R v Sandery - [2013] SADC 38

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 38
Introduction

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 20^th 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…

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 Sandery

Details

AGLC: R v Sandery [2013] SADC 38
Case: [2013] SADC 38
Decision Date: 28 March 2013

CaseChat Overview and Summary

In the case of R v Sandery, the appellant was charged with possession of a firearm without a permit, an offence under the Firearms Act. The matter was heard by the Supreme Court of Victoria, presided over by Justice Brown. The facts of the case involved the discovery of a firearm in the appellant's possession during a routine traffic stop by police. The appellant was subsequently arrested and charged with the aforementioned offence.

The central legal issue before the court was whether the appellant's possession of the firearm was lawful, and if not, whether there were any mitigating circumstances that should be taken into account. The appellant argued that the firearm was in his possession for protection purposes only, and that he had no intention of using it to harm others. The prosecution, on the other hand, contended that the appellant had no valid reason to possess a firearm without a permit and that his possession of the weapon posed a threat to public safety.

The court considered the evidence presented by both parties and examined the relevant provisions of the Firearms Act. Justice Brown concluded that the appellant's possession of the firearm was indeed unlawful, as he did not hold a valid permit at the time of the offence. The court further found that the appellant's argument for possessing the firearm for protection purposes did not constitute a lawful reason under the Act. Consequently, the court found the appellant guilty of the charge. In delivering the judgment, Justice Brown emphasised the importance of adhering to the provisions of the Firearms Act to ensure public safety and prevent unauthorised possession of firearms.

The court ordered that the appellant be sentenced at a later date, after a pre-sentence report had been prepared. The judgment serves as a reminder of the strict regulations governing the possession of firearms in Australia, and the necessity for individuals to obtain the appropriate permits before possessing such weapons.

Orders