R v Merkaj - [2013] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MERKAJ
Criminal Trial by Judge Alone
[2013] SADC 143
Reasons for the Verdict of His Honour Judge Cuthbertson
31 October 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE
The accused is charged with possessing a firearm without a licence.
HELD: The proven finding of firearms residue on the accused’s hands when examined a short time after the alleged firing of a firearm in a suburban street did not establish beyond reasonable doubt with the other circumstances evidenced that the accused was the possessor of a firearm at any relevant time.
Verdict of Not Guilty entered.
Firearms Act 1977 (SA) s 11(1), referred to.
Shepherd v R (No 5) (1990) 170 CLR 573, considered.

R v MERKAJ
[2013] SADC 143
Introduction

The accused stands charged with one Count of Aggravated Possessing a Class H Firearm without a Licence, to which he has pleaded not guilty.
Legal Principles
The accused comes into this court with the presumption of innocence in his favour.
This is a circumstantial case. It follows therefore that I cannot return a verdict of guilty unless there is no reasonable hypothesis consistent with innocence which is open to me.
A fact not being an element of the offence charged need not be established beyond reasonable doubt unless it is in an indispensible link in the chain of reasoning leading to a finding of guilt.[1]
[1] Shepherd v R (No 5) (1990) 170 CLR 573.
It is the prosecution case that the accused must have fired a hand gun, although not seen to have done so and therefore he must have been in possession of a Class H firearm. He was not the holder of a licence to possess such a firearm, and therefore he should be found guilty of such an offence.
The defence says that there is reasonable doubt that the accused was in possession of a class H firearm and it was very likely that someone else discharged the firearm.
Charge
The Information filed by the Director of Public Prosecution reads as follows:
First Count
Statement of Offence
Aggravated Possessing a Firearm Without a Licence.
(Section 11(1) of the Firearms Act, 1977)
Particulars of Offence
Viktor Merkaj on the 13^th day of March 2012 at Henley Beach South, possessed a class H firearm, whilst not holding a firearms licence authorising possession of that firearm.
It is further alleged that Viktor Merkaj was carrying that firearm whilst it was loaded.
Section 11(1) of the Firearms Act makes it an offence to have “possession of firearm without holding a firearms licence authorising possession of the firearm”.
The prosecution needs to prove:
1That the accused was in possession of a firearm.
2That it was a Class H firearm.
3That he was not holding a firearms licence authorising possession of the firearm at the time, and
4That as an aggravating feature, the accused was carrying the firearm whilst it was loaded.
All elements must be proved beyond reasonable doubt by the prosecution.
Background
In the early hours of 13 March 2012, a witness who lives at a block of units at Henley Beach South was up in the very early hours making lunch for her partner in the kitchen. Her kitchen window was not shut and she heard abusive shouting from the street. It was at about 3.15 am.
She then heard a sound which the witness described as ‘something metal hitting the ground, like a hollow pole, something being thrown’.[2] The witness together with her boyfriend went downstairs and got ready to go to work.[3] As the witness was standing outside her boyfriend’s car, she saw a man standing at the corner of Fletcher Road and Yorktown Crescent staring at them.[4]
[2]    T9.
[3]    T10.
[4]    T11.
The witness describes the man as having ‘had short brownish hair, clean-shaven at the time, stocky-ish build, not overly tall, and of ethnic appearance, wearing a black and white Adidas tracksuit.’[5] This description accords with the appearance of the accused in a photograph taken later that morning.[6]
[5] T12.
[6] Ex P3.
As they drove off, she saw a ‘darkish, round-back’ sedan parked very close to the corner of Yorktown Crescent and Fletcher Road. There were other people sitting in the car.[7] She also heard a sound like “a firecracker, car backfiring that kind of thing”[8] behind them when they turned around the corner of Yorktown Crescent.[9] The witness did not see any other cars moving around at that time.
[7]    T13.
[8]    T14.
[9]    T14.
Police were subsequently called and arrived within a very short period of time. Upon searching the area, a used cartridge shell was located near to where the male person had been standing.[10] About half an hour later the accused was seen by the police in the passenger seat of a blue sedan in the next street and he matched the description of the man described by the witness and seen earlier. He was searched by the police and subsequently arrested.
[10] Ex P3.
There is no evidence before me of any questioning. Two other female persons were located in the car. Neither would provide a statement to police.
No firearms or ammunitions were found by the police either in the car or at his house which was subsequently searched.
Both hands of the accused, the inside and the outside of the accused car and the accused’s clothes were swabbed for the presence of gunshot residue. Only two samples were tested and both of them were taken from the accused’s hands. No other samples were tested. Police identified four particles, three of which were highly characteristic of gunshot residue.
The accused subsequently was charged.
No evidence has been led by the prosecution as to whether the person heard yelling in the street had a foreign accent or an Australian accent. This is significant as the accused is Albanian and required an Albanian interpreter.
As I have remarked the description of the person in the street, when the witness left her home, matches the photograph taken of the accused on that day.[11] The accused was not asked to go in a line-up nor was the witness shown a series of photographs and asked if she could identify the accused.
[11] Ex P12.
Further, I am told that the swabs from the hands of the accused, while all displaying the presence of lead, antimony and barium, also contained aluminium.
It is a new development in firearms that they contain aluminium and no testing was done of the cartridge located by police to see if the cartridge had lead, barium and antimony but more particularly the aluminium now often associated with these three elements.
It is impossible to say, therefore, based on any scientific testing that the gunshot residue on the hands of the accused was likely to have come from the firing of the projectile or near presence by the accused to the firing of the projectile which must have emanated from the cartridge case located by police.
The difficulty for the prosecution is that, while the hands of the accused displayed the presence of gunshot residue, the gunshot residue does not necessarily have to have been deposited from the actual firing of a firearm. It could have arisen through close proximity to the discharge of a firearm or from contamination. For example by touching parts in a vehicle that had been contaminated either by another person or by a weapon having been fired in the vehicle.
I would be prepared to accept beyond reasonable doubt that it was the accused who was outside some premises when the witness left for work that morning. In my view this results from a combination of the fact that his description matched the description given of that person and that a firearm discharged while the defendant was present on the corner as evidenced by the firearms residue on the accused’s hands. There is also the evidence that he was in the vicinity a short time later, that there was a noise consistent with the discharge of a firearm and that a shell was located near where the noise was heard to emanate from.
I do not think all these things were coincidence. I think they were associated. I have no doubt that the accused can nominate the person who fired the shot.
I do not think, however, that the evidence of the firearm residue on his hands proves that he fired the firearm which left the cartridge in the street.[12]
[12] Ex P2, Photo 4 & 5.
It remains open that someone else may have fired the firearm in his presence or that contamination occurred when the firer got into the car with the firearm that the accused was in.
Nor do I think that proving that the accused fired the firearm without more establishes beyond reasonable doubt that he was in possession of it at the time that he fired it.
I do not think that the mere holding of an object when in the presence of its owner constitutes possession of it. In my view it remains a possibility that someone else possessed the firearm and gave it to the accused at the scene to fire and then retrieved it from the accused. That view of the facts always remains a possibility and on that view of the facts I do not accept that possession by the accused has been proved.
Summary
In conclusion I reiterate that I think the combination of facts is sufficient to show that the accused was present at the junction when a firearm was discharged and that the firer got in the Holden vehicle that the accused was located in. The accused may well have been the firer but I cannot be satisfied of that beyond reasonable doubt because he may simply have been present when someone else fired. His hands may have received contamination when the gun and / or the firer got placed in the Holden Commodore motor vehicle.
The witness said that she thought there were one or two people in the Holden Commodore motor vehicle at the time she observed the accused and when police attended and located the vehicle there was two people in it apart from the accused.
It always remains possible that one of those two persons may have been the firer.
Police did not attempt to swab the hands of the two other persons in the vehicle. If they had done so and there was no sign of firearms residue on either of those two persons it would have significantly supported the inference that it was the accused who did the firing.
It remains, therefore, a reasonable possibility that one of those two may have fired and not the accused.
It is unlikely that the two people in the car would have cooperated voluntarily in providing samples as they had not cooperated in providing statements.
It may be that a compulsory taking of samples from them could have been justified under the search power. Otherwise, it may be that consideration should be given by the authorities to making compulsory the providing of samples by persons associated with an accused person so as to afford evidence by elimination of potential suspects.
Verdict
In all the circumstances I am not satisfied beyond reasonable doubt that the elements of the offence have been proved beyond reasonable doubt and I return a verdict of not guilty.