R v Johns - [2014] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JOHNS
Criminal Trial by Judge Alone
[2014] SADC 36
Judgment of His Honour Judge Boylan
13 March 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Accused charged with one count of possessing a firearm without a licence - whether accused was 'in charge of' vehicle where firearm found - elements of offence proved beyond reasonable doubt by prosecution.
Verdict: Guilty
Firearms Act 1977 s 5(14), referred to.
R v Mariafioti [2014] SASCFC 8, considered.

R v JOHNS
[2014] SADC 36

The accused, Christopher Scott Johns, is charged with possessing a firearm without a licence. The particulars of the offence are that he, on 23 January 2013 at Brahma Lodge, was in possession of a prescribed firearm, namely a lever action rifle, whilst not holding a firearms licence authorising possession of that firearm.
He pleaded not guilty and I heard his trial without a jury. I now give my reasons for the verdict I am about to deliver.
The prosecution case
On the evening of 23 January 2013, police searched the house at which the accused boarded at Brahma Lodge. Police saw a locked white Holden sedan registration number VFG-396 parked in the rear yard of the premises. When asked whether the white Holden belonged to him, the accused replied that he had owned the vehicle for about two years but had recently sold it to a Robert Pearce. He told police that Robert Pearce had asked him to keep the vehicle on the property until he was ready to pick it up. He also told police that he had no means of contacting Mr Pearce as he had never obtained a contact telephone number from him and did not know his address.
Police then conducted a search of the accused’s person and found a set of keys in his pocket. One of those keys opened the boot to the white sedan. Senior Constable Beaufort gave evidence that the same key also turned the ignition, but this was not ascertained until 11 November 2013. None of the keys found unlocked the passenger or driver side doors. Police smashed a rear passenger window to the vehicle to gain access. They conducted a search of the vehicle and, along with clothing, a wallet and a number of documents, found a cut-down Winchester lever action rifle within a black reusable shopping bag behind the middle rear passenger seat.
The prosecution alleges that the accused was in charge of the white Holden sedan as defined in section 5(14)(c) of the Firearms Act 1977 (SA) and therefore had possession of the firearm.
Undisputed matters
There is no dispute that the accused had purchased the white Holden sedan in June 2011. It then bore the plates with registration number XOL-001. He had been stopped by police while driving the vehicle with registration number XOL-001 on a number of occasions in the second half of 2011.
The registration number plates VFG-396 affixed to the white Holden on 23 January 2013 belonged to a Mazda sedan registered to Kathleen Abrook, who was formerly the accused’s foster-mother.
The documents found by the police in the vehicle included loan agreements, bank receipts and letters. All of the documents were addressed to Christopher Scott Johns or, in the case of the ATM receipts, were attributable to him through bank details. The documents dated back to September 2012. The most recent documents were a Cash in a Flash loan agreement dated 21 January 2013 and an ATM receipt and a letter from the Commonwealth Bank both dated 18 January 2013. The wallet found by police contained a Medicare card in the name of the accused with an expiry date of October 2015, two proof of age cards in the name of the accused, a concession card in the name of the accused, and a Commonwealth Bank card in the name of the accused with an expiry date of November 2016.
The DNA of the accused was found on both a blue t-shirt and a red t-shirt found in the white Holden sedan.
No DNA attributable to the accused was found on the firearm.
The elements of the offence
There are three elements that the prosecution must prove beyond reasonable doubt before I can find the accused guilty of the offence:
1.   that the accused was in possession of the firearm;
2.   that the firearm was a prescribed firearm; and
3.   that the accused did not hold a firearms licence authorising the possession of the firearm at the relevant time of 23 January 2014.
There is no dispute in relation to the second and third elements of the offence. A forensic report prepared by Stephen Tully was tendered by consent. The report states that the firearm meets the definition of a prescribed firearm as defined in part 1 of the Firearms Regulations. It was agreed by both parties that the accused did not hold a firearms licence on 23 January 2014.
The issue is, therefore, whether the accused was ‘in possession of the firearm’.
Possession of a firearm
‘Possession of a firearm’ is defined in section 5(14) of the Firearms Act 1977 (SA):
For the purposes of this Act (other than Part 3 Division 2A), a person has possession of a firearm if—
(a)        the person has custody of the firearm or has the firearm in the custody of another; or
(b)        the person has and exercises access to the firearm; or
(c)        the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the firearm is found.
(15)However, subsection (14)(c) does not apply if the person establishes that—
(a)he or she did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises, vehicle, vessel or aircraft; or
(b)the firearm was in the lawful possession of another or he or she believed on reasonable grounds that the firearm was in the lawful possession of another.
The prosecution relies on section 5(14)(c). Section 5(14) broadens the concept of possession under the common law, particularly by removing the requirement of exclusivity and by providing that access to a firearm may constitute possession. In that context, the phrase ‘in charge of’ should be read broadly. It creates a rebuttable presumption of possession of a firearm by a person who exercises a degree of control over the premises or vehicle in which the firearm is found. Forms of control or relationship less than ownership are sufficient.[1] More than one person may be ‘in charge of’ a vehicle.[2] The phrase contains a supervisory element that refers to an ability to direct, control or manipulate the object at a specific point in time.
[1]    R v Marafioti [2014] SASCFC 8, [25] per Kourakis CJ.
[2] ibid at [28].
In this case, the car was stored at premises at which the accused was living. He was in possession of the key that opened the boot and turned the ignition. Clothing containing his DNA was found in the vehicle as were documents that were plainly his. Furthermore, a wallet containing his proof of age cards, a current Medicare card, a concession card and a current bank card had been left in the centre console. They are documents which one would expect the accused may require at short notice. He would have needed ready access to them. One document found in the car must have been created only two days beforehand. Although the police found no key to the Holden’s doors upon the accused’s person or at the premises, I infer from the fact that the accused was storing the vehicle, the fact that a large number of items which belonged to him were found in it and the fact that he had done some work on the vehicle, that he was in charge of it. I am so satisfied beyond reasonable doubt.
I have considered whether or not the accused has established either of the defences set out in subparagraph 15. I have drawn no inference adverse to the accused from his decision not to give evidence. That was his right. In considering whether or not he has established a defence, I have considered the explanation which he gave to police when he was interviewed, an explanation about which the interviewing officer questioned him closely. I reject his explanation. I find it implausible that he would have sold the vehicle to a person and agreed to retain it without first obtaining a means of contacting the purchaser and without ensuring that he had an ignition key to move the car, if necessary. I do not accept that, having sold it and without having access to its interior, he would have left in it a wallet containing items to which he would require ready access.
I make it plain that my rejection of his evidence is not a basis for my finding him guilty. The onus of proof remains wholly on the prosecution. The prosecution has disproved his defence beyond reasonable doubt.
In summary, I am satisfied beyond reasonable doubt that the accused was in charge of the vehicle and, therefore, had possession of the firearm found in the boot.
I enter a verdict of guilty.