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. The firearm and ammunition were later examined by Senior Constable Lawrence of the South Australian Police Ballistics and Armoury section. He described the firearm in his statement and he found that it was a “prescribed firearm” for the purposes of section 11 of the Firearms Act 1977 and within the meaning of regulations 8(c) and 8(f) of the Firearms Regulations (see agreed fact section 7). Agreed fact 8 is that on 17 April 2004 the accused was not the holder of a Firearms Licence authorising possession of any firearm including prescribed firearms. Agreed fact 9 is that the ammunition located by Constable Truesdale was capable of being used in the subject firearm.
The Defence Case
No evidence was given by or on behalf of the accused.
Elements of the Offence
The prosecution must prove beyond reasonable doubt three elements.
1. The item possessed was a firearm, more particularly a “prescribed” firearm. This was agreed and I find it proved (see agreed fact 7).
2. The accused possessed the firearm. This is the disputed element.
3. The accused was not the holder of a firearms licence authorising the possession of the subject firearm. That is agreed and I find it proved (see agreed fact 8).
Crown Address
The Crown relied upon the following factual matters in proof of possession.
1. The close proximity of the accused to the bag, the gun and the ammunition.
2. The accused was the sole occupant of the car when observed by police.
3. The accused himself removed the bag from the car. I do not think this fact helps in proof of possession. There is no admissible evidence on the circumstances of the removal.
4. The ammunition, linked to the gun by the expert evidence of it being able to be discharged by the gun, was located separately from the gun, being in the console of the car.
5. Items belonging to the accused were in the bag with the gun.
Defence Address
Mr Noblet took me to the authorities on “possession”. A short helpful exposition of the law is found in the judgment of Giles AJ in R v Amanatidis [2001] NSW CCA 400 (also 125 A Crim R 89) at para [9]. I gratefully reproduce it:
Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody (He Kaw The v The Queen (1985) 157 CLR 523 at 537-9, 546, 585-7, 599-600). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared (R v Dib (1991) 52 A Crim R 64 at 66-7). It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons - that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in R v Filipetti (1984) 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred; see also R v Bazeley (CCA, 23 March 1989, unreported) and R v Sobolewski (CCA, 21 April 1998, unreported).
Attention was then drawn to the facts of three cases from which it was said I might get some assistance in coming to a conclusion in this case. Not surprisingly, none is on all fours with the present case. Nevertheless I refer to them. In each case an appeal court quashed a conviction on the ground that a reasonable jury would not have convicted on the evidence tendered.
The relevant facts of Lester and Byast (1955) 39 Cr App R 157 were set out in Pierpoint (1993) 71 A Crim R 187 at 195-6. Both cases involved charges of possession of house breaking implements. In both cases two people were involved. In both, one party did not appeal or had his conviction upheld and the other had his conviction quashed. Counsel conceded that the facts of these two cases were further from the case at bar than the third, to which I will refer shortly.
In Lester and Byast, Byast was the owner and driver of a car. Some housebreaking implements were found on his person and others in the boot of the car. None were found on Lester. He was merely a passenger in the car. There was no evidence of their being involved jointly in a housebreaking expedition, although there was evidence of them jointly stealing petrol. The only evidence then, against Lester, was his being a passenger in the car and his being associated with Byast. His conviction was quashed. Byast’s was not.
In Pierpoint the appellant and his son were seen walking together in a street in the hours of darkness. The son had been seen to throw away what turned out to be a camouflaged pair of bolt cutters. The son was also found to have on him a torch and a white cloth. There was no evidence of the father exerting any control over the implements. He gave an unsworn statement denying possession. His conviction was quashed. The son appears not to have appealed.
It can be seen that the facts of each are distinguishable from the case of the accused. There was in each case compelling evidence of possession on the part of an identified co-accused and, by way of distinction, no direct evidence of possession by the successful appellant.
The facts of Amanatidis are certainly closer to those of the accused. There, the accused was charged with supplying heroin. The heroin was deemed to be for supply if possession of more than the prescribed amount was proved. The critical issue was possession. Most of the facts were set out in paragraphs two and three of the judgment of Giles AJ:
2 The heroin was in a Longbeach cigarette packet in a locked car. The appellant had driven the car to where it was parked when the heroin was found, and had keys to the car. There was no evidence one way or the other as to whether the appellant had been accompanied in the car by another person.
3 There was evidence -
(a) that there were other keys to the car at the house of the appellant and his daughter, available for the use of his daughter;
(b) that the appellant's daughter drove the car on occasions and had driven it the previous night;
(c) that the appellant's daughter's regular brand of cigarettes was Longbeach;
(d) that the appellant's daughter had been convicted of an offence of possession of heroin and another offence relating to a prohibited drug, and had been acquitted of seven charges of supplying a prohibited drug;
(e) that there were in the car when the heroin was found a passport, a Medicare card and building society passbook in the name of the appellant's daughter and men's and women's clothing; and
(f) that at the time the car was searched the appellant said of the clothing to "be careful; that's my daughters, she might have a syringe in her shirt".
To those facts must be added three more, as follows:
(1) The accused himself was a heroin user and was carrying some small foils of heroin.
(2) He had made some vague but potentially incriminating remarks on the telephone to a police officer posing as an occupant of the premises to which the accused had driven.
(3) The accused lied about arriving in a taxi.
I note that Hume J dissented, finding the evidence sufficient, when taken cumulatively, for a jury to be satisfied beyond reasonable doubt of possession. Adams J agreed with the reasons of Giles AJ who allowed the appeal.
In a police interview the accused denied possession, albeit in a perfunctory manner. Giles AJ found the evidence of the telephone conversation and lies equivocal. The circumstances regarding the daughter’s possible involvement proved decisive. His Honour said:
11 But the apparent involvement of the appellant's daughter in drug abuse and her clear use of the car made the question of the appellant's knowledge that he had the heroin in his control or custody particularly important. He did not admit knowledge, and in the circumstances knowledge could not be established beyond reasonable doubt simply by proof that the heroin was found in the car (see for example R v Clarke (1995) 78 A Crim R 226 at 232). What more was there?
Again the facts are different from here. In that case there was real evidence from which another person’s involvement may be inferred. Possession requires knowledge and an intent to exert control and the real possibility of another possessor negates possession by an accused. Comparing the facts of different cases does not usually resolve a matter although, as here, the comparison is of some assistance. Nevertheless the situation is in material respects different from those other cases.
Consideration of the evidence
The accused was the driver and sole occupant of the car. He was asserting a proprietorial right to the car as against his partner with whom he had recently had an argument. The gun was in a bag with some of his own property, including, perhaps significantly, cigarettes. The bag was the storage place for his cigarettes rather than a cigarette packet. The ammunition was found in a cigarette packet secreted in the console. There is no evidence comparable to that in Amanatidis suggesting his partner, who also used the car, was given to possession of firearms. There is no evidence about her or about any other potential possessor. An inference arises that the accused was the possessor.
The case is a circumstantial one. The hypothesis of the accused’s guilt must be not only a rational one but it must be the only rational one arising from the evidence, (see Shepherd v R (1990) 170 CLR 573, R v Cerullo [2005] SASC 250).
The accused made no exculpatory statement to the police. What he said to the police (beyond what is recorded above) has been excluded by me on the voir dire. The accused gave no evidence. That was his right. No evidence adverse to him can be made by reason of his exercising that right. What is the consequence, if any, of his not giving evidence?
There is a discussion of the well known High Court authorities on this topic in a recent decision by Gray J in Llewellyn v Police (2005) 91 SASR 418 at 435-6. His Honour said:
Weissensteiner is a authority for the proposition that there are instances when the failure by an accused to give evidence may be taken into account when deciding whether the case is proved beyond reasonable doubt.
His Honour then recited the relevant passage in Weissensteiner referred to by the subsequent High Court in Azzopardiv The Queen (2001) 205 CLR 50 at 60 (per Gleeson CJ) and at 85 (per McHughJ).
…it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge, which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of he accused.
His Honour went on to observe that:
…The effect of the majority judgment in Azzopardi was to narrow the application of the principle in Weissensteiner:…
His Honour cited that qualification:
There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested should have been but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted the evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of the evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. [Original emphasis.]"
I imagine the accused could provide the sort of additional information about the ownership or possession of the gun that would bring him within the rare cases envisaged by Azzopardi and hence some significance might be given to his failure to give that evidence. On the other hand one could not overlook the possibility of a variety of motives for not giving that further information besides an accused’s guilt. Accordingly, I do not regard the accused’s failure to give evidence as having any consequence other than the inference of his possession and the other facts remaining uncontradicted. I have to be satisfied beyond reasonable doubt that that inference should be drawn. In the event I can see no reason why it should not be drawn. The gun was in a bag with some of the accused’s belongings. He was the sole occupant and driver of the car. Although the accused said the car was registered in his partner’s name, he was claiming to be a joint owner and he was saying that as far as he was concerned his partner was not going to get it back.
The bag was on the floor next to him in the front of the car. The ammunition was secreted in the console. No other person is suggested on the evidence as a possible possessor of the firearm. I find beyond reasonable doubt that the accused was in possession of the firearm. As mentioned above the other elements of the offence are made out. I find the accused guilty of possession of the firearm.