R v Lloyd - [2022] SADC 89

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LLOYD
Criminal Trial by Judge Alone
[2022] SADC 89
Reasons for the Verdict of his Honour Judge Heffernan
8 August 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
The accused was arrested at a premises in Elizabeth Vale. Inside a vehicle in the rear yard of the premises was his Nike bum bag which contained a loaded sawn off shotgun and ammunition. A DNA profile matching the accused's was found on the shotgun. The accused's underpants, wallet and other items were also in the bum bag. His diary was found on the back seat of the vehicle. A Coke can on which a DNA profile matching the accused's was found in the centre console of the vehicle. Inside the premises, the keys to the vehicle were located in a bedroom near where the accused was first seen by police. Next to the keys was a phone attached to a battery charger. The accused's Department for Correctional Services number and his nickname were written on the battery charger.
Verdict: Guilty.
Firearms Act 2015 (SA) ss 6(2)(a) and 9(1), referred to.
R v Fuller; R v Zazzaro [2012] SASCFC 101; R v Marafioti (2014) 118 SASR 511; Fitzgerald v The Queen (2014) 311 ALR 158, considered.

R v LLOYD
[2022] SADC 89
Criminal Jurisdiction

The accused is charged with one count of aggravated possession of a firearm without a licence contrary to s 9(1) of the Firearms Act 2015.
The charge is particularised as follows:
Statement of Offence
Aggravated Possessing a Firearm Without a Licence (Section 9(1) of the Firearms Act, 2015).
Particulars of Offence
Aaron Elias Lloyd on or about the 1^st day of March 2020 at Elizabeth Vale, possessed a prescribed firearm, namely a Winchester brand, 12 gauge sawn off shotgun, without holding a firearms licence authorising possession of that firearm.
It is further alleged that the firearm was loaded or in the immediate vicinity of ammunition suitable for use in the firearm.
I find the accused guilty of that offence as charged.
These are my reasons for doing so.
Background
In March 2020, police attended at a house in Elizabeth Vale. The accused was present, along with three other people. A Holden sedan was parked in the rear yard of the house. Inside the car was a bag which contained a loaded, sawn off, Winchester single barrel shot gun. This bag was described in the evidence as both a black bag and a bum bag. I have used the term bum bag to distinguish it from a second black bag referred to as the Lenovo backpack. In the bum bag, police found eight loose unfired shot gun cartridges. The prosecution alleges that there are sufficient evidentiary links between the accused and the shot gun and other items in the car to prove beyond reasonable doubt that he was in possession of the shot gun.
Elements of the offence and legal directions
There are four elements to the offence of aggravated possessing a firearm without a licence. They are as follows:
1.That the item alleged is a firearm and in this instance, a prescribed firearm. There was no dispute as to that matter. The item seized was a Winchester single barrel 12 gauge shot gun. Both the barrel and shoulder stock of the weapon had been illegally modified by being sawn off. I am satisfied of this element beyond reasonable doubt.
2.That the accused was in possession of the firearm. That element is the sole area of dispute in this trial.[1]
3That the accused did not have a firearms licence authorising possession of the weapon. There was no dispute as to this element, I find it proven beyond reasonable doubt.
4This is the feature of aggravation. The prosecution alleges that the shot gun was loaded at the time it was seized and that several loose rounds of ammunition were located in its immediate vicinity. These circumstances of aggravation were not in dispute and I find this element proven beyond reasonable doubt.
[1] T5.36, Defence opening remarks.
The accused is presumed innocent unless and until his guilt is proven beyond reasonable doubt by the prosecution. Each element of the offence must be proven beyond reasonable doubt. The accused does not have to prove anything. If at any stage in these reasons I use any expression with respect to proof such as being satisfied or a matter having been established, I am always referring to proof beyond reasonable doubt. That is the standard to be applied.
The accused elected to give evidence in this trial. He was not obliged to do so and I am entitled to give him credit for adopting a course he was not obliged to take. The fact that he elected to give evidence does not mean that he assumed any evidentiary burden by doing so. It remains for the prosecution to prove each element of the offence. The accused is not required to prove his innocence. If I reject the evidence of the accused I must put it to one side. The question remains, has the prosecution proven its case beyond reasonable doubt. Having said that, I am to assess the evidence of the accused as I would the evidence of any other witness.
The prosecution case relies on circumstantial evidence as to the accused’s possession of the shot gun. There are two steps in approaching a circumstantial evidence case. The first is to consider the facts on which the prosecution relied and determine what facts are established by the evidence. There can only be a verdict of guilty if the circumstances, viewed in their entirety, exclude any reasonable explanation consistent with the accused’s innocence. In other words, before an accused person can be found guilty of any offence based upon circumstantial evidence, the accused’s guilt must be the only rational inference to be drawn from the facts and circumstances I accept are established by the evidence.
The prosecution introduced without objection, and the accused gave evidence of the fact, that he was unlawfully at large at the time of his arrest for this offence. He had removed his home detention bracelet and a warrant had been issued for his arrest. As will be seen, that evidence was relevant to the purportedly innocent explanation the accused gave for his presence at the premises where the car containing the shot gun was located. On the prosecution case, the evidence was relevant to link the accused’s unique Department for Correctional Services number to a number written on an item found in the car. I have not used that evidence in a manner prejudicial to the accused. I have not reasoned that because of those matters, he must be guilty of this offence or that he is more likely to be guilty. Nor have I used in that manner the fact that he has in the past used an alias ‘Aaron Elias Werner’ or that he has in the past served a term of imprisonment, was on a methadone program in gaol and later a Suboxone program.
Further, there was evidence that when police attended at the property at which the accused was arrested, he slammed the door on them and attempted to hide under a bundle of clothes in a room of the house. I have not used those matters as evidence of a consciousness of guilt on the part of the accused. Apart from anything else, he was unlawfully at large whilst on bail and there is another reasonable explanation for him acting as he did.
In this matter, the prosecution introduced evidence from an expert witness on the topic of DNA. The usual rule is that witnesses can only give evidence of facts and not opinions or conclusions from other facts. One exception to that rule is that a properly qualified expert can give evidence of their opinion on matters within their expertise. I am permitted to draw on that expertise to make my findings of fact.
There are three key rules to remember when assessing the evidence of an expert. First, the facts are a matter for me as trial judge. I must decide what evidence to accept and what weight to give it. It is open to me to accept or reject the evidence of an expert the same as any other witness. I must not blindly follow what expert witnesses say.
Second, I have assessed the evidence of the expert witness in the same way as other witnesses, keeping in mind her qualifications, her degree of impartiality and how her evidence sat against other evidence I have accepted.
Finally, while it is open to me to reject the evidence of an expert, I can only do so if there is a reason to doubt the evidence.
The evidence
The prosecution case
On 1 March 2020, at approximately 12:25 am, police attended at 4 Barrow Crescent Elizabeth Vale intending to search the premises on information that the defendant was present. The defendant was at the time the subject of a FINS warrant, having absconded whilst on home detention bail, after cutting off his electronic bracelet.
Before Detective Sergeant Putsey knocked on the front door, two officers from the STAR group took up position in the rear yard of the premises to ensure that no one absconded from the rear of the premises once police attendance became known to the occupants. One of those officers performed a search of the rear yard and established that neither the defendant nor any other person was present in the yard. That officer saw a white Holden Commodore (the Commodore) in the yard next to another vehicle.[2] The boot of the Commodore was open, as was the rear passenger door. The officer looked into the Commodore and saw a black Nike bum bag (the bum bag) on the front passenger seat and a red shotgun shell inside the bag. He stayed near the Commodore until police exited the rear of the premises.[3]
[2] Exhibit P1, photos 1 and 2.
[3] Exhibit P16, Affidavit of TC dated 5 May 2020.
Detective Sergeant Putsey, in company with other officers, knocked on the door of the premises at approximately 12.30 am. The defendant answered the door and on seeing the officers, immediately slammed it shut. After some further knocking a female, Ms Sharna Collins-Biddell, answered. A brief conversation ensued, and police then searched the house. The defendant was located in a room opposite the kitchen, hiding under some clothes.[4] Also present at the house were Ms Lisa Collins (the mother of Sharna) and Ms Rhiannon Lloyd.
[4] Exhibit P4, ‘bedroom 3’.
Detective Sergeant Putsey searched the front bedroom[5] and located the following items on top of a bed which were seized as exhibits:
1.A bunch of keys which included the key to the Commodore in the rear of the yard, which was later shown to be able to lock and open it.[6]
2.A mobile phone attached to a battery pack by a cable. This item was referred to variously by witnesses and counsel as the power pack, the battery pack and the phone charger. I will refer to it as the battery pack. The battery pack had the words ‘Lloydie Fuck The Police Werner 156590 DCS’ written on the rear.[7]
[5]     Ibid, ‘bedroom 1’.
[6]     Exhibit P1 photo 50.
[7]     Ibid, photo 48.
Those items were located in close proximity to each other and were photographed in situ before being moved.[8] It was agreed that the defendant’s Department for Correctional Services number is 156590 and that he has used an alias, Aaron Elias Werner. His father’s name was Steven Werner.
[8] Ibid, photo 46.
Having searched the room, Detective Putsey’s attention was directed to the Commodore, bearing plates XIZ 242, in the rear yard. He looked into the Commodore, which was unlocked. He saw the bum bag with a shot gun shell inside. The bum bag was not moved prior to the search of the Commodore.[9]
[9] Ibid, photo 11.
On searching the Commodore police located the following items which were seized as exhibits:
1.The bum bag on the front passenger seat containing:
(a)A Winchester 12 gauge, break action, single shot shotgun, serial No C58687 with both the barrel and the stock sawn off. The overall length of the firearm was less than 750mm with a barrel length of less than 400mm. It was a prescribed firearm.[10]
(b)A live shotgun cartridge loaded into the barrel of the firearm.[11]
(c)Eight unfired shotgun cartridges of assorted brands, suitable for use in the firearm, in the front compartment of the bum bag[12] in the same compartment as the firearm.[13]
(d)One spent ‘Falcon SP32’12 gauge shotgun cartridge suitable for use in the firearm.[14]
(e)A ‘Nubrush’ hair-brush.[15]
(f)Men’s grey boxer shorts located in the ‘back pocket’ of the bum bag.[16]
(g)A pair of white sports socks also located in the back pocket.
(h)A black wallet in a zipper compartment to the rear of the bum bag. This was not the compartment in which the firearm was located.[17] The wallet contained a driver’s licence, a Medicare card, an ID card and credit cards, all in the name of the defendant. One of the cards had a post it note appended to it with bank account details and the name Lloyd handwritten on it.[18]
(i)A tube of Carmex lip balm inside the middle zip up compartment.[19]
(j)A green, blackish coloured camouflage balaclava inside the zip up compartment.[20]
[10] Ibid, photos 8, 10, 12, 14-17; Exhibit P14(a).
[11] Exbibit P5; Exhibit P1 photo 19.
[12] Exhibit P1 photo 20.
[13] T27, 24.
[14] Ibid, photo 18.
[15] Ibid, photo 34.
[16] Ibid, photo 28.
[17] T120, 6-7, Exhibit P1, photos 21-26.
[18] Ibid, photo 26.
[19] T13, 18-22; Ibid, photo 29.
[20] T13, 9-16; Exhibit P1, photo 30.
The bum bag had three pockets external to the bag and a ‘couple’ of internal pockets.[21]
2.On the rear seat of the Commodore, a black Lenovo back-pack[22] which contained:
(a)A black balaclava.
(b)A black Salvation Army diary.[23]
(c)Three Suboxone strips in the rear of the diary.[24]
3.A Coke can located in the front centre console of the Commodore.[25]
[21] T12, 35-38. The bag itself was not tendered.
[22] Ibid, photos 31 and 32.
[23] Ibid, photo 33.
[24] Ibid, photo 35.
[25] Ibid, photos 11, 13.
No items associated with the defendant were located in room 3 of the premises.[26] There was no evidence observed by police which suggested that the defendant lived at the premises at the time of the search, he was in fact bailed to live at a different address.[27] It was an agreed fact that he did not live at the premises at the time of the search.
[26] T58, 13.
[27] T58, 24.
Police did not check the other two keys found in the bunch with the keys to the Commodore.[28] The defendant was not charged with the theft of the Commodore. A jacket, an axe and an air tool found in the rear of the Commodore were not seized or analysed. A water bottle and baseball cap found in the Lenovo backpack were not seized or analysed.[29] The other items on the bed where the phone and the keys were found were not associated with the defendant.
[28] T59.
[29] T18-19.
Ms Rhiannon Lloyd was charged with the theft of a motorcycle found at the premises. Ms Sharna Collins-Biddell was bailed on home detention to 4 Barrow Crescent at the time of the police search. No handwriting comparisons were performed on either the writing on the rear of the battery pack or the writing in the black diary.
The firearm was examined by Brevet Sergeant Murphy of the Crime Scene Investigation Section. He took wet and dry swabs from the firearm trigger, trigger guard, tang, external hammer, and the chequering on both sides of the foregrip. Those swabs were submitted to Forensic Science SA (FSSA) for DNA analysis. No fingerprint examination was attempted on the firearm. No fingerprints were located on the steering wheel of the Commodore. The Coke can was swabbed by Constable Luker.[30]
[30] T31, 21-32.
A buccal swab was taken from the defendant at 2.30 am on 2 May 2020 and it was submitted to FSSA for analysis and comparison purposes.
The Commodore was owned by Mr S and had been stolen from his address in Mawson Lakes on 24 June 2019. At the time it was stolen it bore registration plates SO61BKJ. Mr S was not the owner of the bum bag, the Lenovo backpack or the firearm located in the Commodore.
The defendant did not hold a firearms licence on 1 March 2020. The firearm was not registered on 1 March 2020.
Between 17 December 2019 and 5 March 2020 the defendant was subject to a home detention bail agreement and bond. He was being case managed by an officer of the Department for Correctional Services. Whilst serving a previous term of imprisonment the defendant had undertaken a methadone programme and by 1 March 2020, he had been transferred to the Suboxone programme.
DNA
A number of items were submitted for forensic analysis and tested for the presence of DNA by the FSSA. Patricia King, a forensic scientist with FSSA, gave evidence with respect to that analysis and her findings. Her qualifications to give expert evidence on DNA analysis were not challenged and I accept that she is an appropriately qualified expert in the field. For the purpose of these reasons, it is not necessary for me to summarise her evidence as to the nature of DNA or the science and procedure underpinning its analysis.
A DNA profile was generated from a buccal swab taken from the defendant. That profile was compared against the profiles generated from the analysis of swabs taken from a number of the items submitted to the FSC by police. The detailed results of the analysis were set out in the tables tendered as Exhibits P10 and P11. In summary, the findings were as follows.
Shotgun
The swab from the shotgun produced a mixed DNA profile from four contributors. One of those profiles matched the profile obtained from the defendant’s buccal swab with a statistical weighting greater than 100 billion to 1 in favour of the defendant being a contributor to that profile rather than an unknown person. That statistical weighting, or likelihood ratio, represents extremely strong support for the defendant being the source of the profile as opposed to an unknown person.
Coke Can
The Coke can was found to have a mixed DNA profile from two contributors. When compared to the profile from the defendant, the statistical weighting was greater than 100 billion to 1 in favour of the defendant being a contributor rather than another unknown person.
Lip Balm
The swab from the outer surface of the lip balm was found to have a mixed profile from three contributors. The statistical weighting was greater than 100 billion to 1 in favour of the defendant being a contributor rather than another unknown person.
The swab from the inner lid area and balm surface was found to have a single source profile, in other words there was no information to suggest other than that the profile came from a single person. The statistical weighting was greater than 100 billion to 1 in favour of the defendant being a contributor to that profile rather than another unknown person.
Boxer Shorts
The tape-lift from the entire outer surface of the boxer shorts was found to have a mixed DNA profile from four contributors. The statistical weighting was greater than 100 billion to 1 in favour of the defendant being a contributor to that profile rather than another unknown person.
The tape-lift from the entire inner surface of the boxer shorts was found to have a mixed DNA profile from four contributors. The statistical weighting was greater than 100 billion to 1 in favour of the defendant being a contributor to the profile rather than another unknown person.
Balaclava
The tape-lift from the outer surface of the balaclava was found to have a mixed DNA profile which was too complex for analysis.
The tape-lift from the inner surface of the balaclava was found to have a mixed DNA profile from three contributors. The statistical weighting was greater than 100 billion to 1 in favour of the defendant being a contributor rather than another unknown person.
Socks

The profile on one of the socks was too complex for analysis The other sock had such low amounts of DNA that it was not analysed.
Hairbrush
The sample taken from the hairbrush contained either very low amounts of DNA or none and was not analysed.
Questions were put to the expert about the percentage contributions to the mixed profiles of the profile that was a match for the defendant’s profile. I will summarise that evidence but in doing so, I keep in mind the evidence of the expert that the attribution of a major or minor component to a mixed profile may not of itself have much significance.[31] The fact that a profile is a major or minor contributor to a mixed profile does not necessarily say anything about the length or degree of contact between the surface from which the profile is transferred to the surface from which the swab or tape-lift is taken.[32]
[31] T74.26-28.
[32] T109.
On the shotgun, contributor 1 contributed 93.84% of the mixed profile and analysis showed that contributor 1 more closely aligned to the defendant than other contributors. On the outer surface of the boxer shorts, contributor 1 contributed 64% of the mixed profile and analysis showed that contributor 1 more closely aligned to the defendant than other contributors. The tape-lift from the inner surface of the boxer shorts showed that contributor 1 contributed 92.3% of the mixed profile and analysis showed that contributor 1 more closely aligned to the defendant than other contributors. The tape-lift from the inner surface of the balaclava showed that contributor 1 contributed 87% of the mixed profile and analysis showed that contributor 1 more closely aligned to the defendant than other contributors.
In cross examination, Ms King acknowledged that it was not possible to say when DNA had been deposited on an item which had been swabbed or subject to a tape lift. Nor was it possible to proffer an opinion as to exactly where on an item the DNA had been deposited in circumstances where the swab had been passed over a number of surfaces on an object. It was not possible to say how DNA came to be deposited on an object.
Ms King told the court that FSSA did not receive a swab taken from the steering wheel of the Commodore.[33] Nor was there any comparative analysis of the mixed profiles with profiles taken from Rhiannon Lloyd,[34] Sharna Collins-Biddell,[35] Lisa Collins, Alana Kirby[36] or Jed Hocking.[37] It was an agreed fact that a DNA profile consistent with a person called Alana Kirby was located on the inner side of the camouflage balaclava. A DNA profile consistent with a person called Jed Hocking was located on the outer surface of the men’s’ boxer shorts. Whilst Ms King was not able to say if the boxer shorts had come into contact with the shotgun, she told the court that an item made of cloth takes on more cells than some other items because it has an abrasive surface and that cells can readily shed from a cloth item.[38] She was not able to express any opinion on how long it would take for transference to occur from one item to another. The major contributor to the profiles from the boxer shorts, the shotgun and the balaclava was a male.[39]
[33] T88.
[34] T91.
[35] T93.
[36] T93.
[37] T102.
[38] T103.
[39] T106, 110.
Ms King was not able to express an opinion as to whether one of the contributors to the profile from the outside of the lip balm was a female.[40] She told the court that it was possible for transference of DNA to occur from one solid item to another.[41] It was possible, Ms King said, for DNA to be transferred by a kiss.[42] It was possible that DNA could have been transferred from the boxer shorts, the lip balm or the balaclava onto the firearm if they were kept in the same packaging.[43] I found Ms King to be a credible, honest and reliable witness and I accept her evidence.
Evidence of the defendant
[40] T106.
[41] T107.
[42] T109.
[43] T111.
Motor Vehicle Accident on 3 February 2020
The defendant gave evidence explaining that he had not been in possession of his bum bag or its contents since 3 February 2020. That was central to his version of events.
He told the court that on that day he was involved in a motor vehicle accident. He was driving a vehicle which belonged to a friend, Nicole Khoury. He was on his way to an appointment with DASSA so that they could provide him with his dose of Suboxone. At the time of the accident he was seeing DASSA for drug and alcohol rehabilitation.[44] He was not cleared to have takeaway Suboxone and was required to take it at the DASSA clinic.[45]
[44] T139.
[45] T140.
He said he had turned right onto a street and collided with the rear of a parked car.[46] The airbags of the vehicle he was driving went off on impact. He was a bit dazed by the collision and when he came to his senses, he got out of the vehicle immediately, leaving the door open and waited for police to arrive.[47] He told me that when he left home that morning he had taken his mobile phone, which he placed in his pocket, and his bum bag, which had all of his stuff in it, stored in the main compartment of the bag.[48] He said he did not take the bum bag out of the car after the accident and that after the accident he did not see or have possession of either the bum bag or any of the items in it.[49] At the time he left his bum bag in the car, it contained a spare pair of socks, a spare pair of underwear, his wallet, a charger cable and nothing else.[50] He said he was in the habit of using the bum bag every day and he took it everywhere with him. He did not remove his wallet from the car when he got out of the vehicle at the time of the accident.[51]
[46] T132.
[47] T132, 167.
[48] T132.
[49] T132.
[50] T170.
[51] T133.
When spoken to by police, he said that he told them who owned the vehicle and that he had permission to be driving it. They made him wait until they could confirm that he did have that permission.[52] He said that police arrived at the scene of the accident within about 5 to 10 minutes of the collision occurring. He told me that when they arrived, police asked him for his identification. He said he did not get a chance to show it to them but that he did show them where his identification ‘probably was’ and he was told by them that they did not want him anywhere near the vehicle.[53] He said that he gave his details to police ‘on face value’ and was then breathalysed, tested for drugs and told to stand to one side and wait. It was about 10 to 15 minutes before Nicole Khoury arrived. She abused him for crashing her car. He said that he left the scene after he had given his details to police and was told that he was free to go but that he would get a summons in the mail because he had been driving unlicensed.[54] As far as he was aware, police did not obtain his licence from inside the car.[55]
[52] T132.
[53] T167-168.
[54] T168.
[55] T168.
The accident occurred approximately three weeks prior to him removing his home detention bracelet.[56] By that time he had a new phone, an iPhone 11, which he left at his home detention premises when he absconded. At the time of the accident, he had a People’s Choice Credit Union bank account, the card for which was in his wallet.[57]
[56] T133.
[57] T133.
In cross examination, the defendant said that he had definitely enquired with Nicole Khoury about getting back the items he had left inside the car. He was aware that the vehicle had been towed to her local wrecking yard for insurance purposes, but he was never told where he could go to pick up his possessions.[58] Ms Khoury’s response to him was that that was the least of her problems until such time as he paid for the damage to the vehicle. He did not know where it was towed to. He made no attempt to go to her house to get his bum bag because it was not possible for him to get pass outs. After being allowed to leave the scene of the collision, he went to his DASSA appointment and had his Suboxone.[59]
[58] T168, 169.
[59] T170.
He said that after the collision and before his arrest on 1 March 2020 he had no personal contact with Ms Khoury.[60]
[60] T163.
In cross examination, the defendant said that he was unable to cancel his credit cards between 3 February and 19 February, when he absconded, because he did not have any identification or details to prove that he was the person to whom the cards belonged.[61] He said that he had asked DASSA to assist him in getting new identification and they told him that they would issue him with a document containing his prison photo and number. He said that he did not try to give that document to the bank. He did not require proof of ID when he went to the DASSA clinic because they used eye scan recognition.[62] As will be seen, the fact that his People’s Choice Credit Union account remained open after the date of the accident and the purported loss of his wallet, which was in the bum bag, were matters of significance on his version of events.
[61] T177.
[62] T178.
The defendant told the court that prior to his arrest he had absconded from home detention, having been bailed to 8 Lewis Court Elizabeth West. He cut off his electronic bracelet on 19 February 2020.[63] He said that he did so because he had been getting passes to visit his father who was terminally ill. His father has since passed away.[64] Prior to the night of his arrest, he had been couch surfing and only walking on the streets at night.[65]
[63] T161.
[64] T131.
[65] T172.
Attendance at 4 Barrow Crescent
On 1 March 2020, the defendant went to 4 Barrow Crescent at a time close to midnight. He believed that his cousin Rhiannon Emily Lloyd lived there on and off.[66] He did not go into the rear yard of the premises at any stage when he was there on 1 March and had not been in the rear yard of that premises at any stage prior to 1 March 2020.[67] He said during examination in chief, in response to a direct question from his counsel, that he had never been to 4 Barrow Crescent before the evening of his arrest.[68] That answer was inconsistent with an answer he gave later in cross examination, when he said that he had been to the house probably a couple of times before the evening of his arrest.[69]
[66] T134.
[67] T135.
[68] T134, 10-15.
[69] T187.
Mr Lloyd told the court that he knew Lisa Collins, the occupier of 4 Barrow Crescent because she had gone to school with his uncle and knew his mother.[70] He also knew Sharna Collins-Biddell, who is Lisa’s daughter. When he arrived at the premises, both Lisa and Sharna were present. In examination in chief, he said that Rhiannon arrived about 10 minutes after he did but in cross examination estimated it could have been as long as 25 minutes.[71] He said that he went to the address on foot because he had no transport or money. He said that he was not due to go and visit his father until the next day and that he had been visiting him at random places just to spend some time with him. His reason for going to Barrow Crescent was to ask for money for transport.[72]
[70] T147.
[71] T147, 174.
[72] T148.
Having lost his wallet due to the accident, he had no identification and at the time he visited the premises he was avoiding the police. He did not want to be seen anywhere. After he lost his bum bag in the accident, his cousin Rhiannon made enquiries to get it back for him, doing a lot of running around because he did not want to be seen. Rhiannon knew Nicole Khoury. He said that he had no idea how his backpack came to be in the Commodore located at the rear of the premises.[73] He had not had time to ask Rhiannon if she had recovered his property from Ms Khoury before the police arrived.[74]
[73] T148.
[74] T186.
He said that when he heard the police knock at the door, his instant reaction was to answer it. He was standing near the doorway to bedroom one as depicted on the plan.[75] When he realised it was the police, he instantly closed the door because he was avoiding them. He then went to bedroom 3 but he did not do so because of any reason related to the firearm in the Commodore.[76] He told the court that his wallet (located in the bum bag) had been given to the officer at the counter of the police station with the rest of his property at the time of his arrest.[77]
[75] Exhibit P4.
[76] T153.
[77] T154.
The Commodore
The defendant was taken carefully through all of the items seized and/or located in the Commodore. His evidence was that he did not know the Commodore was in the rear yard of the premises, he had not seen it before he was arrested for this offence, and he had never driven it.[78] He did not own the red jumper depicted on the passenger side seat or the axe in the rear of the vehicle, nor had he seen those items before these proceedings.[79]
[78] T135.
[79] T135.
He said that he did not place the Coke can in the centre console of the Commodore.[80] He did not know how it had come to be there.[81] It was not his habit to collect Coke cans and, for example, put empty cans inside his bum bag.[82] There was no Coke can in his bum bag on the day of the car accident. He did not drink any Coke after he attended at 4 Barrow Crescent and had never been inside or driven[83] the Commodore.[84] Prior to the arrival of police at Barrow Crescent, he said he had stayed in the lounge room for the entire time.[85]
[80] T138.
[81] T179.
[82] T179.
[83] T134.
[84] T180.
[85] T180.
The defendant said that he did not recognise the keys to the Commodore depicted in photograph 47 of Exhibit P1, had never handled them at any stage and none of the other keys on the keyring belonged to him.[86] He told me that he did not know whether his cousin Rhiannon had used the Commodore at any time prior to his arrival at Barrow Crescent.[87]
[86] T146.
[87] T173.
The bum bag
The bum bag belonged to the defendant, and it was the same bum bag that he had left in Nicole Khoury’s vehicle.[88] He said that he did not place the sawn-off shotgun in the bum bag, and he had not seen that firearm prior to being shown the photographs in this matter.[89] He had never handled the firearm or any of the shotgun cartridges depicted in the exhibit photographs.[90] The bum bag and some of its contents were the only items in the Commodore which belonged to him.[91] He said that on the day he left his bum bag in Nicole Khoury’s car he had that morning placed all of the items inside it into the main compartment.[92] He described the main compartment as being the compartment in which the firearm was located as depicted in the photographs. That was a matter of significance on his evidence because it might have explained the presence of a DNA profile consistent with his on the firearm. It was the main compartment of the bum bag in which the firearm had been located.[93]
[88] T136.
[89] T136.
[90] T137.
[91] T138.
[92] T139.
[93] T139.
Mr Lloyd identified that it was his wallet and cards depicted in the photographs.[94] He told the court the handwriting on the post it note attached to one of the cards in photograph 26 of Exhibit P1 was not his. He said it had been written on the note by a social worker who was managing him prior to his release from prison in December 2019. The account details written on the note relate to his People’s Choice Credit Union account.[95]
[94] T141.
[95] T141.
Mr Lloyd admitted ownership of the boxer shots found in the bum bag. It should be noted that as depicted in the photograph, they were not located by police in the main compartment of the bum bag, where the defendant claimed to have put them. They were in a compartment he described as the rear compartment.[96] The defendant said that he had not put his boxer shorts or wallet in the rear compartment of the bum bag at any time.[97] That was also a significant matter on his evidence because of his reliance on the secondary transfer theory.
[96] Exhibit P1, photograph 27; T141.
[97] T142.
With respect to the lip balm, the defendant told the court he could not recall that item being his, but in any event, he did not place it inside the bum bag at any stage.[98] He said he was not in the habit of using lip balm at the time of the accident. He was adamant that the lip balm was not in the bum bag when he left it in Nicole Khoury’s car.[99] He told the court he had never used lip balm of the type found in his bum bag.[100]
[98] T142.
[99] T171.
[100] T178.
Similarly, the balaclava was not his and he did not put it inside the bum bag.
Black Lenovo backpack
The black Lenovo backpack depicted in photograph 31[101] was not his backpack. He observed that the photograph showed that there appeared to be some Telstra documentation sticking out of the backpack. He said that he did not have an account with Telstra at any time.[102] He maintained his denial of owning the backpack when it was pointed out to him that his Salvation Army diary was found inside it. The diary was his as were the Suboxone tablets tucked into it.[103] He was taken through numerous entries in the diary and confirmed that the writing for those entries was his.[104] He said the last time he had seen the diary was on 3 February 2020, when it was in the main compartment of the bum bag,[105] where he normally kept it.[106]
[101] Exhibit P1.
[102] T142.
[103] T140.
[104] T143-145.
[105] T177.
[106] T189.
Mobile phone and battery pack
The defendant was asked about the green Texta writing on the rear of the battery pack depicted in photograph 48.[107] He said that everyone knew him as ‘Lloydie’[108] and that Werner was his father’s surname. He agreed it was his DCS number written in green. He said that he did not write any of the words depicted on the back of the battery pack and had no reason to.[109] However, he thought the handwriting in photograph 48 resembled the handwriting of his cousin Rhiannon, who also goes under the nickname of ‘Lloydie’.[110] The defendant said that Rhiannon knew his father’s last name was Werner but said that the name Werner was not associated with her in any way.[111] He did not recognise the mobile phone or the battery pack. Neither of those items belonged to him. In cross examination, he was asked about the apparent coincidence of his DCS number being written on the battery pack. He told the court he has had that DCS number since 2008 and agreed that it was unique to him. He said that everybody knew that number because if they wanted to send him money orders or mail when he was in custody, they would use it to do so.[112]
[107] Exhibit P1.
[108] T145.
[109] T146.
[110] T149-150.
[111] T187.
[112] T176.
Mr Lloyd was cross examined about his handwriting in the diary. His attention was drawn to the fact that in writing the word ‘prison’ in capital letters in his diary, he had placed a dot over the capital letter ‘I’. It was then drawn to his attention that the word ‘police’, written in green Texta on the back of the battery pack was also written in capital letters and also had a dot over the capital letter ‘I’. He denied that he had written the words on the back of the battery pack.[113] The accused told me that he did not know Alana Kirby or Jed Hocking.[114]
[113] T183.
[114] T151.
Bank statements
In examination in chief, the defendant was taken through a series of bank statements relating to his People’s Choice Credit Union account.[115] The purported relevance of those documents was that transactions had been conducted on his account after he had lost his bum bag in Nicole Khoury’s car but also after the wallet had reappeared on the night of his arrest and whilst he was in custody.
[115] Exhibit D20; T154-163.
The effect of his evidence about the bank records was that none of the transactions indicated in the bank statements after 5 February 2020 had been conducted by him. He told the court that he had never given his card to Ms Khoury and had not given her his authority to use it. He pointed out that it would not have been possible for him to conduct many of the transactions between the date of the accident and when he cut off his bracelet on 19 February because he was on home detention.

His attention was drawn to some declined payment requests from Apple.com. He denied having a direct debit on his account for the purpose of paying for anything from the Apple Corporation. His People’s Choice Credit Union account could be activated either with a PIN or, given that it was a direct debit Visa card as well, by pay wave. He denied making any payments or using the card after the time he was remanded in custody as he did not have access to his wallet.[116] He said that after his crash and before his arrest on 1 March he had no personal contact with Ms Khoury.[117] He said that he had never given his PIN to any other person but said that it was written on the ‘post it’ note depicted in photograph 26[118] in the bottom left-hand corner. He acknowledged that it could not be seen in the photograph. I note that the bottom left hand corner of the ‘post it’ note is folded over. He said he wrote his PIN number on that note because he had trouble remembering it.
[116] T162.
[117] T163.
[118] Exhibit P1.
The movements of the accused’s wallet
It will be recalled that Mr Lloyd’s evidence was that he has not had possession of his wallet since 3 February 2020. It was located by police in the bum bag. The whereabouts of the wallet after 3 February is important in understanding the significance of the defendant’s evidence about the transactions on his People’s Choice Credit Union account. Having not seen it since 3 February, he said that when he was standing at the charge counter after his arrest, his wallet was handed to the sergeant behind the desk to put with his property.[119] He was shown it at that time and saw that it contained his driver’s licence, but he could not recall if it had his bank card in it.[120] That was the first time he had seen the wallet ‘in a while’. Once he was placed in custody, he was not able to access his wallet or the cards in it. After it was put in his property, it travelled with him back to the Remand Centre and he was later requested to sign paperwork to send the wallet back to his mother. He had not had the opportunity to look inside his wallet or touch it after it was seized by police.[121]
[119] T184.
[120] T184. Whatever the state of his recollection, the People’s Choice Credit Union card was clearly in the wallet at the time of the police search of the Commodore.
[121] T185.
Mr Lloyd assured me that if he had been in possession of the firearm, he would not have been so stupid as to leave his wallet next to it.[122]
[122] T164.
Addresses and Consideration
Counsel for the defendant supplemented his closing submissions with a written outline, which I have considered. It will become apparent that in the course of my deliberations, I have rejected the evidence of the defendant on all substantive matters. Having rejected it, I set it to one side and focussed on whether the prosecution has proven the charge beyond reasonable doubt.
The defendant contended that even if the prosecution could prove that he had physical possession of the firearm, it could not prove that he knowingly had possession of a firearm because it could not establish that he knew the item was in fact a firearm. He relied on the decision of this court in R v Bridgland[123] and the authorities referred to in that case. I reject that submission. Firstly, with respect, I do not accept the reasoning in Bridgland and I have recently held to the contrary.[124] I do not accept that the reasoning of David J in R v Fuller; R v Zazzaro[125] has been overruled by or is inconsistent with the decision of Kourakis CJ in R v Marafioti.[126] It is not necessary for me to expand on that comment because in any event, and even if the view I take on that matter is erroneous, I am satisfied that an inference can be drawn that whoever possessed the firearm knew that it was in fact a firearm. I am prepared to draw that inference because of the following:
1.It’s appearance, being obviously a sort of shot gun.
2.The location in which it was found, being a bum bag, suggests that whoever possessed it had deliberately put it there and did so for a reason.
3.It was loaded with a shotgun cartridge, an item which is easily recognisable and, self-evidently designed to be used as ammunition in a shot gun.
4.It was in the same bag as a spent shotgun cartridge and eight other cartridges.
5.The matters in 3 and 4 above suggest that the firearm was placed in the bag by the same person and that person knew what the cartridges could be used for.
[123] [2019] SADC 162.
[124] R v Paul Anthony ANGEL DCCRM-21-421 dated 16 June 2022, unpublished.
[125] [2012] SASCFC 101, [72]-[73].
[126] (2014) 118 SASR 511.
The main thrust of defence counsel’s submission was that the prosecution could not establish beyond reasonable doubt possession by the accused on the basis asserted[127] and further that I could not exclude the evidence of the accused as a reasonable possibility. Even if I were to reject the evidence of the accused, it was submitted that I could not exclude as a reasonable possibility that the DNA profile on the firearm, which was consistent with the profile of the accused, had been deposited there by a process of secondary transfer. The significance of that submission was assertedly magnified by the presence of mixed DNA profiles located on the firearm, the underwear, the camouflage balaclava and the Coke can.
[127] Firearms Act 2015, s 6(2)(a).
Defence counsel placed reliance on the asserted inability of the prosecution to disprove as a reasonable possibility that the DNA profile on the firearm got there by way of secondary transfer. In doing so, he referred to the decision of the High Court in Fitzgerald v The Queen.[128] which dealt with the question of whether DNA found on an object at the crime scene was sufficient to establish beyond reasonable doubt the appellant’s presence during, and participation in, the alleged offence. In that matter, it was not. The distinction between the decision in that matter, which for obvious reasons was primarily concerned with the facts of the case, is that the prosecution relied on the presence of DNA on a single, readily transportable item. Accepting for the purpose of considering this submission, that the DNA came to be on the firearm by way of secondary transfer from the boxer shorts, there are still three locations in which DNA matching the profile of the defendant was located. They are the bum bag (boxer shorts and firearm), the Coke can (centre console) and the inner surface of the lip balm (in a separate compartment of the bum bag and covered by a cap). Further, even if the DNA profile matching that of the defendant came to be on the firearm by way of secondary transfer, that fact alone would not automatically exclude a finding that he was in possession of it.
[128] (2014) 311 ALR 158.
The conviction in Fitzgerald was unsafe because the prosecution could not disprove that the DNA came to innocently be on the item on one of two occasions other than when the offence was committed and that the item was a portable item of property with no inherent link to the injuries inflicted to the victim. Had the single source of DNA in Fitzgerald been a drop of blood located on the murder weapon, the result may well have been different. In this matter, the defendant is linked to the firearm by more than the presence of a DNA profile matching his on that item. He is the owner of the bum bag, the boxer shorts, the wallet and the diary found in the backpack. The DNA profile on the Coke can matches his and was left in a position in the Commodore where it is likely to have been placed by the driver or front seat passenger of the vehicle. The key to the Commodore was found in the same location as the phone and battery pack, which provides a further link to the Commodore.
Defence counsel commended the evidence of Mr Lloyd to me and submitted that he could be accepted as a witness of truth. Defence placed particular reliance on the transactions conducted on Mr Lloyd’s credit card after the date of his collision, but especially after his arrest, as establishing that someone else had access to his wallet, bum bag and all of the items in it prior to the evening of 1 March 2020. I have given close consideration to all of the submissions made on behalf the defendant.
The prosecution submitted that I should draw all available inferences open on the evidence, reject the evidence of the defendant and that the combined weight of the inferences pointed irresistibly to a finding that the defendant knowingly possessed the firearm.
I accept as honest and reliable the evidence of the police witnesses as to their attendance at Barrow Crescent, their observations whilst there and as to the location of all of the items seized at the time they were seized. I accept that when Brevet Sergeant TC[129] first saw the Commodore, the rear passenger door was open as was the boot. That suggests to my mind that the Commodore had either arrived relatively recently at the premises or was being prepared for an impending departure. I accept Brevet Sergeant TC’s evidence that there were no civilians in the rear yard prior to the arrest of the defendant.
[129] Exhibit P16.
As I have already indicated, I accept the qualifications and expertise of Ms King and all of her evidence with respect to the DNA analysis.
I note the submissions of the defendant as to the various items in the Commodore which were not seized and submitted for forensic analysis. For reasons which will become apparent, that does not cause me to doubt the availability of properly drawn inferences from the presence, location and/or later forensic analysis of the items which were seized by police.
I do not accept the evidence of the defendant that he left his bum bag and its contents inside Ms Khoury’s vehicle after the collision on 3 February 2020. I did not find the defendant to be an honest and reliable witness on that matter. By his own admission, his bum bag was an essential item which he took with him everywhere. Even if he was somewhat shaken up by the collision and the airbags being activated, I find it implausible and reject as a reasonable possibility that he did not retrieve his bum bag from the vehicle after the collision. On his own version, at the very least, he was present at the scene for about 20 minutes after crashing.
I reject his evidence that the police who attended accepted his statement as to his identity at face value without asking him to produce his driver’s licence or some form of identification. Accepted police practice involves checking a person’s ‘bona fides’. I am strengthened in that view by the fact that they apparently told him he would be issued with a summons for driving whilst unlicensed. If that had occurred, I have no doubt that they would have asked for formal identification. In addition, the defendant says that he told police he was not the owner of the vehicle and they contacted Ms Khoury to ascertain if he had permission to be driving it. That would have been a further reason for police to formally establish his bona fides which, on the defendant’s evidence, could only be done if his bum bag had been retrieved from the vehicle. I do not accept the defendant’s evidence that he told police where his identification ‘probably was’ in the vehicle and was then told that he was not to go anywhere near it. Had he told them that he had identification he would have been asked to produce it. To do so would have at least required his wallet to have been accessed within the vehicle, which would also at the very least have reminded the defendant of the presence of his bum bag inside.
I reject as a reasonable possibility, that when the defendant left the scene of the collision he did so without his bum bag and its contents. I reject as a reasonable possibility that the defendant was simply mistaken about those matters.
I do not use that finding to reason that he has lied as a consciousness of guilt with respect to possession of the firearm. That he has given that false narrative does however significantly damage his credit as a witness. The rejection of the defendant’s evidence about not having the bum bag does not of itself establish that he was in possession of the firearm. I reject the evidence of the accused that he was not in possession of the bum bag and its contents at the time of his arrest.
I reject the evidence of the defendant that he did not conduct any of the transactions on his credit card from after 3 February until the day of his arrest. I am satisfied that he had possession of his wallet during that period. He had been in a relationship with Ms Khoury as evidenced by the entry in his diary marking a significant anniversary.[130] Even if she did conduct some of the pre-arrest transactions, that would not alter my rejection of the defendant’s claim that he did not have his bum bag or wallet after the collision. I am satisfied that his evidence with respect to having lost his wallet and as to the bank transactions, was false.
[130] T145.1.
I reject the evidence of the accused that he was not in possession of the firearm. I reject as a reasonable possibility, his evidence that he had not accessed the lip balm or touched the Coke can.
Irrespective of who wrote the words on the rear of the battery pack, I reject the evidence of the defendant that he did not have possession of that item or the phone attached to it. I am satisfied that the writing on the rear of the battery pack referred to the defendant. I am satisfied that both the battery pack and the phone were his items.
The phone charger was found on the bed in the bedroom and next to the keys to the Commodore. To my mind, an inference can properly be drawn linking the defendant and the vehicle because of, but not exclusively, the proximity of those items to each other. I am strengthened in that regard by the fact that the writing on the battery pack refers to matters personal to the defendant. Further, the location of the defendant’s property on the front seat of the Commodore and in the Lenovo backpack in the rear seat, establishes a connection between the defendant, the vehicle and the keys to the vehicle found in bedroom 1. From those matters an inference can be drawn that the defendant was in possession of those items and the shot gun. I draw that inference.
One matter which to my mind makes the defendant’s explanation about the bank transactions incapable of belief is that, on the defendant’s account, an unknown person, but possibly Ms Khoury, conducted unauthorised transactions on his credit card prior to his arrest. That explanation is closely associated to the defendant’s evidence, which I reject, that he did not have his wallet and credit card after 3 February 2020. That credit card, which was in his wallet at the time of his arrest, was sent with his other property to his mother, after which time apparently further unauthorised transactions were conducted. It will be recalled that the defendant said he did not know who made the transactions on his account after the date of his arrest. It seems to me to be inherently implausible that the defendant’s mother would have given his credit card to a third party without the permission of the defendant. It is perhaps possible that his mother conducted transactions on the card either authorised or not, but to draw that conclusion would be speculation. The fact that further transactions were conducted on his credit card after the date of his arrest does not make it more likely that someone else had the defendant’s wallet and credit card, as well as his bum bag and its other contents, prior to the date of his arrest. I cannot make any finding as to who made the post-arrest transactions, but that does not affect my satisfaction that the defendant had both his bum bag, his wallet and its contents after the collision and up to the time of his arrest.
An inference is open that having possession of the hairbrush, boxer shorts, socks, wallet and diary as well as the bum bag would all be consistent with the defendant’s own explanation that after he cut off his bracelet, he wanted to travel light. Further, an inference is open that having a phone with an extra battery pack would be consistent with the requirements of a person who was unlawfully at large, possibly uncertain about their future movements or access to a place where a phone could be charged. I draw both of those inferences.
I reject the defendant’s evidence that when he left home he only had the clothes he was wearing and that he intended to go back to the premises he had absconded from to get his belongings. One would have thought that that would be a place that he would avoid. I am satisfied that at the time of his arrest, the defendant was indeed travelling light. I am satisfied that he had his bum bag and its contents; and the bare minimum of possessions he felt he needed whilst at large.
I do not accept the evidence of the defendant that he was unable to cancel his cards after the collision, but it is not necessary for me to consider that evidence any further, because I have rejected an anterior assertion which would have made it necessary to attempt to do so, namely, that he did not have his wallet and cards during the period asserted by him.
The probative value of the DNA on the firearm must be assessed in light of all the evidence in this matter. The inference to be drawn from the DNA on the firearm gains considerable focus and strength when that evidence is considered in light of the evidence as a whole. In my view, an overwhelming inference is open that the defendant was the source of the DNA matching his profile on the boxer shorts, the firearm, the lip balm, the camouflage balaclava and the Coke can. The further inference is open that it was the defendant who placed the firearm in the bum bag and that he was in possession of it on the night of his arrest given the presence of:
1.His DNA on the firearm, which was inside his bum bag with his boxer shorts, wallet, socks and the lip balm with his DNA on it, as well as
2.The presence of his diary in the rear of the vehicle and
3.The phone, battery pack and car keys found in a room of the house next to where he was standing when he opened the door to police.
4.The presence of his DNA on the Coke can sitting in the centre console.
I draw both of those inferences.
During the course of cross-examination Ms King stated that she was not aware of any studies which have shown the major component of a mixed DNA profile to have been as a result of secondary transfer.[131]
[131] T112.28-33.
That evidence did not go quite as far as was put by the prosecution in its closing address, where it was submitted that it was highly unlikely that the percentage of DNA on a secondary transfer result would be greater than the percentage of DNA in a mixed profile left by primary transfer and I have ignored that part of Ms King’s evidence.
The presence of DNA profiles consistent with persons called Alana Kirby and Jed Hocking in the places indicated does not cause me to doubt the inferences I have drawn with respect to the DNA evidence. Nor does it cause me to doubt the inferences I have drawn from any of the other evidence. I exclude as a reasonable possibility that Alana Kirby, Jed Hocking or any person other than the defendant was in possession of the firearm.
I am satisfied beyond reasonable doubt that the only rational inference which can be drawn from the evidence is that the defendant was in possession of the firearm, as alleged.
For those reasons, I have found the accused guilty as charged.