R v HACKETT - [2008] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HACKETT
Criminal Trial by Judge Alone
[2008] SADC 108
Judgment of His Honour Judge Clayton
19 August 2008
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with possessing a firearm without a licence contrary to s 11(1) of the Firearms Act 1977.
Consideration of requirements to establish possession.
Verdict - Not Guilty
Firearms Act 1977 s 11(1); Police Act 1936 , referred to.
Sherras v De Rutzen [1895] 1 QB 918; Moors v Burke (1919) 26 CLR 265; Button v Cooper [1947] SASR 286; R v Williams [1967] 2 NSWR 594; R v Boyce (1976) 15 SASR 40; R v Houssain [1969] 2 QB 567; Bourne v Samuels (1979) 21 SASR 591; R v Frangos (1979) 21 SASR 331, considered.

R v HACKETT
[2008] SADC 108

The accused is charged with Possessing a Firearm without a Licence contrary to s 11(1) of the Firearms Act 1977. The particulars allege that on 26 June 2007 at Glen Osmond the accused was in possession of a prescribed firearm, namely a sawn off .22 gauge rifle, without being the holder of a licence authorising possession of that firearm. He elected for trial by judge alone.
There is no dispute that the firearm in question was a prescribed firearm and that the accused was not the holder of the necessary licence. The dispute in the case is whether the Crown has proved that the accused was in possession of the firearm.
At about 9 pm on 25 June 2007 police officers entered Room 9 at Motel 277 at Glenunga. The accused was on a bed asleep. The police officers discovered a sawn off .22 gauge rifle on another bed close to the bed on which the accused was asleep. The prosecution case relies first upon the proximity of the accused to the firearm and secondly upon the presence of other items of personal property said to establish that the accused was connected with the firearm.
There is no direct evidence that the accused was aware of the presence of the firearm or that he intended to exercise control over it. The accused gave evidence denying knowledge of the firearm and any connection with it. The prosecution case is that inferences can be drawn from the established facts.
One of the elements of the concept of possession is that the person should at the relevant time intentionally have control over the object. The person may have that control either alone or jointly with some other person or persons. In He Kaw Teh v The Queen (1985) 157 CLR 523 Gibbs CJ concluded:
Where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his possession will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ("in his possession") themselves necessarily import a mental element.
The High Court of Australia was also required to consider the extent of the knowledge necessary for the offence of attempting to possess a dangerous drug in Tabe v R (2005) 225 CLR 418. Gleeson CJ said at 423:
Lord Diplock said that in ordinary usage, "one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control". The concept of "knowledge", however, is imprecise. This, no doubt, is why Aickin J. spoke of "sufficient knowledge of the presence of the drug" in Williams v The Queen. The answer to a question as to what constitutes "sufficient knowledge" for possession depends upon the purpose for which, and the context in which, the question is asked.
Callinan and Heydon JJ said at 446:
The majority of the court in He Kaw Teh concluded that in the absence of a sufficient indication of contrary intention, knowledge of the accused that he or she had custody of the prohibited goods is a necessary ingredient of an offence of having possession off those goods; the word "possession" necessarily imports a mental element.
That is effectively the same as the requirement that the Crown establish mens rea. Sherras v De Rutzen (1895) 1 QB 918 at 921. The requirement for mens rea is not displaced by the words of the Firearms Act1977 or the subject matter with which it deals.
The elements of the offence of possession were discussed by Mayo J in Button v Cooper (1947) SASR 286, a charge of unlawful possession of a pullover under the Police Act 1936. His Honour said at 292:
I next ask what is meant by "possession" in the section. Without attempting a definition some aspects may be alluded to. Possession connotes a relationship between a person and some material object. It is a relation subsisting in fact. The "right" of the possessor to the chattel arises out of factual situation. The situation itself may be secured against other claimants by virtue of the association being consequent upon some transaction which endows possession with a lawful basis.
For there to be possession there must be an intent to possess by the possessor, the animus possidendi, and it must be effectively realised, the corpus possessionis. There must be physical control with an intent to exercise that control on his own behalf, or there must have been such control, and the intention and means of control retained, no other person having intervened in some way and acquired possession, or a right to reduce the article into possession. It is regarded as possession where the possessor has the right against any other claimant to obtain immediate physical control, and no other persons in possession.
Later, at 293, His Honour said:
As to proof of a possession, the relationship may be inferred from acts that are consistent therewith, and that are inconsistent with any more remote association. Such acts may be proved by direct or circumstantial evidence, or by admission and may be disclosed by the person charged in the course of conversation. The personal use of an article of clothing is, I suppose, a conclusive indication of possession at least at the time it is worn...
Mayo J said that the fact that the pullover was discovered upon the defendant's premises did not justify the inference that the pullover was in the possession of a person in occupation of the house. At 296 he said:
That the pullover was discovered upon the premises, taken alone, does not justify the inference that it was in the possession of the person in occupation of the house. His association might be no more than as grantor of a licence, by implication, or expressly, permitting the article to be introduced into the house. Alternatively the article might be brought there unknown to him, or, whether known or unknown, against his will.
In R v Williams (1967) 2 NSWR 594 police officers who searched a car found a firearm protruding from the space between the seat and the back of the seat. Previously the car had been locked and the keys were in the possession of the accused. The accused denied all knowledge of the firearm. He was charged with being in possession of an unlicensed pistol. On the evidence in that case the Court of Criminal Appeal of New South Wales held that the facts permitted the inference to be drawn that the pistol was to the knowledge of the accused in his possession. What is important for present purposes is that the court looked for the evidence of the accused having knowledge of the pistol being in his control and in his own possession.
In R vHussain [1969] 2 QB 567 the defendant was a seaman who shared a cabin with two other people. He was present in his cabin when two other persons entered and hid an illicit drug. The Court of Appeal quashed a conviction for unlawful possession of dangerous drugs and said, at 573, that the test of possession was control, and an associated intention to control, and that a mere consenting to the placing of the drug in the cabin by others did not establish possession. It would have been different if the defendant had willingly received the drugs and hidden them on behalf of somebody else.
In the Queen v Boyce (1976) 15 SASR 40 Bray CJ found, at 44, that complete present personal physical control to the exclusion of others by the defendant having the object in his present manual custody gave rise to possession. His Honour referred to Moors v Burke (1919) 26 CLR 265 at 274 where the High Court said that the phrase "actual possession" meant defacto possession rather than constructive possession. In Moors The High Court said:
"Having actual possession" means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it where he alone has the exclusive right or power to place his hands on it, and so have manual custody when he wishes.
In Bourne v Samuels (1979) 21 SASR 591 White J held that the Court of Summary Jurisdiction was justified in finding that the defendant had possession of a bag of Indian hemp which was found in a motor car which the defendant had used for two days knowing of the existence of the Indian hemp. There was no evidence that the defendant intended to use the Indian hemp himself or to allow any other person to use it. His Honour held that the defendant was in control or possession of the car and all its known contents, even those which he did not or could not touch such as the petrol in the petrol tank, the tools and the spare tyre in the boot. White J said at 593:
As he drove around, it would have been possible for him to put his hand in behind the seat cover and offer it around to his friends (accepting that he did not use Indian hemp himself) or he could have mentioned to his passengers that it was there for them to take out if they wished, even though he did not touch the bag himself.
I am of the opinion that he was so clearly in possession of the car and its accessible contents that it is not necessary to discuss the niceties of what constitutes possession.
In that case the significant fact was that the defendant had knowledge of the presence of the Indian hemp and was in a position to dispose of it.
In the Queen v Frangos (1979) 21 SASR 331 King CJ said at 336.9:
In general, there is possession for this purpose where there is physical custody or control of the thing, together with knowledge on the part of the accused that the thing is in his physical custody or control (Director of Public Prosecutions v Brooks (1974) AC 862), although, for the reasons given by Bray CJ in The Queen v Boyce (1976) 15 SASR 40 at 46, this may not be an adequate test where the thing has come into the physical custody or control of the accused in accidental circumstances, or where it is in his custody or control for a necessary and proper purpose; and in some circumstances the accused may be in possession of a thing although he does not have personal custody or immediate control of it.
In the same case Walters J said at 339:
Although what does constitute possession may vary according to each set of circumstances, and according to the context in which the word "possession" used, it seems to me that in order to prove possession, it must ordinarily be shown that the possessor had the thing in his physical custody or control under circumstances which demonstrated that he had a conscious mental recognition of the thing’s presence, and that he was assenting to being in custody or control of it. Thus if a person were to take an article into his custody or control in circumstances showing that his state of mind was such that he had knowledge of its existence, and that he accepted it with the intention of exercising power of control over it to the exclusion of others, or with the presumed intention "to do so in case of need" (The Queen V Curlija [1967] SASR 1 at 4), he may be said to have had possession of it. A similar approach to the concept of possession and the mental element appropriate to possession is illustrated by the observations of O'Brien J. (with whose reasoning Street C. J. and the Yeldham J. concurred) in Reg. v Rawcliffe [1977] 1 NSWLR 219, where the learned judge said:
In order that a person should have the exclusive physical control of an article, some knowledge or intention in him is necessary to associate him with the article, but this mental element extends no further than that inherent in such control, namely, the intention to have exclusive physical control of the article itself, or some other article, or some place wherein it is in fact carried or contained or located. It is not inherent in that mental element that the person should know or suspect, or have reason to suspect, just what the article is or that it is in fact carried or contained or located in some other article or place over which he has by intention the exclusive physical control.
Walters J agreed with King CJ and found that the animus possidendi, the requisite mental element of possession, could be implied in that case. Wells J concurred with the judgment of Walters J.
A person can have physical possession of property notwithstanding that it is not in his "manual custody" where it is on premises occupied by him. In Button v Cooper Mayo J, at 293 made the following comments about possession flowing from the proximity of the accused to the pullover in the room:
Its presence, when not in use, in a bedroom, even when that room is shared with another, suggests that it is placed in readiness for wear by the person using that room if he is the only inmate of the room for whom that kind of attire a suitable. If it be an article of clothing of the kind and size of a male persons, and there be only one male person using the room, the situation presents a cogent ground for accepting it that the proximity is for his purposes.
It is significant that in the present case there was at least one other occupant of the room additional to the accused.
I proceed on the basis that the Crown must prove either by direct evidence or by inference that the accused was both aware of the existence of the firearm and that he intended to exercise control over it. The fact that the firearm was found on a bed in the motel room where the accused was asleep is not by itself sufficient. It is necessary to consider all the facts from which the Crown asks that inferences be drawn.
I start with the observation that there is no direct evidence that the accused was aware of the existence of the firearm or that he had taken any steps to exercise control over it. DNA testing of the firearm did not produce any meaningful evidence.
The accused and the firearm were found in room 9 of Motel 277 at Glenunga on 25 July 2007. The room had been rented on 24 July 2007 by Natalie Ioannidis and the rental was extended on 25 July 2007 by another female.
The motel room attracted the interest of police officers at about 8:30 pm on 25 June 2007 when they stopped Natalie Ioannidis walking along Glen Osmond Road at Frewville carrying a bike helmet which was suspected of being stolen. Police officers searched her backpack and found a hotel room key with the number 9 on it. That caused them to make inquiries at Motel 277 where they went to room 9 and were able to see the accused sleeping in the bed closest to the door. They could also see various items on another bed and scattered around the room. On the other bed, together with other items, they found the firearm which is the subject of the charge.
The firearm was a Lithgow .22 calibre rifle which had both the barrel and stock cut down. A police ballistics officer has provided evidence that the firearm was a proscribed firearm and it is agreed that the accused did not hold a current firearms licence. The firearm had been stolen on 7 June 2007. At the time it was stolen the firearm had not been modified.
Between 8 am and 1 pm on 25 June 2007 a Nissan motor vehicle was stolen from Golden Grove. Items of property belonging to the owner of the Nissan were in the vehicle at the time it was stolen including a pair of "Dirty Dog" sunglasses and a blue CD case.
Closed circuit TV footage recorded by a camera under the Morphett Street Bridge on 25 June 2007 depicts the accused and an unknown woman with the stolen Nissan. The accused is observed using bolt cutters to remove a motorcycle helmet which was attached to a motorcycle by cable. That was the motorcycle helmet carried by Ms Ioannidis at the time she was apprehended by the police.
Various items of personal property were located by the police officers who searched room 9 of Motel 277. On a table adjacent to the television set they located a "bumbag" which contained a black "Rip curl" wallet. The wallet contained two .22 calibre bullets and a memory card. There was nothing in the wallet to directly identify the owner. The bullets were compatible with the firearm.
On 23 July 2008 police officers downloaded fifty photographs from the memory card. One of the photographs depicts a male in a full face motorcycle helmet wearing light coloured boots. A second photograph depicts a naked female with her face obscured wearing a number of items of jewellery around her neck and on her wrists.
The CCTV footage taken under the Morphett Street Bridge shows that the female with the accused was wearing jewellery of similar appearance to the jewellery worn by the female in the second photograph.
At about 11 pm on 25 June 2007, after the accused had been arrested, Kate Jenkins visited him at the Adelaide City Watchhouse. Ms Jenkins had previously been in a relationship with the accused. Six items of jewellery were seized by police from Ms Jenkins. The prosecution case is that the items of jewellery which were seized are those worn by the naked woman in the photograph.
A pair of boots similar in appearance to the boots on the motorcycle rider in the first photograph was located in room 9 of motel 277. After being arrested the accused requested detective Sergeant Tait to obtain his sneakers from inside the motel room. The sneakers were found inside one of the bags on the second bed, that is the bed on which the firearm was situated. The sneakers and the boots belonged to the accused.
A blue CD case and a pair of Dirty Dog sunglasses were also found by the police officers on the second bed. I accept that those items originated from the stolen Nissan car.
Items of both male and female clothing were placed at various places inside the motel room.
The prosecution case is that the person sitting on the motorcycle in one of the photographs is the accused, that the naked woman depicted in another photograph is Ms Jenkins and that the wallet and all of its contents, including the two .22 bullets, belonged to the accused. The prosecutor argued that the bullets demonstrated a connection between the accused and the firearm.
The prosecutor relied upon the fact that the accused was the only person in the room at the time of his arrest.
The accused gave evidence. He said that he had previously been in a relationship with Ms Jennings. When they split up in about April 2007 he "went off the rails" and started using amphetamines. That became an expensive habit which he at first financed by the sale of items of his personal property. He said that the use of so much amphetamine was running him down by the day and at times he "would basically just crash out anywhere". He admitted that he was the person shown in the CCTV footage taken under the Morphett Street Bridge and said that he took the motorcycle helmet because he had been up for days and had no money. He took the helmet to a friend called Nat at Motel 227 to exchange for drugs or money. He said that he had never been to that particular motel room before, had not slept for at least three days and fell asleep in the motel room. He said "I just fell asleep. I didn't intentionally try to go to sleep: I blanked out."

The accused did not dispute that he had taken the blue CD case and the Dirty Dog sunglasses into the motel room.
The accused said that before he went to sleep he noticed there was lot of property in the room but did not notice any item in particular. He had a bag with his own possessions.
Importantly, the accused said that he never noticed the rifle on the bed and that he was not aware of the rifle. His evidence was that he did not have any connection with the firearm.
As to the photograph of the motorcyclist, the accused said in cross-examination that he was not able to recall being on a motorcycle like the one in the picture. He agreed that the boots worn by the motorcyclist were similar to ones that he had at the time of his arrest. He said he did not recognise the helmet, the bike or the clothes worn by the motorcyclist, other than the boots. To his recollection he had never ridden a Kawasaki motorbike such as the one depicted in the photograph.
As to the photograph of the naked woman the accused said he could not recognise that person and that the photograph looked similar to a lot of girls. The face of the woman in the photograph is obscured by the flash of a camera the woman was holding at head height. The accused said that he had seen Ms Jenkins wear jewellery but he was unable to identify her from the jewellery in the photograph.
The accused denied that the black Rip curl wallet belonged to him.
The accused admitted using bolt cutters to remove the motorcycle helmet from the bike, but could not remember whether he had held onto those bolt cutters after taking the motorcycle helmet. The Crown case is that bolt cutters found in room 9 were the same bolt cutters that were used to take a motorcycle helmet.
In cross-examination the attention of the accused was drawn to various items of property, such as a backpack and distinctive clothing. He said that he did not recognise any of that clothing as his own apart from a beanie. He had owned a pair of camouflage pants in the past but did not identify the camouflage pants in the room as his.
The prosecutor argued that the accused had a closer connection with the room and had been staying in the room for longer than the evidence of the accused suggested. In my opinion the evidence does not support that contention.
Some of the items in the room, such as toiletries and clothing were male items, but even if they had been proved to belong to the accused, none of them established that the accused had been staying in the motel room for longer than he admitted. There was no evidence that the staff of the motel had noticed the accused, although they had noticed women. The presence of a beanie and other items connected to the accused do not establish a long-term occupancy of the room. They are equally consistent with the evidence of the accused. The presence of the CD case on the floor next to a bedside table, which was close to the firearm, and the Dirty Dog sunglasses inside a backpack are not inconsistent with the evidence of the accused.
I think the bolt cutters found in the motel room were those used to take the motorcycle helmet, but the fact that the bolt cutters were found in the motel room establishes no more than that the accused had them with him when he went to the room.
The Crown argued that because backpacks connected with the accused were discovered close to the firearm it can be inferred that the accused saw the firearm. There are other possibilities. First, it does not follow that the accused did see the firearm on the bed. It could have been placed there by another person after he fell asleep. Secondly, the room was rented by Ms Ioannidis. There is evidence that she had a history of being associated with firearms. She could have placed the firearm on the bed, or the second women seen by motel staff or someone else again could have placed the firearm on the bed.
Even if I accepted the submission of the Crown that the accused was connected with three separate backpacks in the room, that does not establish that the accused had a closer connection with the room. The fact that two of the backpacks were located close to the firearm does not in my opinion establish beyond reasonable doubt that the accused was aware of the existence of the firearm.
So far as the photograph of the motorcyclist is concerned, the only feature which might identify the accused is the boots. However there is evidence that the type of boot in question is relatively common. In fact one of the police officers who searched the motel was wearing similar boots. What can be seen of the face of the motorcyclist is not inconsistent with the face of the accused, however only a small portion of the face, a triangle from the bridge of the nose to the upper lip and left cheek, can be seen under the helmet. What can be seen is not sufficient to identify the accused.
I do not accept that Ms Jenkins is identified by the jewellery as the woman in the photograph. Even if she was identified I would have trouble finding that the existence of a photograph of her on the memory card established that the wallet belonged to the accused.
The prosecutor's argument is that the gold jewellery around the neck and wrists of the person shown in the photograph was the same as the jewellery taken from Ms Jenkins at the Watchhouse. The jewellery is shown in photographs which are exhibits P9 and P10. The jewellery was tendered as exhibit P7. The first observation to be made is that the person in the photograph is wearing some jewellery which is not included in exhibit P7. The most obvious example is that the person in the photograph is wearing a distinctive bangle on a wrist.
Exhibit P7 consists of six items. The photograph of the woman depicts at least eight separate items of jewellery. I say at least eight because there may be others which cannot be identified because of the poor quality of the photograph.
The prosecutor referred to one piece of jewellery, marked item 37, which is described as "gold rope necklace with Sun pendant". On that necklace there is a dark oval stone about 5mm by 3mm set in gold with eight small radial arms each about 1.5mm in length holding a small light stone. I assume that is what is described as a "Sun pendant". The “Sun pendant” and the necklace to which it is attached are not visible in the photograph exhibit P9. However exhibit P10, an enlarged and enhanced copy of P9, faintly depicts a further necklace additional to the necklaces which are visible in P9. That necklace could have the “Sun pendant” with the dark centre attached, but the radial spokes of the pendant on the necklace shown in exhibit P10 appear to be longer than those in item 37. After the closest examination, I cannot be satisfied that the necklace and sun pendant which is item 37 is depicted in exhibits P9 and P10.
Of the other items of jewellery which were seized:
·    Item 34 is a gold spoon on a chain. The spoon is not visible in the photographs.
·    Item 35 is a neck chain. It is not inconsistent with some of the jewellery shown in the photographs, but it is a common neck chain.
·    Item 36 is a gold necklace, the chain of which consists of three small links followed by one larger link in a series. It cannot be identified in the photographs.
·    Item 38 is a gold bracelet with a locket. The locket cannot be identified in the photographs.
·    Item 39 is a gold link bracelet. It cannot be identified in the photographs.
I am unable to find that the jewellery shown in the photographs is the same as that seized from Ms Jennings and therefore cannot infer that the woman depicted in the photograph contained on the memory card found in the wallet is Ms Jennings.
If the argument of the Crown about the ownership of the wallet and its contents was valid then the presence of two bullets which were compatible with the firearm in a wallet owned by the accused would give rise to an inference. However I find that it has not been proved beyond reasonable doubt that the two photographs said to connect the accused with the wallet were photographs of the accused and Ms Jenkins. I am not satisfied that the prosecution has proved that the wallet belonged to the accused.
I cannot accept the contention of the Crown that there is a link between the two rounds of ammunition and the accused. The prosecutor acknowledged that if I did not accept that the photographs were photographs of the accused and Ms Jennings the photographs were irrelevant.
The prosecutor said that the Crown sought to prove that the accused saw and was aware of the firearm in the room and further that he intended to exercise control over it. I accept that the firearm was in plain view and easily seen by people who entered the room. However that does not establish that it was actually seen by the accused or even that it was in the same position at the time the accused entered the room.
Even if the accused knew that the firearm was lying on the bed that would not be sufficient to establish that the firearm was in his possession (R v Hussain (supra)). In order to establish possession more must be proved than that the accused had seen the firearm or that firearm was in the same room as the accused. There is no direct evidence that the accused intended to exercise control over the firearm and there is no evidence from which an inference can be drawn that the accused intended to exercise control over the firearm.
Also there is another inference open on the established facts. The room was booked by Ms Ioannidis who has convictions for firearms offences. There is an inference that she had possession of the firearm.
The prosecutor argued that by continuing to use the room where the firearm was the accused had the ability to use the firearm when he chose and to control the firearm. He said that use doesn't necessarily have to entail firing or shooting the firearm, but it entailed an element of control in that if the accused wanted to pick it up and move it somewhere or do something with it he was able to. I reject that argument. As I have said there is no evidence that the accused knew of the presence of firearm. Even if he was aware of the presence of firearm there is no evidence that the accused intended to exercise control over it.
There is also the evidence of the accused which I have set out above. The prosecutor accepted that if the accused is to be believed he must be acquitted.
The prosecutor submitted that I should reject the evidence of the accused because the objective evidence as to the quantity and position of his belongings in the motel room was inconsistent with his oral evidence. The location and quantity of the belongings of the accused could be explained by the general untidiness of the room and is not inconsistent with the nomadic existence which the accused was leading. He gave evidence that he would "crash out" anywhere.
If the accused had been the only occupant of the room the inference that he was in possession of firearm would have been stronger. However there is direct evidence of female clothing and cosmetics in the room, direct evidence that the room had been booked by Ms Ioannidis and evidence of the room being occupied by two women. The accused was not the only occupant of the room and the firearm could have been placed in the room by someone else. That is a reasonable hypothesis which cannot be excluded.
The evidence of the accused that he had taken the motorcycle helmet to Ms Ioannidis to obtain money or drugs is consistent with the fact that while the accused was asleep on the bed in the motel room Ms Ioannidis was walking down Glen Osmond Road carrying the helmet.
I am unable to draw the inference that the accused was aware of the existence of the firearm. As I have said there is no direct evidence that he knew of the firearm. Having rejected the evidence about the ownership of the two bullets there is no evidence of an intention to control the firearm.
I accept the evidence of the accused which is corroborated by the objective fact that Ms Ioannidis was carrying the helmet on Glen Osmond Road.
The Crown has not proved its case beyond reasonable doubt.
The verdict of the Court is that the accused is not guilty.