R v Knowles - [2019] SADC 179

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KNOWLES
Criminal Trial by Judge Alone
[2019] SADC 179
Reasons for the Verdict of His Honour Judge Durrant
2 December 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
Accused charged with offence of aggravated possession of a firearm without a licence and to breach of a firearm protection order. The accused denied having possession of the firearm.
Verdict: Not guilty on both counts.
Firearms Act 2015 ss 9, 45, 6; Evidence Act s 34P, referred to.
R v Hillier [2007] HCA 13, considered.

R v KNOWLES
[2019] SADC 179
Introduction

On 23 December 2017, at about 1:12am, Police observed the accused, Paul Anthony Knowles and another male, Bojan Jasovic, in the car park of the Eureka Tavern, Salisbury. They both got into a white Holden Commodore sedan – Mr Jasovic in the driver seat and Mr Knowles in the front passenger seat. A search of the car by Police revealed: 61.4g of methylamphetamine; a tick list and cash; a can of pepper spray; and, an extendable baton. Both men were arrested and taken to the Elizabeth Police Station.
Later, at the station, a loaded and ready to fire single/double action revolver was found behind the centre console on the front passenger side of the car.
DNA retrieved from the firearm contained a mixed (three contributor) profile. A statistical weighting in favour of the accused being a contributor and of Mr Jasovic not being a contributor was concluded.
The accused pleaded guilty to trafficking the 61.4g of methylamphetamine found in the car. He pleaded not guilty to aggravated possession of a firearm without a licence and to breach of a firearm protection order.
Pursuant to an election made by the accused, the trial was heard without a jury.[1]
[1] By notice dated 31 January 2019, the accused elected under s 7(1)(a) of the Juries Act 1927, to be tried by judge alone in respect of those firearm charges.
These are my reasons for verdicts.
The Information
First Count
Statement of Offence
Aggravated Possessing a Firearm Without a Licence. (Section 9(1) of the Firearms Act, 2015).
Particulars of Offence
Paul Anthony Mr Knowles on the 23^rd day of December 2017 at Salisbury, possessed a category H firearm, namely a Weihraugh Model HW37 single/double action revolver, without holding a firearms licence authorising possession of that firearm.
It is further alleged that the firearm was loaded.
It is further alleged that the accused committed the offence in connection with, or at the same time as, an act or omission that would, if proved, constitute a prescribed offence against the Controlled Substances Act 1984.
…
Third Count
Statement of Offence
Breaching a Firearms Prohibition Order. (Section 45(2) of the Firearms Act, 2015).
Particulars of Offence
Paul Anthony Mr Knowles on the 23^rd day of December 2017 at Salisbury, breached a firearms prohibition order by possessing a category H firearm, namely a Weihraugh Model HW37 single/double action revolver.
Relevant Legislation
9—Possession and use of firearms
(1)A person who has possession of a firearm without holding a firearms licence authorising possession of the firearm is guilty of an offence.
(2)A person who has possession of or uses a firearm for a purpose that is not authorised by a firearms licence held by the person is guilty of an offence.
(3)If, in proceedings for an offence under subsection (2), the evidence gives rise to a reasonable inference that the purpose for which the defendant had possession of or used the firearm was not authorised by the licence, the onus shifts to the defendant to establish that the purpose for which he or she had possession of or used the firearm was authorised by the licence.
…
(7)An offence under this section is an aggravated offence if it has been proved that—
(a)     the firearm to which the offence relates was—
(i)loaded (irrespective of whether the offender knew that it was loaded); or
(ii)in the immediate vicinity of ammunition suitable for use in the firearm; or
(b)     the offender had the firearm concealed about his or her person; or
(c)     the offender committed the offence in connection with, or at the same time as, an act or omission that would, if proved, constitute a prescribed offence against the Controlled Substances Act 1984.
…
45—Effect of firearms prohibition order
(1)While a firearms prohibition order is in force against a person, any licence or permit under this Act held by the person is suspended.
(2)A person against whom a firearms prohibition order is in force must not acquire, possess or use a firearm, a firearm part, a sound moderator or ammunition.
Maximum penalty:
(a)     in the case of a firearm—$75 000 or imprisonment for 15 years;
(b)     in the case of a firearm part, a sound moderator or ammunition—$35 000 or imprisonment for 7 years.
6—Possession of firearms etc
…
(2)     For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if—
(a)the person has physical possession or control of the item or has the item in the physical possession or control of another; or
(b)the person has and exercises access to the item; or
(c)the person controls access to the item; or
(d)the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the item is found.
Elements of Count 1 – Possession of a Firearm
The offence of possession of a firearm without a licence has three elements- which the prosecution must prove beyond reasonable doubt.
First, it must prove that the firearm, the subject of the charge, is a firearm. That was agreed by the defence. Second, it must prove that the accused was in possession of the firearm, in that the accused not only had knowledge of the firearm but also that he exercised control over it or had an intention to exercise control over it. Finally, the prosecution must prove that the accused did not hold a firearm’s licence at the time that he allegedly committed the offence. That was also agreed.
The aggravated nature of the offence of possession arises from the allegation the firearm was loaded. That must also be proved beyond reasonable doubt.
Elements of Count 3 - Prohibition Order
It was agreed that, on 23 December 2017, the accused was subject to a firearms prohibition order served on him on 7 January 2013 and that a condition of that order was that he was not to be in possession of a firearm. In the event Mr Knowles is guilty of Count 1, he will also be guilty of Count 3.
General Legal Directions
I apply the following principles in reaching my verdicts.
The accused comes before this Court with the presumption of innocence in his favour. The burden of proving the objective elements of the charges lie wholly upon the prosecution. The prosecution must rebut any reasonable hypothesis consistent with the innocence of the accused. The defence is not required to prove anything.
The accused did not give evidence. That is his right. Because it was his right, I must not use the accused’s silence against him. I must not treat his silence as an admission. I cannot use it to fill gaps in the prosecution’s evidence. It does not make the prosecution evidence stronger, or more persuasive. Using the accused’s silence against him would, in practical terms, deprive him of his right to remain silent. I must always bear in mind that it is for the prosecution to prove its case beyond reasonable doubt.
In assessing the evidence of the witnesses generally, I am entitled to accept the evidence of a witness in whole, in part or not at all. Even if I were to find a witness may be unreliable about some matters, it does not follow that I may not accept their evidence on other matters. I must assess each witness for the prosecution as to their truthfulness and reliability.
There are two separate charges prosecuted. Each must be considered separately, upon its merits. I must consider each of the charges in light only of the evidence that applies to it.
Agreed Facts
The following facts were agreed:[2]
[2]    Exhibit P5.
Ballistics
1.   On 5 February 2018, the seized firearm (PPMS item 18/A31598-20) was examined by Brevet Sergeant Robyn Buller who was stationed at the Forensic Response Section of South Australian Police.
2.   Brevet Sergeant Buller concluded that the firearm was a Weihraugh (Germany) Model HW37 double and single action revolver. It had originally been designed to discharge noise producing 9mm R Knall blank cartridges, but had been modified to discharge live ‘.22 Long Rifle’ rimfire ammunition. The firearm had the capacity to fire a maximum of five rounds of ammunition.
3.   The firearm was in poor working order. It had a barrel length of 67 millimetres and an overall length of 185 millimetres. It weighed 0.56 kilograms with an empty cylinder.
4.   The revolver had been fully converted to and was capable of firing live ammunition, with slight modification of the firing pin.
5.   The firearm was classified as a Category H firearm as defined by the Firearms Act 2015.
Ammunition
6.   On 5 February 2018, the seized ammunition (PPMS 18/A31598-21) was examined by Brevet Sergeant Buller.
7.   Sergeant Buller concluded that the items were five unfired Federal brand ‘.22 Long Rifle’ rimfire ammunition which was suitable for use in the converted Weihraugh Model HW37 revolver.
Accused Firearm Licence Status
8.   On 23 December 2017, the accused was not the holder of a current firearms licence.
Accused Firearm Prohibition Order
9.   On 23 December 2017, the accused was subject to a firearms prohibition order.
10.   The accused was served with the firearm prohibition order on 7 January 2013.
11.   One of the conditions of the firearms prohibition order is that the accused not possess a firearm.
Methylamphetamine Located In Vehicle
12.   The total amount of methylamphetamine located within the ADIDAS bum bag (PPMS 18/A31598-2) was 61.4 grams.
13.   The accused was in possession of the 61.4 grams of methylamphetamine for the purpose of sale. He pleaded guilty to trafficking in a controlled drug in relation to the methylamphetamine on 29 August 2018.
Extendable Baton
14.   The black extendable baton (PPMS 18/A31598 – 14) and the can of pepper spray (PPMS 18/A31598 – 17) were not submitted for DNA or fingerprint analysis.
Registration Plates Affixed to White Holden Commodore
15. As at 23 December 2017 the registration plates S929BTI (PPMS 18/A31598 – 34), affixed to the white Holden Commodore were registered to Samantha Hogg.
16.   The accused and Samantha Hogg were formerly in a de-facto relationship with one another.
Findings of Fact
As well as the agreed facts, I find the following facts to be established.
Senior Constable Lawley-Sinclair was, at 1:12am on 23 December 2017, on duty with his partner in the car park at the Eureka Tavern at Salisbury. He observed two males walking from the entrance of the tavern towards a white Holden sedan (S929-VTI). SC Lawley-Sinclair recognised the accused, Mr Knowles. The two men got into that vehicle - Mr Jasovic in the driver seat and Mr Knowles in the front passenger seat.
The two officers parked in front of the Holden and requested Mr Knowles to exit. Mr Knowles identified himself and was arrested.
The Holden was searched by Police while still in the car park. An Adidas bum bag and a leather bum bag were found in the driver’s side foot well. Items found inside the Adidas bum bag included: six plastic bags containing differing amounts of methylamphetamine totalling 61.4g; numerous resealable plastic bags; digital scales and a tick list. In the leather bum bag was found $1,560.00 in cash and a black extendable baton. Between the centre console and the driver seat, a can of pepper spray was also found.
Mr Jasovic was also then arrested and both he and Mr Knowles were conveyed to the Elizabeth Police Station by other Police Officers.
The thorough search of the vehicle at the Tavern car park took 5-10 minutes. SC Lawley-Sinclair could not recall whether he had leaned from the passenger side to recover the two bum bags from the driver’s side foot well. He could not recall if he had changed the blue gloves he was wearing after he had searched and handcuffed the accused and before conducting the search of the Holden.
The search of the vehicle at the Tavern involved the Senior Constable touching the glove box, under the passenger seat, the seatbelt on the passenger side and the back of the inside of the car. SC Lawley-Sinclair had used a police issue torch and searched some places more than once.
SC Lawley-Sinclair could not recall any further physical contact with Mr Knowles after searching his person, arresting and handcuffing him at the Tavern.
SC Lawley-Sinclair stayed at the Tavern car park and continued to search the vehicle. The vehicle was then towed to the Police Station. The Senior Constable removed and disposed of the gloves he had been wearing for the search and followed the tow to the Police Station.
SC Lawley-Sinclair searched the vehicle again at the Police Station and then took a break. He saw, shortly after recommencing his search, a firearm hidden behind the plastic fascia in the centre console on the passenger side of the car. He obtained the assistance of another officer and activated a video camera to record himself pull back the plastic fascia and reach in and remove the firearm.
The Senior Constable did not change the blue gloves he was wearing between conducting the search at the Police Station car park and finding and removing the firearm from its secret location. When removing the firearm, the Senior Constable, wearing the blue gloves, pulled back the plastic fascia on the passenger side centre console of the Holden with his right hand. He reached into that area with his right hand and extracted the firearm with his right hand. He held the firearm up to the video with his two hands, his left-hand fingers holding the end of the barrel and his right-hand fingers at the handle. He placed the firearm partly onto the passenger side seat fabric and partly across a standard size greeting card covering part of the passenger side seat. He then picked up the firearm and carried it into the exhibits room, within the Police Station, and placed it in a tamper-proof exhibits bag.
Expert Evidence
Two experts gave evidence - Detective Sergeant Hunt and Dr Hearnden. In assessing their evidence, I must decide what to accept and what weight to give it. I can accept or reject their evidence the same as any other witness. I have not surrendered my duty to assess their evidence and blindly follow what they say.
Having assessed their evidence the same way as other witnesses, I note that it was uncontested and that while I can reject their evidence, after considering all the evidence, I have found no reason to do so.
DS Hunt had experience concerning the illicit drug trade in South Australia. I accept him as an expert and I accept the opinions he expressed.
Dr Hearnden is a highly qualified and experienced scientist working with the Biology Section of the Forensics Science Centre.[3] I accept her as an expert and I accept the opinions she expressed.
DS Hunt evidence and opinion
[3] In her role as a forensic scientist, she provides direction as to the analysis of evidence items in criminal investigations. She also directs the sampling and subsequent DNA analysis of reference and evidence samples of DNA and obtains DNA profiles, interprets those profiles, conducts statistical analysis and comparison of those samples and forms opinions about those comparisons. Ultimately, she peer reviews or provides expert reports, for the use within the Courts, of her findings.
The 61.4g of methylamphetamine, the subject of the guilty plea, had a value, if sold on a per point basis, of $20,200.00 to $33,700.00.
Pre-sealed plastic bags are commonly used to package methylamphetamine for sale. Sales on credit are often recorded on tick lists. The plastic bags and the tick list found in the Adidas bum bag are indicative of drug trafficking.
Persons who traffic in drugs may arm themselves to protect their person, the drugs they hold and the cash they would hold from the proceeds of sale. Smaller weapons, including firearms, may be contained or concealed within vehicles used for drug trafficking.
Firearms cannot be classified as “tools of trade” for drug dealers and the possession of firearms is not a standard part of being a drug dealer. It could not be put any higher than that some people involved in drug trafficking may have a weapon of some sort.
Dr Hearnden evidence and opinion
Dr Hearnden did not prepare the initial DNA report in relation to this matter. She provided the standard peer review for the establishment of a consensus about each opinion contained in the report.[4]
[4] She reviewed a report prepared by Ms Rebecca Windram, a Forensic Scientist, who was unavailable to give evidence due to her maternity leave. Dr Hearnden reviewed the file and report and made her own independent assessment of what was produced. Her work was then peer reviewed by another scientist. She concurred with the report of Ms Windram.
A DNA reference sample was taken from each of Mr Knowles and Mr Jasovic and a DNA evidence sample was taken from the firearm.
Three contributors were identified from the DNA retrieved from the evidence sample. An unidentified male contributor was estimated at approximately 2% of the total DNA retrieved. The largest contributor, another unidentified male, contributed more than 74% of the retrieved DNA. The second contributor, also a male, contributed 24%.
Mr Knowles had been 230 million times more likely to be the second or 24% contributor than an unknown unrelated male. There is extremely strong support for the proposition that Mr Knowles had been a contributor to that DNA profile.
The likelihood Mr Jasovic had not been a contributor was 70 thousand times more likely than someone else. There had been very strong support for the proposition that Mr Jasovic had not been a contributor to the DNA retrieved from the firearm.
The circumstances in which DNA is deposited on an item cannot be determined from a sample and nor can it be determined how long DNA had remained on the item. The current state of the science does not inform what type of sample had been obtained (ie, sweat, saliva or semen).
Primary and tertiary transfer of Mr Knowles’ DNA from the Police Officer’s hands or gloves or any other item, if SC Lawley-Sinclair had touched the seat Mr Knowles had been sitting on, is possible.
Neither the major contributor nor the minor contributor aligned with the accused and both were unidentified. While the existence of a major contributor suggests there had been another significant contributor to the profile, it did not necessarily mean that person (a male) had been the primary contributor to the DNA. It cannot be inferred whether the major contributor had handled the firearm most recently or at all.
DNA can remain on an item, if undisturbed, for years. Just because a person’s DNA had been found, did not mean that person had ever even touched the item from which the DNA had been retrieved.
No DNA reference sample had been taken from any person other than Mr Jasovic and the accused.
Defence Case
Mr Knowles did not lead any evidence. It is his right not to give or lead any evidence and I have not used his silence against him.
Prosecution Address
Ms Harper, for the prosecution, submitted that the accused had been in possession of the loaded firearm secreted within the console of the car because he had either placed it there or at the very least, because he reasonably ought to have known that it had been placed there. She submitted the legal test for possession required knowledge of the item and intention to exercise control over the item.

The prosecution contended that s 6(2) of the Firearms Act 2015, extended the common law meaning of possession to list different circumstances in which possession can be deemed. The prosecution contended the issue for determination by the Court was whether the accused had knowledge of the firearm being secreted where it was found and whether he intended to exercise control over it.
The prosecution presented an entirely circumstantial case and relied on several pieces of circumstantial evidence to prove beyond reasonable doubt that the accused had been in possession of that firearm.
First, the prosecution relied on the accused’s connection with the car. The registration plates which were affixed to the vehicle showed it had been registered to someone with whom he was associated, his then de facto partner.[5]
[5] Evidence was inadvertently lead that the Holden was a stolen vehicle. The prosecution does not rely on the fact the vehicle was stolen for any purpose. It was agreed that the Court cannot and should not draw any inference from that fact. I have had no regard to the evidence that the vehicle was stolen in my consideration.
Second, the prosecution relied on the evidence that the firearm had been found secreted in the very same vehicle in which the methylamphetamine (61.4g) had been found.
Third, the prosecution relied on the opinion from DS Hunt that it was not uncommon for those dealing in drugs to also have in their possession weapons, such as firearms.
Fourth, the prosecution relied on the DNA evidence. The DNA evidence provided strong support for the proposition that Mr Jasovic, who had been sitting in the driver’s seat of the car at the time police approached, had not been a contributor to the DNA profile. The DNA evidence also provided strong support for the proposition that Mr Knowles had been a contributor to the DNA profile retrieved from the firearm.
As for the relationship between the accused and his de facto, the prosecution said it indicated the accused had a connection with her car, beyond him simply being a passenger to Mr Jasovic. The prosecution said the Court might infer from that association that the accused had been using the car for some time.
The prosecution said the Court might further infer, because of his guilty plea to trafficking in 61.4g of methylamphetamine, that Mr Knowles had been using the car to conduct a drug dealing business
The prosecution contended the methylamphetamine had been an obviously valuable commodity and even though it had not been agreed that the cash in the brown leather bag also belonged to the accused, the Court could infer the accused had that cash to conduct his drug dealing.
Accordingly, the prosecution submitted the Court could infer not only had the accused been in possession of a valuable amount of methylamphetamine but also, beyond reasonable doubt, that Mr Knowles had been in possession of the cash. The prosecution said the Court, having been told by the expert witness DS Hunt that it was not uncommon for drug dealers to possess firearms and other weapons, could infer that Mr Knowles had been in possession of the firearm to protect himself, his drugs and the cash.
I note that the evidence of possession of methylamphetamine, with the intention to sell, is evidence tending to suggest Mr Knowles had engaged in discreditable conduct. The prosecution made it clear that the evidence of possession of methylamphetamine, with the intention to sell, could not be used, and was not proffered, to suggest Mr Knowles had been more likely to have committed the offence because he had been engaged in discreditable conduct.[6]
[6] Such discreditable conduct evidence is inadmissible for that purpose: see S34P(1) of the Evidence Act 1929.
The prosecution contended that evidence of possession could be permissibly used.
First, as an admission the accused had been in possession of methylamphetamine in the same car or in very close proximity to the firearm and to demonstrate that Mr Knowles had been in possession of the items in that car. The possession of the drugs made it more likely that Mr Knowles had also been in possession of the firearm.
Second, as an admission to possession because of the expert evidence from DS Hunt that those who traffic in controlled drugs sometimes arm themselves with weapons. The prosecution submitted that possession of a large sum of methylamphetamine made it more likely, because of a perceived need to either protect himself or the drugs he possessed, that Mr Knowles had also been in possession of the firearm. The admission to possession demonstrated the accused had a motive to possess the firearm. His admission to possession and admission of an intention to sell all or some of the drugs on that occasion showed he had been motivated to arm himself with a weapon such as the firearm to protect himself, the valuable amount of methylamphetamine within the car and any cash he expected to receive as a result of selling any or all of the drugs.
Having been satisfied, pursuant to s 34P(2) of the Evidence Act, that the probative value of the discreditable conduct evidence substantially outweighed any prejudicial effect and that the evidence had strong probative value having regard to the particular issues at trial, I have kept that evidence sufficiently separate and distinct, in my consideration, from the impermissible use, so as to remove the risk of that evidence being used for that purpose.
In respect of the DNA retrieved from the firearm, the prosecution said the accused was a contributor to the profile obtained and contended, therefore, the issue at trial was limited to how the DNA could have been deposited.
The prosecution accepted the Court would need to consider whether the DNA of the accused may have been deposited on that firearm by way of either secondary or tertiary transfer. The prosecution accepted that DNA could be transferred by either directly touching an object or, as a scientific possibility, by someone touching an item and another person touching the same item and then transferring the first person’s DNA onto another item without ever having directly touched it.
In relation to the evidence of SC Lawley-Sinclair - as to the search of the vehicle at the Police Station - the prosecution said he had changed his gloves in between the tavern search and the Police Station search. The prosecution said the officer made a candid concession that he had not been sure what he had touched prior to the removal of the firearm from inside the centre console.
As to whether there had been a secondary transfer of DNA at that point of time, the prosecution asked the Court to consider whether that possibility was just because Dr Hearnden accepted it in theory - a scientific possibility - or whether that was because it had been a reasonable possibility in this case. Ms Harper contended that just because something is theoretically possible or scientifically possible did not make it a reasonable possibility that Knowles’ DNA got onto the firearm by way of secondary transfer. The prosecution asked the Court to stand back and consider the possibility of secondary or tertiary transfer with all of the rest of the evidence. The prosecution submitted that Mr Knowles had come into direct contact with the firearm and had secreted it in the vehicle where his valuable amount of drugs had also been contained.
The prosecution invited the Court to consider all of the circumstantial evidence together and that it was more likely the accused had been responsible for secreting that firearm, because of a perceived need to protect himself.
In respect of the DNA evidence concerning Mr Jasovic, the prosecution submitted that such evidence excluded the possibility Mr Jasovic had come into direct contact with the firearm. Such exclusion made sense, Ms Harper submitted, considering the drugs had been in the possession of Mr Knowles and he intended to sell them. Mr Jasovic had not been aware of the firearm, it had not been Mr Jasovic’s firearm and that was why his DNA had not been on the firearm.
Defendant’s Address
Mr Charman, on behalf of the accused, submitted that the circumstantial evidence pointed to one conclusion and one conclusion only; Mr Knowles had drugs in the car, he had trafficked those drugs and he had pleaded guilty to that offence. The accused’s association with the Holden and the DNA evidence was either irrelevant or of so little meaning that it did not assist the Court to make a finding as to possession of the firearm.
Mr Charman submitted that the only issue was possession of the firearm. He said there had been no evidence that Mr Knowles knew the firearm was in the car and the suggestion of the prosecution as to what inferences could be drawn did not avoid the necessity for inferences to arise from the evidence given in Court and proved. Mr Charman described the prosecution case as inferences upon inferences upon inferences, leading to a thought. He said there was no evidence to support guilt.
In respect of the question of control of the firearm, Mr Charman submitted that as Mr Knowles had no knowledge of the firearm, it was difficult to see how he had intent to exercise control over it. There was no evidence of Mr Knowles exercising any control or having any intention to exercise control over the firearm. What was asserted was a vague connection between having drugs that he had trafficked and the mere presence of a firearm.
In the submission of Mr Charman, the prosecution had contended, circularly, that the firearm was there, therefore Mr Knowles must have known it was there, therefore he must have had it in his possession and therefore he must have been intending to control it. Mr Charman submitted there had been no evidence to support such inferences.
In respect of the evidence of the investigating officer, SC Lawley-Sinclair, Mr Charman reminded the Court that SC Lawley-Sinclair had searched the vehicle on several occasions and did not find a firearm- at the time of arrest, during the more thorough search at the tavern car park or during the first search at the Police Station.
The failure to find the firearm on those occasions, Mr Charman submitted, made this case different from that involving a person sitting in the front seat with a firearm on the seat or in the glove box or in clear view. He submitted, accordingly, that there had been no evidence that could assist the prosecution, in terms of where the firearm was found, to suggest Mr Knowles must have known it was there. The firearm had not been plainly obvious. That SC Lawley-Sinclair had searched the vehicle with assistance from a fellow Police Officer once and the car generally- on three occasions and with the aid of police torches - and had not found the firearm, suggested it had been well hidden. That supported the submission, said the accused, that the firearm was not immediately obvious such that a person in the passenger seat of the car would have, should have or could have, in fact seen it.
The accused submitted there had been no evidence as to the association of the accused with the car over the weeks or months leading up to the alleged offending. There had been no evidence as to when the registration plates of his de facto had been put on the car; how that might have happened or who had done it. Mr Charman accepted a link between Mr Knowles and his de facto partner but submitted that connection did not assist the prosecution in its submission that an inference should be drawn that Mr Knowles had been driving around in the car previously and had been using it to deal drugs. The prosecution reliance upon the possession of drugs, he said, was limited to the fact that Mr Knowles had drugs in his possession at the time that he had been arrested. There was no evidence, he contended, of previous drug dealing and there was no evidence that supported any suggestion that Mr Knowles knew the firearm was hidden in the secreted compartment or in the area in which it had been found.
In relation to the evidence of DS Hunt, the accused reminded me that DS Hunt said he would not describe weapons as tools of trade of drug traffickers and that his expert evidence only went so far as to say that some people involved in drug trafficking may have a weapon of some sort. Accordingly, the accused submitted, the evidence of DS Hunt had not assisted the Court in showing that Mr Knowles, just because he had been in possession of drugs, was more likely to have had a firearm than anyone else. Mr Charman emphasised the words used by DS Hunt that it was “not uncommon” and submitted that the prosecution had sought to elevate that evidence to mean that it was “likely” or that the Court could think that something “may have occurred”.
In respect of what he labelled the fourth search - when the firearm was found - Mr Charman asked the Court to consider the video against the assertion of the Police Officer that the light was brighter at the car park of the Elizabeth Police Station rather than the tavern. He said the Court should reject the evidence of SC Lawley-Sinclair or any submission that any difference in lighting somehow supported the weapon not being found until that fourth occasion. The firearm had not been found because it had not been obvious to anyone sitting in the car. The mere presence of the firearm had not in any way suggested that Mr Knowles had or should have known it was or could have known it was there, in circumstances where a police officer had to search the car four times to find it.
Mr Charman said that when SC Lawley-Sinclair handled the firearm he had the same gloves on he had previously touched items within the car with. Handling of the firearm that way was relevant as one of the many possibilities - which he described as “almost endless” – under which Mr Knowles’ DNA could have been transferred. He submitted that single possibility in itself, had been enough to create a reasonable doubt as to guilt. He contended that evidence had been enough to show how the DNA was placed on the firearm and in the absence of any other evidence like fingerprint evidence, there had simply been nothing which had indicated that Mr Knowles had ever touched the firearm, ever seen the firearm or did anything more than have dealings with other people who may have touched the firearm and previously come into contact with Mr Knowles.
Consideration
The first and third elements of Count 1 are agreed.
The requirement for the prosecution to prove beyond reasonable doubt the accused was in possession of the firearm, had been the only issue in this case.
The prosecution relied on several inferences that, it said, could be drawn from the whole of the circumstantial evidence. While circumstantial evidence can afford very secure grounds for a conclusion of guilt, the amount of circumstantial evidence required to prove a charge beyond reasonable doubt varies from case to case. The number of circumstances proved can vary enormously, and so can the weight of the various circumstances to be proved. A case which depends substantially upon circumstantial evidence is sometimes likened to a rope and the many strands which go to make it up. A rope has the combined strength of all its strands. Some of the strands may be strong, while some of them may be weak. When they are all twined together, they may produce a total effect and strength which is greater than the strength of any one of the strands. The weight of a case which is based (substantially) upon circumstantial evidence ultimately depends upon the combined strength of all the evidence.
As the prosecution case rested upon circumstantial evidence, I cannot return a verdict of guilty to these charges unless the circumstances exclude any reasonable hypothesis consistent with innocence. For me to be satisfied that Mr Knowles is guilty of these firearm offences, 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.
My consideration of the circumstantial evidence in this case required me to take two steps.
First, as set out above, I have determined the facts established by the evidence. Second, I have considered what inference or inferences can be drawn from those facts. That second step required me to consider the inferences capable of being drawn from the combined strength of all of the established facts.[7] To return to the analogy of the rope, when all the established strands of fact are twined together, they may produce a strength which is greater than the strength of any one of the individual strands. A rope of very weak strands may still be very weak. The combined strength of all the established facts may still not be enough to prove the prosecution case beyond reasonable doubt. Any inferences drawn against Mr Knowles must be the only rational inferences which the established facts enable me to draw. I cannot return a verdict of guilty unless the facts excluded any reasonable hypothesis consistent with innocence.
[7] R v Hillier [2007] HCA 13 at [46] to [48] per Gummow, Hayne and Crennan JJ.
I have had regard to the whole of the established facts in considering what inference or inferences I can draw. Having regard to the established facts I have found, in respect of the inferences contended by the prosecution, as follows.
Mr Knowles had a connection with the car beyond being merely in the passenger seat. He had been using the car as a passenger on 23 December 2017.
No inference arises that Mr Knowles had used that vehicle for some greater period or for the whole of the period during which it had been carrying licence plates registered to his partner or even before the night in question. There had been no evidence as to how long that period was or of Mr Knowles being seen in the car other than on the night in question or to connect him to the car other than the association with his de facto.
Mr Knowles had been using the car to traffic 61.4g of methylamphetamine on 23 December 2017. No inference arises that Mr Knowles had been using the car previously to conduct a drug dealing business.
The prosecution, in support of an inference that Mr Knowles had been conducting a business dealing drugs, contended that the Court could rely on the other indicia of drug trafficking found in the search. Specifically, the multiple resealable bags, the cash in the amount of $1,560.00 and the tick list. Further, the prosecution referred to the considerable value of the 61.4g of methylamphetamine, if sold in points, as assisting me in drawing an inference that the accused had conducted a business dealing in drugs. The established facts do support an inference that Mr Knowles had previously dealt in drugs and intended to do so in the future.
The accused admitted trafficking in a large quantity of methylamphetamine. The resealable bags and tick list found were being used to deal in drugs on the occasion in question. The existence of a tick list allows an inference that drug transactions, on credit, had already occurred. That empty resealable bags and digital scales, commonly used to measure and store for sale drugs in a merchantable quantity, were found allows an inference that Mr Knowles possessed the paraphernalia necessary to sell drugs in the future. Likewise, drug dealers hold cash to enable (and as the proceeds of) the exchange of drugs for cash.
DS Hunt said that it was not uncommon for drug dealers to have weapons, including firearms, and, in the event they are using a motor vehicle to deal drugs, conceal a firearm in the vehicle being used. Drug dealers sometimes arm themselves because they wish to protect themselves and the drugs and the money they are required to hold as part of their method of business. Sometimes persons who deal in drugs conceal firearms in cars they use to deal drugs.
As someone dealing in drugs, Mr Knowles was concerned to protect himself. Found in the car was an extendable baton and pepper spray; items that could be used by a drug dealer wishing to protect himself.

Firearms may also be concealed, to be available to provide protection, in cars used for dealing drugs.
The prosecution contended that the Court should draw an inference that because the firearm was found in a car associated with Knowles, because Mr Knowles was dealing drugs from that car, because Mr Knowles had dealt drugs in the past and because he could deal drugs in the future; that Mr Knowles knew the firearm was there and that he had control over the firearm.
The prosecution said that the large quantity of drugs in his possession makes that inference more likely in that Mr Knowles had a motive to possess the firearm.
The defence contended that this was a very different case to one in which the firearm was obvious in the car. The evidence showed the firearm was well hidden and the difficulty SC Lawley-Sinclair had finding it, demonstrated that point.
An inference that Mr Knowles was in possession of the firearm to protect himself and the drugs, for the reasons contended by the prosecution, is not a strong one because the firearm was not obvious. It is stronger, in respect of the other weapons, particularly the pepper spray, which had been obvious.
Mr Knowles is the second (24%) contributor to the DNA identified on the firearm. As both counsel put it, the question is how had that DNA got there?
I remind myself that the defence does not have to prove anything at all. As I have already directed myself, guilt, in this wholly circumstantial case, must not only be a rational inference, but must be the only rational inference from the circumstances. The prosecution cannot prove guilt unless it can exclude, beyond reasonable doubt, any reasonable hypothesis consistent with innocence.
The prosecution relied on the DNA as another strong-thread in its circumstantial case. It submitted the DNA evidence should be considered as part of the whole.
While he does not have to, Mr Knowles provided a hypothesis for the presence of the DNA on the firearm – secondary or tertiary transfer. The prosecution said secondary and tertiary transfer is always a theoretical possibility and in this case such theoretical possibility had not been explained. I disagree.
The possibility of tertiary or secondary transfer is more than a theoretical possibility in this case. SC Lawley-Sinclair effected an arrest of Mr Knowles in the car park at the Tavern. The Police Officer put Mr Knowles’ hands behind his back when he arrested him.[8] During the initial search at the Eureka Tavern, SC Lawley-Sinclair had a good portion of his body inside the vehicle. He touched the glove box, searched the bum bags, checked under the seat, touched the seat belt and undertook what he described as a thorough search, including of the back of the car.[9] He wore the same gloves for the arrest and search. The search continued at the Tavern car park after Mr Knowles and Mr Jasovic were taken to the Police Station and took 5 to 10 minutes.[10] SC Lawley-Sinclair put fresh gloves on for the search at the Police Station.[11] In undertaking the search at the Police Station, he got into the passenger side of the car.[12] SC Lawley-Sinclair accepted the possibility that he may have touched some items within the passenger side before he found or saw the firearm.[13] He used the same gloves for the whole of that search.[14] The video showed SC Lawley-Sinclair, wearing the gloves he had used for the entire search at the Police Station, reach into the centre console and extract the firearm. He then held it in both hands, either end. He then placed it both on the passenger seat and on top of items on the passenger seat.
[8] T11 l 22; T26 ll 7-8.
[9] T28.
[10] T28.
[11] T35 l 11.
[12] T32 l 20.
[13] T33 l 1-5.
[14] T33 l 14-15.
There were several occasions when secondary transfer could have occurred, such as to provide a reasonable hypothesis for the presence of the DNA on the firearm. Those occasions and that hypothesis constitute reasonable possibilities for secondary transfer. Those reasonable possibilities would have been eliminated if the Senior Constable had changed his gloves before removing the firearm (ensuring he did not touch any surface of the car or his person) and placed the firearm immediately into a tamper-proof evidence bag without placing it on the passenger seat first.
The circumstantial evidence showed that: Mr Knowles had been dealing drugs using the car of his partner on the occasion in question; Mr Knowles had stored a large quantity of drugs - that he intended to deal in - in the car; cash and other weapons had been in the car; a loaded firearm had been concealed in the car on the passenger side where Mr Knowles had been sitting; the firearm, the drugs, the cash and the weapons, including the firearm, had been in close proximity to each other and to Mr Knowles; the pepper spray was in an obvious position in the car; the accused DNA was on the firearm; and, there was a real possibility of secondary or tertiary transfer of that DNA from SC Lawley-Smith onto the firearm.
The combined strength of all the facts established is significant. Is it strong not enough to prove Count 1 – possession of the firearm – beyond reasonable doubt?
The secretion of the firearm in the console meant that it was not obvious. The prosecution contended the accused had knowledge of the firearm and intended to exercise control over it. There was no evidence, other than as noted, that Mr Knowles had said or done anything to indicate his knowledge of the firearm or that he intended to exercise control over it. There is evidence of a real possibility that the DNA of Mr Knowles, retrieved from the evidence sample, was present because of secondary transfer from SC Lawley-Sinclair.
In coming to my conclusion- that it is not open to convict Mr Knowles of the charged offences - I do accept the proposition that a drug dealer in possession of a firearm would likely conceal it to avoid detection.
A wholly circumstantial case is like a piece of rope made up of many threads. An individual strain may be weak or strong and it is only when the whole of the established facts is combined that the circumstantial case be assessed. I am neither satisfied that the rope is sufficiently strong to establish guilt beyond reasonable doubt or that the found facts exclude any reasonable hypothesis consistent with innocence.
I find the defendant not guilty.