R v Racic (No 2) - [2005] SADC 90

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RACIC (No 2)
Reasons for the Verdict of His Honour Judge Barrett
22 July 2005
CRIMINAL LAW - PARTICULAR OFFENCES
Possess firearm without a licence - "possession" - gun in bag in car - accused's belongings also in bag - sole occupant, driver and co-owner of car - no other possessor reasonably possible - finding of guilt
Firearms Act 1977; Firearms Regulations 1993, referred to.
R v Amanatidis [2001] NSWCCA 400; also (2001) 125 A Crim R 89; Lester & Byast (1955) 39 Cr App R 157; Pierpoint (1993) 71 A Crim R 187; Shepherd v R (1990) 170 CLR 573; R v Cerullo [2005] SASC 250; Llewellyn v Police (2005) 91 SASR 418; Azzopardi v The Queen (2001) 205 CLR 50, considered.

R v RACIC (No 2)
[2005] SADC 90
Prosecution Case

Counsel for the prosecution entered a nolle prosequi in respect of count 2, the count relating to failing to store ammunition in a locked container. The prosecution case was presented by way of statements of witnesses, edited so as to exclude inadmissible evidence, and a list of nine agreed facts. The prosecution case can largely be summarised by drawing on the agreed facts submitted by the prosecution against the background of the edited statements. Police were searching for a blue Holden Commodore which had been reported stolen. They located the car. The accused was the sole occupant of it. He was in the driver’s seat but he got out to speak to the police. The following conversation took place between one of the police officers, Senior Constable Baldwin, and the accused:
Baldwin:    Mate your girlfriend just reported the vehicle being stolen by you. Is that correct?
Accused:     No. The fucking bitch, no. We’ve had a fight as she has got it in for me.
Baldwin:    So who owns the vehicle?
Accused:     It’s registered to her but I bought it for us. She aint getting it now.
After that conversation the other of the police officers, Constable Cahalan, walked off to a nearby house to investigate this explanation. While she was away Senior Constable Baldwin noticed a backpack type bag on the floor of the front passenger section of the car. The bag was produced by the accused to Senior Constable Baldwin who found it to contain the subject firearm, dismantled into three pieces, and the following three items of property; a) a car stereo face, b) some compact disks and c) two cigarettes. These last three items are agreed to belong to the accused (see agreed fact 2). On 26 August 2004 the accused retrieved items a) and b) from Sturt Police Station. The accused was arrested and taken to the Sturt Police Station. The Holden Commodore, the bag and its contents were also taken to the Sturt Police Station. There Constable Truesdale searched the car and located a cigarette packet containing five shotgun rounds hidden in the centre console of the vehicle.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Racic (No 2)

Details

AGLC: R v Racic (No 2) [2005] SADC 90
Case: [2005] SADC 90
Decision Date: 22 July 2005

CaseChat Overview and Summary

The case of R v Racic (No 2) dealt with a criminal charge of possessing a firearm without a licence. The appellant was found by police to be in possession of a gun that was in a bag located in his car. The bag also contained other personal items belonging to the appellant. At the time of the discovery, the appellant was the sole occupant of the vehicle, the driver, and a co-owner. The central issue before the court was whether the appellant could be considered in possession of the firearm under the relevant criminal statute. The court needed to determine if the appellant's control over the bag and its contents could be sufficient to constitute possession of the firearm.

The court examined the statutory definition of "possession" and the circumstances under which possession can be established. The court found that the appellant's control over the bag and its contents was exclusive and could not be reasonably attributed to any other individual. Given the appellant's status as the sole occupant, driver, and co-owner of the car, the court concluded that it was not reasonably possible for any other person to possess the firearm. Consequently, the court held that the appellant was in possession of the firearm and, therefore, guilty of the offence of possessing a firearm without a licence.

The court's reasoning was based on the principle that possession of an item can be established if the person has control over it and there is no other reasonable possibility that another individual possesses it. In this case, the appellant's exclusive control over the bag and its contents, coupled with the absence of any other plausible possessor, led to the finding of guilt. The court's decision underscores the importance of the totality of circumstances in determining possession under criminal law. The court's determination was final, and the appellant's conviction was upheld.

Orders