R v Miller - [2025] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MILLER
Criminal Trial by Judge Alone
[2025] SADC 100
Reasons for the Verdict of Her Honour Judge Mackenzie
5 August 2025
CRIMINAL LAW - FIREARMS - POSSESSION - AGGRAVATED OFFENCE
Police attended a triple zero call to a house at Jarvis Avenue, Murray Bridge in the early hours of the morning on 25 February 2023 and saw the accused in the front yard of a neighbouring property crouching behind a bush. Shortly after the accused was apprehended and arrested for another offence, police found a firearm under the same bush where the accused had been. The firearm was loaded with one live bullet. DNA analysis revealed an “extremely strong” statistical weighting for the accused being a contributor to a mixed DNA profile on the firearm. The accused did not hold a firearms licence.
The critical issue was whether the accused was in possession of the firearm for the purposes of s 6(2)(a) of the Firearms Act 2015 (SA). The prosecution case was that the body of circumstantial evidence showing where and when the firearm was found, together with evidence that the accused’s DNA was on the firearm, established that the accused was in physical possession of the firearm shortly prior to his arrest.
The accused elected not to give evidence or to call any witnesses. The accused contended that the circumstantial evidence relied upon by the prosecution was not sufficient to exclude any reasonable explanation consistent with his innocence.
Held:
The cumulative weight of the circumstantial evidence was such that the only rational inference available was that the accused was in physical possession of the firearm. The presence of the accused in the front yard of the house crouching by the very same bush where the firearm was found minutes later provided a compelling link between the accused and the firearm when viewed in the context of the circumstantial evidence as a whole. The hypotheses consistent with the accused’s innocence, namely that firearm may have belonged to the owners or occupiers of the house or to any unknown and unidentified person (including the other contributors to the mixed DNA profile), are excluded by the combined force of the circumstantial evidence.
Verdict: guilty
Firearms Act 2015 (SA) ss 6(2), 8(2), 9(1), 9(7), 9(8), referred to.
R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68; R v Dookheea (2017) 262 CLR 402; De Silva v R (2019) 268 CLR 57 (2019) 94 ALJR 100; Knight v The Queen (1992) 175 CLR 495; Shepherd v The Queen (1990) 170 CLR 573; Barca v The Queen (1975) 133 CLR 82; R v Hillier (2007) 228 CLR 618; The State of Western Australia v Rayney [No 3] [2012] WASCA 404, considered.

R v MILLER
[2025] SADC 100
Introduction

In the early hours of the morning on 25 February 2023, police responded to a triple-zero call from a house at 80 Jarvis Avenue, Murray Bridge concerning a disturbance at that address. Upon arrival at the scene, at about 1:15 am, Senior Constable Flavel observed the accused crouching behind a bush in the middle of the front yard of the neighbouring house at 78 Jarvis Avenue. When SC Flavel got out of the police vehicle the accused stood up and began running towards the adjacent house at 76 Jarvis Avenue. SC Flavel apprehended the accused in the front yard of 76 Jarvis Avenue and arrested him for being on premises for an unlawful purpose.[1] While the accused was handcuffed and on the ground, SC Flavel put on gloves and conducted a safety search of him; in so doing he touched the accused’s hands and arms, skin and clothing.
[1] Section 17 of the Summary Offences Act 1953 (SA).
Shortly following the accused’s arrest, at or about 1:24 am, SC Flavel commenced to search the front yard of 78 Jarvis Avenue and found a BBM Olympic 6 starting Revolver (the Revolver) at the base of the same bush where he had first seen the accused crouching. SC Flavel, wearing gloves, picked up the Revolver to examine it. He cannot recall if he had changed gloves between the physical search of the accused and handling the Revolver, though it was his usual practice to do so. He held the Revolver by its wooden grip and unlatched the revolving cylinder to find it loaded with a live single .22 calibre bullet and a single spent cartridge. He removed the live bullet from the cylinder. He placed the Revolver in a paper bag and took it back to the police station where it was placed in a locked box container.
A police officer with ballistics expertise, Officer Sanders, later categorised the Revolver as a “category H” firearm for the purposes of s 5(1)(e) of the Firearms Act 2015 (SA) (the Firearms Act) because it was a “handgun” as defined by s 5(2) of the Act.
The Revolver was wet and dry swabbed for deoxyribonucleic acid (DNA) and sent to Forensic Science SA for testing. Forensic examination of the swab produced an “extremely strong” statistical weighting that the accused was a contributor to a mixed sample on the firearm, with the probability of obtaining the DNA evidence being four billion times greater if the accused is a contributor than if he is not a contributor to the mixed DNA profile.
The accused is charged with the following offence:
Count 1:
Offence Details:
Aggravated Possessing a Firearm Without a Licence (Section 9(1) of Firearms Act 2015 (SA)).
Particulars
Joe Lucas Miller on the 25^th day of February 2023 at Murray Bridge, possessed a Category H firearm, namely a ‘BBM’ Olympic 6 single and double action Revolver without holding a firearms licence authorising possession of that firearm.
Circumstances of aggravation
It is further alleged that the firearm to which the offence relates was loaded.
The accused pleaded not guilty to the charge and elected to be tried by a judge sitting without a jury.
The issue in dispute
The contest at trial centred on whether the prosecution has proved beyond reasonable doubt that the accused was in possession of the Revolver found under the bush in the front yard of 78 Jarvis Avenue.
The prosecution case is that accused was in physical possession of the Revolver at about 1:15 am on 25 February 2023 and that he left it under the bush where he had been seen crouching in the front yard of 78 Jarvis Avenue shortly after the police arrived.
The defence case is that the prosecution has failed to prove that the accused had possession of the Revolver. The defence contends that other reasonable hypotheses consistent with innocence of the accused have not been excluded by the evidence. The defence submits that the Revolver may have belonged to the owners or occupiers of 78 Jarvis Avenue (who were not approached or questioned by police) or to any unknown and unidentified third person (including “Nathaniel” who the accused was heard complaining about on his arrest or any other unidentified person who contributed to the mixed DNA profile extracted from the Revolver).
Elements of the offence
The elements of the offence of possessing a firearm without a licence which the prosecution must prove beyond reasonable doubt are:
(i)The accused was in possession of a firearm. The prosecution case is that the accused was in physical possession of the Revolver pursuant to s 6(2)(a) of the Firearms Act. This is the only element of the offence which is in dispute.
(ii)The item possessed was a firearm (in this case a category H firearm). There is no dispute that the Revolver found at 78 Jarvis Avenue met the definition of a “firearm” pursuant to s 4(1) of the Firearms Act, and that it was a “Category H” firearm for the purposes of s 5(1)(e) of the Firearms Act.
(iii)The accused did not hold a firearms licence authorising possession of that firearm at the relevant time. It was an agreed fact between the prosecution and defence that the accused had never held a firearms licence.[2]
[2] T60.
Section 6 of the Firearms Act defines “possession” for the purposes of an offence against s 9 of the Act. It relevantly states (emphasis added):
(1)     This section applies to the following items:
(a)     a firearm;
…
(2)For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if—
(a)     the person has physical possession or control of the item or has the item in the physical possession or control of another; or
…
The prosecution relied on the accused being in physical possession of the Revolver pursuant to s 6(2)(a) of the Firearms Act. The case for the prosecution was that the accused had “physical possession” of the Revolver shortly before he ran away from the bush in the front yard of 78 Jarvis Avenue where he had been crouching down. The prosecution case was that the accused had been holding the Revolver prior to leaving it behind in the bush when he ran away.
Aggravating Circumstances
The charge is for an aggravated offence under s 9(7) of the Firearms Act. To prove a circumstance of aggravation in this case the prosecution must prove beyond reasonable doubt that the firearm in the accused’s possession was loaded (irrespective of whether the accused knew it was loaded). Pursuant to s 9(8)(e) of the Firearms Act a firearm is taken to be loaded if a round is in the breech, barrel or chamber of the firearm or in a magazine comprising part of or attached to the firearm.
It was uncontroversial that the Revolver found under the bush was loaded with one live bullet contained in the cylinder of the Revolver, which was likened to a magazine.[3]
[3] T26.9-25; T29.12.
General directions
Before addressing the evidence at trial and providing an explanation of my findings and reasons, I set out some preliminary matters which have guided my consideration of the evidence before me. In so doing, I note that it is not necessary for me to replicate every direction that would be given in a summing up to a jury.[4]
[4] R v Winner (1995) 79 A Crim R 528 at 30-531, cited in R v Keyte (2000) 78 SASR 68 at [54].
The prosecution bears the onus of proving the guilt of the accused. The accused is presumed innocent of the charges unless and until the evidence I accept satisfies me that every element of the offence has been proved beyond reasonable doubt.[5] The issues in dispute cannot be resolved by making a mere choice as between the conflicting bodies of evidence.[6]
[5] R v Dookheea (2017) 262 CLR 402 at [41].
[6] De Silva v R (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]–[11].
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of an offence unless the evidence which I accept satisfies me of his guilt beyond reasonable doubt. If having considered all of the evidence, I am unsure where the truth lies in relation to the charge, my verdict must be not guilty.
I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of a witness’ evidence.
In this case, witnesses have been called to give expert evidence. I note that persons who are qualified in a particular area may express an opinion. That opinion must be within their particular area of expertise and that opinion must be based on their knowledge, training or experience. I am entitled to accept or reject any opinion evidence however before doing so I must consider the person’s qualifications, whether their opinion is based upon a fact I accept, whether the opinion is in dispute and whether it fits with any other evidence that I have heard and accepted on that topic.
I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy or prejudice and not be influenced by public opinion in relation to this matter.
Circumstantial evidence direction
The prosecution case that the accused possessed the firearm the subject of the charge is circumstantial. To prove possession, the prosecution relies on two bodies of circumstantial evidence.
First, those facts relevant to the Revolver being found by police under a particular bush in the front yard of 78 Jarvis Avenue, being the same bush which the accused had been seen crouching behind a short time earlier when the police arrived in response to a triple-zero call from 80 Jarvis Avenue.
Secondly, the DNA evidence from the Revolver establishing an “extremely strong” probability that the accused was a contributor to the mixed DNA analysed by Forensic Science SA.
I pause to note that the prosecution confirmed in their closing address that they did not contend for any inferences to be drawn from any evidence that might be deployed to establish consciousness of guilt of the accused, including because the accused was seen to be hiding in the front yard and then running away from police when they arrived at 78 Jarvis Avenue. The defence nevertheless sought to address those matters in written submissions handed up during closing.[7] I have not made any finding as to the accused’s consciousness of guilt and I have taken care not to draw any inference against the accused from the evidence that he was hiding or ran from the police.
[7] Written Submissions of the Defendant [11] and [12].
An assessment of circumstantial evidence is to be conducted holistically. Individual items of circumstantial evidence are not to be discarded or ignored in the fact-finding process because, viewed in isolation, they are incapable of sustaining an inference for which the prosecution contend. My task is to identify the evidence which I accept; the facts which I find established by the evidence and the rational and logical inferences I am prepared to draw from those facts and ask whether I am satisfied beyond reasonable doubt that the accused was in physical possession of the Revolver at or about 1:15 am on 25 February 2023.
As the prosecution case rests wholly upon circumstantial evidence, the prosecution will not have proved the offence beyond reasonable doubt unless I can exclude any reasonable hypothesis or rational explanation arising on the evidence that is consistent with the innocence of the accused. The primary defence hypotheses are that the owners or occupiers of 78 Jarvis Avenue, or a person the accused referred to as “Nathaniel”, or some unknown and unidentified third parties (perhaps those who contributed to the mixed DNA profile on the Revolver), were responsible for the Revolver being under the bush.
It is not for the accused to persuade me that an inference or hypothesis consistent with his innocence is open on the evidence, an accused person must be given the benefit of the doubt necessarily created by those circumstances.[8] Before the accused can be convicted, not only must I conclude that guilt is a rational inference, but I must also conclude that it is the only rational inference which can be drawn from the circumstantial evidence.[9]
[8] Knight v The Queen (1992) 175 CLR 495 at 503.
[9] Shepherd v The Queen (1990) 170 CLR 573; Barca v The Queen (1975) 133 CLR 82.
I am to consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference. I am not required to analyse each circumstance individually. I must consider the weight which is to be given to the united force of all the circumstances. One piece of evidence may resolve a doubt about another.[10]
[10] R v Hillier (2007) 228 CLR 618.
It is not for the defence to establish that some inference other than guilt should reasonably be drawn from the evidence, or to prove particular facts which would tend to support such inference. If the evidence viewed as a whole is susceptible of a reasonable alternative explanation then the accused is entitled to be acquitted.
My resolution of the case depends upon my assessment of all the evidence and that includes, of course, not just inferences in favour of the prosecution but inferences available, explanations made and submissions put forward on behalf of the accused.
In this case the prosecution must exclude as a reasonable possibility that another person was responsible for the Revolver being found in the front yard of 78 Jarvis Avenue, such as the owner or occupier of, or a visitor to, that house. That means the prosecution must establish that the only rational inference open on the evidence is that at or about the time the police arrived at 78 Jarvis Avenue the accused was in possession of the Revolver and left it in the bush where he had been crouching; that position cannot be reached by speculation and requires that inferences only be drawn if facts proven by the evidence properly support the drawing of the inferences.[11] There must be no other rational inference open on the evidence.
[11] The State of Western Australia v Rayney [No 3] [2012] WASC 404 at [28]-[30] per Martin AJ (citing Dixon CJ in Martin v Osborne (1936) 55 CLR 367).
Summary of the prosecution’s case
The prosecution submitted the accused’s possession would be proved beyond reasonable doubt on the basis of the accused’s DNA being found on the Revolver, in combination with the Revolver being found by police in the front yard of 78 Jarvis Avenue at the base of the bush where the accused had been hiding shortly before his arrest.
The main issue at the trial was therefore whether the prosecution proved beyond reasonable doubt that the accused was in possession of the firearm in the early hours of the morning of 25 February 2025 at 78 Jarvis Avenue, Murray Bridge.
At the end of the prosecution case, the accused indicated that he would neither give nor call evidence in his defence. This was his right and I draw no adverse inference against the accused for exercising his right. I have not used the accused’s silence as a makeweight or to fill any deficiencies in the prosecution case. The accused’s silence does not make the prosecution case stronger or lend any support to the inferences which the prosecution contend should be drawn. To so reason would be to undermine the accused’s right to silence. Plainly enough, the fact that the accused elected not to give evidence does not alter the burden of proof which remains fixed on the prosecution; nor does it affect the weight that must be given to the presumption of innocence.
The Evidence
The prosecution called SC Flavel (who had since retired from the police force), Officer Sanders (who had also retired, but at the relevant time had worked as a forensic firearms examiner for the police), Dr Reither (a forensic scientist who worked in DNA analysis for Forensic Science SA), Brevet Sergeant Bedford and Brevet Sergeant Jonas.
The following facts were also agreed between the parties:[12]
1. As at 25 February 2023, the accused was not the holder of a firearms licence.
2. The accused has never been the holder of a firearms licence.
[12] T60.8-12.
SC Flavel
SC Flavel was the police officer who saw the accused hiding in the bush arriving at 78 Jarvis Avenue, Murray Bridge, and who later found the Revolver in the front yard of that house.
SC Flavel gave the following evidence relating to the events that occurred in the early hours of 25 February 2023:
(a)he was working as a police officer at Murray Bridge;
(b)he responded with two other police officers to a triple-zero call to 80 Jarvis Avenue, Murray Bridge;[13]
[13] T6.27.
(c)they arrived at the address in their police vehicle at approximately 1:15 am, without any lights or sirens activated, and he recalled that it was “pretty dark” with streetlights being further down the street;[14]
[14] T13.17.
(d)upon arrival at the scene, he saw a person (who he now knows to be the accused) crouching behind the middle smaller bush in the front yard of 78 Jarvis Avenue;[15]
[15] T8.37. Exhibit P2 - Image 6.
(e)he left his car and the accused stood up and began running to the adjacent house at 76 Jarvis Avenue;[16]
[16] T9.6.
(f)he then began to chase the accused and shouted out to him to “get on the ground” and the accused stopped and he was apprehended in the front yard of 76 Jarvis Avenue;[17]
[17] T9.16.
(g)he arrested the accused for being unlawfully on premises at around 1:17 am;[18]
(h)he put on gloves and searched the accused touching the accused’s skin, clothing and arms;[19]
(i)following the arrest and search, he went back to the police vehicle and then realised that no one had conducted a search of the front yard of 78 Jarvis Avenue, where the accused had first been seen crouching;[20]
(j)at around 1:24 am he commenced to search the front yard of 78 Jarvis Avenue;[21]
(k)he found a small Revolver in the “exact same position” at the bush where he had, minutes earlier, seen the accused crouching down;[22]
(l)he had on gloves when he picked up the Revolver, but he cannot remember whether he had changed his gloves since conducting the personal search of the accused;[23]
(m)he said it was his usual practice to change gloves after conducting a body search, but he could not recall if he did on this occasion;[24]
(n)he examined the Revolver and noticed it had two bullets inside the cylinder, one of them was a live bullet which he took out, the other was a spent cartridge which he did not remove;[25]
(o)he then put the Revolver in a paper bag and took it back to the police station to store in the locked box;[26]
(p)he did not continue searching the front yard after finding the Revolver, and he did not conduct any searches of 80 Jarvis Avenue.[27]
[18] T9.20.
[19] T15.15.
[20] T10.35.
[21] T11.11 [Also see Exhibit P4 at minute 5:28 of video].
[22] T11.12-20.
[23] T12.26.
[24] T12.28.
[25] T12.34.
[26] T12.38.
[27] T19.3-4.

A video of the body-worn camera (BWC) of SC Flavel at the scene was tendered.[28] The footage showed SC Flavel arresting the accused for being unlawfully on premises at about 1:17 am; at the time of the arrest the accused can also be heard complaining about “Nathaniel” and his money being stolen.[29] The gloves worn by SC Flavel for the search of the accused appear from the footage to be latex or rubber gloves.[30] The BWC footage also showed SC Flavel examining the Revolver and finding the two bullets, one live and one spent, inside the cylinder.[31]
[28] Exhibit P4.
[29] Exhibit P4.
[30] Exhibit P4.
[31] Exhibit P4.
I found the evidence of SC Flavel to be reliable and credible. His evidence was not challenged. An important deficit in his evidence was that he could not recall whether he had changed his gloves between the search of the accused and finding the Revolver. This concession was relied upon by the defence.
I pause here to note that SC Flavel gave evidence of his responding to a triple-zero call and his arrest of the accused for being unlawfully on premises. Other than for the confined purpose of allowing me to understand why the accused was apprehended at 76 Jarvis Avenue that evening, I have not taken into account in my assessment of the evidence that the accused was arrested for other offending. For the avoidance of doubt, I note that I have not drawn any inferences against the accused on the basis of the evidence of his arrest for another offence that evening.
Officer Sanders
Officer Sanders gave evidence as to the description of the Revolver and its categorisation under the Firearms Act. He held formal qualifications in forensic firearms and also had substantial experience in investigating forensic firearms matters for the South Australian police.[32]
[32] T21.33.
On 17 March 2023, he examined the Revolver that had been found by SC Flavel at 78 Jarvis Avenue on 25 February 2023, which had been referred from the police evidence desk to the ballistics unit in which he worked. He identified the Revolver as a BBM brand Olympic 6 starting Revolver, which had been designed to fire blank rounds, but had been modified to fire .22 rimfire ammunition or live cartridges.[33] He also determined that it had an overall length of 207 mm (being a standard form of measurement taken diagonally across the firearm).[34] He also identified the ammunition as one live and one spent cartridge in the rimfire calibre 22 long rifle, with the unfired round leaving an empty cartridge case in the cylinder. He then tested the gun and confirmed that it was capable of “successfully firing and discharging ammunition”.[35] He assessed the Revolver as being a handgun with a barrel shorter than 400 mm, designed to be aimed and fired from the hand and easily concealed due to its size and therefore being “Category H”.[36]
[33] T23.30.
[34] T25.38.
[35] T28.33-37.
[36] T28.12.
On cross-examination Officer Sanders did confirm that, if tested for, gunshot residue could be expected to be found on a person’s hand or the firearm itself if they had discharged the firearm.[37]
[37] T30.16.
There was no challenge to the expertise of Officer Sanders or to the evidence itself. I am satisfied that the evidence of Officer Sanders is credible and reliable.
Dr Reither
Dr Reither works in the Biology Section of Forensic Science SA in evidence recovery, screening examination and sampling. Amongst other qualifications, he has a PhD in trace DNA transfer, and also has substantial experience investigating DNA evidence for criminal matters.[38] He gave evidence about the general testing and analysis of DNA samples.
[38] T33.
Dr Reither gave evidence that several factors affect how much DNA is transferred, including the type of surface, the kind of DNA material, and an individual’s shedder status, which can vary throughout the day. He said that the nature of the surface someone makes contact with, be it plastic or cotton, can influence how much DNA is transferred; with a porous substrate, such as cotton, retaining more DNA than a plastic or glass surface would.[39] He said it was not possible to determine when DNA was placed on an item.[40]
[39] T42.15-24.
[40] T43.19-21.
He also explained the difference between direct transfer of DNA to an item and indirect transfer. He noted that “direct transfer” occurs when a person makes contact with a surface, such as by him picking up a water bottle where DNA from his hand would be expected to be left on the surface of the water bottle; and “indirect transfer” occurs where there is an intermediate surface between the source of the DNA and where it is collected from, such as if he shakes someone’s hand before picking up the water bottle, then the DNA of the other person may be transferred indirectly to the surface of the water bottle.[41] He said that it is not possible to determine whether DNA that has been deposited on an item was deposited by a direct or indirect transfer; and that he could not be specific about the transfer event that resulted in DNA being deposited on the surface of the item it is recovered from.[42] Dr Reither also said it was not possible to draw any conclusions about whether DNA was from a primary or secondary indirect transfer.[43]
[41] T44.1-31.
[42] T44.21-28.
[43] T44.29-31.
Particularly relevant to this matter, Dr Reither had been asked to review and provide his opinion about two reports that had been prepared by Dr Pinyon of Forensic Science SA dated 10 July 2023 and 5 February 2025 in relation to a DNA profile from the swabs taken from the Revolver.[44] An extract from one of those reports was tendered, being a summary of DNA analysis from the Revolver and from the reference sample (buccal or mouth swab) of the accused.[45] Dr Reither explained the summary as showing that:
(a)the DNA profile generated from the swabs taken from the Revolver is best explained as originating from three individuals, being a “mixed DNA profile”;[46]
(b)the reference DNA profile of the accused was compared to the mixed DNA profile from the Revolver;
(c)there were two alternative hypotheses or propositions considered in the analysis, being that the accused and two unknown individuals are the sources of the DNA – meaning the accused is a contributor to the DNA (referred to as “H1”) and that three unknown individuals are the sources of the DNA – meaning the accused is not a contributor to the DNA (referred to as “H2”);
(d)the result of the statistical weighting for these two hypotheses is that there is a probability of “four billion times greater” if the accused is a contributor, “rather than if he’s not a contributor to that mixed DNA profile”;[47]
(e)as a verbal expression of that statistical weighting, it can be said that there is “extremely strong” support that the accused is a contributor to the mixed DNA profile on the Revolver.[48]
[44] T44.36.
[45] Exhibit P7.
[46] T46.27-30.
[47] T47.3-7.
[48] T47.28-33.
There was no challenge to Dr Reither’s expertise to give the evidence on the DNA testing. I am satisfied the evidence that Dr Reither gave was credible and reliable.
BS Bedford
BS Bedford was the crime scene investigator for this matter. His qualifications and experience to give this commonly received evidence was not challenged and it is unnecessary to repeat it.
Relevantly, he gave evidence about his examination of the Revolver, and his swabbing it and sending it to Forensic Science SA for DNA testing. He said that he both dry and wet swabbed the Revolver; swabbing the “trigger, hammer areas and wooden handgrip”.[49] He confirmed that for each of the dry and wet swabs, the same swab was used to swab multiple areas of the Revolver and separate swabs were not used for different parts.[50] He did not find any suitable fingerprints on the Revolver for testing.[51]
[49] T52.24.
[50] T53
[51] T52.
BS Jonas
BS Jonas was the officer in charge of the investigation of this matter. She gave evidence that in the early hours of the morning on 25 February 2023 she was recalled to duty at the police station for investigation of this matter and was briefed by SC Flavel.[52] She personally took the accused’s DNA by buccal swab.[53]
[52] T56.3-8.
[53] T56.37-T.57.4.
In cross-examination, BS Jonas said that:
(a)she did not conduct a search of the accused’s home to find any other bullets or a holster that might match the Revolver;[54]
(b)she did not arrange for any gunshot residue swabs to be taken of the accused’s hands;[55]
(c)she did not make any enquiries of the owners or occupiers of 78 Jarvis Avenue where the Revolver had been found or cause other police officers to make those inquiries.[56]
[54] T57.30-38.
[55] T58.3-5.
[56] T58.6-14.
Other evidence
Through the witnesses, other evidence was tendered by the prosecution. I have already mentioned the summary DNA analysis[57] shown to Dr Reither and the BWC video of SC Flavel.[58] Also tendered were: a google map showing the location of Jarvis Avenue shown to SC Flavel when he was giving evidence;[59] a 7- page booklet of photographs, also shown to SC Flavel, which included images of 78 Jarvis Avenue and the bushes in the front yard;[60] and the Revolver itself.[61] The defence tendered some photographs of the gun, including one which had been labelled by Officer Sanders and filed by the prosecution.[62]
[57] Exhibit P7.
[58] Exhibit P4.
[59] Exhibit P1.
[60] Exhibit P7.
[61] Exhibit P3.
[62] Exhibits D5 and D6.
Defence case
The defence case is that the prosecution has not proved beyond reasonable doubt that the accused was in physical possession of the Revolver. The defence case is that the facts established by the prosecution leave open hypotheses consistent with the accused’s innocence. As I have mentioned, I remind myself that the accused bears no onus to establish these hypotheses.
The accused neither gave nor called evidence in his defence. He pointed to a number of matters, being: the mixed DNA profile contained on the Revolver and the possibility that there had been an indirect transfer of the accused’s DNA via SC Flavel’s gloves; the absence of testing for gunshot residue on the accused’s hands; the statements made by the accused when he was being arrested about him being in a dispute over money with someone named “Nathaniel”; the absence of police inquiries into the owners or occupiers of 78 Jarvis Avenue; and the absence of police searching the accused’s home for any indicia linking him to the Revolver, such as ammunition or a holster, which he submitted, together, leave open the hypothesis that someone else had responsibility for the Revolver and for it being left in the front yard of 78 Jarvis Avenue. I address these matters in further detail when considering the prosecution case below.
Consideration
The prosecution case as to possession, which was acknowledged to be entirely circumstantial, relied upon two bodies of evidence being considered in combination with one another, being:[63]
1. The police finding the Revolver in the front yard of 78 Jarvis Avenue under the same bush where police had minutes earlier seen the accused crouching.
2. The “extremely strong” statistical weighting of the accused being a contributor to the mixed DNA profile found on the Revolver.
[63] T61.8.
General discussion
In analysing these two bodies of evidence in the manner that follows, it should not be thought that I have looked at items of circumstantial evidence in isolation or in a piece meal way. The strength of circumstantial evidence is derived from its collective force. A piece of circumstantial evidence may itself be weak and incapable of sustaining an intermediate factual conclusion or inculpatory inference; yet, the combined strength of a number of weak items of circumstantial evidence may be sufficient to establish a fact or facts from which a further inference may be drawn.
I also remind myself that, unless they are indispensable to proof of the accused’s guilt, no intermediate factual conclusions said to be established by the circumstantial evidence needs to be proved beyond reasonable doubt. The drawing of legitimate inferences from circumstantial evidence is qualitatively different to an exercise in speculation. Inferences drawn from circumstantial evidence must have a logical and rational foundation in the evidence before me, which I must accept to be credible and reliable, and the intermediate facts I am satisfied are established by the evidence. This requires a process of reasoning which avoids speculation or conjecture to fill in any gaps in the evidence; it is up to me to decide whether I accept particular evidence and if I do, what weight, or significance it should have.
When analysing the contentions advanced on behalf of the accused, I have adopted a similar approach, evaluating the collective force of the points made, bearing in mind that the accused does not have to prove anything; he does not have to provide any explanation for the circumstantial evidence; he does not have to persuade me that inferences other than those drawn by the prosecution ought to be drawn from the evidence; and he cannot be found guilty of the charge unless I can: (i) reject any hypothesis consistent with his innocence arising on the evidence; (ii) conclude that guilt is the only rational and reasonable inference available on the evidence; and (iii) find that each element of the offence is proved beyond reasonable doubt.
Revolver found under the bush in the front yard
The principal case of the prosecution was that the accused was holding the Revolver at or about the time when he was crouched under the bush in the front yard of 78 Jarvis Avenue, Murray Bridge when the police vehicle arrived in the early hours of 25 February 2023 responding to a triple-zero call. Although there is no direct evidence of the police seeing the accused holding the Revolver, the prosecution submitted that I can infer as much from the circumstances in which the Revolver was found under the very same bush where the accused had been seen crouching minutes before.
The strength of the inference that the accused was in possession of the Revolver derives from the evidence given by SC Flavel about his arrival on the scene, his sighting of the accused crouching behind a particular bush in the front yard of 78 Jarvis Avenue and by his finding the Revolver, only minutes later, under the very same bush.
The finding of the Revolver under the same bush that the accused had been crouching moments prior to his arrest is powerful evidence that the accused was in possession of the Revolver that evening; it is circumstantial evidence of the accused’s temporal and physical proximity to the Revolver at the relevant time. The prosecution also relied on there being no evidence of any other person being found at the scene.[64]
[64] T60.38-T61.1.
I have also had regard to the following contextual matters:
·the police had been called to the area in response to a triple-zero call from 80 Jarvis Avenue in the early hours of the morning of 25 February 2023;
·the unusual time at which the accused was present in the front yard of 78 Jarvis Avenue;
·the so-called “bush” under which the accused was seen crouching, and under which the Revolver was later found, which I consider would be more accurately described as a small tree or shrub with some clearance underneath it such that the Revolver would not have been entirely concealed from view if left underneath it.[65]
[65] Exhibit P2 at images 6 and 7.
Counsel for the accused submitted that the proximity of the accused to the Revolver that evening was not capable of sustaining proof of possession beyond reasonable doubt. He contended, as there was no investigation by police of the occupants of 78 Jarvis Street, the prosecution had not excluded the reasonable possibility that the owners or occupiers of 78 Jarvis Street owned the Revolver or had been responsible for it being left in the front yard of their house. While he accepted the Revolver was an unusual item for someone to have left behind, he submitted that it was a small item that could have been easily transported to the property and left by anyone attending or living there.
He also said that the police had failed to exclude the possibility that the accused had attended 78 Jarvis Avenue looking for Nathaniel, who he had told police, on being apprehended, had taken his money; there was no evidence that the police had investigated those claims. He submitted this might have explained the accused’s presence and proximity to the Revolver in the front yard and the evidence of the prosecution has failed to exclude that possibility. He contended that it was integral to excluding any reasonable hypothesis of the accused being innocent that the prosecution prove “how, when and why” the accused was at 78 Jarvis Avenue that evening.
Counsel for the accused also submitted that the failure by police to conduct a further investigation into the accused by: (i) not searching his home to locate indicia linked to him having possession of the Revolver, such as further ammunition or a gun holster; and (ii) not carrying out any gunshot residue testing of the accused’s hands, which may have indicated whether he had been in contact with the Revolver when it had been discharged (evident from the spent cartridge still present in the cylinder), meant the prosecution has not excluded all other reasonable hypotheses consistent with the accused’s innocence.
When considering whether the prosecution has proved its case beyond reasonable doubt, I take into account those failures to investigate the owners or occupiers of 78 Jarvis Avenue or the accused’s own home for indica of his having had the Revolver in his possession; the absence of evidence about the gunshot residue on his hands; and the general failure to make further inquiries of the accused (including about the circumstances of his being at 78 Jarvis Avenue that night and whether it might have been in relation to his claims that Nathaniel had stolen money from him).
There is no general proposition of Australian law that a complete and unexceptional investigation of an alleged crime is a necessary element of the trial process, or indeed a fair trial.[66] I remind myself that I cannot speculate or guess about what the results of those further investigations might have yielded, and I must decide the case on the evidence before me. It is unknown in this case whether those further investigations would have inculpated or exculpated the accused. As will become apparent from my reasons below, the failure of the police to further investigate such matters did not cause me to hold any doubt as to the accused’s guilt on the evidence that was before me.
[66] Penney v R(1998) 155 ALR 605; [1998] HCA 51 at [18].
DNA evidence
The prosecution argued the DNA evidence should be considered in combination with the other evidence in determining whether there is a possible alternative explanation for the Revolver being found in close temporal and physical proximity to the accused at 78 Jarvis Street. The result of the analysis, being that there is extremely strong support for the accused being a contributor to the mixed DNA profile found on the Revolver, is something which the prosecution submitted I could ascribe weight to as part of the totality of the evidence.
The prosecution accepted that consideration would need to be given to the possibility that the accused’s DNA was transferred to the Revolver by the actions of SC Flavel by possibly not having changed his gloves. The prosecution relied on the evidence of Dr Reither that the DNA analysis methodologies used by Forensic Science SA could not determine whether any DNA located on an item was deposited there either by direct transfer or indirect transfer.[67] They submitted that the possibility that the accused’s DNA was only on the Revolver because it had been indirectly transferred by SC Flavel is a matter for how much weight I could place on the DNA evidence.
[67] T44.24.

Counsel for the accused submitted:
1.   the evidence of SC Flavel of his usual practice being to change his gloves after conducting a personal search did not matter because his evidence in this case was that he could not recall whether he did so on this occasion.
2.   even if the presence of the accused’s DNA on the Revolver was not as a result of indirect transfer by SC Flavel, the prosecution had not excluded that one of the two other contributors to the mixed DNA profile had not indirectly transferred the accused’s DNA to the Revolver; and that they were not all known to each other. He postulated that Nathaniel could be one of the two other contributors to the mixed DNA profile, and through knowing the accused Nathaniel might have indirectly transferred the accused’s DNA to the Revolver. He submitted that, without investigation having been carried out in relation to Nathaniel (including by comparison of his DNA on the Revolver) there was a possibility that indirect transfer of the accused’s DNA had in fact occurred via Nathaniel;
3.   the presence of the two unknown contributors to the mixed DNA profile raised a real possibility of another person being responsible for leaving the Revolver in the front yard of 78 Jarvis Avenue, and that possibility was enhanced where there had not been investigations into the owners or occupiers of that property.
When considering whether the prosecution has proved its case beyond reasonable doubt, I take into account those failures to conduct further investigations into: (i) the owners or occupiers of 78 Jarvis Avenue, as possible contributors to the mixed DNA profile on the Revolver; and (ii) the accused’s relationship with Nathaniel as a possible cause of the indirect transfer of the accused’s DNA to the Revolver, and possibly also connecting the accused to being at 78 Jarvis Avenue that night.
In view of those matters, I accept there is an issue about the strength of the inferences which I can draw from the DNA evidence. As I have noted earlier, Dr Reither gave evidence that an indirect transfer of DNA can occur, and it is not possible to determine whether and when such a transfer has taken place. In this case, I accept it is possible that the accused’s DNA was indirectly transferred via SC Flavel’s gloves when he searched the accused and then later picked up the Revolver because it is not certain whether he changed his gloves between those two events. I also accept that, without knowing the other contributors to the DNA profile found on the Revolver, there is a possibility that one of those other contributors might have been known to the accused, resulting in an alternative possibility for the indirect transfer of the accused’s DNA to the Revolver.
Conclusion
The issue for me is to determine, on the prosecution evidence, whether:
1. I can exclude any hypothesis arising on the evidence consistent with innocence of the accused; and
2. I am satisfied beyond reasonable doubt of the elements of the offence.
I accept the evidence of the prosecution witnesses as credible and reliable; there was no real challenge to their evidence. The forensic contest was the inferences to be drawn from their evidence.
As I have mentioned, there was no dispute that the Revolver found by SC Flavel was a category H firearm for the purposes of s 5(1)(e) of the Firearms Act. I rely on the evidence of Officer Sanders to satisfy me beyond reasonable doubt that the Revolver met the definition of a “firearm” under s 4(1) of the Firearms Act because it was a device that he recognised as a starter gun that had been modified to fire live ammunition; and he tested that it operated as such. He also measured its size and determined that it fell within the description of a “handgun” under s 5(2) of the Firearms Act, being a firearm with a barrel length of less than 400 millimetres that is designed or adapted for aiming and firing from the hand and is reasonably capable of being carried concealed about the person.
Further, there was no dispute that the accused did not hold a firearms licence for the purposes of the Firearms Act. That fact had been agreed between the parties.[68]
[68] T60.8-12.
As I have said earlier, the central issue in dispute relates only to the “possession” element of the offence and whether the prosecution has proven beyond reasonable doubt that the accused was in possession of the Revolver shortly before he was apprehended by SC Flavel in the early hours of 25 February 2023.
I am satisfied that the accused was in possession of the Revolver shortly prior to being apprehended by police in the early hours of the morning on 25 February 2023. I make that finding based upon the two bodies of circumstantial evidence linking the accused to the Revolver. I find the evidence of the Revolver being found under the very same bush behind which the accused was crouching in the front yard of 78 Jarvis Avenue when police arrived on the scene to be compelling evidence. What makes this evidence so compelling is not that the Revolver was found somewhere in the front yard of that residence; it is the fact that the Revolver was found in the very same place in that front yard where the accused had only minutes earlier been seen to be crouching down.
The presence of the mixed DNA profile on the Revolver does not detract from this compelling evidence of the accused’s temporal and physical proximity that evening. The extremely strong statistical weighting given to the accused being a contributor to the DNA profile on the Revolver is evidence of which I have taken into account. Though I accept that the DNA analysis raises the possibility that other people were in contact with the Revolver, and there is also a possibility that the accused’s DNA may have only been indirectly transferred to the Revolver, that does not cause me to doubt that the accused was in the possession of the Revolver while behind a bush in the front yard of 78 Jarvis Avenue in the early hours of 25 February 2023 when police arrived on the scene.
I have also carefully considered the hypotheses that the owners or occupiers of 78 Jarvis Avenue may have been responsible for the Revolver being in the front yard of the property, or that a person named Nathaniel, who the accused claimed stole money from him, was linked to the accused being in the front yard and the Revolver being found there. I have also considered the hypotheses that some other unidentified visitor may have left the Revolver in the front yard of 78 Jarvis Avenue.
I consider it inherently implausible that the owners or occupiers of 78 Jarvis Avenue or some unidentified person, or Nathaniel, would have left the Revolver under precisely the same bush in the front yard of 78 Jarvis Avenue where the accused was found crouching that evening. I consider those hypotheses defy common sense and logic. I am satisfied that the evidence is sufficient to exclude any hypotheses consistent with the accused’s innocence.
In making this finding, I have been mindful that beyond reasonable doubt is a heavy onus on the prosecution. I have also considered the deficiencies in the investigation and the absence of some evidence which the defence pointed to as being relevant to determining whether the prosecution has proved its case beyond reasonable doubt. Notwithstanding those matters, the irresistible inference I draw from the whole of the evidence before me is that the accused was holding the Revolver while crouched in behind the bush when the police arrived on the scene and it was found there minutes later by SC Flavel only because the accused dropped it there when he left the bush to run towards 76 Jarvis Avenue.
Aggravating factor
Lastly, I must consider whether the prosecution has proved beyond reasonable doubt the aggravating circumstance, being that the Revolver was loaded. For a category H firearm, the aggravating circumstance increases the maximum penalty from $35,000 or imprisonment for 7 years to $50,000 or imprisonment for 10 years. Ordinarily a mental element such as intention or knowledge would be required for proof of that circumstance. However, s 9(7)(a) states that all that must be proved is that the firearm to which the offence relates was loaded (irrespective of whether the offender knew that it was loaded).
Pursuant to s 9(8)(e) a firearm will be taken to be loaded if a round is in the breach, barrel or chamber of the firearm or in a magazine comprising part of or attached to the firearm. There was no dispute that the Revolver was loaded. In light of the evidence of SC Flavel that he found a live bullet in the cylinder of the Revolver when he picked it up to it examine it at the scene; and the evidence of Officer Sanders that the ammunition he was given to examine included a live bullet, I am satisfied beyond reasonable doubt that the Revolver was loaded.
Verdict
I am satisfied that the totality of the circumstantial evidence is such as to enable me to exclude any hypothesis that someone other than the accused left the Revolver under the bush in the front yard of 78 Jarvis Avenue that evening. The inference that the accused was holding the Revolver at the scene and left it under the very same bush where he had been crouching when police arrived is the only rational and reasonable inference that can be drawn from the circumstantial evidence.
I find all of the elements of the offence of aggravated possessing a firearm without a licence contrary to s 9(1) of the Firearms Act, proved beyond reasonable doubt. I find that the firearm was loaded with live ammunition.
My verdict must therefore be guilty.