he did not see Mark again.
Mr Gjergji agreed with what the police said about him opening the back door and going outside. He said that when he went outside he did not know where Mark was or where he had gone.
Mr Gjergji said that when he had been a passenger in his vehicle, he did not know anything about the firearm under the driver’s seat or the black leather gloves. He said he did not own black leather gloves.
Mr Gjergji said he had no reason to carry a gun and had not seen the calico bag or the grey material wrapped around the gun before. He had not seen the magazines wrapped in the yellow cloth.
A couple of months after his arrest, he saw Mark at the Grand Hotel in Glenelg. Mark asked him not to mention him. Mr Gjergji asked Mark for money to pay his legal costs, but Mark was not happy and ran away. Mr Gjergji understood that Mark had returned to Albania as his brother had passed away.
Mr Gjergji said he had false driver’s licences because he did not want people to recognise him as Albanian. He said the photographs in his vehicle were for his application for an Albanian passport.
To the best of his recollection, his wallet and a white phone were in the centre console of the vehicle. He did not take that phone into the house when he went inside. He gave Constable Napper a friend’s phone that he had taken into the premises to update with iTunes and an Apple ID.
With respect to the knives, Mr Gjergji accepted they belonged to him. His partner purchased the knives after 19 January 2012 as a present. They were shopping and she asked him if he liked them. The last time he saw them they were in the boot of his car. He could not recall seeing them after that. He said he had put them in the boot, did not recall ever moving them and did not know how the knives made it into the foot well of the vehicle.
When he arrived at the premises, Mark did not give him the keys to the vehicle. Mr Gjergji said he had told police that maybe the keys were in the house, or in the vehicle but that he had said he was not sure where they were.
In cross examination, Mr Gjergji said he was watching the water when Mark said he was going to check the letterbox. Mark was gone for about 15 minutes before the police arrived. He did not go looking for Mark because Mr Gjergji did not ask questions.
As far as he could remember there was only one set of keys to the vehicle and none of the other keys shown in the photographs in Exhibit P1 were those keys.
As at 13 February 2012 he had known Mark for about four months and had met him a lot of times but could not recall how many times he had been out with him. He did not know Mark’s address, or whether he had a partner or children.
Mr Gjergji agreed that it was his wallet that was found by police in the centre console of the vehicle. He agreed that at the time there was about $425.00 in the wallet.
Mr Gjergji said he could not remember it being said when he appeared in court in relation to the drug cultivation offending, that the only time he had been to the premises was on 13 February 2012.
He said that on the two occasions he had previously watered the plants, Mark was with him. Mr Gjergji said he could not recall how long the watering had taken on those previous occasions, but agreed it would take more than half an hour but less than two hours. He agreed it was possible for one person to do the watering on their own. He said Mark came with him to show him what to do and to mark the watering cans with the amount of water to use.
Mr Gjergji denied leaving his dog at the premises for days at a time to guard the premises.
He did not know how long he had owned the vehicle for and could not recall how many times he had lent the car to Mark. It may have been five times before. When he had gone to the premises previously, he had not driven. He said he knew no one who had access to firearms and did not know anyone who might put a firearm in his car. He thought it was Mark who probably put the firearm under the seat.
He had a phone number for Mark as at February 2012 but he was always contacted from different numbers. The last number he had for Mark was in his phone but his phones were not given back by police.
He said he did not want to get into a fight with Mark when he saw him and now saw Mark as a dangerous person.
Mr Gjergji said he could not remember where the knives were purchased or how much his girlfriend paid for them. The knives were packaged and his partner gave them to him at the shop. He said he put them in the boot of the car as they had been packaged in the shop and had never taken them out of the packaging. When asked why he had never taken the knives out of the vehicle at any stage, Mr Gjergji said that he may have gotten distracted by the puppy. He agreed that knives were something special to him but even so he did not unpack them. He said that they may have been having a discussion or conversation but he could not remember why he never took them out of the car. He touched the knives when he had a look at them at the shop. He said he could not explain how the knives came to be unwrapped and under the floor mats of his car. He had never shown the knives to anyone. Between the time the knives were purchased and 13 February 2012, he did not notice they were not in the boot as he completely forgot about them. He had not noticed anything under the front mats of the car.
Mr Gjergji said he had not seen the black gloves or the yellow cloth before. He had not touched the cloth, the rubber band or the firearm. He did not look under any of the seats in the week before he was arrested.
He denied that he put the knives under the mats in the front of the vehicle and denied knowing that the bank bag was under the seat. He denied the firearm was his and denied knowing it was in the vehicle.
He did not receive payment from Mark on the day that he was arrested and could not get into contact with him to try to get that payment.
The first time that he had been to the premises was a week before his arrest as he was told by Mark that he had to go once every three days.
Mr Gjergji said his dog was never aggressive and he would not describe him as a guard dog.
Analysis
I say at the outset in regards to the prosecution witnesses, that I found them each to be credible and reliable. Each did their best to give evidence in a straight forward manner, ready to concede when they did not have a recollection of a particular event.
That there was no video recording of the search, the fact Mr Gjergji was not watching the search, that the paper exhibit log was missing, are all matters which in my view, do not undermine the integrity of the prosecution evidence in this case. There is no doubt that certain aspects of the search and in particular the way in which the exhibits were labelled and stored was less than ideal. Senior Constable Klemm did not appear to have a particularly good understanding of the importance of keeping exhibits stored to avoid cross contamination. There would appear to have been some mix up, at some stage, as to the items that were originally placed in the bags marked ‘1’ and ‘2’ as shown on the photograph 2 in Exhibit P2. The magazine shown in that photograph appears to have been placed in bag ‘2’ and described as having been originally located in the firearm and yet it is photographed, and by inference, stored, in the same bag as the yellow cloth which originally was said to have wrapped the two magazines found separately in the calico bag. However none of the deficiencies identified in the way in which the search was conducted or the exhibits recorded or stored caused me to call into question the veracity of the evidence that was given as regards the discovery of the various exhibits in the vehicle. Further, I am satisfied that the firearm was located under the driver’s seat of the vehicle. Whilst the uncertainty about where and how the firearm and ammunition was stored following seizure, coupled with the evidence of Dr Handt regarding transfer DNA, mean there is no evidence which directly and unequivocally links the accused to the gun, the prosecution nonetheless have proved possession beyond reasonable doubt as I am satisfied that the gun was found in the accused’s car.
Quite properly the prosecution conceded there was a possibility of cross contamination when the items were placed in the calico bag together and after the items were removed from the bag and then photographed. The evidence of Dr Handt does not allow for any reliance on the presence of Mr Gjergji’s DNA on the gloves and the firearm, given the calico bag was found in Mr Gjergji’s vehicle and the possibility of transference between items as Dr Handt described.
I set out matters which I have found to have been established on the evidence beyond reasonable doubt:
·Mr Gjergji was the owner of the vehicle as evidenced by the extract from the Register of Motor Vehicles.[9]
·Mr Gjergji did not, as at 13 February 2012 hold a firearms licence as evidenced by a Certificate pursuant to s36 of the Act, dated 26 March 2012.[10]
·The firearm was a class H firearm as defined by the Act, as evidenced by the statement of Brevet Sergeant Michael de Mestre Pickburn.[11]
·Brevet Sergeant Zetter located a calico bag under the driver’s seat of the vehicle.
·The calico bag contained a firearm loaded with a magazine and wrapped in a grey cloth, a pair of gloves and two loaded magazines wrapped together in a yellow cloth.
·The calico bag, the firearm and the black cloth were all stored together in a manila envelope until 24 December 2012.
·Two knives belonging to Mr Gjergji were located under the floor mats in the driver’s side foot well of the vehicle, one of which showed Mr Gjergji’s thumb print.[12] Another knife was found under the mat on the front passenger foot well.
[9] Exhibit P30.
[10] Exhibit P31.
[11] Exhibit P27.
[12] Exhibit P26.
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.
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.
Did Mr Gjergji know the firearm was in the vehicle?
Defence counsel submitted that Mr Gjergji gave his evidence in a straight forward fashion, not shying away from telling the court he had arrived in Australia on an illegal passport, was in possession of fake driver’s licences, and took cash for cultivating a drug crop.
The evidence given by Mr Gjergji was in my view unconvincing and in many respects, implausible. Mr Gjergji said Mark was at the premises on 13 February, and that this was the third occasion Mark was with him there. Mr Gjergji said he was being paid $500.00 to attend to the watering. It is inherently unlikely that Mark would have been willing to pay for Mr Gjergji’s services but attend to the watering himself, after a time when Mr Gjergji had been shown what the job entailed. Mr Gjergji, despite having spent time with Mark on a number of occasions having coffee, knew none of Mark’s personal details. It would be expected that through these social interactions, some disclosure of such details would have been made. For Mr Gjergji not to have taken steps to ascertain Mark’s whereabouts during the 15 minutes between the time when Mark went outside and police arrived, was difficult to understand, particularly given Mr Gjergji had not yet been paid for his attendance on that day. Given the length of time, Mark’s disappearance could not readily be explained as him having decamped on appreciating the arrival of police.
The evidence regarding the presence of Mr Gjergji’s dog at the premises, does not assist me either way. The dog, as seen on the video of Mr Gjergji’s arrest is a puppy and clearly friendly. Certainly at that stage of its development, it would not have served as an effective protector of the premises, although it was said to bark loudly if it was a bigger dog. The dog bowls shown in photographs are very full and clearly contain too much food for an animal of the puppy’s size if the puppy is not there for lengthy periods and is attended to on a daily basis. It would seem however that the dog was not present at the premises when police attended as Brevet Sergeant Napper, while not asked, made no reference to have heard it bark when he attended the premises on 10 February 2012.
When Mr Gjergji came to the rear door, the screen door was locked and the keys were inside. The question of how and why it was that Mark came to be outside in those circumstances arises. I note that Mr Gjergji was not questioned about the route Mark had actually taken to make his way outside. As such, nothing turns on that alone.
Mr Gjergji had the keys to the property when the police attended. He said he did not know where the keys to the vehicle were but volunteered they might be in the vehicle. Defence counsel submitted that there were problems with the prosecution case in that there is no video of the search of the vehicle, no contemporaneous document as to where items were found and Mr Gjergji was not present when the search was undertaken.. Having accepted the evidence of the police officers who searched the vehicle, together with the evidence of Senior Constable Klemm regarding the logging of exhibits into the PPMS and the property log, Exhibit P3, as I have said, I am satisfied beyond reasonable doubt of the location of the firearm and the knives.
Mr Gjergji acknowledged the knives belonged to him. He said the last time he saw them they were in the boot of the vehicle, packaged as they had been purchased a month earlier. It was submitted on his behalf that if Mr Gjergji had put the knives under the floor mats there would be nothing to stop him telling that to the court given no charges have arisen in relation to the knives and this was an example of his frankness.
It is in my view fanciful to suggest that the knives became unwrapped and in a different position in the vehicle, without Mr Gjergji’s knowledge, particularly given he had not shown them to anyone. His explanation as to why the knives had not been removed from the vehicle soon after purchase was unconvincing, and I find his explanation as to how the knives came to be in the foot wells of the vehicle was designed to distance himself from knowledge of the firearm. Indeed, on Mr Gjergji’s evidence he was a passenger whilst travelling to the property in the vehicle and would, on his version of events, have had his feet resting on top of the mat in the passenger foot well, under which one of the knives was found to be.

Much was made in defence submissions of the failure by police to identify precisely where the key to the vehicle was found and the fact the vehicle was left unlocked at the premises. It was submitted that Mark had afforded himself protection by using a vehicle that did not belong to him, and would not have been concerned to secure the vehicle or to keep the keys to the vehicle with him because he had the protection that the vehicle was not his. I was asked to question when assessing Mr Gjergji’s evidence, whether he would simply have left his vehicle unlocked with the key either in the ignition or somewhere in the car if he knew there was a firearm in the car and if he had secreted the knives under the mats. It was suggested that it was much more consistent with there being a third person who had no concerns about the vehicle because he knew it was not his vehicle. Furthermore, if only Mr Gjergji was at the premises, why would the keys to the vehicle not be found on Mr Gjergji at the time police arrived and he was inside the house?
An examination of the accused’s own evidence, however, goes a considerable way to resolving these contentions. It was Mr Gjergi’s evidence that Mark had borrowed the vehicle on the Friday prior to the police search. If it was indeed the case that Mark used the guise of a car registered to Mr Gjergji to distance himself from the fact that he had secreted a firearm in the car, and if it was accepted that Mark owned the gun, the gun must have at least been in the vehicle when Mark drove, by himself, to pick up Mr Gjergji on the morning of 13 February 2012. It would follow, then, that Mark had exposed himself to the risk of being apprehended by the authorities with the gun whilst driving, on his own, to collect Mr Gjergji in circumstances where he would be in possession of the firearm for the purposes of s 14(c) of the Act.
It does not make sense that having exposed himself to such a risk, that Mark would nonetheless feel comfortable leaving the firearm in the vehicle whilst at the property. In my 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.
Conclusion and verdict
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 foot well 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.