R v Ioannidis
[2014] SADC 198
•21 November 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v IOANNIDIS
Criminal Trial by Judge Alone
[2014] SADC 198
Reasons for the Verdict of Her Honour Judge Davison
21 November 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - MISCELLANEOUS OFFENCES AND OTHER MATTERS
The accused is charged with one count of possessing ammunition contrary to a firearms prohibition order that had been issued and served on her on 12 April 2012.
On 29 December 2013 police pulled over a vehicle in which the accused was a passenger. After she alighted from the vehicle the police searched her handbag. In that handbag they located three rounds of .32 calibre ammunition.
Verdict: guilty.
Firearms Act 1977 (SA) ss 10C, 32, 36, 36A; Road Traffic Act 1961 (SA) ss 40H, 40V; Summary Offences Act 1953 (SA) s 68, referred to.
Bunning v Cross (1978) 141 CLR 54; Marafioti v R [2014] SASFC 8; R v Nguyen (2013) 117 SASR 432; He Kaw The v R (1985) 157 CLR 523, considered.
R v IOANNIDIS
[2014] SADC 198
Natalie Ioannidis is charged with one count of possessing ammunition contrary to a Firearms Prohibition Order (FPO). In the early hours of Sunday 29 December 2013 the police pulled over a Holden sedan in which the accused was a passenger. After she had alighted from the vehicle the police searched her handbag that was in the footwell of the passenger side of the car. In that handbag they located three rounds of .32 calibre ammunition. The accused is subject to a FPO that had been issued by the Registrar of Firearms and served on her on 12 April 2012. Ms Ioannidis made an application for trial by judge alone. The matter proceeded before me without a jury.
The charge
Statement of Offence
Possessing Ammunition Contrary to a Firearms Prohibition Order. (Section 10C(3) of the Firearms Act, 1977).
Particulars of Offence
Natalie Ioannidis on the 29th day of December 2013 at Campbelltown, had in her possession ammunition, namely a three rounds of .32 calibre ammunition, whilst subject to a firearms prohibition order.
At the commencement of the trial there was an application for a voir dire. This application related to the question of search of the vehicle and the interpretation of the Firearms Act 1977 (SA) hereinafter referred to as the Act.
The voir dire
Initially the voir dire centred on two issues. The first was whether the police had the power to pull over the car in circumstances where they believed Mr Kluse was the driver of the car. It is alleged that they utilised their powers pursuant to s 40H of the Road Traffic Act 1961 (SA), hereinafter referred to as the RTA, and then s 40V of the RTA to direct the driver to give his personal details. It was submitted that the police can only do this if the personal details of the person to whom they are giving the directions are unknown to them. It was initially submitted that the personal details of Mr Kluse were known to the police at that time and therefore the stopping of the vehicle and direction pursuant to s 40 were unlawful. As it transpired, Mr Graham who was counsel for the applicant received some further information that undermined this submission. He did not pursue this argument.
The voir dire proceeded on the basis that the stopping of the motor vehicle had been lawful but it was outside the terms of the Act to enable a search of a handbag that had been in the possession of Ms Ioannidis but was left in the motor vehicle when she alighted. The basis for this objection was that the relevant provisions of the Act only permitted a search of the motor vehicle if the person to whom the FPO applied is in charge of the vehicle.
The voir dire commenced with the prosecutor calling Senior Constable Leon Rusak. Senior Constable Rusak was stationed at the Norwood uniform tactical team. On 29 December 2013 he was on patrol with Constable Rogers. At 2am on that day they were driving in a police car around the Campbelltown area. They were making general observations on Florence Street and Allan Street at Campbelltown. They saw a vehicle pull away from the kerb outside the premises where they were aware the accused lived. They were aware that she was regularly in trouble with the law;[1] they followed that motor vehicle. As they were following the motor vehicle Constable Rogers conducted registration checks on the mobile data terminal (MDT). When he did so the registered owner was ‘flagged’ as being wanted for questioning in relation to some traffic matters. The registered owner was recorded as Kayne Kluse. As a result of receiving that information, Senior Constable Rusak activated the lights on the patrol car and pulled the motor vehicle over in Spencer Street, Campbelltown. He gave evidence that he utilised s 40H of the RTA in order to stop the vehicle. Senior Constable Rusak had a conversation with the driver and recorded his personal details in his notebook. He then conducted a record of interview with him. As a consequence of that interview Mr Kluse was reported for the offence of failing to provide details of the driver of the motor vehicle at a certain place and time. While Senior Constable Rusak was speaking with the driver he was aware Constable Rogers was speaking with the passenger of the car. When that passenger alighted from the car he recognised her as the accused. Senior Constable Rusak became aware that something of interest had been found in the vehicle after he concluded his record of interview with Mr Kluse. He then assisted Constable Rogers to take the accused to the city watch house. He was present for the record of interview and the charging process.
[1] TT 23.
Senior Constable Rusak was cross-examined. He confirmed that the accused is ‘a person of interest’ to the police and that the reason they had been in her street at 2 o’clock on that morning was because they were checking the addresses of persons of interest. He said when officers do not have a specific tasking they drive past addresses of interest.[2] They followed this particular motor vehicle because it pulled out from the front of the accused’s address. Senior Constable Rusak explained that it was basic policing to conduct checks on vehicles at premises of interest and that is what they were doing on that morning. He gave evidence that they followed the vehicle for about 15-20 seconds before they activated the police lights. They did this on Lower North East Road as they were approaching Spencer Street, after they had received the information from the MDT that the driver was wanted for questioning. Senior Constable Rusak gave evidence that the decision to search the accused and the car was not his decision and he had nothing to do with either.
[2] TT 27.
The Crown called Constable Rogers. At 2am on 29 December 2013 he was on patrol with Senior Constable Rusak. They were patrolling streets in the Campbelltown area. At that time he saw a car leaving from the front of 12 Allan Avenue, Campbelltown. He knew the accused lived at that address. He followed the vehicle that had left from the front of 12 Allan Avenue, Campbelltown and did a registration check. That check revealed that the registered owner of the motor vehicle was wanted in relation to speeding and traffic offences. The registered owner was a man by the name of Kayne Kluse. Constable Rogers then read some more information on the MDT and advised his partner who activated the warning lights and stopped the motor vehicle on Spencer Street, Campbelltown. He estimated that they were following the car for a couple of minutes before the car was stopped.
Once the car was pulled over Constable Rogers got out of the police car and approached the driver’s side. The driver exited the vehicle and spoke with his partner Senior Constable Rusak. Constable Rogers went to the passenger side of the car and observed a female he recognised as the accused. He knocked on the window to speak to her, she wound the window down and he asked if she had any identification.[3] He did this so that he could confirm whether she was the person the subject of a FPO. She then retrieved identification from her handbag that was between her feet in the footwell. She got the identification from within her purse in that handbag. The identification was a driver’s licence and Constable Rogers then recorded the details of that licence. He went back to the police car to confirm whether the FPO was still in effect and also to check on any bail conditions that may have been in existence.[4] He then returned to the car and asked her to get out of the car. He wanted to conduct a search of her and the car. He was utilising his powers under the Act to search in relation to the FPO. The accused got out of the vehicle and went to the footpath with him. By that time another patrol had arrived. The police officers were Constables Said, Windsor and Carcuro.
[3] TT 41.
[4] TT 42.
Constable Rogers asked Constable Windsor whether she could assist in searching the accused and he asked the other two constables to search the vehicle. Constable Said asked them to come over to the vehicle and at that stage he was at the rear of the vehicle with the accused’s handbag on the boot. Constable Said opened the bag and showed Constable Rogers three rounds of ammunition. The ammunition was seized.[5] After a short conversation with the other police officers the accused was arrested and an interview was conducted. She was conveyed to the City Watch House.
[5] VDP 1. TT 43.
Constable Rusak took photographs of the handbag and the ammunition.[6] He gave evidence that this was the first time he had searched anyone the subject of a FPO. His understanding of the power to search was that he could search a person, the subject of the order, as well as the vehicle that they were in, or a house that they lived in.
[6] VDP 2. TT 45.
Constable Rusak was cross-examined. In cross-examination he said that he had intended to search the vehicle but when Constables Carcuro and Said arrived they took over the search as there was no room for the three of them to search the vehicle. He confirmed that he had directed the other two constables to search as the accused was the subject of a FPO.[7] He said that at that stage he had no suspicion that there were drugs or firearms in the motor vehicle and the only reason to search was because of the FPO. He gave evidence that it is his practice to search a person the subject of a FPO each and every time he came across them. He said that he did this in order to ensure that there was compliance with the order. That was the reason the search had occurred on this occasion. He agreed that he did not know the last time Ms Ioannidis had been searched and did not know whether it had been the day before or six months before.[8] He had no information that she was not complying with the FPO and he knew nothing about her other than she was a person of interest with a FPO. He agreed that the accused was not in control of the vehicle that he had pulled over and he did not think she was the person in charge of the vehicle.
[7] TT 47.
[8] TT 48.
Constable Rusak gave evidence that he formed the intent to search the vehicle when he confirmed that the passenger was the accused. Until he had confirmed her identity he had not made this decision. He confirmed that his understanding was that a search pursuant to a FPO needs to be “reasonably required to ensure compliance with the FPO”[9] and that he believed searching the accused was reasonably required for the purpose of ensuring compliance.[10] He said that he had gained his understanding in relation to his powers in respect to FPOs in general conversation with workmates. He had not had any training in relation to it since he was in the academy in 2009.[11] He had little recollection in relation to the training that he had received. He gave evidence that he believed that he had the power to search a vehicle if the person who was the subject of the FPO was in the vehicle.
[9] TT 51.
[10] TT 52.
[11] TT 54.
Constable Jayden Said was called by the prosecution. At 2 o’clock on the morning of 29 December 2013 he was on patrol with Senior Constable Windsor and Constable Carcuro. They attended a traffic stop in Spencer Avenue, Campbelltown.[12] When they did so their colleagues Constable Rogers and Senior Constable Rusak were present. They saw the police car stationary with a Holden sedan in front of the police vehicle. When they arrived, Senior Constable Rusak was on the driver’s side of the Holden sedan and Constable Rogers on the passenger side.[13] Constable Rogers was speaking to a person in the passenger seat. Constable Said recognised the person in the passenger seat as the accused. He had not had previous dealings with her but knew her as a person of interest at the Norwood Police Station. He heard Constable Rogers inform the accused that a search would be conducted. Constable Said thought that the search would be conducted in relation to the FPO and he was aware at that stage that the accused was the subject of such an order. Constable Said was aware that there is a power to search a person the subject of a FPO and also thought there was power to search the vehicle and the premises.[14] He observed the handbag in the passenger footwell of the car as the accused was stepping out of the car. He gave evidence that it is common to ask people to get out of the car before a search. This was the first time he had conducted a search in relation to a FPO. He said that he usually asks someone to exit a vehicle for his safety before conducting a search.[15] He said that he usually asks for personal items to be left in the car for safety as there may be something in a handbag or bag that he did not want the subject to have possession of.
[12] TT 56.
[13] TT 57.
[14] TT 58.
[15] TT 59.
Constable Said described the search. He took the handbag from the passenger footwell to the rear of the vehicle, placed it on the boot and searched it. While searching the handbag he observed a driver’s licence in the name of the accused. In the rear zipper he located a purse that had other cards in the name of the accused.[16] In the middle compartment there was an inbuilt pocket in the fabric and inside that pocket he located three .32 bullets. He identified the handbag from the photographs.[17] He then conducted a search of the remainder of the vehicle and nothing further was located. Later that night he attended at 12 Allan Avenue, Campbelltown, the accused’s address, and searched the premises. Nothing relevant was located.
[16] TT 59.
[17] VD P2.
Constable Said was cross-examined. It was put to him that he had searched the car because he was told to by Constable Rogers. Constable Said said that Constable Rogers told the accused she was to be searched and he then searched her handbag and started searching her purse. Constable Said said he took it upon himself to search the handbag when he knew that the accused was going to be searched. He said when he first saw the handbag the accused was still in the car. He said that he had already noticed the handbag in there before she alighted from the car and made further observations as she exited the car. When she fully exited the car and was speaking to Constable Rogers he took hold of the handbag and took it to the rear of the vehicle. It was after that that he searched the entire car. Constable Said said that he had obtained his understanding of his powers under the Act from speaking to senior people in the police and also from the Act. He said he had looked at the Act from time to time.[18] He gave evidence that he had not looked at the Act before he searched the car on this occasion but has looked at it since. Constable Said gave evidence that he was of the belief that he had the power to search a person and the vehicle they were in if the person had a FPO. He also said that he understood that it was necessary that the search be reasonably required for the purpose of ensuring compliance with the order at the time he conducted the search.[19]
[18] TT 65.
[19] TT 68:28-38.
QWas that the basis upon which you conducted the search of the handbag.
AYes.
QWhy did you have that understanding.
ASorry?
QWhere did you get that understanding from, that because the handbag may have been in her possession that you could then search that as part of the search of her person.
AThat was just the way I interpreted it as.
QIs that the way you interpreted it on the night.
AYes.
Constable Said agreed that he did not have any reason to believe that the accused might have firearms or ammunition or drugs on her at that point. He said that it was his practice to search a person with a FPO on each occasion when he came across them. I asked Constable Said some questions in relation to his general training. He said he has had training in relation to the Act but he could not recall it in detail. He said there had also been a training session on FPOs but could not recall when that had been conducted however he thought it was before the search in question. He gave evidence that FPOs were not something that he was very familiar with as there are very few of them in the area in which he was working. He gave evidence that he has looked at the Act since this time and understands that he can search a vehicle that the person, the subject of the FPO is in charge of. He said that he did not necessarily consider that the accused was in charge of the vehicle on that night but considered that her handbag was in her possession and that gave him sufficient grounds to conduct the search. He said that was the basis upon which he had conducted the search.
In cross-examination, Constable Said said that he had looked at the Act and in particular s 32 prior to giving evidence. He then gave evidence that he had been aware on this particular night that he could not search the vehicle unless the person who had the FPO was in charge of the vehicle. He said that he had searched the vehicle after finding the ammunition in her handbag and the finding of the ammunition had given him a reasonable cause to suspect that there may have been other items in the vehicle.
The cross-examination of Constable Said continued the next morning. Constable Said conceded in cross-examination that as at 29 December 2013 he was of the view that he was entitled to search the vehicle even if the accused was not in control of that vehicle. This was, he thought, because she was a person subject of a FPO. It was put to him that the first thing that he did in relation to searching the vehicle was to search her handbag. Constable Said maintained that he was searching the handbag as a part of the personal search of the accused’s property but that he was intending to go on and search the car in any event. He was cross-examined about his understanding of the Act. At times this cross-examination was quite confused. Constable Said said that on his reading of the legislation he was only entitled to search the vehicle if the accused had been in control of the vehicle. However, discussions with other officers had led him to believe that his powers were wider than that. It was put to Constable Said that he changed his evidence in relation to his understanding of the law and the powers that he had in respect of search. Constable Said denied this. He said that he had been trying to explain in court that his understanding of the FPO was a bit different to what he had been told by other officers from time to time.
The prosecution called Constable Carcuro. He attended at the scene where Mr Kluse’s car had been stopped. When he alighted from the vehicle he recognised the accused. He said that he has had dealings with her in the past. He said that he was advised to search the car by Constable Rogers and he did that. Constable Carcuro gave evidence that he had exercised his powers under the Act, in particular that there was a FPO in relation to the accused.[20] He gave evidence that at the time he started searching the car, Constable Said was searching a handbag on the boot of one of the police vehicles. He said he was unaware whether Constable Said had located anything in the handbag at the time he commenced his search of the vehicle. He did not locate anything of relevance on his search of the vehicle. He then attended at Allan Avenue, Campbelltown and searched that address but did not find anything of relevance.
[20] TT 84.
Constable Carcuro was cross-examined. He gave evidence that he believed that because the accused was subject to a FPO and was a passenger in the car, he had the power to search the vehicle. He said he was of this belief because he had spoken to other police officers about it and “through learning”. He said he still holds this belief today.[21]
[21] TT 86.
The prosecution called Senior Constable Windsor. She attended at the scene where the car had been stopped. She saw the accused and recognised her from photographs. She was asked by Constable Rogers to search her as she was the subject of a FPO. She conducted the search of the accused and did not locate anything on the person.
Senior Constable Windsor was cross-examined. She was asked whether she had been asked by Constable Rogers to do anything else. She said she could not recall. She said that after searching the accused she felt unwell and went and sat in the back of the police car. Senior Constable Windsor gave evidence that when she first arrived the accused was seated in the passenger seat of the vehicle.
The prosecution tendered a certificate pursuant to s 36 of the Act.[22]This certificate certified that on 12 April 2012 the accused was served with a FPO.
[22] VD P3.
The parties then agreed facts:
·Constable Rusak searched Kayne Kluse using powers available to him pursuant to s68 of the Summary Offences Act.
·That the basis for exercising that power was the fact that the police had located three rounds of ammunition in the accused’s handbag.
·These facts were agreed by the defence.[23]
[23] TT 90.
The defence did not call any evidence on the voir dire.
Submissions
Mr Graham commenced on the submissions. He submitted that the powers under the Act relating to FPOs are extraordinary powers that extend criminal liability. He outlined the responsibilities that a person who is a subject of such an order has in relation to the disclosure of that order to others. In addition to this, Mr Graham made submissions that these powers reduce a person’s civil liberties as they increase the opportunities for police to search people and premises without the need for a reasonable suspicion that an offence has been or is about to be committed. He submitted that because of these strictures it is necessary that the legislation be strictly construed and that this should also be a consideration in the exercise of the discretion where the behaviour has been unlawful.
Mr Graham submitted that the police did not have the power to search the blue Holden merely because the accused was a passenger in the car and the subject of a FPO. He submitted that the police witnesses misunderstood their powers.
Mr Graham made submissions that the police had the power to detain the accused and to search her for firearms or ammunition only if this was reasonably required for the purpose of ensuring compliance with the FPO. He submitted that the term ‘reasonable requirement’, whilst being less than a ‘reasonable suspicion’, has to be more than simply identifying a person who has a FPO issued to them. He said that the police are taking this to an extreme by searching anyone that they located who had a FPO. He said the words ‘reasonable requirement’ must be taken to be a limit on the powers that had been given to the police to search so that the powers could not be used to harass and be abused by the police. He submitted that the powers had to be exercised in a way that was more than just an ad hoc search and that the police officers involved in this matter did not have any information about the accused other than the fact that she was a person of interest and subject to this order. In short, he suggested that the search of the person of Ms Ioannidis was not lawful as it was not reasonably required in these circumstances.
Mr Graham submitted further that the search of the handbag in which the ammunition had been found should be considered to be a search of the vehicle. In these circumstances the police had no power to search the vehicle as it could not be contended that the accused was a person who was in charge of the vehicle at that time. This denies the police power to search the vehicle pursuant to s 32 of the Act. Mr Graham submitted that the police had always intended to search the vehicle and the search of the handbag was a part of the search of the vehicle and as such was unlawful. He submitted that, in the circumstances, the interpretation given to the words ‘search the person’ in s 32(3a)(a) of the Act should be given a narrow interpretation to reflect the penal nature of the section.
Mr Graham further submitted that the police officers, in particular Constable Said, had been less than frank in their evidence in relation to their understanding of their powers. He submitted that all the police officers were ill informed in relation to their powers to search a vehicle in these circumstances.
Mr Graham then made submissions in relation to s 10C(14)(a) of the Act; there is a presumption of possession of a firearm, firearm part or ammunition where the person who is the subject of the FPO is in a vehicle where a firearm, firearm part or ammunition was found unless it is proved that the person did not know and could not reasonably be expected to have known that the firearm, firearm part or ammunition was in the vehicle.
Mr Graham submitted that a strict reading of the section would require that the accused was physically in the vehicle at the same time the ammunition, in this case, was located in the vehicle. That would require the police in these circumstances to keep the person the subject of the FPO in the vehicle whilst they were searching it. In these circumstances, he said that at the time the ammunition was found both the accused and her handbag were out of the vehicle and as such this presumption does not apply.
Ms Ingleton made submissions on behalf of the prosecution. She submitted that the starting point in relation to consideration of the lawfulness of the search was in ss 32(3a) and (3b) of the Act. She submitted that the police officers have a power to detain a search person who was the subject of a FPO as is reasonably required for the purposes of ensuring compliance. That was the power that the police officers were exercising on this night. The term ‘reasonably required’ is not defined in the Act but is properly interpreted as not immoderate, excessive, unjust or intolerable. This section gives the police the power to do what they need to do to ensure compliance with the order and it could not be said that the search of Ms Ioannidis was not reasonably required in these circumstances to ensure compliance.
Ms Ingleton conceded that the police officers were operating under a misapprehension in relation to their powers to search the vehicle in which the accused was a passenger, but that that was not critical in relation to this case in any event.
Ms Ingleton submitted that the ammunition, having been found in the handbag that had been in the possession of the accused while she was in the vehicle, should be considered to be a search of the person of Ms Ioannidis and the handbag was an extension of the search of her person rather than the search of the vehicle in any event. She submitted that had Ms Ioannidis been stopped in the street in possession of her handbag or any other bag, then the police would have the power to search the handbag as a part of the search of the person. On this occasion what the police did was no more than observe proper security measures by requiring Ms Ioannidis to alight from the car so that there was no security issue in relation to her handbag at the time she was searched. The evidence revealed that her handbag was then searched by a police officer at the same time perhaps as other police officers were searching the vehicle.
Ms Ingleton submitted that there could be no doubt that the handbag had indeed been in the possession of the accused at a time when she had been in the car and indeed she had been observed to retrieve her identification from that handbag that was between her feet in the passenger footwell.[24] It was therefore her handbag and her handbag alone.
[24] TT 109.
Ms Ingleton submitted that if I was not persuaded that the handbag was part of the search of the person then it should be considered to be a part of the vehicle search. In those circumstances, the search of the vehicle would be unlawful. I would then need to consider the exercise of my discretion and she referred to the well known authority of Bunning v Cross[25] and the considerations in relation to the exercise of the discretion.
[25] (1978) 141 CLR 54.
In respect of the s 10C(14)(a), Ms Ingleton submitted that the section had application in this case and it could not possibly be the case that Parliament had intended that the police keep a person in premises, vehicle or aircraft whilst they searched.
I delivered my ruling in relation to this matter ex tempore and now provide my reasons in relation to it.
Ruling
In respect of the application for the exclusion of the evidence of the search I find that the search of the handbag was a part, and a lawful part, of the search of the applicant pursuant to s 32(3a) and that that search was reasonably required for the purpose of ensuring compliance with the FPO that was in place at that time.
Further, I find that in the circumstances of this case s 10C(14)(a) has application, and that if there is a finding of ammunition in the vehicle then it is presumed to be in the possession of the applicant unless she proves otherwise.
Reasons for ruling
The accused is charged with the offence of possessing ammunition contrary to a FPO. This is an offence pursuant to s 10C(3) of the Act. I am satisfied that the accused was as at 29 December 2013 a person who was subject to a FPO. She was observed by the police in a motor vehicle that drove away from the outside of her home at about 2am on 29 December 2013. She was in company with a person who was wanted by the police for questioning. She was a person of interest to the police and it was known by the police officers who later conducted the search that she was a person the subject to a FPO. This had been checked by the police officers prior to any search occurring. The police have wide powers of search pursuant to the Act.
Section 32 (3a) of the Act is as follows;
(3a) A police officer may, as reasonably required for the purpose of ensuring compliance with a firearms prohibition order issued by the Registrar or to which a person is subject by order of a court –
(a) detain a person to whom this subsection applies and search the person for any firearm, licence, firearm part or ammunition liable to seizure under this section; and
(b) stop and detain a vehicle, vessel or aircraft to which this subsection applies and search the vehicle, vessel or aircraft for any firearm, licence, firearm part or ammunition liable to seizure under this section; and
(c) enter premises to which this subsection applies and search the premises for any firearm, licence, firearm part or ammunition liable to seizure under this section.
(3b) Subsection (3a) applies –
(a) to a person who a police officer suspects on reasonable grounds is a person to whom a firearms prohibition order issued by the Registrar applies or to which the person is subject by order of a court;
(b) to a vehicle, vessel or aircraft that a police officer suspects on reasonable grounds is in the charge of a person to whom the subsection applies;
(c) to premises that a police officer suspects on reasonable grounds are occupied by, or under the care, control or management of a person to whom the subsection applies.
When these measures were introduced in Parliament the Second Reading Speech included:
The Firearms (FPOs) Amendment Bill 2008 is the first step in the refocusing of firearms regulation in South Australia. It provides for increasing the powers of Police in relation to violent crime involving firearms, and provides Police strong powers for taking pre — emptive and compliance authority over persons who, through their own actions and history, have shown they are a menace to society and a threat to public safety. Such strong powers are complemented by development of judicial review process, and are targeted against those who have shown a propensity for the use of violence for their own ends, rather than against the legitimate legal firearms community. The Bill will introduce the strongest powers available nationwide to Police in South Australia to combat violent firearms related crime.
The intention of Parliament is a relevant consideration in determining how this section should be interpreted.
The police are given a wide power to detain and search the person who is the subject of such an order as is reasonably required for the purpose of ensuring compliance with the order. The power needs to be understood in the context of the section and the aim of the Act. As noted by Kourakis CJ in Marafioti:[26]
The danger to the community posed by the unregulated possession of firearms is notorious.
[26] Marafioti v R [2014] SASFC 8
A purposive approach to the interpretation of the legislation provides strong support for the wide construction of the terms of s 32(3a) and (3b).
The precondition to the search is that it must be ‘reasonably required’. ‘Required’ may be defined as ‘needed’.[27] It must be reasonable not just in the mind of the police officer but also engender that requirement in the mind of a person thinking reasonably about the need, bearing in mind the context of the powers and the civil liberties abrogated by their exercise. [28]
[27] Macquarie Dictionary online.
[28] R v Nguyen (2013) 117 SASR 432 at [22]
The FPO includes the condition that the accused ‘not acquire, possess or use any firearm, firearm part or ammunition’.[29] This is a standard condition of such an order. Firearms, firearms parts and ammunition are all capable of being easily concealed on the person or in bags. Indeed it might be said these are the most common ways that these items are transported.
[29] P4
The powers in relation to search are drawn in a very wide way in order to ensure that the police have the capacity to ensure compliance with such an order. What is “reasonably required” will be determined by the circumstances as they existed at the time.
In my view the search that was conducted on the person of Ms Ioannidis in the early hours of that morning was reasonably required for ensuring compliance with the order. Not only was it 2 o’clock in the morning but the accused was in a car with a person wanted for questioning. There was no other way for the police to ensure that she did not have possession of items contrary to the FPO other than to search her and her belongings. There is no requirement that the police have a reasonable suspicion that she is in breach of the FPO prior to searching her. Indeed to interpret the section in this way would frustrate the very intent of the legislation.
The Police acted on very limited information at the time the search was conducted. However, there is no reason to think that this search was not reasonably required given the circumstances that they encountered at that time to ensure compliance with the order. The police have not acted in any way to abuse their powers in relation to the search of her person.
Was the search of the handbag part of the search of the vehicle or the person?
Ms Ioannidis’ handbag was in the footwell of the passenger side of the car where she had been seated. When the police officers approached her she reached into the handbag, retrieved her purse and her identification from that handbag. A subsequent search of the handbag located three .32 calibre bullets. Also located in the handbag were various pieces of identification for Ms Ioannidis. I have no doubt that it was her handbag. There was no suggestion that it belonged to anyone else. If she had the retained the physical possession of that bag as she alighted from the vehicle then there would be no doubt that it could be searched by the police. The fact that it was left in the car for security reasons does not alter the fact that it was her personal property. In the circumstances, I consider for these reasons the search of the handbag is included in the search of the person rather than a search of the vehicle.
All the police officers in this case lacked a proper understanding of their powers to search the vehicle pursuant to s 32(3a) and (3b) of the Act. This is naturally a concern where police officers are given very wide powers of search under this Act. It is the obligation of all Police Officers who exercise or may exercise these powers to have a clear and accurate understanding of their powers and the limitations of them. However on the facts of this case the Police have not exceeded their authority by search the applicant or her handbag.
I therefore found that the search of the accused and her handbag was a lawful search pursuant to s 32(3a) of the Firearms Act, 1977 (SA).
Presumption in s 10C(14)(a) of the Firearms Act 1977
I was asked to rule in relation to the presumption may arise from s 10C(14)(a) of the Act. This presumption arises in the circumstances of this case as the ammunition, the subject of the charge, was in the vehicle with the accused prior to police asking her to alight from the vehicle. In the circumstances, this presumption does apply and it is therefore incumbent upon the accused to prove on the balance of probabilities that she did not know and could not reasonably be expected to know that the ammunition was in the vehicle if it is proven that she and the ammunition were in the vehicle.
I reject the argument put by Mr Graham that the section requires that both the accused and the ammunition be in the vehicle at the time when the ammunition was located. To find this I would completely frustrate the operation of the section and there could be no basis in law for so doing.
The trial then commenced.
The trial
Legal directions
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of her guilt. In these reasons if I use the word proved, established, or satisfied then I have meant in each case to an extent that excludes reasonable doubt.
The accused is presumed by law to be innocent of the charges unless and until the evidence that I accept satisfies me that each and every element of the offence has been proven beyond reasonable doubt.
If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then she remains innocent and I must return a verdict of not guilty.
In this matter there is a presumption of possession if the Prosecution prove that the accused is a person to whom a FPO applies and she was in a vehicle when ammunition was located in that vehicle.[30] It may be rebutted by the accused if it is proved that she did not know and could not reasonably be expected to have known that the ammunition was in the vehicle. The standard of proof is on the balance of probabilities. There are two aspects to this defence. The first is subjective test of lack of knowledge on the part of the accused. The second is an objective test of the reasonable person in the position of the accused with the information that she had at that time. Both limbs of the test must be proven on the balance of probabilities.
[30] s10C(14)(a) Firearms Act 1977 (SA)
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
The accused has given evidence. She was not obliged to give evidence but chose to do so. Her evidence must be considered along with the other evidence in the case.
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.
During the course of the trial there was evidence from which an inference could be drawn that the accused has in the past engaged in activities that indicate she may have committed offences or been of bad behaviour. I make it plain that I have not used any evidence in a way that is impermissible.
Ms Ingleton opened on behalf of the Crown. The evidence that was to be led was essentially the evidence that had been led on the voir dire and I am not going to repeat that here.
Ms Ingleton submitted that the Crown had to prove the following beyond reasonable doubt in order to secure a conviction:
1the accused was in possession of the ammunition on the day and at the place nominated in the Information;
2the accused was the subject of a FPO that was in force at the time of possession.
The Crown submitted that there is a rebuttable presumption in s 10C(14) of the Act that would operate in this case if I was satisfied that the accused was the subject of a FPO and she was in a vehicle in which ammunition had been found.
Mr Graham outlined the issues in contention. He submitted that it was not in dispute that the ammunition was located in the handbag nor would it be in dispute that the accused was in the car or that she was served with a FPO. He submitted that what was in dispute was that she had knowledge that the ammunition was in her handbag and that they intended to prove that she did not have knowledge of the ammunition in her handbag.
Prosecution Case
The parties agreed that I should receive the evidence of Constables Rogers and Said on the voir dire as evidence in the trial. The exhibits that had been tendered on the voir dire were tendered in the trial. These included the three rounds of ammunition seized on 29 December 2013, P1; a bundle of ten photographs, P2; a certificate pursuant to s 36 of the Act, P3; and a FPO dated 3 April 2012, P4.
It was further agreed that the ammunition that had been seized was in fact three rounds of .32 calibre ammunition for the purposes of the Act.
That completed the case for the prosecution.
Defence case
The accused gave evidence. She identified the handbag in P2 as her handbag. She admitted that she had that handbag in the car that was pulled over by the police on 29 December 2013. She said that she had had the handbag for about a year or so prior to her arrest in 2013. She gave evidence that she could not recall whether the handbag was a gift or whether she bought it in Melbourne when she had been there in 2012 whilst on the run from the police. She gave evidence that in December 2012 she and her then boyfriend, Tim Simpson, were on the run from the police staying in a few different places in Melbourne including a caravan park and a hotel on the outskirts of Melbourne. She had the handbag at the time she was in Melbourne. She returned urgently to Adelaide because of problems with her 11 year old daughter and was arrested shortly after she got back to Adelaide. She said she then spent 9 months in custody.[31] She gave evidence that she did not bring the handbag back to Adelaide with her. It had been left in a hotel that she and her partner had prepaid and her partner had organised for the stuff to be picked up and dropped off at her dad’s house at Campbelltown so everything was stored at that premises.[32] She said that she had a few handbags at that time and this was not a handbag that she used very often. She said that it was still a brand new handbag and that she usually carries a bumbag so she had not really had a chance to use it.
[31] TT 124.
[32] TT 126.
The accused gave evidence that she had no memory of having used the handbag at all between the date from her release from custody on 6 August and her arrest on 29 December 2013.[33] She confirmed that the purse photographed within the handbag was her purse and that she purchased that from some shops in Elizabeth. She used that purse on a regular basis.
[33] TT 126.
The accused said that on 28 December 2013 she went to a friend’s house and left her bike there. She then went to her friend Dario’s house and Kayne was there. She consumed the drug ‘fantasy’ with her friends, played the pokies and got dropped off at home. At that stage she did not know Mr Kluse very well but later had engaged in a relationship with him. She said her memory was particularly poor after she had consumed the ‘fantasy’ and her memory of going to the pokies was very vague.[34] She recalled Kayne Kluse dropping her home in a red Hyundai Getz. When she got home she fell asleep for a few hours, then woke and had a shower. She did not know what time Mr Kluse dropped her home but after she had a shower and something to eat Mr Kluse came to her house because she had left her bag in his car. He came inside her house where they “hung out” for a while and then decided to go to the Casino. That was where they were going when they were pulled over by the police. She gave evidence that she had first observed the police car when they were on Hambledon Road before the police activated their lights. They knew they were being followed by the police for about 2-3 minutes before the police stopped them. She gave evidence that the police would regularly drive past her house to check on the premises and they pulled over her friends, she said, as harassment.[35] Her evidence was that she was fairly conscious of police activity around her house.
[34] TT 128.
[35] TT 131.
The accused agreed that Constable Rogers had asked her for identification and she had pulled out her purse in order to get ID and then put the purse back into her handbag. She gave evidence that she did not know where the ammunition came from and did not know that it was in her handbag at that time. She gave evidence that had she known that the ammunition was in her handbag she would probably have thrown it in the back of the car or thrown it out the window because she was aware that having the ammunition would be a breach of her FPO. She went on to give evidence that she is aware of her obligations pursuant to this order and that she takes them seriously.[36] She said she was aware when she saw the police that she would be pulled over and searched because this has happened on a number of occasions before. She went on to outline the occasions when she had been searched prior to this.
[36] TT 132.
The accused was cross-examined. She was asked whether she usually carries a handbag and responded that she usually carries a bumbag but every now and then she has a handbag depending on what she is doing or where she is going. She said that in her bumbag she keeps her purse, keys, phone and all sorts of personal things and conceded that she carries the same things in her handbag that she would carry in her bumbag. She said that whilst she had been in Melbourne she had used the handbag the subject of this trial a couple of times. She became aware her belongings had been brought back from Melbourne to Adelaide when she was told about it by her father and she saw most of the stuff in the shed.[37] She said that she has about five or six handbags and uses them every now and then.
[37] TT 142.
The accused was cross-examined about some items that were located apparently by the police at the Liberty Towers in Glenelg on 19 December 2013. No evidence of these items was presented by the Crown in their case. The only evidence that had been given by the accused was that these premises had been searched on that day. Mr Graham objected to this line of cross-examination. At the time I indicated that I would take the evidence de bene esse which I have done. I have now determined that that evidence is not relevant and I am not taking it into account in relation to the verdict.
The accused was cross-examined about the events of 28 December 2013. She said she went to Dario’s house and met up with Kayne. She had her handbag with her at that time. She had started using her handbag on that day. She transferred her personal effects from her bumbag to the handbag earlier that day. She denied having transferred the bullets. She said that as far as she could remember this was the first day she had used the handbag since her release from custody in August. She had retrieved the handbag from the garage at an earlier stage soon after she was released from custody. She could not recall whether she had taken the handbag into the pokies venue.[38] She did not recall having left it in Mr Kluse’s car but he had brought it back into her house and told her she had left it in the car. She said when she was dropped off at her house she was “pretty under the weather”[39]. She said she had not checked all the pockets of the handbag before using it on 28 December and she could not be sure whether she accessed the handbag at all during the time she was at Dario’s house or with Mr Kluse on 28 December. She gave evidence that prior to going to Dario’s house she had gone to her friend Helen’s house in North Adelaide and then picked up her motorbike and driven her motor bike to Dario’s house. She had a backpack at the time she did this and she had her handbag in the backpack. As far as she knows that is where the backpack remains.
[38] TT 154.
[39] TT 154.
It was put to the accused that if she was exercising as much care and concern to do the right thing in relation to a FPO as she was saying she would have searched the handbag prior to using it. The accused responded that she did look in it and did not see anything in there but she did not look in the little pockets, only the big compartments. She said that she had never looked in the pockets. She said she looked in the handbag in the way she described when she was sorting her stuff out and would have looked in there to make sure there was nothing that should not be there. She said when she looked in the handbag she looked in the middle sections and had a quick glance when she picked up the bag that felt empty. She said the pocket that the bullets were found in is only a small pocket which would not fit anything in it.[40] She agreed that it was not a sealed pocket and looked like a pocket that one might put a cigarette lighter in. She agreed that everything else in that handbag was her personal property except the bullets. I asked her why she had changed from the bumbag to the handbag on that particular day. She said she could not remember, she did not know if it was because of what she wearing, she was not able to say.
[40] TT 158.
The accused said that Mr Kluse had arrived at her house carrying the handbag and she had put the handbag upstairs in her room where it had remained until they left to go to the Casino. She said that prior to going to the Casino she checked her handbag to see that her purse was in there and her keys. She got her purse out and opened it to see what was in there. She then went on to explain the effects of ‘fantasy’ and how she felt on this day.
Kleo Ioannidis was called. He is the accused’s father. He worked in the rail industry for 34 years. In December 2013 he was living at premises at Allan Avenue, Campbelltown with his daughter the accused. He gave evidence that the police always come past the house looking at the house and a lot of the time they knocked on the door and searched the premises. He gave evidence that whilst the accused was in the women’s prison one of her friends had brought all her clothes and toiletries to his house for safe keeping. These included items that belong to Tim.
Mr Ioannidis was cross-examined. He said he stacked all of the items in the garage and he checked them all to make sure there was nothing illegal in them. The items had included a couple of handbags, backpacks and the like. He checked those items by opening them up and looking inside to see what was in there. He said he did not find anything in the bags. He said that when his daughter got out of gaol in August 2013 she went through all of the property and cleaned out what she did not want. He said she gave items to the Salvation Army and just cleared all the rubbish. They then stacked everything in a corner. He confirmed that the police had come regularly to the house to search in relation to the FPO. He gave evidence that he was aware that his daughter had a FPO because of the amount of visits by the police which he found very annoying and as a result of it he had had to get rid of his own equipment and spare ammunition. He was adamant that if he had found anything in breach of the order at the house he would have got rid of it.[41]
[41] TT 172.
Mr Ioannidis gave evidence that when the accused leaves home she carries her personal items in her hands or occasionally in her handbag.
Mr Ioannidis was re-examined. He was asked whether the accused ever took a backpack with her when she left home to which he replied “no”. He was asked whether he knows what a bumbag is and he said “I think it goes around your waist”. He was asked whether he knows anyone who owns a bumbag and he said “a few of my friends wear them including a guy at work”. He was asked “anyone else” and he said “no”. He was asked whether his daughter wears one and he said “Natalie, well yeah maybe a long time ago I might’ve seen her wear one, I’m not sure”.[42]
[42] TT 175.
An apprehension report was marked for identification.[43] The relevance of it was said to be that two years prior to the findings of the bullets in the accused’s handbag, the police had located a 9mm bullet in the bedroom of Kayne Kluse along with other items.
[43] D5.
Prosecution address
Ms Ingleton made submissions that the accused had been served with a FPO on 12 April 2012. One of the conditions of that FPO was that she not be in possession of ammunition. On 29 December 2013 at about 2am the vehicle in which she was travelling was stopped; her handbag was searched and three .32 calibre bullets were located. Ms Ingleton submitted that the Act makes it an offence for anyone subject to a FPO to possess ammunition.[44] Section 10C(14) provides that a person who is the subject of a FPO is deemed to be in possession of the ammunition if they are in a vehicle when ammunition is found in that vehicle. She submitted that this is a rebuttable of the presumption and in order to rebut the presumption Ms Ioannidis must prove that she did not know and could not reasonably be expected to have known that the ammunition was in the vehicle. The burden of proof was on the balance of probabilities.
[44] Firearms Act 1977 (SA) s10C(3).
Ms Ingleton made submissions that Ms Ioannidis had said that she takes her obligations very seriously and she is very careful to ensure that she was complying with the order and was aware that she could get searched. She suggested that this evidence should be viewed with a degree of scepticism as the last time she had been searched had in fact been about one year prior. Ms Ingleton suggested that the lack of memory on the part of Ms Ioannidis was questionable and that if she had indeed taken the FPO seriously she would have checked in the handbag that she used on this night prior to going out. Ms Ingleton submitted that the three .32 calibre bullets had all been found together, that it is a small handbag with only a few personal items in it and that any person exercising care would have located them there. Ms Ingleton suggested that this was a convenient account given by the accused whose memory was very limited except that she is certain that these bullets were not hers and she did not know how they got there and could not reasonably be expected to have known.
Ms Ingleton submitted that the evidence of Mr Ioannidis was such that he had checked all of the handbags that had been stored and nothing had been located in them. She submitted from that I could infer that there were no bullets in the handbag when it was stored in the garage, nor were there any bullets in the handbag after Ms Ioannidis went through the property after her release from prison but that they were clearly in her handbag at the time the police searched her at 2am on 29 December 2013.
Ms Ingleton submitted that the accused had not discharged her obligation to prove on the balance of probabilities that she did not know of their presence in her handbag and could not reasonably have known about them.
Defence address
Mr Graham addressed on behalf of the accused. He submitted that I should accept the evidence of Ms Ioannidis that in October or late November 2012 she went on the run from the police. She returned to Adelaide in late 2012 and was arrested. After she remanded in custody a number of items were dropped back to her house. The handbag was one of those items. She was then in custody until 6 August 2013 and for that period did not have possession of the handbag. He submitted that I could accept that between her release in August 2013 and the 28 December 2013 she did not use that handbag. He said there were very few personal items in the handbag and that is consistent with her not using the handbag over a lengthy period of time. He submitted that her father’s evidence was such that she may not have used this handbag very often at all. Mr Graham submitted that I should accept her father as being an honest and frank witness who was not setting out to deceive. Mr Graham submitted that Mr Ioannidis tried to answer the questions in the best way that he could. He submitted that Mr Ioannidis’ evidence was that whilst he looked inside the bags he did not have a good look and did not search them “with a fine tooth comb”. He submitted that it was not surprising that if these bullets were in the bag they were not found in those circumstances.
Mr Graham submitted that it was appropriate that I have a look at the bullets and the size of them. If they were tucked into a small cloth pocket they could have remained there for some time without being noticed. They were not items that would be immediately obvious if you either picked up the handbag or looked inside the handbag. He submitted that there was opportunity for those bullets to have got into the handbag after Ms Ioannidis left Melbourne and before the handbag was sequestered in the shed.
Mr Graham submitted that the accused’s account of the events on 28 and 29 December 2013 had a significant amount of detail in it and it was unlikely that she had made up this detail. He also submitted that her evidence had ‘a ring of truth’. He said she had made admissions that did her no credit such as taking ‘fantasy’. He submitted that if she was going to make up the story about the movements of her handbag she could have made one up without conceding that she had been using drugs, driving unlicensed and being intoxicated. He submitted that if she was intoxicated as she said it is not surprising that she left her handbag in the car and that that provided another opportunity for bullets to be put into the handbag without her knowledge. He submitted that the defence simply could not explain how the bullets got into the handbag because they did not know but that one could speculate that somebody had secreted them in the handbag, someone other than the accused. This was especially so because the handbag had not been used by her for some time and was not in her possession for a significant period of time.
Mr Graham submitted that contrary to the prosecution submission it was not incumbent upon the accused to check the lining of the bag and to check absolutely everything about her possessions every time she used them.
Mr Graham submitted that I should give due regard to the fact that Ms Ioannidis did not throw the bullets away when she knew that the police were behind her and she knew that possession of the bullets meant that she was in breach of the FPO. He also submitted that she has been searched on numerous occasions because of the order and that she was aware of the fairly constant police presence at the front of her premises. He submitted that she had had ample opportunity to dispose of the bullets after the police commenced following the car on 29 December and could have done so by throwing them under the seat in the car, or throw them out the window. Mr Graham asked rhetorically why would she not have done these things.
Mr Graham submitted that Ms Ioannidis gave evidence in a fairly open manner, she was thoughtful before she answered certain questions, she admitted on occasions that she was not sure about particular things, she was not ‘rattled’ in cross-examination, she was not exposed in cross-examination and her evidence was not contradicted by any other evidence.
Mr Graham submitted that the second limb of the defence being that she could not have reasonably known that the bullets were there, had very little application in the circumstances of this matter. Mr Graham submitted that the accused was required to do what was reasonable in having a look in her bag and having a cursory look was sufficient in the circumstances. He submitted that the accused had done all that was required to comply with the FPO and that she had established on balance that she did not know and could not reasonably be expected to have known that the ammunition was in the vehicle.
Discussion
In this case there is no dispute that the accused was subject to a FPO. That FPO had been served upon the accused on 12 April 2012 and was in force as at 29 December 2013. There is no dispute that the handbag that she had in her possession in the vehicle was found to have within it three .32 calibre bullets. This offence is committed if a person against whom a FPO is in force possesses ammunition. This offence necessarily involves an element of knowledge.[45]
[45] He Kaw The v R (1985) 157 CLR 523
There are potentially three ways to approach this matter. The first is to consider whether I am satisfied that the prosecution have proved each of the elements beyond reasonable doubt including the element that the accused knowingly possessed the ammunition in contravention of the FPO.
The second, is in relation to the presumption in s 10C (14)(a) of the Act. It only arises if I am unable to be satisfied of the mental element beyond reasonable doubt and the prosecution have proven that she was in the vehicle when the ammunition was found. If this is so, the prosecution have the benefit of this presumption and the onus falls on the accused. If I accept, on the balance of probabilities, that the accused did not have knowledge that the ammunition was in her handbag at the relevant time and that this did not result from any failure on her part to take reasonable care to avoid the commission of the offence, she has a defence to the charge and must be acquitted.
The third, relates to the general defence in s 36A of the Act.
There is no dispute in this case that three .32 calibre rounds of ammunition were found in the accused’s handbag in the early hours of 29 December 2013. The accused admits possession of the handbag. She was a person subject to a FPO at that time; one of the conditions of the FPO was that she not possess ammunition. The only real question in this trial is her state of mind. Did she knowingly possess the ammunition which was in her handbag at that time? Possession in law means the power and the intention to exercise control over something to the exclusion of others, except those that are in joint possession of it.
I have had regard to all the evidence and the addresses in this matter. The handbag contained a significant amount of personal possessions including a purse, keys, papers and cards. The ammunition was located in an inside fabric pocket that was not sealed and could have been used to put a mobile phone or cigarette lighter in so that it could be easily accessed by the user. The bullets although not large are very hard. They could be felt in the handbag through the fabric when the user looked for other items in the handbag. It is not clear exactly when the ammunition was placed into the handbag but there is no suggestion that it was placed into the handbag by another person whilst she was in the motor vehicle. There would have been no opportunity for Mr Kluse to have done this and the accused be unaware of it after they left the house at 2.00am. If it had occurred with her knowledge she would have been in possession in the relevant sense when it was located. Despite the fact that the ammunition is small, I find that it would have been apparent to a user of the handbag that it was in the pocket where it was located by the police. This is especially so when a person such as the accused had looked for her purse in the handbag in the dark and had to obtain her purse to produce her identification to the police when they asked for it in the early hours of 29 December 2013. The pocket from which this ammunition was retrieved was not a secret pocket, it was not in the lining. The ammunition was not secreted within the handbag.
I accept that Ms Ioannidis had been stopped by the police on many occasions and had been searched by the police on other occasions. I do not accept the assertion of her and her counsel that this means that she necessarily would have disposed of the ammunition on this morning in the ways that were suggested either by throwing it under the seat of the car or out of the window or any other way. At the time this vehicle was being followed, Mr Kluse the driver of the vehicle was in fact wanted by the police. In all likelihood there was a degree of anxiety in relation to the stopping of this vehicle by Mr Kluse and perhaps also by Ms Ioannidis. There may have been an air of resignation in relation to the inevitable finding of this ammunition in her handbag or the vehicle in the circumstances of the stopping by the police on this morning. I can think of no reason why someone in Mr Kluse’s position would have planted this ammunition upon her and neither has any explanation been given for why anyone else would have done so.
I did not find the accused an impressive witness. I found her evidence totally lacking in cogency, credibility and coherence. It was glib and designed to fit the circumstances as she perceived them. I do not believe that it is a reasonable possibility she had for the first time in many months used this handbag on 28 December 2013. This is particularly so when her evidence that she usually used a bumbag was not supported by her father. I do not accept as a reasonable possibility that the ammunition could have been a relic of her time in Melbourne when she and her father had checked the handbag after its return from Melbourne. I do not accept as a reasonable possibility that someone known or unknown to her put the ammunition into her handbag while she was out on 28 December 2013. I am satisfied beyond reasonable doubt that the accused was knowingly in possession of the ammunition on 29 December 2013 and that was in contravention of the Firearms Prohibition Order to which she was subject, for the reasons I have given.
If I am wrong about that, I am satisfied that the accused was in the vehicle in which the ammunition was located and I am not satisfied that the accused has discharged the onus to satisfy me, on the balance of probabilities, that she did not know or could not reasonably have known that the ammunition was in her handbag in the vehicle in the early hours of 29 December 2013. Nor am I satisfied that she has discharged her onus to satisfy me on the balance of probabilities that she has not committed this offence intentionally and that it did not result from any failure on the part of her to take reasonable care to avoid the commission of the offence thereby giving rise to a defence pursuant to s 36A of the Act.
I therefore find her guilty as charged.
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