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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Marafioti

Details

AGLC: R v Marafioti [2014] SASCFC 8
Case: [2014] SASCFC 8
Decision Date: 13 February 2014

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, R v Marafioti, for offences relating to firearms. The dispute centred on the appellant's control of a vehicle from which evidence was seized. The matter was heard by Kourakis CJ, Vanstone and Stanley JJ.

The primary legal issue before the court was whether the appellant was in charge of the vehicle in question, which was crucial for upholding his conviction. This determination would resolve the grounds of appeal relating to the search and seizure of evidence and the subsequent conviction for possessing offensive weapons.

The court found that the evidence presented clearly established the appellant's control over the vehicle. Based on this factual finding, the court concluded that the conviction was sound. Consequently, permission to appeal on the first ground was refused, and the appeals on the remaining grounds were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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