R v NC
[2020] ACTSC 196
•18 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NC |
Citation: | [2020] ACTSC 196 |
Hearing Dates: | 17-18 June 2020 |
DecisionDate: | 18 June 2020 |
Before: | Ashford AJ |
Decision: | See [22]-[23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – possess firearm – trafficking in a controlled drug other than cannabis namely 3,4-methylenedioxymethylamphetamine – three summary charges – consideration of the evidence |
Legislation Cited: | Firearms Act 1996 (ACT) ss 10, 11 |
Parties: | The Queen (Crown) NC (Accused) |
Representation: | Counsel M Dyason (Crown) S Whybrow (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Numbers: | SCC 234 of 2019; SCC 233 of 2019 |
ASHFORD AJ:
The accused, NC, is before me, having pleaded not guilty to the following charges on the indictment:
(a)firstly, that on 22 April 2018 at Canberra in the Australian Capital Territory NC possessed one prohibited firearm he was not authorised by licence, permit or otherwise under the Firearms Act 1996 (ACT) (the Firearms Act) to possess the firearm, this being a Stevens 235 model shotgun, bearing serial number 438789; and
(b)secondly that, further, on 22 April 2018 at Canberra in the Australian Capital Territory NC trafficked in a controlled drug other than cannabis, namely, 3,4-methylenedioxymethylamphetamine, or MDMA.
He has pleaded not guilty to each of those charges.
This is a judge alone trial pursuant to s 68B of the Supreme Court Act 1933 (ACT).
General principles
The Crown must prove its case beyond reasonable doubt. The accused is presumed to be innocent. As long as there is a reasonable doubt the accused must be found not guilty.
I must rely upon the evidence in making findings of facts. I must assess the evidence dispassionately and rationally. I must apply my common sense. I must bring an open and unbiased mind to the evidence.
The Crown’s case
The Crown’s case has been shortened and is now closed. A number of statements of police officers have been tendered in evidence, along with evidence of firearms and armoury team specialist operations, DNA analysis and in respect of the items noted on the indictment, namely, the firearm and the prohibited substance. Oral evidence was also called of Senior Constable Michael Fawkner, who was in charge of an operation to conduct a search warrant on premises in Belconnen, ACT being 181/41 Chandler Street, known as the Altitude Apartments.
At the conclusion of the Crown case, counsel for the accused has submitted there is no case to answer and the accused should be acquitted of these charges.
I read all the statements which have been tendered. I have heard the evidence of Senior Constable Fawkner.
I have heard submissions from both parties. A number of matters are agreed. The accused leased the property in Belconnen. This is a two-bedroom apartment. The premises are secure premises, in that a swipe card is required to gain entry to the building and also to the carpark. A key is required to enter the actual apartment. I am advised that some eight swipe cards were issued, and it is not known how many entry keys, nor is it known to whom those keys were issued.
It is agreed that no DNA was identified as being that of the accused was found on any of the property the subject of these charges. The accused submits that as of April 2018, at the time of the police entry to his property, he was in Queensland and the police rang him whilst he was there. The Crown does not submit there is evidence to dispute that. It is admitted the accused is not the holder of any firearms licence. It is agreed DNA evidence of a person named [redacted] was located on the ammunition, and he has been the subject of police proceedings.
The accused was seen at an earlier time collecting a person known as DC from the airport, and that person had been the subject of high-level police investigation and surveillance, involving multiple offenders and dealers in drugs, but it was conceded the accused had no other direct link to that operation and the police had no direct evidence of the accused being implicated in possessing or dealing with any drugs. There is no evidence of the accused spending or living beyond his means at the time of the offence. Clearly, no DNA evidence was found to link the accused to the drugs found in his apartment nor to the firearms.
Consideration
Count 2
In respect of the charges, it seems the accused's prior association with DC and the evidence that DC’s phone placed him in the vicinity of the accused's apartment gave rise to a suspicion of the accused being implicated, but I cannot exclude the possibility that someone other than the accused was the person responsible for the drugs found or for that equipment.
The accused was not present in the apartment. There were multiple entry cards and there is no direct evidence to implicate him in relation to the drug matter. Thus, I am satisfied beyond reasonable doubt that the doubt in respect of the second count is not proven, and I find the accused not guilty of that Count 2.
Count 1
Consideration after the close of the Crown’s case
In relation to the firearms charge, Count 1, s 10 of the Firearms Act applies. Clearly, this firearm and the ammunition was at the premises leased by the accused. There was no DNA of the accused on the firearm or on the ammunition, but DNA evidence of another person was found on the ammunition. There is no forensic evidence to link the accused to that property.
The Crown submits that it is open to the Court to conclude the accused knew the items were there. Section 11 of the Firearms Act relates to evidence of possession of firearms at premises and subsection (1) states:
For this Act, a person is not taken to have possession of a firearm only because
the firearm is at premises owned, leased or occupied by the person if—
(a) the person does not know that the firearm is at the premises; or
…
However, subsection (2) places the onus upon the accused, to show the evidential burden in relation to ownership, and I have not heard anything in relation to that. Accordingly, at this time I believe the matter should proceed in relation to Count 1.
Consideration after the close of the accused’s case
If I just deal with this very shortly, I would appreciate if the parties would tell me at the end of it if they want me to expand on the reasons given or not. Otherwise, I will have the judgment taken out as is along with these comments as well.
I have heard submissions and read the Firearms Act. I note that since my initial comments, the accused has now given evidence as to his not knowing of any reason why those items would be in his apartment and denying that they were his.
The accused said specifically that he knew nothing of the briefcase, of the gun or the ammunition. I have no reason to doubt that evidence and I am satisfied from hearing that evidence that he has discharged the evidentiary burden that was required by s 11(2) of the Firearms Act.
I am also satisfied, of course, that the other provisions of the Firearms Act apply. However, on the evidence of the accused of the fact that others could access his apartment, that he had a number of friends to whom he, at various times, he had given access keys, there is no reason for me to find other than that.
The Crown has not discharged the onus beyond reasonable doubt, and I accept the accused to be not guilty of Count 1 as well.
Orders
Accordingly, I formally enter a verdict of not guilty on each of the two charges (CC2018/13920; CC2018/14121).
Having made specific findings of not guilty in relation to the principle charges on indictment, I am satisfied that the onus has not been discharged beyond reasonable doubt in relation to the summary charges (CAN 14122/18; CAN 14123/18; CAN 9059/19). Accordingly, I enter a verdict of not guilty of each of those charges and they are dismissed.
| I certify that the preceding twenty-three [23] paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ashford. Associate: Date: |
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