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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Gjergji

Details

AGLC: R v Gjergji [2015] SADC 171
Case: [2015] SADC 171
Decision Date: 17 December 2015

CaseChat Overview and Summary

The case of R v Gjergji was heard in a court where the accused was charged with possession of a firearm, a matter that implicated both criminal law and specific provisions of the Firearms Act. The defendant was found in possession of a firearm in a vehicle that he owned. The prosecution needed to establish that the accused was in possession of the firearm in accordance with the legal definitions and standards set by the Firearms Act. The accused had the burden to rebut the presumptions provided under sections 5(14) and 5(15) of the Act.

The central legal issue before the court was whether the presumptions outlined in sections 5(14) and 5(15) of the Firearms Act could be rebutted and, if so, whether the accused had successfully done so. These sections established a rebuttable presumption that a person in possession of a firearm is doing so for an unlawful purpose unless proven otherwise. The court needed to determine whether the accused had provided sufficient evidence to rebut these presumptions. The court also considered the onus of proof on the accused to establish their innocence regarding the possession of the firearm.

In delivering its judgment, the court found that the elements of the offence had been proven beyond reasonable doubt. The accused had failed to discharge the onus of proving that the firearm was in their possession for a lawful purpose. The court held that the presumptions under sections 5(14) and 5(15) of the Act could not be successfully rebutted by the evidence presented by the accused. Consequently, the accused was found guilty of the offence of possession of a firearm. The court determined that the accused had not provided any evidence that could reasonably shift the presumptions established by the Act.

The final orders of the court included the conviction of the accused on the charge of possession of a firearm, reflecting the court's finding that the accused had failed to rebut the presumptions under the Firearms Act. The court did not provide any specific details on sentencing, but the conviction alone carries significant legal consequences.

Orders