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 told them he was ‘just resting’, that he had been ‘driving’. When questioned why he was parked there in the dark, he replied ‘I’m – I don’t know I just am’. He was then asked ‘Have you got anything in the car that you shouldn’t have?’ whereupon he produced what was described as an ‘ice-pipe’. It is the production of this pipe that led to a search of the car initially for drugs, but not before O’Dea foiled an attempt Mr Khan made to drive off. The question which prompted that response formed the subject matter of the failed application on the voir dire to exclude the evidence obtained thereafter.
Mr Khan produced a current learner’s permit containing his personal particulars. At this point he was heard to scream the words ‘Now I’m fucked’ or ‘I am screwed’, as he rocked back and forth in the driver’s seat.
During the ensuing search the police located the sawn-off .22 calibre automatic rifle beneath the lining of the driver’s side door and a magazine loaded with four live rounds within a magnetic key holder secreted under the steering column. Another ice-pipe was found in the centre console of the vehicle. Two boxes of shotgun cartridges of a different calibre were found inside a back pack on the rear passenger seat.
A set of scales was found secreted behind the trim of the interior front passenger door. Clear crystal residue was found in a sealed plastic bag in a white iPhone box on the front passenger’s seat. A small bag containing a crystalline substance was located in the pocket of Mr Khan’s jacket. Another small plastic container with a crystalline substance inside, together with four mobile phones were located in or on the centre console. A pouch associated with the digital scales, was found in the front pocket of the back pack and in the rear pocket was a Commonwealth Master Card in the name of Mr Khan. Later clothing and personal property were located in the boot of the vehicle, including documents bearing Mr Khan’s name.
The vehicle itself was rented from Avis Rentals, at its Carolyn Springs depot in Victoria on the morning of 11 October 2013 by a friend of Mr Khan’s. It is inherently unlikely that any of the secreted items were in the vehicle at that time.
The charged offence
The elements of the offence with which the accused is charged involve proof beyond reasonable doubt by the prosecution: firstly, that a prescribed firearm was involved; second, that Mr Khan was not the holder of an authorising Firearms Licence for that purpose; third, that the loaded magazine could be attached or used in conjunction with the firearm; and fourth, that Mr Khan was knowingly in possession of both. Defence counsel, for practical purposes, only put the proof of possession in issue. The accused did not adduce any evidence, so the case was argued on the basis of the materials referred to earlier. No inference is to be drawn from the fact that he elected not to give evidence, as is his right to do so.
Although the other elements of the offence were not put in dispute, it is best to deal with them briefly. The firearm was described by Mr Plummer as a ‘Fieldman Automatic self-loading rifle, manufactured by M A Naughton (Australia), chambered to fire “22 Long Rifle” rimfire ammunition’. He found it to have been sawn-off to a length of 204 mm. Together with the length of the wooden shoulder stock – which had been reshaped – the overall length of the firearm was 492 mm. It was found to fire without malfunction and to be in good working order. Mr Plummer concluded that it was a ‘prescribed firearm’ as defined by reg 4(1)(g) of the Firearms Regulations 2008 (SA), as this prescribes firearms (other than hand guns) having a length of less than 750 millimetres. In addition Mr Plummer considered the rifle to comply with the definition of a Class H firearm as defined by the Firearms Act 1977. There is therefore proof that it is a prescribed firearm.
Mr Plummer was also shown the detachable magazine, which he said had a capacity to take seven rounds of ammunition. He considered that the magazine loaded with the four verified cartridges was suitable for use in the rifle. The particular element of aggravation is therefore proven. So too is the fact that Mr Khan was not authorised by licence to possess the firearm, as this is the subject of agreed facts, namely that on 23 October 2013 he did not hold such a licence and that the rifle was not licensed.
The element of possession
That turns the enquiry to the question of possession. At common law a person possesses something which is to one’s knowledge physically in one’s custody or under one’s physical control’: He Kaw Teh v The Queen,[2] R v GNN.[3]
[2] (1985) 157 CLR 523, 600.
[3] (2000) 78 SASR 293, [20].
It is on the basis of the proven facts referred to above, that the prosecution builds its case in proof of possession by Mr Khan. It is clear beyond doubt from the objective facts together with the admission made by Mr Khan, that he had driven there some time earlier. The inescapable inference is also that he drove there alone and had parked, to take a nap, irrespective of what else he had in mind. The presence of personal papers within the vehicle, his position at the driver’s wheel, winding down the window and the attempt to drive off, place him exclusively in possession of the vehicle at times relevant to the charge.
The inescapable inference to be drawn from the combined circumstances then, is that Mr Khan was in control of the vehicle. Section 5 (14) and (15) Firearms Act provides 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.
In R v Fuller & Zazzaro,[4] the Court of Criminal Appeal held that this section, which gives rise to a presumption of possession, places the onus on an accused of establishing the matters referred to in s 5(15) on the balance of probabilities. Later in the same case the court added (per David J, Nyland and Anderson JJ agreeing):
[72] In my view, s 5(14) does not require an accused to have knowledge that the object is a firearm in order for them to be presumed to be in possession of it, nor does s 5(15)(a) enable an accused to rebut the presumption of possession created by s 5(14)(c) by establishing that they knew did not know that the object the subject of the charge was in fact a firearm. Section 5(15) of the Act is directed only to the presence of the firearm at the premises and not knowledge that it was in fact a firearm. Both sections are concerned with custody of the firearm and do not require proof of any knowledge, or lack thereof, on behalf of an accused that the object over which they have custody is indeed a firearm.
[73] It follows that the prosecution was not required to prove that either appellant knew that the pen gun was a firearm. Once the elements necessary to prove the offence were established under s 5(14)(c), a prima facie offence contrary to s 11 of the Act was made out. The burden then shifted to each appellant to either rebut the presumption of possession under s 5(15) or to prove a defence pursuant to s 36A of the Act. Aside from counsel in their opening, the issue of s 36A defence was never raised.
[4] [2012] SASCFC 101, [47]-[49].
Section 36A of the Firearms Act referred to in the last passage provides:
36A — General defence
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
Of this section the court in R v Fuller & Zazzaro said:
[71] The existence of this section prevents a person who can prove that they had no intention to do anything wrong and no knowledge that they were doing so from being convicted of an offence against the Act. This defence would extend to an accused who was deemed to be in possession of a firearm by operation s 5(14) but can prove, for example that they did not know that the object the subject of the charge was in fact a firearm.
Subsequently a differently constituted quorum in R v Marafioti,[5] considered the same presumptive provisions:
[23] I return to the extended definition of possession. I start by observing that s 5(14)(a) of the Act is, broadly, the equivalent of the common law concept of possession, but includes within it, possession by an agent. Subpara (b) extends 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. Section 5(14)(c) of the Act must be construed in the context of the preceding subparagraphs which manifest an intention to extend the concept of common law possession. That suggests a broad reading of the term “in charge of”.
This statement of principle seems a little difficult to reconcile with the statement in R v Fuller & Zazzaro to the effect that it is unnecessary to prove knowledge that the object possessed was a firearm, as Judge Lovell suggested in R v Joyce.[6] Like him therefore, I approach the matter on the basis that proof of knowledge that what was possessed was a firearm is required.
[5] (2014) 118 SASR 511, per Kourakis CJ, Vanstone and Stanley JJ concurring.
[6] [2014] SADC 125, [87]-[90].
By virtue of s 5(14)(c) Mr Khan is deemed to have possession of a firearm, as there is proof here that he was ‘in charge of a vehicle’, thereby placing the onus upon him to establish on the balance of probabilities, either that he did not know or could not reasonably expect to have known that the firearm was in the vehicle.[7] As was stated in R v Marafioti:[8]
The most natural and obvious way in which a person may be in charge of a vehicle, vessel or aircraft is to be the driver, captain or pilot respectively. True it is that the legislature could easily have chosen to use the word “driver” if it intended the presumption of possession to apply to all drivers. However, if the section had been so drawn it would have been necessary, in order to achieve the Act's manifest purpose, to add further words to capture the person who has just alighted from, or is about to step into a vehicle, vessel or aircraft for the purposes of driving it. Further text would also have been necessary to apply the presumption to persons who have left a vehicle, vessel or aircraft in a car park, dock or hangar. The failure to use the word driver is therefore not an indication that some additional degree of control, over and above being a driver, is required.
[7] R v Fuller and Zazzaro [2012] SASCFC 101, [38], R v Marafioti above [25].
[8] Above [26].
That being so, there is simply insufficient evidence capable of rebutting the presumption of possession. To the contrary, the distribution of his personal property and the proven use of the vehicle tend to suggest that Mr Khan had knowledge of what was in it and that he knew of the gun beneath the door panel. For the same reasons, the general defence provided for in s 36A of the Firearms Act is not made out either, although it might be noted it was not relied upon by defence counsel.
It follows that the proof of the element of possession has been made good, so that as proof of all the elements of the charge are satisfied, Mr Khan must be found guilty of the charge.
In light of this conclusion no question arises as to the admissibility of the evidence relating to drugs and drug paraphernalia sought to be adduced by the prosecutor pursuant to s 34P of the Evidence Act 1929 (SA).It is questionable whether the evidence could properly sustain an inference that the crystalline substances were controlled drugs without expert evidence on the point. The reaction of the accused upon being questioned by the police affords no probative evidence against him in respect of this charge, because that may be attributable to the production of the ice pipe itself, or to some other reason other than the firearm and the magazine: R v Ciantar.[9]
[9] (2006) 16 VR 26; (2006) 167 A Crim R 504, [86].
Conclusion and verdict
For the above reasons the prosecution has proven that the charge is made out. Mr Khan has failed to discharge the onus on him to prove any available defence. A verdict of guilty must be entered accordingly.