R v Jeisman - [2008] SASC 266

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v JEISMAN
[2008] SASC 266
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Kelly)
3 October 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against conviction - appellant convicted in the District Court of four counts of possessing a firearm without a licence - whether the verdicts were unsafe or unsatisfactory - whether the trial judge failed to adequately direct the jury on the issue of possession - whether the trial judge erred in her direction to the jury by using the phrase "if you accept the evidence of the accused then you will find him not guilty of these charges."
Held: appeal dismissed - evidence sufficient for the jury to be satisfied beyond reasonable doubt that the accused was guilty - trial judge adequately directed the jury in relation to the elements of possession and on the onus of proof.
M v The Queen (1994) 181 CLR 487; Libke v R (2007) 230 CLR 559, applied.
R v Briske [2007] SASC 314, distinguished.

R v JEISMAN
[2008] SASC 266
Court of Criminal Appeal: Duggan, Anderson and Kelly JJ

DUGGAN J: I would dismiss the appeal on grounds 1 and 2 and refuse permission to appeal on ground 3.
I agree with the reasons prepared by Kelly J.
ANDERSON J: I would dismiss the appeal for the reasons given by Kelly J.
KELLY J
Introduction
Mr Jeisman (“the Appellant”) was convicted after a trial before a District Court Judge and jury on four counts of possessing a firearm without a licence. The appellant appeals against the convictions.
The appeal raises three issues. First, whether the verdicts are unsafe or unsatisfactory. The second issue is whether the trial judge failed to direct the jury adequately on the issue of possession in applying the law to the facts. The third issue is whether the trial judge erred in her direction to the jury by using the phrase “if you accept the evidence of the accused then you will find him not guilty of these charges…”.
A single judge granted permission to appeal on grounds 1 and 2. At the hearing of this appeal, apparently after some discussion between counsel, the appellant sought permission to add the third ground of appeal.
The Facts
The trial was short and the facts can be stated quite briefly. On 9 November 2005 the police went to an address at Kilburn. The appellant was at the house along with another man named Fred Holmes.
In the backyard under an area of freshly dug earth, police located a green garbage bag which contained a 12 gauge shotgun, a .22 pump action rifle, two homemade handguns, some 12 gauge ammunition, a gun cleaning kit, a pair of gloves, a beanie and a pair of socks. Some of the items were secreted inside a pillowcase, within the garbage bag. Other items were secreted inside items of clothing in respect of which the accused’s DNA was found. Inside the house in a bedroom police also located two gun carrying cases suitable for storing some of the weapons found buried in the backyard. There is evidence that two of the guns, the gun carrying cases and the gun cleaning kit were stolen from the residence of Mr Rogers sometime in September 2005. The serial number on one of the guns stolen had been partially obliterated.
The general state of the house, including the master bedroom, the lounge and the kitchen, were tidy. The bedroom in which the gun cases were located was messy.
The police also found a series of photographs uploaded from a camera memory stick found in the house which contained photographs of the appellant sitting with a child in the second bedroom. The photographs also showed a hacksaw in that bedroom along with many other tools and items of furniture.
DNA found on the socks and gloves, inside which were some of the firearms buried in the backyard, were examined by a forensic scientist. DNA profiles obtained from those socks and gloves indicated that the appellant could not be excluded as one of the contributors to those profiles, although there were mixed profiles obtained on some of those items.
There was expert evidence to the effect that some of the tools seen in the photographs of the bedroom could have been used to manufacture the two homemade guns buried with the other firearms in the backyard and could have been used to obliterate the serial number.
There was no direct evidence as to who occupied the second bedroom. The prosecution declined to call Mr Holmes.
The appellant gave evidence. He admitted staying at Mr Holmes’ house at Kilburn about three or four nights a week and identified the second bedroom as the bedroom that he stayed in when he was living there. He said Mr Holmes was, and remained, a friend of his.
He said he was a sheet metal worker and described himself as proficient in all facets of cutting, drilling and welding metal. The appellant denied having any knowledge, possession or control of any of the materials found buried in the backyard.
The appellant said that Mr Holmes used to have a lot of visitors to the house, including prostitutes and other men and these men and women often went into his room. The appellant maintained that whilst many of the items in the room were his, Mr Holmes’ friends also stored stuff in that room. He admitted that the child in the photograph in the bedroom was his child.
Ms Tolmer, the appellant’s girlfriend, gave evidence generally supportive of the appellant’s evidence.
It is convenient to deal with the second and third grounds of appeal before dealing with the complaint that the verdicts are unsafe or unsatisfactory.
The Directions as to Possession
Ground 2
The prosecution case was based on a combination of facts and circumstances established by the evidence, including:
·The fact that the appellant was at the premises on the day the police went there and located the firearms.
·The firearms had been recently buried and furthermore, two of them had been recently stolen.
·The appellant lived at the premises, although it was common for him to stay elsewhere for days at a time.
·The appellant was a sheet metal worker with the working knowledge to have manufactured the homemade guns and to have obliterated the serial number.
·There were tools in the appellant’s bedroom, which could have been used to make those firearms.
·The appellant admitted possessing a welder, which it was established was a required piece of equipment in the manufacture of the homemade firearms.
·The firearms had been buried in items of clothing, namely the socks and gloves which the appellant admitted owning.
·Two gun carrying cases consistent with the storage of two of the firearms buried, were located in the second bedroom.
The respondent submitted that the combination of those facts and circumstances, which were not disputed, founded an inference beyond reasonable doubt that the appellant had come into possession of the firearms and had hidden them in the backyard.
The sole issue in dispute was the fact of possession. The defence case was that the accused had no knowledge, possession or control of any of the firearms found in the backyard
This was made abundantly clear to the jury, both in the prosecution opening and closing address, the defence opening statement of the issues in dispute and the defence closing address.
Given that there was no evidence independent of the appellant’s case, as to where he would stay, what was required in the summing up was a clear statement by the trial judge of the competing hypotheses. In my view that is just what her Honour did.
Both the prosecution and defence hypotheses were drawn, to a very large extent, from the same body of evidence. The factual basis supporting each of the competing hypotheses was obvious. Her Honour directed the jury specifically to the crucial issue in dispute.
She said:
The remaining element is that of possession, and, as was clearly outlined in Mr Stokes and Mr Longson’s addresses, this is the key issue in dispute. So I will say a few words about he law relating to possession.
Her Honour then went on to correctly direct the jury on the issue of possession in the course of which her Honour illustrated the concept by reference to clear, practical, examples.
In the course of those directions her Honour made it clear that mere knowledge of the presence of the firearms was insufficient. Proof that the appellant intended to exercise control over them was also required. While directing the jury as to the concept of possession her Honour also specifically identified the defence case, in particular reminding the jury that there was a dispute as to the extent of the appellant’s occupation of that room and that there were a number of other hypotheses available on the evidence consistent with the appellant’s innocence.
After correctly directing the jury as to the elements of the offence and the concept of possession, her Honour went on to deal with the defence case in detail. She directed the jury that no conviction could be recorded unless the jury was satisfied beyond reasonable doubt that the circumstances were such as to be inconsistent with any reasonable explanation other than the accused’s guilt. The trial judge’s summation of both the prosecution and defence evidence was detailed and balanced.
She then returned to what she described as the key issue of possession.
Now there is little dispute about many of the facts in this matter. The key issue, as I have said before, is whether the accused can be said to have possession of the firearms as I have described. In other words, did he knowingly have physical custody or control of those firearms. The prosecution says that the circumstantial evidence that adds up to proof beyond reasonable doubt that the accused did have the firearms comprises the following: the gun cases that were found in the accused’s room. There were tools in the accused’s room that were of a type that were used in connection with the firearm, such as a hacksaw, welding tools and drill bits. There were no other tools in the house. It said that the accused’s room was messy and the rest of the house was not. The accused is a qualified sheet metal worker with the skills and knowledge to deal with metal. The DNA evidence at 45.C of the DNA results dealing with the inner aspect of the sock, which was wrapped around one of the firearms.
The defence in answer to this says that, even if you accept this evidence, those circumstances do not lead to a conclusion of guilt and that there are, in fact, other rational inferences that the circumstances you find proved would enable you to draw. Specifically it said that there is evidence that other people attended the Kilburn premises for varying periods of time and that the accused did not have exclusive occupation of bedroom. He was away from this room for periods of time during which others had access.
It was also said in closing that no-one has produced a fingerprint, tested for DNA or looked properly through documents to check who else used that room. Whilst it is plain that no fingerprints were taken or DNA checked in bedroom 2, it is not suggested in the evidence that documents were found in that room. The only document that we have heard about was actually found on the kitchen table, being the Child Support Agency document related to a Mr Imlach.
It is also said that others had access to the garden, and it is further said that you might think that a messy room does not establish guilt. It is suggested to be equally consistent with others using the room as a storage area and might be a reason that the accused chooses not to spend as much time there as he otherwise might.
There is no evidence, it said, about the metal work abilities of any of the other people who frequented the house. The DNA evidence shows that other people had been in contact with the various items recovered and that their DNA contact was no weaker or stronger than that of the accused. There was also no evidence of the DNA samples of other people who were known to have frequented the house, such as Mr Holmes and Mr Imlach. There are, it is said, any number of reasons why someone else would have used socks in the spare room to wrap up the guns.
It is further contended for the defence that once the accused was arrested the police did not look at others known to frequent the premises such as Mr Imlach. Why, it is asked, is it contended that the only culpable person was the accused. It suggested that you may think that the evidence suggests a number of other options.
It can be seen from the trial judge’s summing up as a whole, that her Honour did adequately deal with each of the important factual issues relevant to the jury’s consideration of the element of possession. As I have previously observed, the trial was short. The prosecution and defence cases were made very clear throughout by both counsel and her Honour. In my view the jury were correctly directed and required no further assistance from the trial judge.
I would dismiss this ground of appeal.
Reversal of the Onus of Proof
Ground 3
The third ground of appeal in respect of which the appellant seeks permission to appeal, raises the issue of whether the trial judge erred in her directions to the jury towards the end of her summing up when she said:
In summary, if you accept the evidence of the accused then you will find him not guilty of these charges. Even if you consider it only a reasonable possibility that he was telling you the truth, you must find him not guilty. If, however, you do not accept all of the evidence of the accused or any of the evidence of the accused, it does not follow that you proceed to find him guilty.
As I said to you earlier, the onus is upon the prosecution to prove beyond reasonable doubt that the accused is guilty of the charges laid against him. The accused does not have to prove anything. You need to be satisfied beyond reasonable doubt, taking into account the whole of the evidence that he is guilty of the offences for which he has been charged. If at the end you are of the opinion that the accused is innocent of the offences you must find him not guilty. Equally, if on the evidence before you there remains in your mind a reasonable doubt as to the guilty of the accused or alternatively you remain uncertain where the truth lies, then the verdict must be not guilty.
It was submitted that the use of the word “accept” in the context of that direction, carried with it a risk that the jury may have been left with the impression that there was some onus on the accused. Reliance was placed on a decision of this Court in R v Briske [2007] SASC 314.
This ground of appeal can be dealt with shortly.
In my view the appellant’s submission is misconceived. The crux of the problem with regard to the trial judge’s directions in Briske, was the repetition of the phrase “If you accept the evidence…” in such a context as to have raised a real risk that the jury may have thought it was necessary to affirmatively accept or believe the evidence of the appellant, before acquitting him.
Here the phrase was used by the trial judge as a prelude to, and in the context of, reminding the jury that the accused did not bear any onus at the trial. The directions she gave as a whole on this topic were unexceptional and I do not consider there is any risk at all that the jury would have understood the judge’s remarks as inviting them to conclude that acceptance of the evidence of the appellant was an essential preliminary for a not guilty verdict.
For these reasons I do not consider that there is any substance in this ground and I would refuse permission to appeal on ground 3.
Was the Verdict Unsafe or Unsatisfactory
Ground 1
The test for determining whether a verdict is unreasonable and cannot be supported having regard to the evidence, is now well settled.
In M v The Queen (1994) 181 CLR 487 the court stated at 493, per Mason CJ, Deane, Dawson and Toohey JJ:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (36). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (37).
In applying that test, it is necessary to bear in mind that this Court must have regard to the whole of the evidence, including the evidence of the appellant and his witness. The appellant gave an explanation at the trial consistent with his innocence and the jury were bound to consider that evidence.
However, as Hayne J in Libke v R (2007) 230 CLR 559 (with whom Gleeson CJ and Heydon J agreed) observed, the question for an appellate court when considering whether a conviction is unsafe or unsatisfactory is whether it was open for the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. The critical question for the jury was what assessment they made of the whole of the evidence including the evidence that the appellant gave that was relevant to the issue in the trial. That evidence did not require a conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.
The circumstantial evidence relied upon by the prosecution in the present case is summarised above. It was open to the jury to infer from the objective facts proved by the prosecution that the knowledge and control of the firearms by the appellant which were necessary in order to prove possession had been established beyond reasonable doubt. Furthermore, the jury were entitled to reject the appellant’s version and to find that the only rational inference available on the proved facts was that the appellant came into possession of the firearms and hid them in the backyard.
For these reasons I would dismiss this appeal.