R v Wilson (No. 2) - [2020] NSWDC 549

District Court

New South Wales

Medium Neutral Citation: R v Wilson (No. 2) [2020] NSWDC 549
Hearing dates: 14 September-18 September 2020
Date of orders: 18 September 2020
Decision date: 18 September 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 183-184

Catchwords:
CRIMINAL LAW – trial by judge alone – firearm offences – whether accused in possession of firearm

Legislation Cited:
Crimes Act 1900 (NSW), s 33B
Evidence Act1995 (NSW), s 165
Firearms Act1996 (NSW), s 4, 4A, 7A
Paintball Act 2018 (NSW)

Category: Principal judgment
Parties: Director of Public Prosecutions
Mr B J Wilson
Representation:
Counsel:
Ms K Henry for the Director of Public Prosecutions
Mr W Buxton for the accused
Solicitors:
Office of the Director of Public Prosecutions
Legal Aid for the accused

File Number(s): 2019/248475
Publication restriction: Nil

Judgment

INTRODUCTION

The accused is tried on an indictment with the offence that on 1 August 2019 at Thornton, he possessed a firearm (a pistol), not being authorised to do so (by licence or permit), contrary to s 7A(1) Firearms Act1996 (NSW).
A "firearm" is defined in s 4 to mean a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker within the meaning of the Paintball Act 2018 (NSW) or anything declared by the regulations not to be a firearm. No point was taken that if a gun was in the accused’s possession at the relevant time this definition was not satisfied. Further, it was common ground that it was enough that the firearm could have been an imitation firearm.
Further, this is not a case where the Crown relies upon any extended definition of “possession” of a firearm, in s 4A of the Firearms Act. The Crown contends that the accused had it on his person.
The firearm has never been located.
There was no dispute that if the accused actually was in possession of a firearm on the relevant date, he was not licensed or authorised to possess it.
The sole question for my determination in the trial, on the contested charge, sitting alone, is whether he was in possession of the firearm, as alleged.
Upon being arraigned, on 14 September 2020, the accused pleaded guilty to two other offences arising from his conduct on 1 August 2019 at Thornton. The nature of those offences separately concerned his intending to intimidate and his making a threat to damage property.
During his opening address, Counsel for the accused foreshadowed that a significant part of the accused’s case was that the credibility of the Crown’s main witness, Mr Clayton Futcher, was significantly impaired by what he said in a sound recording about the accused pouring petrol on and near the front door, as well as the threat that he, the accused, might use a lighter to burn down the house where, it was said, he possessed the gun. The questions whether the accused poured fuel and threatened to burn down the home were also relevant to the Crown case, which was partly to the effect that the accused used a gun as part of an escalation of threats towards Mr Futcher; culminating in the threat to burn down the home. The questions are relevant to the sentencing proceeding that is to follow, at least in relation to the two offences in respect to which the accused has entered guilty pleas.
In circumstances where the Crown and the accused joined in applying for me to determine those questions about the pouring of petrol and threat to alight the home, I acceded to the request to make findings about those questions even if they may not, strictly, have been necessary to determine in order to adjudicate on the ultimate question of whether the accused had a firearm in his possession.

THE CROWN CASE ON THE FIREARM OFFENCE

The Crown case is that the alleged offence arose in the aftermath of the break-up of a relationship between Mr Clayton Futcher and Ms Brooke Balcombe at the end of July 2019, following which Clayton Futcher moved in to his grandmother’s house in Thornton (which I will hereafter refer to as the ‘Thornton property’). Before that, Mr Futcher and Ms Balcombe were living together. Following the break-up, Mr Futcher returned to the premises that he and Ms Balcombe shared and seized items of property: principally, a television set and heater. Ms Balcombe objected to Mr Futcher seizing those items; which she considered belonged to her. On 31 July and 1 August 2019, she took steps to retrieve those items. Mr Futcher resisted those steps and maintained his entitlement to them. The Crown case was that on 31 July 2019, initially Ms Balcombe and her four brothers used the implied threat of force towards Mr Futcher to coerce the return of those items of property. When that did not succeed, on the next day, 1 August 2019, the accused became involved and, amongst other things, he threatened the use of the gun in order to obtain the property.
The Crown relies upon Clayton Futcher’s identification of the accused holding the gun (and threatening to use it) which evidence, the Crown contends, is supported by other evidence, being a sound recording of a 000 call to a police operator, and other surrounding circumstances involving earlier unsuccessful attempts undertaken, for the benefit of Ms Balcombe, to retrieve from Clayton Futcher what she claimed was her property.

AGREED FACTS (EXHIBIT A)

The accused admits that:

Clayton and Corey Futcher, and their two younger sisters, resided with their grandmother, Deborah Jeffress at her place in Thornton. On the afternoon of 1 August 2019, only the Futcher brothers were at home;

Clayton Futcher and Brooke Balcombe were in a relationship that ended in July 2019;

on 30 July 2019, Clayton Futcher and other family members attended the home he had been residing at with Brooke Balcombe. He took several items which included a television, a gas heater and clothing;

DNA recovered on the lid of the fuel can resulted in a ‘Mixed DNA Profile’. The accused could not be excluded as a contributor to that mixture; and

at about 9:45am on 9 August 2019, the accused was arrested, without incident, in a premises at Metford.

DISPUTED FACTS

Evidence of Clayton Futcher

Clayton Futcher gave evidence that on 31 July 2019, his ex-partner’s brothers came to the Thornton property and demanded the return of what they understood to be property belonging to Ms Balcombe: a heater and television set. Their demand was rebuffed and Mr Futcher asked them to leave the property. This they did, but not before one of the brothers, Brendan, punched the front window.
The next day, on 1 August 2019, in about the middle of the day, Clayton Futcher heard a knock on the front door of the Thornton property. Earlier in the day, an hour before the knock on the door, Clayton Futcher saw Ms Balcombe driving past the house. She had also phoned him during the morning, in which she asked for her property. When he responded no, he recalled her saying “That’s fine. Your house is getting come for.”
The front door of the house at the Thornton property was made of timber, but there was a window on the door. He said that the window was made of tinted glass so he could see out, but the person on the outside could not see in; although the accused later disputed that. Mr Futcher identified the accused as being the person who knocked on the door; although he said that the accused had falsely identified himself as being “John from down the road”, a ruse which Mr Futcher did not fall for. He recalled the accused saying “Open the fucking door”.
Mr Futcher saw the accused move to the accused’s left, along the veranda, so as to position himself behind the front window of the house located on the right side of the front door (looking outward). There were some timber blinds on the inside of the house to that window but on this occasion they were open.
He then recounted the following exchange with the accused: “I’m not opening the door. I don’t – I don’t have the belongings what you claim that I had”. He then saw the accused walk to the front window of the house, in between the middle of it, and saw him place a handgun in front of the window. Mr Futcher said he could see the gun on the lower part of the window from where he was standing, behind the front door. Mr Futcher said the black pistol gun, about 20 centimetres in length, appeared scuffed down to the bare metal, with markings on the base.
Mr Futcher said the accused asked him whether he could see what was in his hand and Mr Futcher acknowledged that it was a gun. The accused then said that “If you don’t open the door in 10 seconds I’m going to use it”. Upon sighting the gun, Mr Futcher said he went out towards the back of the premises and rang the 000 phone line; leaving his brother, Corey Futcher, who was sitting in the lounge room, to speak with the accused. (In an ERISP interview, the accused identified Corey Futcher as being a friend of his).
Mr Futcher said that the accused had threatened to burn the house down. He gave some evidence about the use of a jerry can and fuel for this purpose. At one point he observed that the accused had a lighter in one hand and a gun in the other. Mr Futcher said he observed this with the accused being at the front window and him being opposite, situated in the lounge room. After seeing him with the lighter and gun, Mr Futcher said he returned to the sunroom out the back to avoid being seen and continue the conversation with the operator.
He said he then heard the side gate open and was worried, since the back door was unlocked. He returned to the front of the home and saw a police bull wagon pull up the front. He sensed that the accused had moved to the back of the house. He opened the door, in order to approach the police.

Audio recordings

The sound recording of Mr Clayton Futcher’s conversation with the 000 operator was played (Exhibit C). Although it was Clayton Futcher who spoke, his brother, Corey’s voice could be heard on at least two occasions. Clayton Futcher also identified that the accused’s voice could be heard.
The playing of the sound recording indicated that Clayton Futcher was urgent in his tone, consistent with his wanting the police to arrive as soon as it could to the residence. At parts he sounded worried; at other parts scared and at certain points, he was crying. He was also heard himself yell at the accused.
In terms of the substance of the sound recording, after requesting police come to his place, the first thing that Mr Futcher said to the operator, in explanation for his request, that he had someone at his door with a gun. That person, he identified, was the accused. He indicated to the operator that the accused had threatened him with the gun: that he would kick in the front door and shoot them. He repeated in the sound recording several times the accused’s threat to kick the door in.
The accused’s voice could be heard saying “I’m gunna fuckin’ deadset smash your head in” and “I’m gunna fuckin’ kill you”.
As I have said, it is apparent in the sound recording that there is yelling going on. Clayton Futcher asserted that the Accused was yelling. But he was not the only one. The recording indicated that Corey Futcher, Clayton’s brother, also yelled at Clayton, remonstrating with him to hand over the property. Clayton protested that the heater was his and denied that he took other property belonging to Ms Balcombe. He protested that the heater and the TV that he had taken was his. But there appeared to be some ‘negotiation’ if only, in context, to try to placate the accused: Clayton did not make any claim to retrieve his motor bike, which apparently had been seized and was in Ms Balcombe’s possession.
At one point of the sound recording, I find that the accused could be heard saying “I’m gunna fuckin’ kill you”. The sound recording also contains Clayton Futcher’s expressed fear, very shortly after the above death threat, that the accused was threatening to burn the house down. Specifically, Clayton said that the accused had a jerry can, with petrol inside: the accused had ‘tipped petrol all on my front door’. This was something he repeated. The operator asked him asked Mr Futcher whether the accused had a lighter and Mr Futcher said he had and that he was “about to light the petrol”. He said he also smelt petrol.
In the call, Mr Futcher identified the gun as being black in colour and about 25 centimetres in length.
Mr Futcher was then heard directing the police ‘over the back fence’ and asserted that the accused had jumped the back fence.

Cross-examination of Mr Futcher

Under cross-examination, Mr Futcher accepted that he was frustrated with the delay in the arrival of the police. He accepted that in order to impress upon the operator on the phone call the urgency of the situation, he exaggerated “a little”. The exaggeration concerned his account of what the accused was doing with the jerry can: it was an exaggeration for him to say that the accused had indicated that he was intending to burn the house on multiple times; when in fact he had only said that he was going to do this once. Mr Futcher explained in re-examination that the exaggeration was intended to impress upon the operator the need for the police to arrive as quickly as possible.
It was put to Mr Futcher that, having been previously bothered by attempts of his former partner to retrieve property, he also exaggerated his account that the accused was holding a gun in order to get the police more quickly to the home. It was suggested that what he took to be a gun was only a mobile phone. Mr Futcher indicated that whilst he had, indeed, seen the accused with a mobile phone (and indeed heard him, via speaker phone, use it in a conversation with his ex-partner) he maintained that he also saw the gun.
It was also put to Mr Futcher that when he gave a version of events to the police later on, he referred to the gun only because of a perception on his part that he might not appear credible if he did not adhere to what he had told the operator; and, in that sense, felt pressured to reiterate a false account. Mr Futcher maintained that he told the police what had happened.
It was suggested to Mr Futcher that it was implausible that he would have allowed himself to appear at the door or the front window for any length of time if he saw the accused with a gun, rather than moving more rapidly than he said he did, towards the back of the residence. Mr Futcher replied that this was a situation that he had not previously had to deal with. It was suggested that the reason he did not instantly move to the back was because there was no gun. Mr Futcher rejected this.
Mr Futcher accepted that the accused could not be heard in the sound recording threatening to use a gun.

Evidence of officer in charge

Senior Constable Hannah was the officer in charge. It was he who took the photograph of the premises (Exhibit B) where the incident occurred. He arrived at the scene at about 2:00pm.
The principal aspect of his evidence was to get into evidence the content of the accused’s ERISP interview. He confirmed that the police had been unable to retrieve any pistol.

The accused’s ERISP interview

The accused participated in an ERISP interview on 9 August 2019, the day he was arrested. No point was taken about the voluntary or consensual manner in which he participated in that interview. Later, when the accused gave evidence, the accused did however, explain, seemingly, that he was impeded in his recent memory of events when he spoke to the police, being under the influence of drugs, and had been tipped off that police might be interested in whether he had been involved in an incident including a gun and the pouring of petrol. A recording of the ERISPS was played (Exhibit H).
Features of the interview included the accused’s denial of having a gun and handling a jerry can in a way that might suggest any apparent inclination to burn the house down. When Clayton Futcher’s allegation about his use of the pistol to tap on the window was put to him, the accused snorted with laughter. On more than one occasion, he rhetorically asked why he would brandish a gun simply to retrieve food, a television and a heater.
Nevertheless, the accused confirmed that he was present at the Thornton property. He said he was asked by Ms Balcombe to go to the property at which the Futchers and Mrs Jeffress resided for the purpose of retrieving food, heater and a television. The accused said that he had been informed by Brooke Balcombe’s brothers, who (along with Ms Balcombe) were friends of the accused, that Mr Futcher had stolen these items from Ms Balcombe the previous day. Asked why he was there, he said that Ms Balcombe was scared to retrieve the property herself (A 104). He did not think that Clayton would open the door, but he said he was friends with his brother, Corey (A 292). He denied that any inducement was made for him to involve himself in this way (A 288). He confirmed that he was driven to the property by Ms Balcombe. He recalled that Ms Mason was the front seat occupant of that car.
In the interview, the accused told police that all he did was go up to the front door and ask Clayton Futcher to give back the property. He said he heard Cory Futcher, who was sitting on the lounge, and observable from the front window, telling Clayton to give the property back. The accused said (at A 67) that he:

“didn’t swear at him. I didn’t raise my voice or anything. I didn’t bang on the door or anything. I just tapped on the door with my phone and that was it”.

He reaffirmed that he did not yell (A 102). He estimated (at A 84) that he “was there for not, like, 2 minutes, 5, not even that.” He later said that he asked Corey, his friend, to tell Clayton to give the property back (A 302-303) and that Corey had yelled at Clayton to do so. He was not sure whether he made any phone calls, though accepted that he might have rung Ms Balcombe (A 139-142).
He told the police that the jerry can was not on the veranda when he was there. He said he did not do anything with the jerry can, “not there anyway” (A 121-127). He denied pouring petrol over the front door.
After the incident, so he told the interviewing police, he walked to “Shelley’s house”. This was a house in Thornton. He did so moving past a pre-school, across the main street and down a lane way into her house. He said that when he arrived there, Shelley informed him that the police had already been to see her (A 111). He denied jumping the fence to evade the police, even though he had heard them. He did not know that they were coming for him (A 190-191, 275-277).
After being at Shelley’s house, he was picked up, “up the road”. He acknowledged that he did not want to be picked up from Shelley’s house since the police had been there (A 210). He says he was picked up by another friend, Misty, after he had rung her, and she drove him back to his house. He had not spoken with Misty since, at the point that the interview had occurred. Later, at 2:00pm or 3:00pm, he got a car lift from his mum to take him to see his friend, Adam Nicholls, of Maitland, at Telarah (A 226-249), where he stayed for 2-3 hours. Adam gave him a car lift to a flat occupied by an ‘old chick’ in East Maitland (A 251-266). He could not remember her name.

Mrs Jeffress’ statement to police (Exhibit D)

Mrs Jeffress is the grandmother to Clayton and Corey Futcher. She gave a statement to the police. This was admitted without objection. Its correctness was therefore not challenged. Mrs Jeffress stated that in the lead up to 1 August 2019, her son, Clayton, had only just moved in with her at her home in Thornton. This was after the break-up of his relationship with Ms Balcombe. Mrs Jeffress stated that on 30 July 2019, Ms Balcombe had sent numerous text messages to her phone, in order to get in touch with Clayton. She stated that Clayton was initially reluctant to speak with her, but after a while he did and Mrs Jeffress stated that she heard Clayton tell Ms Balcombe that the relationship was over and that he was moving back to her, Mrs Jeffress’, place. She also stated that she heard Clayton indicate that he would go over and retrieve some clothing. Later in the afternoon, at about 5:30pm, she accompanied Clayton to help get his things. She did not identify what they were.

She stated that on 31 July 2019, she was in the kitchen and at 11:00am, Clayton was in the lounge room (with Corey being still asleep). She stated that she saw a black car pull up. She identified the car as belonging to Ms Balcombe. She also stated that she saw a second car. She recalled a knock on the front door. As she was standing in the doorway, she saw Ms Balcombe and four men. One of those men was on the veranda and had knocked the door. The other three, and Ms Balcombe, were standing on the front yard. Later, Clayton identified the man at the door as Jason; and all the men as Ms Balcombe’s brothers. ‘Jason’ said, apparently to Clayton, “Get the fuck out of here. We want the heater and the TV” to which Clayton responded “Youse aren’t getting it”. Mrs Jeffress indicated that the exchange was acrimonious, with Clayton telling them to ‘get lost’ whilst the brothers were ordering him to return the property. She stated that the person that she understood was the youngest actually punched the lounge room window and said “You’re a fucking mole”. She stated that she also heard Brooke yelling.
Mrs Jeffress stated that she heard Jason saying “It’s not over yet. This isn’t the end of it. We’ll be back.” They then left, got into their cars and drove away.

Senior Constable Kramer’s police statement (Exhibit E)

This was also admitted without objection. Senior Constable Kramer responded to Clayton Futcher’s urgent call on 1 August 2019. She placed her ballistic vest on. When she attended the Thornton property, at about 12:45pm, she saw the man she later learnt was Mr Futcher. She stated that he came running towards her and Senior Constable Hughes ‘in an obvious state of panic’. She heard him say that “He is in the backyard. He has a gun. It’s Bryce Wilson”. She stated that she ran to the side of the premises and climbed over a large gate. Once in the rear yard, she searched the rear premises. She could not locate the accused.
A short time later, Senior Constables Hannah and Tame attended. They took over the carriage of the investigation. She and Senior Constable Hughes returned to their duties. However, they did respond to a number of jobs relating to possible sightings of the accused. One of those occurred at 7:00pm when they learnt of a possible sighting of the accused in Cassia Way, Metford. They established a perimeter, but the accused was not located.
Senior Constable Kramer took a photograph, at about 1:00pm, indicating a wet patch on the concrete near the front door of the Thornton property. The description of the photo attributed the wetness to petrol.

Senior Constable Hughes’ statement (Exhibit F)

This too was admitted without objection. Its content was substantially similar to Senior Constable Kramer’s police statement, although it supplied some further detail regarding the extensive nature of the police operation once Clayton Futcher had made his 000 call. The main import of Senior Constable Hughes’ evidence was her notes of what Clayton Futcher had informed her at about 1:00pm.
It was difficult to decipher some of these notes, which were understandably written in short hand. What was apparent included the demand by the intruder, the accused, to Clayton opening the door; the sighting of a black hand gun and fuel being detected; Mr Futcher’s assertion that he heard the accused (described by Senior Constable Hughes as ‘POI’ – person of interest) on speaker phone, speaking to Brooke; that he saw the accused jumping the fence; that his relationship with Brooke had ended on 28 July 2109 and he had moved out and returned to collect his belongings on 30 July 2019. On 31 July 2019, Brooke and her 4 brothers arrived to claim belongings.

Section 87 Firearms Act Certificate (Exhibit G)

It was undisputed that on 1 August 2019, the accused did not hold a permit and was not authorised to possess, or use firearms. This certificate confirmed the correctness of this joint position.

THE DEFENCE CASE ON THE FIREARM OFFENCE

Evidence of the accused

The accused elected to give evidence. He commenced by recanting much of what he had told police in his ERISP interview on 9 August 2019; 8 days after the incident. He accepted that he had told many lies to the police: he lied when he said that he did not swear or yell, and did not threaten to kick the door down. He accepted that he might have threatened to burn the house down; although maintained that he did not pour petrol on the door. He also lied when he denied touching the jerry can: he accepted that he had picked it up, taken the lid off and put the can back down again. He lied when he denied to the police that he had jumped the fence. This was because he thought that the police might think that he had tried to break into and enter the premises. He was more equivocal as to whether he lied when he denied threatening to kill the occupants: he could not recall hearing himself say that in the sound recording. As indicated, I find that in hearing the sound recording, he did make that threat.
The accused explained that he told these lies because he was aware that he was ‘wanted’ in relation to his suspected possession of a firearm and alleged tipping of petrol on the front of the door of the premises. At the time of the interview, he said his memory of events was not good, because of the effect of drugs, which he took to keep him awake whilst he was ‘on the run’ and a lack of sleep.
A notable feature of the Accused’s evidence was that, after disavowing what he said in ERISP interview and apart from giving some evidence as to how he came to be at the subject property, he did not actually give a narrative account of what he said and did when he was there: he was asked many leading questions (which the Crown did not object to).
He acknowledged that Ms Balcombe was a friend of his, but was not, and had not been, a girlfriend of his; and that he knew two of her brothers. Later in cross-examination, he said that on occasion he had socialised with her, when he saw her brothers. I interpolate here that Ms Balcombe’s evidence suggested that the connection was of a longer duration than that: she described him as a family friend. The accused said he met Clayton Futcher once or twice. This was essentially consistent with Ms Balcombe’s evidence of her understanding that they were acquaintances.
Under cross-examination, the accused said he was not sure when he learnt that the brothers had been around to see Clayton Futcher the day before and was not sure whether they had unsuccessfully tried to reclaim property said to belong to Ms Balcombe.
Also under cross-examination, he said that Ms Balcombe had rung him at around 11:00am or 11:30am on 1 August 2019. He was at his home in Metford when he received this call. He recalled her asking him whether he could help her collect property which belonged to her. On the drive over to Futcher’s place in Thornton, he said his impression of Ms Balcombe was that she was ‘fine’.
He had understood that she had been in a relationship with Mr Futcher, but denied awareness that it had ended.
The accused said he was wearing khaki-coloured ‘chino’ styled pants. There were 2 pockets at the front and one at the side. He also said he wore a t-shirt.
He said that Ms Balcombe drove him to the premises. He said he did not know where he was being driven. He recalled that ‘Sarah’, a reference to Ms Mason, was the front seat passenger. He recalled that Ms Balcombe had asked him to “help” her to collect her stuff. So far as he understood, he thought that there was a prior arrangement with Clayton Futcher for him to retrieve items that she could not carry. He carried a phone with him, but denied carrying a gun.
Only he got out of the car. He thought that Ms Balcombe might not wish to be seen by Mr Futcher.

Evidence of Brooke Balcombe

Ms Balcombe said that the accused was a family friend of hers. She testified to making an arrangement with Clayton Futcher to retrieve her property, but that she was too scared to collect the property herself. She said that Clayton “could be aggressive”. This was why she wanted the accused’s help. She wanted back her television set, her heater and her clothes. She understood that the accused and Clayton Futcher knew each other.
She said that she had spoken with Clayton Futcher on 31 July 2019. She said an arrangement was in place for her to retrieve her property from where Mr Futcher was staying, with his grandmother at Thornton, the next day, at a time (before 3:00pm) when she would not be there. Ms Balcombe considered that Mrs Jeffress did not like her. Later, under cross-examination, she said that her conversation with Mr Futcher on 31 July 2019 was “not bad”, by which, I understood her to mean, it was civil in tone. She denied that on 31 July 2019 she had threatened Mr Futcher.
She said, with her friend, Sarah Mason, with whom she had been ‘hanging out’ in the front seat, that on 1 August 2019 she drove from the Thornton shops (where she collected Sarah), to Metford to collect the accused and then back to Thornton where Mr Futcher was residing. In the car trip back to Thornton, she said that her mood, and the accused’s mood, was ‘fine’. There was not much conversation. Such conversation as there was centred upon her and Sarah’s plans for the evening. She said she was a “little bit” angry with Mr Futcher. This, she asserted, was because he had posted the items of property for sale on Facebook.
She said, under cross-examination, that on 1 August 2019, she rang Mr Futcher about an hour before arriving to tell him that she was coming. According to her, he said he would see her when he arrived. Again, I inferred that she was suggesting that the tone was civil.
She said that she could not recall that there was ever a time when Clayton Futcher indicated that he would not hand over the items of property. However, she accepted under cross-examination, that she was aware that, on her behalf, her brothers had not been successful in reclaiming the property when they approached Mr Futcher.
It was put to her that after her conversation with Mr Futcher on 1 August 2019, she decided to get the accused’s help. Determined as she was to retrieve what she regarded as her property, and in a context where her brothers had failed to prevail upon Mr Futcher and her own request was denied, she said she thought that the accused might be ‘more persuasive’ in getting Mr Futcher to relinquish her property. She denied that it was her intention that the accused might scare Mr Futcher.
When she drove to Thornton, where Mr Futcher was residing, on 1 August 2019, she said she did not want to see Mr Futcher, or his brother, Corey. They had had an unpleasant break-up. She, and Ms Mason, stayed in the car. The accused got out. Ms Balcombe saw him with a mobile phone and saw him walk to the front door. She said she heard the accused ask Mr Futcher for the return of her belongings.
She saw the accused walk up and down the veranda and pick up a petrol tin; and then walk back to the door and asked for her belongings again.
She said she heard a police siren. She saw the accused put the tin down and jump over the fence towards the back. She said that she drove her car in a U-turn and drove off, but was later pulled over by the police and her car was searched.
She said that she did not see the accused with a gun. She did, however, speak with him through the accused’s use of a mobile phone. She recalled him saying that he was pretty sure that Mr Futcher would provide the goods.
Whilst accepting that the accused was a friend of hers, she denied that she was there to give evidence simply to assist him.

Evidence of Sarah Mason

Sarah Mason is a friend of Ms Balcombe. She estimated that she had known her for 2 years. Ms Mason said that consistent with an arrangement, Ms Balcombe collected her from a job interview at Thornton to be together during the day, on 1 August 2019, and that she drove to Metford. Ms Mason said that Ms Balcombe explained that they were going there to collect a friend; that her ex-partner (whom she understood to be Clayton Futcher) had taken some of her things, she could not get them back and she wanted to see whether someone else who Clayton Futcher did not know could help her to retrieve them.
After the accused was collected, they travelled back to Thornton. Ms Mason had no recollection of what the accused wore, but she indicated that the conversation in the car was civil in tone. She did not think that he had a bag. She recalled a brief introduction to the accused. Asked to appraise Ms Balcombe’s mood, Ms Mason said she thought she was a little upset but was alright. She thought that the accused was very polite. This was the first time that she had met the accused.
Ms Mason said that once they arrived at the Thornton property, she saw the accused get out and knocked on the door, but the door did not open. She said she could only just see the accused from her vantage point: a tree was obstructing her view somewhat. She recalled that the car was parked around the corner. She was “just” able to see the accused moving across the front side of the veranda, but could not recall whether she saw the front window of the house. She recalled seeing him walking back and forth along the veranda and recalled seeing him pick something up, but she also said that she saw him drop it and run. She had heard some yelling; although could not identify whether the accused was yelling.
With some hesitation, she recalled seeing that the accused had a mobile phone, but said that she did not see him carry a gun. Had she seen him with a gun, she says she would have asked to be taken home. She did not, however, check to see what items of property the accused had in his possession.

THE CONTROVERSY REGARDING THE THREAT TO BURN THE HOUSE DOWN AND THE JERRY CAN

Although it was enmeshed with the witness’ evidence relevant to the firearm offence, I consider it appropriate to mark out separately the evidence relating to the controversy about the accused’s threat to burn the house down and his deployment of the jerry can as part of that.

Evidence for Crown

In the trial, Clayton Futcher testified that he saw the accused take the lid off the jerry can. He said he saw it in the accused’s hand when the accused was in front of the timber door (which he could see through a tinted window from the inside). Mr Futcher identified the jerry can next to a pillar at the front of the house in a photograph taken by Senior Constable Hannah after the incident (which was Exhibit B in the trial). He said he saw the accused put the jerry can back down, next to the pillar.
He did not actually see the accused tip petrol on to the front door. He said he saw petrol appear under the front door and moving on to the floorboards and that he smelt it. In cross-examination, at trial, he said he could smell the petrol from a distance of 5 metres within the house.
He said that the accused had threatened to burn the house down. Mr Futcher accepted in cross-examination that he had exaggerated when he repeatedly told the operator on the 000 line that the accused was threatening to burn the house down. The accused had threatened to do so only once.
He also said he saw the accused with a (‘zippo’) lighter in his hand. At one point, when the accused was standing at the front window and when he was in lounge room opposite the window, Mr Futcher said he saw the accused with the lighter in one hand and the gun in the other. This prompted him to move to the back of the premises where he continued the call with the operator.
It was put to Clayton Futcher that it took two hands to get petrol out of this particular jerry can (the one hand holding the can and the other pulling up the spout). Mr Futcher agreed with that.
He said that when he went out to greet the police, Mr Futcher noticed some fuel at the front door, but recalled that it was drying up. A photograph taken by Senior Constable Kramer at 1:00pm on 1 August 2019 (annexed to Exhibit E) shows a damp patch outside the door on the concrete surface which was identified as petrol.
Senior Constable Hannah, the officer in charge, did not observe anything in particular about the front door. Further, he did not observe fuel or recall smelling fuel.
Senior Constable Hughes’ notes of the account that Mr Futcher provided to her, after the incident (at about 1:00pm), recorded that Mr Futcher had said to her that the accused had started tipping fuel along the front porch and under the front door.

Evidence for the accused

The accused recanted his denial expressed to the police in his ERISP interview that he had touched the jerry can. He accepted that he did, and also accepted that he lifted the lid off it. He denied, however, pouring the fuel anywhere. But having been shown the photograph taken by Senior Constable Kramer, he accepted that it was possible that the damp puddle was fuel. He surmised that the petrol got on to the concrete as a result of his moving the jerry can when its lid was off.
Under cross-examination at the trial, the accused said he went to the jerry can, opened the lid off it and carried the can back to the front door. It was at this point that he threatened to burn down the house. This was after his failure to gain entry by threatening Mr Futcher, allegedly with the gun. I find that there was fuel in the can and the accused knew that there was fuel in the can.
The accused said that he did not, at any stage, pour fuel anywhere; although he accepted that it was possible that some fuel might have fallen out when he took the lid off and carried the can to the front door. He did not carry a lighter.
Ms Brooke Balcombe said she did not see him pouring petrol.
Ms Sarah Mason was Ms Balcombe’s friend and was a front seat passenger when Ms Balcombe drove to the Thornton property. Ms Mason said she saw the accused pick something up and recalled dropping it before running, but was no more specific than that.

SUBMISSIONS

The Crown’s submissions

The Crown submitted that the Court should find that Clayton Futcher was an honest and reliable witness. His honesty and authenticity could be seen from the similarity in the emotional way he sounded in the audio recording and his anxious or nervous presentation when he gave his evidence in Court. The perceptions of the police officers who arrived at the Thornton property were consistent with the distress and anxiety evident in the sound recording. Such distress and anxiety was not feigned, but was the natural result of being confronted with the accused’s conduct, given the nature of that conduct as he had described it.
His reliability was said to be illuminated in different ways. First, Mr Futcher had a capacity to recall detail, such as the condition of the gun that he saw, the type of mobile phone that the accused had on his person and the type of lighter he saw the accused hold in his hand. Secondly, his evidence was in some respects corroborated by the accused himself after the latter accepted that he had told lies to the police in his ERISP interview. Thus, Mr Futcher was right when he said that the accused had jumped the side gate to get out the back when the police approached the scene and had seen him carry the jerry can with the lid off. There was no suggestion that he was impeded by the condition of the front window, or the window on the front door, to observe what occurred.
In anticipation of the submission of the accused’s Counsel attacking Mr Futcher’s credibility or reliability, Ms Crown submitted that the circumstance that Mr Futcher exaggerated when he spoke of the threat to burn the house down should not itself be exaggerated. His evidence of the substance of the threat being made was not questioned; it was the regularity with which it was repeated. Towards the end of the evidence, when he appeared equivocal in his position as to whether the accused had a lighter, this was explicable by the circumstance that, by then, he wanted to get the process of his giving evidence over and was, for that reason, amenable to what suggestions might have been raised by cross-examining Counsel. His evidence about the lighter was not really equivocal at all.

The position that he remained, for some period, at the front window facing the accused and separated by only a glass window, and seeing the accused with a gun in one hand and a lighter in the other did not render his account implausible. As he explained, this was an unprecedented position he was faced with and, at any rate, it was overly simplistic to say that he completely froze: Mr Futcher retained the presence of mind to move backwards and forwards in the house, whilst continuing a conversation with the operator and trying to deal with the accused with the latter in an enraged state.
The Crown submitted that the accused was a man who told lies in his ERISP interview, but, more than that, he provided alternative versions of fact to the police, on such things as to what he did when he left the property. His presentation in the ERISP interview was not dissimilar to his presentation when he gave evidence: he was calm and considered. When he had his interview, he did not exhibit obvious signs of being affected by drugs or sleep deprivation.
The Crown submitted that the defence case did not fit with the facts. In particular, with reference to the evidence of Ms Balcombe, there never was any arrangement made between her and Mr Futcher for her to retrieve her property. That case was undermined by Ms Mason’s account of what Ms Balcombe said in the drive over to the Thornton property and its implausibility, indicated by the clandestine features of the approach; including the accused’s ruse in identifying himself by a false name and Ms Balcombe parking her car away from the property. To the contrary, the accused consented to acting in the role of enforcer in a context where: (a) Ms Balcombe belatedly accepted her awareness that her brothers had failed to retrieve the property and; (b) it was with that awareness, and her own inability to persuade Mr Futcher to hand over the property an hour before the incident, that she asked the accused to go to the property with her; and (c) the accused indicated to the police in his ERISP interview that the brothers had suggested that he go and visit Mr Futcher. Contrary to the accused’s equivocal evidence on the timing, it should be inferred that he was aware of the brothers’ failed attempt to retrieve the items of property before he was collected by Ms Balcombe and driven to the Thornton property.
The Crown submitted that Ms Balcombe was not an honest witness. Her evidence of what she recalled the accused telling her on his mobile phone was not borne out in the 000 sound recording. Her evidence of the arrangement to retrieve property was palpably untrue.

The Accused’s submissions

Counsel for the accused submitted that the Crown could not discharge its ultimate onus that the accused had a gun in his possession in circumstances where there was significant reason to doubt the honesty or reliability of Clayton Futcher. The lack of honesty or reliability in Mr Futcher was simply borne out by his evidence on the separate but interrelated topic that the accused had poured petrol on or near the front door of the Thornton property. That evidence was not supported by any other witness; it was, in fact, denied by the accused and the accused’s witnesses and was not supported by any objective proof. Once it was shown that his evidence was false on that important issue, then his overall credibility and/or reliability was fatally undermined and the Crown could not discharge its ultimate onus on the firearm offence.
Further, the content of the sound recording of the call to the 000 operator was unreliable. What Clayton Futcher reported in the 000 sound recording was, as he himself acknowledged, exaggerated; certainly in relation to the serial references to the accused’s threat to burn down the house. He was frustrated by the delay in the polices’ arrival at the Thornton property. In the same way that he exaggerated the accused’s threat to burn down the property, so too did he make up the existence of the accused bearing and threatening the use of a firearm, in order to get the police to arrive more quickly to the Thornton property.
He submitted that the sound recording did not otherwise substantially advance the Crown case in circumstances where there was no contest that the accused made various verbal threats. Indeed, the sequence of events depicted in the sound recording only served to indicate the difficulties in Mr Futcher’s account that the accused could have held the gun, a lighter, and a jerry can all at or about the same time.
In relation to the contextual circumstances surrounding earlier failed attempts to retrieve Ms Balcombe’s property, they did not advance the Crown case far in the absence of the Crown being able to establish, to a high standard of proof, that the accused was aware of them.
Counsel acknowledged that although there may have been some ‘difficulty’ with the evidence of Ms Balcombe, nevertheless, the Court needed to take into account her evidence, which was also supported by Ms Mason’s evidence, that at no stage in the period from the drive from Metford to when the incident occurred at the Thornton property did they ever see the accused in possession of a gun.

ADJUDICATION

Directions

General directions

Sitting alone, it is pertinent to remind myself of the following general matters which, if there was a jury, would have been the subject of direction by me to the jury.
As the accused has pleaded that he is "not guilty" to the count and elected trial by Judge alone, it becomes my duty and responsibility to consider whether the accused is "guilty" or "not guilty" of the charge and to return my verdict according to the evidence that I have heard.
I have heard and received final submissions from the Crown and Mr Buxton of Counsel for the accused. I will consider the submissions that have been made in the addresses and give to the submissions such weight as I think they deserve. In no sense are those submissions evidence in the case.

Method in fact finding

As the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment.
As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the witness called by the Crown, the sound recording, the accused’s ERISP interview and the various exhibits that were tendered in the Crown case and the evidence called on behalf of the accused.
It is a matter for myself what weight I give to the evidence of each witness. I am not obliged to accept all of what a witness says, or reject all of what a witness says, but may accept part of, and reject another part of, a witness’ evidence.

Onus of proof

The burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charge. In this particular case, there is only one element of the contested charge that is in dispute. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. Suspicion is not a substitute for proof beyond reasonable doubt.
In this case, as will be indicated earlier in these reasons, the accused elected to give evidence. He also called other witnesses in his defence. The fact that the accused has given evidence himself and called evidence of other witnesses does not alter the burden of proof. The accused does not have to prove that his version of events, or the version of events of other witnesses called on his behalf, is true. The Crown has to satisfy me that the account given by the accused and the defence witnesses should not be accepted as a version of events that could reasonably be true.
Persons tried in court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found "not guilty" of the charge.

Standard of proof

The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after considering the submissions made to me by Ms Crown and Counsel for the accused in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt, then it is my duty to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. If I am left unable to decide whether the Crown has proved its case in relation to the fact that he had possession of the firearm, then even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty.

Inferences & circumstantial evidence

I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.
The Crown case was partly circumstantial. This concerned the circumstances in which the accused came to be present at the Thornton property on 1 August 2019. The Court was invited to infer that the accused appreciated that his role was to act as an enforcer for Ms Balcombe. With that appreciation, the Court was further invited to infer that he took a gun with him to the property. In a situation like this, the Crown must first persuade me that the inference, or inferences, it relies upon is or are reasonable to draw from the facts that I have found to be established by the evidence. It then must prove that the only reasonable inference that can be drawn from a consideration of all the established facts, viewed as a whole, is that the accused knew his role was to act effectively as enforcer in order to retrieve the property and, in preparation for that role, he took a gun with him to the property. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown’s circumstantial case for that charge has failed. The reasonable conclusion relied upon in the accused’s case is that he believed he was being driven to the property to assist Ms Balcombe recover her property under a previous arrangement struck between Ms Balcombe and Mr Futcher; and that Ms Balcombe was too “scared” of Mr Futcher to retrieve it herself and he stood in to retrieve it for her.

Murray and Liberato directions

I was invited by Counsel for the accused to give myself a Murray direction and Liberato direction. The Crown did not contest my making the latter direction, but did contest the former.
In my opinion, it is unnecessary to give myself a Murray direction. The Crown did not rely exclusively upon the evidence of Mr Futcher, but also relied upon the corroborative effect of the instantaneous sound recording which effectively performed the same function as complaint evidence; but with the advantage that the ‘complaint’ was immediate, rather than simply fresh. There was also Senior Constable Hughes’ slightly less contemporaneous notes of Clayton Futcher’s reporting his sighting of a gun. The Crown also relied upon certain circumstantial evidence, regarding previous ineffective attempts, on Ms Balcombe’s behalf to retrieve the property; which explained why the accused became involved and indicated why he might wish to possess a firearm. It goes without saying that the Court will weigh Mr Futcher’s evidence with care, but in the light of its assessment of all of the evidence in the case, including the evidence which supports his account and that which does not.
Plainly in this case, there is a contest in the evidence of Mr Futcher and the accused. It follows from my directions about the onus and standard of proof that when comparing the evidence of Clayton Futcher and evidence of the accused that:

if I believe the accused’s evidence, I obviously must acquit him;

if I find difficulty in accepting the accused’s evidence, but think it might be true, then I must also acquit him; or

if I do not believe the accused’s evidence, then I should put that evidence to one side. Nevertheless, the question will still remain: has the Crown, upon the basis of evidence that I accept, proved the accused’s guilt beyond reasonable doubt?

Counsel for the accused did not request that I make any further direction as to the reliability of Mr Futcher’s evidence under s 165 of the Evidence Act1995 (NSW). He suggested no other specific directions.

FINDINGS IN RELATION TO PETROL & LIGHTER

I propose to make these findings first since they may affect findings on the firearm offence.
I find, first, that the accused threatened to burn the house down. This reflects the guilty plea on count 3 of the indictment. It also reflects an admission made by the accused when he gave his evidence. Mr Futcher’s account of what he told the 000 operator about the threat to burn the house down and his sighting of the accused carrying a jerry can also occurred after, but in close proximity to, the accused verbally threatening to kill Clayton Futcher.
I also find that the accused wanted to make it appear to Clayton Futcher that he was taking certain steps to make good on his threat to burn the house down.
The real question in this particular context, is how far the accused actually went to make it appear to Futcher that he would follow through on his threat.
I accept that Mr Futcher saw the accused carrying the jerry can; and that the lid was off. The accused eventually admitted that he had (after lying to the police that he had not) carried the can with the lid off. He was observed by both of the defence witnesses to carry the jerry can (or at least, in Ms Mason’s case, she saw him carry something). I also accept Mr Futcher’s evidence that he smelt fuel, as he told the 000 operator. This was consistent with the fact that petrol had been spilt outside the front door. Mr Futcher said in his evidence that he was at the front door when he saw the accused with the jerry can and that the accused was positioned in front of that door.
The accused’s actions in carrying the jerry can across the veranda, with the lid open and in plain sight of those in the lounge room who were looking from the inside, outside the window, was consistent with that endeavour. There was no reasonable hypothesis consistent with the accused’s innocence in this particular respect.
However, I am not persuaded, to the requisite standard, that the accused deliberately poured fuel on to the front door or the front veranda in preparedness to actually burn the house down.
Senior Constable Hannah did not detect any fuel, although Senior Constable Kramer did see a small sized puddle, which was consistent with the fuel dropping out of the jerry can inadvertently. There was no forensic investigation of the presence of fuel. Not even of the accused’s shoes.
I find that, consistently with what was indicated in the sound recording, it was Corey Futcher who asserted that the accused had thrown petrol on the front door and/or on the front veranda. Clayton Futcher accepted that he did not see the act of the accused’s pouring petrol and I find that he relied upon and assumed the correctness of what Corey had told him. Unsurprisingly, he feared the worst and I consider that this significantly elevated his anxiety and distress.
I am also not persuaded beyond reasonable doubt that the accused brandished a lighter in a way that conveyed to Mr Futcher that he was going to use his lighter to create a fire, even though I consider that this might have happened. I regarded Mr Futcher’s evidence at the trial about sighting the lighter to be equivocal. It was notable that during his 000 call, it took the operator to prompt him into saying that the accused had a lighter that could be used. He did not report his sighting of the lighter when he spoke to Senior Constable Hughes shortly after the incident. His susceptibility to being led on this particular issue was demonstrated again when he gave evidence at trial. In his evidence in chief, he was led to the issue of the lighter by reference to what he had said to the operator. But in cross-examination, he agreed with the proposition that he exaggerated when he said he saw the accused with a lighter, before seeking to correct himself in re-examination. I do not regard it as a full explanation for these shifts to conclude that, by then, he had had enough of giving evidence.

Credit

Clayton Futcher

I find that Clayton Futcher was both honest and generally reliable when giving evidence. He initially appeared nervous. He genuinely appeared affected by the events, not only when recounting them in evidence but also in the sound recording. He made certain concessions when cross-examined about exaggerating, to a degree, his account of what was occurring when he rang the 000 operator line. I agree with the Crown’s submissions that his distress and anxiety manifest in the sound recording was carried over when he gave evidence at trial and it was, at any rate, consistent with the observations of the police officers when they first spoke with him.
I will return later to the significance of the findings I have made about the spread of petrol and threat to ignite it in Mr Futcher’s evidence in relation to the ultimate question about the firearm offence further in my adjudication below.

The accused

The accused gave evidence. He was not a satisfactory witness. He gave an implausible account explaining why he accepted that he lied to the police in his ERISP interview, in serial respects; contending that he was affected by drugs and deprived of sleep; and was mindful of police suspicions of his carrying a gun. Such mindfulness does not assist him since it only reinforces the impression he was tailoring his answers in a self-conscious fashion. The drugs and sleep deprivation excuses do not account for the period of 8 full days that he was on the run from police; in which he had ample time to consider what he might say to the police if interviewed after arrest. His elaborate explanation to the police as to his whereabouts after the incident on 1 August 2019 was, as was put to him by the Crown’s solicitor advocate, quite an elaborate ‘concoction’ which was consistent with his using the 8 days that he was ‘on the run’ to partly consider what he might say if apprehended. I generally regarded his explanations of his being incapacitated or defensive as transparently self-serving attempts to explain lies that he had told the police which he subsequently understood would diminish his credibility as a witness.
He was vague and evasive about the circumstances as to how he came to be at the premises on 1 August 2019, even in circumstances where he effectively asks the Court to accept that his memory had improved over time than when it was that he gave the police interview since he had become ‘clean’ of drugs. This was evident when he was asked about his awareness of earlier attempts, by Ms Balcombe or her brothers, to retrieve the items of property. Some of his evidence was nonsensical, if not non-responsive, as when he was asked why he needed to deploy the ruse of calling himself ‘John’ when announcing himself and when he felt the need to tap his phone on the door: in both instances, he weakly said he did not know.

He was caught out in cross-examination between his emphatic denial that there was any petrol in the jerry can with his evidence in chief accepting that he had spilt some along the way to putting it back on the veranda. I formed the strong impression that he was tailoring his evidence in a way which he thought might assist his case. This was, as I have said, consistent with his mindset when he was interviewed by police.
I place no store in his evidence unless independently corroborated or unless it is consistent with the objectively proven facts. Nevertheless, I remind myself that rejection of his evidence, and even a general preference for Mr Futcher’s account over that of the accused, does not conclude the question of his guilt.

Brooke Balcombe

Ms Balcombe did not impress me as a credible witness. She had a clear animosity towards Clayton Futcher which I considered infected her testimony. This was evident, for example, when she was asked to reconcile her evidence that she had reached an orderly agreement with him to collect her items (of not insubstantial weight) with her perceived need to park her car two houses away at the point of collection. It was because he had a tendency to play ‘mind games’, she said. I thought she self-consciously sought to justify her own position and attacking Clayton Futcher when explaining her attempt to retrieve her property or, more specifically, her heater, on the basis that she had the care of two children and that it was cold at night. That was irrelevant, even in relation to the civil dispute between herself and Mr Futcher, and was a gratuitous flourish intended to enhance her position and diminish Mr Futcher.
Conversely, she was sympathetic to the interests of the accused. He was a family friend of hers. She implausibly maintained that of the yelling or screaming that she heard, she could only identify that it was Mr Futcher who was doing the yelling and screaming; whilst the accused was using a normal speaking voice. Even the accused accepted that he had lied to the police when he denied yelling and screaming. It was even more extraordinary that she could not hear the accused engage in any yelling and screaming when, according to her evidence, she could hear conversation between the accused and Mr Futcher on the accused’s mobile phone. I find that she was conscious that it was the result of her doing which caused the accused to become involved and later get into trouble.
As to the substance of her evidence, I regarded her evidence that an orderly agreement had been reached for the collection of her property as utterly implausible in a context where, as she later accepted (belatedly), her four brothers were unable to persuade Mr Futcher to yield the property. I found that even if she concealed it in the drive to the property, in the presence of Ms Mason, she was both angry with Mr Futcher and resolute in her determination to retrieve the items she believed belong to her. My firm impression was that she was not forthcoming when she explained the circumstances in which she procured the accused’s involvement in the attempt to retrieve what she thought was her property.
I do not regard her as being an independent witness but, rather, find that she gave evidence with the intent of assisting the accused with his defence.

Sarah Mason

Ms Mason struck me as being both honest and reliable in her evidence.

FINDINGS ON FIREARM OFFENCE

Preference for Mr Futcher’s evidence over the accused’s evidence

As noted, I generally accept Mr Futcher as a witness of credit. His evidence regarding the firearm was substantially supported by the instantaneous report of events he gave to the 000 operator and the substantially contemporaneous account he gave to Senior Constable Hughes. In relation to the gun, it was not clearly put to Mr Futcher that he was actually fabricating his evidence identifying the gun. It was, rather suggested, that he was innocently mistaken into thinking it was a gun, when it was only the accused’s mobile phone. I find that there was no such mistake. Mr Futcher had multiple opportunities to observe the gun. He gave detailed description as to its size (25 cm) and colour characteristics in relation to the barrel and the quality of the condition of the handle.
Contrary to the accused’s Counsel’s submission, I did not find the content of the 000 recording to be unreliable, insofar as the Mr Futcher repeatedly made assertions about the gun in the accused’s possession. That reporting was made in ‘real time’ and amounted to contemporaneous complaint. I will return to this point again shortly when assessing the accused’s attack on Mr Futcher’s credibility arising from the evidence about the petrol.
The reliability, or cogency, of Mr Futcher’s account concerning the firearm was not materially diminished by the circumstance that I have rejected parts of his evidence in relation to the accused’s spread of petrol on the door and inside the house, and the brandishing and threatened use of a lighter. His account about what I will collectively refer to the petrol issues was correct about a number of things, some of which had been, at least initially, contested by the accused. These were: the accused’s carrying of the jerry can; the accused taking the lid off the jerry can; the accused threatening to burn the house down; and the spilling of some petrol on the veranda in front of the door. Mr Futcher also received and unquestioningly adopted a report from his brother that the accused had thrown petrol on the front door and/or the veranda. I do not disbelieve him when he said he smelt petrol.
I find that as a result of all these things, he honestly and, for that matter, reasonably felt himself in a position of imminent peril and this elevated his distress and anxiety even beyond the anxiety occasioned in him by the sighting of the gun. His trauma was probably also accentuated by a perception on his part that he might shortly be an unwitting agent for the damage to his grandmother’s house. It was no surprise in the circumstances that his requests for the police to arrive as soon as possible intensified in frequency and in tone and, in that mental state, he gave a less than accurate account about the spread of petrol, in the 000 call, into the home. Nevertheless, I accept he honestly believed, at the time he spoke to the operator, that petrol had been thrown against the door, based upon what his brother had told him. He also honestly indicated that he could smell petrol.
The accuracy of his recollection as to where the petrol was poured was not likely to have improved over a year later when he gave evidence at trial. I accept his evidence at trial that he smelt the petrol, but consider he was mistaken in his recollection that petrol had seeped under the front door and into the home.
As to the lighter, my conclusion that the accused did not deploy his lighter in the threatening manner Mr Futcher indicated in the 000 call should not be taken as a rejection that it was possible that Mr Futcher did in fact engage in that behaviour; but rather, reflected my view as to the somewhat equivocal nature he gave in that respect, and, accordingly, my inability to accept his evidence to the high standard of proof demanded.
That he may have given a less than accurate account to the 000 operator about the throwing of petrol and the lighter did not diminish his account to the operator about the gun. Relative to his account of what was going on with the jerry can, Mr Futcher was more calm in his account to the operator of seeing the gun and, in the early part of the call, he appeared confident in his capacity to try to reason, if not negotiate, with the accused. He did not exaggerate what was happening about the gun in an attempt to expedite the police arrival, as he tried to speed up their arrival after the threat to burn the house down and subsequent events. It was the sighting of the gun which explained why he made the call to the operator in the first place.
On the other hand, the accused was not a witness of credit. Indeed, his disavowal of matters he had said to the police in his ERISP – indeed, his acceptance that he told lies – not only diminished his own evidence, but had the indirect effect of corroborating some of the things that Mr Futcher had said occurred: such as his carrying of the jerry can and his later jumping over the fence.
There were certain matters that the accused said which reinforced, to some degree, Mr Futcher’s account about his possession of the gun. The accused accepted that he falsely identified himself and he accepted that he had tapped on the door with an implement, but, he said, it was only a phone.
The evidence of the accused, indicated in the ERISP interview and also when he gave evidence in his defence, was, conversely implausible in multiple respects. First, if all that he was doing was to act, in effect, as Ms Balcombe’s representative, he clearly did more than persist in making a demand for the return of her property. He was no mere emissary.
As he acknowledged when he gave evidence, he lied when he told the police in his ERISP interview that he “didn’t swear at him... didn’t raise my voice or anything… didn’t bang on the door or anything... (but) just tapped on the door with my phone and that was it”. This, and other misstatements made to the police, were more than the product of a faulty memory of events (only 8 days ago) or attributable to his being under the influence of drugs. He told the police a veritable pack of lies. As was apparent in the recording of the interview, he told them calmly and in a composed fashion.
Counsel for the accused accepted that I could take into account the facts, albeit in limited fashion, of the guilty pleas to the two offences to which the accused pleaded, especially on the count under s 33B(1)(a) of the Crimes Act 1900 (NSW). This presented an obvious difficulty for the accused, particularly when he advanced the hypothesis that he was only at the Thornton property as part of an arrangement to collect property: admitting that he had an intention to intimidate, the question was why he held such intention. Further, the admission of an intention to commit intimidation begs the question of how the intimidation could most effectively be realised against the person against whom it was to be directed. Mere verbal threats to physically harm, and even kill, a person may be one thing, but they are fortified in the mind of the person to whom they are directed when the issuer engages in other conduct intended to instil in the mind of the person that they are likely to come home. Brandishing a gun is a more forceful threat than simply a threat to kill, and tapping on the window with a gun is a much more forceful threat than tapping on the window with a mobile phone.
I recognise, to reiterate, the Liberato direction I gave myself, that a mere preference for Mr Futcher’s account over that of the accused is not conclusive of guilt.
I will now consider other contextual matters.

The circumstances of 31 July 2019

The immediate context was that at about 11:00am on 31 July 2019, Ms Balcombe and her four brothers had arrived at the property, making the same demand that the accused did of Mr Futcher the next day. The presence of all four of them, in company of Ms Balcombe, was itself an act of intimidation to coerce Mr Futcher into relinquishing the items of property. That attempt did not succeed, but not before one of the brothers, apparently Jason, threatened Mr Futcher that this was not the last of it, and/or another, Brendan, had punched the window; and Mr Futcher could expect that further action would be taken on Ms Balcombe’s behalf. These facts emerge from the unchallenged evidence of Mrs Jeffress; in addition to that of Clayton Futcher. Ms Balcombe later accepted that she knew that her brothers had tried to go around and retrieve ‘her’ property, but had had no luck.

Ms Balcombe’s warning to Mr Futcher

I accept Clayton Futcher’s evidence that earlier in the morning of 1 August 2019, Ms Balcombe rang him and made a further demand for the property. When that was rebuffed, she issued an ominous warning: “Your house is getting come for.” Mr Futcher later reported that statement to Senior Constable Hughes.

Ms Balcombe’s request to the accused for ‘help’

I find that it was after this call that Ms Balcombe contacted the accused, at about 11:00am or 11:30am. Quite what was said by both presents the Court with some difficulty in view of my rejection of both of them as witnesses of credit and where, in each case, I do not consider that they were frank and forthcoming about what was said. In substance, however, I find that at least on that occasion, the accused was asked to ‘help’ Ms Balcombe to retrieve her property.

Was there an arrangement with Futcher to collect the property?

This is the hypothesis advanced on the accused’s behalf which was said to be inconsistent with the Crown case that he was enlisted to act as Ms Balcombe’s enforcer to retrieve property and, in that context, took a gun to the Thornton property.
I do not accept Ms Balcombe’s evidence that there was any orderly arrangement, struck with Clayton Futcher, for her to retrieve her television set, heater or clothes. I prefer Mr Futcher’s evidence over Ms Balcombe’s evidence in this respect, as generally indicated. His evidence is supported by what he said to the accused, which could be heard in his call to the 000 operator, when he rejected the accused’s demand he deliver to the brother the heater and the television. The putative arrangement is inconsistent with the failure the previous day of her brothers to retrieve the property. It is also inconsistent with my finding that she issued a warning to Mr Futcher as to what might happen only an hour before driving over there; after Mr Futcher had rebuffed her latest demand for the return of the items of property.
For the same reason, I reject her evidence that she did not wish to go in to retrieve her property herself, on the basis that she was ‘scared’ or on the basis of past unspecified acts of Clayton’s ‘aggression’. It is not without significance to note Mrs Jeffress’ unchallenged observation that far from being scared of Mr Futcher, Ms Balcombe had in the very recent past, been very persistent in her efforts to generally communicate with Mr Futcher (indeed she misdirected text messages to Mrs Jeffress) and Clayton had, at the same time, been reluctant to engage with her. Be that as it may, the notion that she was deterred by what Mr Futcher might physically do to her was inherently inconsistent with an orderly arrangement made in a civilised fashion. I regard it as self-serving. Further, I note, in this regard, that by her own evidence, Ms Balcombe did not suggest that she informed Mr Futcher at any time before the incident on 1 August 2019 that it would only be the accused who would be collecting her property on her behalf. Her parking the car two houses away was not consistent with an arrangement being made. Although no evidence was given as to the dimensions or size of the television and heater, I consider I can infer that it would have been quite a handful to carry. Even if she was scared of Mr Futcher, as she said she was, there was no reason, with the accused and Ms Mason being present, for her to apprehend that Mr Futcher would have done anything to her (verbally or otherwise) in their presence. She could easily have assisted the accused to physically retrieve the property. I find that Ms Balcombe lied about this arrangement with Mr Futcher for the orderly return of the property.
The accused’s involvement can, in retrospect, be viewed as the next logical step. The overwhelming objective probability is that by herself, and/or perhaps also through her brothers, the accused was approached to act as her ‘enforcer’.
The accused’s conduct in falsely identifying himself at the door, his tapping on the window, his admittedly loud and aggressive threats of personal violence and property damage did not emerge just spontaneously. The accused had no personal animus towards Clayton Futcher. He was reputed to have been calm (and even polite) in the car drive to the property. His eruption of verbal and physical rage manifested by his conduct was not consistent with the reasonable possibility of being anything else other than the consequences of executing a pre-conceived plan to intimidate Mr Futcher, should that have been necessary.
The accused’s conduct, in these respects, is to be viewed in conjunction with Ms Balcombe’s conduct. I find that she expected that the accused would try to intimidate, or at least bully, Mr Futcher into relinquishing the property; even if she was not necessarily aware of the means he might deploy to achieve that result. Her primary concern was to get what she regarded as her property back. She knew of her own failed attempt, and that of her brothers, in getting Mr Futcher to relinquish the property. She, at least, appreciated that she needed something more menacing. This was consistent with her warning in the telephone call to Mr Futcher only an hour before; it was the reason why she parked the car where she did; and also why she attempted to speed away once she was aware of the imminent police presence and observed the accused jumping to the back of the Thornton property.

The accused’s knowledge of the property dispute

The accused admitted in his evidence that he knew that there had been an issue with the property, but he said that this was sourced in what Ms Balcombe had told him and denied that her brothers had told him this. In his ERISP interview, however, he told police that he had found out about the dispute about the property from her brothers and it was they, Ms Balcombe’s brothers, who asked him to go to Clayton Futcher’s residence. I think it is more probable than not that the information that he gave to the police was the more truthful explanation for how he originally learnt about the dispute over the property, and that it came as no surprise to him when Ms Balcombe called for his help on 1 August 2019. There was no reason for the accused to give false evidence to the police in this particular respect, but at the trial, he would have appreciated that his case theory primarily featured the explanation that he only attended the Thornton property under a civilised arrangement struck between Ms Balcombe and Mr Futcher.
I find that prior to being driven over to the Thornton property, the accused knew that both Ms Balcombe and her brothers had been unsuccessful in persuading Mr Futcher to relinquish the property. In this regard, I reject the accused’s evidence on the point, which alternated between a position where he learnt of their unsuccessful attempts after he had been charged to one of uncertainty as to whether he learnt of it before or after the charge. I also consider it very likely that the accused had learnt from the brothers that they themselves had been unsuccessful in helping Ms Balcombe retrieve the property – this explained why the brothers “asked” him whether he could make an attempt.

Planning to retrieve the property

Contrary to his evidence, by the time he arrived at the Thornton property, I find that the accused had planned and prepared for the contingency that Mr Futcher would not relinquish the property upon request and that it was necessary to devise means to intimidate him. In devising or contemplating the plan to intimidate, it is extremely unlikely that the accused could have believed that by sweetly talking to Mr Futcher, he could achieve the desired return of the property where Ms Balcombe’s brothers’ implied threat of force could not. It is equally extremely unlikely that Ms Balcombe had chosen him to go over to the Thornton property because of any renowned negotiation skills.
With the awareness of the brothers’ failed attempt, as I have found, it was natural and logical that the accused would anticipate Mr Futcher’s resistance. For that reason, he had reason to take with him a weapon for the purpose of intimidating Mr Futcher and to coerce him into retrieving the items. This is far from attributing any actual intention on his part to discharge the firearm (though I find he did threaten to use it), but he wanted it there to intimidate Mr Futcher into yielding, should that become necessary.

He anticipated that verbal threats themselves were not likely to be effectual; any more than they had proven to be effectual when the brothers had arrived the previous day. The brandishing of a weapon was much more likely to engender an intimidatory effect. In this light, having a firearm was consistent with that plan. The subsequent carrying of the jerry can to simulate the act of torching the house was also consistent with the plan when the accused’s act of brandishing the gun did not achieve its desired result.
To access the items of property, he needed to get into the premises. Apprehending that Clayton Futcher would not let him in if he knew it was him, he initially lied about who he was, in order to get in. I do not consider that the accused resorted to intimidating tactics first up. When Mr Futcher did not allow him in, the accused had to resort to the threat of force. Brandishing only a mobile phone, and tapping the phone on the window or door would not suffice for that purpose, but brandishing a gun might. When that did not bring about Mr Futcher’s ‘co-operation’, a threat to burn down the house might also succeed. If that did not work, carrying a jerry can with sufficient petrol in it to tip out when carrying it, to the front timber door, might also suffice.

Other arguments advanced on the accused’s behalf

The proposition put to (and rejected by) Clayton Futcher that he only reported his sighting of the gun because he had enough of being bothered by persistent attempts, on Ms Balcombe’s behalf, to retrieve items of property that did not belong to her is far-fetched. What he was responding to, in the heat of the moment, was the pattern of escalation that had occurred on the previous day or so, beginning with complaint from Ms Balcombe, the attempted stand-over tactics of Ms Balcombe’s brothers, Ms Balcombe’s warning on the morning, and culminating in the accused’s attempts to intimidate him, initially by the show of the gun and eventually by the ostentatious carrying of the jerry can with the lid off towards the front timber door.
The circumstance that Mr Futcher stayed at the window after seeing a gun was not improbable in the circumstances. The accused was not a complete stranger to Mr Futcher and the latter initially felt, at the early point of the confrontation, that he could negotiate, explain or at least articulate his point of view in relation to the property dispute. At any rate, he did not stand transfixed indefinitely. He moved to the back of the house to ring the operator.
The circumstance that the sound recording of Mr Futcher’s 000 call did not itself indicate the accused threatening to use the gun is not to the point. It was the threat of using the gun that prompted Mr Futcher’s call to the police in the first place. After a time, it became apparent to the accused that the brandishing of the gun had not achieved his desired result of obtaining entry into the premises; and so he did nothing more with it, but turned his attention to other possible threats that could be deployed. It was not to be expected that he would keep on repeating the particular threat to use the gun, but was consistent with his purposes that he would move on to other threats, which were recorded, namely kicking the door down or burning down the house.
I reject the proposition that when representing to the police the gun Mr Futcher felt pressured to tailor his report to what he had said in the 000 recording. That thesis is thoroughly unrealistic in the context of his reporting to the police officers in a state of mental distress.
I also ascribe minimal weight to the circumstance that the Crown was unable to produce the gun. On the finding that I have made, it was not only the case that the accused was in possession of the gun but, moreover, was the last person in possession of it, at least before 9 August 2019. The Crown was in no position to prove its present whereabouts but the accused was peculiarly placed to do so, at least in the period from 1 August to 9 August 2019, when he was arrested.

The evidence of the other defence witnesses

As the accused’s Counsel submitted, it is necessary to consider the evidence of Ms Balcombe and Sarah Mason that at no stage did either see the accused with a gun. That evidence was of very limited weight. I have indicated sufficiently my view of Ms Balcombe’s lack of reliability. But even allowing for that, both witnesses did not have clear and unobstructed close up views of the accused, from their vantage point, in the car, two houses away from the scene.
There was no suggestion advanced by Counsel for the accused that it was impossible for the accused to have effectively concealed the gun in the drive over to the Thornton property. Plainly, Ms Mason, at least, was not on the lookout for what he might carry on his person. The accused accepted that he had multiple pockets on the pants that he was wearing. He said he was wearing a T-shirt also (unlike Ms Balcombe’s evidence which, in her description of what the accused was wearing, was an outlier).
Ms Mason’s evidence that she did not see him having a gun in his possession in the car on the trip to the Thornton property is hardly surprising: it would have been inconceivable that the accused, having the gun, would want a stranger to know that it was in his possession.
The circumstances surrounding the lead up to the accused’s visit to the Thornton property fortify my acceptance of Clayton Futcher’s evidence and rejection of the evidence of the accused and Ms Balcombe.

CONCLUSION

As noted, it is common ground and in any event is proven that the accused was not licensed or authorised to possess a firearm.
On the sole contested issue presently requiring the Court’s determination, I am satisfied beyond reasonable doubt that the accused was in possession of firearm.
On the charge of possessing a firearm whilst not being authorised to do so by a licence or permit on 1 August 2019 at Thornton, I find the accused guilty of the offence.
Mr Wilson, please stand. I convict you of count 2 on the indictment.

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Decision last updated: 22 September 2020

Medium Neutral Citation:	R v Wilson (No. 2) [2020] NSWDC 549
Hearing dates:	14 September-18 September 2020
Date of orders:	18 September 2020
Decision date:	18 September 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 183-184
Catchwords:	CRIMINAL LAW – trial by judge alone – firearm offences – whether accused in possession of firearm
Legislation Cited:	Crimes Act 1900 (NSW), s 33B Evidence Act1995 (NSW), s 165 Firearms Act1996 (NSW), s 4, 4A, 7A Paintball Act 2018 (NSW)
Category:	Principal judgment
Parties:	Director of Public Prosecutions Mr B J Wilson
Representation:	Counsel: Ms K Henry for the Director of Public Prosecutions Mr W Buxton for the accused Solicitors: Office of the Director of Public Prosecutions Legal Aid for the accused
File Number(s):	2019/248475
Publication restriction:	Nil