R v Marafioti - [2014] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MARAFIOTI
[2014] SASCFC 8
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
13 February 2014
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
The appellant was convicted, following a trial by jury, of aggravated possession of a class H firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA). The appellant applied to have the evidence of the search excluded on the ground that the police officer did not have a lawful basis to search the car. The trial Judge dismissed that application.
The appellant appeals on the grounds that: the Judge erred in finding that the police officer reasonably suspected to find evidence of offending against the Controlled Substances Act 1984 (SA) before conducting the search; the Judge erred in failing to direct the jury that the evidence was insufficient to establish that the appellant was "in charge" of the vehicle within the meaning of s 5(14)(c) of the Firearms Act 1977 (SA); and the Judge erred in failing to adequately and properly direct the jury as to the meaning of "in charge" under s 5(14)(c) of the Firearms Act 1977 (SA).
Held (Kourakis CJ, Vanstone & Stanley JJ agreeing):
(1) The information available to police, being the apparent intoxication of Ms Doukas in the context of the surrounding circumstances, was sufficient to support a reasonable suspicion that there was evidence of offending. The search was therefore lawful (at [14]).
(2) The construction of the phrase "in charge of a vehicle, vessel or aircraft" as found in s 5(14)(c) of the Firearms Act 1977 (SA) discussed.
(3) Section 5(14)(c) of the Firearms Act 1977 (SA) creates the rebuttable presumption of possession of a firearm by a person who exercises a degree of control over the premises or vehicle in which the firearm is found. The natural meaning of "in charge of" includes the voluntary driver of a motor vehicle. The appellant was therefore undoubtedly in charge of the vehicle (at [32]).
(4) Permission to appeal on ground 1 refused. Appeal against conviction dismissed on grounds 2 and 3.
Controlled Substances Act 1984 (SA) s 52(9); Firearms Act 1977 (SA) ss 5(14), 5(15), 6, 11(1), 11(2), 15D, 24A(7); Summary Offences Act 1953 (SA) s 68, referred to.
R v Nguyen (2013) 117 SASR 432, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"in charge of"

R v MARAFIOTI
[2014] SASCFC 8
Court of Criminal Appeal: Kourakis CJ, Vanstone and Stanley JJ

KOURAKIS CJ: On the evening of 8 February 2011 Mr Marafioti was driving an AVIS hire car along North East Road, Hillcrest with a single passenger his girlfriend, Ms Doukas. Both Mr Marafioti and Ms Doukas were residents of Adelaide. Two police officers, Boyd and Fearn, who were on uniform patrol duties in a marked police car, pulled over Mr Marafioti’s car because the headlights of the car were not turned on when the lighting conditions required them to be so. After speaking to Mr Marafioti and Ms Doukas, the police officers searched the car and found a loaded pistol in the driver’s footwell. The pistol had its identifying characteristics defaced.
Mr Marafioti was charged with aggravated possession of a class H firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (the Act) and with possession of a defaced firearm contrary to s 24A(7) of the Act. The Act deems possession to include being in charge of a motor vehicle in which a firearm is stored. On a trial by jury the appellant was convicted unanimously on the first count and unanimously acquitted on the second. The acquittal on the second count most probably reflected a doubt about whether Mr Marafioti was aware that the identifying features of the pistol had been defaced. The appellant had applied to have the evidence of the search excluded on the ground that the police officer did not have a lawful basis to search the car. The lawful basis claimed by the police officer was that he expected to find evidence of offending against the Controlled Substances Act 1984 (SA). The presiding Judge dismissed that application.
The appellant appealed on the grounds that:
1the Judge erred in finding that the police officer reasonably suspected to find evidence of offending against the Controlled Substances Act 1984 (SA) before conducting the search;
2the evidence was insufficient to establish that Mr Marafioti was in charge of the firearm;[1] and
3The learned trial Judge erred in failing to adequately and properly direct the jury as to the meaning of “in charge” under s 5(14)(c) of the Firearms Act 1977 (SA).
[1] This ground was framed in terms of the Judge failing to direct the jury that the evidence was insufficient but if that ground were made good the verdict would necessarily be unreasonable.
A Judge of this Court refused permission to appeal on ground 1 but granted permission to appeal on grounds 2 and 3.
The search
Mr Marafioti alighted from the car and walked back to speak to Constable Boyd on the side of the road. Ms Doukas remained in the front passenger seat. Mr Marafioti produced his probationary driver’s licence to Constable Boyd. They spoke about the headlights. Constable Boyd then walked over to the car to speak to Ms Doukas where he saw that no P-plates were displayed on the hire car. Mr Marafioti told Constable Boyd that he had not intended to drive the car which had been hired by Ms Doukas but when she became unwell, he took over the driving. Mr Marafioti told Constable Boyd that he and Ms Doukas were going out to dinner. According to Constable Boyd, Ms Doukas told him that they were late for collecting his daughter. Constable Boyd gave evidence on the voir dire that he was suspicious of the inconsistent accounts given by Mr Marafioti and Ms Doukas. He thought that they both appeared to be evasive. Constable Boyd testified that both Mr Marafioti and Ms Doukas appeared nervous and agitated. Importantly, Constable Boyd also testified that his observations of Ms Doukas led him to suspect that she was affected by illicit drugs.[2]
[2] T22.
Constable Boyd searched a bag which Mr Marafioti was carrying. No drugs or drug related paraphernalia were found. Constable Boyd then searched the car. Constable Boyd testified that Mr Marafioti had consented to the search but it was contended by Mr Marafioti that his tacit consent was simply a submission to the inevitable.
In those circumstances the Judge proceeded on the basis that the search of Mr Marafioti’s car was undertaken in exercise of Constable Boyd’s statutory powers. I will do the same. As I have already indicated, a pistol was found taped up and secreted in the driver’s footwell. Ammunition was also found in the black plastic container located during the search.
The statutory powers here in question are s 68 of the Summary Offences Act 1953 (SA) (SOA), and s 52(9) of the Controlled Substances Act 1984 (CSA). Under the former provision a police officer may stop, search and detain a vehicle in which there is reasonable cause to suspect that there is an object, possession of which constitutes an offence. The latter provision empowers a police officer who “reasonably suspects that any substance or equipment that would afford evidence of an offence” against the CSA to detain and search the vehicle.
The presence of a person apparently intoxicated by an illicit substance in a motor vehicle is a reasonable basis on which to suspect that an illicit substance, or an instrument for its administration, will be found in the vehicle. Persons who take drugs commonly take them in vehicles and when they do so they do not always exhaust their supply of the drug. True it is that a drug user may also take the drug before getting in a car, and that he or she may have consumed all of his or her supply. However, a suspicion is still a reasonable one even if there remains a possibility, or even a probability, that the thing suspected will not be discovered.
A suspicion is a less certain state of mind than a belief. The connection between the presence of a drug intoxicated passenger in a car, and a suspicion that drugs or drug implements will be found in the car, is not a matter of “mere curiosity, speculation or idle wondering.”[3] It is a natural and common incident of drug taking that an intoxicated person will be found to possess, or be close to, some of the illicit substance or an implement for taking it.
[3] R v Nguyen (2013) 117 SASR 432.
Constable Boyd also relied on a number of other grounds for his suspicion including that Marafioti:
·Was driving a hire car which is a common modus operandi for drug dealers.
·Was wearing a bumbag which is a kind of bag often used by drug dealers.
·Was evasive agitated and in a hurry to go; and
·Gave an account as to where he was going which was inconsistent with his passengers.
The Judge found, and it is not contested on appeal that Constable Boyd, subjectively suspected that there were drugs in the car for all of the reasons he gave. However, in the absence of his belief about Ms Doukas’ state of intoxication I harbour doubts about the reasonableness of the other grounds. There are many law abiding members of the community who for a variety of reasons hire cars to travel in their home state, wear bumbags or become anxious in the presence of police.
True it is that the other circumstances relied on by Constable Boyd may often be associated with drug dealers but they are also commonly associated with innocent persons. The suspicion associated with those circumstances is qualitatively and quantitatively very much weaker than the suspicion which attaches to a drug intoxicated person. Behaviours which might appear “odd” or “different” to some should not too quickly be associated with illegality. Eccentricities should not be magnets for the exercise of police powers.
Be that as it may, the apparent intoxication of Ms Doukas in the context of the surrounding circumstances gave reason to suspect the presence of evidence of offending. The search was lawful.
Who is “in charge of a motor vehicle?”
Grounds 2 and 3 raise a question of construction of the phrase “in charge of a vehicle, vessel or aircraft” as used in s 5(14)(c) of the Act. As will shortly be seen, the offences created by the Act are founded on the core element of possession of a firearm of particular kind.
Subsections 5(14) and 5(15) of the Act defines the concept of possession as follows:
(14)For the purposes of this Act (other than Part 3 Division 2A), a person has possession of a firearm if—
(a)     the person has custody of the firearm or has the firearm in the custody of another; or
(b)     the person has and exercises access to the firearm; or
(c)     the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the firearm is found.
(15)However, subsection (14)(c) does not apply if the person establishes that—
(a)     he or she did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises, vehicle, vessel or aircraft; or
(b)     the firearm was in the lawful possession of another or he or she believed on reasonable grounds that the firearm was in the lawful possession of another.
Before turning to the text of that definition it is necessary to set out some of the statutory context in which it operates.
Part 2A of the Act provides for police officers and the Registrar to make prohibition orders against persons in circumstances in which there are reasonable grounds to suspect that possession of a firearm would be likely to result in undue danger to life or property. Part 3 of the Act establishes a licensing system for the possession of firearms. It provides for applications for licences of particular classes of firearms and for the prescription of a purpose for the possession of the firearm to be endorsed on the licence. Section 11(1) of the Act proscribes possession of a firearm without holding a firearms licence and s 11(2) of the Act proscribes possession of a firearm for a purpose that is not authorised by the licence. Other provisions of Part 3 prohibit the supply of firearms to persons who are not licensed.
Licensing is the responsibility of the Registrar of Firearms, an office created by s 6 of the Act. Division 2A of Part 3 carefully prescribes processes for the transfer of possession of firearms. It is the manifest object of Division 2A to ensure that the movement of firearms can be traced and that as far as possible they remain in the possession of licensed persons.
Section 15D of Division 2A of the Act defines possession for the purpose of that Division in these terms:
(1)For the purposes of this Division, the owner, or a person to whom the owner has transferred possession, of a firearm has possession of the firearm (and therefore has not transferred possession for the purposes of this Division) while it is in his or her physical possession or is under his or her control.
(2)Without limiting subsection (1), a firearm will be taken to be in the physical possession or under the control of the owner or a person to whom the owner has transferred possession—
(a)     while he or she is handling the firearm or the firearm is under his or her control; or
(b)     while the firearm is—
(i)on premises at which the owner or other person usually resides or premises at which the owner or other person is for the time being residing; or
(ii)in a vehicle, vessel or aircraft in which the owner or other person is for the time being travelling or residing; or
(c)     where the firearm is used by the owner or other person in the course of carrying on a business—while the firearm is on premises at which that business is carried on; or
(d)     while the firearm is in the physical possession or under the control of an employee of the owner of the firearm or other person in the course of that employment; or
(e)     while the firearm is in the possession of a person on behalf of the owner or other person in the normal course of the first mentioned person carrying on the business of carrying or storing goods; or
(f)    in any other circumstances prescribed by regulation.
I draw attention to the wide terms in which s 15D(2)(b)(ii) is drawn.
Part 4 of the Act provides a scheme for the registration of firearms.
I return to the extended definition of possession. I start by observing that s 5(14)(a) of the Act is, broadly, the equivalent of the common law concept of possession, but includes within it, possession by an agent. Subparagraph (b) extends the common law concept of possession by removing the requirement of exclusivity and providing that access to a firearm may constitute possession of the firearm. Section 5(14)(c) of the Act must be construed in the context of the preceding subparagraphs which manifest an intention to extend the concept of common law possession. That suggests a broad reading of the term “in charge of”.
A purposive approach to the construction of s 5(14)(c) of the Act also provides strong support for a wide construction of that term. The danger to the community posed by the unregulated possession of firearms is notorious. There is a strong public consensus in Australia that favours close regulation of the possession of firearms.
It can be seen that s 5(14)(c) of the Act in effect creates rebuttable presumption of possession of a firearm by a person who exercises a degree of control over the premises or vehicle in which it is found. With respect to both premises and vehicles, forms of control or relationship less than ownership are sufficient. With respect to premises it is important to observe that “care or management” of the premises, which will generally be something significantly less than control of the premises, is sufficient to found the inference.
The most natural and obvious way in which a person may be in charge of a vehicle, vessel or aircraft is to be the driver, captain or pilot respectively. True it is that the legislature could easily have chosen to use the word “driver” if it intended the presumption of possession to apply to all drivers. However, if the section had been so drawn it would have been necessary, in order to achieve the Act’s manifest purpose, to add further words to capture the person who has just alighted from, or is about to step into a vehicle, vessel or aircraft for the purposes of driving it. Further text would also have been necessary to apply the presumption to persons who have left a vehicle, vessel or aircraft in a car park, dock or hangar. The failure to use the word driver is therefore not an indication that some additional degree of control, over and above being a driver, is required.
I acknowledge that the precise scope of the phrase “in charge of” in its application to persons other than drivers may throw up difficult questions. The extent to which a person, who has legal or defacto authority to dictate how the driver must manage the vehicle, is also a person “in charge of” the vehicle will be a matter of fact and degree. So, too, difficult questions might arise as to whether a driver who is acting under some form of compulsion approaching duress is a person in charge.
I also observe that it is not obvious to me that there need be only one person “in charge of” a vehicle.
Be all that as it may, in the generality of cases, persons voluntarily driving a vehicle have cast on them a practical responsibility to take steps to ascertain whether the vehicle they drive carries a firearm.
As I have already observed, the natural meaning of the term “in charge of” includes the driver of a motor vehicle.
In the ordinary course, a person who voluntarily drives a vehicle will know or be in a position to ascertain whether or not it carries a firearm. It is consistent with the community protection objects of the Act to construe the term “in charge of” to include a voluntary driver. There is therefore no reason to give the term a restrictive construction.
On the evidence in this case the appellant was undoubtedly in charge of the vehicle. It follows that his conviction must stand.
Conclusion
Permission to appeal on ground 1 is refused. Appeal dismissed on grounds 2 and 3.
VANSTONE J: I agree that the appeal should be dismissed and with the reasons of the Chief Justice.
STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.