R v Kheir, Mahmoud - [2018] NSWDC 94

District Court

New South Wales

Medium Neutral Citation: R v KHEIR, Mahmoud [2018] NSWDC 94
Hearing dates: 17-19 July 2017 and 1 February 2018
Date of orders: 01 March 2018
Decision date: 01 March 2018
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Verdict of guilty for all three counts on the indictment. Full details at [100].

Catchwords: Criminal – trial by Judge – possess loaded firearm in a public place – 9 millimetre semi-automatic hand gun – firearm located under the driver’s seat of the accused – circumstantial evidence – expert evidence on DNA
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Fleming v The Queen [1998] 197 CLR 250
Category: Principal judgment
Parties: Regina
Mahmoud Kheir
Representation: Representatives:
Mr. Borosh – Director of Public Prosecutions
Mr. Peluso – Offender

File Number(s): 2011/00380265
Publication restriction: No publication of limited exhibits

SENTENCE

HIS HONOUR: Mahmoud Mohammed Kheir pleaded not guilty before me in respect of three counts on an indictment. That was presented on or about 18 July 2013. The trial was a trial by judge without a jury, an application having been made by the accused in accordance with the Criminal Procedure Act.
The three counts to which the accused pleaded not guilty were, firstly, that he on 19 November 2011 at Bankstown in the State of New South Wales did possess a firearm, namely a 9 millimetre semi-automatic handgun, on which the serial number was defaced without being authorised to do so by the Commissioner of Police. The second count, alleged on the same date and place, that the accused did possess a loaded firearm in a public place, namely a 9 millimetre semi-automatic handgun with ten rounds in the magazine in a vehicle parked on Wattle Street, Bankstown. The third count in the indictment alleged that on the same date and the same place the accused did possess a prohibited pistol, namely a self-loading pistol, not being authorised to do so by licence or permit. The three counts relate in effect to the one incident and relate to the one firearm.
As I said the trial was a trial by a judge without a jury. It proceeded in July to a point when it was clear that the accused was unwell and prima facie unfit to be tried. This was near the end of the Crown case and arose out of a conference had by learned counsel for the accused with him prior to determining whether the accused should give evidence, or not, as I understand the matter.
The matter was adjourned to enable reports to be prepared on the basis I was satisfied that the matter raised by learned counsel for the accused was raised in good faith. The matter continued as a fitness to be tried hearing and I concluded on the basis of the evidence available to me that the accused was relevantly fit to be tried.
The matter then had to be stood over to enable the trial to be completed and the evidence in the trial was concluded on 1 February 2018. I adjourned the matter to enable the parties to consider the submissions they wished to make. I was aided considerably by the helpful written submissions of the learned Crown Prosecutor and the oral submissions of counsel for the accused with the benefit, if I can use that expression, of the Crown’s submissions as a focal point for his submissions.
LEGAL PRINCIPLES TO BE APPLIED
There are a number of matters required to be considered in this trial. Firstly, the trial is a trial by judge in accordance with the provisions of the Criminal Procedure Act 1986 (see ss 132, 133). A trial by judge alone in accordance with the relevant provisions requires the trial judge in judgment not just to state their principles of law that are applied and findings of fact that are made, but also to expose “the reasoning process” justifying the findings of fact and ultimately the verdict.
All principles of law which are relevant and are required to be applied and considered should be identified in the judgment, including any necessary warnings that the trial judge is required to apply in the assessment of the evidence. Where particular warnings are applied a judge must state the appropriate warnings, or the consequences of them, and why a particular verdict has been reached (see Fleming v The Queen [1998] 197 CLR 250).
In this matter, as with all criminal matters, there are matters required to be proven by the Crown. The onus of proof rests with the Crown from the beginning of the trial to the end of the trial. The prosecution bears the burden or onus of proving the guilt of the accused. The accused bears no onus of proof in relation to matters requiring proof by the Crown. The accused is presumed to be innocent until such time as the prosecution can prove his guilt of a relevant count in the indictment.
In order to prove the guilt of the accused in relation to a relevant count in the indictment, the Crown must prove each and all essential ingredients or elements of a relevant charge for consideration beyond reasonable doubt. Those words are to be given their ordinary, everyday meaning. The accused bears no onus in relation to any matters requiring proof by the prosecution. If a reasonable doubt exists in relation to matters which the Crown must prove, then I must acquit the accused in respect of the relevant count where such a reasonable doubt exists.
In this matter the accused gave evidence. He was under no obligation to give evidence or prove anything. His evidence formed part of the totality of the evidence upon which a determination of guilt or otherwise is made. It did not signify when he gave evidence that the onus of proof had shifted. The choice by him to give evidence does not mean the evidence he gave was necessarily true. His evidence, subject to appropriate warnings in relation to particular witnesses, falls into the same category as the evidence of any other witnesses who likewise took an oath or made an affirmation and was subject to the test of cross‑examination.
I appreciate, of course, that the accused’s evidence, notwithstanding the fact that he bears no onus of proof, in the context of the matters requiring proof by the Crown may be capable of raising a reasonable possibility or possibilities in relation to matters that the Crown must prove that are inconsistent with guilt.
So far as the elements of the charges prosecuted in the indictment are required to be proven by the Crown, in relation to count 1 the Crown must prove, firstly, that the accused possessed the relevant firearm. Secondly, that a serial number was defaced, and, thirdly, he possessed the firearm without being authorised to do so by the Commissioner of Police.
In relation to count 2, likewise the Crown must prove that the accused possessed the relevant firearm. Secondly, that it was a loaded firearm, and, thirdly, that it was possessed in a public place.
In relation to the third count in the indictment the Crown must relevantly prove that the accused possessed, secondly, a prohibited pistol, thirdly, not being authorised to do so by licence or permit.
As the case has unfolded I do not need to dwell upon the meaning of particular elements with the exception of the element of possessing a firearm because the case was conducted entirely on the basis as to whether the Crown could prove beyond reasonable doubt that the accused possessed the relevant firearm in the circumstances claimed by the Crown. In relation to the issue of possession the Crown must prove beyond reasonable doubt that at the relevant time the accused intentionally had the firearm in his physical custody or control to the exclusion of others, other than those with whom he was in joint possession.
The Crown in this case must prove beyond reasonable doubt that the accused not only had knowledge of the firearm in the place where it was located, but sought also, and additionally, that he exercised physical custody or control over it. Of course an item can be possessed by a person without being in its person’s immediate physical custody. The circumstances of it not being in the accused’s immediate physical custody may give rise to reasonable possibilities inconsistent with physical control or custody, as would be self‑evident.
With regard to other aspects of the matter I point out that there was a body of evidence in certificates and in the oral evidence of arresting police that went to the issues arising, firstly, in relation to count 1, of whether the serial number was defaced and/or whether the accused was authorised to possess the relevant firearm. In relation to count 2 there was oral evidence as to whether the firearm was loaded.
The issue of public place, as the Crown pointed out in its written submissions, was not an issue in the trial. The presence of the firearm within the motor vehicle was relevantly within a “public place” in accordance with the relevant provision of the Firearms Act to which the Crown referred.
The relevant weapon, of course, was a “firearm” under the respective legislation under which the accused was prosecuted. The accused being prosecuted in relation to count 1 pursuant to the Firearms Act (s 66b), in relation to count 2 pursuant to the terms of the Crimes Act (s 93G), and in relation to count 3 again pursuant to the Firearms Act (1996) (s 36(1)).
With regard to count 3 matters, such as whether the pistol was a “prohibited pistol” and whether the accused possessed it “not being authorised to do so by licence or permit”, were the subject of evidence in certificate and oral evidence and I need not dwell upon that. It was not disputed.
In relation to other legal principles to be applied, firstly, I bear in mind in relation to the matter that if there be a conflict between the evidence of a witness and the prosecution case and evidence given by the accused or called by the accused, in this case given by the accused, whilst the issue of who is to be believed is a matter sometimes that arises of consideration, it is essential to ensure that if the answer to that question is adverse to the accused, then it is not to be taken as concluding the issue of whether the prosecution has proven beyond reasonable doubt the issues to which it bears the onus. A verdict of guilty cannot be returned in relation to a particular count unless I am satisfied beyond reasonable doubt of the truth of the evidence relied upon by the prosecution to prove the relevant matters requiring proof by the prosecution.
It is a requirement of the Court to consider each count separately and consider each count only by reference to the evidence relevant to that particular count. I cannot take into account evidence relevant to one count that is irrelevant to the “second count” in determining whether the Crown has proved that so-called “second count”. However there will be much evidence in a matter such as this that is common to all three counts, as is self-evident from the issues articulated by the parties.
I warn myself that two of the witnesses, Mr Yassine and Mr Darwiche, may be unreliable witnesses. I was not specifically requested in this regard, but I bear in mind in relation to one of those witnesses some extensive criminal history and I also bear in mind that there may be reasons for those witnesses not to tell the truth of their knowledge of the firearm in the context of the circumstances in which they were arrested by police. They gave evidence in the prosecution case and whilst there was no evidence of a particular substantial advantage that they were offered for the purposes of giving evidence, I bear in mind that matters relating to their background and the circumstances of their arrest may be capable of changing their recollection of relevant events.
In this particular matter the Crown case is a circumstantial evidence case. There were no admissions by the accused. There is, of course, direct evidence upon which the Crown relies, but primarily directed at establishing facts to be considered in conjunction with circumstantial evidence. A case based in full or in part on circumstantial evidence may be as convincing and reliable as a case based solely upon direct evidence. This will depend on the number and nature of the basic facts relied upon by the prosecution when considered as a whole, not individually or in isolation. It will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.
It is important that I approach a circumstantial evidence case by considering and weighing as a whole all of the facts that I find as established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused or whether there is an explanation for that particular fact or circumstance which is inconsistent with the accused’s guilt. I must determine what facts I find established from the evidence, although it is not necessary that those facts be established beyond reasonable doubt and consider those facts as a whole.
If a conclusion of guilt does not reasonably arise in relation to a particular count in the indictment, then the Crown’s circumstantial case fails and I must find the accused not guilty. The critical issue is whether there is at least a reasonable possibility that the accused did not possess the relevant firearm. If that reasonable possibility exists, then the accused must be acquitted. The Crown must prove beyond reasonable doubt that such a reasonable possibility did not exist.
In considering the matter and considering what combination of established facts establishes, I must determine whether there is any reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown submitted was established; that is that relevantly the accused possessed the relevant firearm. If there is any reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial evidence case fails because I would not be satisfied beyond reasonable doubt of the accused’s guilt.
The issue of guilt, particularly in the context of a circumstantial evidence case, here the issue of whether the accused possessed the relevant firearm, must be the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole, including facts favourable to the accused.
In this matter there was expert evidence from Ms Campbell in relation to DNA testing, although that matter was not the subject of any challenge, and her opinions were relied upon by the defence in a material sense. I warn myself of course that cases are not to be decided by expert evidence. I warn myself that expert opinion is very much dependent upon the reliability and accuracy of the material which the expert used to reach her opinions. It is dependent upon the degree to which the expert analysed the material upon which the opinion is based, and the skill and experience brought to bear in formulating any opinion given.
I am aware of the fact that experts may differ in their degree of experience, training and study, but still be an expert qualified to give an opinion. I may not necessarily accept the evidence of the expert and I do not have to act upon it, particularly if the facts upon which the opinion is based do not accord with the facts as I find them to be. I am entitled to use my common sense. I bear in mind the expert evidence only relates to part of the case and is not by itself determinative of the guilt of the accused. In this particular matter, as I have said, there was no issue in relation to the expert evidence as it was relied upon both by Crown and defence in particular ways in the cases that they conducted.
THE EVIDENCE
To summarise the evidence in the case by reference to the evidence in the Crown case and evidence from the accused, at about 6.10pm on Saturday 19 November 2011 the accused was observed by police who passed by a motor vehicle in which he was seated in the driver’s seat. The car in which he was seated in the driver’s seat, the car in which he was seated was a black Audi sedan BT ZG 82Z. Police returned having passed by that motor vehicle to conduct enquiries of the occupants. Police investigations revealed, confirmed in her evidence in this Court, that the motor vehicle was owned by Joanne Kheir who was at that time the wife of the accused. Ms Kheir gave evidence that the motor vehicle was used by both her and her husband from time to time. She was not present, as I understand the evidence, at the location where the car was seen.
The car was parked outside 148A Wattle Street, Bankstown. Sitting in the rear of the car behind the driver’s seat was Mr Omar Yassine, a third person Mahmoud Darwiche, was observed by police either subsequently or contemporaneously with their examination of the car, walking out of the premises at 148A Wattle Street, Bankstown. As I understand the evidence this was Mr Yassine’s premises. Mr Darwiche apparently had previously travelled in the car.
The arresting police officers found nothing of significance on any of the three men personally. The motor vehicle was searched and amongst items found were digital scales, some white powder residue but relevant particularly to the charges in this indictment, when searching under the driver’s seat, was found a type of storage area, in which was found a red a white coloured tea towel which was wrapped around the firearm identified in the indictment. Also found in the same space was a plastic bag with brown and white powder. The firearm was inspected and was relevantly loaded with a number of rounds of ammunition in the magazine.
The accused was arrested, he was taken to the Bankstown Police Station. He denied any knowledge of the firearm and sought assistance from the police in relation to matters concerning his prior contact with the police which were referred to in evidence in the trial set out in exhibit F, which is a sealed document. As I have earlier pointed out, in the trial there were number of certificates were produced to establish that the accused was not authorised to have possession of a pistol that the relevant firearm was not registered.
I heard evidence that it was capable of firing a projectile and it was a prohibited weapon as was the ammunition. The firearm itself, was described as a nine millimetre Czechoslovakian ‘Colt style’ self-loading pistol. As I have said, it had a defaced ID.
The Crown led evidence without objection as to the accused’s prior contact with police, the details of which I do not propose to detail in this judgment. The detail of that evidence is the subject of a non-publication order although I am appreciative of the fact that I could pronounce it now and direct no publication of this judgment but I do not feel there is a need to do so. It was evidence not disputed. It is suffice to say that in that evidence the police had prior contact with the accused and that prior contact revealed that the accused had knowledge of the means of acquiring a firearm, such as for example the firearm with which I am concerned, although not this particular firearm. I warn myself of course that this is not evidence of bad character but was evidence relevant to a fact in issue, that is whether the accused had the opportunity and capacity to acquire a firearm such as the firearm found under the seat of the car.
The Crown as I said produced an expert Ms Campbell who produced a certificate in relation to examination of various items, the subject of swabs to identity DNA profiles if they could be. DNA profiles were obtained from the accused by buccal swab on 25 November and Omar Yassine to whom I made earlier reference. Swabs were taken from the compartment under the driver’s seat to which I referred, the nine millimetre pistol, the magazine and some of the rounds, the two plastic bags and one resealable bag which I believe contained the drugs. A tape lift was later taken from the red and white tea towel in which the firearm was placed.

With regard to the testing that was undertaken, the swab of the compartment under the driver’s seat, the swab of the pistol and the swab of the magazine and rounds revealed no identifiable DNA profile. Although some individuals were identified but the complexity of the mixtures prohibited further identification. With regard to the swab taken of one or other of the plastic bags and the resealable plastic bag that contained the drugs that were found under the seat, the major component of this mixture had the same profile as the accused.

“This profile is expected to occur in fewer than one in ten billion individuals in the general population.”

There was a minor component that was so weak and so complex as to prevent determination of identification. It would appear clear from that finding that it was very highly likely that the accused had contact with the surfaces at least of those items that were swabbed. In relation to the tape lift of the red and white towel, there was a mixture that appeared to originate from two main contributors, one male and one female. The male who was identified, as not being able to be excluded as a contributor, was the accused. The reports states;

“It was approximately 21,000 times more likely to obtain this mixed profile if it originates from Mahmoud Kheir and an unknown individual, rather than two unknown unrelated individuals in the general population.”

There was other DNA material found but it could not be identified. This evidence reflects the fact that there was “the possibility,” of contact of the accused with the tea towel. There is a possibility, of course, the DNA profile identified, not being that of this accused and of course as was developed in the examination and the cross‑examination of the witness, that the DNA material that was found arrived or was placed on the tea towel, not directly by anybody, including the accused, but by transferred either by primary or secondary. It could have been transferred for example, from the material of the DNA profile of the accused on the resealable plastic bags and the like or from other source and I bear that in mind.
With regard to other evidence in the case apart from the arresting police Mr Voget and Mr Kalantizs, I heard evidence from Inspector Faux and an AFP agent Mr Steven Scott Young, relating to the confidential information I have received and the previous contact with the accused. I heard evidence as I said from Ms Kheir, the former wife of the accused regarding her ownership of the black Audi. She denied knowledge of the presence of the gun in the car and as I said, gave evidence of the accused’s access to the car which was self‑evident by the circumstances in which the police found him sitting in the driver’s seat of that car when they conducted their investigations.
I have referred to Mr Darwiche and Mr Yassine. They were not overly impressive witnesses it must be said. Mr Darwiche however denied any knowledge of the gun in the motor vehicle. I have taken into account the matters that were raised in relation to his credibility generally. Likewise in relation to Mr Yassine, he was not an altogether convincing witness. He had bare recollection of the relevant events. He admitted to sitting in the back of the car but denied knowledge of the presence of a firearm in the car, denied using drugs on that particular day and denied placing the firearm under the seat. I have taken into account the matters that were raised in relation to his credibility including his criminal history.
With regard to the accused’s evidence he essentially said that he could not remember the circumstances of his arrest. He could not remember the vehicle in which he was arrested. He could not remember being spoken to by police and denied knowing at least one of the men in the car or associated with the car, that is Mr Darwiche and/or Mr Yassine that day.
He said he did not “recognise” the firearm depicted in the firearms. He did not remember the police finding the firearm and some drugs. He did not remember that his wife owned any particular vehicle including the vehicle in which he was stopped.
He said in cross-examination that he did not recognise Mr Yassine as someone he knew. He said it was “like a dream”. He did not deny seeing the red and white tea towel at some time in which the firearm was wrapped. It was the case however that he said he did not “remember” having seen it before it was found by the police. He did not remember the drugs that were found inside the car. He prevaricated about matters relating to his contact with the police, conceding that he may have had prior contact with them. Whilst he denied knowing the firearm was under the seat, when asked if he was given the pistol to deliver to others he said he did not ‘remember’.
It must be fairly said, as the transcript makes clear in terms of the response of his counsel to the answers he received to his questions, the accused’s evidence was quite unimpressive.
SUBMISSIONS
With regard to the submissions of the parties, the Crown, after dealing with legal matters relating to the character of the case in dispute and other issues which I have already addressed, identified in respect of the critical issue whether the accused possessed the firearm, a number of matters which it said in the context of directing myself as to circumstantial evidence established the guilt of the accused: the location of the firearm under the driver’s seat, the fact that the accused was in the driver’s seat, the fact that the vehicle was a vehicle owned by the accused’s wife and one over which he had control from time to time. Reliance was also placed upon the accused, in the evidence of the police, reaching in the direction of the compartment under the seat. I will come back to that in a moment. In my view that matter is of no significance in this case.
Reference was made to the DNA profile evidence to which I have referred, the circumstances in which it was found difficult by Constable Voget to remove the pistol within the tea towel from behind and underneath the driver’s seat in the location of where Mr Yassine was seen to be sitting, the evidence of Mr Yassine and Mr Darwiche denying knowledge of the firearm, the fact that the accused was a person who had the opportunity and capacity to obtain such a firearm.
It must be said in the context of issues relating to the geography, if I could call it that, of the vehicle that Ms Kheir very kindly produced the motor vehicle to the Court I undertook a ‘view’ of the vehicle in the car park of the Court with the agreement of the parties. I had the opportunity of seeing the vehicle in much the same condition as it was in 2011. I was aided, I point out, with a number of photographs relating to the character of the firearm and also photographs taken of the interior of the vehicle and the like which were of some assistance. My ultimate view was that it was possible for a person to place a firearm wrapped in the tea towel either from the front of the vehicle or from behind the car seat.
The Crown submission was, in the context of all the matters that were referred to as relevant to the circumstances, that the only reasonable conclusion was that the accused was the person who had placed the firearm under the seat, that there were physical difficulties for Mr Yassine to have done so and the evidence was that he did not have any knowledge of the firearm in any event.
The Crown put reliance upon Constable Voget’s observation of the accused appearing to reach towards the area underneath the seat, suggesting that the “accused had an active interest in the draw and its contents”. I digress for a moment to point out of course that there were also drugs in that particular area and the issue of the accused’s connection with the drugs was not a matter of significant dispute.
The Crown also referred to the DNA evidence. The Crown said that it was evidence that provided possibilities for the accused’s contact with the tea towel at least, conceding that there was no DNA profile of the accused found on the firearm itself. With regard to the accused’s possession of drugs it was submitted that people that possess drugs also from time to time possess firearms, a matter about which I do not give any particular weight. Ultimately, the Crown says that I should be satisfied beyond reasonable doubt of the guilt of the accused.
The accused’s submissions were, firstly, that there was no dispute that possession is the only issue in relation to each count. There was no issue as to the fundamental facts, as to the finding of the firearm in the vehicle in the condition in which it was found and matters relating to the condition of the firearm on inspection.
In the context of what had been argued by the Crown the following points were made by learned counsel for the accused: the position of the gun was such that it could have been put there by someone else but it was accepted that it was difficult to put it there from behind the car seat. Secondly, it was submitted that the pistol was wrapped in a tea towel but the DNA evidence concerning the DNA profile or purported profile on the tea towel had to be seen in the context of the opinions expressed about “transference”, that is, that DNA material can be transferred from one item to another without a person directly touching the second item.
Thirdly, it was submitted the vehicle could have been used by others other than the accused and his wife although there was little evidence of that. It was pointed out, and I have taken it into account, there was no DNA profile similar to or identical to that of the accused on the firearm itself. Counsel for the accused relied upon the denials of the accused that very day to investigating police at the Bankstown police station. He conceded in his submissions that the accused’s evidence was difficult to assess. But he essentially denied seeing the pistol which I have taken into account.
It was submitted on behalf of the accused further that it was difficult to work out the “relevance” of the accused’s prior connection with police. Having a firearm, it was submitted, was inconsistent with his cooperation with the authorities for example the day before. I have taken that evidence into account. It seemed to me, with respect, that his contact with another person called “Scott”, endeavouring to source a firearm, was support for what had emerged from the evidence of a confidential nature. That the accused was seen as a person who had the capacity to obtain firearms. But it was conceded by counsel for the accused that it was difficult to “work out and deal with that evidence.” I was reminded of the requirement of me to be satisfied beyond reasonable doubt of the guilt of the accused of which I obviously am fully aware.
CONSIDERATION
The evidence in the case established beyond reasonable doubt the following facts: Firstly, the firearm or pistol was relevantly prohibited, defaced, unregistered and was in working order and the accused was not authorised to possess such a firearm.
I am also satisfied beyond reasonable doubt that the firearm was found under the driver’s seat of a motor vehicle that the accused was in control of to the exclusion of others on the occasion of the finding of the firearm. There is no evidence of any other person having “control” of the motor vehicle. But there is evidence of other people having “access” to the vehicle.
Thirdly, I am satisfied beyond reasonable doubt the accused had the opportunity to place the firearm under the front seat of the vehicle either from the front or the back due to his control of the vehicle. The fact that the vehicle, being owned by his wife, was a vehicle he had control of for some period of time, that is, days and/or months before the police stopped him. I concede in that context, of course, that his wife could have had control or access to the vehicle also during that intervening period. But it is not a case of the accused being in control of the vehicle for a matter of only minutes or even hours before the police conducted their enquiries. Furthermore, his opportunity to place the firearm where it was located arose from his obvious access to the interior of the vehicle and, as I have earlier pointed out, he also in terms of opportunity had knowledge of the means, as I would understand it, to obtain such a firearm.
I am satisfied beyond reasonable doubt that neither his wife, Mr Yassine or Mr Darwiche placed the firearm in the vehicle. I accept that they may had opportunities to do that. However, in my view whilst accepting that they had such opportunities I do not regard it as a reasonable possibility that either of those people placed the firearm in the vehicle.
With regard to those witnesses, particularly, Mr Darwiche and Mr Yassine, they were, as I said, not particularly satisfactory witnesses but no less unsatisfactory than the accused. He offered almost no response to the prosecution case. I have taken into account matters relating to their credibility in coming to the conclusion that I did. The wife of the accused was an impressive witness, in my view. I thought she was an honest witness and she did not seem to be trying to hide anything to protect her husband or former husband.
Further the scientific evidence was capable of establishing as a fact the possibility that the accused had contact with the tea towel in which the firearm was wrapped. On the basis of the DNA findings, of course, he was very highly likely to have handled the packaging of the drugs. I appreciate there is no DNA evidence that directly links the accused with the firearm, itself. There are reasonable possibilities as to transference that could account for the presence of a DNA profile very similar to the accused on the tea towel. In other words, there may be a perfectly innocent explanation for the findings in relation to the examination of the tape lift on the tea towel.
Obviously, the DNA evidence is not conclusive as to contact with the tea towel. Either directly or indirectly it stands as in essence one matter which by itself falls far short of proving beyond reasonable doubt that the accused handled the tea towel let alone the gun. However, it is part of the overall factual rubric to be seen in conjunction with other evidence which to my mind is of greater significance that I have earlier outlined as being established beyond reasonable doubt.
There was reference in the Crown submissions as I earlier said to the accused when seen by police, particularly, Constable Voget leaning forward or leaning down consistent, it is said by the Crown with putting something under the front driver’s seat. I do not regard this evidence of any significance. Nor, of itself, capable of establishing that the firearm was placed under the seat at the time that the car was under view by police. I do not place a great deal of reliance upon the claim to difficulties of placing the firearm under the rear driver’s seat from the rear. The Crown raises that in the context of excluding the possibility that Mr Yassine placed the firearm under the seat whilst seated in the back seat of the motor vehicle.
I bear in mind, of course, the accused has made no admission of guilt when spoken to by police. In fact, he denied knowledge of the firearm when spoken to shortly after his arrest. But, on the other hand, although he bears no onus of proof, his evidence before the Court provides no satisfactory support for that denial. There may be a number of reasons for this. I obviously cannot be satisfied that it reflects any form of consciousness of guilt. But his denial of relevant knowledge of very rudimentary facts or his lack of memory of relevant surrounding circumstances does not aid his credibility. I appreciate, of course, that he has had mental health issues and he raises issues relating to injury that he may have suffered to his head. But in the circumstances I could not regard his lack of memory of particular matters accompanied by “denial” of matters fundamental to the Crown case as being acceptable. This is so notwithstanding the lapse of time which I must take into account since his arrest in relation to this matter, his head injury to which he has referred and as I said, mental health issues which have arisen in the course of the case. Thus, in the absence of any reasonable possibility for the firearm to be in the position which was found under the vehicle inconsistent with the accused’s guilt I am satisfied beyond reasonable doubt that the prosecution has established relevant possession of the firearm in the accused, or by the accused, and has also established beyond reasonable doubt the other elements of the relevant counts in the indictment as they are established from the evidence to which I have referred.
Mr Kheir in relation to count 1 that is that alleging that you on 19 November 2011 at Bankstown in the State of New South Wales did possess a firearm, namely a 9 mm semi-automatic hand gun on which the serial number was defaced without being authorised to do so by the Commissioner of Police, I find you guilty.
In relation to count 2, that is on 19 November 2011 at Bankstown in the State of New South Wales you did possess a loaded firearm in a public place, namely a 9 mm semi-automatic hand gun with 10 rounds in the magazine in a vehicle parked on Wattle Street, Bankstown, I find you guilty.
In relation to count 3, that is alleging that you on 19 November 2011 at Bankstown in the State of New South Wales you did possess a prohibited pistol, namely a self-loading pistol not being authorised to do so by licence or permit, I find you guilty.
I stand the matter over for sentence on Friday 6 April 2018, not before 2pm. I request that the Serco bring Mr Kheir to Court here no later than 2pm on Friday 6 April 2018 at this Court and it will be this complex. I may be moved but it will be in this court complex. I direct that an Arabic speaking interpreter be made available to assist Mr Kheir on that date at that time.
BOROSH: Thank you your Honour.
HIS HONOUR: But there’s nothing else required?
DIGGES: No your Honour.
ADJOURNED TO FRIDAY 6 APRIL, NOT BEFORE 2PM FOR SENTENCE

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Decision last updated: 17 April 2018

Medium Neutral Citation:	R v KHEIR, Mahmoud [2018] NSWDC 94
Hearing dates:	17-19 July 2017 and 1 February 2018
Date of orders:	01 March 2018
Decision date:	01 March 2018
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Verdict of guilty for all three counts on the indictment. Full details at [100].
Catchwords:	Criminal – trial by Judge – possess loaded firearm in a public place – 9 millimetre semi-automatic hand gun – firearm located under the driver’s seat of the accused – circumstantial evidence – expert evidence on DNA
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Fleming v The Queen [1998] 197 CLR 250
Category:	Principal judgment
Parties:	Regina Mahmoud Kheir
Representation:	Representatives: Mr. Borosh – Director of Public Prosecutions Mr. Peluso – Offender
File Number(s):	2011/00380265
Publication restriction:	No publication of limited exhibits