R v Sandery
[2013] SADC 38
•28 March 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SANDERY
Criminal Trial by Judge Alone
[2013] SADC 38
Judgment of His Honour Judge Tilmouth
28 March 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE
The accused is charged with possessing a firearm without a licence and whilst subject to a firearms prohibition order. A firearm was found in a home associated with him.
Held 1: As the accused is proven to have the control of the subject premises, the burden of proof falls upon him to prove on balance that he did not know or could not reasonably be expected to know the firearm was on the premises under s 5(15)(a) of the Firearms Act 1977 (SA).
2: Although the evidence raises a reasonable doubt and a reasonable hypothesis consistent with innocence, it is not so cogent so as to dicharge the burden resting on him in order to prove on balance that the offences were not committed intentionally and did not result from any failure on his part to take reasonable care to avoid the commission thereof, under s 36A of the Firearms Act.
3. Verdicts of guilty entered.
Firearms Act 1977 (SA) ss 5(1), (14) & (15), s 10C(3), s 11(1), s 36A; Firearms Regulations 2008 R 4(1)(a); Evidence Act 1929 (SA) s 18(1); Warner v Metropolitan Police Commissioner [1969] 2 AC 256; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Gosset (1993) 105 DLR (4th) 681; KRM v The Queen (2001) 206 CLR 221; R v Ciantar (2006) 167 A Crim R 504; R v Lucas [1981] QB 720; R v Daniel (2010) 207 A Crim R 449; Thomas v The Queen (1960) 102 CLR 584; R v Carr-Briant [1943] KB 607, referred to.
R v Fuller & Zazzaro [2012] SASCFC 101, discussed.
R v SANDERY
[2013] SADC 38Introduction
The accused stands charged with two offences pertaining to the unlawful possession of a single firearm, to which he has pleaded not guilty. Well before the trial commenced he made a valid election for trial by judge alone. The prosecution mount a circumstantial case of possession, whereas the defence case is that he was not in possession of the rifle and that it was very likely to have belonged to someone else. Of course he comes into the criminal court with the presumption of innocence in his favour.
The charges
The precise charges laid against the accused are these:
First Count
Statement of Offence
Possessing a Firearm without a Licence. (Section 11(1) of the Firearms Act, 1977)
Particulars of Offence
Mark Andrew Sandery on the 20th day of December 2011 at Semaphore, had in his possession a prescribed firearm, namely an SKS semi-automatic rifle, whilst not holding a firearms licence authorising possession of that firearm.
Second Count
Statement of Offence
Possessing a Firearm while a Firearms Prohibition Order is in Force. (Section 10C(3) of the Firearms Act, 1977).
Particulars of Offence
Mark Andrew Sandery on the 20th day of December 2011 at Semaphore, a person against whom a firearms prohibition order was in force, had in his possession a prescribed firearm, namely an SKS semi-automatic rifle.
Section 11(1) of the Firearms Act 1977 (SA) makes it an offence to have ‘possession of a firearm without holding a firearms licence authorising possession of that firearm’ and s 10C(3) thereof provides a ‘person against whom a firearms prohibition order is in force must not acquire, possess or use a firearm …’.
In order to sustain the charges the prosecution must prove beyond reasonable doubt possession of the rifle in each instance, as well as proof the rifle was a ‘prescribed firearm’ and that the accused was not the holder of a firearms licence on count 1. The prosecution must also prove an extant firearms prohibition order was in affect with respect to him on count 2.
Background facts
A number of police officers acting under the authority of a search warrant issued under the Firearms Act, entered and searched the premises at 142 Military Road, Semaphore. Entry was gained some time between 7.15 and 7.30 am on Tuesday 20 December 2011 through a bathroom window. They located an SKS semi-automatic assault rifle, a considerable body of ammunition and three magazines and an ammunition box. These were left on a coffee table under some clothing and what was described in evidence as a ‘blow up boogie board cover’, in the living room.[1] The court was not told whether the clothing was for a male or female or what the sizes were. There is no evidence they were tested for the presence of DNA.
[1] T40.26
The police also found in the kitchen what was described as a ‘file box’ containing paperwork, including various documents ‘belonging to the accused Mark Sandery’.[2] No evidence was adduced as to the date any of these might have borne. A letter addressed to Mr Sandery was found in the letterbox, but once again there is no evidence what date it bore.[3]
[2] Exhibit P13, agreed fact 5
[3] T78.20-.30
Only one of the three magazines was suitable for use with the rifle, a triangular ‘integral magazine of type 45’ having a 10 round capacity.[4] The police seized various live rounds of ammunition capable of being loaded and fired by the rifle.[5] In all approximately 700 rounds could have been fired from that rifle.[6]
[4] T160.36-161.26, shown in Exhibit P3, photograph 5, on the right
[5] T170.15-172.2
[6] T171.29
An inconclusive DNA swab was obtained from the firearm, ‘the accused could neither be included nor excluded as the source of the DNA profile’.[7] The rifle and the magazines were also submitted for fingerprint analysis. A fingerprint was later detected on the left inside corner on one of two ‘banana shaped’ magazines incompatible for use with the subject rifle. The fingerprint was not that of Mr Sandery. It belonged to another person FGI. He has not been charged with any offence arising out of the events, although he was apparently questioned about it.[8] There was scant evidence of any prior association between him and the accused,[9] although it was suggested in questions by defence counsel that FGI visited the accused at the Adelaide Remand Centre.[10] FGI happened to be at a home in Kilkenny which was searched at the same time as part of this police operation.
[7] Exhibit P13, agreed fact 9
[8] T240.18-.37
[9] T240.16-.17
[10] T35.11-.12
The house on Military Road was unoccupied at the time the police gained entry. There was very little furniture about apart from a wide screen television, a dining table with a few chairs and a refrigerator. There was evidence that there was one, possibly two, single beds in one or two bedrooms.[11] However the evidence of a double bed mattress being on the floor of the living room is so inconclusive that it is not possible to make a finding about that.[12] It is in any case very much beside the point as there was a single bed Mr Sandery could ‘doss’ on as Mr Nitschke put it, had he wanted to.[13] There was no evidence of the presence of pillows or bed linen or of any utensils used in cooking or eating food. In fact there were hardly any household effects apart from a few tins of (unspecified) food and certainly nothing that conclusively demonstrates recent overnight occupancy in the premises.
[11] T193.6, T320.36
[12] T416.27-417.4
[13] T384.36-385.18
The house was leased to the accused pursuant to a Residential Tenancies Agreement dated 30 July 2010.[14] This was extended for another year during the course of 2011.[15] Rent was paid up to 22 December 2011, that is two days after these events. It was leased to other tenants from 19 January 2012. Rent for the period between 22 December and the 18th January was taken from Mr Sandery’s security bond.
[14] Exhibit P7
[15] Exhibit P8
There was uncontested evidence that on 30 September 2011 the accused’s step-son was shot by intruders in the house and that the family moved out very quickly thereafter for safety reasons on the advice of police. The accused resided afterwards for the most part in Melbourne or at a unit some 300 metres distance away from the Military Road address, on the Esplanade at Semaphore. At the very time of this raid he was en-route from Melbourne at a point some 2-3 hours driving distance from Adelaide.
Statutory context
As mentioned count 1 requires proof that the SKS semi-automatic rifle is a prescribed weapon. Section 5(1) of the Firearms Act defines a ‘prescribed firearm’ as ‘a firearm of a class prescribed by regulation for the purposes of this definition’. Section 5(1) further defines an ‘automatic firearm’ as:
… a firearm that is designed to fire a round when the trigger is brought to the firing position and to continue to fire one or more rounds automatically while the trigger is held in that position.
Such a firearm is defined by Regulation 4(a) of the Firearms Regulations 2008 (SA):
4—Prescribed firearms
(1) For the purposes of the definition of prescribed firearm in section 5(1) of the Act, the following firearms are prescribed:
(a) automatic firearms;
That the firearm in question is an automatic firearm and hence of a prescribed class, cannot be doubted. Mr Moffa did not suggest otherwise. The unchallenged evidence of the ballistics expert Brevet Sergeant De Laine about the weapon was this:[16]
This weapon is designed to fire in a semiautomatic action, which entails the operator applying pressure to the trigger, by pulling the trigger. The weapon discharges, it fires a projectile from the muzzle. The gas blow-back system then induces the cyclic action of the firearm. The action is retracted to the rear of the firearm by the gas blow-back system. In doing so, it extracts the spent cartridge case from the chamber and the ejection system ejects that spent cartridge from the side of the firearm. It also recocks the firearm and strips the next live round from the top of the magazine and chambers it into the chamber of the firearm, ready for the operator to pull the trigger a second time, to discharge that second round.
[16] T155.31-156.7
And:[17]
[17] T157.24-T158.15
QWhen you test fired the weapon what did you find.
AI was surprised to find that the firearm functioned in full automatic mode.
QI take it that 'full automatic mode' is - or you tell us what 'full automatic mode' is.
AInitially from memory I placed four or five rounds into the magazine and it incurs attending the Armoury Section located at Thebarton Barracks and test firing the firearm into a firing pit, to see how it actually functions, if it functions correctly, or to determine if there had been any alterations made to the firearm. It was then that I discovered that it was firing in full automatic mode.
QWhat does that, in effect, mean.
AIn effect, that means that if the operator pulls the trigger and keeps it depressed, the weapon will continue to fire in its own cyclic action until either the magazine is emptied of ammunition or the operator removes his finger pressure away from the trigger.
QDid that observation or experience cause you to look at the trigger mechanism of that particular firearm.
AYes, it did.
QWhat did you find when you looked at the trigger mechanism of that particular firearm.
AI found that there had been a notch or a lug ground off the front of the hammer of the trigger mechanism. That enabled the fully automatic function to arise.
QWas that firearm factory designed to be used in full automatic mode.
ANo, it was not.
And further:[18]
QI take that it you did that once with five or six rounds.
AThat's correct. I actually recall reloading it again with a further 10 rounds at full magazine capacity and not only was it fully automatic, in other words, it was actually controlled in full automatic mode, I could take my finger off the trigger in the 10 round capacity, stop firing and it would be fully automatic. So that is controlled fully automatic mode.
[18] T163.15-.23
So far as count 1 is concerned it is admitted by the accused that he was not the holder of a firearms licence on 20 December 2011.[19] He also admits a Firearms Prohibition Order issued under Part 2A of the Firearms Act was in force on that date for the purposes of count 2.[20]
[19] Exhibit P13 agreed fact 2
[20] Exhibit P13 agreed fact 1
Possessing a firearm
It can be seen therefore that the remaining issue for determination in relation to both counts is proof of possession of the firearm. Although in theory the evidence on each count should be considered separately, the evidence on that subject coincides for both. Ordinarily at common law proof of possession entails demonstrating physical contact or custody by the accused, coupled with an intention to possess: Warner v Metropolitan Police Commissioner,[21] He Kaw Teh v The Queen.[22]
[21] [1969] 2 AC 256
[22] (1985) 157 CLR 523
In this particular case the prosecution relies heavily on a deeming provision in the Firearms Act, modifying the common law position:
5(14)For the purposes of this Act (other than Part 3 Division 2A), a person has possession of a firearm if—
(a)the person has custody of the firearm or has the firearm in the custody of another; or
(b) the person has and exercises access to the firearm; or
(c)the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the firearm is found.
It is apparent that the focus of s 5(14)(c) is upon the connection to premises where a firearm is found, unlike ss 5(14)(a) & (b), where the focus is upon a connection to the firearm itself.
However s 5(15) allows for the presumption erected by s 5(14) to be rebutted in these terms:
5(15) However, subsection (14)(c) does not apply if the person establishes that—
(a)he or she did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises, vehicle, vessel or aircraft; or
(b)the firearm was in the lawful possession of another or he or she believed on reasonable grounds that the firearm was in the lawful possession of another.
The application of these sections was considered recently by the Court of Criminal Appeal in R v Fuller & Zazzaro.[23]The court held the onus of proof under s 5(14) was on the balance of probabilities, on the basis that:[24]
Parliament was seeking to limit the ability of individuals charged with firearms offences to avoid conviction by merely claiming ignorance of the existence of the firearm.
[23] [2012] SASCFC 101
[24] Above at [47]
Quite apart from these provisions, s 36A provides for limited defences to Firearms Act offences as follows:
36A—General defence
It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
The effect of s 5(15) is simply to avoid the operation of the presumption created by s 5(14). Whereas s 36A limits the ambit of defences available to an accused person irrespective of whether the presumption is triggered or not. I do not understand anything said in R v Fuller & Zazzaro to be contrary to this understanding of the structure of the Firearms Act, despite the reference therein to ‘a defence that he or she did not know, or could not reasonably have been expected to know, that the firearm was on the premises’.[25] Not infrequently evidence directed to the question of knowledge or constructive knowledge of the presence of a firearm on premises, is inherently likely to overlap evidence demonstrating an accused did not act intentionally and took reasonable care to avoid the commission of an offence under s 36A of the Firearms Act.
[25] Above at [48], emphasis supplied
The evidence touching upon possession
It is proven that on 20 December 2011 an extant residential tenancies lease was in force over the subject premises with the accused as lessee. It remained in force until terminated, as it appears, by mutual agreement on 18 January 2012. Rent was by one means or another, fully paid up to then. This lease gave Mr Sandery the legal right to quiet enjoyment and possession of the premises. On the other hand it is clear enough that following the traumatic home invasion and attack on his step-son in the house, that the family moved out. Thereafter the accused had little to do with the house occupancy wise, although he had not completely removed all his property by the time of the police raid on 20 December. He had been organising or effecting repairs in the meantime as some damage was caused by the intruders who broke in to perpetrate the attack on his step-son.
It has been proven either by way of agreed facts, police surveillance or telephone intercepts, that the accused had the following prior contact with or concerning 142 Military Road in the period leading up to 20 December:
01.12.11 Arranging with the land agent for repairs and cleaning;[26]
05.12.11 Seeking to postpone agent’s inspection;[27]
07.12.11 Observed to attend for 5 minutes toward the end of lunch time;[28][26] Call no 351
[27] Call no 798
[28] Exhibit P13, agreed fact 12(1)
11.12.11Admitted being present having a spa bath at 12.56 pm;[29]
[29] Call no 1431
11.12.11Seen to exit at 1.06 pm and walk to his Unit on the Esplanade, Semaphore;[30]
[30] Exhibit P13, agreed fact 12(2)
15.12.11Admits at 8.34 am intention to either be at the flat or at the home moving furniture;[31]
[31] Call no 1717
15.12.11Seen to enter the front door at 11.00 am, remaining for 14 minutes and to enter again at 12.38 pm;[32]
15.12.11 Admitted to catching a taxi therefrom at about 3.30 pm;[33]
16.12.11 Admitting putting in stained glass;[34]
17.12.11 Ordering a taxi for collection therefrom at 5.27 am;[35]18.12.11SMS message at 11.51 from FGI “I’m going to your house;[36]
18.12.11Incoming call from FGI at 1.23 pm “I’m on my way to your place”;[37]
18.12.11Outgoing call at 3.30 pm from his friend Ricky asking him to come over to Military Road to “give me a hand for a sec”;[38]
18.12.11Admission that he had been at the home for hours before 9.16 pm.[39]
[32] Exhibit P13, agreed fact 12(3)
[33] Call no 2111
[34] Call no 1888
[35] Call no 1973
[36] Exhibit P15
[37] Call no 2193
[38] Call no 2213, T308.33-309.13
[39] Call no 2247
The prosecution case
The prosecution seeks to connect the accused with the Military Road property by reason of the above facts. In particular it was submitted by Mr Nitschke that although the accused might have resided at the Esplanade Unit for the most part whilst he was in South Australia, there was evidence that he stayed overnight on occasion. To the extent that this submission relies on the suggestion of a double mattress being found in the living room, it must be rejected for the reasons articulated earlier. There was evidence that the accused was awoken by a telephone call at about 5.15 am on the 17th inviting him out for a drink. However that evidence is inconclusive as to whether he was at Military Road at the time.[40] Although the call was at a time more likely to suggest he was there, it is inherently more likely that he would generally prefer the more extensive creature comforts available to him in the Esplanade Unit, which was after all only a few minutes’ walk away.
[40] Call no 1969
In any event the prosecution falls back on proof of ‘control’ over the Military Road premises where the subject firearm was found, in order to engage the s 5(14)(c) deeming provision. Occupation, care and management were not relied upon. As the section is cast disjunctively, proof of any one of ‘occupies’, ‘care’, ‘control’, or ‘management’ would suffice to invoke the operation of s 5(14). In ordinary parlance ‘control’ means ‘to exercise restraint or direction over’,[41] or ‘the fact of checking and directing action’,[42] concepts less demanding than possession at common law. Indeed at common law control was an integral albeit partial component of possession: Warner v Metropolitan Police Commissioner.[43] As Lamer CJ pointed out in R v Gosset:[44]
‘… control … supposes physical possession of something. One cannot have … control without access’.
[41] Macquarie Dictionary
[42] Oxford English Dictionary
[43] [1969] 2AC 256
[44] (1993) 105 DLR (4th) 681 at 691
On the basis of the above evidence there can be no doubt that Mr Sandery had the control of 142 Military Road as at 20 December 2011. He had a lease giving him physical and legal control over the house. He remained in the process of removing and selling items of personal property therefrom. He was arranging or attending to repairs, painting and exercising his right to take physical access to the home on several occasions.
This conclusion is reinforced by the accused’s own evidence that he and his mother had been ‘directing’ painting, repairing damage to the stained glass windows and that a painter, an electrician and some friends were given keys to access the home, and he engaged FGI to do tiling work in the bathroom.[45] There is also evidence through an SMS message from FGI on 18 December that he was ‘going … [to the home] … to get the rest of lounge let me know how much you want for fridge and I’ll pick that up too’.[46] Moreover Mr Sandery purported to deny access to keys by the police on 20 December by stating that he did not have them himself and by instructing his neighbour on the Esplanade to communicate with his friend Ronnie Scott – who apparently held a key – ‘not to give ‘em the keys for Military Road’.[47]
[45] T283.7-.286.11
[46] Call no 2178
[47] Call nos 2416 and 2418, T284.20-.22
The defence case
Having thus determined that s 5(14) of the Firearms Act is engaged, the accused seeks to avoid its operation by proof on the balance of probabilities that he ‘did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises’.[48] The defence commences with the denial by the accused of any knowledge of the rifle.[49] The defence case depends on the capacity of someone else to have put it there who must have had access to keys in order to do so, because access points into the house were undamaged as of 20 December. Mr Sandery maintained that no gun was in the house to his knowledge.
[48] Section 5(15)(a)
[49] T323.9-.14
Mr Moffa pointed to the evidence linking FGI with the Military Road house. He had gone to the house on 18 December to get the lounge (even though one view of the evidence suggests the accused might have been present when this was done)[50] and returned later that evening with drugs which he and the accused consumed there.[51] Since the SMS of that day from FGI, asks ‘how much do you want for the fridge and I’ll pick that up too’, and since the fridge was still there on the 20th, it provides some support for the proposition that keys might have been left for FGI to collect it.[52] The accused’s evidence was that before leaving for Melbourne on the 19th he left a key under the doormat for FGI.[53]There is some support for this practice in as much as he is recorded as having left keys under the back doormat for some time the day before.[54]
[50] Call no 2213
[51] Call no 2236, T359.33-361.6
[52] Exhibit P15
[53] T291.15
[54] Call no 2247
It seems unlikely Mr Sandery would leave the gun lying about unprotected given his association with the house, irrespective of how long or short the trip to Melbourne was intended to be. This was particularly so since the real estate agent had access to the house and had been showing potential lessees through from 26 November.[55]
[55] T146.6-.20
It should be mentioned at this point that the accused introduced evidence of his drug use in order to explain what he said in some of the telephone calls, especially his animated reaction ‘I’m fucked’ when hearing of the raid on the properties at about 7.20 am on 20 December.[56] That evidence was permitted by s 18(1)(d) of the Evidence Act 1929 (SA) as ‘tending to show that he is … not guilty of the offence with which he is charged’. Although this evidence may have that effect, it is otherwise no evidence he is a person of bad character or the kind of person likely to have committed the offences: KRM v The Queen.[57] Since his reaction to the news of the raid could so readily be attributable to the fact that drugs were in his Esplanade Unit, that reaction cannot be regarded as an implied admission of guilt with respect to the present charges: R v Ciantar,[58] R v Lucas.[59]
[56] Call no 2419
[57] (2001) 206 CLR 221 at [383-400]
[58] (2006) 167 A Crim R 504 at [86]
[59] [1981] QB 720 at 724
Analysis of the evidence
There is no direct proof that Mr Sandery knew or could reasonably be expected to have known the firearm was in the Military Road house. Rather the case against him is circumstantially built around his access to and use of the house and the proximity thereof in point of time when the police gained entry. It is proven that Mr Sandery was at the house in the week preceding that raid, on Thursday the 15th, Friday the 16th and for several hours at least on Sunday the 18th of December 2011. It is also proven that he ordered a taxi to collect him from 142 Military Road on the 15th.
The last known connection between him and the premises was when he returned after taking his children to Semaphore at some indefinite time after 9.16 pm on Sunday the 18th.[60] It is not demonstrated that he returned to the house on Monday the 19th before leaving by car for Melbourne at around 1-2 pm, where he was required to report to Melton police as a condition of his bail.[61] The window of time available for the gun to have been left there was then in the order of about 33 hours (say from 10.00 pm on the 18th to 7.00 am on 20 December).
[60] Call no 2247
[61] Call 1944, T291.32-292.16
The only direct connection with the firearm by anyone is the fingerprint of FGI found on the incompatible magazine. This does not of itself exclude Mr Sandery. But there is quite apart from the fingerprint a distinct proven connection between FGI and the house in the days leading up to the 20th. The prosecutor did not contest that some telephone calls and the SMS took place between him and the accused, although Mr Nitschke certainly put a different complexion on what they meant.[62]
[62] T355.22-356.4, T358.2-.6, T359.5-.38
In particular the intercept evidence demonstrates FGI was going to the house to collect the lounge on Sunday the 18th and, as it appears on one view of the facts, without requiring Mr Sandery to be there to let him in.[63] The communications between the accused and FGI on the 18th almost certainly show that FGI was at the Military Road home sometime between shortly after 1.23 pm and 3.30 pm that day. However, the context and the timeframe are inconclusive as to whether the man Ricky also went there for the purpose of assisting FGI and the accused with the couch, or otherwise.[64]
[63] Call no 2178
[64] Call no 2213, T358.20-359.15
There is only the evidence of Mr Sandery that he left keys under the doormat when he went to Melbourne. There was no evidence of any key being found by the police when they attended, but then again there is no evidence they looked for one that might have been secreted outside. Had they found one under the doormat, it would have been decisive of Mr Sandery’s position.
The evidence of Mr Sandery was unsatisfactory in a number of respects. He was argumentative and unresponsive at times, but I put this down mostly to frustration over the limited the opportunity to listen to some 2,800 telephone intercepts so as to garner support for his position.[65] His evidence about how long he was to remain in Melbourne and where he would stay was also confusing, but I attribute that to making decisions on the run, especially given the stringent bail conditions.[66] His evidence about the call at 21.16 hours on the 18th suggesting he left keys for FGI was unconvincing, as the intercept and the content thereof plainly indicate he was leaving them for the woman Maria.[67] Nevertheless it is some evidence supporting his practice of leaving keys for access by others, bolstered by the fact that on the 16th he is recorded as saying he didn’t have keys and that Ronnie or Ray had one.[68]
[65] For example T350.22-351.5, T352.14-.25, T353.8-.21, T360.5-.12, T361.3-.18
[66] For example T291.19-.23, T354.16-.35
[67] T313.5-.34, T315.33-316.8, T363.23-367.4
[68] Call no 1888
For those reasons I treat the evidence of the accused with some caution, especially on the central topic of whether he left keys under a doormat before heading for Melbourne. In any case it remains necessary to consider whether on the whole of the evidence the charges have been made out: R v Daniel.[69] Because the accused’s evidence gains some support in the ways discussed above as to the connection between the home and FGI, it is not open to reject it on that topic.
[69] (2010) 207 A Crim R 449 at [36-37]
The combined state of the evidence certainly raises a reasonable doubt as to the issue of possession and the accused’s knowledge of the presence of the gun and it certainly raises at the very least, a reasonable hypothesis consistent with innocence, namely that FGI had access to and left the gun in the house. But that is not enough given the finding that the accused exercised control over the house and the reverse onus thus engaged!
The reverse onus considered
These conclusions return the inquiry to a consideration of whether Mr Sandery can demonstrate on the balance of probabilities that he did not know or could not be expected to have known the SKS rifle was in the house, as required by s 5(15)(a) of the Firearms Act. As mentioned, there is no direct evidence of such knowledge. Since he was elsewhere for the better part of the period leading up to the raid, there is no reason to think he should be expected to have known about it. The evidence raises the distinct and far from fanciful or far-fetched possibility that someone else was responsible for the rifle.
The standard required of him to discharge is proof by a preponderance of probability: Thomas v The Queen,[70] R v Carr-Briant.[71] There is enough support in the evidence to create the reasonable inference that FGI was responsible for the gun and had access to the house. The question is whether that possibility rises to the point of a preponderance of probability?
[70] (1960) 102 CLR 584 at 602
[71] [1943] KB 607 at 611
In the result I am driven to the conclusion that the combined state of the evidence supporting the defence case is not so cogent as to be capable of rebutting the presumption under s 5(14). At most that evidence is evenly balanced. It necessarily follows that the accused is deemed to be in possession of the firearm. For the same reasons he fails to demonstrate on balance that the offences were not committed intentionally or that he took reasonable care to avoid the commission thereof, so the defence provided for in s 36A of the Firearms Act is not made out as to each count.
Conclusion and orders
On the whole of the evidence the court concludes that Mr Sandery had the control of the premises at 142 Military Road Semaphore as of 20 December 2011. Despite the existence of a reasonable doubt as to guilt and of a reasonable hypothesis consistent with innocence, he fails to prove the probabilities are that he did not know or could not have been expected to know of the presence of the SKS rifle, or that the offences were not committed intentionally, or without taking care to avoid the commission thereof.
The accused is therefore found guilty of both offences and verdicts are entered accordingly.
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