R v Lemm - [2020] SADC 10

District Court of South Australia
(Criminal)
R v LEMM
Criminal Trial by Judge Alone
[2020] SADC 10
Reasons for the Verdicts of Her Honour Judge Chapman (ex tempore)
31 January 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
The accused is charged with four firearm related offences. He was the occupier of premises where a loaded firearm and ammunition was found. The issue at trial is possession. The accused is taken to be in possession of these items unless he proves he did not know and could not reasonably be expected to have known that the relevant item was on or in the premises.
Held: The accused failed to prove the matters set out in s6(3)(a) of the Firearms Act 2015.
The accused is guilty of all four counts.
Firearms Act 2015 ss 6, 9, 45, referred to.

R v LEMM
[2020] SADC 10

The accused, Travis Lemm, is charged with four criminal offences concerning a firearm and ammunition located at premises at Paralowie by the police on 18 May 2018. The accused was living at those premises at that time. The firearm is the subject of count 1[1] and count 3[2].
[1] Aggravated Possessing a Firearm Without a Licence contrary to Section 9(1) of the Firearms Act, 1915.
[2] Possessing a Firearm While a Firearm Prohibition Order is in Force contrary to Section 45(2) of the Firearms Act, 1915.
The firearm was found by the police buried down the side of the house about 15-20 cm deep in sand.
There is no dispute that the firearm was a Harrington and Richardson shotgun, that it was a Pardner model, bolt action 12 gauge shotgun. The barrel and shoulder stock had been sawn off. The barrel length was 318 mm and the overall length was 494 mm. Due to the modifications, the firearm is a prescribed firearm. The firearm, when it was found by the police, was loaded with one live Winchester 12 gauge shotgun shell.
The accused did not have a firearms licence at the time. He has never had such a licence. The accused was subject to a firearms prohibition order at the time.
The ammunition, the subject of the two charges being count 2[3] and count 4[4], was found by the police in a small silver case in the kitchen. The three shells inside that case were live Winchester 12 gauge shotgun shells.
[3] Possessing Ammunition Without a Licence contrary to Section 31(1) of the Firearms Act, 1915.
[4] Possessing Ammunition While a Firearm Prohibition Order is in Force contrary to Section 45(2) of the Firearms Act, 1915.
The onus is on the prosecution to prove each of the offences beyond reasonable doubt. The accused comes to this court with a presumption of innocence. He has a right to remain silent and to require the prosecution to prove each element of each offence beyond reasonable doubt. In this trial he exercised his right to remain silent. I draw nothing adverse against him by virtue of his exercise of that legal right. The onus at all times remains squarely on the prosecution to prove each of the offences beyond reasonable doubt.
There is no dispute that the prosecution has proved each element of each of the offences save and except the element of each offence which requires the prosecution to prove the accused was in possession of the firearm, (counts 1 and 3) and in the possession of the ammunition, (counts 2 and 4). For that reason it is unnecessary for me to set out and address the other elements of the offences. The sole issue in this case is the accused’s possession of the firearm and the ammunition.
I have been careful to consider the counts alleging his possession of a firearm, that is counts 1 and 3, separately from the counts alleging the accused's possession of the ammunition, namely counts 2 and 4.
It is agreed that on 18 May 2018 the accused occupied the premises where the firearm and ammunition was found. Accordingly, the prosecution gains the benefit of s.6(2)(d) of the Firearms Act 2015 (the Act) in regard to proof that the accused was in possession of each. A person has possession of a firearm or ammunition if the person occupies premises where the firearm or ammunition was found.
However s.6(3) provides that that does not apply if the accused proves that (a) he or she did not know and could not reasonably be expected to have known that the item was on or in the premises or (b) the item was in the lawful possession of another or he or she believed on reasonable grounds that the item was in the lawful possession of another.
The prosecution's submission is that the accused has not proved, on the balance of probabilities, that he did not know and could not reasonably be expected to have known that the two items were on the premises. The defence case is that the evidence presented by the prosecution is such that it leaves open proof of s.6(3)(a). For the accused, Mr Charman has indicated that he does not rely upon s.6(3)(b) and concedes that there is no evidence in that regard.
The issue then becomes whether the accused has proved, on balance, that he did not know and could not reasonably be expected to have known that the gun, the subject of count 1 and count 3, and the ammunition, the subject of count 2 and count 4, was on or in the premises.
Much of the evidence is not in dispute. The difference between the prosecution and the defence is what inferences may or may not be drawn from that evidence. The defence did not call evidence but relies on ‘negative inferences’ being drawn from the prosecution evidence as proof of the matters set out in s.6(3)(a) of the Act.
I am satisfied that the police attended at the Paralowie address at about 8.30 p.m. on 18 May 2018. The accused was out the front of the house with three other men. The only female at the house was also out the front or out the front soon after the police arrived. Two police officers very briefly saw a person wearing a grey hoodie in the backyard; that person was not seen again. One of the other three males in the front yard was arrested for an unrelated matter. The other two males were permitted to leave before the premises were searched. The female also left. She left with a suitcase. As at this date she had been present at that address for a few days.
The accused was initially cooperative with the police. There was what has been described as a fairly aggressive dog on the premises. The accused cooperated by keeping that dog out of the police way as the police conducted their search. It seems, at least for some period, the dog was kept in an area down one side of the house which could be accessed via a laundry door. At the end of that area was a gate into the backyard. That area was the last area to be searched. That seems to be because the dog had been kept in that area for a significant period of time so that the police could conduct their search elsewhere. By the time the police told the accused they were going to search that area they had been at the house for almost two hours. When the police told the accused they needed to search that area, the accused's demeanour changed. I accept the evidence that he became aggressive. He had to be asked a number of times to secure the dog. He said something like 'I'm going to lose my shit'. He was warned a number of times by police about not letting the dog go.
Brevet Sergeant McCoy used a garden tool, either a rake or a spade, to poke around in the sand in that outdoor area. He described the sand as being freshly laid. He hit something under the sand with that tool. He tried to let the officers know that. It was then that the accused let go of the dog. That caused a commotion such that the officers ended up having to crowd the dog and the accused's mother then kept the dog out by closing the gate.
The accused was arrested and taken to the police station.
Brevet Sergeant McCoy located a PVC pipe about one metre long buried in the sand. It was wrapped in a garbage bag. Inside the pipe was the shotgun which was wrapped in a pillowcase. When Brevet Sergeant McCoy broke the barrel of the shotgun he could see that it was loaded with a 12 gauge shotgun shell.
I accept the evidence given by the expert Ms Ha regarding the identification of one of the two fingerprints located on the buried PVC pipe. That evidence was not challenged. She identified the print as the accused's right ring fingerprint. The second print remains unidentified. In cross-examination, she expressed the opinion, which I accept, that she cannot say when the prints came to be on the pipe.
I also accept the evidence given by the expert, Dr Pinyon, regarding the DNA. The police had swabbed the firearm, namely the trigger, trigger guard, hammer, barrel release and stock of the shotgun. A DNA profile was obtained from that swab. There were four contributors to that DNA profile. The evidence of Dr Pinyon is that there is extremely strong support for the proposition that the accused is a contributor to that DNA profile.
I accept her evidence in cross-examination, namely that if it was the accused's DNA as part of that mixed profile she is unable to say how or when it came to be on the shotgun. Also, she cannot exclude the possibility that his DNA came to be on the shotgun even though he may never have touched the shotgun directly. For example, it may have been there as a result of what she described as secondary transfer.
Another contributor was a female. It is not known on the evidence whether the female contributor was the female who was permitted to leave the premises that evening. Dr Pinyon cannot exclude the possibility that the female transferred the DNA of the accused to the shotgun with her own DNA. Further, there is a possibility that when Brevet Sergeant McCoy was examining what he found buried in the sand that he may have transferred any DNA of the accused that was on the PVC pipe to the shotgun.
The silver case containing the three shotgun shells was found above the sink and below the window overlooking the backyard. It was in plain sight. It was not secreted anywhere. There is no forensic evidence regarding the silver case or the shotgun shells in terms of fingerprint or DNA evidence.
There was also another length of PVC pipe found in the kitchen. It fitted the length of PVC pipe found buried down the side of the house in which the firearm had been secreted.
The prosecution's submission is that the accused has not proved that he did not know and could not reasonably be expected to have known that the firearm and the ammunition was on or in the premises.
Mr Marcus submits that the police made a fleeting observation of a person in a grey hoodie at the address. There is no evidence to connect that person to the firearm. He made the submission that it would be an astonishing series of very unfortunate coincidences for the firearm to be buried on the premises without the accused’s knowledge. He referred to, for example, the corresponding pipe just happening to be in the kitchen; that someone else would have had to contend with the dog on the premises; the coincidence that the accused's fingerprint was on the PVC pipe; his DNA was on the firearm; there were three shotgun shells which could be used in the firearm in the accused's kitchen; and the accused's demeanour changed at the exact moment when the police started to search the area where the firearm was buried.
For the accused, Mr Charman submits there is no evidence to show that the accused was involved in burying the gun. He does not suggest that is the end of the matter but it does go some way towards indicating that the accused did not know and could not reasonably be expected to have known that it was on the premises.
He referred to the fact that there was no evidence that the accused had any connection to the spade found in the area where the firearm was located. There is no suggestion that when the police arrived this accused had done anything dirty, like digging in the sand. Indeed, there was no evidence about how long the firearm had been buried. He made the point that the expert evidence does not show that the accused had anything to do with burying the item. Brevet Sergeant McCoy could have transferred DNA of the accused from the PVC pipe to the firearm. The accused's DNA could have quite innocently come to be on the PVC pipe, particularly given that the remainder was in the kitchen. The accused could have touched that pipe at any time before it was used to secrete the firearm.
He made the submission that the evidence regarding the accused's change of demeanour is just as consistent with the accused becoming angry at the ongoing presence of the police. He submits that nothing should be drawn from the evidence about the apparent change of demeanour.
He made the submission that the evidence leaves open the likelihood that others could have buried the gun. There were three other men at the premises when the police arrived, as well as a woman who had been there for a few days. Further, the shells were in a case in the kitchen from which it would not be readily apparent that the contents of that case would be ammunition.
He referred to the person in the grey hoodie as just an example that others had the capacity to possess this firearm without the accused's knowledge. No sufficient inquiries had been made by police into the involvement of the others who were on the premises.
He made the point that you cannot age fingerprints and the fingerprints on the PVC pipe certainly do not prove that his client buried the pipe. He made the point that Brevet Sergeant McCoy did not immediately see the gun or the PVC pipe and that can just as easily apply to the accused. He referred to this as being to a ‘negative circumstantial case’ such that the accused, he said, had proved what is required under s.6(3)(a). He said, in combination, the evidence shows that it is more likely than not that the accused did not know and could not reasonably have expected to have known that the relevant items were on the premises.
Having considered all of the evidence, I am satisfied beyond reasonable doubt the accused was in possession of the firearm and in possession of the ammunition found at his address. In my view, the evidence proves beyond reasonable doubt that he was in possession of both of those, regardless of the presumption set out in s.6(2)(d).
However, given the existence of s.6(2)(d) I am of the view that the accused has not proved on balance that he did not know and could not reasonably be expected to have known that either of the items were on or in the premises.
It is clear to me that the shotgun had been wrapped, placed in a pipe and buried down the side of the house at some time in an area that appeared to be a dog run. The accused was the one in charge of the dog during the police presence at his house for a couple of hours. That was necessary because the dog was described as aggressive.
I think it unlikely that any other person had secreted a firearm on the accused's premises without the accused's knowledge given the presence of that dog on the premises when considered in combination with all the other evidence. That other evidence includes the accused's fingerprint being on the buried PVC pipe and his DNA on the shotgun. Whilst forensic evidence does not on its own prove that he had direct contact with the firearm it is necessary to consider that evidence together with all the other evidence. The remainder of the PVC pipe used to bury the shotgun was in the accused’s kitchen. It fitted the PVC pipe that had been used to secrete the firearm perfectly. The ammunition in the accused’s kitchen was ammunition that could be used in the shotgun.
I have considered all the other possible explanations for the evidence of the accused's change of demeanour at the time the police indicated they intended to search the area where the firearm was ultimately found. Those other possible explanations include the length of time the police had been there or perhaps simply having to remove the dog from that area late in the evening.
I do not need to place much weight on that evidence. I have relied upon all of the other evidence in combination to be satisfied of the accused's possession and that he has not proved what he has been required to prove pursuant to s.6(3). At most, his agitation merely confirmed what I have otherwise found proved by the other evidence, namely that he knew full well what was buried down the side of his house. If required I would be able to exclude all other possibilities for his change of demeanour at that time but, as I have said, I have not had to rely upon that evidence to come to my conclusion.
In my view, the accused has not proved what he is required to prove by virtue of s.6(3) of the Firearms Act 2015. The combination of the deficiencies in the evidence as identified by Mr Charman do not prove that he did not know and could not reasonably be expected to have known the firearm or ammunition was on the premises. To the contrary, the inferences arising from all the evidence are strongly against him.
I have considered counts 1 and 3 separately from counts 2 and 4. I have not reasoned that if the accused is guilty of counts 1 and 3 he must therefore be guilty of counts 2 and 4 or vice versa. I have not reasoned that because the accused was subject to a prohibition order at the time of the police attendance, that he is a bad person, or the type of person who would commit this type of offence, and that he therefore must be guilty. The only relevance of that evidence is proof of the element required in order to prove counts 3 and 4, namely that there was a prohibition order in place at the relevant time. I have also not reasoned that because the accused became aggressive and let his dog loose in a confined area that he is a bad person, or the type of person who would commit this offence and, therefore, must be guilty.
I find the accused guilty of counts 1, 2, 3 and 4.