R v NIKOLIC - [2019] SADC 146

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NIKOLIC
[2019] SADC 146
Reasons for Ruling of His Honour Judge Cuthbertson
25 September 2019
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - OFFENCES - OTHER OFFENCES AND MATTERS
The prisoner pleaded guilty to various offences relating to possession of firearms and accessories – where prisoner was the subject of a Firearms Prohibition Order – where prisoner deemed to have possession of the relevant items pursuant to s 45(16) of the Firearms Act 2015 – where permission granted for prisoner to give evidence to establish a lack of knowledge of the firearm – whether prisoner had knowledge of the presence of the firearm.
Firearms Act 2015 ss 45, referred to.
Re Knowles [1984] VR 175, considered.

R v NIKOLIC
[2019] SADC 146
Introduction

The prisoner pleaded guilty to the following five firearms offences committed on 14 March 2018:
·Three counts of Contravening a Firearms Prohibition Order;
·One count of Possessing a Category H Firearm, being a Ruger Mk II self-loading pistol; and
·One count of Possessing a Firearm without Identifying Marks.
The contraventions relate to a firearm, a sound moderator (silencer), a detachable magazine and handgrips, which were all found inside a shed which was leased to the prisoner and located on a commercial property on Harcourt Crescent in Elizabeth North.
The prisoner was subject to a Firearms Prohibition Order which was issued against him on 4 July 2014 and personally served on him on 15 August 2014, preventing him from possessing any firearms. (see Firearms Act, s 45(2))
He was also subject to a bail agreement which included a condition that he not possess a firearm or any part of a firearm.
The prisoner had pleaded guilty to the firearms offences on the basis that he would inevitably be deemed to have possessed the relevant items under the broad definition of “possession” under the provisions of the Firearms Act.
Section 45(16) states:
(a) If a person to whom a firearms prohibition order applies—
(i)is on or in premises or a vehicle, vessel or aircraft (other than any premises, vehicle, vessel or aircraft to which the public are admitted) when a firearm, a firearm part, a sound moderator or ammunition (a relevant item) is on or in, or in the immediate vicinity of, the premises, vehicle, vessel or aircraft; or
(ii) …
the person will be taken to possess the relevant item unless it is proved that the person did not know, and could not reasonably be expected to have known, that the relevant item was on or in, or in the immediate vicinity of, the premises, vehicle, vessel or aircraft; …
The prisoner made application to call evidence to establish that, although caught by the extended definition of “possession”, the prisoner was entitled to seek to establish, by evidence, that he did not actually know of the presence of the firearms which were located and therefore the extent of his offending was less serious.
I allowed the application and permitted the prisoner to give evidence before me.
Circumstantial Evidence
The case for both the prosecution and the defence relies significantly on circumstantial evidence.
The items of circumstantial evidence tending to establish that the prisoner knew of the presence of the firearm that was located in the black plastic tub are as follows:
1.   The prisoner was the lessee of the premises (namely the shed) in which the pistol was located.
2.   The prisoner, at the relevant time, was using the shed to house belongings and in particular a truck and trailer and maintenance equipment and had full access to the shed at any time.
3.   An orange bench located in the shed, near where the black tub containing the pistol was located, contained business cards, airplane tickets and a welding helmet which belonged to the prisoner.
4.   The prisoner’s welder was located next to the orange bench.
5.   The prisoner was present at the shed when the police attended.
6.   The pistol had on it DNA strongly consistent with being from the prisoner and the DNA of no-one else.
7.   If the DNA on the pistol was a transfer from DNA on the towel in which it was wrapped, then the prisoner (or someone with an extremely similar DNA profile) must have had contact with the towel in which the pistol was wrapped so as to deposit the DNA.
8.   Nothing in the black tub has been shown to belong to anyone else apart from the prisoner.
9.   In 2007 the prisoner showed an interest in hand guns by possessing a Colt 45 handgun. (Agreed Fact No 1)
Items of circumstantial evidence supporting the proposition that the prisoner had no knowledge of the firearm located are as follows:
1.   The premises were subleased by the prisoner to, or at least shared with, a person named Zunic who conducted a motor vehicle repair business on the premises and therefore had 24 hours access to the premises.
2.   Two other people in addition to Zunic had access to the premises, Cody Nicholls & Darren Willing. They could therefore have been the persons responsible for the pistol in the black tub.
3.   The three persons have previously had possession of illicit firearms suggesting that they had a propensity to use or possess illicit firearms and an interest in unlawful firearms and were each therefore more likely to be the persons responsible for the possession or location of the pistol. (See Re Knowles [1984] VR 175)
4.   The accused denied any knowledge of the firearm that was located.
5.   Fingerprints of a person known to police were located on the biscuit tin, and the prisoner’s fingerprints were not located on the biscuit tin.
Discussion
The most significant piece of evidence is that DNA consistent with belonging to the prisoner was on the firearm that was located, and no other DNA profiles were located on it. From this I infer that the prisoner had more than a fleeting contact with the firearm. I find the presence of DNA on the firearm consistent with being from the offender on the firearm to be much more indicative of guilt than the absence of the prisoner’s fingerprints on the biscuit tin to be indicative of innocence.
The prisoner has not given any explanation as to how his DNA might have been located on the firearm other than to indirectly suggest that it may have been a transfer from the towel in which the firearm was wrapped. Another similar towel was located at the premises thus giving credence to the prisoner’s theory that the transfer of DNA may have taken place from the towel which may have been a towel used by the prisoner, and then used by a third person to wrap the firearm.
I must also have regard to the fact that the prisoner gave evidence and denied having had any contact with the firearm. He stated that most of the objects in the shed had been moved in there from the old shed by other persons, as the prisoner himself was too busy working to move the items.
It is true that other people occupied the premises and also kept belongings there. However, in my view, this does not rebut the strength of the DNA evidence.
The most likely explanation for the presence of DNA consistent with being from the prisoner on the firearm is that he has touched the firearm. The explanation that there may have been transfer from the towel is a less likely explanation, especially given the strength of the indication of the DNA of the prisoner. It requires acceptance of the following propositions:
1. The towel was used by the prisoner.
2. DNA of the prisoner got on the towel.
3.DNA from the towel, which was DNA of the prisoner’s and no-one else’s, got on the pistol. By some process of contamination or touching.
In my view the most likely explanation is that the DNA of the prisoner is on the pistol because the prisoner had been touching the pistol.
My view is that it is more likely for a transfer to the weapon to take place if touched directly by the human hand rather than by a towel and then transferred to the firearm.
I find the defence theory less probable than what is suggested by the circumstantial case for the prosecution. No other person’s DNA was located on the towel, neither those using or living in the house, nor any other profile belonging to someone who the defence say actually wrapped up the pistol. The fact that no other person’s DNA was located on the towel leads me to believe that the prisoner is the only person that has come into contact with the towel and therefore the firearm. This is probable having regard to the other circumstantial evidence.
The onus of proof is on the defence on the balance of probabilities. In my view the most likely explanation is that the DNA of the accused is on the pistol because the prisoner has been touching the pistol. The fact that it was there at his premises, that he was there at the same time, that the pistol wasn’t hidden (although it was wrapped up in a towel and placed at the bottom of the black plastic tub) and the fact that he has touched the pistol leads me to the view that the prisoner has touched the pistol because he possessed it.
It follows that I find that it is more likely than not that the prisoner was aware of the presence of the firearm.
The items of circumstantial evidence combined leave me to the view that probably the accused knew of the presence of the firearm in his shed at the time it was located by the police and actually possessed it. He will be sentenced on that basis.