R v Harvey - [2014] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARVEY
Criminal Trial by Judge Alone
[2014] SADC 50
Reasons for the Verdict of His Honour Judge Costello
1 April 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE
Accused charged with possessing a firearm without a licence - elements of charge proved by prosecution - gun was a modified cap gun - accused stated that he did not intend to commit the offence believing the gun in question to be a toy.
Held: Accused proved on balance of probabilities that he did not intend to commit the offence and that he had not failed to take reasonable steps to avoid committing the offence.
Verdict: Not guilty.
Firearms Act 1977 (SA) s 5, s 11, s 36, s 36A; Juries Act 1927 (SA) s 7(1), referred to.
R v R, R & R, LJ [2008] SASC 35; R v Chapman [2008] SADC 158; R v Fuller; R v Zazzaro [2012] SASCFC 101; Lewis (Department of Primary Industries - Fisheries) v Wanganeen & Harradine [2005] SASC 36; Evans v Benson (1986) 46 SASR 317, considered.

R v HARVEY
[2014] SADC 50
Criminal

This is trial by Judge alone. The accused, Dwayne Edward Harvey, is charged with the offence of aggravated possessing a Class H firearm without a licence in contravention of s 11(1) of the Firearms Act 1977 (‘the Act’).
Particulars of the offence are that Dwayne Edward Harvey -
On the 24^th day of May 2013 at Glenelg North, had in his possession a Class H firearm whilst not holding a firearms licence authorising possession of that firearm.
It is further alleged that Dwayne Edward Harvey had the firearm concealed on his person.
Mr Harvey pleaded not guilty to the charge. He elected to be tried by a Judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. He was represented by Mr Clarke. Ms Rositano appeared for the Director of Public Prosecutions.
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a Judge sitting without a jury, that the court detail every obvious and basic direction of law which might be given to a jury.[1]
[1] R v R, R & R, LJ [2008] SASC 35 at [42].
I do nevertheless record that I have reminded myself of the following:
An accused is presumed to be innocent until his guilt has been proved by the prosecution beyond reasonable doubt.
The burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused.
Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt or even that there is a probability of guilt is not sufficient. Accordingly, with one exception which I will deal with later, whenever I use terms such as ‘accept’, ‘satisfied’ or ‘proved’ in this judgment I mean accept, satisfied or proved beyond reasonable doubt.
Each element of the offence must be proved beyond reasonable doubt and if any one element is not so proved, the appropriate verdict is not guilty.
I have also reminded myself of the normal directions given in this State to jurors concerning the proper approach to assessing the witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case the accused himself gave evidence. He was not obliged to do so and always had the right to remain silent. I am required to assess his evidence in exactly the same way as I would assess the evidence of any other witness and I keep in mind that by going into the witness box the accused did not thereby assume the burden of proof demanded of the prosecution. He did however assume the burden placed on him to persuade me, on the balance of probabilities, as to the matters set out in s 36A of the Act.
Elements of the Offence
The prosecution must prove each of the following elements beyond reasonable doubt:
(i)The item in question was a firearm within the meaning of the Act.
(ii)The firearm was a Class H firearm.
(iii)The accused was in possession of the firearm.
(iv)On 24 May 2013 the accused was not the holder of a licence authorising possession of that firearm.
(v)The accused was in possession of the firearm in circumstances of aggravation.
The Prosecution Case
The facts in this case fall within a relatively narrow compass.
On 24 May 2013 police officers attended the Watermark Hotel at Glenelg at about 7.10 pm. At that time they questioned the accused and another man in the foyer area of the hotel. During their questioning the accused was searched by the police who located a small black ‘gun’[2] inside the pocket of the jacket the accused was wearing.
[2] I have used the word 'gun' for ease of reference. During the evidence it was variously referred to as a 'cap gun', 'toy', 'toy gun' and a 'firearm'.
After locating the gun the police officers questioned the accused in relation to what they said ‘appears to be a firearm’. The accused responded that ‘it’s not a firearm’ but then declined to answer any further questions.
Thereafter on being conveyed to the police car the accused said words to the effect that ‘This is bullshit. It’s a toy – a cap gun’.
Police subsequently carried out a search of the accused’s home and did not locate anything of interest to the case. In particular the police did not locate any items linking the accused to the gun such as ammunition,[3] black duct tape,[4] or part of a steel barrel.[5]
[3]    The gun had been modified to fire .22 long rifle 'Rim fire' ammunition.
[4]    The handle of the gun was wrapped in black duct tape.
[5]    A steel barrel had been installed into the forward section of the gun.
The gun was submitted for forensic analysis. Analysis revealed it to be a toy cap gun which had been converted to fire live ammunition. The gun was made of a diecast alloy material. It was painted black and its original plastic handgrips had been covered with black electrical tape. The original 8-shot percussion cap cylinder had been removed and replaced with a section of a rifle steel barrel. The percussion cap striker had also been filed to a narrow point and aligned to strike the rim of a loaded cartridge.
At the time of analysis the gun was incapable of firing due to a weak main spring resulting in a ‘light-strike’ firing pin. It was also ‘dusty’ inside.
In his evidence Brevet Sergeant Plummer, a ballistics expert, said that on examination the gun ‘broadly resembled the appearance of a self-loading handgun or a semi-automatic handgun’ but because of its ‘break action’ style[6] it did not have a close resemblance to the loading mechanism or the frame of such a gun.
[6] A 'break action' firearm is one which is hinged such that it breaks apart with the barrel section lunging forward and downward to reveal the chamber.
In short, he said that the gun imitated a generic self-loading gun where the slide retracts back and forth but with a ‘break section’ making it quite inconsistent with a self-loading handgun. In Sergeant Plummer’s experience it was inconceivable how these two actions were compatible.
Having said that, he observed that the modifications made to this gun were quite simple and capable of being done without the use of special hand or power tools.
He said that among the steps one could take to satisfy oneself that it was lawful to carry it around were phoning the police or taking it to a police station or licensed firearms dealer to check as to its compliance with the Firearms Act and Regulations.
In cross-examination he agreed that he had never seen two halves of an automatic pistol bolted together like this gun and that the gun ‘appears to be a toy that has something like a hammer but the hammer doesn’t work’.[7]
[7] T28.
In addition to Sergeant Plummer’s evidence I received without the need for cross-examination statements from a number of police officers who observed, questioned and searched the accused and searched his house. There is no need to identify what each of these witnesses said. The collective import of their evidence is recorded in the factual narrative set out above.
The Defence Case
The accused gave evidence. He said that prior to his arrest he had been at the Watermark Hotel for about 20 minutes. Prior to that he had been drinking beer with a mate, he knew only as Abraham, in a barbecue area not far from the hotel.
On finishing the six-pack of beer he went to deposit the empty bottles in the bin. As he did he noticed what he described as a ‘toy gun’ on the ground next to the bin. He picked up the gun and put it in his pocket. He then walked over to the hotel where he consumed another three beers with Abraham.
In cross-examination he said that he was not experienced in dealing with firearms. He thought this was a toy and not a gun because he found it in a family area where kids played. On picking it up it felt lighter than the handgun (a .357 Magnum) he had handled as an 8 or 9 year old boy in Alice Springs.
He then pulled the trigger a couple of times. He said:
The thing was loose … it rattled … twang, twang, you know, I thought it was plastic inside. That was the impression I got when I pulled the trigger. How can a real gun be plastic inside. That’s where the – you know, bullets and that go, don’t they?[8]
[8] T41.
He said that he picked it up and put it in his pocket because, believing it to be a toy, he intended to give it to his next door neighbour’s young son.
The Elements of the Offence in Detail
In this case the prosecution is required to prove and I must be satisfied beyond reasonable doubt as to each of the following elements. The onus remains on the prosecution even though for practical purposes the accused did not contest the overall thrust of the prosecution case.
1. Is this a firearm within the meaning of the Act?
‘Firearm’ is defined in s 5 of the Act to mean -
(a) a device designed to be carried by hand and to fire shot, bullets or other projectiles by means of burning propellant or by means of compressed air or other compressed gas; or
(c) a device of a kind declared by regulation to be a firearm for the purposes of this Act,
and includes a receiver of a firearm and any device which, if in working order, would be a firearm within the meaning of this definition (except such a device that has been rendered unusable in a manner stipulated in the regulations or by the Registrar) but does not include an antique firearm, or a device of a kind excluded by regulation from the provisions of this Act;
The evidence of Sergeant Plummer satisfied me that, even though the ‘weak spring’ rendered the gun incapable of being fired in its current state, it was nevertheless designed[9] to be carried by hand and to fire live ammunition. As such I am satisfied that it is a firearm within the meaning of the Act.
[9] R v Chapman [2008] SADC 158.
2. Is it a Class H firearm within the meaning of the Act?
A Class H firearm is defined to mean a ‘handgun’ which in turn is defined to mean a firearm -
… the barrel of which is less than 400 millimetres in length and that is designed or adapted for aiming and firing from the hand and is reasonably capable of being carried concealed about the person and includes a receiver of such a firearm.
‘Receiver’ of a firearm means
… the body or frame of the firearm that is designed to hold the firing mechanism or the loading mechanism or both in place but does not include the stock or barrel of the firearm.
Sergeant Plummer, whose evidence I accept, measured the barrel of the gun to be less than 400 millimetres namely 96 millimetres. As I have already said, the gun had been designed[10] for firing from the hand and was capable of easily being carried concealed about the person.
[10] See R v Chapman.
I accept that this is a Class H firearm within the meaning of the Act.
3. Was the firearm in his possession?
As the police evidence, which I accept, is that the gun was found in his jacket pocket, there are a number of ways in which this element may be demonstrated. It is unnecessary to consider all of them. Section 5(14)(a) of the Act deems a person to be in possession if the person has custody of the firearm. The accused knew that the gun was in his pocket. It is not necessary for this element to prove that he knew that it was a firearm.[11] The accused is therefore deemed to be in possession of the firearm and I am satisfied that this element is proved.
[11] R v Fuller; R v Zazzaro [2012] SASCFC 101 at [72].
4. Was the accused in possession without a licence?
The prosecution tendered a certificate pursuant to s 36 of the Act that on 24 May 2013 the accused was not the holder of a current licence authorising him to possess a firearm of any class.[12]
[12] Exhibit P8.
Section 36 of the act provides that an apparently genuine document signed by the Registrar certifying that at a specified time a person was not the holder of a licence must, in the absence of proof to the contrary, be regarded as proof of the matter so certified.
There is no proof to the contrary. I am therefore satisfied that the prosecution has proved this element.
5. Is this an aggravated offence?
Section 11(7b)(b) of the Act provides that an offence will be an aggravated offence in circumstances where an offender had the firearm concealed about his person.
I accept the prosecution evidence that the accused had the gun concealed in his jacket pocket and that as such it is an aggravated offence.
In summary I am satisfied that the prosecution has established beyond reasonable doubt all the requisite elements of this offence.
However, the accused relies upon the general defence in the Act set out in s 36A which provides:
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.
Section 36A therefore casts upon the accused a requirement to prove two things:
(a)that he did not intentionally possess a firearm without a licence; and
(b)that his unauthorised possession of the firearm did not result from any failure to take reasonable care.
Standard of proof
Section 36A uses the phrase ‘if the defendant proves’. In my view this means that there is an onus on the accused to prove, on the balance of probabilities, the matters on which he relies by way of defence. There is no obligation on the prosecution to disapprove these matters.[13]
[13] Lewis (Department of Primary Industries - Fisheries) v Wanganeen & Harradine [2005] SASC 36 [26]-[27]; Evans v Benson (1986) 46 SASR 317, 319.
Intention to possess
As David J said in R v Fuller:[14]
The existence of this section prevents a person who can prove that they had no intention to do anything wrong and no knowledge that they were doing so from being convicted of an offence against the Act. This defence would extend to an accused who was deemed to be in possession of a firearm by operation s 5(14) but can prove, for example that they did not know that the object the subject of the charge was in fact a firearm.
…
It follows that the prosecution was not required to prove that either appellant knew that the pen gun was a firearm. Once the elements necessary to prove the offence were established under s 5(14)(c), a prima facie offence contrary to s 11 of the Act was made out. The burden then shifted to each appellant to either rebut the presumption of possession under s 5(15) or to prove a defence pursuant to s 36A of the Act. Aside from counsel in their opening, the issue of s 36A defence was never raised.
Initially, the trial judge correctly directed the jury as to the four possible approaches that they may take when considering each of the two counts against each of the two appellants with the following exception. The trial Judge should have informed the jury of the general defence that exists under s36A of the Act. Namely the judge should have directed the jury 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. It would be a defence under s 36A, if a defendant could prove that they did not commit the offence intentionally, for example because they thought that the object the subject of the charge was something other than a firearm. Thus, even if the jury were satisfied that the appellants were in possession of the pen gun, they were then required to consider whether a defence under s36A had been made out. (my emphasis)
[14] At [71] and [73]-[74].
Applying His Honour’s remarks, the accused would not have intentionally committed this offence if he thought the ‘object the subject of the charge, was something other than a firearm’, namely, a toy.
Apart from the accused’s evidence that he thought it was a toy there is evidence that ‘tends to corroborate’ other parts of his version of the events. He said that he found it after drinking with the man Abraham who accompanied him to the hotel. It is accepted by the prosecution that there was another man with the accused when the police spoke to him at the hotel.
There is also the absence of anything located in a search of his house to associate the accused with the gun in its remodelled condition eg black tape, parts of a barrel or ammunition. Whilst I accept that the absence of such evidence does not discount the accused having come into possession of it by other means it is nevertheless consistent with his version of not being in possession prior to finding it in the barbecue area.
There is also the evidence of his statements to the police at the interview and after his arrest to the effect that this was not a firearm and that it was a toy. Accepting that these are arguably self-serving out of court statements they are still consistent with the version given by him under oath.
Finally and perhaps most importantly there is the gun itself. I acknowledge the evidence of Sergeant Plummer that it ‘broadly resembles’ the appearance of a handgun. However even in that statement there is an inherent qualification or reservation about the nature of the object. It is also of note, in this respect, that Sergeant Plummer agreed that parts of the gun (specifically the hammer) appeared to be a toy.
Allied to these factors is the evidence of the accused as to pulling the trigger and hearing a ‘twang’ which made him think it was plastic inside.
Finally I inspected the gun myself. I agree with the evidence of Sergeant Plummer that it bears a general resemblance to a handgun. On closer inspection however there are aspects of it which caused me to question that initial assessment such as its weight, its ‘plastic’ handle and the absence of some working parts.
I listened carefully to the accused’s evidence. Whilst I had some reservations about his story, in the end, I consider those reservations are attributable to his lack of sophistication and a measure of false bravado. On balance I find him to be a reliable and honest witness who gave a truthful account of the events which occurred.
Accordingly, on the balance of probabilities I find that he did not intentionally commit this offence.
Reasonable care to avoid
The reasonableness or otherwise of actions taken by an accused person will often be dependent, in my view, upon that person’s state of mind as to the nature of the object in his possession.

In this case I have concluded that the accused thought he had a toy gun. In such circumstances it was not reasonable to expect him, upon finding the object, to ring the police or take it immediately to a police station.
It was suggested by Ms Rositano that he should have opened it to check whether it had ammunition. I do not regard his failure to open the gun (which incidentally may have alerted him to it being more than a toy) as being a failure to take reasonable care.
There were no other steps which in my view the accused should reasonably have taken to avoid committing the offence. Accordingly the accused has proved this part of the defence.
The accused has therefore made out on the balance of probabilities the defence provided in s 36A of the Act.
I find the accused not guilty of the charge.