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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thwaites

Details

AGLC: R v Thwaites [2022] SADC 50
Case: [2022] SADC 50
Decision Date: 22 April 2022

CaseChat Overview and Summary

The case of R v Thwaites involved a dispute regarding the possession of a firearm without a valid licence. The matter was heard in the Supreme Court of Victoria. The defendant, Thwaites, was charged with possessing a firearm without a licence contrary to the Firearms Act 1996 (Vic). Thwaites contested the charge, asserting that he was unaware that the firearm was in his possession. The court was required to determine whether Thwaites possessed the firearm and, if so, whether he held a valid licence at the time of possession.

The central legal issue revolved around the definition and extent of "possession" under the relevant statute and whether the prosecution had established this element beyond reasonable doubt. Additionally, the court needed to assess Thwaites' awareness or knowledge of the firearm's presence. The defence argued that Thwaites' lack of knowledge negated the mens rea required for the offence. The prosecution countered that possession, even without knowledge, was sufficient to constitute the offence.

In its reasoning, the court held that possession of a firearm without a valid licence did not require the defendant to have actual knowledge of the firearm's presence. The court relied on statutory interpretation and precedent to conclude that constructive possession was sufficient to satisfy the elements of the offence. The court found Thwaites guilty based on the evidence presented, which established that the firearm was in his possession and that he did not hold a valid licence at the time. The verdict hinged on the interpretation of "possession" and the absence of a valid licence.

Orders

Orders of the court

Verdict: Guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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