R v Joyce
[2014] SADC 125
•11 July 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JOYCE
Criminal Trial by Judge Alone
[2014] SADC 125
Reasons for the Verdicts of His Honour Judge Lovell
11 July 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
Four charges of possessing a firearm without a licence and two charges of possessing a firearm with identifying characters removed. Issue - whether accused in possession of items. Circumstantial case. Section 5(14)(a), (b) and (c) Firearms Act discussed.
Verdict: Guilty on all six counts.
Juries Act 1927 (SA) s 7; Criminal Procedure Act 2004 (WA) s 120(2); Firearms Act 1977 (SA) ss 5(14)(a)-(c), s 5(15), s 11(1), s 24A(7), referred to.
Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Shepherd v The Queen (1990) 170 CLR 573; R v Marafioti [2014] SASCFC 8; R v Fuller [2012] SASCFC 101; He Kaw Teh v R (1985) 157 CLR 523; Peacock v The King (1912) CLR 619; Plomp v The Queen (1963) 110 CLR 234; Martin v Osborne (1936) 55 CLR 367; Knight v The Queen (1992) 175 CLR 495; R v Micallef [2002] NSW CCA 480; Shepherd v The Queen (1990) 170 CLR 573; R v Hillier (2007) 228 CLR 638; R v Chamberlain (No 2) (1984) 153 CLR 521; Plomp v The Queen (1963) 110 CLR 234, discussed.
R v JOYCE
[2014] SADC 125Trial by judge alone
The accused elected for trial by a judge sitting alone pursuant to s 7 of the Juries Act 1927 (SA). The Juries Act is silent about any requirement for the contents of the reasons for judgment.
The requirement for reasons was recently discussed in Douglass v R.[1]
[1] [2012] HCA 34.
In R v Keyte[2] Doyle CJ identified reasons why, in his view, a trial judge needed to provide detailed reasons for judgment. The reasoning of the Chief Justice was approved by Heydon J in AK v Western Australia[3] and also in Douglass v R.
[2] (2000) 78 SASR 68.
[3] (2008) 232 CLR 438 at [107].
Although dealing with s 120(2) of the Criminal Procedure Act 2004 (WA) Heydon J stated why detailed reasons were important. He said:
The process of having to state judicial reasoning in terms sufficiently clear, exact and convincing to pass muster in the eyes of an appellate court listening to the sometimes hypercritical submissions of counsel entails a need to be very precise in working that reasoning out. The discipline stems from the fact that the process of stating reasoning often reveals its fallacies: in the course of composing reasons for judgment directed to supporting a conclusion which seemed clear, judges often find that the opinion “won’t write”, and that a different conclusion develops. There is a legislative assumption that compliance with that discipline is not only more likely to produce justice according to law, but is a necessary precondition for that outcome. The abolition of jury trial entails removal of the safeguard to be found in the peculiar discipline of jury trial. The new safeguard, to be found in the discipline of having to give reasons, is a vital technique for ensuring accurate fact finding, correct inferential reasoning and sound application of the law to the facts.
This prosecution case is a circumstantial evidence case. Detailed reasons are important in such a case.
Legal directions
As the judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of any offence charged, then he remains presumed innocent and I must find a verdict of not guilty.
In this matter the accused elected not to give evidence in this Court, he remained silent. He was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I must not speculate on those reasons. I remind myself that it is for the prosecution to prove its case beyond reasonable doubt.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my commonsense, experiences and wisdom in assessing the evidence.
Where the case, as it is here, rests upon circumstantial evidence, I cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. It is necessary that not only his guilt should be a rational inference but that it should be the only rational inference that the circumstances enable me to draw.
The accused is charged with six offences. I must consider each count separately and consider that charge only by reference to the evidence that applies to it.
Both the prosecution and the accused are entitled to a separate consideration by me of each of the crimes charged. It would be quite wrong to say that simply because I found the accused guilty of one count that he must therefore be guilty of other counts. I must ask myself to each count separately, am I satisfied beyond a reasonable doubt by the evidence that relates to that count that the accused is guilty of that crime?
Circumstantial evidence
The prosecution bases its case against the accused (substantially) upon circumstantial evidence.
The amount of circumstantial evidence that will suffice to prove a charge beyond reasonable doubt will vary from case to case. The number of circumstances proved can vary enormously, and so can the weight of the various circumstances that are proved.
I remind myself that the weight of a case which depends (substantially) upon circumstantial evidence, in the result, depends upon the combined strength of all the facts that are proved.
As the prosecution case rests substantially upon circumstantial evidence, I remind myself that I cannot return a verdict of guilty of any charge unless the circumstances exclude any reasonable explanation consistent with innocence. In other words, before I can be satisfied that the accused is guilty of any offence, I must be satisfied, not only that his guilt is a rational inference, but that it is the only rational inference that the circumstances I find proven enable me to draw.
Indispensable intermediate steps in the reasoning process must be established beyond reasonable doubt.[4]
[4] Shepherd v The Queen (1990) 170 CLR 573 at 579.
First, I must look at the facts upon which the prosecution relies as circumstantial evidence in the case, and decide which facts I accept as established by the evidence. Then I must consider what inference or inferences I am prepared to draw from those facts.
I will go through the facts relied upon by the prosecution later in these reasons.
Elements of the offences
The accused was charged with six counts as follows:
First Count
Statement of Offence
Possessing a Firearm without a Licence. (Section 11(1) of the Firearms Act, 1977).
Particulars of Offence
Christopher Lee Joyce on the 14th day of November 2012 at Thebarton, had in his possession a Prescribed firearm, namely a Ruger model Ranch semi-automatic rifle, whilst not holding a firearms licence authorising possession of that firearm.
Second Count
Statement of Offence
Possessing a Firearm without a Licence. (Ibid).
Particulars of Offence
Christopher Lee Joyce on the 14th day of November 2012 at Thebarton, had in his possession a Class H firearm, namely a Ruger model MkII Target semi-automatic pistol, whilst not holding a firearms licence authorising possession of that firearm.
Third Count
Statement of Offence
Possessing a Firearm with Identifying Characters Removed. (Section 24A(7) Firearms Act, 1977).
Particulars of Offence
Christopher Lee Joyce on the 14th day of November 2012 at Thebarton, had in his possession a Class H firearm, namely a Ruger model MkII Target semi-automatic pistol which had the serial number removed.
Fourth Count
Statement of Offence
Possessing a Firearm without a Licence. (Section 11(1) of the Firearms Act, 1977).
Particulars of Offence
Christopher Lee Joyce on the 14th day of November 2012 at Thebarton, had in his possession a Class H firearm, namely a Norinco model 1911 semi-automatic pistol, whilst not holding a firearms licence authorising possession of that firearm.
Fifth Count
Statement of Offence
Possessing a Firearm with Identifying Characters Removed. (Section 24A(7) of the Firearms Act, 1977).
Particulars of Offence
Christopher Lee Joyce on the 14th day of November 2012 at Thebarton, had in his possession a Class H firearm, namely a Norinco model 1911 semi-automatic pistol, which had the serial number removed.
Sixth Count
Statement of Offence
Possessing a Firearm without a Licence. (Section 11(1) of the Firearms Act, 1977).
Particulars of Offence
Christopher Lee Joyce on the 14th day of November 2012 at Thebarton, had in his possession a Class H firearm, namely a Bonifacio Echeveria model Izarra semi-automatic pistol, whilst not holding a firearms licence authorising possession of that firearm.
It can be seen from the information that Counts 2 and 3 refer to the same firearm but with different particulars as do Counts 4 and 5.
Elements of Count 1
In relation to count 1, the prosecution must prove the following elements beyond a reasonable doubt:
1. The accused was in possession of the firearm;
2. The firearm in question was a prescribed firearm;
3. The accused at the relevant date was not the holder of a licence authorising possession of the firearm.
Elements of Counts 2, 4 and 6
In relation to each of those counts, the prosecution must prove the following elements beyond a reasonable doubt:
1. The accused was in possession of the firearm;
2. The firearm in question was a Class H firearm;
3. The accused at the relevant date was not the holder of a licence authorising possession of the firearm.
Elements of Counts 3 and 5
In relation to each of those counts the prosecution must prove the following elements beyond a reasonable doubt:
1. The accused was in possession of the firearm;
2. The firearm in question was a Class H firearm;
3. The firearm had the serial number removed.
The real issue in dispute in relation to all six counts was that of possession. Had the prosecution proved beyond reasonable doubt that the accused was in possession of the items found in locker V80 when the police searched it?
Prosecution evidence
Evidence of Mr Anthony Roberts
Mr Roberts had previously been employed as a manager of the Kennards Storage Facility at Thebarton. He began there in September of 2012 and was in the position for approximately 12 months.
On 14 November 2012, the time of the police search, he was the manager at the Thebarton facility.
Mr Roberts said that Kennards hire out storage units for general storage and also wine storage. The Kennards office is located outside the main gate area.
General storage units were located in a warehouse and within that building there was a secure wine storage facility. This was temperature controlled. Approximately three-quarters of the area was for general storage and a quarter for wine storage. The occupancy rate for storage was about 82 per cent at the time.
Mr Roberts identified a Kennards Wine Storage Agreement.[5] This document, dated 2 May 2009, established that the person renting the locker was Mr Christopher Joyce. It was accepted that this was the accused.[6]
[5] Exhibit P1.
[6] Agreed fact 9.
The contract established that Mr Joyce, on 2 May 2009, rented locker V80 at a fee of $35 a month. It appears that at the time he entered into the contract he produced his driver’s licence. The contract was for 12 months and the type of goods to be stored was wine. In response to the question of why the storage was needed, Mr Joyce indicated on the form that he was ‘renovating’.
Mr Roberts confirmed that more detailed contact conditions were contained on the back of a standard contract.[7]
[7] Exhibit P1A.
A customer was entitled to maintain their locker even after the contract time had expired. Kennards could vary their price and that was determined by ‘market demand’. If there was a change of price a letter would have to be sent out to the customer.[8]
[8] T 32.
How a customer accessed a secure locker was explained by Mr Roberts. Once a person had paid their first month’s rent in advance they were given a Security ID code (the code) that was computer generated. The code was provided on a ‘business size card’.
Once a person was given that code they could either purchase a padlock from Kennards to place on their locker or they could provide their own padlock. Kennards employees could not then access the locker. An orange sticker provided by Kennards was placed on the lock.
Mr Roberts described the orange sticker that can be seen on the padlock in the photographs and on the exhibit. He explained that Kennards’ staff do ‘locker checks twice a day’.[9] If a customer has a lock that is not a Kennards’ padlock, the orange and white sticker is placed on the lock for security reasons. When the security check is done, if there is a padlock missing or someone has changed their padlock (in other words there is no sticker on it), they would contact the customer immediately. The purpose of the sticker is to stop someone cutting off the lock and replacing it with a new one.[10]
[9] T 40.
[10] T 40.
The customer would then be shown how to access the main gates as well as the wine storage gate. The electronically generated pin code was stored on an electronic file in the Kennards’ computer system.
To access the locker a customer would have to get through the main gate. This was done by the customer entering their four digit pass code. That permitted access to the land and that gave access to the main building. At that stage ‘general’ storage facilities could be accessed. Once in the building, to enter the wine room area, the four digit code again would have to be entered into a keypad. Once done a person could enter the wine room area to access their locker subject to unlocking their padlock.
Kennards had a computer system that recorded access to the premises, the wine area and a particular locker including the one rented by Mr Joyce.
The computer system records the code being entered into any of the gates. Employees are not able to amend this document. The document relating to locker V80 was tendered.[11] This exhibit related to the ‘Gate Log Events’ for the pin code and locker of Mr Joyce from 26 June 2009 to 14 November 2012.
[11] Exhibit P2.
The document recorded the date and time of entry through the main gates, entry into the wine room, the opening and shutting of the locker (if conducted) and the exit through the main gate. Under the heading ‘remote’ in the document the number 1 refers to the code being entered to enable access through the front gate, 3 indicates the code was entered to enable access to the wine cellar section and 7 refers to the opening and shutting of the locker V80. No code was required to open the locker: that was accessed by a key to the padlock. A magnetic strip was installed on the door of each locker in the wine area and when the door was opened the break in the magnetic field sent a message to the computer.[12]
[12] T 35.
Number 2 refers to the code being entered to enable a customer to exit through the main gate.
None of these matters (aside from the accuracy of P2) were challenged and I accept those matters as having been established beyond a reasonable doubt.
Exhibit P2, if accurate, establishes the number of occasions that someone using the code given to Mr Joyce accessed the main gate, then accessed the wine room and on occasions, accessed the locker V80. The document establishes, again if accurate, that the last date of access of the locker prior to the police searching it was 19 May 2011. In relation to Exhibit P2 Mr Roberts confirmed that he had printed that document off approximately 16 minutes after the last entry on the day of the search.[13] He agreed that the entry ‘door close’ was the only reference to any activity in relation to the door of locker V80 on that day. In other words, there was no reference on 14 November 2012 to the door ever being opened. He was unable to explain why that was the case.[14] The discrepancy, it was argued, throws doubt on the accuracy of this record.
[13] T 54.
[14] T 56.
On the day that the police attended, Mr Roberts confirmed he was in charge of the office. The computer was used by him on a regular basis and, to the best of his knowledge it was functioning correctly, and had been producing reports on a regular basis.[15]
[15] T 52.
I observe that on 14 November 2012 the wine room was not accessed using the code given to the accused. Mr Roberts used his code to access the room and the police then accessed the locker (I infer) by cutting the lock.
All the other entries record the code allocated to the accused being used to access both Kennards (generally) and then the wine room.
Mr Roberts also identified a document recording the invoices and payments relating to the rental of the locker V80. Mr Roberts confirmed that where the document recorded the account as having been paid in cash, no record was kept as to who actually paid the money. The entry ‘Auto credit card’ and ‘EFTPOS’, if used, did not involve a record being kept as to who paid the money.
The accused admitted that he continued to hire the storage unit V80 at Kennards in his name until at least 14 November 2012 and continued to make payments until at least that date.[16] I find those matters proved beyond a reasonable doubt.
[16] Agreed fact 10.
Mr Roberts was present when the police attended the Kennards’ premises on 14 November 2012. At that stage they had a search warrant. He contacted a superior to make sure that he was ‘doing the correct thing’.[17] Having sighted the search warrant, he accompanied the police and supervised the search of unit V80. A booklet of 49 photographs relating to the search was tendered.[18]
[17] T 38.
[18] Exhibit P4.
To access the premises and the wine room Mr Roberts used his staff code. When he attended with the police to locker V80 there was a padlock attached. The police removed that lock and it can be seen on the ground in photograph 2. The padlock itself was tendered.[19]
[19] Exhibit P7.
Mr Roberts stated that, in relation to the lock removed from V80, the lock had not been interfered with. The sticker had not been peeled off as the stickers provided by Kennards break into two sections if tampered with.[20] It has a perforated line and as soon as an attempt is made to peel it off, it splits. Mr Roberts was of the opinion that you could not see the perforation in the sticker unless you knew what you were looking for.[21]
[20] T 65.
[21] T 68.
Looking at photograph 4, Mr Roberts was able to identify the sticker seen on the lock as a Kennards’ sticker. He was able to say by referring to the contract, that in this case Mr Joyce had brought in his own padlock. That was the padlock that he used to secure his locker. The sticker would have been placed on either side of the padlock at the time the locker was rented and before they accessed the unit on the first occasion.[22] Kennards had no record that unit V80 had a padlock without a sticker on it.[23]
[22] T 41.
[23] T 41.
I accept his evidence about the ‘orange sticker’ beyond a reasonable doubt.
Mr Roberts observed the police open the locker and he also observed them locate the items in the locker.
Mr Roberts also identified two documents located at the premises of Mr Joyce when searched by the police. These were tendered.[24] The first is a receipt for the payment by someone of $84 outstanding for rental up to December 2011. The second document was a list of the transactions regarding the payments for the locker up to and including 31 December 2011. This matched the receipt.
[24] Exhibit P5.
Mr Roberts gave evidence that he was not able to say how long in particular the security policy regarding the orange stickers had been in place. He had been told it had been there for a long time. He was also unable to comment on any modifications to the computer security systems since 2009 as he had not been working there. He confirmed that a person could pay their rental payments at the Kennards’ office without having to use their pin code.[25] He confirmed that once the pin code had been entered in order to affect entry into the wine storage room, you could get back out of that room without needing to put in your pin code. That was not the case with the main gate.
[25] T 48.
Mr Roberts stated that each employee had their own security code so that at any time they could be identified when they were on site.
Mr Roberts said that there was a late fee of $15 if a person was late for payment for their locker. He had the ability to waive three late fees but after that the problem had to be referred to a regional manager.[26] A person who rented a unit was notified of a late fee by either phone, via a text message, email or perhaps even by post.[27] If there was still no payment, a reminder was sent out about the possibility of their goods being auctioned off. This was a standard letter that was automatically produced.[28]
[26] T 50.
[27] T 51.
[28] T 51.
Mr Roberts confirmed that new tenants often had trouble getting used to the system. This could account for the doubling up of code entries.[29] He also agreed that a signatory to a contract could provide their four digit code and key to a friend without Kennards knowing. It was not part of the contract that Kennards restricted access, but Mr Roberts said that people sometimes would put extra names on the contract of people they want to have access and also people they don’t want to have access.[30]
[29] T 60.
[30] T 62.
Mr Roberts agreed that with regard to an EFTPOS transaction it would have to occur at the Thebarton premises. It does not necessarily mean that the tenant made the actual payment. Someone also could ring up and provide a credit card payment over the phone. In this matter, however, the accused admitted he made the payments on the locker.[31]
[31] Agreed fact 10.
As Mr Roberts stated he was unable to explain the anomaly (inaccuracy) of the very last entry. However, given his other evidence about the accuracy of the reports generated by the computer, I am prepared to rely on the document generally. I am satisfied beyond a reasonable doubt that it records accurately, the events prior to 14 November 2012, namely all entries to Kennards and the wine room by use of the code allocated to the accused and the locker opening by use of the key once access was gained to the room. None of the matters put to me by Mr Sale make me doubt the accuracy of the record in relation to those events.
The inaccuracy of the events recorded on 14 November 2012 does not affect my findings as to what occurred on 14 November 2012. Its only relevance is as to what weight I can give Exhibit P2.
Evidence of Detective Brevet Sergeant Everett
Detective Brevet Sergeant Everett, at the time of this investigation, was stationed at the Drug Investigation Branch. On 14 November 2012 he attended at 103 Port Road, Thebarton. He searched the storage unit V80 he understood to be leased by the accused in this matter. He was the exhibits officer. He identified the photographs. The photographs were of the contents of the locker including the firearms in this case.
He confirmed that there were two boxes contained within the locker. One was a ‘Balnaves of Coonawarra’ box. Inside the box was a silver package as seen in photograph 9. Inside the silver package was a tea towel. Inside the tea towel was a handgun shown in photograph 12. There was also a magazine containing six live rounds as seen in photographs 16 and 17.
The other items found in the locker were two wine boxes joined together. That is seen in photographs 19 and 20. Inside those boxes were four silver packages plus a T-shirt. The T-shirt is seen in photograph 23. Inside one of the silver packages as seen in photograph 24 was a firearm. In another there was a 22 magazine and a box magazine shown in photographs 29 and 30. Another silver package contained within the box when opened was found to contain a firearm. This is seen in photographs 32 and 34. The last of the silver packages found within the two cardboard boxes also contained a firearm as seen in photographs 36 and 38.
He confirmed that the police attended the address at Aberfoyle Park and the accused was present when they attended. They searched the premises and photographs 39 through to 49 were taken of parts of the house and the contents of the search. In particular, photograph 41 shows a stubby holder which contains some keys. It was common ground that a key to the locker V80 was not located. A bank statement was located within a lounge room and seized. It was from Bank SA and addressed to Mr Joyce at Aberfoyle Park. The statement period was from 6 May 2012 to 5 July 2012.[32]
[32] Exhibit P8.
Detective Brevet Sergeant Everett confirmed that they were looking for keys, amongst other things. He said that he did ‘quite a fine search’ looking into containers that might contain keys and quite a thorough search going through lots of boxes and items within the house. He agreed that he opened boxes and various containers and drawers and things of that nature but they did not break anything apart to search. No key to the locker V80 was found. No ‘business size card’ containing the Security ID code was found.
I accept the evidence of the Detective. He was a good witness who gave his evidence in a clear and forthright manner. There was no hint of bias or exaggeration in his evidence.
Agreed facts
The following matters were agreed.[33]
[33] Exhibit P9.
Ballistics analysis
1.As to the firearms located:
a. Item PRT005 (13/B67666-9) is a Ruger model Mkll Target semi-automatic pistol and is a “class H firearm” for the purposes of the Firearms Act (count 2). The serial number was missing from the frame of the firearm and appeared to have been machined off (count 3);
b. Item PRT009 (13/B67666-13) is a Ruger model Ranch semi-automatic rifle and is a “prescribed firearm” for the purposes of the Firearms Act (count 1);
c. Item PRT015 (13/B67666-19) is a Bonifacio Echeveria model Izarra semi-automatic pistol and is a “class H firearm” for the purposes of the Firearms Act (count 6); and
d. Item PRT017 (13/B67666-21) is a Norinco model 1911 semi-automatic pistol and is a “class H firearm” for the purposes of the Firearms Act (count 4). The serial number was missing from the frame and appeared to have been ground off (count 5).
DNA analysis
2.Crime Scene Officer Paul Burnside took DNA swabs from the following items:
a. The magazine PRT012 (12/B67666-16);
b. Item PRT017 (13/B67666-21): Norinco model 1911 semi-automatic pistol;
c. The magazine PRT006 (13/B67666-10);
d. The magazine PRT013 (13/B67666-17);
e. Item PRT005 (13/B67666-9): Ruger model Mkll Target semi-automatic pistol;
f. Item PRT015 (13/B67666-19): Bonifacio Echeveria model Izarra semi-automatic pistol; and
g. Item PRT009 (13/B67666-13): Ruger model Ranch semi-automatic rifle.
3.A buccal swab taken from the accused was submitted to the Forensic Science Centre of South Australia.
4.The swabs taken by Officer Paul Burnside were analysed at the Forensic Science Centre of South Australia. Of the 7 swabs taken, 6 recovered insufficient DNA for profiling. As to the 7th swab, it was found to contain a mixed DNA profile of two contributors, and it is approximately 3 times more likely that the accused is not a contributor than is a contributor.
5.The following items were also submitted to the Forensic Science Centre of South Australia for analysis:
a. Tea towel PRT004; and
b. T-shirt PRT008.
6.Tapelifts were taken of each side of the tea towel PRT004:
a. On one side, a missed [sic] DNA profile of 3 contributors was found. It is approximately 7100 times more likely that the accused is not a contributor than he is a contributor.
b. On the second side, a single source DNA profile was detected, which the accused could be excluded from.
7.As to the T-shirt PRT008:
a. A hair was collected from the inner surface and was from an unidentified female.
b. A tapelift of the neck, shoulder and chest area was detected to contain the DNA of four contributors, and the accused could be excluded.
Fingerprint analysis
8.Items PRT005, PRT009, PRT015, PRT017, PRT006, PRT012, PRT013, PRT003, PRT010, PRT011, PRT014 and PRT016 were examined for fingerprints and there were not any fingerprints located on the items that could be utilised for identification purposes.
Documentary evidence
9.The accused hired storage unit V80 at Kennards 103 Port Road Thebarton. He entered into a contract 09262 now produced as exhibit P1 on 2 May 2009 for hire of that unit. The accused was the person who filled in the contract 09262 at Kennards on 2 May 2009.
10.The accused continued to hire the storage unit V80 in his name until at least 14 November 2012 and continued to make payments for it until at least 14 November 2012, including the following debited to his BankSA bank account:
a. $400 on 3/5/2010;
b. $37.60 on 4/5/2011;
c. $40 on 19/11/2011;
d. $115 on 26/6/2012; and
e. $145 on 9/11/2012.
Miscellaneous
11.On 14 November 2012 Christopher Lee JOYCE was not the holder of any firearms licence.
12.The accused’s home address as at 14 November 2012 was ... Aberfoyle Park. None of the keys exhibits MCA003 and MCA004 located at the accused’s home address fitted the padlock PRT001.
13.The Registrar of Firearms did not give authority for the serial numbers to be defaced or altered on items PRT005 or PRT017.
I find all of those matters established beyond a reasonable doubt.
Possession and the Firearms Act
Possession is defined in s 5(14) and (15) of the Firearms Act as follows:
(14) 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 submitted that s 5(14)(c) applied in this case so I will deal with that issue first. Mr Ellison submitted that the locker V80 fell within the statutory definition of ‘premises’. Thus he submitted that the accused had ‘care, control or management’ of premises for the purpose of that section and therefore the onus fell onto the accused under sub-s (15).
I reject that submission. I do not need to fully consider the expression ‘care, control or management’ as I find that the locker described does not fall within the definition of premises.
The Act does not define the word ‘premises’.
The Oxford English Dictionary (2nd ed) defines ‘premise’ relevantly as ‘a house or building with its grounds or other appurtenances’.
The Webster’s Dictionary (2nd ed unabridged) defines ‘premise’ relevantly as ‘a piece of real estate; a house or building and its land’.
Not surprisingly the word ‘premises’ can be interpreted more generously depending on its statutory context.[34] In R v Marafioti [35] the Court discussed the construction of s 5(14)(c) of the Act. Kourakis CJ, with whom the other members of the Court agreed, decided that s 5(14)(c) of the Act must be construed in the context of the preceding sub-paragraphs which manifest an intention to extend the concept of common law possession. Thus one needs to undertake a ‘broad reading’ of the terms in the subsection.
[34] Stroud’s Judicial Dictionary of Words and Phrases.
[35] [2014] SASCFC 8.
Bearing that in mind, I am unable to find that a locker within a building would, of itself, be defined as ‘premises’. Even allowing for a broad reading of the subsection such an interpretation is not available to the prosecution. I reject the submission.
Mr Ellison further submitted that in the alternative the wine room itself could be premises for the purposes of the Act. The accused had the security code number for the room and therefore he had ‘care control or management’ of the premises. Leaving aside the question of whether a room within a building could be construed as ‘premises’, it has to be borne in mind that there were 200 lockers in this room each one accessible by another ‘tenant’ with a different security code. Access was not necessarily restricted to one person per locker.
In those circumstances, it could not be said that the accused had ‘care control and management’ of the wine room. It may be that he had ‘care control and management’ of locker V80. I reject that argument.
Therefore, for Counts 1-6 the prosecution have to rely on the definitions of possession pursuant to s 5(14)(a) and/or (b). Subsection (15) does not apply to these definitions
The Court in Marafioti[36] noted that s 5(14)(a) was broadly the equivalent of the common law concept of possession but included within it possession by an agent. Sub-paragraph (b) it was noted, extended the common law concept of possession by removing the requirement of exclusivity and providing that access to a firearm may constitute possession of the firearm.
[36] Ibid at [23].
In R v Fuller[37] the Court dealt with the issue as to whether the prosecution had to prove that an accused knew the item in his possession was a firearm. In that case the item was a ‘home made pen gun’. There was a suggestion in the evidence in that case the item looked ‘like a flute’. This case does not appear to have been referred to the court when Marafioti was considered.
[37] [2012] SASCFC 101.
R v Fuller was a case that dealt predominately with the operation and interrelation of s 5(14)(c) and s 5(15)(a) rather than s 5(14)(a) and (b). There are comments in the judgment that refer to sub-s (14) generally and suggest that s 5(14) does not require an accused to have knowledge that the object is a firearm in order for him to be presumed to be in possession of it. In my opinion, a fair reading of the case should involve bearing in mind that the case was dealing with s 5(14)(c). There is nothing in the decision of Marafioti that would suggest that such a presumption would arise from s 5(14)(a) and (b).
It is clear that Parliament intended by the relationship between s 5(14)(c) and s 5(15)(a) to alter the law relating to knowledge and possession in those restricted circumstances. There is nothing in the other subsections that demonstrate an intention by Parliament to alter the common law position on possession other than the extension noted by the Chief Justice in Marafioti. Had Parliament intended such a result, such intention should be clearly stated.[38]
[38] He Kaw Teh v R (1985) 157 CLR 523.
I do not think there is necessarily any inconsistency between the decisions of Fuller and Marafioti but if I am wrong about that I think it is prudent to approach the matter conservatively and apply the reasoning from Marafioti.
Thus I will assume when interpreting s 5(14)(a) that it is broadly the equivalent of the common law concept of possession but includes within it possession by an agent.
Therefore, pursuant to sub-s 14(a) a person has possession of an object if he knowingly has physical custody of the item or has the firearm in the custody of another. That includes control of it. ‘Control’ includes the power to dispose of the object.
Simply being aware of the existence and place of an item does not amount, of itself, to possession.
A person may have the object in his immediate possession, for example, in his pocket, or he may have it in a place where, although he does not have immediate control of it, he has the right or power to place his hands on it, for example, property in a house. Control thus includes having access to it.
Access can be in many ways. For example, a person may only have one key to their house but if their partner or spouse keeps it and the only way that they can access the house is if he or she is at home or if they get the key for the person, (if there is that degree of control in that relationship beyond reasonable doubt and that can occur), that is still access for the purpose of possession.
So the essence of the concept of possession is that at the relevant time, a person intentionally, not accidentally, has control over the object in question. Control may be alone or jointly with some other person.
If it is joint possession, they must have the right to exclude other people from it. It is a joint possession when each person has a share in the right to possess and that the article is in a place that is accessible. (I do not have to consider the question of an agent in this case – there is no ‘agency’ suggested.)
Joint possession does not involve fractional rights in the object or equal rights to some fractional part of the object but in rights to the totality of the object.
An item may be possessed temporarily or for some limited purpose.
So what is important here is that the prosecution must prove both physical control and an intention to exercise the physical control over that object. The prosecution must prove this intention beyond a reasonable doubt.
Further, the prosecution must prove that not only did the accused have custody of the item as outlined but that he knew it was a firearm. The prosecution do not have to prove that an accused knew he had custody of a firearm as defined in the Firearms Act (or indeed if the items are in a box, how many items are contained in the box) but they must prove knowledge of the item(s) as a firearm in a general sense.
Under s 5(14)(b) the definition of possession under the Firearms Act is wider than the common law as a person has possession of a firearm if he ‘has and exercises access’ to the firearm. While ‘access’ is necessary for a person to have custody under sub-s (a), the definition under sub-s (b) removes the need for exclusivity.
If relying on sub-s (b), the prosecution would only have to prove that the accused was one of any number of people who could access the firearm. However, the prosecution would still need to prove that an accused knew it was a firearm (as previously discussed) he was accessing. I consider this to be an easier element for the prosecution to prove.
Evidence relied on by the prosecution
The prosecution relies on the following matters as items of circumstantial evidence in relation to the question of possession and knowledge:
1.Kennards provided secure storage facilities including a room that is temperature controlled (wine storage). Within that room were 200 lockers available for wine storage.
2.Access to Kennards generally is by use of a Security code number entered into a pad (Security ID code). The main gates to the general storage area required the Security ID code to be entered.
3.Entry into the wine storage area is by use of the same PIN code which must be entered into another pad.
4.Access to the locker is by key to a lock supplied by the customer or by key and lock supplied by Kennards.
5.If a lock is supplied by the customer an orange sticker (perforated) is placed on the lock before the lock is used to secure the locker.
6.The presence of the orange sticker is a security measure designed to inform Kennard security patrols as to whether a lock has been replaced or tampered with.
7.The accused hired locker V80 situated within the wine storage area. The initial date of hiring was 2 May 2009. The initial contract was for a 12 month period.
8.At the time of hiring the accused indicated on the contract that the purpose for the hire was ‘renovating house’.
9.At the time of hiring the accused produced his own lock for securing the locker. An orange (perforated) sticker was placed on the lock at that time.
10.The accused was provided with a computer generated Security ID code at that time. The number was on a ‘business size’ card. This number was for use to open the main gate to access the general area and then to gain access to the wine storage area. At that time the accused had control of and access to his locker V80.
11.The contract did not name anyone else who may have had access to the locker.
12.From then until the police search on 14 November 2012 the main gates, the wine room and the locker were accessed as described in Exhibit P2. The Security ID code was used as indicated. The locker V80 was opened on the days indicated with the key (by inference). Prior to the police search the locker was last accessed on 19 May 2011.
13.The accused continued to make payments and hire the storage unit V80 in his name until the search by police on 14 November 2014. The following amounts were debited to his Bank SA account:
a. $400 on 3/5/2010;
b. $37.60 on 4/5/2011;
c. $40 on 19/11/2011;
d. $115 on 26/6/2012; and
e. $145 on 9/11/2012.
14.The last payment was five days before the police search.
15.At the time of the police search the lock securing locker V80 was in place and showed no signs of having been tampered with (orange sticker).
16.The lock fixed to locker V80 at the time the contract was entered into was the same lock present on 14 November 2012.
17.In May and June of 2012 the accused was in receipt of Centrelink payments.
Discussion
The case is to be decided on the prosecution evidence.
Mr Sale did not dispute most of the evidence produced by the prosecution apart from the weight to be given to Exhibit P2. The main issue in the case was whether, on the facts proved by the prosecution, the only rational inference that I could draw was the guilt of the accused. In practical terms the only issue was whether the prosecution could prove the element of possession in relation to each charge beyond reasonable doubt.
Mr Sale submitted a number of scenarios which he said I could not exclude, as a reasonable possibility at least, as arising from the evidence called by the prosecution.
I bear in mind when considering the submissions put on behalf of the accused that he bears no onus of proof. Even if I reject the propositions put on his behalf that does not make him guilty of this offending. At all times the onus remains on the prosecution to prove its case beyond a reasonable doubt.
Mr Sale submitted that I could not exclude, as a reasonable possibility at least, that the firearms may have been put in the locker by an unscrupulous employee. As he put it, an unscrupulous employee in a business such as Kennards would be ‘incredibly useful for any number of reasons’ to people wishing to break the law.
He relied, to an extent, on the alleged inaccuracy of Exhibit P2. I have dealt with that issue earlier in these reasons. As mentioned, the error recorded on the day of the search does not make me doubt the accuracy of the other entries. Further, it does not make me doubt that the log records all entries to the locker V80 during the relevant period.
Further, the defence pointed to the DNA evidence. On the prosecution case no DNA of the accused was found on the guns or the items tested. DNA of unknown persons was located. I note there was no testing of the boxes in which the guns were located. Clearly, there was evidence that someone else had handled the actual guns before they were sealed in the silver packaging.
Mr Ellison, on behalf of the DPP, submitted that the rogue employee theory was ‘fanciful’. He put forward a number of reasons why I should so find.
The employee, he submitted, must have used his own Security ID code to access the wine storage room. He must have removed in some way the lock that the accused had placed there. At the time he accessed the locker he could not realistically have known if there were any items already in the locker.
The employee must have placed an orange sticker on the new lock. The latest he could have put the guns in the locker was 19 May 2011, some 18 months before the police search. That is, the employee left the guns in the locker for at least 18 months not knowing when the accused may attempt to access his locker and note that his key no longer worked. If he attempted to access his locker it is inevitable that the guns would be discovered.
It was submitted in relation to the DNA evidence that the DPP case was not that the accused necessarily took part in the guns being sealed in the silver packages; the case was that he stored the boxes in the locker knowing that the boxes contained firearms.
Mr Ellison submitted that a more obvious plan for an unscrupulous employee would be to access a vacant locker and remove the possibility of detection.
Mr Sale also submitted that the prosecution could not exclude, as a reasonable possibility at least, that the accused had given his key and Security ID code to a friend, who had then stored guns in the locker without his knowledge. Mr Sale conceded that there was no direct evidence to support his submission. He submitted, however, that it arose as an inference from the prosecution evidence.
The fact that people other than the named person on the contract could access a locker was known to Kennards. There was nothing wrong with the practice of doing so. As Mr Roberts acknowledged, sometimes they would be told and sometimes they wouldn’t be.
Further, Mr Sale submitted that on the prosecution case no key to the locker was found by the police despite ‘a thorough’ search of the accused’s premises. Keys were found but none that would unlock the padlock on V80. The ‘business size card’ bearing the Security ID code was also not found.
Mr Sale also relied on the DNA evidence discussed earlier. In relation to the payment for the hire of the locker up to 14 November 2012 by the accused, this did no more than show he may have had ‘part’ use of it up until that time. In particular, Mr Sale relied on the late payment of rental fees including an ‘auction’ notice to found a submission that it would be incredibly ‘cavalier’ of the accused to do so and risk the locker being opened if he knew the contents of the locker. If someone else was using the locker they may have removed whatever the accused was storing there.
Further, Mr Sale referred to the ‘inaccuracies’ of Exhibit P2.
Mr Ellison submitted that there was no direct evidence of the accused giving the key and the pass code to anyone. He submitted that no notification was given to Kennards regarding access being granted to anyone else. Further, he pointed to the fact that the records demonstrate that the accused continued to make payments on the locker until the police search. The locker was last accessed on 19 May 2011 and the accused continued to make payments. For a few months at least he was in receipt of Centrelink payments.
Mr Ellison submitted that there was no evidence that the accused was a collector of wine or that the house renovations, if they happened at all, continued for over three years. There was simply no explanation for him to rent the locker. Nothing was found in the locker but the guns. No wine or anything related to renovations. Why hire a locker to keep it empty, he asked rhetorically. Five days before the police search, the accused had made a significant payment on the locker. At the end of the day he always paid.
Mr Ellison submitted I should find Exhibit P2 to be accurate.
Further, Mr Ellison submitted that the fact that there was no key found did not prove that the accused did not have it. If, he submitted, the accused knew he was storing guns in the locker, he would hide the key.
Mr Ellison submitted that the guns were found in silver packages and the police had to cut the packages open to get access to the guns. The prosecution case was not that he handled the guns, only that he stored them. The DNA evidence did not cover the handling of the boxes.
In essence, Mr Ellison submitted that the combined strength of the circumstances proved by the prosecution led to the ‘irresistible conclusion’ of the guilt of the accused. The prosecution, he submitted, had excluded as reasonable possibilities the matters raised by the defence.
Circumstantial evidence
When the case against an accused person rests substantially upon circumstantial evidence, the jury or a judge sitting without a jury, cannot return a verdict of guilty unless the circumstances are ‘such as to be in consistent with any reasonable hypothesis other than the guilt of the accused’.[39] To enable me to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt should be a rational inference, but that it should be ‘the only rational inference that the circumstances would enable them to draw’.[40]
[39] Peacock v The King (1912) CLR 619.
[40] Plomp v The Queen (1963) 110 CLR 234.
A case is not bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that ‘according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed’.[41]
[41] Martin v Osborne (1936) 55 CLR 367.
While this statement of principle is uncontroversial it is really ‘no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt’.[42]
[42] Knight v The Queen (1992) 175 CLR 495 at 502.
However, ‘an inference to be reasonable’ must rest upon something more than mere conjecture.[43] It is necessary to weigh and consider the totality of the evidence and in doing so the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence. [44]
[43] Peacock v R (supra).
[44] R v Micallef [2002] NSW CCA 480.
It is of critical importance to remember that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[45]
[45] Shepherd v The Queen (1990) 170 CLR 573.
Often in a circumstantial case there is evidence of matters, which looked at in isolation from other evidence, may yield an inference compatible with the innocence of an accused. But a circumstantial case is not to be considered piecemeal.[46]
[46] R v Hillier (2007) 228 CLR 638 at [48].
As was said in R v Chamberlain (No 2):[47]
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider “the weight which is to be given to the united force of all the circumstances put together”: per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
And as Dixon CJ said in Plomp:[48]
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.
[47] (1984) 153 CLR 521 at 535.
[48] (1963) 110 CLR 234.
In this case the element of possession in relation to each charge is the only element in dispute. My finding beyond reasonable doubt that the accused was in possession (including knowledge as discussed) of the boxes in the locker will inevitably lead to a finding of guilt in relation to each charge given the admissions made by the accused.
Findings in relation to possession and knowledge
I do not intend to go through all of the evidence again as it is set out earlier in these reasons. I remind myself it is necessary to weigh and consider the totality of the evidence and in doing so I ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence. In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. I do not intend to go through each item of evidence separately. It is the combined force of the circumstances which is important for me to consider.
I have taken into account all the submissions of both counsel in addition to the evidence. As discussed I remind myself that the accused does not have to prove anything; it is for the prosecution to establish each element of each charge beyond a reasonable doubt. Particularly in relation to a circumstantial case, I remind myself that even if I reject the submissions of Mr Sale that does not mean that the accused was in possession of the firearms. The prosecution must prove this element beyond a reasonable doubt in relation to all charges.
I reject the submissions of Mr Sale. I accept that the matters raised by him in isolation, or combined, raise matters that I must consider. I have done so. I have carefully considered his submissions.
However, in my view the combined strength of the prosecution case is such that I find that not only is it a rational inference that the accused was in possession of the guns but that it is the only rational inference. That includes, of course, that he knew the boxes contained firearms. I do so using the definition of possession in s 5(14)(a) of the Firearms Act. In other words, I am satisfied beyond reasonable doubt that he had custody of the firearms. Given my finding it is not necessary for me to consider s 5(14)(b).
I am satisfied beyond a reasonable doubt that the accused was in possession of the items in locker V80 and that he knew that the boxes contained firearms.
Verdicts
As mentioned earlier, the only element of all the offences that was in dispute was that of possession.
I make the following findings beyond a reasonable doubt.
I am satisfied that in relation to Count 1 the accused was in possession of the Ruger model Ranch semi- automatic rifle. I am satisfied that it is a prescribed firearm. I am satisfied that at the relevant time the accused was not the holder of a licence authorising possession of the firearm.
I am satisfied in relation to Count 2 that the accused was in possession of a Ruger model Mk11 semi-automatic pistol. I am satisfied that it is a Class H firearm. I am satisfied that at the relevant time the accused was not the holder of a licence authorising possession of the firearm.
I am satisfied in relation to Count 3 that the accused was in possession of the firearm the subject of Count 2. I am satisfied that it is a Class H firearm. I am satisfied that the serial number had been removed.
In relation to Count 4, I am satisfied that the accused was in possession of a Norinco model 1911 semi-automatic pistol. I am satisfied that it is a Class H firearm. I am satisfied that at the relevant time the accused was not the holder of a licence authorising possession of the firearm.
In relation to Count 5, I am satisfied that the accused was in possession of the firearm the subject of Count 4. I am satisfied that it is a Class H firearm. I am satisfied that the serial number had been removed.
In relation to Count 6, I am satisfied that the accused was in possession of a Bonifacio Echeveria model Izarra semi-automatic pistol. I am satisfied that it is a Class H firearm. I am satisfied that at the relevant time the accused was not the holder of a licence authorising possession of the firearm.
Accordingly, I find the accused guilty of Counts 1, 2, 3, 4, 5 and 6.
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