R v Sclaptsi

[2020] SADC 91

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v SCLAPTSI

Criminal Trial by Judge Alone

[2020] SADC 91

Reasons for the Verdicts of His Honour Judge Press

15 July 2020

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING

Police attended at the accused’s house on 31 January 2018 when the accused was not present. Police had received information there was a rifle in the shed. In a cavity between the roof and the ceiling of the shed police located a sawn off rifle and two shopping bags of cannabis separated into smaller press-seal bags. The total weight of the cannabis was 852g. Two of the four rooms in the shed were lined with plastic and were consistent in appearance with rooms that had at some point in the past been used to grow cannabis hydroponically.

The accused attended a police station five days later and informed police he had no knowledge of the firearm or the cannabis and he suspected he had been set-up. He gave evidence at the trial to the same effect.

Verdict

Count 1- Guilty of aggravated possessing a firearm without a licence but second aggravating circumstance not proved.

Count 2- Not Guilty

Firearms Act 2015 (SA) s 6(3), 6(2), 9(7), 9(8); Controlled Substances Act 1984 (SA) s 4, 32(5), referred to.
R v Jones [2018] SASCFC 96; Shepherd v The Queen (1990) 170 CLR 573; Barca v The Queen (1975) 133 CLR 82; Knight v The Queen (1992) 175 CLR 495; R v Hillier (2007) 228 CLR 618; R v Baftiroski [2018] SASCFC 83; R v Saleh [2017] SASCFC 75; R v Pringle [2017] SASCFC 9; R v Soteriou (2013) 118 SASR 119; Kamleh v R (2005) 213 ALR 97; Office Concepts Pty Ltd v Telford Building System Pty Ltd (1994) 176 LSJS 120; R v Marafioti (2014) 118 SASR 511; R v Becirovic [2017] SASCFC 156, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"premises"

R v SCLAPTSI
[2020] SADC 91

Introduction

1. The accused, Mr Jimmy Sclaptsi, is charged with the following offences.

   First Count

   Statement of Offence

   Aggravated Possessing a Firearm Without a Licence (Section 9(1) of the Firearms Act, 2015).

   Particulars of Offence

   Jimmy Sclaptsi on the 31st day of January 2018 at Woodville West, possessed a prescribed firearm, namely a sawn-off single barrelled self-loading rifle, without holding a firearms licence authorising possession of that firearm.

   It is further alleged that the firearm was loaded.

   It is further alleged that Jimmy Sclaptsi committed the offence in connection with, or at the same time as, an act or omission that would, if proved, constitute a prescribed offence against the Controlled Substances Act 1984.

   Second Count

   Statement of Offence

   Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).

   Particulars of Offence

   Jimmy Sclaptsi on the 31st day of January 2018 at Woodville West, trafficked in a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.

2. He elected to be tried by judge alone.

3. Police attended at the accused’s house on 31 January 2018 when the accused was not present. Police had received information there was a rifle in the shed. In a cavity between the roof and the ceiling of the shed police located a sawn-off rifle and two shopping bags of cannabis separated into press-seal bags. The total weight of the cannabis was 852g. Two of the four rooms in the shed were lined with plastic and were consistent in appearance with rooms that had, at some point in the past, been used to grow cannabis hydroponically.

4. The accused was interviewed at a police station five days later and informed police he had no knowledge of the firearm or the cannabis and he suspected he had been set-up. He gave evidence at the trial to the same effect.

   General Legal Directions

5. The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the word proved, established, or satisfied when referring to a matter upon which the prosecution has the onus of proof then I have meant in each case to an extent beyond reasonable doubt.

6. The accused is presumed by law to be innocent of the charges unless and until the evidence that I accept satisfies me that every element of the offence has been proven beyond reasonable doubt.

7. There are two charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration. Guilt as to one count does not mean he is therefore guilty of the other count. I am also mindful that satisfaction of his possession of the firearm on the basis of the extended definition of possession applicable to the firearm charge and the accused’s failure to satisfy me on the balance of probabilities of the matters in s 6(3)(a) or (b) of the Firearms Act 2015 would not necessarily lead to satisfaction beyond reasonable doubt of his possession of the cannabis located in the same cavity.

8. I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.

9. In this case, witnesses have been called to give expert evidence. I note that persons who are qualified in a particular area may express an opinion. That opinion must be within their particular areas of expertise and that opinion must be based on their knowledge, training or experience. I am entitled to accept or reject any opinion evidence however before doing so I must consider the person’s qualifications, whether their opinion is based upon a fact I accept, whether the opinion is in dispute and whether it fits with any other evidence that I have heard and accepted on that topic.

10. The accused gave evidence. I will assess his evidence in the same way as any other witness. As the accused has given evidence in his defence that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. It is for the prosecution to prove the accused’s guilt. He does not have to prove his innocence.

11. As regards the record of interview I will have regard to both the parts which the prosecution relies on and the parts the accused relies on. It is a matter for me what weight I give these statements.

12. During the trial, evidence was led by the prosecution to suggest that the accused had cultivated, possessed and used cannabis. There was also evidence from the accused that he had previously cultivated cannabis, albeit some time ago, and that he had possessed and used cannabis recently. I will not reason that the accused is therefore a person of bad character and therefore more likely to commit criminal acts including the offences for which he is charged.

13. In light of the onus of proof on the accused as regards the matters in s 6(3)(a) and (b) of the Firearms Act and an intention to sell as regards the cannabis I further warn myself that evidence of other criminal acts or discreditable conduct of the accused must not be used to undermine his credibility when considering whether he has satisfied me of a matter on the balance of probabilities or when otherwise considering his evidence in the context of the prosecution’s burden of proof.[1]

    [1]    See for example R v Jones [2018] SASCFC 96 per Kourakis CJ at [3-6].

14. In his interview with police the accused stated, ‘you know, let’s be fair, you know, it’s not my form man’. Additionally, police referred to a charge of breaching bail when asking a question. Insofar as either the question and/or the answer may suggest the accused has other charges before the court or has been charged with, or convicted of, offences in the past, I indicate I have not had regard to the question asked by the police officer at all and I ignore it. As regards the answer given by the accused I do not use it to infer some previous discreditable conduct and I draw no adverse inference against the accused because of that answer.

15. I will only use the evidence that information was provided to police prior to the search as relevant to whether a third party had knowledge of the firearm and/or the cannabis and where they were located. I note the statements of fact contained in those assertions as to the accused having knowledge of the firearm, the accused trying to sell it and the accused possessing it for months are hearsay. I will not use any such statement as evidence of the truth of the assertion.

16. I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice or fear.

    Circumstantial Direction

17. The prosecution relies upon circumstantial evidence to prove certain elements as regards each offence.

18. When a case against an accused person rests wholly or substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused. If an inference or hypothesis consistent with innocence is open on the evidence, an accused person must be given the benefit of the doubt necessarily created by those circumstances.[2] Before the accused can be convicted his guilt must be the only rational inference which can be drawn from the circumstantial evidence.[3]

    [2]    Knight v The Queen (1992) 175 CLR 495.

    [3]    Shepherd v The Queen (1990) 170 CLR 573; Barca v The Queen (1975) 133 CLR 82.

19. I am to consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference. I am not required to analyse each circumstance individually. I must consider the weight which is to be given to the united force of all the circumstances. One piece of evidence may resolve a doubt about another.[4]

    [4]    R v Hillier (2007) 228 CLR 618.

20. It is not for the defence to establish that some inference other than guilt should reasonably be drawn from the evidence, or to prove particular facts which would tend to support such inference. If the evidence viewed as a whole is susceptible of a reasonable alternative explanation then the accused is entitled to be acquitted.

21. My resolution of the case depends upon my assessment of all the evidence and that includes, of course, not just inferences in favour of the prosecution but inferences, explanations and submissions put forward on behalf of the accused.

    Agreed Facts

22. The following facts were agreed;

    The residence

    1.As at 31 January 2018, the accused was the sole occupant of 118 Alma Terrace, Woodville West.

    2.The property at 118 Alma Terrace is registered in the accused's parent's name.

    The cannabis

    3.Exhibit AT2 contained a total of 415 g of dry female cannabis plant material.

    4.Exhibit AT3 contained a total of 437 g of dry female cannabis plant material.

    5.Forensic analysis of the cannabis in AT2 and AT3 established it was approximately 85% pure cannabis head, 10% cannabis seeds and 5% cannabis stem.

    The firearm

    6.The firearm labelled Exhibit AT1 is a 22 calibre Stirling brand self-loading rifle.

    7.The metal barrel of the firearm has been reduced and the timber stock has been sawn-off to the rear of the pistol grip.

    8.The firearm has a barrel length of 108 mm and an overall length of 397 mm.

    9.The firearm is a prescribed firearm as defined in the Firearm Regulations 2017.

    10.Upon being located by police, the firearm was loaded with a magazine containing 15 live Winchester Super X rounds of 22 calibre ammunition. These rounds were suitable for use in the firearm. A second magazine containing the same 15 live rounds of ammunition was taped to the loaded magazine.

    11.Upon being test-fired by a SAPOL ballistics expert, the firearm fed, fired, extracted and ejected correctly.

    12.As at 31 January 2018 the accused was not the holder of a firearms licence.

    CCTV footage

    13.The Albert Park Station has monitored CCTV cameras. The CCTV camera angles operating at the facility include: (a) the station platform, (b) the pedestrian mazes at each end of the platform, (c) the associated car park areas.

    14.None of the above CCTV camera angles at Albert Park Station cover Alma Terrace, Woodville West.

    15.The cameras at the Albert Park Station have been operating since the middle of 2017.

    16.SAPOL made a request for recordings of CCTV footage from the Albert Park Station on 13 June 2018 for the days surrounding 31 January 2018.

    17.The Department of Planning, Transport and Infrastructure were unable to provide the CCTV footage as such data is only held for a period of 30 days.

    Forensic analysis

    18.A swab sample was taken from the firearm AT1 and submitted to the Forensic Science Centre of South Australia for examination and comparison analysis.

    19.A forensic scientist determined that the sample contained very low amounts or no DNA and therefore the sample was not analysed.

    20.The 34 plastic resealable bags containing the cannabis (AT10) were submitted for fingerprint analysis. No suitable fingerprints were located.

    Information received by police

    21.A SAPOL Shield Intelligence Report dated 28 January 2018 reports the following information was provided to police: Jimmy Sclaptsi has a gun in his garage. He is trying to sell it but has had it for months. He lives on the corner of Alma and Pitman Streets in Woodville West.

    22.A separate State Intelligence Branch document (undated) records the following information: ‘Jimmy (Jimmy Sclaptsi) who lives on Alma Terrace Woodville West, has a rifle that he has been trying to sell. The rifle is stored in his shed.'

    23.The information in the above two documents referred to in agreed facts 21 and 22 was provided to police before 31 January 2018 by a third party.

    Elements of the Charged Offences and Matters in Dispute at the Trial

    The Firearm Charge

23. In order to prove the offence of possessing a prescribed firearm without a licence, the prosecution must prove three elements beyond reasonable doubt;

    (i)the accused was in possession of the firearm;

    (ii)the firearm was a prescribed firearm; and

    (iii)the accused did not hold a licence authorising possession of that firearm at the relevant time.

24. Proof of these three elements will satisfy the elements of the basic offence. It was agreed that the item located by police was a firearm, that it was a prescribed firearm for the purposes of the Act and that the accused did not hold a licence authorising possession of the firearm.[5] The issue in dispute was possession.

    [5]    Agreed Facts 6-9 and 11-12.

25. Section 6 of the Firearms Act 2015 defines possession for the purposes of an offence against s 9 of the Act. It relevantly states:

    (1)This section applies to the following items:

    (a)     a firearm;

    …

    (2)For the purposes of this Act (other than section 25), a person has possession of an item to which this section applies if—

    (a)     the person has physical possession or control of the item or has the item in the physical possession or control of another; or

    (b)     the person has and exercises access to the item; or

    (c)     the person controls access to the item; or

    (d)     the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the item is found.

    (3)However, subsection (2)(d) does not apply if the person proves that—

    (a)     he or she did not know, and could not reasonably be expected to have known, that the item was on or in the premises, vehicle, vessel or aircraft; or

    (b)     the item was in the lawful possession of another or he or she believed on reasonable grounds that the item was in the lawful possession of another.

26. The prosecution submitted the accused’s possession would be proved beyond reasonable doubt either on the basis he controlled access to the firearm or on the basis he occupied or had care, control or management of the premises where the firearm was found.

27. The accused disputed he controlled access but agreed he was the sole occupant of the premises and that s 6(3) was engaged either because the shed was part of the premises occupied by the accused or because the accused had care, control or management of the shed, if the shed was, for the purposes of s 6(2)(d) different premises to the main house.[6]

    [6]    T290; T310.

28. If the prosecution proves the matters in s 6(2)(d) beyond reasonable doubt then unless the accused proves the matters in s 6(3)(a) on the balance of probabilities, s 6(2)(d) applies and possession of the firearm will have been proved. The accused gave no evidence as to the matters raised in s 6(3)(b) and in any event the firearm was a sawn-off rifle and prescribed. It was not suggested a prescribed firearm would likely be in the lawful possession of any person or that the accused believed that to be the case. Sub-section (b) has no relevance to this trial and I will have no further regard to it.

    Aggravating Circumstances – Firearm Charge

29. To prove either or both circumstances of aggravation, the prosecution must prove beyond reasonable doubt that;

    i.     the firearm was loaded and/or;

    ii.that the offence was committed in connection with, or at the same time as, an act or omission that would, if proved, constitute a prescribed offence against the Controlled Substances Act 1984.

30. It was agreed that the firearm was loaded.[7] As to the remaining circumstance of aggravation s 9(7)(c) of the Firearms Act 2015 provides that an aggravating feature of the offending may be that ‘the offender committed the offence in connection with, or at the same time as, an act or omission that would, if proved, constitute a prescribed offence against the Controlled Substances Act 1984.’ The Firearms Regulations provide in Part 2 of Schedule 2 that an offence against s 32 (trafficking) is a prescribed offence for the purpose of s 9(7)(c) of the Firearms Act.

    [7]    Agreed Fact 10.

31. To prove this aggravating circumstance the prosecution must therefore first prove the offence of trafficking and then also prove that the firearm offence was committed in connection with or at the same time as the trafficking offence.[8] The accused disputed the charge of trafficking on the basis he had not placed the cannabis in the roof and he had no knowledge of the cannabis being in the roof either before or at the time police located it there.

    [8]    Whilst no submissions were made on this aspect I do not consider there was any genuine dispute as to this aspect of the aggravating circumstance. The cannabis and firearm were in the same place at the same time.

32. It was agreed the presumption in s 32(5) of the Controlled Substances Act 1984 applied if the accused was in possession of the cannabis. The accused did not give evidence of any intention to use all the cannabis himself or to supply some of it.

33. As regards the firearm offence the two main issues at the trial were therefore whether the accused proved on the balance of probabilities the matters in s 6(3)(a) and as regards the aggravating circumstance, whether if he was in possession of the firearm he was also, at the same time, in possession of the cannabis intending to sell some of it.

    The Trafficking Charge

34. To prove trafficking, the prosecution must prove beyond reasonable doubt;

    (i)the substance the subject of the charge is a controlled drug;

    (ii)the accused ‘trafficked’ in the controlled drug by

    i.possessing the controlled drug,

    ii.intending to sell all or some of the controlled drug in his possession; or,

    iii.taking part in the sale of the controlled drug by storing the drug for someone else for the purpose of some or all of it being sold by someone.

    (iii)when trafficking in the substance the accused did so ‘knowing’ that the substance was a controlled drug.

1. As to the cannabis it was agreed that the substance located was cannabis, that it weighed 852 grams and that the presumption in s 32(5) applied.

2. I am satisfied cannabis is a controlled drug. In light of the agreed facts, the evidence of the accused and the presumption, the element in dispute was his possession of the cannabis.

3. Section 4 of the Controlled Substances Act 1984 (SA) states:

   Possession of a substance or thing includes –

   (a)     having control over the disposition of the substance or thing; and

   (b)     having joint possession of the substance or thing.

4. In R v Baftiroski, [9] Nicholson J (Kourakis CJ and Parker J agreeing) expressed no concluded view about whether the reference in the section to “included” widened the concept of possession beyond the common law.  I proceed on the basis of the common law understanding of possession. I proceed on the basis the prosecution must prove the following as regards possession;

   1The accused knew of the existence and presence of the cannabis in the cavity;

   2The accused knew the cannabis was an illicit drug;

   3The accused knowingly had physical custody and control of the cannabis, where control includes the power to dispose of the drug;

   4The accused intended to exercise control over the cannabis, either because he intended to hide and store it for his own purposes or for the purposes of another.

   [9] [2018] SASCFC 83.

5. Whilst the prosecution also relied on taking part in the sale by storing the cannabis for the purpose of it being sold by the accused or another, the prosecution undertook, in the circumstances of this case, to prove beyond reasonable doubt that the accused was in possession of the cannabis to also satisfy this pathway to guilt.[10] This therefore enlivened the presumption whichever pathway was proved. As the real issue in this trial was knowledge I consider this was entirely appropriate.[11]

   [10] T7.

   [11] See R v Saleh [2017] SASCFC 75, [24-29].

6. The following evidence summary and discussion will therefore focus on the issues relevant to possession of the firearm and the cannabis and the accused’s evidence that he had no knowledge of either and that he suspected he had been set-up.

   The Evidence

7. The prosecution called three witnesses; Detective Brevet Sergeant Everlyn (‘DBS Everlyn’), Detective Brevet Sergeant Stewart (‘DBS Stewart’) and Detective Brevet Sergeant Schulz (‘DBS Schulz’).

8. On 31 January 2018 police attended at the accused’s address in Woodville West because of information they received from a third person. That information – or at least part thereof- is referred to in agreed facts 21 and 22. The accused was not at the house when police attended.

9. DBS Everlyn accompanied DBS Stewart when she scaled fences to enter the rear yard of the property. He believed the roller door was locked. He was the exhibits officer, he took the photographs tendered as Exhibit P4, he took the video of the accused’s house and shed tendered as Exhibit P6 and he was present at the interview conducted with the accused on 5 February 2018.

10. DBS Stewart also believed the roller door was locked. She scaled fences to gain access to the rear yard and then searched the shed and the cavity in which the firearm and cannabis were secreted.

11. The shed was unlocked and at the rear of the accused’s back yard. It was divided into four rooms, two of which it is alleged were consistent with having been used to grow cannabis hydroponically at some time in the past. Those two rooms were lined with plastic and contained water piping, frames from which to hang lights, bricks on the floor on which to place the pots containing the cannabis plant, large black pots and aluminium ducting. In one room police also located some leaf fragments at least one of which is alleged to be a fresh cannabis leaf. The leaf was photographed but not seized. In other parts of the shed police located large empty black pots stacked together.

12. In a room between the two grow rooms was a room containing a filing cabinet. To access the cavity between the roof of the shed and its ceiling DBS Stewart climbed on top of the filing cabinet. She then reached into the cavity. In that cavity, she initially located two plastic bags containing in total 852g of cannabis. Each bag contained approximately one ounce. The cannabis in the bags was made up of 85% flowering material, 10% cannabis seeds and 5% cannabis stem. She then reached further into the cavity and located a loaded sawn-off self-loading rifle. The firearm was inside a black drawstring bag and wrapped in a green plastic rubbish bag and then further taped with black electrical tape.

13. Everlyn stated the search of the cavity occurred no more than six or seven minutes after jumping the fence[12] and Stewart stated it was five minutes.[13]

    [12] T63.

    [13] T139-140.

14. Police could not recall whether they had tried to turn the electricity on however confirmed the search was conducted in the dark with torches. The video walk through of the shed was also conducted by torchlight.[14]

    [14] T58.

15. It was an agreed fact the accused was the sole occupant of the house. In any event the house contained male clothing and only one bedroom appeared to be in use as a bedroom. There was some dispute as to whether another room also contained a bed and I consider the walk-through video is not inconsistent with the accused’s evidence that a bed was in that room, albeit covered in clothing and other items. I do not consider this issue to be of any significance in light of the issues in the trial. That a person may have stayed at his house and hidden the items in the shed without his knowledge was not raised on the accused’s evidence. Whilst he stated people had slept at his house the accused gave no evidence as to who these people were, their knowledge of the shed, how frequently they stayed over, the longevity of their stay, whether they had stayed at the house recently, whether they were left alone or whether they had access to cannabis and firearms.

16. In the house police located bongs, digital scales and some small plastic bags. None of these items were seized. The prosecution submitted the bags appeared empty and new and therefore consistent with bags to be used to sell drugs. The stills taken from the video walk-through do not however permit of any accurate assessment of the number of bags or whether there were remnants of cannabis in them. There may have been as few as five to seven bags in total. DBS Everlyn further indicated in cross-examination that he could not remember if the bags were new or used but if they were new he would have noted that fact.

17. Neither DNA testing of the firearm nor fingerprint testing of the plastic bags containing the cannabis inculpated the accused. The sample of DNA located was small and therefore not analysed and no suitable fingerprints were located on the bags. Police gave evidence there is a policy that plastic bags will not be DNA tested when the charge is a summary offence. There was no evidence as to whether fingerprints may have been obtained from the firearm when the DNA sample obtained was small or of the likelihood of DNA being located on plastic bags.

18. The accused attended at a police station five days later. He denied any knowledge of both the firearm and the cannabis. He informed police that he believed someone was trying to set him up and invited them to check CCTV cameras at a railway station across the road from his house to see if anyone had ‘come through’ the station. He did not want to say who he suspected as it would just be speculation.

19. The accused gave evidence. His evidence was largely consistent with his interview. He denied placing the items in the roof or having any knowledge of them. He agreed the rooms had previously been set up to grow cannabis in 2000 but he stated that he had not grown anything in those rooms since 2015 and that the rooms had not been connected to the electricity since 2015.

20. He stated he almost always stayed at his girlfriend’s house although some qualifications to this evidence were introduced as his evidence unfolded.[15] He said it was not difficult to gain access to his backyard or the shed. He stated the roller door was not in fact locked but it was sometimes difficult to pull up.[16] He explained he had installed locks on the roller door after the police attended.

    [15] T203; T204; T210; T211; T212

    [16] T240.

21. He agreed the bong, scales and bags in the bedroom were his. He used the scales to make sure the amounts he purchased were correct and the bags had previously contained cannabis that he had used.  He denied they were new bags. He had not decided to grow his own cannabis even though he had the requisite knowledge because there was no power to the shed. He accepted he could have possibly grown a plant inside the house.

22. He stated he had never used the cavity himself to hide items[17] and he had never told or shown anyone about it.[18] He also said he had not taken anyone through the shed in the year preceding his arrest[19] although the person he suspected of planting the items had been in his shed years before.[20] He initially agreed the cavity would be difficult to locate but then said he thought it was possible to see the cavity by just standing in the shed.[21] He thought the gap between the roof and the ceiling was about 19mm.[22] How this would be possible to see in the dark was not explored in his evidence.

    [17] T234.

    [18] T236.

    [19] T233; T242.

    [20] T243.

    [21] T235.

    [22] T236.

23. He had suspicions about who may have placed the items there but he stated he was unwilling to provide any details of his suspicions because the person he suspected is a ‘dangerous person’ and he is scared of him.[23] He stated he was 90% certain he knew who set him up. The person he suspected had access to a lot of cannabis and he was ‘not short of a dollar’. The inference was that such a person could afford to lose some cannabis, particularly cannabis of a lower quality. No evidence was however led as to the nature of their dispute, when it occurred, whether planting evidence was a rational or proportionate response to the nature of the dispute or how answering any of these questions would identify the person or put the accused in danger of being accused of informing on another. Similarly, no questions were asked in cross-examination on these topics.

    [23] T209.

24. He thought cannabis full of seed was worthless as it tastes funny and it ‘pops’ when it is burnt.

25. DBS Schulz gave evidence as to the cultivation of cannabis, its packaging and the weights and prices at which it was sold in January 2018. She had substantial experience investigating such offences and had trained others in this area.[24] She gave the following evidence:

    [24] T33 – 37.

    i)The cannabis located in the roof was packaged in the size of plastic resealable bag generally used for selling cannabis by the ounce (28g). I note at this point that there is no evidence that Forensic Science weighed each of the 17 bags in each of the two shopping bags however the total weight of the two shopping bags divided by 34 results in an average weight of 25g per bag.

    ii)In January 2018, an ounce (28g) of cannabis sold for between $200 and $250, a pound of cannabis for between $2,400 and $3,200 and a j-bag (2-3g) for between $25 and $50. These prices are approximations.

    iii)As to the cultivation of cannabis she stated many of the items located in the accused’s shed were those commonly found at premises used for cultivating cannabis. The items commonly encountered at ‘grow rooms’ were large black pots, walls lined with reflective material, watering systems, piping, ballast boxes, ventilation systems or carbon filters, beams across the roof or a frame from which to hang lights and large lampshades and lights. Upon being shown photographs of the rooms in the shed she stated, ‘it looks to me like a grow room, a cannabis grow room’. This evidence was not challenged and in light of the accused’s evidence I am satisfied those rooms had been used to grow cannabis at some point in the past.

    iv)The lampshade shown in photo 1 of Exhibit P7 is consistent with the type of lightshades used in hydroponic cannabis cultivation. The lampshade was located inside the accused’s house however I note it is not possible from the photograph to determine whether a bulb is in the shade and DBS Everlyn had no recollection of a globe in the shade.[25] She further stated she had seen lampshades like this with a large bulb in the lampshade although she agreed many more similar lamps would normally be used for rooms the size of those in the accused’s shed.

    v)As to some plant material photographed on the floor of one of the ‘grow rooms’ she stated it is ‘generally what a cannabis leaf looks like’. She accepted she was not a botanist but stated it looked to her to be a cannabis leaf. I note at this point that this opinion was not challenged in cross-examination and in the accused’s evidence he agreed it looked like a cannabis leaf. Both DBS Everlyn and Stewart also stated that they considered the leaf in photograph 8[26] to look like cannabis. Each officer gave evidence as to their general experience in investigating cannabis related offences and there was no challenge to the ability of each police officer to express a view as to the similarity between cannabis leaves and the item seen in the photograph.[27]

    vi)Many of the items necessary for such a room to be used to cultivate plants were not however present. There were no ballast boxes, carbon filters, shades or lights in the rooms of the shed. Similarly, the watering system was not connected or in a state to be used at that time. She agreed neither room was set up for plants to be grown as at the day police attended.

    vii)She was not an expert in firearms or the sale of firearms and could not comment on the value of a firearm on the black market. She did confirm that weapons including firearms are associated with the illicit drug trade. Whilst one of her answers could be taken to mean weapons are used to protect cannabis plants, when considered as a whole the tenor of her evidence was clearly to the effect weapons were associated with those involved in the cultivation and possession of drugs when there was also an associated intention to sell the drugs.[28]

    viii)Items frequently associated with drug dealing are multiple phones, tick lists, cash, bud strippers, scales and plastic bags and weapons. The absence of any of these items was not however determinative as within various syndicates it was common for people to have different roles and a person’s role may not require possession of each of those items.

    ix)As to the value of cannabis, she stated that the flowering head was the most valuable part of the plant. She stated it was normal to get some leaf and stem mixed with the head when a bud stripper is used and that she had seen such mixes sold before. She agreed that cannabis consisting of only flowering head would be worth more than a mixture of 85% flowering head and 15% stem and seed. She qualified this however by stating its value may nonetheless depend on whether the buyer knew the difference and the buyer knew what was in the mix.

    x)A person who gives information to police may be in danger if others become aware of this fact. I note at this point that this evidence is I consider a matter of common sense and public knowledge. I do not consider expert evidence is required as to that fact.

    [25] T29.

    [26] T31 per Everlyn and T129 per Stewart.

    [27] R v Pringle [2017] SASCFC 9.

    [28] T155; T157; T170-171.

26. There was no challenge to her expertise to give this evidence or to the evidence itself. There is no evidence which casts any doubt on its accuracy. Whilst I am not obliged to accept her evidence I am satisfied beyond reasonable doubt that her evidence is credible and reliable.

    The Prosecution Case

27. I will briefly summarise the main points raised by the prosecution. The circumstantial evidence relied upon by the prosecution to prove possession of the cannabis and possession of the firearm is:

    (i)The accused was the sole occupant of the house. It is said there is an inherent likelihood that someone would have the opportunity to place those items in his rear shed without his knowledge.

    (ii)The rear yard of the property is not easily accessed by a third party. The roller door was locked or at the very least difficult to move. It would therefore be inherently risky for a third party to either pull up a noisy roller door or jump the fence where the police officers did so, walk down the neighbour’s property and then scale the fence again to get into the rear yard. Additionally, the risk of detection would increase, as would the degree of difficulty, if the person was holding a rifle and two bags of cannabis.

    (iii)The cavity in the roof is difficult to see and would only be known or discoverable by someone who lived at the premises and knew it well. The person who set up the rooms in the shed to grow cannabis and installed the electrical wiring would be best positioned to know about that cavity and that person was the accused.

    (iv)The accused said he had not shown anyone the cavity and nor had he told anyone about it.[29] The accused further stated that he did not use the cavity to hide items.[30] In circumstances in which the accused states there is no electricity to the room then the possibility of someone finding the cavity by chance is extremely remote.

    (v)The accused had two grow rooms set up in the same shed as the items were located. These grow rooms were evidence of the accused’s interest in cannabis and they provided a possible source for that cannabis.

    (vi)The leaf seen and photographed by police is indicative of a temporal connection between the use of the grow rooms and the locating of the cannabis in the cavity. It is said the leaf is green in colour and therefore it is evidence of a recent cultivation.

    (vii)The large lampshade located inside the house is the sort of lampshade used to cultivate cannabis hydroponically in grow rooms.

    (viii)The bong located inside the house is indicative of an interest in cannabis.

    (ix)The digital scales and the numerous small plastic press-sealed bags, which it is alleged were empty, are indicative of possession of the accoutrement of drug selling. This means the accused is more likely to have a drug to sell and this is relevant to his possession of the cannabis in the cavity and his intention as regards that cannabis.

    (x)The inherent unlikelihood of a third party planting both a firearm and cannabis in the accused’s roof. It is submitted there is no logical reason why a person would forfeit both a firearm which has a value and cannabis worth more than $4,000 to set up the accused. The prosecution asks why would someone forfeit both when one item would be sufficient to achieve that purpose.

    (xi)The absence of any reference to cannabis in the information given to the police by the third party suggests the third person was not aware of the cannabis. If the person was aware of the cannabis and they wanted to set-up the accused it stands to reason they would have referred to both items.

    (xii)During the accused’s interview there are three exchanges with police which suggest he knows where the items were hidden prior to being told by anyone where police had located the firearm or the cannabis. Those exchanges therefore support an inference that he had esoteric knowledge of the location of both items.

    [29] T236.

    [30] T234.

28. Finally, it was submitted the accused’s evidence should be rejected because he had changed his story as to people staying at his house, how often he lived away from the house and the degree of certainty he had about who had set him up, and his explanation for possessing the scales was underwhelming.

    The Defence Case

1. In answer to the prosecution’s submissions and in support of his evidence that he had no knowledge of either the cannabis or the firearm the accused submitted;

   (i)There was ample opportunity for someone to enter the premises and plant the items in his shed given the accused was frequently absent from the house staying over at his girlfriend’s house.

   (ii)Accessing the rear yard was not particularly difficult as evidenced by two police officers being able to scale the fences and enter via the neighbouring property. If police had no problems doing so then a person carrying a bag containing a firearm is also unlikely to have any difficulty. In any event, the roller door was not locked and the evidence of the police cannot establish that it was locked. Access could therefore be obtained through the roller door which could also minimise the risk of being seen climbing over the fences.

   (iii)There is no impediment to entering the rear shed as it is unlocked.

   (iv)Notwithstanding the accused states he has not shown or told anyone about the cavity, he had assistance constructing the grow rooms so others may know about it.

   (v)Whilst the accused agrees that he set up the grow rooms to cultivate cannabis he did so in 2000 and he has not used them since 2015 when the electricity ceased to be connected to the sheds. There were also no lights in the shed, no ballast boxes, no carbon filters and no operating water system. The expert witness agreed the rooms were not in a state which would allow them to be used immediately.

   (vi)The evidence of a leaf on the floor is insufficient to prove a temporal connection between the use of the grow rooms and the day the cannabis was located. In the absence of the leaf being seized and analysed and in the absence of any expert evidence as to how a cannabis leaf may appear after 2 years on the floor of a shed in dry, dark conditions, no inference can be drawn that there has been a recent cultivation and there is no basis to reject the accused’s evidence as to when he used the rooms.

   (vii)As to the items located inside the house, there is insufficient evidence as to the number of plastic press-sealed bags located by police. In any event the evidence is more consistent with the bags having been used previously, as stated by the accused in his evidence. Even assuming each bag seen in the photographs has some bags underneath it, the number of bags is less than one would expect of a person selling drugs. The evidence of the bong, the scales and the press-sealed bags are equally, if not more so, consistent with personal use than any intention to sell. It is also noteworthy that there were no tick lists, cash, signs of unexplained wealth or multiple phones. 

   (viii)The lampshade located by police in the house is consistent with being a normal lampshade unconnected to the grow rooms.

   (ix)   There is nothing inherently unlikely about a person suspected by the accused of planting the item being prepared to forfeit both a firearm and the cannabis - particularly when the cannabis is less than 100% flowering material. It is submitted the use of a poorer quality cannabis is exactly what might be expected by someone attempting to set another person up and wanting to minimise the loss they will incur. There is also no evidence as to the value of a firearm on the black market.

   (x)    The firearm was well wrapped and clearly not designed for ready access or the protection of the cannabis.

   (xi)In light of the existence of an informant, that person could only have obtained the information about the firearm by being shown the firearm, by being told about it, or by being the person who put it there. In circumstances in which police located the cavity and the firearm within about five minutes of jumping the fence, it is reasonable to infer that police were in possession of more information than that contained in the agreed fact and the informant knew the firearm was hidden in the cavity. On that basis, it is reasonable to ask why the accused would show the firearm to anyone and why the accused would advertise or disclose where the firearm was hidden. The most reasonable hypothesis is therefore that the informant was the person who put the firearm in the cavity. It is also noteworthy that police did not find any green garbage bags or black tape similar to that used to package up the firearm. Police also did not locate any sandwich bags of the size used to package the cannabis located in the cavity. The plastic bags located in the house were smaller in size.

   (xii)The failure of police to obtain or ask for the CCTV footage from the railway station until five months later, the failure of police to conduct DNA testing on the bags containing the cannabis, the failure of police to conduct fingerprint testing of the firearm, the failure to seize the leaf and lead any evidence on the topic of its possible age and the failure to seize any of the plastic bags inside the house are all relevant to whether the prosecution has proved beyond reasonable doubt the charges laid against the accused.

   (xiii)The accused’s version has been consistent and he was not to know that the CCTV would not point at his house. Further it would be unfair to subject his interview with police to ‘too fine an analysis’.

   (xiv)His claim that he is scared to give any detail is consistent with the evidence of DBS Schulz and common knowledge that a person who informs to police may be in danger of reprisals.[31]

   [31] T169; T296.

   Discussion and Findings on Counts 1 and 2

2. I was invited by the prosecution to consider the trafficking count first as satisfaction beyond reasonable doubt that the accused had knowledge of the cannabis and that he was either in possession of it intending to sell it himself or in possession of it to enable another to sell it, would be a relevant finding as regards his possession of the firearm. I accept the logicality of considering the offences in that order. That does not mean I must consider the presence of the cannabis in isolation. The presence of the firearm remains relevant to a consideration of the issues as regards the cannabis.

3. Prior to considering the trafficking charge I remind myself that the accused’s evidence and case is that he did not know about the presence of the cannabis or the firearm. His assumption that someone has planted those items in his shed arises from his stated knowledge or suspicion that someone has a grudge against him, his stated lack of knowledge of the items and an acceptance that the presence of the items if he did not know of them could only realistically be explained in three ways. Those three ways are that he placed the items there a long time ago but forgot about them, a friend or acquaintance stored the items in his shed without his knowledge or someone planted the items in his shed to cause him trouble. The accused gave evidence he had never used the cavity to hide items and he had not shown or spoken about that cavity in the ceiling to anyone. That a person may have stayed at his house and hidden the items in the shed without his knowledge was not raised on the accused’s evidence. Whilst he stated people had slept at his house the accused gave no evidence as to who these people were, their knowledge of the shed, how frequently they stayed over, the longevity of their stay, whether they had stayed at the house recently, whether they were left alone or whether they had access to cannabis and firearms.

4. In light of the above, that a person contacted police and that he stated he suspects a person with access to cannabis had a reason to plant evidence against him, the main issue is whether I am satisfied beyond reasonable doubt that he knew of the cannabis and that someone did not plant the items there in order to cause him problems with the police. This is the basis upon which I was asked to consider the evidence and this is the basis upon which the parties contested the trial.

5. I make clear that whilst I have spoken about the accused raising this issue I do so only in the context of identifying the issues at the trial. The onus remains at all times on the prosecution to prove the elements of trafficking beyond reasonable doubt, including that the accused had knowledge and possession of the cannabis.

   Discreditable Conduct

6. There was evidence from which it could be inferred the accused had previously cultivated cannabis, that he had recently possessed and used cannabis and that he possessed items consistent with a future intention to sell cannabis.

7. I have used the evidence of previous cultivations of cannabis as evidence relevant to whether he has the knowledge and the means to have cultivated the cannabis which was in the cavity. That is, as evidence of the possible source of that cannabis. The prosecution also suggested it could be used to show ‘an interest’ in cannabis to rebut an innocent association with the cannabis in the cavity. I consider it could have that use if there is a temporal connection between the use of the grow rooms and the date the cannabis was located. The absence of a temporal connection would however deprive the evidence of much of its probative force as regards ‘an interest’ and absent such a connection I will not use it for that purpose.  I have not reasoned that because he has engaged in past cultivations it means he is the sort of person who would possess cannabis at some later time. Neither have I reasoned that he is a person of bad character and therefore more likely to commit offences, including those for which he is charged.

8. As to the evidence of his recent possession and use of cannabis I have used that interest in using cannabis as relevant to whether he would have cannabis in his possession to use. It is only relevant to the possession of the cannabis in that way. Whilst he gave no evidence he possessed the cannabis in the roof for personal use, the amount of cannabis would not preclude such an inference, particularly as there was no dispute he did use cannabis. Whilst the amount is over the deeming provision it is not a particularly significant amount of cannabis. I have not used his interest in cannabis as evidence relevant to an intention to sell. I do not consider it has any relevance to whether he has such an intention.

9. As to his possession of the scales and the small press-sealed bags I do not consider this is discreditable conduct. If the bags are unused they relate to an intention to sell in the future, not the past.[32] If they are used they are more consistent with the accused having used cannabis in the past and I have identified the potential use of that evidence in the preceding paragraph.

   [32] R v Soteriou (2013) 118 SASR 119.

10. If the bags are unused the prosecution rely on his possession of the bags and the scales as evidence from which it can be inferred he possesses that cannabis and intends to sell it in the future.  In effect, if he has the utensils to sell cannabis now, that is relevant to whether he is in possession of the cannabis located elsewhere in his house at the same time. Possession of those items does not itself indicate past sales, particularly in the absence of tick lists or cash, and nor does its relevance rely on the fact of past sales. If I am wrong about this and possession of these items may ‘tend to suggest he has engaged in discreditable conduct’ I make it clear I have not used it as evidence of past sales or a business which discloses a tendency or disposition to sell cannabis which of itself would make it more likely he possesses the cannabis and intends to sell it. I have not reasoned in that way. In any event, for reasons outlined later, I am satisfied this evidence does not allow for any inference to be drawn as to past sales or a future intention to sell and this evidence is therefore only relevant as evidence of his interest in cannabis.

11. Lastly, as to the evidence indicating he possessed the cannabis in count 1 and it being discreditable conduct as regards count 2 and vice versa I have only used the evidence as to each item as being relevant to the other on the basis both items were in the same cavity. Given the nature of the location I have reasoned that knowledge of one item is relevant to knowledge of the other item. That is the only use I have made of this evidence.

12. I have only used the discreditable conduct evidence for the permissible purposes I have identified. I have not used the prosecution evidence or the accused’s admissions as to his use of and interest in cannabis to reason he is a person of bad character and therefore more likely to commit offences, including those for which he is charged. I have warned myself that the fact that person has broken the law in one instance does not mean that person is therefore more likely to break the law on another occasion.

    Trafficking

13. I remind myself that a reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference. I am not required to analyse each circumstance individually. That is not however to say that drawing an inference as to guilt will not depend on the nature of each piece of evidence. It is therefore convenient to deal with the different aspects of the prosecution case.

14. As to both DBS Everlyn and Stewart, there was no challenge to either their honesty or reliability. Whilst the accused has made some criticisms of the police investigation or the lack thereof, those submissions were not directed at the credibility or reliability of these witnesses.

15. Insofar as their evidence was inconsistent with that of the accused as to the roller door being locked I do not consider that conflict calls into question either their reliability or their credibility. Both believed it was locked but each accepted they had not tried to open the roller door from the outside. Everlyn believed he or Stewart had tried to open the door once they gained access to the rear yard and Stewart believed Everlyn opened it from the inside. DBS Everlyn frankly admitted it was possible the door was not locked but just difficult to lift.  Whether the roller door was locked or simply difficult to move there is no dispute that both police officers felt it necessary to scale the fence, walk down the neighbour’s property and then re-enter the accused’s property by climbing over another fence. This was clearly not a significant issue at the time and appropriate concessions were made by the police as to what they remembered and what was possible. I do not consider either was doing other than attempting to accurately recall the events of that day. I am satisfied beyond reasonable doubt that both police officers gave their evidence honestly and that their evidence was reliable.

    Access

16. Whilst I accept access to the rear yard would not have been straightforward for a third party, I do not however consider access would have been particularly difficult for someone intent on gaining such access. The two police officers did not appear to have any real difficulty in scaling the fence twice to enter the rear yard. The aerial image of the accused’s property (Exhibit P2) does show the neighbouring property however there is no evidence as to when that aerial image was taken. The image does not appear to indicate there would be any impediment to walking off the street and straight down the driveway of the neighbouring property to gain access to the accused’s rear yard by scaling the fence once. There was no evidence on this issue. I agree with the prosecution submission that any person walking down the neighbour’s driveway and jumping over the fence would be at risk of being seen or discovered, however again, there was no evidence as to how many people lived next door, how often those people were at home or whether they would necessarily see or hear someone walking down their driveway or climbing over the fence. Whilst I accept there would be some risk, it is no different to the risks that are taken by any number of people when they break into a house or a business. I note many such offences occur without anyone being seen. Once access is gained to the rear yard the rear shed was clearly unlocked and there was no impediment to accessing the shed. Carrying a bag containing a firearm and 800g of cannabis would not be so burdensome as to indicate scaling the fence would be unlikely.

    Opportunity

17. As to the opportunity for a person to gain access in the accused’s absence, the accused initially gave evidence that in the average week he would stay at his girlfriend’s house ‘every night’ around this time.[33] This changed slightly when he then stated that he also stayed at his mother’s house and then eventually said he stayed at his house ‘not very often’, ‘a day here, a day there’.[34] He stated it was mainly used as a storage place. In cross-examination he agreed he would stay overnight at the house in January 2018 ‘a couple of nights, maybe’ a week. I do not consider anything turns on whether he spent two or six days a week at his house as a person intent on planting evidence could simply wait for such an opportunity. I was left however with the firm impression the accused exaggerated the frequency of his stays at his girlfriend’s house. I consider he did so to maximise the opportunity someone would have to access his rear yard. This willingness to exaggerate is I consider relevant to his credibility.

    Grow rooms

    [33] T203-204.

    [34] T204.

18. Even absent the accused’s evidence, I would be satisfied two of the rooms in the shed had been used to cultivate cannabis in the past. The accused’s confirmatory evidence of that fact means I need not further explain why I am satisfied of that fact. I agree this evidence is potentially relevant to whether he had a source for the cannabis located in the cavity and as evidence of his interest in cannabis. I consider the weight to be given to this evidence as a possible source of the cannabis is obviously strengthened upon there being a temporal connection between the use of those rooms to cultivate cannabis and 31 January 2018 when police located the cannabis.

19. The prosecution submits the temporal connection exists because police located a green cannabis leaf and other leaf remnants on the floor of one of the rooms in the shed. It is submitted the colour of the leaf is only consistent with the rooms having been used to grow cannabis in the previous few months.

20. There appears to be no dispute that photograph 8 of Exhibit P4 shows at least one cannabis leaf on the floor of one of the rooms. DBS Stewart gave evidence she recalled leaf matter being on the floor during the search.[35] DBS Schulz was shown photograph 8 of Exhibit P4 and stated, ‘that to me looks like a cannabis leaf’.[36] DBS Everlyn similarly indicated that the leaves in photograph 8 were ‘suspected to be cannabis leaves’.[37] There was no challenge to the evidence given by each of the police officers on this topic. There was no suggestion they had insufficient experience with cannabis to give this evidence or to suggest the leaf may have originated from some other type of plant. This evidence was clearly admissible.[38] Lastly, I note the accused also agreed the leaf appeared to be cannabis[39] and he did not suggest any other type of plant had been grown in his shed. Given its location, the accused’s evidence of the rooms being used to grow cannabis and the uncontested evidence of the police officers I am satisfied the leaf seen on the floor in photograph 8 is a cannabis leaf.

    [35] T129.

    [36] T159.

    [37] T31.

    [38] R v Pringle [2017] SASCFC 9, at [57-59].

    [39] T230.

21. The prosecution further submits that the leaf in the photograph is green and that the leaf would not have retained that colour if it had been left on the floor for any substantial period. The accused’s evidence that there had been no electricity to the shed since 2015 means if the leaf originated from a cultivation then it must have been there for at least two years and one month. Whilst I have some doubts that a leaf would retain its form and colour for a period of two years – even in a dark room removed from the outside elements – I do not consider the evidence is sufficient to satisfy me that the rooms had been recently used. Firstly, the cannabis leaf was not seized. Whilst the photograph suggests a degree of greenness, the quality of the photograph is not such that I can be certain as to the colour. I also note that as a matter of common experience many dried herbs retain their colour even after a significant period. There is also no evidence as to whether the leaf had completely dried out. There was also no expert evidence as to what may be expected of a cannabis leaf as regards disintegration or the loss of colour over time in a dark, dry shed.

1. The state in which the grow rooms were found by police was also inconsistent with a recent cultivation. There were no lights, no ballast boxes, no carbon filters and no operating watering system. There were also no left-over chemicals or bags of growing medium which would be more consistent with a recent cultivation. The accused’s evidence that the shed had been without power for just over two years was not inconsistent with the evidence of the police that they conducted the search and the video walk through in the dark. While no-one could recall trying the lights or the power source, there was no evidence to contradict the accused’s evidence on this point and some evidence to indirectly support it.

2. That police located a lampshade in the house does not alter my view. Firstly, it was not seized by police. It is only able to be seen in the video. It is not possible to discern from the still photograph from the video whether there was a globe in the lampshade. It may be consistent with the type of lampshades used in grow rooms but even if it had previously been used in the shed, its location in the house separated from the other items in the shed and the absence of any evidence of a suitable globe for use in a hydroponic set-up are not consistent with a recent cultivation in the sheds.

3. Whilst I do not consider a recent cultivation is an indispensable link in the chain of reasoning to guilt I do consider it is a significant aspect of the prosecution case. A recent cultivation by the accused would more readily explain the cannabis in the ceiling and the accused’s knowledge of it. I am not satisfied beyond reasonable doubt that a cultivation occurred in the months leading up to 31 January 2018. Whilst I have some doubt as to the accused’s evidence of a gap of two years I cannot exclude that possibility. That does not however mean the evidence has no probative value. The presence of the grow rooms, even if not used for some considerable time could still explain the source of the cannabis located in the cavity. The inference is I accept much weaker and if it explained the source of the cannabis in the cavity it would also strongly suggest the accused did not intend to sell that cannabis. I would expect the cannabis to have been sold within such a time frame if that was his intention. I accept he did not give evidence he was gradually depleting the cannabis by using it himself however such an inference is not inconsistent with the presence of the grow rooms which have been used in the past and his admitted access to and use of cannabis at that time.

   The packaging

4. Police did not find any green garbage bags or black electrical tape similar to that used to package the firearm. The prosecution does not however allege the firearm was recently acquired by the accused and there is no evidence as to when he obtained it, if he ever knowingly did. The absence of those items in the house is consistent with the accused not having knowledge but I do not consider that it is, of itself, a matter of great weight given it is not possible to know when it was wrapped and packaged.

5. The accused stated he could not say whether he had sandwich sized resealable bags at his house at some time in the past but it was possible.[40] I note however police also did not locate any plastic bags of the size used to package the cannabis located in the cavity. The absence of evidence that sandwich size press-sealed bags were located may not of itself be telling but in combination with evidence the packaging materials used on the firearm were also not located, I consider this is a relevant consideration.

   His use of cannabis

   [40] T252.

6. The accused admitted using cannabis and the evidence supports that admission. That is relevant to whether he would have cannabis stored at his house for his own use-particularly when he has had the means and knowledge to cultivate that cannabis.

   Evidence of items used in selling drugs -plastic bags and scales

7. The accused gave evidence the small press-sealed plastic bags found in his room, used to have cannabis in them and were not new. I accept the evidence does not allow for any inference to be drawn that the bags were new. The photographs do not assist and the bags were not seized. DBS Everlyn also stated ‘I don’t recall them being new, I think they were used’.[41]  I therefore do not accept they were new.

   [41] T60.

8. I also agree with the defence submission that there is insufficient evidence to determine how many small plastic press-sealed bags were seen by police in his bedroom.  I cannot determine from the photographs how many press-sealed bags are present in his bedroom and again the failure to seize the bags leaves the evidence in a state of uncertainty.

9. As to the scales, I accept scales are a tool of the drug trade but I do not consider the accused’s evidence that he weighed cannabis upon his return to the house to be unbelievable or unlikely.

10. I do not therefore consider possession of scales and potentially less than 10 small press-sealed bags, most or all of which had been used, assists the prosecution as evidence of the accused having an intention to sell cannabis and as evidence of his possession of the cannabis in the cavity for that purpose. The absence of tick lists, obvious signs of wealth and cash simply strengthens my view of this evidence and its relevance to whether he possessed the cannabis in the shed.

    That no reference was made to cannabis in the information provided to police

11. That a statement of fact was made to police prior to their attendance is relevant as evidence from which it can be inferred a third party had knowledge of that fact.[42] That the statement included certain details provides a basis to infer the person not only knew a firearm was on the accused’s property but also that it was a rifle and that it was in the shed. The limited time taken by police to find the firearm in a dark room when the police officer had to stand on a filing cabinet to reach into the cavity and when the shed consisted of three other rooms in which the firearm may have been hidden, is evidence from which it can be inferred police had also received information about the precise location of the firearm.

    [42] Kamleh v R (2005) 213 ALR 97.

12. It was suggested by the prosecution that I should infer the third party was not aware of the presence of cannabis in the cavity. It was submitted that the agreed fact only referred to police being informed about a firearm and I should therefore infer there was no reference to cannabis by the third party. In those circumstances, it was submitted it may be doubted the third party had planted the evidence to set up the accused as if that was the person’s intent there would be no reason not to refer to both the firearm and the cannabis. If the agreed fact confirmed that the only information provided by the third party related to the firearm then I accept such reasoning may be open although the inference may not be particularly compelling. I am not however satisfied that the agreed fact is to that effect. Agreed facts 21 to 23 refer to information which was provided to police. It does not purport to suggest this was the only information provided by the third party. On that basis alone I would not be prepared to reason in the manner suggested by the prosecution however I further consider the speed with which police located the firearm and the cannabis in the cavity provides further support that other information was provided to police. I also note DBS Everlyn refers to having received ‘additional information’, on the morning of the search.[43] I have therefore determined that the absence of a reference to cannabis in agreed facts 21 and 22 does not assist the prosecution case.

    The remaining considerations

    [43] T54.

13. I consider the following evidence and considerations provide the basis for a strong inference to be drawn that the accused had knowledge and possession of the cannabis in the cavity.

14. Firstly, a third party may have obtained his or her knowledge of the item or items in the roof cavity by being shown the items by the accused, by being informed by the accused or another person, or by having placed the items there himself/herself. The defence submission was that there is no reason why the accused would advertise or disclose where the firearm or the cannabis were hidden and therefore the most plausible explanation for a third party knowing of the items is that he/she had prior knowledge of the cavity and planted the items there. I do not however consider that to be a particularly compelling submission. Whether the accused may show or inform someone would depend on any number of factors including the nature of their relationship, whether the accused was holding the firearm for another person, whether he was selling cannabis to another person and whether he trusted that person. I also consider it is not contrary to human behaviour to inform others of matters which for their own self-interest would best be kept secret. There are therefore other obvious explanations for a third party having knowledge of the cavity and the items therein. The other possible explanations for a third party having such knowledge are neither fanciful nor far-fetched. To the contrary I consider they are entirely consistent with my experience of human behaviour.

15. Secondly, whilst the shed is accessible to a person who gains access to the rear yard, the accused’s evidence that he had never used that cavity as a hiding place, that he had never told anyone about the cavity and that he had never shown anyone the cavity is significant.[44] It is difficult to reconcile his evidence with a third party either knowing about it or happening upon it when trying to find a place to hide the firearm. Whilst the accused suggested in his evidence that he thought it was possible to see the cavity by just standing in the shed, I consider that answer was disingenuous in light of his acceptance one question before that the cavity would have been ‘very difficult to locate’[45] and his acceptance that the gap between the roof and the ceiling was only about 19 millimetres.[46]I consider this means it is far more likely that the accused had shown someone that cavity and that the accused had in fact used that cavity to hide items in the past. This likelihood is clearly relevant to how a third party may have obtained their knowledge prior to informing police about the presence of the firearm. I consider it also bears directly on the credibility of the accused’s evidence and the strength of the inferences I am prepared to draw from the location in which the cannabis and firearm were hidden.

    [44] T234; T236.

    [45] T235.

    [46] T236.

16. Thirdly, I agree with the prosecution’s submission that it is counter-intuitive that someone would attempt to set up the accused by forfeiting both a firearm and cannabis worth more than $4,000. Whilst no value could be given for the firearm, I accept that such an item would have a value on the black market. Irrespective of exactly what that value may be, a decision to set up the accused would have been achieved by simply planting the firearm. I bear in mind the accused’s evidence that cannabis with seed in it is worthless however his evidence in that respect was with respect to cannabis full of seed. I am satisfied that cannabis containing 10% seed would not be worthless or unusable.

17. Fourthly, his recent cannabis use is relevant to whether he would have a use or need for the cannabis located in the cavity. That he may not intend to sell it does not mean he may not intend to use it.

18. Fifthly, I agree that at least one of the exchanges between the accused and police in his interview does suggest the accused had knowledge of where the items were hidden. There was evidence that prior to his interview with police, the accused had not been told where the firearm and cannabis were located.[47]

    [47] T243-244.

19. The first interaction relied on by the prosecution occurred early in the interview. The following exchange occurred;

    LengyelWoodville West, sorry. At that time Police searched the property under the authority of the Firearms Act and also a General Search Warrant. You weren’t present at the time.

    SclaptsiYep.

    LengyelPolice gained access to the house and [the rear]

    SclaptsiHow did they get through?

    LengyelThere was an open window

    SclaptsiNo, at, where was the gun found?

    LengyelSorry, I’ll get to that

    SclaptsiYeah.

20. The prosecution submitted that the accused asked, ‘how did they get through’ because he was only interested in how the police had gained access to the rear shed and that he was only interested in that issue because he knew the firearm and the cannabis were not in the house but in the shed. The first point to make is that the transcript tendered as an aide did not include the words ‘the rear’ in the statement preceding the accused’s question. Having listened to the recording numerous times I am satisfied that the police officer did also say ‘the rear’ a split second before the accused asked his question. It cannot therefore be said that the accused introduced the topic of the rear yard because he knew that was where the items were located.

21. I agree that the accused’s apparent disinterest in there being an open window as a means to gain access to the house when he said ‘no, at, …’ is consistent with an attempt on his part to refocus the police on what he is really interested in i.e. the rear yard. Additionally, his question ‘no, at, … where was the gun found?’ is consistent with wanting clarification. That could be either because he assumed the police found the items in the shed and he is now confused because police seem to be concentrating on the house or because he expected the police to say the door was open because he knew the shed doors were unlocked rather than a window being open. However, whilst I have a degree of suspicion about this comment I consider it is too speculative to draw any adverse inference against the accused based on this exchange. I therefore have not used it as evidence from which I can infer knowledge of the cannabis and firearm and I have not used it to undermine his credibility. 

22. The second interaction relied on by the prosecution occurred later in the interview. That exchange was as follows;

    LengyelOkay. The cannabis and firearm were located together

    SclaptsiYeah.

    LengyelIn the rear shed area.

    SclaptsiYeah.

    LengyelDo you know anything about the cannabis?

    SclaptsiNo I don’t.

    LengyelDo you know anything about the firearm?

    SclaptsiNo I don’t.

    LengyelDo you know whose firearm it is?

    SclaptsiNo I don’t. But, there is a camera from the Railway Station that might be able to give us, because this is a set-up in my view. Somebody’s put it up. I don’t deal with, I don’t have firearms. The simple fact is my father committed suicide with one, (inaudible) to have around us and our family so that’s one of the reasons firearms are no good with me. Okay, so, you know, I don’t agree with firearms. (my emphasis)

23. I am satisfied this exchange and the accused’s response to it is more significant. When cross-examined about this passage I formed the strong view the accused was stalling for time to find a way to answer the questions. He initially stated he could not explain why he had said that, he then stated he was ‘a little confused at the moment’ and then after the video was replayed to him he suggested that he meant it was ‘like a set up’. After further cross-examination, he stated ‘well, I think what I was trying to say it was a set up’. I am satisfied there was a degree of prevarication on the part of the accused when confronted with the statement I have emphasised in bold. His manner was clearly hesitant. His explanation that he, in effect, misspoke, was not convincing. Further I am satisfied that when the accused says, ‘Somebody’s put it up’, it is not a complete sentence. The way it is said to police is very much consistent with the accused beginning a sentence and then pausing and determining not to finish that sentence. The obvious reason being that he realised he was about to disclose he possessed more knowledge than he wanted to disclose. I agree with the prosecution that this statement is strongly indicative of the accused knowing that the items were hidden somewhere high and in particular, in the cavity between the roof and the ceiling.

24. A third comment of the accused was also relied on by the prosecution and was the subject of cross-examination.[48] The accused immediately referred to the cavity after being told by police the items were in the roof of the shed. This may seem unlikely if he had never used the cavity to hide items but I accept his knowledge of the shed and the roof may have led him to that assumption. I do not therefore consider anything turns on that comment. In my view, it is equivocal.

    [48] T234.

25. Sixthly, the accused asserted he knows of a person who has access to cannabis and the wealth to forfeit it and that he suspects that person of planting both items in his shed. He declined to give any further detail because he further asserted he was scared of him. The first assertion was not however accompanied by any evidence as to the why this person would take these risks to plant evidence in his shed, why this person would be motivated to act in this way, when their dispute arose or whether the nature of their dispute could logically explain why he would take such actions against the accused. The accused’s bold assertion that he is scared of this man and therefore unwilling to give any details is difficult to accept on its face. Whilst some details may fall within that category it is difficult to accept that all details must be withheld on this basis. The accused has no onus of proof however it is his claim that he cannot provide any details which I consider undermines his credibility. There was however no cross-examination to test his claim that he could not divulge any details or to explore the nature of their dispute and I keep this firmly in mind. It is for the prosecution to prove its case beyond reasonable doubt and that includes excluding the evidence of the accused as a reasonable possibility.

    Other defence criticisms

26. I remind myself that beyond reasonable doubt is a heavy onus on the prosecution. I also bear in mind that deficiencies in the investigation and the absence of some evidence may be relevant to whether the prosecution has proved its case beyond reasonable doubt.

27. Firstly, the police did not obtain CCTV footage from the railway station. The accused put the police on notice of a possible alternative explanation for the presence of the firearm and the drugs in the cavity of his roof five days after police searched his house. Police did not request CCTV footage from the railway station until June 2018, approximately five months later. No explanation was provided for the delay in this request. The agreed facts indicate the footage would not have captured the accused’s house or his neighbour’s house. If requested immediately after the interview with the accused, the footage for the previous 30 days would appear to have been available. It is of course impossible to know when such items would have been placed in his shed by the person he suspected or an agent of that person, however it is not unreasonable to assume that a person acting to set up the accused may have contacted police soon after placing the items in the cavity to minimise the possibility of the items being accidentally located by the accused. The direction in which the cameras are pointed does however restrict the potential usefulness of the CCTV footage. I consider it would be unusual for a person planning such an act to catch a train to the accused’s house or park across the road in the car park directly across from the accused’s house. It is far more likely a person would arrive by other means and act more discreetly. Whilst footage would therefore only have been available for a relatively short period prior to the police attendance and the person’s mode of transport and behaviour would not be what would ordinarily be expected, I nonetheless consider the absence of the footage is not irrelevant to the issue of whether the prosecution has proved its case beyond reasonable doubt. Whilst the footage would not have been of any use if the accused remained unwilling to identify anyone he recognised, I consider the absence of the evidence is nonetheless of some, albeit slight, relevance.

1. I further note the absence of DNA testing on the bags containing the cannabis and the absence of fingerprint testing for the firearm. There was evidence of a policy that there is no DNA testing on plastic bags for investigations relating to summary charges.[49] I accept that such a policy is, as a resource issue, both understandable and sensible. That does not however mean that the absence of such testing may not be relevant in circumstances in which a defendant has provided police with an explanation which requires investigation. It is of course speculative as to whether DNA testing would have assisted the accused’s case however the absence of the testing is nonetheless a matter to be considered in determining whether the prosecution has met its heavy onus. I accept that there is also an absence of evidence as to whether DNA is more likely to be obtained from plastic bags than fingerprints but I am nonetheless inclined to accept that the absence of this test is also relevant to whether I am satisfied beyond reasonable doubt of his possession of the cannabis or the firearm. Similarly, the absence of any fingerprint testing of the firearm was unexplained and again whilst its relevance may be slight I consider it is a relevant consideration.

   Conclusion

   [49] T65.

2. Finally, I have also regard to my impression of the accused’s evidence. Apart from his manner and reaction when confronted with his comment to police that ‘Somebody’s put it up’ I do not place a great deal of weight on his demeanour when he gave evidence. Although I am satisfied he exaggerated and prevaricated at times I also accept other aspects of his evidence were credible and supported by other evidence. Apart from the occasions I have identified under the headings ‘Access’ and ‘Remaining Considerations’ there was nothing inherently unbelievable about other aspects of his evidence.  I note however that a person may lie about some matters and tell the truth about others and the matters upon which he was unconvincing and from which it can be inferred he has lied are directly relevant to the main issue in the trial.

3. I remind myself that I must reject the accused’s evidence beyond reasonable doubt and even if rejected I may not find the accused guilty of any charge unless I am satisfied that taking into account all the facts I find proved, that his guilt is not only a rational inference, but that it is the only rational inference that is open on those facts. That is, if there remains a rational explanation consistent with innocence the prosecution will not have proven its case.

4. I have taken into account all the evidence, not only the specific matters I have mentioned below.

5. My satisfaction that he prevaricated in his evidence, the inferences to be drawn from his comment ‘Somebody’s put it up’ and the manner he said it, the unconvincing manner in which he gave evidence when cross-examined on that topic, that I consider he exaggerated his evidence at one point and was disingenuous at another, in combination with the other matters to which I have referred under ‘The remaining considerations’, strongly support an inference he had knowledge and possession of the cannabis and that he lied in court as to his knowledge of the cannabis. However, having regard to all the evidence and the inferences to be drawn I am left with a doubt as to his knowledge about the cannabis in the cavity. Those aspects of his evidence which were supported and credible, the absence of any testing of his claim that he could not disclose any information about the person he suspected, the absence of evidence and investigation on certain topics, the absence of evidence as to black electrical tape, green rubbish bags and sandwich sized resealable plastic bags being located, the absence of evidence indicating an intention to sell and my doubt that a recent cultivation had occurred all contributed to that doubt.

6. I have considered the combined strength of all the circumstances and having drawn all the inferences reasonably open arising from all the circumstances I have found proved, I cannot reject his evidence beyond reasonable doubt. I cannot exclude as a reasonable possibility that what the defendant told the police in his interview and repeated in evidence is true.

7. I make clear however that having regard to all the evidence I would reject his evidence on the balance of probabilities as to his lack of knowledge of the cannabis and the firearm notwithstanding his denials on oath and the fact some aspects of his evidence are supported. The unsatisfactory aspects of his evidence, the unconvincing way he explained his comment in the interview, his prevarication at another point, his about-face when giving evidence that the cavity could be seen by someone standing in the room and his exaggeration on another topic, of themselves would cause me to reject his evidence if this different standard of proof applied. When those matters are considered in combination with the other evidence and the inferences to be drawn from that evidence I am satisfied there is an even stronger basis for rejecting his evidence. I am in fact satisfied on the balance of probabilities that he knew of the presence of the cannabis (and the firearm) in the cavity, that he was in possession of the cannabis and that he lied as to his knowledge of the cannabis.

8. For the above reasons, I am not however satisfied beyond reasonable doubt the accused knew of the presence of cannabis in the ceiling cavity and that he had possession of the cannabis for his own purposes or for the purposes of another. I therefore acquit the accused of count 2.

   Firearm

9. I am satisfied beyond reasonable doubt that the accused was in possession of the firearm pursuant to s 6(2)(d). I am satisfied of that fact because I consider the reference to premises within s 6(2)(d) is a reference to the whole of the property as distinct from a structure- residential or otherwise, and that the word ‘occupies’ is broader in its reach than being a reference to residing in or being inside something with a degree of permanency.

10. Whether the shed is part of the premises occupied by the accused requires consideration of both the meaning of premises and occupies. There is no definition of occupies or premises in the Firearms Act. The meaning of premises is only narrowed by the requirement it must refer to a place that is able to be occupied or be a place which can be under the care, control or management of a person.

11. In Office Concepts Pty Ltd v Telford Building System Pty Ltd (1994) 176 LSJS 120, Mohr J, (Bollen J agreeing) considered the meaning of premises and said: [50]

    An argument was addressed that the site occupied by the defendant was not "premises" in the sense, as I understood the argument that no building had been erected on the site. In other words the site was land and the work done in erecting the uprights shown in the photographs did not constitute premises. Dictionary definitions were cited which were inconclusive as to the meaning of premises. The only Australian decision which bears on the question is Mowling v Hawthorn JJ (1891) 17 VLR 150 at 154, per Higinbotham CJ in speaking of "premises" said:-

    It includes at common law houses or lands, the definition being probably derived from reference to lands or houses, or both, recited in deeds and grants as being sold or conveyed, and afterwards referred to in the conveyance or deed of grant as 'premises'.

    In Gardner v Sevenoaks RDC (1950) 2 AER 84 at 85 Lord Goddard CJ said:

    ‘Premises’ is, no doubt, a word which is capable of many meanings. How it originally became applied to property is, I think, generally known. It was from the habit of conveyancers when they were drawing deeds of conveyance referring to property and speaking of 'parcels'. They set out the parcels in the early part of the deed, and later they would refer to 'the said premises', meaning strictly that which had gone before, and gradually by common acceptance 'premises' became applied, as it generally is now, to houses, land, shops, or whatever it may be, so that the word has come to mean generally real property of one sort or another.

    [50] Office Concepts Pty Ltd v Telford Building System Pty Ltd (1994) 176 LSJS 120, Per Mohr J, (Bollen J agreeing).

12. As to a similar section in the previous Firearms Act wherein the meaning of ‘in charge of’ was under consideration I further note the following observation of Kourakis CJ in R v Marafioti:[51]

    A purposive approach to the construction of s 5(14)(c) of the Act also provides strong support for a wide construction of that term. The danger to the community posed by the unregulated possession of firearms is notorious. There is a strong public consensus in Australia that favours close regulation of the possession of firearms.

    [51] (2014) 118 SASR 511 at [24] and cited with approval and R v Becirovic [2017] SASCFC 156 at [225] (Lovell and Hinton JJ).

13. Having regard to the objects of the Act in s 3(2) the breadth of the normal meaning of premises, the absence of a definition of premises purporting to narrow its meaning and the purpose of s 6(2)(d) I can conceive of no reason why the legislature would intend to restrict the meaning of premises to a structure or building. There is no reason for example why the legislature would intend this extended definition of possession to capture a firearm concealed in the shed of a residential property but exclude a firearm buried in the garden of a residential property.

14. The use of the words occupies, care, control and management in conjunction with premises also assists in determining the meaning of premises. Parliament did not use the words ‘resides in’ or ‘lives in’ or refer to structures or buildings or use any other restrictive language which might otherwise be thought to limit the meaning of premises. I therefore consider premises in s 6(2)(d) can include the whole of the property a person occupies or of which he/she has the care, control or management. It will then be necessary to determine whether there is occupation, care, control or management.

15. I consider a person occupies the whole of the premises at which they reside including the dwelling house, the land and any other structures on the premises. 

16. However, if I am wrong about that, I am further satisfied that the shed satisfies the meaning of ‘premises’ and even if the accused did not ‘occupy’ the shed, he had ‘care, control or management’ of it.

17. In the context of considering the previous Firearms Act Lovell and Hinton JJ considered the prior incarnation of s 6(2)(d) in R v Becirovic and determined it may be ‘considered as intending to cover the full range of proprietary relations between an individual and premises, a vehicle, vessel or aircraft’.[52] Their Honours then cited the judgment of Laidlaw JA as to the phrase ‘care, custody or control’ wherein it was said:

    It is in my opinion that the words “care”, “custody” and “control”, as used in para (g), involve actual possession of the property that was the subject of damage. “Care” in the sense in which it is used in the paragraph is synonymous with “safe-keeping”, “custody” imports some authority over the property; “control” supposes physical possession of property over which control may be exercised.

    [52] R v Becirovic [2017] SASCFC 156, [226]

18. Their Honours then concluded:[53]

    We consider “care” and “control” in s 5(14)(c) to attract similar meanings and “management” to mean having effective control of the premises. Control then embraces the concept of possession as that term is generally understood.

    [53] R v Becirovic [2017] SASCFC 156 at [226-227].

19. Bearing in mind the above and the matters in the following paragraph, I am satisfied the accused either occupied the shed or had care, control or management of it.

20. I am satisfied beyond reasonable doubt that no other person was living at the house and even if he spent most of his days away from the house that does not preclude him from occupying or having the care, control or management of those premises. A person may occupy more than one premises. The accused gave evidence suggesting he spent every night at his girlfriend’s house however he also agreed he was the sole occupant and that the time he spent at the house was ‘a day here, a day there, just mainly used for storage place’. That would be sufficient in my view to constitute occupation, care, control or management of the shed but other evidence further supports that conclusion. He restricted access to the premises, including the shed, he agreed he placed a new lock on the roller door after police had searched the premises, he had on his own admission made changes to the shed to construct the grow rooms, he stored his personal items in the house, the shed and the carport, he used that address as the address to which his motor vehicle registration reminders were sent[54] and he mowed the lawns.[55]

    [54] Exhibit P8.

    [55] T257.

21. I am satisfied he is in possession pursuant to s 6(2)(d) however s 6(2)(d) does not however apply if the accused proves that:

    ‘he did not know, and could not reasonably be expected to have known, that the item was on or in the premises…’

22. In assessing whether he has proved on the balance of probabilities that he did not know the firearm was on the premises I have again had regard to the absence of evidence on a number of topics in the prosecution case and the failure of the police to investigate some matters and I have done so in a manner favourable to the accused. I have had regard to the doubt I had in relation to count 1.

23. That I found the accused not guilty of count 2 does not mean I must disregard the presence of the cannabis in the same cavity as the firearm. Its presence remains a fact to which I can and do have regard. When considering whether the accused has proven he did not know about the firearm I have taken into account the evidence which provides a potential link between the accused and the cannabis. It was suggested by the accused’s counsel that even if I was satisfied the accused knew of and possessed the cannabis I could still find the accused truthful and reliable as to his lack of knowledge of the firearm. I reject that submission. For the same reasons, I would reject his evidence as to the cannabis on the balance of probabilities I reject his evidence about his knowledge of the firearm. I consider the likelihood of the accused storing the cannabis in the cavity but someone else, unbeknownst to him, secreting the firearm in the same cavity is fanciful. That the firearm was further into the cavity and harder to reach than the cannabis does not alter my view. In any event, my satisfaction on the balance of probabilities that he lied about his knowledge of the cannabis seriously undermines his credibility as to not knowing about the firearm.

24. I have detailed why I am satisfied it was more probable than not that the accused was in possession of the cannabis and why I would reject the accused’s evidence as to his lack of knowledge of the cannabis if the onus was on the balance of probabilities. For the same reasons, I am not satisfied on the balance of probabilities that the accused did not know about the firearm in the cavity. I have had regard to the whole of the evidence but some evidence is I consider of greater weight. I consider the combination of the accused’s statement in his interview exhibiting esoteric knowledge of the location of the firearm, his evidence when trying to explain that statement, those matters which undermined his truthfulness to which I have previously referred and the other matters to which I referred under ‘The remaining considerations’ to be highly significant. I reject his evidence on the balance of probabilities that he misspoke when he said, ‘put up’ rather than ‘set-up’, his evidence that he had not used the cavity before to hide items, that he had not told or shown anyone the cavity and that he did not know of the presence of the firearm. I am in fact satisfied on the balance of probabilities that he did have knowledge of the firearm in his shed because he placed the firearm there.

25. I further note that the lack of detail provided by the accused as to the basis of his suspicion causes me to have further doubts about his evidence and his claimed lack of knowledge. As I have also indicated, his claim he cannot provide any information is difficult to accept. I make clear however that even if I did not have regard to the paucity of his evidence on this topic I would not have been satisfied, on the balance of probabilities, of his credibility and reliability on the topic of his knowledge of the firearm.

26. In those circumstances s 6(2)(d) applies and I am satisfied beyond reasonable doubt that the accused is in possession of the firearm.

27. In light of agreed facts 6-9 and 11-12 and in light of my above findings I am satisfied beyond reasonable doubt of each of the elements of the offence of possessing a prescribed firearm without a licence.

28. Lastly, I must consider whether the prosecution has proved beyond reasonable doubt the aggravating circumstance as regard the firearm being loaded. The aggravating circumstance increases the maximum penalty from $50,000 or imprisonment for 10 years to $75,000 or imprisonment for 15 years. Ordinarily a mental element such as intention or knowledge would be required for proof of that circumstance. However, s 9(7)(a) states that all that must be proved is that the firearm to which the offence relates was ‘loaded (irrespective of whether the offender knew that it was loaded)’.

29. Pursuant to s 9(8)(e) a firearm will be taken to be loaded if a round is in the breach, barrel or chamber of the firearm or in a magazine comprising part of or attached to the firearm. There was no dispute that the firearm was loaded. In light of agreed fact 10 and the photos taken of the firearm showing the magazine attached to the firearm I am satisfied this circumstance of aggravation is proved beyond reasonable doubt.

30. In those circumstances, I am satisfied that the accused is guilty of aggravated possessing a prescribed firearm without a licence wherein the aggravated circumstance is that the firearm was loaded. I do not find the second aggravating circumstance proved beyond reasonable doubt for reasons previously given.

31. Lastly, I have had regard to the fact the prosecution case and the accused’s evidence were to the effect the same person put both items in the cavity. These verdicts however reflect the different onuses of proof which arose on each count. Both counsel accepted that different verdicts were possible.

    Verdict

32. Count 1 – Guilty of aggravated possessing a firearm without a licence on the basis the firearm was loaded but I do not find the second aggravating circumstance proved.

33. Count 2 – Not Guilty.