R v TUCKER - [2018] SADC 96

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TUCKER
Criminal Trial by Judge Alone
[2018] SADC 96
Reasons for the Verdict of Her Honour Judge Chapman
13 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
Criminal trial by judge alone - accused charged with two firearm offences - plea of guilty to count 1 - plea of not guilty to count 2 - issue is possession - accused occupied premises where the firearm the subject of count 2 was found - whether the accused rebutted the presumption of possession of the firearm.
Held: Evidence of accused rejected. He failed to rebut the presumption of possession of the firearm. Verdict of guilty on count 2.
Firearms Act 1977 (SA) ss 5(14), 11(1), referred to.

R v TUCKER
[2018] SADC 96

The accused is charged with committing firearm offences on 22 March 2017. Two firearms were found by police at premises he occupied in Loxton.
One firearm was a sawn off side by side shotgun found in the boot of a vehicle on the premises. The accused is charged with Possessing a Firearm Without a Licence[1] in relation to that firearm (count 1). He pleaded guilty to that offence.
[1] Contrary to section 11(1) of the Firearms Act 1977 (SA).
A second firearm was a Colt Automatic Calibre 25 pistol, a class H firearm, found in a cardboard box inside the house. The pistol was loaded. He is charged with Aggravated Possessing a Firearm Without a Licence[2] in relation to that firearm (count 2). He pleaded not guilty to that offence and the matter proceeded to trial.
[2] Contrary to section 11(1) of the Firearms Act 1977 (SA).
Search of premises
On 22 March 2017, police officers attended at an address in Loxton and searched the premises. Ms Melanie Reichelt was at home. The accused was not. There is no dispute that Ms Reichelt and the accused lived together at the house between September 2012 and 22 March 2017. They had been in a relationship which ended some time prior to 22 March 2017. The accused continued to live at the house following the breakdown in the relationship. He had a separate bedroom from Ms Reichelt.
Count 1 – plea of guilty
A blue 1968 Dodge sedan was parked in the shed. Ms Reichelt gave the police the keys. Inside the boot was a plastic tub. The shotgun was in two parts in that plastic tub. Each part was inside a sock wrapped in a plastic bag and bound with electrical duct tape. There was a small box containing bullets and shotgun shells.
The firearm was in overall good condition and no malfunction was identified when it was test fired. The barrels were sawn off from the breech face. By modification, the firearm had a barrel length of 368mm and an overall length of 654mm.
The car had been registered in the name of the accused from 7 November 2015 to 6 February 2016.
The accused’s DNA was on the outer surface of a piece of the duct tape and a sock.
The accused gave evidence the firearm had belonged to him since 2006 or 2007. When he moved to Loxton in 2012 to live with Ms Reichelt, he had that firearm and another firearm in his possession. Ms Reichelt took them with her in her car to Loxton then hid them at her house. He did not see that firearm again until before it was found by police on 22 March 2017. He knew the firearm was somewhere on the premises.
Ms Reichelt denied transporting the two firearms to Loxton and offering to hide them for the accused.
Count 2 – plea of not guilty
In the living room was a cardboard box in a meat safe/wall unit. The unit belonged to the accused. In that cardboard box was a jumble of various items including a small white box. The firearm was wrapped in a cloth inside that white box. It was a Colt Model 1908 semi-automatic pistol in the calibre 25 auto centre fire designed to operate with a six round detachable box magazine. It had a barrel length of 55m and an overall length of 114mm. It was in good condition and no malfunction was detected when it was subsequently test fired by the police.
The pistol was loaded. When the magazine was removed by the police there was at least one bullet at the top. There were six bullets ejected from the magazine.
The small white box containing the pistol was a box for a mobile phone. It contained a receipt, dated 4 October 2016, for purchase of a mobile phone by ‘Gary Tucker’.
Count 2 – elements of the offence
The prosecution must prove each element of the offence of Aggravated Possessing a Firearm Without a Licence (count 2) beyond reasonable doubt.
The prosecution must prove two elements beyond reasonable doubt. First, that on 22 March 2017, the accused had in his possession the Colt pistol, a class H firearm. Second, that as at 22 March 2017, the accused was not the holder of a licence authorising possession of that firearm.
There was no dispute in relation to the second element of the offence. It was agreed that as at 22 March 2017, the accused did not hold a current firearms licence authorising the possession of any firearm.
The prosecution must also prove that the offence was aggravated, namely, that the firearm was loaded. There was no dispute that the firearm was loaded.
The issue at trial was the first element of the offence, namely, the accused’s possession of the firearm.
A person has possession of a firearm if the person occupies premises where a firearm is found.[3] There was no dispute that as at 22 March 2017 the accused, with Ms Reichelt, occupied the premises where the Colt pistol was found and had done so for years. The accused will be presumed to have possessed the firearm at the relevant time unless he can rebut that presumption. In order to do that, s 5(15) of the Firearms Act 1977, requires him to establish, on the balance of probabilities, that either:
(a) he did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises;
or
(b) the firearm was in the lawful possession of another or he believed on reasonable grounds that the firearm was in the lawful possession of another.
[3] Section 5(14) of the Firearms Act 1977 (SA).
The accused sought to establish s 5(15)(a). He did not seek to establish s 5(15)(b).
Evidence of the accused
The accused gave evidence he had an interest in firearms. He began a relationship with Ms Reichelt on New Years’ Eve in 2011. Just over a week later, he sent two emails to Ms Reichelt attaching photographs and a video of himself with firearms. One of those firearms was the subject of his plea to count 1.
In September 2012, the accused moved from Trott Park in Adelaide to Loxton to live with Ms Reichelt. She helped him move his belongings. At the time he had two firearms, including the one the subject of his plea to count 1. He told Ms Reichelt he had previously been in trouble once with police over a firearm. She offered to take the two firearms in her car whilst he followed behind. She said she would do anything to protect him and did not want him getting caught with them.
When they arrived at her place, she said she would hide the firearms so nobody would find them. She did not tell him where they were going to be hidden. He next saw the firearm the subject of his plea to count 1 in a photograph taken by the police after they found it in the boot of the blue 1968 Dodge sedan parked in the shed. He never saw the other firearm again.
In relation to the firearm the subject of count 2, the accused gave evidence a woman came to the door one day in around December 2012. Ms Reichelt answered the door and said there was someone to see him. The woman was unknown to the accused. She said she had something he might be interested in. She pulled out the pistol from a box. The woman did not introduce herself. The accused asked her how she got his name. She responded ‘Ask no questions, tell no lies’. The accused said to Ms Reichelt, ‘I can’t have this sort of shit turning up here due to Queen’s pleasure’. Ms Reichelt responded, ‘Well I can, I’m not at Queen’s pleasure and I like it’. Ms Reichelt bought the pistol for $300. Later the accused asked Ms Reichelt who the woman was and said she could get $5,500 for the pistol. He told her to hide it well because he did not want it coming back on him.
In November 2014, the accused moved out of their shared bedroom into the spare bedroom because the relationship had deteriorated. He took some of his bedroom furniture to his father’s place. When moving the furniture he saw the pistol under Ms Reichelt’s bedroom furniture. He told her she was ‘a fucking idiot’ for hiding it there and said she had to ‘get rid of it, get it out’. He told her to bury it. He next saw the pistol in the police photos. He denied ever putting the pistol into the mobile phone box in which it was found by the police.
He thought it was in 2015 that he told Ms Reichelt he hoped she had the pistol hidden really well. She said the firearms were buried under the dog’s kennel out the front.
Evidence of Melanie Reichelt
Ms Reichelt gave evidence she first saw the firearm the subject of count 2 in late 2012 or early 2013 during a general visit to the accused’s father’s house. The accused’s father got the pistol out and put it on the table. It was inside a box. There was some conversation about it and they left.
She next saw the pistol about a week later on her kitchen bench. The accused said he spent his last $300 on an engagement present for her and presented her with the pistol in a box. She said ‘thank you’. He said ‘I’d better find somewhere good to hide it. It’s a shame I can’t show anyone or tell anyone’. She thought it was a bit of a strange gift. There was no formal engagement. She put it underneath a bedside cabinet in her bedroom in the box. Several months later, the accused said that was not a good hiding place so she removed the pistol to find somewhere better. They decided to put it in a Vittoria coffee tin under the kitchen sink. The accused said it needed to be wrapped in something soft so she wrapped it in one of her son’s old baby blankets.
In mid to late 2016, she moved the tin to the linen press in the hallway. She wanted to put it somewhere unknown to the accused. She had told him several times he needed to get it off the property, but he had not done so. She needed to move it so he could not find it.
Around Christmas 2016, she took the tin from the linen press and told him to get the pistol off the property. She told him to leave as well. He laughed and said no.
She saw the pistol a few times after that when the accused was cleaning it or playing with it at the dining room table. She told the accused the pistol needed to be off her property.
She denied owning any of the items inside the cardboard box in which the police found the pistol. She said the cardboard box was in the meat safe which belonged to the accused. The small white box containing the pistol was the box the accused had when he bought a new phone during summer 2016/17.
Assessment of the evidence
I did not believe the accused or Ms Reichelt in regard to their stories about the pistol.
I found the story of Ms Reichelt about the accused giving her the pistol as an engagement present to be fanciful. She estimated that event to have occurred in late 2012 or early 2013. Not only is the timing of such an engagement unlikely in her chronology of events, but there is no evidence that she and the accused were ever engaged. She attempted to explain that by saying there was no ‘formal’ engagement. The suggestion that an engagement gift came with the instruction that it needed to be hidden away seems bizarre.
At the time of receiving the pistol as an engagement gift, Ms Reichelt said she did not know whether it was legal or not, but knew that people were not supposed to have them somewhere where they were not secured correctly. Nevertheless, she claims to have done precisely that by storing the alleged gift at various locations around her home despite the presence of her young daughter who was living there at the time.
I found Ms Reichelt to be coy about the nature of her relationship with the accused. For example, she initially gave evidence the relationship ended in November 2013 and denied the existence of an ongoing relationship as at the beginning of 2015. Her evidence on that matter did not sit well with a card she was shown in cross‑examination that she sent the accused at the end of 2015 wishing him a happy fourth anniversary.
There was another aspect of her evidence that made no sense at all. She said that during 2016 she told the accused to get the pistol off the property, but then when he did not do so, she took it upon herself to hide it from him so he could not find it.
The accused gave evidence there was no engagement and he did not give her the pistol as an engagement present. I believed him about that.
I found the accused’s evidence about the anonymous woman who came to sell him the pistol to be as equally ludicrous as the story of Ms Reichelt about the engagement gift, if not more so. On the one hand, the accused said Ms Reichelt was so concerned in September 2012 about him not being caught with firearms that she transported two of his firearms with her in her car when he moved to Loxton and then took it upon herself to hide them on her property in a place unknown to him. On the other hand, he claims Ms Reichelt purchased this pistol for herself some three months or so later when they were living together because she liked the look of it.
The accused said the anonymous woman was in her 70s and he assumed Ms Reichelt knew her, but he did not speak to Ms Reichelt about that. Further, he said he and the woman waited outside together when Ms Reichelt went to the bank to get the cash out. They had no conversation. He attempted to explain that by saying he was nervous and not a big talker. All of that strikes me as odd.
Ms Reichelt gave evidence there was never an occasion when an anonymous woman came to the door asking for the accused and then sold her a firearm. I believed her about that.
The evidence of the accused lacked credibility generally. He admitted to having an interest in firearms. The photos and video he sent to Ms Reichelt in 2012 demonstrate that to be the case. I found his claim that he permitted Ms Reichelt to hide his two firearms (one of them being the subject of count 1) somewhere on her premises unknown to him after he moved to Loxton to be highly unlikely. Based on the photos and the video, they were his beloved possessions. They remained so in early 2012 when he emailed the photos and video to Ms Reichelt. That he would entrust someone else to hide them in September 2012 and not himself know where they were is implausible.
His story that the two firearms were a ‘weight around his ankles’ does not support his conduct in keeping them for years let alone emailing photos of himself with them in early 2012 to someone he barely knew. His story that he took the chance and kept the two firearms because people were after him in 2007 and they might turn up did not fit well with his story that he permitted Ms Reichelt to make them disappear somewhere on her premises to a location unknown to him.
Generally, his evidence was contradictory and intrinsically unlikely.
I have not used the evidence of the accused’s prior conviction in 2007 for a firearm offence as evidence of a propensity on his part to possess firearms or to reason that he is the type of person likely to commit this offence or that he is a bad person. I have only used that evidence as relevant to the explanation he has given for why he claimed that Ms Reichelt did certain things (transported his two firearms and hid them in her house) or that he did certain things (told Ms Reichelt to get rid of the pistol).
The accused’s plea of guilty to count 1 shows an interest on his part in a firearm. He also gave evidence of a general interest in firearms. I have not used that as evidence that it is more likely that he knew of the presence of the pistol or had possession of the pistol which is the subject of count 2. I have only used evidence of his interest in firearms when assessing the credibility of his claim that he permitted Ms Reichelt to hide his two firearms from him when he moved into the house at Loxton
Finding of guilt on count 2
I do not consider that either the accused or Ms Reichelt told the truth about the circumstances surrounding the presence of the pistol at their home in Loxton in March 2017.
I am satisfied beyond reasonable doubt that the accused was a person occupying the premises where the pistol was found on 22 March 2017.
The prosecution has proved beyond reasonable doubt that the accused was in possession of the pistol unless the accused rebuts the presumption of possession on the balance of probabilities. He has failed to do so. I rejected his evidence regarding the purchase of the pistol by Ms Reichelt and subsequent conversations about it. He has not established that it is more probable than not that he did not know, and could not reasonably be expected to have known, that the firearm was on or in the premises. Indeed, his own evidence suggested to the contrary. Although he did not admit knowledge, he said he assumed the pistol (and the shotgun the subject of count 1) would still be on the property because he was told by Ms Reichelt they were buried there.
I find the accused guilty of count 2.