R v Perzefi
[2013] SADC 129
•27 September 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PERZEFI
Criminal Trial by Judge Alone
[2013] SADC 129
Reasons for the Verdict of His Honour Judge Chivell
27 September 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
Charges of possessing a firearm without a licence, possessing an unregistered firearm, failure to secure a firearm and failure to secure ammunition. Issue - whether accused was in possession of the items.
Verdict: Guilty on all four counts.
Firearms Act 1977 s 5(14), s 11(1), s 23(1); Firearms Regulations 2008 reg 38(2), reg 41(1), reg 61; Juries Act 1927 s 7(1); Evidence Act 1929 s 34, referred to.
R v R, R & R, LJ [2008] SASC 35; Azzopardi v R (2001) 205 CLR 50; R v Weetra [2010] SASCFC 52; R v Karger (2002) 83 SASR 135; R v Burns (2009) 103 SASR 514; R v Power (1996) 87 A Crim R 407, considered.
R v PERZEFI
[2013] SADC 129Introduction
Mr Perzefi is charged with the following offences:
(1)Possessing a firearm without a licence, contrary to s 11(1) of the Firearms Act 1977 (‘the Act’). The particulars of that charge are:
Ludovic Perzefi on the 10th day of July 2012 at Prospect, had possession of a Class H firearm, namely a Harrington & Richardson Vest Pocket Safety Hammer single action revolver, whilst not holding a licence authorising possession of that firearm.
(2)Possessing an unregistered firearm, contrary to s 23(1) of the Act. The particulars of that charge are:
Ludovic Perzefi on the 10th day of July 2012 at Prospect, had possession of an unregistered Class H firearm, namely a Harrington & Richardson Vest Pocket Safety Hammer single action revolver.
(3)Failure to secure a firearm, contrary to regs 38(2) and 61 of the Firearms Regulations 2008. The particulars of that charge are:
Ludovic Perzefi on the 10th day of July 2012 at Prospect, failed to secure a Class H firearm, namely a Harrington & Richardson Vest Pocket Safety Hammer single action revolver, in accordance with the regulations.
(4)Failure to secure ammunition, contrary to regs 41(1) and 61 of the Firearms Regulations. The particulars of that charge are:
Ludovic Perzefi on the 10th day of July 2012 at Prospect, failed to secure ammunition in a locked container separately from firearms.
Mr Perzefi elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. He was represented by Mr I White. Mr M Foundas appeared for the Director of Public Prosecutions.
General Directions
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a judge sitting without a jury, that the court detail every obvious and basic direction of law which might be given to a jury.[1]
[1] R v R, R & R, LJ [2008] SASC 35 at [42]
I remind myself of the following fundamental principles:
·The accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·The burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused.
·In this case the accused elected not to give evidence. He was under no obligation to do so. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case, and may not be used as a ‘makeweight’ in assessing whether the prosecution has proved its case beyond reasonable doubt (Azzopardi v R;[2] R v Weetra[3]).
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or even that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
[2] (2001) 205 CLR 50 at [51]
[3] [2010] SASCFC 52 at [67]
Elements of the Offences
The prosecution must prove each of the following elements beyond reasonable doubt.
Count 1 - Possessing a firearm without a licence
The elements of this offence are:
1.1The accused was in possession of the firearm. Section 5(14) of the Act provides that a person has possession of a firearm if the person:
(a) … has custody of the firearm or has the firearm in the custody of another; or
(b) … has and exercises access to the firearm;
…
1.2The firearm in question was a class H firearm. This fact is agreed pursuant to s 34 of the Evidence Act 1929. A list of agreed facts was tendered by consent. Agreed Fact No. 2 states:
The gun is a ‘Harrington & Richardson’ Vest Pocket Safety Hammer single action revolver in the centre fire calibre ‘32 Smith & Wesson’. It has serial number 147167. It is a Class H firearm as defined by the Firearms Act 1977.
1.3The accused was not the holder of a licence authorising possession of that firearm. This is also an agreed fact. Agreed Fact No. 5 states:
On 10 July 2012, the accused Ludovik PERZEFI was not the holder of a current Firearms Licence to possess firearms of any classification, including Class H firearms.
Count 2 - Possession of an unregistered firearm
The elements of this offence are:
2.1The accused was in possession of the firearm.
2.2The firearm was a class H firearm. As I have already stated, this is an agreed fact.
2.3The firearm in question was unregistered. This is also an agreed fact. Agreed Fact No. 6 states:
On 10 July 2012, the above firearm was not registered.
Count 3 - Failure to secure firearm
The elements of this offence are:
3.1The accused was in possession of a firearm.
3.2The firearm in question is a class H firearm. As stated above, this is an agreed fact.
3.3The firearm was not secured in accordance with the regulations.
The undisputed evidence is that the police located the firearm in the position indicated in photographs Exhibit P2. Clearly, it was not secured in accordance with the regulations.
Count 4 - Failure to secure ammunition
The elements of this offence are:
4.1The accused was in possession of the ammunition.
4.2The ammunition is as described in the information. Agreed Fact No. 4 is as follows:
The ammunition located were ‘CBC’ centre fire calibre ‘32 Smith & Wesson Long’. A total of 8 rounds were located. The ammunition was live and suitable for use in the above firearm.
4.3The ammunition was not secured in a locked container separately from firearms.
The undisputed evidence is that the ammunition was located by police in the position in which they located the firearm. There were five rounds of ammunition in the firearm, and three further rounds wrapped in black material around the firearm and secured by a rubber band. This clearly constitutes a failure to secure the ammunition in accordance with the Act.
In relation to all four counts, the central issue, and the only one on which the case was fought, is whether the prosecution has proved beyond reasonable doubt that Mr Perzefi was in possession of the firearm and ammunition.
Prosecution Case
The factual scenario upon which these charges are based can be described quite briefly.
At about 11.35 a.m. on 10 July 2012, Brevet Sergeant John Quinn and Brevet Sergeant David Salter, who were both members of the STAR Operations Group, were in a Toyota four-wheel-drive travelling north on Prospect Road at Prospect. Both officers saw Mr Perzefi driving his Mercedes sedan west on Regency Road. He turned left to travel south on Prospect Road. Both officers noticed that Mr Perzefi was speaking on his mobile telephone. Brevet Sergeant Quinn described what happened as follows:
The driver of that vehicle then observed us, dropped the phone, lowered the phone, and then proceeded to accelerate heavily down Prospect Road, so I activated the lights and did a U-turn to stop the vehicle.[4]
Both officers were in uniform. The vehicle was unmarked.
[4] T6-7
The officers observed the Mercedes turn right from Prospect Road and travel west on Albert Street. In doing so, it disobeyed a ‘No Entry’ sign. The officers lost sight of it briefly. As they turned into Albert Street, they observed the vehicle turn left into a service lane behind a row of shops facing Prospect Road. The officers followed the vehicle into the service lane, and found it parked behind a shop which was described by Brevet Sergeant Salter as a fish and chip shop.[5] Brevet Sergeant Quinn parked the Toyota behind the Mercedes, alighted from his vehicle and then approached the driver’s side of the car. Mr Perzefi was still in the driver’s seat, and the window was down.[6] The driver’s‑side door was still shut. [7]
[5] T34
[6] T9
[7] T10
Brevet Sergeant Quinn then searched Mr Perzefi and then searched inside the car. He said that at neither of these stages was he wearing gloves.[8] Brevet Sergeant Quinn then walked around the general vicinity and then located what he described as a ‘small black bag with a rubber band and what appeared to me to be the handle of a small firearm’. He said that the firearm was in the location depicted in photograph 12 of Exhibit P2. It had not been moved prior to that photograph being taken, about 30 minutes later.[9]
[8] T10
[9] T11
After the initial photographs were taken, Brevet Sergeant Quinn removed the rubber band and the cloth and cleared the firearm. He said that he was not sure whether he was wearing gloves during this process.[10] However, he said it was his usual practice to wear gloves, and there was no reason in these circumstances why he would not have done so.[11]
[10] T13
[11] ibid
The DNA Evidence
Evidence was led from Ms Katie Noble of Forensic Science South Australia, Biology Group.
Ms Noble gave evidence of the DNA testing of a number of items submitted by the investigating police to Forensic Science SA. The results were:
·a swab of the firearm produced insufficient DNA for testing;
·on the rubber band was material which produced a mixed DNA profile from two contributors. It is 41 billion times more likely that that mixed DNA profile would have been obtained if Mr Perzefi and an unknown individual were the sources, when compared with the likelihood that two unknown individuals were the sources of the DNA.
If it is to be accepted that this DNA material was deposited by Mr Perzefi onto the rubber band, that would constitute a very strong piece of circumstantial evidence that he had handled the weapon.
However, before accepting that piece of evidence as being part of the circumstantial evidence against Mr Perzefi, the prosecution must exclude the possibility that that DNA material was deposited on the rubber band by some other means.
Ms Noble made it clear that one way in which this DNA could have been deposited on the rubber band was by a process known as ‘secondary transfer’. She said that one version of secondary transfer can occur when the DNA from a person is transferred to another person, and the second person then touches the object in question.[12]
[12] T53
The evidence is clear that Brevet Sergeant Quinn had ample opportunity to pick up Mr Perzefi’s DNA when he searched him, when he handcuffed him, when he searched the car, and when he later changed the handcuffs to allow Mr Perzefi to smoke a cigarette. The state of Brevet Sergeant Quinn’s memory is such that it is entirely possible that he was not wearing gloves at the time. He could thereby have transferred Mr Perzefi’s DNA to the rubber band.
Mr Foundas submitted that secondary transfer was unlikely. However, I am unable to find that I am satisfied that this did not occur. To be more specific, it is clear that I could not be satisfied that Mr Perzefi was the source of the DNA on the rubber band beyond reasonable doubt (see R v Karger[13]). Accordingly, it would not be appropriate that the evidence concerning Mr Perzefi’s DNA being on the rubber band should form part of the circumstantial case against him.
[13] (2002) 83 SASR 135 at [16] per Doyle CJ
Flight
Mr Foundas submitted that Mr Perzefi’s actions in accelerating heavily away after he saw the police officers, turning right into Albert Street and then into the service lane behind the fish and chip shop, should be treated as an item of circumstantial evidence tending to prove Mr Perzefi’s guilt of the subject charges.
Mr White submitted that there was another reasonable explanation for his client’s actions in seeking to evade the police, namely his breach of the traffic rules by using his mobile telephone while driving. He said it was possible that his client had accumulated the appropriate number of demerit points such that commission of this offence may have put his driver’s licence at risk.
There is no evidence of any of this. Whether or not Mr Perzefi’s driver’s licence may have been at risk at that time is pure speculation. The police officers were not asked about it in cross-examination. I have already stated that no inferences adverse to the accused may be drawn from his failure to give evidence, but that does not mean that the prosecution is called upon to exclude every fanciful explanation which might be suggested.
In fact, Mr Perzefi committed another, more serious traffic offence by disobeying the ‘No Entry’ sign in his attempt to evade the police. It makes no sense that he would seek to do that to avoid the consequences of using his mobile telephone while driving.
Further, Mr White submitted that his client may have panicked. There was no suggestion in Mr White’s cross-examination of any of the police officers at the scene, that Mr Perzefi seemed unduly stressed or nervous about being apprehended. There is no evidence from which this may be inferred.
I do not regard those alternative explanations as credible. Even if they were, that would not make the evidence incapable of giving rise to an inference of guilt.
In R v Burns,[14] the Court of Criminal Appeal quoted with approval the comments of Doyle CJ in R v Power[15] as follows:
" Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman (1980) 24 SASR 278, is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion, the approach to be taken is that indicated by Sheperdson J in Melrose (at 579; 338-339) (assuming that the evidence is not intractably neutral):
I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person's flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference."
[14] (2009) 103 SASR 514 at [34]
[15] (1996) 87 A Crim R 407 at 409
I am satisfied beyond reasonable doubt that Mr Perzefi attempted to flee from the police because of his consciousness of his guilt of the offences charged. In my view, there are no other credible inferences available.
Other Factors
The position in which the firearm and ammunition were located is significant. It was only a relatively short distance forward of Mr Perzefi’s motor vehicle, and on the driver’s side. It was in plain view, on a grassed area under a clothesline, as depicted in the photographs. The driver’s‑side window of the car was down.
Mr Foundas submitted that all that was necessary for Mr Perzefi to do was ‘to stick his arm or hand out of the window and toss the gun forward away from the car’.[16] I agree.
[16] T62
Mr White, on the other hand, submitted that Mr Perzefi had ample opportunity to throw the firearm out of the window of the car as he drove along the service lane, perhaps into the yard of the private premises on the western side of the lane. He might also have attempted to throw the item into the longer grass near the wall. However, it is noteworthy that, on the evidence, the police were very close behind him as he progressed down the lane, and it is likely that if he had done that, he would have been observed. On the evidence, he would only have had a very short amount of time within which to make a decision and act upon it.
Mr White also made the point in cross-examination that there had been, at some stage, a firearms shop in the group of shops facing Prospect Road behind which Mr Perzefi stopped his car. However, I agree with Mr Foundas’ submission that the clearest evidence about that was from Brevet Sergeant Salter, who said that:
There was an old firearm shop, but as far as I was concerned it went out of business a long time before then.[17]
[17] T33
In re-examination, Brevet Sergeant Salter said:
I couldn’t recall it being operational for quite some time, that shop … A year or so. [18]
[18] T38
Brevet Sergeant Quinn could not be sure whether the shop was open at the time of these events[19] and Senior Constable Nguyen was not asked about the topic.
[19] T20
In my view, the fact that an adjoining premises has, at some time in the past, been operated as a gun shop, does not provide a credible explanation for the presence of a loaded illegal firearm, in used condition, wrapped in a cloth and a rubber band, with spare ammunition, in such an obvious position under a clothesline behind a fish and chip shop.
Further, mere coincidence does not provide a credible explanation for the presence of those items there.
Conclusion
The only rational inference that can be drawn from the evidence before me is that Mr Perzefi was in possession of the firearm and ammunition on the day in question, and that he threw them out of his car after it had stopped in the position where it was located by the police, in a last-ditch but ultimately futile attempt to disassociate himself from them.
Mr White conceded that if I am satisfied beyond reasonable doubt about that, it is appropriate to conclude that Mr Perzefi was in possession of the firearm and ammunition prior to that action.[20]
[20] T75
In my opinion the prosecution, on the whole of the circumstantial evidence in this case, has rebutted any reasonable hypothesis consistent with innocence.
In those circumstances, all of the other elements of the four counts on the information having been agreed, and being satisfied beyond reasonable doubt on the issue of possession, I record the following verdicts:
Count 1 – Guilty
Count 2 – Guilty
Count 3 – Guilty
Count 4 – Guilty
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