R v Hosseini - [2019] SADC 69

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HOSSEINI
Criminal Trial by Judge Alone
[2019] SADC 69
Reasons for the Verdict of Her Honour Judge Schammer
4 June 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Accused charged with the offence of aggravated possessing a prescribed firearm without a licence.
A loaded firearm was located in a black bag next to the spare tyre well under a shelf in the boot of a vehicle driven by the accused.
The accused denied having possession of the firearm. He claimed he had lent the vehicle to three acquaintances in the week prior to it being stopped by police and subsequently searched.
The accused maintained he did not know and could not reasonably be expected to have known the firearm was in the vehicle.
Verdict: Guilty.
Firearms Act 2015 SA s 4, 5, 6(2), 6(3), 9(1), 55; Juries Act 1927 SA s 7; Firearms Regulations 2017 SA reg 7, referred to.
R v H, ML [2006] SASC 240; R v Helps [2016] SASCFC 154; Barry v Police (2009) 197 A Crim R 445; R v Marafioti [2014] SASCFC 8, considered.

R v HOSSEINI
[2019] SADC 69
Introduction

Mohammad Aref Hosseini (the accused) is charged with one count of aggravated possessing a firearm without a licence pursuant to s 9(1) of the Firearms Act 2015 (‘the Act’).
On 5 December 2017 at approximately 3.32 am, the accused was driving a white Toyota sedan registration number S684-BPK at Clearview (the vehicle), when he was stopped by police and requested to submit to a random breath test. A licence check revealed the accused was driving while disqualified and he was reported for that offence. The vehicle was impounded.
On 8 December 2017, the vehicle was searched while it remained impounded. In addition to other items, police found a loaded, sawn off, Harrington and Richardson single barrel break action shotgun (the firearm) in an unzipped black Nike bag in the boot of the vehicle under a shelf, next to a spare tyre.
The accused did not dispute that he was in charge of the vehicle where the firearm was found. The accused maintained that he did not know and could not reasonably be expected to have known that the firearm was in the vehicle. He claimed he regularly lent the vehicle to others, including three acquaintances in the week prior to 5 December 2017, and that after doing so, he had not had reason nor opportunity to inspect the area of the boot where the firearm was found. He denied any knowledge of either the firearm or the black Nike bag.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. The trial proceeded before me over two days commencing Monday 1 April 2019.
The Evidence
The prosecution called evidence from Detective Brevet Sergeant Jamieson, the Investigating Officer. He explained his involvement in the search of the vehicle, what items were found during the search and where they were found. He also gave evidence as to what enquiries were undertaken by police when investigating the alleged offence and what recommendations he had made in terms of the forensic examination of items found in the vehicle.
In addition, the prosecution tendered various exhibits, including two statements of Agreed Facts,[1] a booklet of photographs depicting the vehicle and various items found within it[2] and a bundle of photographs taken of documents found in the glovebox of the vehicle.[3]
[1]    Exhibits P1 and P5.
[2]    Exhibit P3.
[3]    Exhibit P4.
The accused gave evidence with a view to proving that he did not know and could not reasonably be expected to have known that the firearm was in the vehicle.
The accused spoke with an accent and English is not his native language. I am mindful of the difficulties that can be encountered by a witness giving evidence in such circumstances. Apparent inconsistencies or unusual responses to certain questions may, in part, be explained by language and communication difficulties. I take the same into account when assessing the accused’s evidence.
Legal Directions
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt.
The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me that each and every element of the offence has been proven beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I can convict the accused of the offence, I must be satisfied that the prosecution has proved each of the elements of the offence beyond reasonable doubt.
I must assess each witness, including the accused, as to their truthfulness and their reliability and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
The accused elected to give evidence. He was under no obligation to do so. I must assess his evidence in the same way as I assess that of any other witness. In presenting a case, the accused has not assumed any burden of proof, that burden always remains with the prosecution.[4] I remind myself that even if I reject the evidence presented by the defence in its entirety, it remains for the prosecution to prove each element of the offence charged beyond reasonable doubt.
[4] Save and except that as required by virtue of the operation of s 6(3) of the Act in any event.
The accused was not obliged to answer the questions directed to him by police in a record of interview, and he chose to exercise his right to silence. I must not draw any adverse inference against him by virtue of that fact. However, the accused was obliged to answer certain questions posed to him by police pursuant to s 55 of the Act. The accused complied with his obligations in this respect.
The accused gave evidence that three men, being acquaintances he knew through work, borrowed the vehicle from him and drove it during the week prior to 5 December 2017. He named those acquaintances as Dimi, Dylan and Jarrod. None of those potential witnesses were called to give evidence. The accused gave evidence that he and his brother had attempted to find or speak to each of these men but had been unsuccessful.[5] There was a passenger in the vehicle on 5 December 2017, Diyar Nasradden. Officer Jamieson gave evidence that he attempted to conduct enquiries with Mr Nasradden but was unable to contact him.[6]
[5] T 41.34-43.8.
[6] T 25.5-17.
I must not speculate about any evidence I have not heard and I must not presume that because a potential witness was not called to give evidence that their evidence would have, or would not have, assisted either the defence or prosecution case.
There was discreditable conduct evidence admitted in this trial. That evidence was not led for a propensity purpose.
It was an agreed fact that the accused was disqualified from driving for the period 28 November 2017 to 27 February 2018, and that he was reported by police for driving while disqualified on both 2 and 5 December 2017. This evidence was relevant to explain the context in which the vehicle came to be impounded on 5 December 2017 and to the issue as to whether the accused was ‘in charge’ of the vehicle. The evidence can be used for that permissible purpose.
Officer Jamieson gave evidence that other items were found by police during the search of the vehicle, the possession of which would constitute an offence namely a knife found in the driver’s door, a knife found in the front passenger door, a knuckle duster found on the front passenger floor and an ice pipe found in the centre console. The accused denied any knowledge of those items, save for a pocket knife found in the driver’s door.
This evidence was led as a piece of circumstantial evidence relevant to the determination of the issue as to whether the accused could not reasonably be expected to have known the firearm was in the vehicle. The evidence can be used for that permissible purpose.
However, I must not use the discreditable conduct evidence to reason that the accused is more likely to have committed the offence because he has engaged in discreditable conduct. I must not draw conclusions about a person’s character.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and not influenced by public opinion in relation to this matter.
Admissibility of Record of Interview
Shortly prior to the commencement of the trial, the accused applied for an order requiring the prosecution to lead as evidence the record of interview as conducted between the accused and Officer Jamieson and Detective Sergeant Stone on 14 December 2017. I declined the application.
The accused submitted that the fact the accused was required, by virtue of s 55 of the Act, to answer certain questions posed of him by police, or he would be committing an offence, meant that despite the responses being in the nature of exculpatory out of court statements, the answers were relevant and admissible in the interests of justice. In this respect, it was acknowledged by counsel for the accused that when giving those answers, the accused had not been believed by police at the relevant time.
I was not directed to any authority to support the proposition, save that counsel for the accused referred to a decision of Police v Best (no citation given). It is likely that reference was in error.
The accused’s responses to questions posed of him pursuant to s 55 of the Act were all in the nature of exculpatory or self-serving statements, despite them being given in that context, and therefore not voluntarily. In accordance with a long line of authority, out of court exculpatory statements made by the accused are inadmissible as hearsay at the instance of the accused.[7] Although it is an offence pursuant to s 55(5) of the Act for a person, such as the accused, to fail or refuse to answer such questions, without reasonable excuse, that does not, of itself, in my view, otherwise change that position.
[7] R v H, ML [2006] SASC 240 at [25]–[27]; R v Helps [2016] SASCFC 154.
As Kourakis J (as he then was) stated in Barry v Police:[8]
… it would be anomalous to require the prosecution to put before the Court as probative material the self serving assertions of the defendant, whom it very obviously, does not consider to be a witness of truth.
[8] (2009) 197 A Crim R 445 at [68].
In accordance with this reasoning, I declined the accused’s application.
Elements of the Offence
The prosecution must prove each element of the offence beyond reasonable doubt.
There are four elements of the offence of Aggravated Possessing a Firearm Without a Licence namely:
1The accused was in possession of a firearm.
2The firearm was a prescribed firearm.
3The accused did not hold a licence authorising possession of that firearm.
4The firearm was loaded.
It was an agreed fact that the firearm was examined by Brevet Sergeant Brooks who determined it to be a Harrington and Richardson single barrel break action shotgun chambered to fire ‘12 gauge’ centre fire shotgun cartridges. It was further agreed that the shoulder stick had been cut down to behind the pistol grip and the barrel had been cut down from the original length so that it measured 244 mm in length, it weighed 1.64 kg and had an overall length of 420 mm.[9]
[9] Exhibit P5 [3]–[5].
Pursuant to s 4 of the Act, a ‘firearm’ includes a device designed to fire bullets, shot or other projectiles by means of burning propellant or by means of compressed air or other compressed gas. Pursuant to s 5 of the Act and Regulation 7 of the Firearms Regulations 2017, a ‘prescribed firearm’ includes a shotgun which has one or more barrels of less than 450 mm in length, that is 45 cm or which has an overall length of less than 750 mm, 75 cm.
It was an agreed fact that as at 5 December 2017 the accused was not the holder of a current firearms’ licence.[10]
[10] Exhibit P5 [19].
Officer Jamieson gave evidence, which I accept, that in company with Detective Brevet Sergeant Barker he searched the vehicle at the Northern Impound Yard on 8 December 2017, at which time he located the firearm in the boot of the vehicle, in an unzipped Black Nike bag located on the left-hand side of the spare tyre, under a shelf, and that the firearm was loaded, in that there was a shotgun shell in the chamber.[11] I accept that evidence.
[11] T 9.15-17; T 9.37-10.6; T10.36-11.6; T 11.24-13.1; Exhibit P3, images 5013 and 5014.
I find that the prosecution has proved the second, third and fourth elements of the offence beyond reasonable doubt.
The first element of the offence was the only element seriously in dispute.
Pursuant to s 6(2) of the Act, a person has possession of a firearm if the person is in charge of a vehicle where the firearm is found.
However, pursuant to s 6(3) of the Act, this will not apply if the person proves on the balance of probabilities that:
1they did not know, and could not reasonably be expected to have known, that the firearm was in the vehicle; or
2the firearm was in the lawful possession of another or they believed on reasonable grounds that the firearm was in the lawful possession of another.
In R v Marafioti,[12] the Court of Criminal Appeal discussed the construction of the phrase ‘in charge of a vehicle, vessel or aircraft’ as found in (then) s 5(14)(c) of the Firearms Act 1977.[13]
[12] [2014] SASCFC 8.
[13] Noting the same phrase is used in s 6(2) of the Act.
Kourakis CJ, with whom Vanstone J and Stanley J agreed, noted that a purposive approach provided strong support for a wide construction of the term and that the section created a ‘rebuttable presumption of possession of a firearm by a person who exercises a degree of control over’ the vehicle in which the firearm was found. He stated that a form of control or relationship less than ownership was sufficient and that ‘the most natural and obvious way in which the person may be in charge of a vehicle, vessel or aircraft is to be the driver, captain or pilot respectively’.[14]
[14] [2014] SASCFC 8 at [24]–[26].
The accused was not the owner of the vehicle, it being registered at the relevant time in the name of his wife, Elmas Aslan.[15]
[15] Exhibit P1 [4.]
It was an agreed fact that the accused was driving the vehicle on 5 December 2017, just prior to the vehicle being impounded.[16] Further it was agreed that the accused was driving the vehicle on 2 December 2017 at about 12.05 am.[17] Officer Jamieson gave evidence that numerous personal documents found in the vehicle bore the accused’s name.[18] The accused gave evidence that as a family, he and his wife had two cars, being the vehicle and a black Aurion. He said he drove the vehicle and his wife drove the Aurion.[19]
[16] Exhibit P1 [12]–[16].
[17] Exhibit P1[7]–[9].
[18] T 17.7-23.37; Exhibit P4.
[19] T 32.9-33.1.
As such, I am satisfied and I find beyond reasonable doubt that the accused was ‘in charge of the vehicle’ within the meaning of s 6(2) of the Act.
Further, I accept the evidence of Officer Jamieson that the firearm was found in the vehicle and make a finding to that effect beyond reasonable doubt.
As such, unless s 6(3) of the Act applies, the prosecution will have proved beyond reasonable doubt that the accused was in possession of the firearm, and there must be a verdict of guilty to the offence as charged.
The accused did not seek to rely on s 6(3)(b) of the Act.
The accused maintained that he fell within the proviso at s 6(3)(a) of the Act, namely that he did not know, and could not reasonably be expected to have known, the firearm was in the vehicle. The accused must prove this on the balance of probabilities, in other words, that it is more likely than not that he did not know, and could not reasonably have been expected to have known, that the firearm was in the vehicle. Unless the accused proves this, he will be guilty of the offence.
Forensic Evidence
It was an agreed fact that the accused’s DNA was obtained by buccal swab on 14 December 2017 for comparison purposes. It was further agreed that a swab was taken from the firearm for DNA analysis, which revealed the swab to contain a mixed DNA profile with four contributors. No other exhibits were submitted for DNA analysis.
With respect to the DNA profile obtained from the firearm, it was further agreed that:
1One contributor was able to be analysed and was reported as an unidentified male;
2The DNA profile obtained from the sample was approximately 56 billion to one in favour of the hypothesis that the accused was not a contributor to that DNA profile;
3A person can come into contact with an item and not leave DNA on it; and
4the amount of DNA required to obtain a reading for analysis is very small.[20]
[20] Exhibit P5 [6]–[14].
It was also an agreed fact that the firearm was treated and examined for the presence of fingerprint ridge details, that no suitable fingerprint ridge detail was found on the firearm and that the firearm was the only exhibit analysed for fingerprint ridge details.[21]
[21] Exhibit P5 [15]–[18].
As such, there is no forensic evidence linking the accused to the firearm.
Prosecution Case
The prosecution case relied on a combination of circumstantial evidence from which it was submitted the court should reject the accused’s evidence. It was submitted that when the evidence was considered in its entirety, I could not be satisfied on the balance of probabilities that the accused did not know the firearm was in the vehicle and could not reasonably have been expected to know it was in the vehicle.
The prosecution submitted that the evidence supported a finding, at least on balance, that the accused secreted the firearm in the spare tyre well in the boot of the vehicle or, that the accused knew or ought reasonably should have known the firearm was secreted in the vehicle.
Officer Jamieson’s evidence was largely uncontroversial and I accept that evidence.
Officer Jamieson was the Investigating Officer and he searched the vehicle on 8 December 2017 (in company with Officer Barker). Officer Jamieson gave evidence to explain the various items found at the time the vehicle was searched, being those recorded in an Exhibits Log.[22] He explained that the vehicle and most, but not all of the items subsequently seized from the vehicle, had been photographed by police.[23]
[22] Exhibit P2.
[23] Exhibit P3.
By reference to Exhibit P3, image 5009 depicts the black Nike bag in the position where it was found in the vehicle. Officer Jamieson said the bag was unzipped when found.[24]
[24] T 12.6-10.
Images 5012, 5013 and 5014 depict the firearm. Image 5012 shows the firearm in the Nike bag as it appeared when first found. Image 5013 shows the firearm opened to display it is loaded. Image 5014 depicts the shotgun shell which was removed from the firearm.[25]
[25] T 12.28-13.9.
Officer Jamieson gave evidence that a knife with a blade about 10 cm long was found in a compartment in the front passenger door,[26] together with a pair of sunglasses and a small blue towel.[27] A set of knuckle dusters was found on the floor in the front passenger seat foot well.[28] Another knife, with a blade also about 10 cm long was found in a compartment in the driver’s door, together with some men’s cologne, a chewing gum container and another unidentified black item.[29] A glass ice pipe was found in the centre console.[30]
[26] T 13.26-35; image 5024 of Exhibit P3.
[27] T 13.10-25; images 5022 and 5023 of Exhibit P3.
[28] T 15.28-37; image 5015 of Exhibit P3.
[29] T 14.15-25; images 5026 and 5027 of Exhibit P3.
[30] T 14.36-15.12; image 5029 of Exhibit P3.

A mobile phone and charger were found in the centre console. Officer Jamieson gave evidence that attempts were made to analyse the mobile phone but it was too damaged for any information to be retrieved from it.[31] Another set of sunglasses was found in the glove box.[32] These further items were not photographed.
[31] T 16.7-20.
[32] T 15.38-16.6.
A USB found in the front passenger seat was examined and nothing of interest found on it.[33]
[33] T 16.21-28.
Officer Jamieson gave evidence about a number of personal documents found in the vehicle during the search, photographs of which appear in the bundle tendered as Exhibit P4.
These documents included various Expiation Notices, Notices of Disqualification and notices issued by the Fines Enforcement and Recovery Unit (FERO) to the accused at addresses including 8 Upton Street, Oakden (the Oakden address) and a Tennyson address with dates between 13 June 2017[34] and 31 October 2017. One of the expiation notices was for an offence relating to a different vehicle with registration number CC28ED.
[34] Being a date prior to the date upon which it was agreed Elmas Aslan acquired the vehicle, namely 21 June 2017.
Other personal documents found included two medical letters pertaining to the accused and a Tax Invoice from Kmart Tyre and Auto Service, West Lakes in the accused’s name at a West Lakes address, dated 28 November 2017. By reference to that Tax Invoice it is apparent that the vehicle was serviced by Kmart Tyre and Auto Service, West Lakes on (Tuesday) 28 November 2017, being seven days prior to the date the vehicle was impounded. The services performed are listed on the invoice to include ‘Tyre Inspection and Pressure check/adjust’. There was no CCTV footage available relating to the service of the vehicle at that time, nor could Kmart provide any information as to the presence of a black bag or anything out of the ordinary in the vehicle at the time they serviced it.[35]
[35] T 23.1-23.
A Tax Invoice for child care fees issued to Ms K Turley was also found in the glove box of the vehicle. Officer Jamieson said that name was not significant in terms of his investigation into the matter.[36]
[36] T 18.26-30 (and there was no evidence led by the accused to the contrary).
In cross-examination Officer Jamieson confirmed that no forensic analysis was undertaken of the black Nike bag or the bullet found inside the firearm.[37] He also confirmed:
1that Kmart could not advise whether there was, or was not, a black Nike bag in the spare tyre well of the vehicle at the time of their service of the vehicle;[38]
2at the time of the search, the vehicle presented in the fashion as depicted in Image 5006 of Exhibit P3, in other words, with a child’s car seat and other items in the boot and therefore on top of the shelf, underneath which the firearm was found;[39]
3he was uncertain whether the officers who stopped the accused driving the vehicle on 5 December 2017 had conducted a cursory search of the vehicle at that time, although a report on the police system indicated the vehicle was not searched then;[40] and
4when the accused was interviewed following his arrest, he provided answers to questions posed of him by police pursuant to s 55 of the Act.[41]
[37] T 25.37-26.14.
[38] T 26.15-29.
[39] T 26.30-35.
[40] T 26.36-27.18.
[41] T 28.1-28.
Defence Case
The accused elected to give evidence.
The accused gave evidence that in the week before 5 December 2017 three other men had borrowed and used the vehicle and that he had no reason to and did not check the area under the shelf in the boot of the vehicle before driving on 5 December 2017. He denied any knowledge of the firearm or the black Nike bag.
Although not expressly stated, the manner in which the accused gave his evidence was such that he was suggesting, as a likely hypothesis, that one of these men had put the firearm in the vehicle without him having any knowledge that they had done so. Further, his description of how he came to drive the vehicle on 5 December 2017 was such that he suggested that not only did he not have the time or opportunity to inspect the vehicle for the presence of a firearm before driving that night, being shortly after the vehicle had been returned to him by one of the men, Dimitri (also known as Dimi), but he did not know about or see other items found by police in the vehicle, including the ice pipe, the knuckle dusters and the knife found in the passenger side door.
The accused did not advance a case that had as its premise any suggestion that the firearm found its way into the vehicle after it was impounded by police roadside on 5 December 2017 and the time it was searched on 8 December 2017.
Further, the accused did not seek to rely on s 6(3)(b) of the Act.
The accused gave evidence he is now 32 and was born in Afghanistan, arriving in Australia in 2003 as a refugee. He said he had been married to Elmas Aslan for 12 years and they had four children, now aged 10, six, four and two.[42]
[42] T 31.10-31; T 47.4-16.
He said he only lived with his wife ‘on and off’ and at the time of the alleged offending was living at the Oakden address with his mother.[43] However he described seeing his wife and children every second day[44] and explained that at the relevant date his three youngest children all required car seats, meaning if the entire family travelled somewhere they needed two cars to transport them, being the vehicle (which he would drive) and the black Aurion (which his wife would drive).[45]
[43] T 31.32-37.
[44] T 31.38-32.3; T 47.23-24.
[45] T 32.9-33.1; T 48.13-14.
The accused explained that on those family outings, his eldest son and third child would travel with him in the vehicle, with the eldest son sitting in the front passenger seat and the third child in a baby seat in the back.
The accused said that his children would drive in the vehicle ‘a lot of times’.[46]
[46] T 48.4-6.
It was an agreed fact that the vehicle was acquired by Elmas Aslan on 21 June 2017.[47]
[47] Exhibit P1 [5].
The accused gave evidence that he was a painter by trade, but that in 2017 he was out of work. He said he had some work going on, being ‘cash work part time through friends, family, whoever needed me to work on their property.’[48]
[48] T 32.26-34.
He routinely referred to the vehicle as ‘the spare car’.[49] When asked if both he and his wife needed a car he said:[50]
Not really. We both do need it and don’t because at the moment, at that time I didn’t have a job, I wasn’t working so we had two. The white one was the spare car.
(my emphasis)
[49] T 32.16; T 37.13; T 40.19; T 60.22.
[50] T 32.13-16.
The accused was asked if anyone other than him would drive the vehicle. He said:[51]
AA lot of all of my friends. I lend it to a few of my friends on a daily basis, on a weekly basis, depends when they need it.
QHow many of these friends were there.
ABetween five to six.
QClose friends.
AClose enough for me to trust them and lend them the car, yes. I met most of them through work, through the industry, through building industry, so they’re pretty close.
[51] T 33.3-12.
He said the vehicle would be borrowed between three to four times every week, and that his friends would either text him or call him, or see him at a job site and ask if the vehicle was free tomorrow and could they borrow it.[52] When the vehicle was lent to others, he said he would use the black car (the Aurion) and that his wife would drive him around. The baby seat in the vehicle would be put in the boot.[53]
[52] T 33.17-22.
[53] T 34.1-6.
He said that his eldest son (then aged eight)[54] was responsible for taking the baby seat out of the vehicle and putting it in the boot. The boot was easily accessed via a sensor, which his eldest son enjoyed using, and there was also a button inside the vehicle to open the boot, on the driver’s side near the steering wheel, although he had never had to use that button, as it was simple to open the boot using the sensor.[55]
[54] Date of Birth: 10 March 2009 (T 47.16).
[55] T 49.22-50.18; T 54.29-55.1.
Of his oldest son, he explained:[56]
He’s 10 now and he knows because the white car gets used by a lot of my friends so every time we stop he takes the baby seat automatically himself and puts it in the boot just to help.
[56] T 34.11-14.
In cross-examination, the accused said his eldest son would move that child seat in and out of the vehicle, most of the time. He said his son had been taught how to do so by his mother and had done this for his other sisters. He had learnt how to open the boot of the vehicle and could do it by himself.[57]
[57] T 49.3-31.
The accused explained that he was willing to lend the vehicle to others, because it was a ‘spare car’. He said:[58]
AI would let them have it because it was a spare car, their friends. I used to be in the same position, not having a car is very hard to get around so I would like to help my friends.
QPeople had helped you in similar times.
AIn similar times.
[58] T 37.13-18.
In cross-examination, he gave the following evidence on this issue:[59]
[59] T 56.7-57.19.
QIt’s a big thing, isn’t it, lending your car to someone.
ANot to me at the time because I looked at it as doing a good thing in the community with your friend helping. It wasn’t a big thing for me, it was just me helping another friend in need. It happened to me in the past, so, it felt good when someone helped me in past.
QSure, but you wouldn’t give your car to a stranger, for example, you wouldn’t just let them take your car.
ANo, of course, of course not, not a stranger.
QEven if you were only acquaintances with them, you wouldn’t just lend the car to them for a day, would you.
ANo, but as I said, I know these people all through work, we worked together, we got work for each other, so, there was a bit of trust there.
QIs it fair enough to say that you knew them well enough that you trusted them with your car.
AYes.
QAnd you knew them well enough to trust them with a car that you were taking your children around in as well.
AYes.
…
ABefore any of this happened, yes, I did trust them to a certain point to lend them my car, to help them out, to be nice and just help around, you know, because it happened to me in the past. I wanted to help back because when I was in the same situation it was hard for me, I couldn’t get anywhere, I couldn’t go anywhere. So, I was looking at it in a different way, not in the way that ‘what if they do anything with the car, or if they steal the car or if they go do a robbery with my car?’, you know, I wouldn’t – I didn’t have all that thought in my head at the time.
QBecause you were friends with them and you trusted them.
ABecause we were friends and –
QYes.
A- he[60] had kids, I had kids, so I thought he feel what I feel, you know.
QSure, and friends don’t do bad things with people’s cars.
ANo, they don’t.
[60] Being a reference to Dimi.
During examination-in-chief the accused was asked if he could recall who had borrowed the vehicle in the week in December 2017 before he was arrested.[61]
[61] T 35.6-13.
The accused was not arrested on 5 December 2017 being the day he was stopped by the police, reported for driving while disqualified and the vehicle impounded. He was arrested later, on 14 December 2017.[62] However, it is apparent from subsequent questioning in re-examination, that when the accused was asked by his counsel as to events in the week before his arrest, the accused understood those questions to in fact relate to the week before he was stopped the second time by police, being on 5 December 2017.[63]
[62] Exhibit P1[19].
[63] T 96.36-97.17, and having regard to all of the evidence on this topic.
The accused explained that during that week, three others had driven the vehicle, being Dylan, Jarrod and Dimi. He explained that those three men used the vehicle every week, for a minimum a day, but if not a day, for a few hours.[64] When asked if they had their own cars he said ‘No, that’s why they were borrowing my car’.[65]
[64] T 55.24-38.
[65] T 56.1-2.
He said he had lent the vehicle to Dylan on the Tuesday prior to 5 December 2017, for about five to six hours.[66] He was asked by his counsel to erroneously assume that day was Tuesday 2 December 2017, and he agreed with a proposition put to him to the effect that this was the same day that he was later stopped by police driving the vehicle around midnight.[67]
[66] T 35.19-37.
[67] T 36.1-17.
In fact, 2 December 2017 was a Saturday, and it was an agreed fact that the accused was stopped by police while driving the vehicle at 12.05 am on 2 December 2017.[68] As such, if Dylan drove the vehicle as described by the accused, being during the day before he was stopped by the police that night just after midnight, Dylan must have driven the vehicle on Friday, 1 December 2017.
[68] Exhibit P1 [7]–[8].
The accused said he met Dylan through the flushing industry at a building site and they had become mates. Dylan would find work for him if he needed cash, so they became close. He said Dylan did not have a car at the time and that he would either catch an Uber or be dropped off by his sister or brother when he came to borrow the vehicle.[69] In cross-examination the accused said that he met Dylan through another work friend, Dimi and that Dylan worked for himself. He said he had worked with Dylan more than 20 but less than 50 times before the alleged offending.[70] He said he met Dylan ‘just after I met Dimi’ and when asked to be more specific, he said he met him within two to three months of meeting Dimi, although he could not put an exact date on it.[71]
[69] T 35.21-30.
[70] T 66.34-67.9.
[71] T 67.10-17.
The accused did not know Dylan’s surname.[72] He said Dylan lived in Grove Street, Seaton – although he was not sure of the name of the street it was on the main road, Seaton.[73]
[72] T 68.7-20.
[73] T 69.2-11.
The following exchange occurred:[74]
QMoving forward, was there another day thereafter that someone else borrowed the car.
AYes.
QWho was that.
AJarrod.
(my emphasis)
[74] T 36.25-29.
The accused explained that Jarrod was a gyprocker who he had also met through his friend Dimi, ‘a little bit’ before he met Dylan.[75] He said he met Jarrod with Dimi, but ‘maybe five months’ after he met Dimi, and would see Jarrod a couple of times a week, working together.[76]
[75] T 80.29-34.
[76] T 80.22-34; T 81.8-12.
The accused said he had known Jarrod for over a year at the time of the alleged offending and like Dylan, Jarrod would either text or call him if he needed to borrow the vehicle, or if they were working together they would ask him at work or a day or a couple of hours before.[77]
[77] T 36.30-37.7.
He said Jarrod borrowed the vehicle for four to five hours and he returned it at a ‘similar time’ to when Dylan had returned the vehicle on that earlier occasion.[78]
[78] T 37.19-25, noting that when the accused was asked when Dylan had dropped off the vehicle, he said he could not exactly give a time; T 35.35-37.
The accused was asked during examination-in-chief if he knew Jarrod’s surname (or that of Dylan or Dimi) and did not directly answer that question, instead answering only with respect to Dimi.[79]
[79] T 39.25-27.
The accused was asked:[80]
QMoving forward, was there somewhere between Jarrod being in the car and Diyar being in the car, was there someone else who had access to the vehicle.
ADimitri had access to the vehicle as well.
QWho is Dimitri to you.
AHe’s a friend.
[80] T 37.32-37.
The accused said he had worked with Dimitri (Dimi) on building sites and had known him for one and half to two years at the relevant time. Dimitri lived in Spring Street, Port Adelaide, but he did not know what number. [81] He had never been inside Dimitri’s home.[82] He knew Dimitri had a wife and a daughter but he did not know their names.[83] He could not recall Dimitri’s surname but said it was a Greek name, starting with a ‘D’, adding ‘my memory is not that good with surnames especially’.[84]
[81] T 37.38-38-17; T 57.38-58.22; T 63.31-38.
[82] T 64.1-8.
[83] T 63.9-19.
[84] T 63.28-30.
He said he had worked quite frequently with Dimi, or on at least a weekly basis, from the time they met, up to December 2017.[85]
[85] T 59.36-60.7.
The accused gave evidence that Dimitri had the vehicle on the day prior to him being pulled over at night, the second time, by police, which he thought was a Sunday. When it was suggested to him that he was ‘arrested’ on 5 December 2017, and he said that Dimi had the vehicle on the 4^th, for the whole day and had dropped the vehicle off to him at 10 pm that night.[86] This was the last time he had seen Dimi.[87]
[86] T 38.18-28.
[87] T 62.12-14.
The accused said that at some point thereafter that night he had received a call from his friend Diyar Nasradden, who said he was stuck at Port Adelaide.[88] He said that he had not looked in the vehicle at all after Dimi dropped it off and before he drove to pick up Diyar.[89] It was an agreed fact that the accused was stopped by police when driving the vehicle on 5 December 2017 at 3.32 am and that the vehicle was subsequently impounded and towed from Hampstead Road, Clearview, to the South Australia Police Northern Impound Yard on that date.[90] The vehicle was searched, and the firearm found, on 8 December 2017.
[88] T 39.19-24.
[89] T 39.15-18; T 39.36-38
[90] Exhibit P1[12]–[17].
The accused gave evidence that he had never seen the firearm before, except in the police photos.[91] He said he had never accessed the area under the shelf in the boot of the vehicle, being where it was found and that he had never had to change a tyre on the vehicle.[92] He said he did not own a black Nike bag and had never seen the black Nike bag, depicted in Exhibit P2, before.[93]
[91] T 40 11-12.
[92] T 43.32-44.1; T 45.24-28.
[93] T 44.2-6.
The accused was asked about the other various items (save and except the personal documents) that police had found during the search of the vehicle. He said that the small pocket knife was his, being that found in the driver’s door, but that he had never seen the items depicted in the photographs on pages 7–11 of Exhibit P3 before, either in the vehicle or elsewhere.[94] He said he had no idea how those items had got in the vehicle.[95]
[94] T 40.25-41.14.
[95] T 41.15-16.
He said he had never been told by anyone that they had left the black Nike bag in the vehicle or that they had left the firearm in the vehicle.[96]
[96] T 45.20-23.
During cross-examination, the accused was asked how it was that he had not seen the knuckle dusters in the vehicle when he drove it after Dimi returned it to him on 4 December 2017. He said:[97]
Because I never paid attention. When the car got dropped off to me it was dark, it was 10 o’clock at night and I didn’t go outside to check, I didn’t have the time to check what’s in the car. I received a phone call to go pick up someone, so I got in the car and rushed, didn’t look anywhere, it was dark, it was night-time. I wouldn’t think that he left anything anyway, so I started driving to pick up a friend.
[97] T 53.25-32.
He said the last time he had fully checked the vehicle prior to Dimi dropping it back to him that night was ‘on the weekend, on the Saturday’ and that he had not seen the other knife or the knuckle dusters at that time.[98] He had not checked the centre console at that time, because it ‘was a bit tricky … you had to press a button for the top one to open’.[99]
[98] T 53.36-54.8.
[99] T 54.16-17.
During examination-in-chief the accused was asked whether, when he generally lent the vehicle to others, he would go through it after it was returned to him. He said:[100]
Not really, I don’t have to, I just have a quick look on the seats just to see if there’s anything sharp someone might have left anything, a lighter, a cigarette or anything so when the kids get in the car I do not want any of those items to be on the way.
[100] T 34.24-28.

In cross-examination, he was asked if he checked the vehicle before his children got inside of it and he said ‘Yes, just a quick look on the seat, that’s about it’.[101]
[101] T 51.33-35.
During examination-in-chief the accused described a previous occasion when he had lent the vehicle to Dimi. He said that thereafter he checked the vehicle in the morning before the kids got up and he found a syringe with blood on the back seat and on the passenger seat in the front (the syringe incident). He said he had a big argument with Dimi and had said to him:[102]
I don’t appreciate, I tried to help you and do the good thing by you, you leave a dirty injection into the car when you know I have kids, when you know they are going to go into the car. What if they get hurt or anything happened with them?
[102] T 34.36-35.3.
In cross-examination, the accused agreed with a proposition that Dimi knew he would take the children in the vehicle and that his children had met Dimi, two or three times, on occasions Dimi had borrowed and then dropped off the vehicle.[103] He said the time he had found the bloody syringe in the car after Dimi had borrowed it was ‘a long time ago, ages before this happened so about a – about two, three months before then’. He then agreed this was in about October or November 2017.[104]
[103] T 50.34-51.17; T 51.29-32.
[104] T 52.1-10.
He said that during his argument with Dimi about the syringes, Dimi said that he did not do it and that he had some mates in the car who might have left something there.[105]
[105] T 52.16-21.
Thereafter the accused said he had continued to allow Dimi to borrow the vehicle ‘cautiously’. When asked to elaborate the accused said:[106]
Cautiously, yes, like telling him ‘be careful, don’t leave - whoever you put in the car, be careful they don’t leave anything in the car, like last time’.
[106] T 52.26-28.
Nevertheless, he disagreed that following the syringe incident, when he had lent the vehicle to Dimi, he had made more of an effort to check it once it was returned to him. When asked why, he said that he trusted Dimi, as he had kids too. He said he had already had a conversation with Dimi where he had told him to make sure it did not happen again, that Dimi had apologised and tried to blame it on his friends, saying he had three other people in the car that night.[107] The accused said:[108]
[107] T 52.33-53.4.
[108] T 53.4-22.
A… so I kind of forgive him, you know, and whenever he returned the car I did look as usual but not to a full inspection, you know, check it completely.
QBut you would check the body of the car wouldn’t you. By ‘the body’ I mean the inside part of the car where people would be sitting.
AYes, on the seat, yes.
QOn the seat.
AYes.
QWhat about the passenger side where you said your son would sit when he travels.
AYes, always check the front seat.
QThe passenger door, would you check that.
ANot so much, no, no the door because the pockets were too deep, never thought of it, never went through it exactly to see what’s there.
QWhat about the footwell in the passenger side where your son would have his feet, would you check that.
AYes.
The accused was asked in cross examination to provide more details about the frequency, circumstances and manner in which he lent the vehicle to Dimi, Dylan and Jarrod.
He said that the first time he came to lend Dimi the vehicle was after Dimi had ‘had an argument with his missus’ over their (one) car.
The accused said that he told Dimi ‘Leave that, don’t worry, what do you need the car for’ and that he had said ‘I just need to go do a few things’.[109] He said:[110]
He didn’t exactly tell me what he want to do and that’s when I came to the conclusion, ‘Look, I have a spare car so whenever you need it instead of you arguing with your family, your missus, just ask me, I might help you’.
(my emphasis)
[109] T 60.13-20.
[110] T 60.21-24.
The accused was asked about the kind of arrangements he put in place for Dimi to borrow the vehicle. He said Dimi and any others who borrowed his car were meant to fill it with petrol, but most of the time they did not. Nevertheless, he continued to lend them the vehicle. He said ‘for a friend, yeah’.[111]
[111] T 60.25-61.16.
There was not always an arrangement as to how long Dimi could have the vehicle when he borrowed it. When asked why, the accused gave the following evidence:[112]
AI don’t know. He used to tell me ‘Look, I have a few things to do’. I’m sitting at home doing nothing. ‘All right, so whenever you finish just bring the car back, and make sure you don’t speed, I don’t want any speeding fine’ and things like that. But if I had something to do myself by a specific time I would tell him ‘Can you return it by this time, I need to use the car’.
(my emphasis)
[112] T 62.3-9.
He did not ask for specific details as to why Dimi (or the others) would need to borrow the vehicle, because that was considered rude in his culture.[113]
[113] T 62.15-63.5
He said Dimi would call or message him to borrow the vehicle, and pay someone to drop him to the Oakden address to collect the vehicle. The accused said he would never take the vehicle to Dimi or go to Dimi to get it back – Dimi would always pick it up and drop it off. [114]
[114] T 61.21-35.
The accused said Dimi used his vehicle ‘way more’ than anyone else, he said ‘once a week for every week, for the whole time I knew him.’[115]
[115] T 73.5-18.
As to Dylan, he said he would talk over the phone with him or sometimes he would text.[116] The accused said he worked on occasions helping Dylan, flushing, at Prospect Road, Kilburn. Dylan did not have a car. The accused did not see how Dylan got to work, but said he would leave work ‘with us’.[117]
[116] T 67.38-68.4.
[117] T 66.17-33; T 68.24-69.1.
The accused said that Dylan would come with Dimi on occasions to borrow the vehicle and then they would both leave together. They would catch an Uber or pay a friend $10 to drive them to collect the vehicle from the Oakden address.[118] He said this happened ‘heaps of time’, and then clarified this as being more than five times but less than 10.[119]
[118] T 70.7-9.
[119] T 71.1-12.
In cross-examination, the accused gave the following evidence:[120]
QDid you ever ask them why, if it was so easy for them to get lifts to actually get the car, your car, why they couldn’t just get a lift with that other person to do what they needed to do.
ABut they didn’t just need a lift, they needed the car for a couple of hours, for a day, whatever things they were going to do. I couldn’t tell them ‘Look, whatever you guys had to do, this person gave you lift to me, why couldn’t he took youse around and do whatever you guys need to do?’ I was free, I was sitting at home, I didn’t go to that extent to ask them these questions. They did not just need a lift, they needed the car to get around for the couple of hour or for the day, for whatever time they used to take the car.
(my emphasis)
[120] T 71.30-72.5.
The accused said that in addition, Dylan borrowed the vehicle by himself between five to 10 times.[121] When he did, he would find his own way to collect the vehicle.
[121] T 72.14-19.
As to filling the vehicle with petrol, the accused said only maybe once or twice had Dylan put about $10 worth of petrol in the vehicle.[122] He said he did not raise this with him, that he was a generous person and that he never thought this was an issue.[123]
[122] T 73.34-74.1.
[123] T 74.2-16.
He did not question Dylan as to why he was taking the vehicle, whether it was for five to six hours or a whole day. If the vehicle was free, he was happy for Dylan to take it.[124]
[124] T 75.2-35.
The accused was asked how Dylan would return the vehicle and he said that he would drop it back to where he picked it up. He would not come inside the house at the Oakden address as his mother would not allow his friends in the house. He was asked how he knew Dylan was back with the vehicle. He gave the following evidence:[125]
AAs I said, when you’re at my mum’s house, the window, the front window, is big, the curtain is always up, even at night-time, you can see the car comes on the street and there’s small car parks on the street, so you can see. So I would get up before he gets out of the car.
QSo you would just be in the front room waiting for him to come back.
ALounge room. That’s the lounge room, watch TV, relax, and you can see.
QThen you would go outside and get the key.
AYes – sometimes he used to just leave the key in the letterbox as well, times like that happened too.
[125] T 76.36-77.9.
He said most of the time Dylan would then catch an Uber back to wherever he needed to go. He never asked him why he just did not use an Uber to get around, instead of borrowing the vehicle, because that was rude and would have cost Dylan hundreds of dollars.[126]
[126] T 78.22-30.
As to Jarrod, the accused said that during the whole time he knew him, Jarrod would have borrowed a car from him six times.[127]
[127] T 81.24-30.
He said he had never seen Jarrod with a car. When asked how Jarrod got to work, he said that he would get a lift with his mates or whatever.[128] He said once, when he was working back late painting a bathroom in the area near Churchill and Prospect Roads, Dimi had used his car to drive Jarrod home. Dimi and Jarrod were working in the area at the time, but not on the same job. They had come to see him to see if he was finished. He agreed that sometimes they would socialise together after work.[129]
[128] T 81.31-82.13.
[129] T 82.20-83.2; T 85.22-86.4.
The accused said that Jarrod would get dropped off by a lift to borrow the vehicle and after he had returned it, would catch an Uber or leave with a friend. When asked if he would ever drop Jarrod home after he returned the vehicle to him (or anyone else who had borrowed the vehicle), he said no. By way of further explanation, he first said this was because it would be too late, and then he said he ‘couldn’t’.[130] When asked why he said he did not ‘have a reason for it but I never done it. I was helping already enough.’[131]
[130] T 87.37-38.
[131] T 87.17-88.7.
In cross-examination, the accused was asked on what day of the week prior to 5 December 2017 Jarrod had borrowed the vehicle. The accused said he could not remember the day exactly but he thought it was a Wednesday or a Tuesday. He thought it was after he was pulled over by the police the first time. When asked if he was sure he said:[132]
[132] T 86.18-87.14.
AI can’t remember. I can’t – it’s been so long, I can’t exactly remember the date, but if it was before the first time I got pulled over, I remember that week from the Sunday of that week I remember exactly who had the car. It was Dylan, Jarrod, Dimi that had the car.
QSo you remember in such good detail who borrowed the car, but you can’t tell us when.
AWell of course they’re human. They come and ask for the car, I can’t remember the date. It’s been nearly 15 months since. I can’t exactly remember the date, that it was before I got pulled over or after I got pulled over the first time.
QBut you’re certain that these people definitely borrowed your car in that week before.
AYes, yes.
QBut you can’t tell us what days they did.
AI think Dylan was on Tuesday, as far as I can remember and Jarrod was on a Wednesday, or – I can’t exactly give you the date but I can remember they had the car that week, just like every other week, and I don’t keep a record of the dates of every other time they borrowed the car.
QWhen did Dimi borrow the car, what day?
AWhat date?
QWhat date did Dimi borrow the car did you say.
AIt was on the Sunday.
QOn the Sunday.
AI think it was before I got pulled over the second time. He had – during that day he was in possession of the car.
QWhen Jarrod came on the Wednesday to get the car, how long did he borrow it for that day.
AA few hours.
QMore than two hours.
AYes, I would say so.
The accused was asked in cross-examination to explain which Sunday it was that Dimi had borrowed the vehicle. He confirmed it was the day immediately before he was stopped the second time, and insofar as he had said in his evidence that on the Sunday he had used the vehicle to take his children to lunch as a family, he was referring to the previous Sunday.[133]
[133] T 88.13-90.28.
It was suggested to the accused that the Sunday prior to him being stopped the second time was Sunday 3 December 2017, not 4 December 2017. The accused agreed he was getting confused with the dates. He said he was at home at the Oakden address with his children on Sunday 3 December 2017. He then said that Dimi borrowed the vehicle on that Sunday. The following exchange occurred:[134]
[134] T 92.28-93.3.
QSo when was it, if you’ve said that you had the kids and you took the car out –
AYes
Q- when Dimi come and pick up the car, is what I’m asking you.
AHe had it on the – in the morning.
QIn the morning.
AHe had it like after, when I finished with my family because he knew on a Sunday I go out with my kids, we go eat something. So he came in the afternoon and –
QDidn’t you just say that he came in the morning and now you’re saying he came in the afternoon.
ANo because I’m getting confused now with the dates. It’s been months.
There was then a further exchange wherein the prosecutor reminded the accused that the Sunday was 3 December, not 4 December and of the evidence he gave in chief to the effect that Dimi had borrowed the car on the day immediately before he was pulled over the second time. The accused then said that Dimi did not have the vehicle on the Sunday, rather he had it on the Monday, 4 December 2017, and that Dimi had the vehicle for the whole day.[135]
[135] T 93.3-94.16.
The accused said that he had the vehicle on Tuesday 28 November 2017 as he took it to Kmart to get serviced. When reminded of his earlier evidence that Dylan had the vehicle on the Tuesday before 5 December 2017 he said that Dylan had borrowed the vehicle after 5 o’clock that day and then had it for a few hours.[136]
[136] T 94.17-27.
The accused did not call evidence from Dimi, Dylan, Jarrod or any other person he claimed to have ever borrowed the vehicle. During examination-in-chief he gave the following evidence:[137]
[137] T 41.31-43.8.
QThere are a number of people who you say had access to that car.
AYes.
QHave you been able to make contact with any of those people.
AI have, I have tried, especially with one of them as my brother sitting in this courtroom as well, I send him to find this person and to be truthful to himself and to –
QIn respect to those inquiries have you been able to ascertain their whereabouts.
ANo.
QAnyone’s whereabouts.
ANo. They all went missing.
QHas anyone spoken to you.
ANah. I tried so much now.
QObviously – has that been difficult -
AOf course.
Q- whilst in custody.
AOf course. Been in custody all this time.
Prosecutor’s Submissions
The prosecutor submitted that all of the evidence established that it was the accused who was the person who predominantly used the vehicle and that it was the accused who controlled who was able to use the vehicle. As such she submitted it was implausible that he did not know the firearm was in the vehicle.
Although there was no forensic evidence linking the accused to the firearm, the prosecutor submitted that the absence of the accused’s DNA or fingerprints on the firearm did not mean he had never had contact with it, and that a firearm could be handled without leaving fingerprints on it, for example, by someone using gloves, or wiping the firearm down after handling. Further even if the accused had not handled the firearm, this did not mean he did not know of its presence in the vehicle.
The prosecutor submitted that the evidence given by the accused as to lack of involvement with and knowledge of the firearm, was false and should be dismissed.
In this respect, she highlighted the following aspects of the accused’s evidence which should cause me to have concerns as to the reliability of that evidence:
1If, as the accused claimed, he was close enough friends with Dylan, Jarrod and Dimi to allow them to regularly borrow his vehicle, why did he not know personal details about them such as their surnames.
2What she described as the vagueness of the accused’s evidence as to the arrangements he made with others when lending the vehicle, including his claimed lack of knowledge as to the purposes for which the vehicle was being borrowed from time to time and how the vehicle came to be collected by them.
3Why would the accused continue to frequently lend the vehicle to others when they did not fill it with petrol as they were meant to.
4Why would the accused continue to lend the vehicle to Dimi, after the bloody syringes were left in it, particularly having regard to the fact that he used the vehicle to transport his children and that this was known by Dimi.
5The fact the firearm was loaded and secreted in an unzipped bag was consistent with it being readily available for use. If someone other than the accused left the firearm there, they ran the risk of not being able to access the vehicle (and thus the firearm) when they needed it, and the risk the accused (or someone else) would find it and report it to authorities. There was also the risk that the loaded firearm could find itself in the hands of another person. It was submitted that at the very least one would expect the person who left the firearm in the vehicle to tell the accused it was there.
It was submitted that the accused’s claim that someone else had put the firearm in the vehicle and that he did not know and could not reasonably have been expected to know it was there, was inherently unlikely and that therefore he had not discharged the onus required of him pursuant to s 6(3) of the Act.
Defence Submissions
Counsel for the accused submitted that I should accept the accused’s evidence that he did not know and could not reasonably have known the firearm was in the vehicle.
He submitted that in this case, the position of the firearm where it was found, being under the shelf in the boot of the vehicle and under items kept in that boot (including a car seat) meant this case could be distinguished from others where a firearm was found under the bonnet or in a foot well of the vehicle. It was submitted that in the circumstances of this case, more than just a simple inquiry or inspection was needed to be made by the accused in order to discover the presence of the firearm in the vehicle.
He submitted that contrary to what was suggested by the prosecutor, the firearm was not readily accessible, given its position.
He reiterated that neither the accused’s DNA nor fingerprints were found on the firearm (or the bag or the bullet) such that there was no direct evidence of his knowledge of the firearm. In this respect, the fact there was a mixed DNA profile from four contributors recovered from the firearm, which was consistent with the hypothesis that the accused was not a contributor to that profile, supported the accused’s version of events. Further the fact of that DNA being left on the firearm told against it being handled by someone wearing gloves or of it having been ‘wiped down’ after handling.
It was submitted that just as Officer Jamieson had difficulty in contacting Mr Nasradden, so too had the accused been unable to contact Dylan, Jarrod or Dimi and that these efforts were made harder by the fact the accused had been in custody. He submitted therefore that I should accept the accused’s evidence as to the attempts he had made to contact them. Further, it was submitted that it was understandable, given the circumstances, why these persons may not be willing to now come forward.

He submitted there was no reason for the accused to go through the vehicle at length after it was returned to him, given his relationship with Jarrod, Dylan and Dimi and the trust he had in them, notwithstanding the syringe incident involving Dimi.
As to the ability for one of those three men to have secreted the firearm, without the accused’s knowledge, he noted the accused’s unchallenged evidence as to the ease with which the boot of the vehicle could be accessed and the frequency with which these men borrowed the vehicle. He submitted I should accept the accused’s evidence that he had never seen the firearm or the black Nike bag before and how he had not had any need to and did not access the area where the firearm was found, having never had to change a tyre on the vehicle during the short time his wife had owned it.
It was submitted that rather than being vague in terms of the arrangements he had made to lend the vehicle to others, the accused had been able to provide appropriate information, in general terms, as to these arrangements and the timing of them, given the events occurred some 15 months ago.
Defence counsel submitted that if there was a probability that the accused did not place the firearm in the vehicle and someone else did, it then fell on the prosecution to prove beyond reasonable doubt that that was incorrect. Further he submitted that the accused having proffered an innocent explanation, it was then incumbent on the prosecution to show why that explanation was not probable. This submission is not an accurate statement as to the law. The onus is on the accused to establish on the balance of probabilities both that he did not know the firearm was in the vehicle and that he could not reasonably have known the firearm was in the vehicle. On that particular issue, there is no requirement for the prosecution to prove or disprove anything.
It was submitted that the explanation offered by the accused was probable and that it was not fanciful to suggest that someone else placed the firearm in the vehicle.[138]
[138] Noting again that the accused’s version simply being ‘not fanciful’ is insufficient to satisfy the onus upon him as per s 6(3) of the Act.
Discussion/Findings
The accused was in charge of the vehicle where the firearm was found. As such he bears the onus of proving, on the balance of probabilities, he did not know the firearm was in the vehicle and that he could not reasonably be expected to have known that the firearm was in the vehicle. If he does not discharge that onus, he is deemed to be in possession of the firearm pursuant to s 6(2) of the Act.
Having carefully considered all of the evidence, I am not satisfied that the accused has established that it is more likely than not that he did not know the firearm was in the vehicle and that he could not reasonably be expected to have known that the firearm was in the vehicle. I cannot be satisfied of this on the balance of probabilities.
I am not satisfied that the accused was being honest with the court when he gave his evidence. Having carefully considered all of the evidence, I simply do not believe the accused on the fundamental issue as to whether he knew the firearm was in the vehicle and specifically his claim that several other people had borrowed the vehicle in the week prior to 5 December 2017.
There were numerous aspects of the accused’s evidence which caused me to have significant concerns as to both his reliability and credibility.
As a starting point, the accused gave evidence that in 2017 he was not working, and that evidence was given in the context of him explaining that the vehicle was a ‘spare car’ and why it was available for others to use with such frequency. He said, on various occasions, that he was not working, he was free and sitting at home, meaning he was able to lend the vehicle to others on a frequent basis.
However, when asked about his relationship with Dimi, the accused gave evidence that he worked quite frequently with Dimi, or on at least a weekly basis, from the time they met, up to December 2017.[139] As to how often he would see Jarrod, he said:[140]
AA couple of time per week.
QAgain, the same, working together.
ASame, working together, same situation, with Dimi, same method of borrowing the car, same.
[139] T 59.36-60.7.
[140] T 81.8-12.
His evidence was that he had worked with Dylan between 20 to 50 times, having met him around late 2016.
When the accused’s evidence is carefully scrutinised, I do not accept his claim that he was not working in 2017, that he was simply sitting at home, free, doing nothing, such that the vehicle was truly a ‘spare vehicle’. Although the accused described doing some part time cash work at the time of the alleged offending, his evidence as to the frequency with which he encountered Dimi, Dylan and Jarrod at work, between meeting them and the date of the alleged offending, is inconsistent with his evidence that ‘I didn’t have a job, I wasn’t working...’.[141]
[141] T 32.15-16.
Although the accused was not specifically questioned on this topic, if, as he claimed, he was not working, or working only irregularly, then it may be expected that he was in a worse financial position than when he was working.
The accused gave evidence that the vehicle was not insured if it was in an accident.[142] He also gave evidence that he used to keep the vehicle filled with petrol but that when he lent it to Dylan or anyone else it ‘would come down a bar or two, so they would never fill it back up’, albeit he said Dylan may have put $10 worth of petrol in the vehicle once or twice. He said he would mention this to them but they just laughed it off.[143]
[142] T 77.30-32.
[143] T 60.25-61.14.
The accused claimed he was lending the vehicle to others very frequently, with the vehicle being used by the borrower for whatever reason they needed it for, being multiple journeys, not something that could simply be facilitated by utilising an Uber or another friend to drop them. If this was so, the accused was exposing himself to a considerable financial burden and risk. In those circumstances, his claim that he was simply helping others out, as he had been helped in the past, while admirable if true, is difficult to accept.
The accused had four children and a wife who were not living with him at the Oakden address as at 5 December 2017, but were living elsewhere. The accused claimed that if someone had borrowed the vehicle he would use the other black car, or get his wife to drive him around. He said if he did not have the vehicle to get to his wife’s house she would pick him up or he would get a lift from his brother.[144]
[144] T 47.31-33.
While the accused was not questioned in detail on the practical ramifications of him not having the use of the vehicle on such a frequent basis, the absence of a detailed explanation as to how the accused (and his wife) managed to juggle any work and/or family obligations when the vehicle was ‘on loan’ causes me to have doubts as to the truth of his evidence on this crucial issue.
There was no evidence as to whether or not the accused’s wife was working, while also living away from the accused with the four children. If she was not working, it begs the question as to why the accused was prepared to assist his ‘friends’ by effectively financing their frequent transport needs and running the financial risk that the vehicle may be involved in an accident while being used by someone else. If she was working, then there was no evidence as to how she dealt with the accused’s necessity to get around on the many occasions the accused did not have the vehicle and instead would need to use the black car or have her drive him around.
The accused said he saw his four children every second day. If the entire family needed to travel anywhere together they needed to travel in two cars. As such, every time the accused purportedly lent the vehicle to someone else it meant the family could not travel anywhere together. The accused did not give any evidence to the effect that he had access to any other vehicle, other than the Aurion (the black car). As such, if the vehicle was on loan, unless the accused had access to the black car, he and his four children could not travel anywhere together. This is a significant imposition on the accused, his wife and family which was not addressed at all by the accused.
When these practical considerations are properly considered, the accused’s claim that he was willing to lend the vehicle to help others, as he had been helped before, and to give back to the community, becomes difficult to believe. As does the explanation he gave as to how he came to lend the vehicle to Dimi in the first place – namely that Dimi and his ‘missus’ would argue over their car and he had offered to help out in those circumstances.
In that respect, the accused gave what on its face was inconsistent evidence as to whether Dimi owned a vehicle. He gave evidence that Dimi and his missus had only one car between the two of them, which had led them to argue and was the precipitant for him first lending Dimi his car.[145]
[145] T 60.11-24.
When asked if Dylan, Dimi and Jarrod had their own cars he said ‘No, that’s why they were borrowing my car’ and later he said ‘Dimi never had a car’.[146]
[146] T 56.1-2; T 71.15-16.
I acknowledge it is possible that these perceived inconsistencies are the result of a miscommunication and/or language difficulties on the part of the accused, but this was not clarified on re-examination.
The accused’s evidence as to when he met Jarrod and Dylan was also internally inconsistent. On the one hand, he said he met Dylan just after he met Dimi, which he then particularised as about two to three months after he met Dimi. However, he said he met Jarrod five months after meeting Dimi, but ‘a little bit before’ he met Dylan.[147]
[147] T 80.31-34.
The accused’s evidence was that he knew Dimi, Jarrod and Dylan because they all worked in the building industry together. His evidence was to the effect that they were self-employed tradesmen; Dimi worked as a sub-contractor ‘doing the flushing, gyprock, he knew everything’,[148] Dylan was a flusher[149] and Jarrod was a gyprocker.[150] The accused said he was a painter but that he also did flushing.
[148] T 59.33.
[149] T 35.22.
[150] T 36.31-33.
Although the accused was not questioned on this issue, he gave no evidence at all to explain how it was that Dimi, Dylan and Jarrod were able to transport their tools of trade in the absence of any of them owning a vehicle. It is also difficult to conceive any tools of trade (for example, ladders) were able to be transported in the vehicle, it being a small Toyota sedan. In that respect, the photographs of the vehicle depict the boot of the vehicle in immaculate condition, with there being no sign of it ever having been used to carry building materials and no evidence of any building materials or tools of trade found in the vehicle.
The accused claimed to be good friends, albeit in a work context, with Dimi, Jarrod and Dylan and to trust them enough to regularly lend them the vehicle. Despite this, he was unable to tell the court their surnames. He claimed to be in regular communication with them all, including by phone or text and he knew where both Dylan and Dimi lived. As such, it is difficult to accept the accused’s claim that all three men ‘went missing’[151] following his arrest and that he (or his brother) could not find any of them, even accounting for the fact the accused has been in custody.
[151] T 43.2.
This is particularly so when the accused’s evidence, carefully scrutinised, was couched in a manner to infer, if not expressly state, that it was Dimi, rather than Jarrod or Dylan, who may have secreted the firearm in the vehicle without the accused’s knowledge. That evidence included the accused’s evidence with respect to the finding of the bloody syringes after Dimi had borrowed the vehicle, and of him not experiencing any similar issues when either Jarrod or Dylan had borrowed the vehicle. The accused also gave evidence that when he last properly inspected the vehicle, which he said was on the Saturday (just before Dimi allegedly borrowed it), that he did not see the knuckle dusters, the knife in the passenger door, or the ice pipe, such that it could be inferred that those items only made their way into the vehicle once Dimi had subsequently borrowed it.
Given this evidence, effectively ‘finger-pointing’ Dimi, one must question the veracity of the accused’s claim that Jarrod and Dylan also ‘went missing’.
The evidence as to the bloody syringes was a two-edged sword for the accused. In one respect, it painted Dimi as a person who either used drugs or associated with others who did, thus potentially strengthening an inference that it was Dimi (or his mates) who put the firearm in the vehicle when Dimi allegedly borrowed it on 4 December 2017. Arguably it could be inferred from that evidence that Dimi, or his mates, were prone to leaving dangerous items in the vehicle.
However, if on a prior occasion when he had borrowed the vehicle, Dimi (or his mates) did leave bloody syringes in the vehicle as claimed by the accused, on the seats, the accused’s claim that he continued to trust Dimi with the vehicle and continued to frequently lend it to him, was difficult to accept.
This was a vehicle that the accused used to transport his four young children and Dimi knew that. If Dimi had exposed the children (or indeed anyone who used the back seat or the front passenger seat in the vehicle) to that risk of injury, it is simply implausible that the accused would continue to lend him the vehicle thereafter and/or not thoroughly inspect it after it was returned to him on each such occasion. On this point, it is pertinent that the accused had a front seat passenger in the vehicle when he was stopped on 5 December 2017, allegedly shortly after Dimi had returned the vehicle to him, yet he must not have even given it a cursory inspection before driving, given his claimed lack of knowledge of the majority of items found by police in the vehicle.
The accused’s evidence as to when Dimi, Dylan and Jarrod had allegedly borrowed the vehicle in the week before December 2017 was inconsistent and confused.
As it is now over 15 months that these events unfolded, it is not surprising that the accused does not know exactly what day or date these men allegedly borrowed the vehicle. Further, the manner of his questioning in evidence-in-chief may have contributed to a genuine misunderstanding as to what day of the week it was on any particular date.
However, even making those allowances, the accused’s evidence as to when Dimi allegedly borrowed the vehicle, carefully considered, is internally inconsistent and I cannot accept it.
The accused said on several occasions that Dimi borrowed the vehicle on the Sunday. It was also plain from his evidence that he said Dimi had returned the vehicle at 10 pm, and said that it was shortly thereafter that he got the call from Mr Nasradden and went to pick him up. The accused claimed he had not seen the various items found by police in the vehicle because of the late hour, the fact it was dark and he did not ‘pay attention’. This was the accused’s explanation for why there was simply no opportunity for him to inspect the vehicle after Dimi returned it to him and before he drove it on 5 December 2017. If that evidence is accepted, it lends support to his claim that he could not reasonably have been expected to know the firearm was in the vehicle.
The accused eventually conceded that as the day before he was pulled over was 4 December, being a Monday, Dimi must have borrowed the vehicle on a Monday.
While it is possible the accused is now confused as to the day Dimi borrowed the vehicle (that is, Sunday or Monday) given the passage of time, this does not fit with the evidence he gave to justify why he had not seen those items in the vehicle before driving it in the early hours of 5 December. If Dimi borrowed the vehicle on the Sunday, there was the opportunity for the accused to inspect the vehicle on the Monday, before being pulled over by the police that second time on Tuesday 5 December 2017. If, as the accused claimed, Dimi had previously borrowed the vehicle and thereafter left two bloody syringes in the vehicle, it is inconceivable the accused would not have properly inspected the vehicle on the Monday, given he said he saw his children every second day and that he used the vehicle to transport his children.
Even a cursory inspection of the vehicle by the accused would have alerted him to the fact the knuckle dusters were in the vehicle. In those circumstances, one would expect a responsible person, in charge of a vehicle, to then carefully scrutinise the vehicle to determine what else, if anything, had been left in the vehicle, particularly given the previous syringe incident.
Moreover, the accused also gave evidence that Dylan was the first to borrow the vehicle in the week before 5 December 2017 and that he had borrowed it on the day before he was first stopped driving in the early hours of 2 December 2017. If this was so, then Dylan must have borrowed the vehicle on 1 December 2017. Even if Dimi borrowed the vehicle on Monday 4 December 2017, for Jarrod to have borrowed it in between, he must have had it on the Saturday or the Sunday. The accused said he would take his children out to eat on a Sunday (albeit he later said this may occur on a Saturday). He also said he saw his children every second day. When the accused’s evidence as to who allegedly borrowed the vehicle that week is carefully scrutinised it simply does not ring true.
There are other aspects of the accused’s evidence which were not believable. The accused’s oldest son was only 8 as at 5 December 2017 and it is very difficult to believe that he would both remove and install the car seat in the way as claimed by the accused. My impression of this evidence was it was designed to further remove the accused from having had any contact with the interior of the boot of the vehicle.
Similarly, the accused’s evidence that he was, in effect, always in the lounge room at the Oakden address, with a clear view through the open curtains to the street outside, meaning he knew when the vehicle was about to be returned, was fanciful.
Finally, I simply do not accept the accused’s evidence that Dimi, Dylan and Jarrod would have others drop them (and pay them) or catch Ubers to collect the vehicle to borrow it, and that he never asked them why they could not utilise these other options rather than borrow his vehicle, or insist upon them paying him some petrol money. While the accused offered an explanation for this, namely that he could not do that as they needed the vehicle for a couple of hours or a day, this makes his evidence that he did not routinely ask them why they needed to borrow it, particularly for such a lengthy period of time, difficult to accept.
It was submitted that the firearm was not readily accessible, given its presence under the shelf in the boot, and under the various items in the boot including the car seat. However, if someone other than the accused had left the firearm in the vehicle, upon returning the vehicle to the accused after borrowing it, that person effectively lost control of the firearm. Irrespective of the accused’s claim that he was very generous in the lending of the vehicle, which he did with much frequency, the fact remains, that any other such person would not know when it was that they would next have the ability to access the firearm. It simply makes no sense for someone other than the accused, and without the accused’s knowledge and agreement, to leave the firearm in that unzipped bag in that compartment of the vehicle.
I am mindful of the fact that there is no forensic evidence linking the accused to the firearm. However, the absence of fingerprints can be explained by the possible use of gloves when handling the firearm, or the use of something, for example the small blue towel found in the front passenger door of the vehicle,[152] to wipe the firearm down after handling. It was an agreed fact that a person can come into contact with an item and not leave DNA on it. Further, it was also an agreed fact that the amount of DNA required to obtain a reading for analysis is very low.[153] As such, the presence of the DNA on the firearm is not inconsistent with attempts having been made to remove fingerprints by wiping it down.
[152] Exhibit P3, images 5022 and 5023.
[153] Exhibit P5 [12] and [13].

I am not satisfied that the accused was either a reliable or credible witness.
I am not satisfied on the balance of probabilities that the accused did not know the firearm was in the vehicle and that he could not reasonably have been expected to know the firearm was in the vehicle.
The prosecution has proved beyond reasonable doubt:
1The accused was in possession of a firearm.
2The firearm was a prescribed firearm.
3The accused did not hold a licence authorising possession of that firearm.
4The firearm was loaded.
Verdict
The accused is guilty of the offence as charged.