R v Thwaites - [2022] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v THWAITES
Criminal Trial by Judge Alone
[2022] SADC 50
Reasons for the Verdict of her Honour Judge Fuller
22 April 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Accused charged with aggravated possession of a category H firearm without a licence - whether accused in charge of the vehicle in which the firearm was found - whether accused did not know and could not reasonably be expected to have known firearm was in the vehicle.
Verdict: Guilty
Firearms Act 2015 (SA) ss 5(14), 6(2), 6(2)(d), 6(3), 9(1); Juries Act 1927 (SA) s 7, referred to.
R v Marafioti (2014) 118 SASR 511; R v Bridgeland [2019] SADC 162; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v Fuller; R v Zazzaro [2012] SASCFC 101; Brown v King (1913) 17 CLR 570; R v Jenner (2000) 110 A Crim R 512; R v Copeland (1997) 194 LSJS 1; R v Schulz (2016) 126 SASR 476; Pryor v R [1969] 43 ALJR 388; Pryor v R [1969] 43 ALJR 388; R v Robinson & Tiplady (1985) 123 LSJS 37; Woolmington v DPP [1935] AC 462, considered.

R v THWAITES
[2022] SADC 50

The accused is charged on Information with the following offence:
First Count
Statement of Offence
Aggravated Possessing a Firearm Without a Licence. (Section 9(1) of the Firearms Act, 2015).
Particulars of Offence
Clinton Joseph Thwaites on the 4^th day of September 2019 at Elizabeth Vale, possessed a Category H firearm, namely a Fabrique Nationale (aka Browning) 1906, .025 calibre self-loading handgun, serial number 959537, without holding a firearms licence authorising possession of that handgun.
It is further alleged that the firearm was loaded.
The plea
The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.
Overview of prosecution case
The firearm the subject of the charge was found by police in an open compartment of the driver’s side door of a gold Ford Territory vehicle driven by the accused on 4 September 2019. At the time it was found, it had a magazine with four rounds in it.
Police had observed the accused drive that vehicle from 42 Field Street Parafield Gardens to 28 Willow Crescent Elizabeth Vale, during which journey he made two stops – one at a Mogas petrol station in Parafield Gardens and the other at a McDonalds restaurant in Salisbury Heights. Upon arriving at Willow Crescent, the accused exited the front driver’s side and entered a rear yard. A short time later he was arrested inside the premises at 28 Willow Crescent, and the vehicle was searched by police. Items belonging to the accused were found in the vehicle. The accused’s mobile phone was found inside the premises at 28 Willow Crescent and contained images of a firearm similar to the firearm located in the vehicle.
Elements of the offence
The first element the prosecution must prove is that the accused possessed the category H firearm particularised in the Information. In doing so, the prosecution is entitled to rely on the extended definition of possession in section 6 (2) of the Firearms Act 2015. For the presumption to operate, I must be satisfied beyond reasonable doubt that a firearm was located in a vehicle and that the accused was in charge of that vehicle.
The second element of the offence the prosecution must prove is that the accused was not the holder of a firearm’s licence authorising possession of a category H firearm.
In order to prove the aggravating feature of this offence, the prosecution must prove that the firearm was loaded, namely that it had a magazine with rounds or bullets in it or a round or bullet in the chamber.
Issues in dispute
The only issue in dispute in this trial is whether the prosecution has proved beyond reasonable doubt that the accused was in possession of the category H firearm located in the gold Ford Territory. Proof of this matter is facilitated by the rebuttable presumption in s 6 (2) of the Firearms Act 2015. That sub-section provides:
6 (2) For the purposes of this Act (other than section 25), a person has possession of a firearm if –
(a) the person has custody of the firearm or has the firearm in the custody of another; or
(b) the person has and exercises access to the firearm; or
(c) the person controls access to the firearm; 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 firearm is found.
In R v Marafioti (2014) 118 SASR 511, Kourakis CJ considered the scope of the predecessor provision in the Firearms Act 1977, s 5(14)[1]:
I return to the extended definition of possession. I start by observing that s 5(14)(a) of the Act is, broadly, the equivalent of the common law concept of possession, but includes within it, possession by an agent. Subparagraph (b) extends the common law concept of possession by removing the requirement for exclusivity and providing that access to a firearm may constitute possession of the firearm. Section 5(14)(c) of the Act must be construed in the context of the preceding subparagraphs which manifest an intention to extend the concept of common law possession. That suggests a broad reading of the term “in charge of”.[2]
[1] Section 5 (14) was in identical terms but did not include the subsection that now appears in s 6 (2)(c) ‘the person controls access to the firearm’.
[2] At [23].
Kourakis CJ further observed:
It can be seen that s 5(14)(c) of the Act in effect creates a rebuttable presumption of possession of a firearm by a person who exercises a degree of control over the premises or vehicle in which it is found. With respect to both premises and vehicles, forms of control or relationship less than ownership are sufficient. With respect to premises, it is important to observe that “care or management” of the premises, which will generally be something significantly less than control of the premises, is sufficient to found the inference.[3]
[3] At [25].
In this trial, prosecution relied upon s 6 (2) (d) and pointed to the evidence that the accused was seen driving the vehicle in which the firearm was subsequently found, on the day it was found and shortly before it was found.
It has been held that a person who drives a vehicle is ‘in charge’ of the vehicle. In R v Marafioti, Kourakis CJ considered the phrase ‘in charge’:
The most natural and obvious way in which a person may be in charge of a vehicle, vessel or aircraft is to be the driver, captain or pilot respectively. True it is that the legislature could easily have chosen to use the word “driver” if it intended the presumption of possession to apply to all drivers. However, if the section had been so drawn it would have been necessary, in order to achieve the Act’s manifest purpose, to add further words to capture the person who has just alighted from, or is about to step into a vehicle, vessel or aircraft for the purposes of driving it. Further text would also have been necessary to apply the presumption to persons who have left a vehicle, vessel or aircraft in a car park, dock or hangar. The failure to use the word driver is therefore not an indication that some additional degree of control, over and above being a driver, is required.
I acknowledge that the precise scope of the phrase “in charge of” in its application to persons other than drivers may throw up difficult questions. The extent to which a person, who has legal or defacto authority to dictate how the driver must manage the vehicle, is also a person “in charge of” the vehicle will be a matter of fact and degree. So, too, difficult questions might arise as to whether a driver who is acting under some form of compulsion approaching duress is a person in charge.
I also observe that it is not obvious to me that there need be only one person “in charge of” a vehicle.
Be all that as it may, in the generality of cases, persons voluntarily driving a vehicle have cast on them a practical responsibility to take steps to ascertain whether the vehicle they drive carries a firearm.
As I have already observed, the natural meaning of the term “in charge of” includes the driver of a motor vehicle.
In the ordinary course, a person who voluntarily drives a vehicle will know or be in a position to ascertain whether or not it carries a firearm. It is consistent with the community protection objects of the Act to construe the term “in charge of” to include a voluntary driver. There is therefore no reason to give the term a restrictive construction.[4]
[4] [26] – [31].
Where proof of possession is facilitated by s 6 (2), such that an accused person in charge of a vehicle is deemed to be in possession of the firearm in that vehicle, the prosecution must nevertheless prove that the accused person knew that the item in his possession was a firearm. In R v Bridgeland [2019] SADC 162, Tilmouth DCJ observed:
In R v Fuller & Zazzaro,[5] it was held that the provisions of s 5(14) of the Firearms Act 1977 (SA) did not require an accused to have knowledge that the object was a firearm. A differently constituted court of Criminal Appeal in R v Marafioti,[6] considered the same presumptive provisions were broadly consistent with the common law concept of possession. As seen above, the common law concept of possession requires knowledge. The decision in R v Fuller & Zazzaro was not referenced in Marafioti. Subsequently in R v Joyce,[7] Judge Lovell applied Marafioti to hold that simple awareness of the existence and place of a weapon does not amount to possession and accordingly that knowledge that it was a firearm was required. For similar reasons in R v Khan (No 2),[8] and in R v Hunt & Becirovic,[9] I held that knowledge that the item possessed was a firearm is required. As the authorities presently stand R v Marafioti remains binding on this count.
[5] [2012] SASCFC 101, [72]-[73].
[6] (2014) 118 SASR 511, [23]-[24].
[7] [2014] SADC 125, as his Honour then was.
[8] [2014] SADC 207, [89]-[93], [101]-[103].
[9] [2016] SADC 22, [56]-[59].
To prove knowledge, the prosecution relies upon the appearance of the firearm itself (arguing that it is self-evidently a firearm) and images located on the accused’s mobile phone of an object that I should infer is the same handgun or one of a similar type as that located in the vehicle. Further, the prosecution relies upon the accused’s sworn evidence that he had seen those images and that they were images of a handgun which belonged to a friend of his, Aaron Forbes. Accordingly, upon proof of possession as facilitated by s 6 (2) the prosecution contends that the accused’s knowledge that the item was a firearm will also have been proved.
The statutory defence
If the prosecution fails to prove beyond reasonable doubt that the accused was in possession of the firearm, whether at common law or within the ambit of the extended definition of possession in section 6 (2), then the accused must be acquitted. If the prosecution proves beyond reasonable doubt that the accused was in charge of a vehicle in which the firearm was found and knew it was a firearm, the accused may rely on the defence under s 6 (3) of the Act which provides:
(3) However, subsection (2) (d) does not apply if the person establishes that –
(a)he or she did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises, vehicle, vessel or aircraft; or
(b)the firearm was in the lawful possession of another or he or she believed on reasonable grounds that the firearm was in the lawful possession of another.
The onus on the accused to establish that he did not know and could not reasonably be expected to have known that the firearm was in the vehicle is on the balance of probabilities.[10] In this case, the accused sought to prove the statutory defence under subsection (3) (a) and gave evidence on oath that he did not know the firearm was in the vehicle.
[10] R v Fuller; R v Zazzaro [2012] SASCFC 101 at [47].
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[11] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[11] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused gave evidence. In doing so, he assumed no onus with respect to the matters about which he gave evidence, other than the onus to prove the statutory defence on the balance of probabilities. His evidence is to be treated in the same way as any other witness in the trial but, if the presumption of possession in s 6 (2) (d) operates, the accused must satisfy me that he did not know and could not reasonably be expected to have known that the firearm was in the vehicle.
The evidence
The following facts were agreed:[12]
[12] T 158-T 160.
42 Field Street, Parafield Gardens
1.On 2 September 2019, a gold Ford Territory displaying the number plate XKI326 was observed by police parked in the driveway of 42 Field Street, Parafield Gardens.
2.Clinton Thwaites was not observed by police at 42 Field Street, Parafield Gardens on 2 September 2019.
3.At 1.30pm on 3 September 2019, a gold Ford Territory with no number plates was observed by police parked in the driveway of 42 Field Street Parafield Gardens.
4.Clinton Thwaites was not observed by police at 42 Field Street, Parafield Gardens on 3 September 2019.
5.At 10.30am on 4 September 2019, a gold Ford Territory with no number plates was observed by police parked in the driveway of 42 Field Street, Parafield Gardens.
6.Records obtained from Anglicare SA record that Lateisha Wanganeen was the tenant of 42 Field Street, Parafield Gardens on 4 September 2019.
28 Willow Crescent, Elizabeth Vale
7.Susan Hart, Monique Milligan and Marque Milligan-Passler were listed as the tenants at 28 Willow Crescent, Elizabeth Vale on 4 September 2019.
8.A Samsung Galaxy Note 9 SM-N960F mobile phone (PPMS 20/B77336-75) was located and seized from on top of the washing machine in the laundry at 28 Willow Crescent, Elizabeth Vale.
9.This mobile phone belonged to the accused.
Firearm
10.On 4 September 2019 Clinton Thwaites was not the holder of a firearms licence.
11.There is no registered owner recorded in the Firearms Control System for the firearm PPMS Item 20/B77336-53.
DNA
12.The following items were submitted to Forensic Science South Australia for the purpose of analysis for the presence of DNA:
12.1A reference sample swab taken from Clinton Thwaites;
12.2A swab of the firearm, PPMS Item 20/B77336-54; and
12.3A swab of the magazine of the firearm, PPMS Item 20/B77336-54.
13.The results of the analysis of the items submitted to Forensic Science South Australia are as follows:
14.The swab of the firearm, PPMS Item 20/B77336-53 contained very low amounts of DNA or no DNA and was not analysed.
15.The swab of the magazine of the firearm, PPMS Item 20/B77336-54 contained very low amounts of DNA or no DNA and was not analysed.
Fingerprints
16.On 16 September 2019, Brevet Sergeant Megan Houston attended at the Elizabeth Police Station where she received and conducted a forensic examination of the firearm, PPMS Item 20/B77336-53 and the magazine of the firearm, PPMS Item 20/B77336-54.
17.No suitable fingerprints were found on the firearm, PPMS item 20/B77336-53.
18.No suitable fingerprints were found on the detachable magazine, PPMS Item 20/B77336-54.
The trade plate 0515M
19.The trade plate 0515M has been registered to James Keith Stewart who is the managing director and owner of Stewart Mechanical Services since May 2019.
20.The trade plate remained in the office of Stewart Mechanical Services unless being used.
21.At the relevant time Stewart Mechanical Services had six employees who all had access to the trade plate.
22.No register was kept of who used the trade plate at any particular time.
23.Staff and business customers have used the trade plate.
Plates XKI326
24.The vehicle registration plates XKI326 which were found in the boot of the gold Ford Territory match the vin number of the gold Ford Territory (6FPAAAJGAT5D42400).
25.The registration plates XKI326 and the vin number were registered to Jessica Den-Dunnen between 15 March 2019 and 14 June 2019.
26.The vehicle was not registered again until 15 October 2019 to Megan Press.
E-Crime extraction
27.Constable Mark Rogers examined the Samsung Galaxy Note 9 SM-N960F mobile phone (PPMS 20/B77336-75) and extracted content from the phone, the SIM and the memory card.
Surveillance evidence
Detective Senior Constable Kym Hocking and Senior Constable Nicholas Portolesi gave evidence of the surveillance of the gold Ford Territory in which the firearm was located on 4 September 2019. The surveillance log was tendered: Exhibit P1. The Ford Territory was seen at 42 Field Street Parafield Gardens at 1221 hours. It had trade plate 0515M affixed to it.[13] At 1336 hours the Ford Territory reversed out of the driveway and the accused was seen in the driver’s seat.[14] The Ford Territory stopped at Mogas, 237 Martins Road, Parafield Gardens and the accused was seen to fill up the vehicle with fuel and the vehicle then travelled to the drive-through of McDonalds on Saints Road, Salisbury Heights arriving at 1356 hours.[15] After exiting the drive-through, the Ford Territory then travelled to Willow Crescent Elizabeth Vale and at 1405 hours parked in the vicinity of 1-3 Willow Crescent.[16] At 1408 hours the accused exited the Ford Territory and walked towards a unit, jumped the fence and then walked into the rear yard of unit 28. At 1410 hours, the accused and another male were seen standing at the front driver’s door of the Ford Territory.[17] Senior Constable Portolesi said that he did not see anyone open the driver’s door after the accused exited the vehicle.[18] He did not see the accused holding anything.[19] At 1411 hours the accused and the other male stood near the open boot.[20] At 1413 hours, a female spoke with the accused and the other male and all three of them then walked to the units.[21] At 1430 hours police attended the unit complex and the accused was arrested shortly thereafter. Between 1413 and 1441 hours no other person approached or entered the Ford Territory.[22]
[13] T 19.
[14] T 20.
[15] T 13.
[16] T 21.
[17] T 22.
[18] T 28.
[19] T 28.
[20] T 23.
[21] T 23-T 24.
[22] T 24.

In cross-examination, Detective Hocking said that there was no surveillance of the accused prior to 4 September 2019.[23] She said that the addresses of interest were 6 Wahroonga Drive and 42 Field Street, Parafield Gardens but not Willow Crescent, Elizabeth Vale.[24]
[23] T 15.
[24] T 16.
Search of the vehicle
Senior Constable Andrew Colin McIntyre searched the premises at 28 Willow Crescent, Elizabeth Vale with other police officers on 4 September 2019. He was aware that Police Dog Operations members attended and after the police dogs had searched the Ford Territory, he and Constable Hazel searched the vehicle.[25] Senior Constable McIntyre located the firearm and other items in the door sleeve of the driver’s door. He said he did not have to move any of the other items in the door sleeve to see the firearm.[26] When he saw the firearm and other items, including a hunting knife, he did not touch them but immediately notified Detective Brevet Sergeant McGillion.[27] Detective McGillion then took a video of the items in situ: Exhibit P6.
[25] T 32-T 33.
[26] T 33.
[27] T 34.
In cross-examination, Senior Constable McIntyre said that he could not recall whether he had to open the driver’s door before conducting the search.[28] He searched the front passenger area, front driver’s area, centre console and each of the front door sleeves but could not recall the sequence. He could not recall how long it was after he started the search that the firearm was located but, he had searched some parts of the vehicle other than the driver’s door sleeve. He said the process of searching took between 10 and 20 minutes.[29] He opened the driver’s side door to search the door sleeve.[30]
[28] T 37.
[29] T 38-T 39.
[30] T 40.
Senior Constable McIntyre said that when he turned his attention to the door sleeve, he immediately saw that there was a firearm and a hunting knife. Prior to this, he had advised Detective McGillion about other items he had located and where he had found them.[31] After looking at the photographs of items located in the vehicle in Exhibit D2, he accepted that it was possible that he had moved the mobile phone he found in the centre console, the rolls of electrical tape and the handwritten note marked GFT3.[32]
[31] T 41.
[32] T 45-T 46.
Senior Constable McIntyre agreed that he was alert to the possibility of a firearm being in the vehicle. He said that he thought he was looking at a firearm in the door sleeve because it looked like a handgun. He had seen a handgun before.[33] He said, ‘it was a small firearm, and it was clearly visible in the door sleeve’.[34] He said as soon as he looked into the driver’s door sleeve the items that took his immediate attention were the firearm and the knife.[35] Senior Constable McIntyre would not allow for the possibility that he may have moved other items inside the sleeve before recognising what he thought to be a firearm.[36] Senior Constable McIntyre agreed that he was asked to turn his mind to how long it took for him to recognise that there was a firearm in the driver’s door sleeve when he swore an affidavit on 15 March 2022. He had seen the video recording of Detective McGillion retrieving the firearm from the door sleeve but could not recall when that was.[37]
[33] T 52.
[34] T 52, 20-21.
[35] T 54.
[36] T 55.
[37] T 61-T 62.
When shown the photographs of the door sleeve in Exhibit D3, Senior Constable McIntyre said the bottom of the handle was closest to the floor of the door sleeve and the barrel was pointing down towards the end of the sleeve.[38]
[38] T 63.
Constable Hazel identified 28 Willow Crescent, Elizabeth Vale, on a google satellite image: Exhibit P4. On 4 September 2019, when he entered the premises he saw the accused in company with two other police officers.[39] The drug and firearm dogs had searched the vehicle before he and Senior Constable McIntyre searched it.[40] He searched the rear seat and boot area and found a shirt and jumper in the rear seat area and a bag containing a laptop under the driver’s seat.[41] In the boot, he located two registration plates, a blanket and another bag with some laptops inside.[42]
[39] T 31.
[40] T 34.
[41] T 70.
[42] T 71.
In cross-examination, Constable Hazel agreed that he was alerted to the possibility of locating a firearm in the vehicle before the search was conducted. A short time after the search started, Senior Constable McIntyre told him he had found a firearm and the search was paused so Detective McGillion could retrieve and secure the firearm.[43] Constable Hazel was not certain whether he had located the laptop and charger before the search was paused.[44]
[43] T 75.
[44] T 76-T 77.
Detective Brevet Sergeant Eamon Gerard Michael McGillion was on CIB investigational duties on 4 September 2019. He attended 28 Willow Crescent, Elizabeth Vale and assumed the role of exhibits officer.[45] The exhibits log was tendered: Exhibit P5. He was informed by Senior Constable McIntyre that he had found a firearm in the driver’s door. He then activated a video camera and removed the firearm and rendered it safe.[46]
[45] T 80.
[46] T 83-T 84.
The firearm was a small, compact semi-automatic small calibre handgun. A magazine was attached to the firearm and there were four rounds in the magazine but none in the barrel.[47]
[47] T 85.
In cross-examination, Detective McGillion said that the dogs from the Dog Operations Unit who attended at 1550 hours were trained to detect odours associated with drugs and firearms. The dogs were given a ‘free rein’ inside the vehicle and sniffed around and inside the vehicle.[48] This exercise was completed at 1607 hours and he then directed Constable Hazel and Senior Constable Andrew McIntyre to search the Ford Territory. At 1615 hours, he was informed by Senior Constable McIntyre that a firearm had been located in the vehicle.[49] When he retrieved the firearm, the barrel was facing downwards and he could see the rear of the pistol grip.[50]
[48] T 87.
[49] T 87.
[50] T 88.
Detective McGillion made notes of what he was told by the searching officers about where items were found in the vehicle. He noted that the firearm was located at 1615 hours and he filmed the retrieval of the firearm at 1630 hours.[51] He also noted that by 1615 hours a phone had been located in the centre console, ice pipes, clothing, a silver laptop and a case and a set of number plates and a bag containing four laptop computers.[52] Detective McGillion said that he had not been advised by other police that any items of interest had been found on the accused after his arrest.[53]
[51] T 90-T 91.
[52] T 92.
[53] T 93.
Ballistics evidence
Brevet Sergeant Collado, from the Forensic Response Section gave expert evidence of the examination of the firearm found in the vehicle. Brevet Sergeant Collado said that the firearm was a category H silver-grey self-loading handgun Fabrique Nationale Dians Browning model with serial number 959537. The barrel measured 55mm and the overall length was 115mm. The firearm was designed to operate with a detachable magazine and had an ejector port on the right-hand side of the slide.[54] The magazine had a capacity of six rounds of .25 ACP calibre centrefire ammunition. Upon initially test firing the handgun it failed to feed subsequent rounds but upon disassembly and cleaning it functioned in the self-loading capacity and was in working order.[55]
[54] T 97.
[55] T 99.
There were a number of safety features including an external thumb safety which could be activated in a safe position or off position; a magazine disconnect safety such that it could only fire when the magazine was inserted fully into the firearm and a grip safety requiring the firearm to be gripped with sufficient force to deactivate the safety.[56]
[56] T 100.
Brevet Sergeant Collado examined the four loose .25 ACP Centrefire ammunition, Remington branded and said they were suitable for use in the handgun.[57]
[57] T 100.
Brevet Sergeant Collado was asked to compare 5 photographs from the mobile phone seized from the accused with the handgun.[58] An image comparison chart was tendered: Exhibit P7.
[58] T 101.
When asked whether there were any similarities between the two, he gave this evidence:
The comparison between the images and the exhibit, it shared the same colour. It appears similar in the metal composition. It shared the same location of the ejector port that was located, the barrel fluting, the retainer pin, the position of the trigger, the grip panel and it shared the proof markings which is the manufacturing markings found…on the barrel. I identified two digits of the serial number on the image to be ‘37’ which was consistent with the last two numbers of [the handgun].[59]
[59] T 101, 32-38; T 102, 1-3.
Brevet Sergeant Collado formed the opinion that the firearm depicted in the images on the left of P7 was capable of being the handgun he examined. However, in the absence of any individual characteristics he could not exclude other similar firearms.[60]
[60] T 103.
In cross-examination, Brevet Sergeant Collado said that the magazine was about 28mm wide.[61] He also said that he could not say that the firearm depicted in the two images on the left of P7 were one and the same firearm but they shared the same class characteristics. He also confirmed that the comparison he undertook was image to image, not image to handgun.[62]
[61] T 105.
[62] T 109.
Brevet Sergeant Collado said that records were kept of the number of this type of handgun that were registered in South Australia as at 2019, but he did not have those records and could not give any evidence about the prevalence of this type of handgun. He said he could not exclude as a possibility the fact that the firearm in the images was a replica of a Browning model 1906 .25 ACP.[63]
[63] T 110-T 111.
Gold Ford Territory
Jessica Den-Dunnen gave evidence that she bought the gold Ford Territory XKI-326 around November 2018 from a car dealership on Main North Road. At the time she gave evidence, she said she had known the accused for about three years and first met him at her house at Blakeview.[64] In February 2019, after someone else had driven the Ford Territory, she noticed problems with the axle. The accused tried to repair it for her and then offered to replace the problem part, but she could not afford it at the time.[65] In the middle of 2019, the accused offered to trade a Citroen for her Ford Territory. She agreed. She registered the Citroen at Service SA in Elizabeth. She did not drive the Ford Territory after this but saw the accused arrive in it at her house a week or two later.[66]
[64] T 113.
[65] T 114-T 115.
[66] T 117.
Ms Den-Dunnen was shown D2 and asked if she recognised the firearm depicted in it and she said no, it was not hers and she had never seen it before.[67]
[67] T 118.
In cross-examination, Ms Den-Dunnen said she was aware that the accused was arrested in September 2019. She confirmed that she had an intimate relationship in August 2019 with the accused and said he was the only person who helped her in a ‘weird situation’ in her life. She said she had never seen the accused with a firearm.[68] She agreed that she registered the Citroen on 28 June 2019.[69]
[68] T 119.
[69] T 120.
Examination of mobile phone belonging to accused
Alexis Francis Kazmarck gave expert evidence as a digital evidence specialist. She analysed the mobile telephone belonging to the accused and gave an opinion regarding the dates upon which images that were found on the phone had been created.[70]
[70] T 125-T 126.
Ms Kazmarck explained that a cache file is a folder for the temporary storage of information on files that had been loaded onto a device such as a mobile telephone. A thumbnail file is a smaller version of an image or video file. A file location is the folder in which the file is found. The file path indicates how to arrive at the file location. A file created date is when the file was created on the device itself and an EXIF created date is the best indication of the correct date and time that a file came into existence.[71]
[71] T 126-T 130.
Exhibit P8 was tendered showing the data extracted from the mobile telephone and information regarding that data. Ms Kazmarck gave evidence about the dates upon which certain photographs in the data from the mobile telephone were created and the EXIF date.[72] The photographs were those images provided to Brevet Sergeant Collado and images of a gold Ford Territory. The dates ranged from 9 June 2019 to 2 September 2019. Ms Kazmarck said that it was likely that the photographs were created on the accused’s mobile telephone.[73] In relation to the two images on the left side of P7, Ms Kazmarck said that they were JPEG cache files created on 12 August 2019 at 6.56am but no EXIF created date was available because they were cache files. The two JPEG cache files were from the Android Gallery on the mobile telephone.[74]
[72] T 131-T 136.
[73] T 133.
[74] T 135.
In cross-examination, Ms Kazmarck agreed that all of the images appearing to depict a firearm were cached thumbnail files and she could not ascertain the EXIF date of those images.[75] She agreed that this meant she could identify the date the images were created but not whether the images were taken using that mobile telephone on that day. In response to questions from me, Ms Kazmarck said that if the original of the image in the cache is not on the mobile telephone in the gallery the user would not be able to access the cache images.[76]
[75] T 138.
[76] T 139-T 140.
Investigating officer
Detective Brevet Sergeant Thomas Perks was the investigating officer and attended 28 Willow Crescent, Elizabeth Vale on 4 September 2019. He executed his general search warrant and arrested the accused. Police dogs then searched the Ford Territory and the premises.[77] Photographs of the accused taken during the charging process were tendered: Exhibit P9. Detective Perks inspected the laptop found under the driver’s seat and used the note with the password on it to access it.[78] Nothing of evidential value was located on the laptop.[79] Detective Perks confirmed that the data extracted from the memory and SIM card of the accused’s mobile phone included Facebook and text messages and photographs and videos, some of which appear in P8.[80]
[77] T 144-T 145.
[78] T 146-T 147.
[79] T 148.
[80] T 149.
In cross-examination, Detective Perks confirmed that the accused was a person of interest in relation to an investigation he was conducting into an offence alleged to have been committed in August 2019. The complainant in that matter was DC.[81] When police attended 28 Willow Crescent on 4 September 2019 they located other persons, namely Silke Harrison, Susan Hart and Marque Passler Milligan.[82]
[81] T 151.
[82] T 151-152.
Detective Perks confirmed that the accused was on bail as at 4 September 2019 for illegal use. The bail address was Hogarth Road Elizabeth South.[83] There was no surveillance of the accused or 42 Field Street, Parafield Gardens prior to 4 September 2019 other than Detective Perks driving past the Field Street address on 2 September 2019 at which time he saw a gold Ford Territory.[84] He did not see the accused at the premises.[85]
[83] T 152.
[84] T 153.
[85] T 154.
When the accused was arrested, nothing of interest was found on his person. Steps were not taken to preserve the accused’s hands in order to test for gunshot residue because there was no suspicion warranting the conduct of that forensic procedure.[86]
[86] T 154.
Detective Perks confirmed that every image of a gold Ford Territory and firearms that were on the accused’s mobile telephone were included in P8.[87]
[87] T 156.
The defence case
The accused gave evidence. He was educated to year 8 in Queensland and then worked for a cabinet maker for a short time. He moved to Adelaide when he was aged 14. In 2019 he was couch surfing.[88] He has one child, a son Jhett, born 24 March 2016. Jhett’s mother is Kayla Press.[89]
[88] T 163.
[89] T 163-T164.
Megan Press, to whom the Ford Territory was registered in October 2019 is Kayla’s sister.[90]
[90] T 164.
The accused said he started taking illicit drugs when he was 13, initially using marijuana but then moving to ecstasy, ice and heroin. Until his incarceration, he had been using drugs from a young age[91]. In August 2019, he was using ice, heroin, Xanax and marijuana. On the day of his arrest he had smoked ice and then marijuana.[92]
[91] T 164.
[92] T 165.
The accused said he developed an interest in firearms when he was a young boy but he had never held a firearms licence.[93] In 2019 he knew people who had access to firearms. In the months leading up to his arrest he had been with people who had handled firearms in his presence on two occasions. One of the firearms was a handgun and the other a rifle.[94]
[93] T 165.
[94] T 166.
The accused did not dispute the evidence given by Ms Den-Dunnen and said that he swapped a Citroen for her ‘broken car’.[95]The accused explained that he swapped cars because he thought it would prevent him committing more offences. He had been disqualified from driving for three years in 2017. The accused agreed that the registration plates for the Ford Territory were in the boot and the number was XKI 326.[96] He said he did not know how the trade plates came to be on the Ford Territory on 4 September 2019.[97]
[95] T 167,37.
[96] T 168.
[97] T 169.
The accused knew of a company called Stewart Mechanical Services and that it ‘fixed cars’ and he had exchanged Facebook messages with James Keith Stewart.[98] When he offered to help Ms Den-Dunnen repair the Ford Territory, he spoke to a person by the name of Zac and asked him to fix the ‘rear diff’. He knew Zac to be a backyard mechanic.[99]
[98] T 169-T 170.
[99] T 170.
In August 2019, the accused was living at Hogarth Road, Elizabeth Vale with Andrew Jensen and his partner Kira. He did not stay there every night and would often go from house to house with friends taking drugs. He then went on the run because he knew police were looking for him and he did not want to remain at his bail address. He was placed on bail in May 2019 for illegal use and driving whilst disqualified.^[100] His house mate Andrew told him that police had come looking for him at the Hogarth Road address. In the days leading up to 4 September 2019, the accused thought the police might be looking for him in relation to an assault and unlawful detention and stabbing that he had been involved in a month earlier. The alleged victim was DC.[101]
[100] T 171-T 172.
[101] T 211.
In September 2019, the accused’s friend, Darryl Wanganeen and his sister Leticia were living at 42 Field Street, Parafield Gardens. He met Darryl in gaol and had known him for two years but had never seen him handle a firearm.[102] He stayed at 42 Field Street between 1 and 3 September 2019.[103]
[102] T 173.
[103] T 174.
In the afternoon of 4 September 2019, the accused said he drove the Ford Territory from Field Street to Willow Crescent. His friend, Marque Milligan-Passler lived there with his wife, Susan Hart and daughter Monique. He went there to say hello and to drop off a bag of his jewellery and some computers he was going to leave there as he was on the run and needed somewhere to store his ‘stuff’.[104]
[104] T 174.
The accused said he collected the Ford Territory from Zac on 1 September 2019 or 31 August 2019. He said the registration plates were in the rear of the car when he picked it up. In answer to questions from me he said that he knew that there were other plates on the vehicle.[105]
[105] T 177.
The accused identified the laptops shown in photograph 17 of D2 as belonging to him and his ex-girlfriend. He put them in the boot.[106] The accused was asked whether the piece of paper shown in photograph 5 of D 2 which had on it ‘$200’ was his handwriting and he said no and that he did not recognise the handwriting. He said he had never seen the note before. The address on the note and the phone number did not mean anything to him.[107] The mobile telephone in photograph 5 was not his and he did not know it was in the centre console.[108] The accused identified the glass pipe as his and said the last time he saw it, it was on the passenger seat. The bag of ice pipes was also his. He said he used a lot of ice pipes and he would use them and then smash them.[109]
[106] T 177.
[107] T 178-T 179.
[108] T 179.
[109] T 179-T 180.

The accused identified the laptop in photographs 11 and 12 as belonging to him, but he said he put it in the boot with the rest of the laptops.[110] He said the clothing in photograph 12 was not his and he did not want to say to whom it belonged.[111] The writing on the note with the password and other details was not his writing but was written by a ‘computer guy’ who set up his computer.[112]
[110] T 182.
[111] T 183.
[112] T 183.
The accused agreed that the mobile telephone in the last photograph in D2 was his.[113] The accused was then taken through P8 and said that Zac Benjamin was the person to whom he took the Ford Territory to be repaired. He said the messages between himself and James Stewart were about fixing the Ford Territory.[114]
[113] T 184.
[114] T 184-T 186.
The accused said he did not recognise the firearm in photograph number 55 on page 16 of P8. He said the photograph of that firearm was sent to him but he could not recall by whom.[115] The accused identified the photographs on page 17 and 18 as photographs of firearms and said he had been sent them by a person called Mark, whom he had met through another friend. When asked who that other friend was, he said ‘I can’t recall. I’ve known him for a while, yeah’.[116]
[115] T 186.
[116] T 187.
The accused said that he did not recall seeing the photograph of the firearm on page 32 of P8. He said that the photograph at the top of page 16, which included part of a hand, was something that ‘might possibly have been’ on his mobile phone but he could not recall.[117]
[117] T 187-T 188.
The accused was then taken to the images of a firearm on pages 31, 33, 35 and 39 of P8 and said that they were all images of a firearm that he had seen in the possession of his friend Aaron Forbes on two occasions about a month and a half before the accused’s arrest. Aaron lived at Davoren Park with other people the accused did not know. [118] On the first occasion the accused said he had gone to Aaron’s house at Davoren Park and smoked ice and ‘weed’ there. Aaron pulled out the firearm and was boasting about it and showing it to him. The accused looked at it but did not handle it. He said it was possible he took a photograph of it but could not recall doing so.[119] The second occasion he saw it was two weeks later and about a week and a half before his arrest. The accused said he also saw Aaron Forbes a week before his arrest at 42 Field Street when they were taking drugs together, but Aaron did not show him the gun that day.[120] The accused identified Aaron Forbes as the person in the photographs on pages 6 and 7 of P8 and said the photographs were taken at Aaron’s house.[121]
[118] T 188-T 190.
[119] T 190-T 191.
[120] T 192-T 193.
[121] T 203-204.
The accused said he first met Aaron Forbes when he was 15 or 16 years old. Aaron Forbes died from cancer a month after the accused was arrested and imprisoned. He was not permitted to attend his funeral because he was too late in putting in an application to Corrections.[122]
[122] T 209-T 210.
On 4 September 2019, the accused said he was high on drugs and not able to sleep or concentrate properly. The accused said he did not know what the items were that are shown in the photographs of the door sleeve in D3.[123] However, the accused said that the firearm shown in the photographs in D2 looked like the same firearm that Aaron Forbes had shown him. He said he did not notice a firearm in the door sleeve of the driver’s door in September or August 2019.[124] The accused said that Aaron had been in the Ford Territory, but he had never shown him a firearm whilst in the vehicle. The accused denied putting any items in the door sleeve compartment.[125] He said that he did not put anything in there because he had only recently collected the vehicle and it was in the driveway.[126]
[123] T 193.
[124] T 194.
[125] T 195.
[126] T 196.
The accused said the sheet in the boot was for the tyres that were in the boot. He said that none of the items in photograph 7 of D 2 were his.[127] The accused said that the photograph on page 25 of P8 was a photograph of him and his son sitting in the open boot area of the Ford Territory. There were tyres in the boot. The accused thought this photograph was taken the day before his arrest.[128]
[127] T 197.
[128] T 206.
The accused said that he could not make out the registration details on the plates in the photograph of the Ford Territory on page 30 of P8[129] but recognised the location as Zac’s workshop.[130]
[129] T 208.
[130] The photograph appears to depict registration plates bearing the letters WOL which are different from the registration plates found in the boot on 4 September 2019 and the trade plate on the vehicle on that day.
The accused gave evidence that he did not know that there was a firearm in the Ford Territory on 4 September 2019. He did not think that there might be a firearm in the Ford Territory in the days leading up to 4 September 2019 or in August 2019. He did not know that there was a knife in the door sleeve, and he did not know how it, or the firearm came to be there. [131]
[131] T 212.
In cross-examination, the accused said he had used a screwdriver and knew what one looked like.[132] The accused agreed that he said he swapped Ms Den-Dunnen’s Ford Territory with a Citroen to stop himself from driving so that he did not commit any more offences.[133] He agreed that he drove the Ford Territory on 4 September 2019 to Willow Crescent to catch up with Marque Milligan-Passler and that he stopped at McDonalds on the way. He could not recall what he bought, but thought it was both food and drink.[134]
[132] T 213.
[133] T 215.
[134] T 215.
The accused maintained that he put the laptop in the boot and said he did not know how it came to be under the driver’s seat.[135]
[135] T 216.
The accused said that he left the keys to the Territory in the car at the place that Ms Den-Dunnen had left it in Blakeview and it was towed on a car trailer to Zac’s place to be repaired.[136] It was repaired shortly before the accused’s arrest and Zac drove it to 42 Field Street. The accused said he then had the keys, and the car was locked.[137] The accused was asked about the messages to him from James Stewart in the morning of 4 September 2019 in which he said he needed the trade plate ‘now’. He denied borrowing the trade plate from James Stewart and said that it was on the vehicle when Zac drove the vehicle to his place a few days earlier. [138]
[136] T 219.
[137] T 220.
[138] T 220-T 221.
It was put to the accused that the firearm pictured in D2 did not belong to Aaron Forbes and he replied, ‘I can’t tell you. It looks the same’. He denied knowing that the firearm was in the Ford Territory when he drove it to Willow Crescent on 4 September 2019 and said it was not his firearm.[139]
[139] T 222-T 223.
Closing submissions
Ms White said that the evidence established that the accused was the person who predominantly used the Ford Territory between June and September 2019, other than when it was being repaired. She argued that it was implausible that there could be a loaded firearm in it without the accused’s knowledge. Further, the accused gave evidence that when the Ford Territory was at 42 Field Street it was locked and he had the keys.
Ms White pointed to the evidence of the photographs of a firearm of a very similar appearance and which the expert evidence established was capable of being the firearm found in the vehicle. In addition the fact that the photographs showed a serial number ending in 37, the same numbers at the end of the serial number of the firearm found in the vehicle, is strong circumstantial evidence from which an inference can be drawn that they were indeed one and the same firearm.
Ms White pointed to the evidence of the items belonging to the accused which were found in the vehicle, including the laptop and ice pipes, as demonstrating that there were items belonging to him within reach.
Ms White said that having stopped at Mogas it was unlikely that the accused would not have looked at the items in the door sleeve because he would have opened the car door and therefore been looking in that direction. Ms White pointed to the surveillance evidence establishing that no other person was seen touching or getting into or out of the Ford Territory after it arrived at 28 Willow Crescent. Ms White accepted that in relation to other items found in the vehicle, there was no evidence linking the accused to those items. The absence of the accused’s DNA or fingerprints on the firearm was neutral and did not support his account that he did not know that the firearm was in the vehicle.
Ms White urged me to find that the accused was not telling the truth when he said that he did not know how the trade plate came to be on the vehicle and that he had not seen them before. Ms White said that the agreed facts regarding the observations of the Ford Territory on 2, 3 and 4 September 2019 lead to an inference that it was the accused who put the trade plate on the vehicle.
On 2 September 2019 the Ford Territory was parked at 42 Field Street displaying the number plate XKI-326. On 3 September 2019 the Ford Territory was parked at 42 Field Street with no number plates and on 4 September 2019 at 10.30am it was at the same address with no number plates. However, at 1221 on 4 September 2019 when surveillance commenced at 42 Field Street, the Territory was parked there but now bearing trade plate 0515M. Just over an hour later, the accused drove the vehicle from Field Street to Willow Crescent.
Ms White did not challenge the accused’s evidence that he was friends with a man named Aaron Forbes and that he died not long after the accused’s arrest. However, she said the evidence given by the accused regarding the firearm in Mr Forbes’ possession was a convenient explanation for the firearm being found in the vehicle driven by the accused and one that could not be refuted given Mr Forbes had died.
Ms White submitted that the items in the door sleeve were loose and likely to have moved around during transit and this would have caused the driver of the vehicle to look in that area. She also relied upon the fact that Senior Constable McIntyre saw and recognised the firearm immediately. Although she conceded that a person who did not know and was not looking (as the police were) for a firearm might not have noticed it, she said the accused’s admitted interest in and knowledge of firearms, together with the fact he had seen a very similar handgun twice with Mr Forbes led to an inference that the accused would have recognised it as a firearm.
Ms White said that the person who put the loaded firearm in the door sleeve did so for ease of access and use. The accused was not away from the vehicle for long before being arrested by police and therefore the fact that it was left in the vehicle for a short time does not support the accused’s evidence that he did not know it was there.
Mr Allen commenced his closing submission by conceding that I could be satisfied that the accused was in possession of the firearm on 4 September 2019 by virtue of the extended definition of possession in s 6 of the Act. Mr Allen said the only issue in dispute was whether the accused had established the statutory defence.
Mr Allen said there were five items of objective evidence that required consideration in evaluating the accused’s evidence:
·Whether the accused had handled the firearm
·The location of the firearm
·The position of the firearm
·The size of the firearm
·The intrinsic likelihood of the accused knowing that the firearm was in the vehicle.
Mr Allen conceded that the firearm was in a location close to the driver but the other items in the door sleeve were such that an inference that it was visible to a person in the driver’s seat could not be drawn. Mr Allen said there is no evidence of what a person in the driver’s seat, or when opening the door and alighting the vehicle, could see of the door sleeve and anything within it.
Mr Allen said that the evidence of the position of the firearm as seen in D3 and P6 is not determinative of its position at the time the vehicle was being driven by the accused. Mr Allen said that the search of the vehicle by the sniffer dogs and the opening of the door by the accused and then police may have disturbed or altered the position of the items in the door sleeve after the accused exited the vehicle.
Mr Allen argued that Senior Constable McIntyre’s evidence that he immediately recognised the firearm in the door sleeve and that it was clearly visible should be viewed with some caution. Mr Allen said that Senior Constable McIntyre could not articulate why it was that he immediately concluded that it was a firearm and was not able to describe its position. When asked to compare the photograph of the firearm in D2 with the photograph of the firearm in situ in D 3 he was wrong in his description of its position. He said that the bottom of the handle was closest to the floor and the barrel pointing towards the end of the sleeve. Mr Allen argued that this demonstrated that he was reconstructing the position of the firearm based upon the photographs and not any independent recollection. Detective McGillion described the barrel as facing downwards with the rear of the handgrip visible.
Mr Allen said that the firearm was not in a position that it was glaringly obvious because it took police 8 minutes to locate it and it was not located by Dog Operations police in the earlier search of the vehicle.
Mr Allen emphasised the size of the firearm and that it was small, with an overall length of 115mm and the base plate only 28mm. Mr Allen said an assessment of the plausibility of the accused’s evidence that he did not see the firearm must be undertaken by considering, sequentially, whether the accused would have taken notice of the items in the door sleeve and recognised any particular item as a firearm.
Mr Allen argued that if the firearm belonged to the accused it was more likely that he would have kept it on his person, rather than leaving it in the vehicle. Mr Allen said that the accused’s inability to recall details he might otherwise have been expected to recall of the circumstances surrounding the photographs on his mobile telephone of a firearm similar to that found in the vehicle was not disingenuous but a function of his heavy drug use at the time.
Mr Allen said that it was a reasonable possibility that Aaron Forbes left the firearm in the door sleeve or that the vehicle may have been left unlocked when parked at 42 Field Street. Mr Allen said that if I rejected the accused’s evidence that he did not know the vehicle had a trade plate on it, that would not necessarily lead to an inference that he was driving it with a trade plate to avoid detection by the police because he was in possession of a firearm.
Mr Allen said that if I accepted the evidence of the accused that he did not know the firearm was in the vehicle then the resolution of the question of whether he could not reasonably be expected to have known it was in the vehicle was complicated. Mr Allen argued that the test of reasonableness should be applied by reference to a person in the position of the accused. The evidence relevant to the application of that test included the accused’s drug taking, itinerance, association with a person who had firearms, the location, position and size of the firearm. In combination, all of those factors should lead to a conclusion that this limb of the statutory defence had been established.
Analysis and findings
I find the facts set out in P 11 proved beyond reasonable doubt.
I find that the firearm located in the gold Ford Territory bearing trade plate 0515M was a category H firearm, Fabrique Nationale (aka Browning) 1906, .025 calibre self-loading handgun bearing serial number 959537. I find that it was loaded. I find that the accused was not the holder of a firearms licence on 4 September 2019.
I accept the unchallenged evidence of the surveillance witnesses regarding the observations of the accused and the gold Ford Territory on 4 September 2019. I find that the accused drove that vehicle from 42 Field Street Parafield Gardens to 28 Willow Crescent, Elizabeth Vale between 1336 and 1405 hours on 4 September 2019, stopping en route for petrol at Mogas, 237 Martins Road Parafield Gardens and McDonalds 91-103 Saints Road, Salisbury Heights.
In accordance with the interpretation of the phrase ‘person in charge of a vehicle’ in R v Marafioti, I find that the accused, as driver of the vehicle, was a person in charge of the vehicle and therefore in possession of the firearm. In other words, the findings of fact I have made trigger the presumption in s 6 (2) (d) of the Act which operates to prove that the accused was in possession of the firearm located in the vehicle he had been driving.
The evidence of the police witnesses, Ms Kazmarck and Ms Den-Dunnen was largely unchallenged. I find that Ms Kazmarck was qualified to give opinion evidence regarding the data extracted from the accused’s mobile telephone and I accept her evidence regarding the creation and EXIF dates of the images located on the accused’s mobile telephone.
I find that Brevet Sergeant Collado was qualified to give opinion evidence regarding firearms and firearm image comparison. I accept the evidence of Brevet Sergeant Collado that the photographs on the left-hand side of P 7 are of a firearm and that this firearm has sufficiently similar characteristics to conclude that it is capable of being the firearm found in the vehicle. In the absence of evidence regarding the number firearms of this make and model that were registered in South Australia in September 2019 and their serial numbers I am unable to infer, on the evidence in the prosecution case alone, that the firearm found in the gold Ford Territory is the same firearm depicted in P 7 and in similar images on the accused’s mobile telephone. However, I find that the accused’s mobile telephone contained photographs of firearms, one of which closely resembled the firearm the subject of the charge. I find that at some point prior to 4 September 2019, those photographs were in the Android Gallery of the mobile telephone, but I am unable to make a firm finding as to whether they were taken by the accused or sent to the accused and stored in the Gallery.
I formed the view that Senior Constable McIntyre was doing his best to give accurate evidence regarding the search of the gold Ford Territory, however his ability to recall matters of sequence and detail was hampered by the fact that he did not make any notes regarding the search he undertook. It is clear from his evidence that he moved some items from the position in which he found them prior to locating the firearm. However, I accept his evidence that he did not disturb or move any of the items in the door sleeve prior to observing the firearm within it. I find that within 8 minutes of commencing a search of the front of the vehicle, Senior Constable McIntyre saw the firearm in the door sleeve and immediately informed Detective McGillion. The search was then suspended until the firearm was retrieved and secured.
In the 8 minutes preceding the location of the firearm, Senior Constable McIntyre had located and moved other items he found in the vehicle. Senior Constable McIntyre said he opened the driver’s door in order to search the door sleeve. I consider that it is highly likely that opening the driver’s door would have assisted Senior Constable McIntyre to see the items in the door sleeve. I find that Senior Constable McIntyre did not turn his attention to the door sleeve until he had searched other parts of the interior of the front of the vehicle. Bearing in mind what can be seen in D3 and P6, I find that until Senior Constable McIntyre actually opened the door and looked in the door sleeve, the presence of the firearm was not immediately apparent to him.

Constable Hazel said that he was very sure that he located the bag containing a T-shirt and jumper on the rear seat. Detective McGillion recorded a note that this clothing was found under the driver’s seat. He said this information was provided to him by Constable Hazel. I accept the evidence of Detective McGillion regarding what he was told by Constable Hazel regarding the location of the clothing and that he made a contemporaneous note of this. Constable Hazel did not have recourse to any notes when giving evidence to assist him in recollecting the location of various items in the vehicle. I reject the evidence of Constable Hazel regarding the location of the bag containing the clothing and find that it was under the driver’s seat.
In light of the undisputed evidence that sniffer dogs searched the vehicle prior to the search of it by Senior Constable McIntyre and Constable Hazel, I am unable to exclude the possibility that the items depicted in the door sleeve in D3 and P6 were disturbed to some extent after the accused exited the vehicle. Accordingly, although I accept the evidence of Senior Constable McIntyre that he saw and recognised the firearm immediately upon looking in the door sleeve and did not touch or move it before the footage in P6 was taken, I am unable to make a finding that the firearm was in that precise position at the time the accused was in or driving the vehicle on 4 September 2019. I find that Senior Constable McIntyre had been alerted to the possible presence of a firearm in the vehicle and was familiar with the appearance of firearms, including handguns, enabling him to identify with ease the object in the door sleeve as a firearm.
Having regard to the photographs of the firearm together with the footage of its retrieval and the fact that it was visible in the door sleeve when the door was open, I find that the firearm would have been clearly and readily identifiable as a firearm to a person looking at it and that no experience or expertise with firearms is required for such an identification. Accordingly, unless the accused discharges the onus under s 6 (3) and rebuts the presumption in s 6 (2) (d) it will have been proved beyond reasonable doubt that on 4 September 2019 the accused was in possession of the loaded category H firearm and knew it was a firearm.
If the accused proves on the balance of probabilities that he did not know there was a firearm in the vehicle, the evidence in the prosecution case would lead me to conclude that the accused could not reasonably be expected to have known that the firearm was in the vehicle. The size of the handgun, its position in the door sleeve with a number of other items, my finding regarding the potential for disturbance of the items in the door sleeve after the accused exited the vehicle, the absence of any evidence regarding what a person in the position of the accused could see of the door sleeve and what it contained, are the matters upon which I would rely in coming to that conclusion.
Has the defence in s 6 (3) been established?
The accused elected to give evidence in his defence. His evidence is to be assessed in the same manner as any other witness[140] and is not to be discounted simply because he is an accused person.[141] Even if I were to reject the accused’s evidence, it remains necessary to consider whether the charge is nevertheless proven beyond reasonable doubt.[142]
[140] Brown v The King (1913) 17 CLR 570
[141] R v Jenner (2000) 110 A Crim R 512 [31]; R v Copeland (1997) 194 LSJS 1, 7.
[142] R v Schulz (2016) 126 SASR 476 [35].
The accused is not required to prove his innocence, nor is he required to give or call any other evidence in the defence case.[143] He is presumed innocent unless and until the charge is proved beyond reasonable doubt. He is entitled to be given such credit as is appropriate for having taken this course and making his defence by way of evidence on oath.[144] The prosecution bears the onus of proof in respect of the charge beyond reasonable doubt, statutory exception apart.[145]
[143] Pryor v R [1969] 43 ALJR 388, 389
[144] R v Robinson & Tiplady (1985) 123 LSJS 37, 38.
[145] Woolmington v DPP [1935] AC 462, 481.
The accused gave evidence of illicit drug use over a number of years and admitted to driving whilst disqualified on 4 September 2019. He also gave evidence that he had been in gaol, was on bail for illegal use, driving whilst disqualified and believed that he was wanted by police for serious offences, including unlawful detention, assault and stabbing involving DC. Detective McGillion confirmed that he was a person of interest in relation to suspected offences involving DC.
That evidence was relevant on the defence case to explain the accused’s itinerant lifestyle, his inability to recall details of events surrounding the charged offence, why he traded a Citroen car for the Ford Territory, and why he was driving the Ford Territory on 4 September 2019. This evidence is clearly discreditable conduct evidence admitted by the accused in his sworn evidence. In assessing and evaluating the accused’s evidence I have been careful to avoid engaging in impermissible propensity reasoning and have not reasoned that because the accused was a drug user and had committed criminal offences, he was therefore the sort of person who was likely to have committed the offence charged.
The accused gave evidence that he had an interest in firearms and that in the month before his arrest he had seen a friend of his, Aaron Forbes, on two occasions with a firearm closely resembling that found in his vehicle. The accused identified the images in P8 as photographs of the firearm shown to him by Aaron Forbes.
The accused’s interest in firearms is a relevant matter in evaluating his evidence that he did not know the firearm was in the Ford Territory. An interest in firearms and his association with a person in possession of a firearm similar to that found in the Ford Territory gives rise to an inference that the accused had access to a firearm of the type found in the vehicle.
I found the accused’s explanation for trading the Citroen for the Ford Territory unconvincing. I accept Ms Den-Dunnen’s evidence that the Ford Territory required some form of mechanical repair. I also accept the accused’s evidence, supported as it is by the messages and images on his mobile telephone, that he arranged for the Ford Territory to be towed to Zac Benjamin in early August 2019. However, I do not accept the accused’s evidence that photograph 77 on page 30 of P8 was taken at Zac Benjamin’s workshop. The Facebook messages on page 2 and 3 of P8 lead me to infer and find that the accused had arranged for James Stewart to service the Ford Territory on 2 September 2019. I infer and find from those messages and the evidence of Ms Kazmarck that the accused drove the Ford Territory to the workshop on 2 September 2019 and that photograph 77 was taken at Stewart Mechanical Services at 4.30pm on 2 September 2019.
The text message from the accused at 5.05pm on 3 September 2019 in which he wrote, ‘Im in the car park behide shop in territory’ together with photograph 69 of the accused sitting on the open boot area of the vehicle with his son, lead me to infer and find that the accused drove the Ford Territory on 3 September 2019. Accordingly, I reject the accused’s explanation as to the reason he ‘swapped’ a Citroen for the Ford Territory, namely to stop him driving a vehicle and committing further offences. I find that the accused traded the Citroen for the Ford Territory in order to assist Ms Den-Dunnen but also for his own purposes, namely to repair it for use or sale.
The accused initially gave evidence that he did not know how trade plate 0515M came to be on the Ford Territory on 4 September 2019. However, in cross-examination he said that the trade plate was on the Ford Territory when Zac drove it to 42 Field Street shortly before his arrest. I consider it unlikely that a backyard mechanic would have access to a trade plate. In any event it is an agreed fact that the trade plate 0515M was registered to James Keith Stewart, managing director and owner of Stewart Mechanical Services. There is no evidence from which I can infer that Zac Benjamin had any connection with Stewart Mechanical Services, whether as an employee or customer, such that he had access to the trade plate 0515M in September 2019.
I note the inconsistency in the evidence the accused gave regarding his knowledge of the trade plate. I reject as implausible and contrary to the agreed facts and the content of the messages and photographs in P8, the accused’s evidence that Zac drove the Ford Territory to 42 Field Street with the trade plate 0515M affixed to it. I find that the accused was a customer of Stewart Mechanical Services on 2 September 2019 and that at some time between 2 and 4 September 2019 the accused was given the trade plate 0515M by James Stewart or otherwise permitted by James Stewart to affix it to the Ford Territory. I find that the accused fitted the trade plate 0515M to the Ford Territory before travelling from 42 Field Street to 28 Willow Crescent on 4 September 2019.
I accept the accused’s evidence that on 4 September 2019 he was trying to avoid the police and I find that he used the trade plate on this occasion to escape detection by police whilst driving the Ford Territory because the vehicle was unregistered and he was driving whilst disqualified.
There were a number of items in the vehicle that the accused admitted belonged to him including tyres, registration plates, laptops and ice pipes. I find that those items were placed in the vehicle by him. He said he was going on the run and was taking ‘stuff’ to his friend at Willow Crescent for safekeeping and I infer and find that he placed in the vehicle items of value to him.
However, there were other items which the accused said did not belong to him, but he did not identify to whom they belonged or how long they had been in the vehicle. The accused knew to whom the T-shirt and jumper in a plastic bag under the driver’s seat belonged but would not identify that person. He was not asked in cross-examination to identify that person.
The accused said he did not know that the firearm was in the vehicle and that he did not put it or any other items in the door sleeve. If this is true, then it follows that another person has done so without the knowledge of the accused. In assessing the likelihood of this occurring, I take into account the agreed facts regarding the vehicle’s presence at 42 Field Street on 2, 3 and 4 September 2019 and my finding that the vehicle was at Stewart Mechanical Services on 2 September 2019.
Other than the evidence of the accused, there is no evidence upon which I could be satisfied on the balance of probabilities that another person put the firearm in the door sleeve prior to 2 September 2019 without the accused’s knowledge. I reject as implausible the possibility that Zac Benjamin put the firearm in the door sleeve without the accused’s knowledge at any time during which he had any dealings with the Ford Territory. On the accused’s evidence, the last time that Zac Benjamin had the vehicle in his possession was 31 August 2019 or 1 September 2019.
I consider it highly unlikely that an employee of Stewart Mechanical Services or James Stewart left a handgun or knife in the door sleeve of a vehicle that was being serviced. I consider it highly unlikely that the accused would have left a handgun or knife in the door sleeve before taking the vehicle to be serviced.
The evidence establishes that the accused treated the Ford Territory as his own from the time he traded it for the Citroen. He had arranged for it to be serviced two days before his arrest. There is no evidence from which I could be satisfied on the balance of probabilities that after the vehicle was serviced at Stewart Mechanical Services on 2 September 2019, any other persons had access to the Ford Territory up to and including 4 September 2019. Whilst there is a possibility that other persons living at 42 Field Street could have accessed the keys to the Territory without the accused’s knowledge, there is no evidentiary basis upon which I could be satisfied on the balance of probabilities that this occurred, let alone that any such person placed a firearm in the door sleeve without the accused’s permission or knowledge.
The accused’s evidence that he was shown a firearm by Aaron Forbes which is depicted in the photographs in P8, together with the image comparison evidence of Brevet Sergeant Collado, is compelling evidence from which I infer and find that they are one and the same firearm. In making this finding, I consider that it would stretch credulity and the bounds of coincidence to reason that the accused might happen to have in his vehicle a firearm that, whilst closely resembling the firearm in the images on his mobile telephone, including identical final two digits of the serial number, was a different firearm.
The accused’s evidence of the death of Aaron Forbes, which was not disputed by the prosecution, has deprived the accused of the ability to call evidence from Mr Forbes regarding the firearm in the images in P8. However, I cannot speculate about the evidence that Mr Forbes may have given.
In those circumstances, I am not prepared to reject the accused’s evidence that the firearm in the images in P8 was shown to the accused by Mr Forbes on the two occasions he described. However, the accused’s evidence does not satisfy me that it is more likely than not that Mr Forbes, or any other person, put that firearm in the door sleeve of the Ford Territory after it was serviced on 2 September 2019 without the accused’s knowledge or permission. In other words, I find it improbable and intrinsically unlikely that any person other than the accused placed the firearm in the door sleeve.
I reject as implausible the accused’s evidence that he did not know the firearm was in the Ford Territory on 4 September 2019. I infer and find that at some point the accused obtained possession of the firearm from Mr Forbes and following the service of the Ford Territory on 2 September 2019, he placed it in the door sleeve. It follows that the statutory defence has not been established.
Verdict
As the prosecution has proven all elements of the offence beyond reasonable doubt, I must find the accused guilty of the charge.