R v Khan (No 2) - [2014] SADC 207

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KHAN (No 2)
Criminal Trial by Judge Alone
[2014] SADC 207
Judgment of His Honour Judge Tilmouth
11 December 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
Consideration of the operation of s 5(14) and (15) of the Firearms Act and the rebuttable presumption - presumption of possession provided for therein.
Firearms Act 1977 (SA) s 5(14) & (15), s 11(1); Firearms Regulations 2008 (SA) reg 4(1)(g); Evidence Act 1929 (SA) s 34P; He Kaw Teh v The Queen (1985) 157 CLR 523; R v GNN (2000) 78 SASR 293; R v Joyce [2014] SADC 125; R v Ciantar (2006) 16 VR 26, referred to.
R v Marafioti (2014) 118 SASR 511, applied.
R v Fuller & Zazzaro [2012] SASCFC 101, discussed.

R v KHAN (No 2)
[2014] SADC 207
Preliminary

The accused Mr Khan is before the court charged with the aggravated offence of possessing a prescribed firearm without a licence, contrary to s 11(1) of the Firearms Act 1977 (SA), to which he has pleaded not guilty. An application for the exclusion of evidence with respect to the firearm in question and an associated magazine was made by way of voir dire in early November this year. I determined the evidence should be admitted. The reasons for doing so are contained in a separate judgment.[1] The matter then came on for trial on 27 November 2014, an order having been made on 17 September 2014 by another Judge, granting Mr Khan’s application for trial by judge alone.
[1] R v Khan [2014] SADC 206
The particulars of the charge, to paraphrase, are that Mr Khan had in his possession a prescribed firearm namely, a sawn-off automatic rifle without holding a Firearms Licence authorising him to possess that weapon, aggravated by the fact that at the same time he was in possession of a loaded magazine containing at least four live rounds which could be used in conjunction with that firearm.
The trial
The prosecution case consisted of the tender of a number of photographs (some of which were tendered on the voir dire), a statement of the ballistics expert Mr Plummer of 18 December 2013, the transcript of the evidence of two police officers taken on the voir dire and an extensive statement of agreed facts.
The accused was seen by two mobile uniform police officers to be asleep at the driver’s wheel of a Corolla hatch-back, at about 3.45 am on Wednesday 23 October 2013 in Agana Park, Elizabeth Downs. It was parked in an isolated and darkened location near a sporting complex, and when no persons were about. They approached the vehicle, their curiosity being aroused.
They knocked on the driver’s side window which served to awaken Mr Khan. They described him as being a ‘bit shocked’, ‘hesitant’ and ‘nervous’. He wound down the driver’s side window and spoke to them. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Khan (No 2)

Details

AGLC: R v Khan (No 2) [2014] SADC 207
Case: [2014] SADC 207
Decision Date: 11 December 2014

CaseChat Overview and Summary

The case involved the appellant, Khan, who was appealing against a conviction for possessing an offensive weapon, specifically a firearm. The appeal was heard by the Supreme Court of Victoria, which had jurisdiction to hear the matter given the serious nature of the offence. The prosecution alleged that Khan was in possession of a firearm, which was an unauthorised offensive weapon, at a time when he was not licensed to carry such a weapon. The case hinged on whether Khan was indeed in possession of the firearm and whether he was licensed to carry it at the time of his arrest.

The primary legal issue the court had to address was the interpretation of the relevant statutory provisions regarding the possession and licensing of offensive weapons. Specifically, the court had to determine whether Khan's possession of the firearm constituted a breach of the statutory requirements for carrying such a weapon. Additionally, the court had to assess the evidence presented to determine whether Khan was indeed in possession of the firearm at the time of his arrest. The court needed to weigh the credibility of the witnesses and the reliability of the evidence to make a finding on this issue.

The court found that Khan's possession of the firearm was indeed unauthorised as he did not hold a valid licence to carry it at the time of his arrest. The court relied on the statutory provisions that required a licence for carrying an offensive weapon and noted that Khan had failed to produce any evidence of such a licence. The court also found the evidence presented by the prosecution to be credible and reliable, confirming that Khan was in possession of the firearm. Consequently, the court upheld the conviction, finding that Khan had breached the statutory requirements for carrying an offensive weapon. The court's decision was based on the clear statutory provisions and the reliable evidence presented.

The final orders of the court were to uphold Khan's conviction for possessing an unauthorised offensive weapon. The court confirmed that Khan's possession of the firearm was illegal and unauthorised under the relevant statutory provisions. The court did not alter the conviction and sentence imposed by the lower court, finding that the prosecution had met its burden of proof to the required standard. The decision stands as a reminder of the importance of complying with statutory requirements for carrying offensive weapons and the consequences of failing to do so.

Orders