R v Zonta
[2013] SADC 128
•19 September 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ZONTA
Criminal Trial by Judge Alone
[2013] SADC 128
Reasons for the Verdicts of His Honour Judge Lovell
19 September 2013
CRIMINAL LAW - PARTICULAR OFFENCES
Supplying a Class H Firearm (five counts) to a person not authorised by a permit to acquire the firearm.
Firearms Act 1977 (SA) s 5, s 14A(1), referred to.
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
Prosecution relying on inferences drawn from intercepted telephone calls.
Verdict: Guilty of Counts 2, 3, 4, 5 and 6.
Juries Act 1927 (SA) s 7; Criminal Procedure Act 2004 (WA) s 120(2); Evidence Act 1929 (SA) s 34P, referred to.
Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Shepherd v R (1990) 170 CLR 573; R v Corak & Palmer (1982) 30 SASR 404; R v Ahern (1988) 165 CLR 87; R v Tripodi (1961) 104 CLR 1; R v Festa (2001) 208 CLR 593; R v Hillier (2007) 233 ALR 634; Barca v R (1975) 133 CLR 82; Martin v Osborne (1936) 55 CLR 367; R v Chamberlain (No 2) (1984) 153 CLR 521, considered.
R v ZONTA
[2013] SADC 128Background
On the Easter weekend of 2011, the house of Mr Peter Reed was broken into, his gun safe stolen. Seven lawfully owned and registered guns were in that safe.
As a result of intercepting the telephone calls of Mr Guido Carbone, (Carbone) the police suspected that he had unlawfully sold at least one firearm and was attempting to sell at least five more. The police raided Carbone’s premises on 5 May 2011. A search was conducted of the premises, its surrounds and two vehicles. In one of the vehicles, hidden behind the front seat, was a ‘backpack’. Five hand guns were located in the backpack.
The prosecution case is that the accused was the person who supplied the guns to Carbone for him to sell.
The accused denied he supplied the guns to Carbone.
Trial by Judge Alone
The defendant elected for trial by a judge sitting alone pursuant to s 7 of the Juries Act 1927 (SA). The Juries Act is silent about any requirement for the contents of the reasons for judgment.
The requirement for reasons was recently discussed in Douglass v R.[1]
[1] [2012] HCA 34.
In R v Keyte[2] Doyle CJ identified reasons why, in his view, a trial judge needed to provide detailed reasons for judgment. The reasoning of the Chief Justice was approved by Heydon J in AK v Western Australia[3] and also in Douglass v R.[4]
[2] (2000) 78 SASR 68.
[3] (2008) 232 CLR 438 at [107].
[4] (2008) 232 CLR 438 at [107].
Although dealing with s 120(2) of the Criminal Procedure Act 2004 (WA) Heydon J stated why detailed reasons were important. He said:
The process of having to state judicial reasoning in terms sufficiently clear, exact and convincing to pass muster in the eyes of an appellate court listening to the sometimes hypercritical submissions of counsel entails a need to be very precise in working that reasoning out. The discipline stems from the fact that the process of stating reasoning often reveals its fallacies: in the course of composing reasons for judgment directed to supporting a conclusion which seemed clear, judges often find that the opinion “won’t write”, and that a different conclusion develops. There is a legislative assumption that compliance with that discipline is not only more likely to produce justice according to law, but is a necessary precondition for that outcome. The abolition of jury trial entails removal of the safeguard to be found in the peculiar discipline of jury trial. The new safeguard, to be found in the discipline of having to give reasons, is a vital technique for ensuring accurate fact finding, correct inferential reasoning and sound application of the law to the facts.
This prosecution case is based on telephone intercepts between Carbone and the accused and their interpretation, intercepts between Carbone and others, as well as DNA evidence and fingerprint evidence. It is a circumstantial evidence case. Detailed reasons are important in such a case.
Legal Directions
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of any offence charged, then he remains presumed innocent and I must find a verdict of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law and I must find the accused not guilty. If I cannot exclude the accused’s evidence as a reasonable possibility, then he is entitled to a verdict of not guilty.
I must determine whether each of the witnesses are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my commonsense, experiences and wisdom in assessing the evidence.
Where the case, as it is here, rests upon circumstantial evidence, I cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. It is necessary that not only his guilt should be a rational inference but that it should be the only rational inference that the circumstances enable me to draw.
The accused is charged with five offences. I must consider each count separately and consider that charge only by reference to the evidence that applies to it.
Both the prosecution and the accused are entitled to a separate consideration by me of each of the crimes charged. It would be quite wrong to say that simply because I found the accused guilty of one count that he must therefore be guilty of other counts. I must ask myself to each count separately am I satisfied beyond a reasonable doubt by the evidence that relates to that count that the accused is guilty of that crime.
In this case the accused gave evidence on oath. The accused was not obliged to give evidence. He had the right to remain silent in answer to the charges, leaving it to the prosecution to satisfy me of all the ingredients of the charges. I note that I am entitled to give him such credit as I think appropriate for adopting a course that he was not obliged to adopt.
The effect of this is that, in assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness. It is for me to decide what weight I am prepared to attach to the evidence of the accused in the same way as it is for any other witness.
Uncharged acts
In this trial I heard evidence that seven firearms were stolen but the accused was only charged with supplying five to Carbone. Evidence was led of the sale of one (a ‘twenty two’) firearm and possibly another.
No objection was taken to the evidence. It was clearly admissible under s 34P of the Evidence Act.
Usually in a criminal trial evidence of other alleged crimes would not come before me.
In this case the whole of the alleged course of events provides a context in which it is said that the charged incidents occurred. They help explain the background against which the offences allegedly came about.
That is the proper use for the evidence of uncharged incidents. I should not make use of any uncharged incident at all unless I accept that it occurred.
I direct myself that the fact that allegations are made about a number of occasions does not in any sense absolve me from the task of determining whether the charges themselves are made out.
It would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged. It is the evidence presented in proof of the charges themselves which is the critical evidence in this trial. Evidence of other uncharged incidents is given only to assist me in my evaluation of the evidence going directly to the charges.
Ultimately it is upon the charges themselves which I must render verdicts.
The Charges
The accused was charged on Information with five counts of Supplying a Class H Firearm contrary to s 14A(1) of the Firearms Act 1977. The prosecution did not proceed against the accused in relation to Count one. The particulars of the charges are as follows:
1.Between the 23rd day of April 2011 and the 6th day of May 2011 at Two Wells and other places, supplied a Class H firearm, namely a Forjas Taurus 9mm hand gun (serial number TWH95421), to Guido Carbone, a person who was not authorised by a permit to acquire that firearm.
2.Between the 23rd day of April 2011 and the 6th day of May 2011 at Two Wells and other places, supplied a Class H firearm, namely a Forjas Taurus 9mm hand gun (serial number TWH95425), to Guido Carbone, a person who was not authorised by a person to acquire that firearm.
3.Between the 23rd day of April 2011 and the 6th day of May 2011 at Two Wells and other places, supplied a Class H firearm, namely a Para Ordnance 38mm hand gun (serial number P127330), to Guido Carbone, a person who was not authorised by a permit to acquire that firearm.
4.Between the 23rd day of April 2011 and the 6th day of May 2011 at Two Wells and other places, supplied a Class H firearm, namely a Glock 9mm hand gun (serial number FYG384), to Guido Carbone, a person who was not authorised by a permit to acquire that firearm.
5.Between the 23rd day of April 2011 and the 6th day of May 2011 at Two Wells and other places, supplied a Class H firearm, namely a Beretta 9mm hand gun (serial number BER445421Z), to Guido Carbone, a person who was not authorised by a permit to acquire that firearm.
Elements of the offence
I turn now to the basic elements of the offence of ‘supply of firearms’. The prosecution must prove each element beyond reasonable doubt.
‘To supply’ means to supply through sale, gift, loan or hire.[5]
[5] Firearms Act 1977, s 5.
Section 14A of the Act states:
14A—Supply of firearms
(1) Subject to this section, a person who—
(a) supplies a firearm; or
(b) knowingly takes part in the supply of a firearm,
to a person who is not authorised to acquire the firearm by a permit under this Part (or under corresponding legislation in another State or Territory of the Commonwealth) is guilty of an offence.
The elements for each offence of ‘Supplying a Class H Firearm’ are:
1.The firearm is a Class H Firearm.
2.The accused had possession of the firearm, the subject of the charge. In relation to the question of possession, a person has possession of an object if he knowingly has physical custody or control of it. ‘Possession’ means the power and the intention to exercise control over something to the exclusion of all others. ‘Control’ includes the power to dispose of the object. A person may have the object in his immediate possession or control or he may have it in a place where although he does not have immediate control over it he has the power to place his hands on it. I also note the definition of ‘possession of a firearm’ in the Firearms Act.[6]
3.The accused, by sale, gift, loan or hire, supplied Guido Carbone with each firearm. Here it is alleged that supply was by way of loan to Carbone for him to negotiate the sale of the firearms on behalf of the accused (and to show potential purchasers).
4.Guido Carbone was not authorised to acquire the firearm by a permit under the Act or corresponding legislation in another State of Territory of the Commonwealth. This was established by Exhibit P19.
Evidence
[6] Section (14) For the purposes of this Act (other than part 3 Division 2A), a person has possession of a firearm if —
(a)the person has custody of the firearm or has the firearm in the custody of another;
or
(b)the person has and exercises access to the firearm; or
(c) the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the firearm is found.
Examination of prosecution evidence
The Crown case is circumstantial. The Crown does not have to prove each individual item of circumstantial evidence beyond reasonable doubt.[7] Much of the prosecution case regarding the search of Mr Carbone’s property and the finding of the firearms was not disputed.
[7] Shepherd v R (1990) 170 CLR 573.
Locating the firearms at the Two Wells Property
Detective Brevet Sergeant Ellis, Detective Brevet Sergeant Duance and Detective Brevet Sergeant Hunt were stationed at the Drug Investigation Branch in May 2011. Detectives Duance and Hunt remained stationed at the branch as at the time of giving their evidence. Detective Hunt has been a police officer for 30 years and has been with the Drug Investigation Branch since 1999. Detectives Duance and Ellis have been police officers for 12 years. They all attended a briefing on 5 May 2011 and then attended at a Two Wells premises owned by Carbone.[8]
[8] T 57, T 67, T 71-72, T 84-85.
Detective Duance said that whilst the Drug Investigation Branch does not primarily deal with firearms offences, they do come across them in their investigations.[9] Detective Ellis also said that generally firearms investigations are conducted by the Firearms Branch.[10]
[9] T 60-61.
[10] T 92.
Detective Hunt said that the briefing was the first information he had received about any investigation into this matter, the break-in at Peter Reed’s address or any other persons of interest. It was not his investigation.[11]
[11] T 72, T 75.
The briefing was conducted by Detective Brevet Sergeant Mark Sheehy. The briefing centred around an investigation concerning Carbone. Detective Duance said that he thought the briefing referred to Mr Zonta as well as Mr Carbone, however, he made minimal notes of the briefing and could not recall precisely.[12]
[12] T 60-61.
Detective Ellis was asked about the briefing in cross-examination. The detective said that the briefing related to firearms. Again, she was in a different team to the investigating officer, and therefore had no prior knowledge of the investigation.[13]
[13] T 91-92.
Detective Ellis did make notes of the briefing. She said that in the briefing, there was mention of seven semi-automatic firearms, including Glocks, 38’s and Berettas. The detective interpreted her notes as suggesting that the briefing related to firearms that had allegedly been stolen in April 2011 and that the firearms had been passed on to Carbone on behalf of the accused to sell.[14]
[14] T 92.
Although it does not affect the resolution of the issues in this matter, it is clear that Carbone was involved allegedly in a number of unlawful activities and they included dealing, to some extent, in drugs. No doubt that was at least one reason for the warrant to intercept his telephone calls. The fact that the Drug Investigation Branch executed the raid on the premises rather than the Firearm Branch, in this context, is not a surprise.
After the briefing, police attended at the property of Carbone situated at Two Wells. Detective Ellis said that the primary purpose of the attendance was in relation to firearms. Detective Ellis said that the other police officers who attended included Detectives Sheehy, Hunt, Taggot, Duance, Willdin, Senior Constable Rast and Constable Nguyen.[15]
[15] T 94.
Detective Hunt said that he arrived at the premises at 2.32 pm on 5 May 2011 with Detective Ellis.[16] Detective Duance went with Senior Constable Rast and said that most of the officers arrived at the same time, as they travelled to the property in convoy.[17]
[16] T 67.
[17] T 63.
In cross-examination, Detective Duance said that he estimated the time at being about 3.00 pm when they arrived, as he commenced his notes at 3.15 pm when he began speaking to Mr Wayne Wilson, a person who was found at the premises. He said that he would have arrived at the property around 15 or 20 minutes prior to him commencing his notes.[18]
[18] T 62.
I found Detective Duance to be an honest and generally reliable witness. However, his recollection of the time of the attendance is inaccurate as shown by the telephone intercept records. Mr Carbone was on the telephone at the time the police arrived and that is recorded as occurring at 2.33 pm. Nothing turns on the mistake and it does not make me doubt the honesty of Detective Duance. All police witnesses were clearly honest and reliable witnesses.
Detective Hunt described the Two Wells property as being a semi-rural property. It was an open block with a long gravel driveway that led to a transportable type home on the property. He saw that there were at least two cars parked at the front of the house.[19]
[19] T 67-68.
Detective Duance also described the property as having a building in the middle of a paddock and in front of the building were two vehicles – one being a white four-door ute with registration UUN 541, belonging to Carbone, and the other was a maroon colour four-wheel drive. There were three people inside the house. Detective Duance did not enter the house on the property – he remained outside of the house and said that three people were removed from the house.[20] Detective Hunt also saw three people escorted from the house. He told me that they were Mr Carbone, Mr Wilson and Mrs Wilson. Detective Hunt later drove Mrs Wilson home.[21]
[20] T 63.
[21] T 69.
Detective Duance’s primary focus was the white ute.[22] He conducted a search of the vehicle and located a black backpack behind a seat and put it on the back seat before bringing it to the attention of Detective Hunt. The backpack was photographed inside a Hard Yakka box on the back seat of the white ute. Detective Duance could not recall exactly but believed he found the backpack in the box before putting it on the back seat.[23]
[22] T 57-58, T 62.
[23] T 63.
Detective Duance searched the red four-wheel drive next to the white ute, which police determined belonged to Wayne Wilson. He located items that he brought to the attention of Detective Hunt. Those items included a taser and an amount of cash.[24]
[24] T 64.
Detective Duance also searched some old broken down sheds on the property only for the purpose of having a quick look to see whether there was anyone inside them. He did not carry out any search as he would have if he were looking for drugs.[25]
[25] T 62-63.
When Detective Hunt first arrived at the property, he went around to the back of the house. By the time he returned to the front, Carbone was being escorted out of the house. He did not search the house or any sheds. Detective Hunt explained that tactical activities are fluid and no specific roles are assigned in advance. It often depends on the nature of what they find at the location.[26]
[26] T 75-76.
Detective Hunt assumed the role of exhibits officer and he was assisted by Detective Ellis. He took a number of photographs[27] that included a photograph of the Hard Yakka box and its contents and the plastic bags found in the backpack. He formed the opinion that each of the plastic bags contained a hand gun.[28] The following day Detective Hunt photographed the guns that were found inside the plastic bags. The processing and photographing of the firearm exhibits was conducted the day after they were seized, as the officers returned to the office late that night. Detective Hunt arranged for them to be placed into a safe and Detectives Hunt and Ellis collected them the next day.[29]
[27] Exhibit P2.
[28] T 69.
[29] T 70.
Detective Hunt also photographed American Eagle brand and Highland 38 Super ammunition that was located in the backpack.[30]
[30] T 71 and photographs 10, 12 and 13 of Exhibit P2.
At the property on 5 May 2011, Detective Hunt carried out some of the search of the red Toyota Prado – the vehicle associated with Wayne Wilson. In the glove box of the vehicle, he located $3800 in denominations of five $100 notes and the remainder in $50 notes. Other amounts of cash were located in the vehicle – predominantly in a female handbag. Detective Hunt said that a large amount of cash can be associated with drug-related activity.[31]
[31] T 76-78.
Detective Ellis assisted Detective Hunt. She became aware that five firearms had been located. In relation to a search for the two outstanding firearms, Detective Ellis said that Senior Constable Frisby, a police dog handler, was brought in with a firearms dog. No other firearms were located.
Arrest and search of the accused
On 11 May 2011, Detectives Ellis, Duance and other police officers attended at an address at Andrews Farm. The accused was located at the property and arrested. A video recording was made of the conversation Detective Ellis had with the accused and his arrest. He vehemently denied the offending and expressed confusion about the reason for his arrest. The accused’s mobile phone was seized and Detectives Duance and Ellis conveyed him to the Elizabeth Police Station. At the Elizabeth Police Station, an alcotest was conducted with the accused, which is standard practice. The alcotest returned a reading of 0.125. A formal police interview was not conducted. Detective Duance obtained a buccal swab from the accused and provided it to Detective Ellis to provide to the Forensic Science Centre.[32]
[32] T 59-60, T 79-80, T 84-85.
In cross-examination, Detective Ellis was asked about coded language in relation to cannabis. Detective Ellis agreed that cannabis could be referred to as ‘green’ or some sort of vegetable matter.
Firearms examination
Brevet Sergeant Christopher Sanders is a forensic firearms examiner. He had been in his position for about three years and his duties include examining and testing firearms and ammunition.[33]
[33] T 102.
On 13 December 2011, Brevet Sergeant Sanders received the five firearms that had been seized from Carbone’s property. He described them as being two Forjas Taurus 9mm hand guns, a Para Ordnance 38mm hand gun, a Glock 9mm hand gun and a Beretta 9mm hand gun. Based on his examination and measurement of the firearms, he said all were operational and he formed the opinion that they were all classified as class H firearms.[34] The Brevet Sergeant noted that all five firearms were in excellent condition.[35] When asked in cross-examination, Brevet Sergeant Sanders said that the grip and a lot of the components of the Glock are plastic. The others are mostly metal/steel construction.[36]
[34] T 102-107.
[35] T 104.
[36] T 109.
Brevet Sergeant Sanders also examined the ammunition seized. In relation to some of the ammunition, he said it was suitable for use in firearms with chambers for 9mm Luger, which would include the Forjas Taurus hand guns, as well as the Glock and Berretta. Other ammunition seized was examined and found to be suitable for a centre-fire calibre 38 Super Auto, such as the Para Ordnance. Brevet Sergeant Sanders also examined 22 calibre ammunition that was not suitable for any of the hand guns he had examined. He said that it could be used in a Carl Walther 22 calibre hand gun and that he did not examine such a firearm.[37]
[37] T 109.
The Brevet Sergeant said that firearms purchased brand new are usually packaged in a robust cardboard box or similar from the manufacturer. He said that they could come in a ‘mini briefcase’.[38]
[38] T 108.
Brevet Sergeant Sanders was an impressive witness. I accept his opinions as establishing those matters beyond a reasonable doubt.
Fingerprint evidence
Brevet Sergeant John Lewis has worked at the Fingerprint Bureau since 1993 and holds two certificates of expertise. He said that in his experience he has never heard of two fingerprints being identical. Fingerprints include the palm of the hand.[39]
[39] T 113.
Brevet Sergeant Lewis examined a number of items in this matter. He also received fingerprint impressions from the accused, to assist in making a comparison. A range of items were provided and fingerprint impressions were located on the following items:
·A white plastic shopping bag with pink writing.[40] The shopping bag was found in the backpack of the white ute and contained the Glock hand gun. The fingerprint impression did not match the accused. Using the business records held at the Fingerprint Bureau, Brevet Sergeant Lewis was able to identify the print belonging to Carmelo Rositano.
·Another white plastic shopping bag with pink writing found in the backpack located in the white ute.[41] The plastic bag contained a Forjas Taurus 9mm hand gun with serial number TWH95425. The fingerprint impression was identified as being identical to the middle finger of the accused.[42]
·The Forjas Taurus 9mm hand gun with serial number TWH95425.[43] A search on the national database was conducted and the fingerprint impression found on the gun is still unidentified.[44]
·A blue plastic bag that contained a Forjas Taurus 9mm hand gun with serial number TWH95421[45]. This item was also located in the backpack found in the white ute. Two fingerprints were located on the side of the plastic bag, one being identical to the left little finger of the accused.[46]
·A cardboard Hard Yakka box located in the white ute.[47] The impression found on the box could not be identified.[48]
[40] Item 20/GC7-P, photographs 22 and 23 of Exhibit P2.
[41] Item 24/GC9-P, photographs 30 and 31 of Exhibit P.2
[42] T 114-117.
[43] Item 24/GC9-P, photographs 32 and 33 of Exhibit P2.
[44] T 114-117.
[45] Item 16/GC5-P, photographs 14 and 15 of Exhibit P2.
[46] T 114-117.
[47] Item 11.
[48] T 114-117.
All of the samples that had an identical fingerprint match to the accused’s fingerprints came from plastic bags. Brevet Sergeant Lewis said that plastic is quite a common surface from which fingerprint impressions are obtained. He also said that multiple handling could create difficulties with identifying prints on a surface. When asked in cross-examination whether the fingerprints of the registered owner of the firearms were compared with the impressions detected, the Brevet Sergeant said that Peter Reed was not eliminated as a contributor.[49]
[49] T 117-118.
Brevet Sergeant Lewis was an impressive witness. I accept his opinions as establishing those matters beyond a reasonable doubt.
DNA evidence
A forensic biology addendum statement was received and marked Exhibit P21. The statement outlined Forensic Science SA’s methods of assessment and evaluation of evidence.
Daniela Stankovic, a forensic scientist, works in the biology section at the Forensic Science Centre. She gave evidence in relation to DNA that was recovered from swabs taken from the firearms in question.[50] Her qualifications and experience were not challenged.
[50] T 121.
The Forensic Science Centre recently implemented STRmix, a new system that is being used widely throughout Australia and it has been through an extensive validation process. The system calculates the likelihood ratios for DNA findings. It allows scientists to interpret very complex DNA profiles and provides statistical weightings to those profiles. Forensic scientists still look at the same 10 locations when creating a profile but are now able to read at a lower threshold than previously and extract more information in the DNA profile. This, in turn, allows them to generate more statistical weightings for profiles.[51]
[51] T 122-123.
The new STRmix system allows the forensic scientists to calculate the likelihood ratio using two alternate hypotheses – one being that the person is the source of the DNA and the other being that the person is not the source of the DNA. Those two profiles are then compared and reported as the likelihood ratio.[52]
[52] T 123.
In terms of using the program, the scientist inputs the DNA profile itself. The scientist needs to determine how many contributors there are in the DNA profile and advise the program of the number of contributors. Each step of the process from the case compilation to the report is peer reviewed by another scientist.
On 25 October 2011, Ms Stankovic received a reference DNA sample from the accused in this matter. A complete DNA profile was obtained from that sample. On 2 November 2011, further swabs were received from South Australia Police. They included swabs taken by police of firearms.
Ms Stankovic said that it is current practice of the centre to contact the Office of the Director of Public Prosecutions (DPP) if cases are currently in court or being set for trial, to advise that a re-analysis with STRmix may be able to now provide a statistical weighting. One week before this trial, Ms Stankovic had contacted the DPP to notify them of the improved technology, STRmix, and was instructed to proceed with a STRmix analysis.[53]
[53] T 136.
DNA analyses were conducted on the swabs taken from the firearms. The following results were obtained from the listed firearms:
·Forjas Taurus 9mm hand gun and serial number TWH95421.[54] Two separate swabs were received from this item. No DNA profile was obtained from either swab. It was reported as ‘insufficient DNA’. Ms Stankovic stated that this means there was not enough DNA to enable profiling.
·Glock 9mm hand gun.[55] The swab contained insufficient DNA for profiling.
·Beretta 9mm hand gun.[56] The swabs taken from under the grip and handle contained insufficient DNA for profiling.
·Para Ordnance 38mm hand gun.[57] The DNA contained in the swab was analysed through STRmix. The STRmix analysis indicated that three people had contributed to the DNA profile. The DNA profile was compared to the reference DNA profiles of the accused, Carbone and Wayne Wilson. Both Carbone and Wilson were excluded from the DNA profile. The DNA profile was 100 million times more likely to have come from the accused than an unknown, unrelated person.[58] The likelihood ratio supported the inference that the accused was a contributor to the DNA.
·Forjas Taurus 9mm hand gun with serial number TWH95425.[59] The swab from this item was also analysed through the STRmix program. The DNA profile was compared to the reference DNA profiles of the accused, Carbone and Wayne Wilson. The likelihood ratio favoured the exclusion of all three persons. A second sample was taken from under the grip of item 23, however returned a result of insufficient DNA for profiling.[60]
[54] Item 15/GC5.
[55] Item 19/GC7.
[56] Item 21/GC8.
[57] Item 17/GC6.
[58] T 126.
[59] Item 24/GC9-P, photographs 32 and 33 of Exhibit P2
[60] T 129.
Ms Stankovic explained that DNA may not be left on an object due to various factors, including the environment, type of item you are handling and whether it is porous or non-porous, among other factors.[61]
[61] T 129.
Ms Stankovic was unable to comment on database information relating to any of the individuals who did not match the reference samples of the accused, Carbone or Wilson, but who contributed to the DNA profiles obtained from items 17 and 23 in this matter. However, she did say that the general process is to upload a DNA profile to the State and National database. If there is a match to the DNA of someone on the database, the Forensic Science Centre then passes on that information to police. Ms Stankovic did not have any information as to any results of this process. In addition, Ms Stankovic did not have a reference sample from Peter Reed, the owner of the firearms, to allow her to compare his DNA with the samples obtained from the items.[62]
[62] T 131-134.
Ms Stankovic’s evidence was not challenged. She was an impressive witness and I am satisfied of her reliability and accuracy. I accept her opinions as establishing those matters beyond a reasonable doubt.
Marksman Indoor Firing Range
Mr James Le Poidevin, an employee at the Marksman Indoor Firing Range, gave evidence in relation to records available relating to attendance at the range. Mr Le Poidevin’s role encompassed greeting guests, taking them to the range, acting as a storeman, and a gunshot manager. Members of the Firing Range Association attend the range and have access to the range from Monday to Friday, subject to other bookings. When each member arrives at the range, they are required to show their membership and licence, and fill in a record of range attendance. This is a book that is retained indefinitely by the range. Attendee information about competitive shoots are entered electronically and stored on a computer.[63]
[63] T 212.
Members are permitted to bring guests to the range. When each guest arrives, they fill in a guest card with their name, date of birth and the details of their ID. An employee is required to compare the photographic ID to the card and the cards are eventually archived.[64] Mr Le Poidevin said that this procedure is one of the most important tasks of an employee at the range.[65] Mr Le Poidevin said that it is a condition of the licence held by the range that they are aware of every person who attends the range.[66] Spectators at comparative shoots would not fill in any form of guestbook, as they would not be on the range in the firing area.[67] Mr Le Poidevin also told me that guests of members more often than not have their own firearms licence and present it at entry.[68]
[64] T 213-214.
[65] T 228.
[66] T 214-218.
[67] T 222.
[68] T 230.
The range has a secure section as well as an open section. A guest who does not hold a firearms licence may handle a firearm while under the supervision of a person who does have a licence.[69] Procedurally, club members who do not own their own firearm are provided with a club firearm whilst on the firing range. Commercial visitors are provided with a firearm once they are in the secured firing area. If a club member brings a guest, they can borrow a club firearm and supervise their friend if they wish.[70]
[69] T 215.
[70] T 216.
The ammunition on the range is kept in two locations. Club members access ammunition from the ammunition store, which is not accessible to the general public. Ammunition is also stored in a tool drawer on the range.[71]
[71] T 218.
Peter Reed was a member of the Firing Range Association and attended the Marksman Indoor Firing Range. From records held at the range, Mr Le Poidevin made a list of the occasions that Peter Reed attended at the range in the period of 30 April 2010 to 27 May 2011,[72] namely, 27 May 2011, 19 April 2011, 22 March 2011, 8 March 2011, 27 January 2011, 26 August 2011 and 21 December 2010.
[72] Exhibit P22, T 214.
I accept the accuracy of those records.
Mr Le Poidevin found the first six dates on the computer and a police officer who was looking through the club records found the last date of 21 December 2010. This suggests that Peter Reed’s 21 December 2010 attendance was for a practice shoot. Despite the way this evidence was produced there was no contest about the dates.
Mr Le Poidevin said that six out of the seven listed attendances were for scored shoots. Generally, if an attendee shoots, yet does not register a score, it is listed as a ‘practice’.[73]
[73] T 217.
When asked whether Peter Reed had been a member at the range for eight years, Mr Le Poidevin agreed that he could have been. He noted that Peter Reed had a ‘low’ member number and that the range has been open for about nine years. Peter Reed had been a member the whole time Mr Le Poidevin had been working at the range, which is just over three years.[74]
[74] T 216.
Mr Le Poidevin checked the guest cards for each of the dates listed in Exhibit P22.[75] He remembered Peter Reed having people come to the range with him, however could not say who, or whether it could have been the accused.[76]
[75] T 220-221.
[76] T 230.
Mr Zonta was not recorded as being present.
Mr Le Poidevin did not recognise the accused but could not rule out not having seen him before. He simply did not know.[77]
[77] T 222.
Mr Le Poidevin described the layout of the range as follows:
·As a person walks into the club through the front door, there is a desk.
·To the left, there is a caged gun shop area, where attendees can purchase ammunition.
·The shooting range is located further back into the building.[78]
[78] T 226.
Mr Le Poidevin produced the attendance book with the records of shoots of members only. Mr Le Poidevin used the document to identify the occasions Peter Reed attended at the club. It records the date, member number, and type of firearm the member has used. Category 3 indicates a centre fire pistol not greater than a .38 calibre, which would include 9mm and .38 calibre firearms. Category 2 is a 22 rim-fire calibre pistol. In order to maintain their firearms licence, a person has to show that they fired in a formal club activity six times per year, and that they have demonstrated that they used each category of firearm that they owned a minimum of four times. Practices are not included – only scored competition shoots count toward a licence renewal. Employees of the range also have to maintain their firearms licence and comply with the regulations in doing so.[79]
[79] T 226-227.
Looking at the member attendance book, Mr Le Poidevin identified that Peter Reed used both category 2 and 3 firearms on 22 March 2011.[80]
[80] T 227-228.
Michael Callaway was an employee of Marksman Indoor Firing Range. He worked there for around 18 months and before his employment was terminated.[81]
[81] T 221-222.
He is listed to have attended on 18 March 2011 and used a category 3 firearm.[82]
[82] T 228.
Mr Le Poidevin also produced a number of range attendance cards, which are cards that guests are expected to complete when they attend at the range. Ms Downey in cross-examination drew Mr Le Poidevin’s attention to one guest attendance card[83] noting that a non-member had filled it out, however it did not record the person’s address, date and did not have a range staff signature on it. Mr Le Poidevin did note that the card did demonstrate a firearm’s licence number, name, date of birth and age, but agreed that the range officer failed to verify that they had checked it by signing the card.[84] It is important to note that even though this card had not been correctly filled out it still contained the persons Firearm’s Licence number.
[83] Exhibit D26.
[84] T 228-229.
In cross-examination, Mr Le Poidevin said that procedures for members at the range had changed in the time he had been employed there. He agreed that it would have been likely that he would have had a discussion with Peter Reed, as he had had with many other members, about the need to start making bookings, prior to arriving at the range for a shoot. Mr Le Poidevin further said that it is a possibility that the accused was present during one of those discussions with Mr Reed.[85]
[85] T 229-230.
I accept Mr Le Poidevin’s evidence. He was a truthful, reliable and credible witness. I accept on his evidence that Mr Reed attended the range on the days recorded. It is possible that the accused attended with him but did not actually enter the ‘range’ area to ‘shoot’. In those circumstances it would not be necessary for the accused to fill out an attendance card.
The telephone intercepts
Detective Brevet Sergeant Mark Sheehy was the investigating officer in this matter and he conducted the briefing on 5 May 2011. He has been a police officer for 16 years and is presently stationed at the Drug and Organised Crime Branch. He has been at that unit for one year and prior to that he was with the Drug Investigation Branch for four years.[86]
[86] T 146.
Pursuant to a warrant obtained relating to Carbone’s phone, police intercepted and recorded all calls including text messages made or received in the period 4 April 2011 to 7 June 2011.
In relation to this matter, a warrant[87] in respect of telephone number ......3016 was obtained on 4 April 2011. It was not in dispute that that was the phone number used by Carbone. The warrant ceased on 15 June 2011. In that time, the telephone intercept section recorded every call made or received by that telephone number. Text messages were also captured by the warrant.[88]
[87] Warrant No. F1108200.
[88] T 146-147.
On 4 April 2011, Detective Sheehy began listening to calls recorded pursuant to that warrant. It was his daily duty to listen to the calls and he would listen to them live where possible. If it were not possible due to other work commitments, other officers would listen to the calls and the detective would be updated about the information in those calls on a daily basis. He would also listen to the recordings of the calls. Detective Sheehy said that around four to five hours per day would be spent listening to calls.[89]
[89] T 146-147.
As the investigation progressed, Detective Sheehy came to recognise particular voices that recurred. The same person used the number of the accused on each occasion.
After Detective Sheehy listened to the calls, he arranged for a selection to be transcribed. Detective Sheehy was then involved in listening to the selected calls and checking the accuracy of the transcriptions.[90]
[90] T 147.
It was the prosecution case that Mr Zonta supplied the firearms to Carbone for him to attempt to find a buyer for them.
Calls made to and received from Mr Zonta were intercepted and recorded. The prosecution relied on those intercepts in proof of its case.
In addition, the prosecution relied on a number of calls made and received by Carbone, not conducted within the presence of Mr Zonta.
The rule of evidence under which the evidence was admitted is, that acts done and statements made by another person in the absence of the accused, are admissible against the accused if done or made in furtherance of a common criminal purpose to which both are parties.[91]
[91] R v Corak & Palmer (1982) 30 SASR 404 at 405.
On a trial of a substantive charge, at least where proof of the charge is not inseparably linked with proof of common purpose, the evidence is not admitted unless there is some other reasonable evidence which makes the existence of a common purpose a real possibility. Once admitted the evidence is available to prove the existence of the common purpose.
The evidence of acts and words are admissible to prove that they took place and the truth of the matters asserted against the accused once there is other reasonable evidence of the common purpose.
The real possibility of the common purpose which in appropriate cases is a condition precedent to admission of the evidence, may however, be indicated by evidence of acts or statements done or made by the accused or in his presence, whether those acts or statements were done or made before or after the challenged conversations, if they tend to show the existence of a common purpose in pursuance of which the conversations under challenge took place.[92]
[92] R v Corak & Palmer (1982) 30 SASR 404 at 406.
It is for the trial judge to determine the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused. A trial judge must make an assessment of whether there is reasonable evidence of the fact of participation by each in the combination alleged.[93]
[93] R v Ahern (1988) 165 CLR 87; R v Tripodi (1961) 104 CLR 1.
In this matter there clearly is reasonable evidence of common purpose simply from the intercepted telephone calls between the accused and Carbone. In any event the charges are in effect inseparably linked with proof of common purpose.
In relation to the telephone intercepts a number of matters were agreed.
1. The user of mobile number ......3016 was Guido Carbone.
2. The name of the subscriber for mobile number ......7877 was Charlie Rositano.
3. The name of the subscriber for mobile number ......4434 was Rocco Carbone.[94]
4. Service number ......1901 was a prepaid mobile in the name of Michael Jonta.[95]
5. Carmelo Rositano and Charlie Rositano are the same person.[96]
6. On 5 May 2011, Guido Carbone was in possession of the five firearms the subject of these charges.[97]
[94] Exhibit P9.
[95] Statement of witness Jasmin Watson Exhibit P13.
[96] Exhibit P20.
[97] Exhibit P20.
Chronology of calls
As the real issue in the case is the inferences that should be drawn from the calls, I will go through them highlighting the relevant parts of the conversations. It is necessary to do so to understand the prosecution case in context.
The first recorded contact between the accused and Carbone was 21 April 2011.[98] This is before the firearms were stolen from Mr Reed’s house. Mr Zonta states that he was to be going fishing. They arrange to meet.
[98] Call 2384 Exhibit P10.
The first call that postdates the theft of the firearms between the accused and Carbone occurred on 28 April 2011 at 13:08. A transcription of the call is contained in Exhibit P11.[99]
[99] Call 2936 Exhibit P10 and Exhibit P11.
The accused says to Carbone that he wants to ‘show you this carby I picked up’ to see ‘if it’s any good’.
Mr Zonta gave evidence that this conversation related to a carburettor he wished Carbone to examine. The prosecution asked to infer when it is looked at in the overall context, that ‘carby’ was code for a gun, possibly a Beretta.
On Mr Zonta’s version this was not a sale, just to see whether it was any good.
Later that day (28 April 2011) the accused rang Carbone at 17:41.[100] There is a further discussion about when and where they are to catch up.
[100] Call 2967 Exhibit P10 and Exhibit P11.
They agree to meet the following day at Carbone’s place at 8.30-9.00 am and Carbone says, ‘Just be careful, there’s other people – if the – if there is ... any other people don’t talk about nothing ...’
This is an odd thing for Carbone to say if the ‘carby’ is a legitimate item to be handed over for inspection.
Carbone said that he has another appointment in the morning so they tentatively arrange to meet that night. This was later changed again during another telephone call[101] to meet at 4.00 pm the following day.
[101] Call 2968 Exhibit P10.
On 29 April 2011 at 15:42[102] Carbone rings the accused to let him know he is on the way home and they agree to meet at his house.
[102] Call 3327 Exhibit P10.
There is no direct evidence that the accused and Carbone meet after that telephone call. However, there are no telephone calls recorded suggesting that the meeting be, or was, cancelled.
Approximately two hours after the last call between the accused and Carbone, Carbone rings Mr Rositano (17:49)[103]. Carbone tells Mr Rositano that ‘the things that go into the pockets have arrived’. It is clear, in the context of all of the calls, that this is a reference to firearms.
[103] Call 3345 Exhibit P10 and Exhibit P11.
The prosecution point to the coincidence in timing. The accused and Carbone meet up and within a relatively short period of time Carbone is telling Rositano that the guns have arrived.
The accused submitted that I could not rely on Carbone as being accurate and reliable in his dealings with people in the calls. I reject that submission particularly when the calls are looked at in their entirety.
A few minutes later Carbone rings an unidentified male.[104] He tells the person that:
[104] Call 3346 Exhibit P10 and Exhibit P11.
Guido Carbone: Those boxes, that go into the pockets, have arrived. There’s five.
Male 1:Yeah?
Guido Carbone: Yeah.
Male 1:And how much?
Guido Carbone: Well, I can talk to you when I see you, anyway.
Male 1:Yeah, how – how—what size?
Guido Carbone: Uh.
Male 1:Three point five’s or what?
Guido Carbone: Yeah, there is some, the others are all number nine.
This is a clear reference to firearms. Again, the prosecution point to the coincidence in the timing of the call namely, a short time after an alleged meeting between the accused and Carbone.
The following day, 30 April 2011, the accused rings Carbone at 13:27:36.[105] He asks Carbone:
[105] Call 3361 Exhibit P10 and Exhibit P11.
Accused:Just seein’ how you went with that carby.
Guido Carbone: Yeah, no ... haven’t seen him yet.
Accused:Yeah? No that’s fine.
Guido Carbone: He works til about this time.
Accused:Oh okay.
Guido Carbone: I will give him a ring in a minute, see if he can drop out.
Accused:Alright, no worries.
Guido Carbone: And I’ll let you know.
Carbone hangs up. The next call he makes is 13:28:44 and this is to Rositano, the same person with whom he previously was discussing guns.
Carbone made three calls to Rositano each one of which goes to Rositano’s voicemail. The calls are at 13:28:44,[106] 13:47:43[107] and 15:57:07.[108] He then rings the accused back at 16:00:11 and tells him that he can’t get hold of him.[109]
[106] Call 3362 Exhibit P10.
[107] Call 3363 Exhibit P10.
[108] Call 3367 Exhibit P10.
[109] Call 3373 Exhibit P10.
Again the prosecution point to the coincidence of Carbone ringing Rositano, having just hung up from the call with the accused. Rositano is the person Carbone spoke to the day before about the guns, not a legitimate ‘carby’. Carbone, having not been able to contact Rositano, rings the accused to tell him he cannot contact him.
The accused submitted that the timing of the calls is suspicious but cannot incriminate him in the matter. It was submitted that any inference was speculative and the court should not speculate about matters. While the court cannot of course speculate, I reject the submissions by the accused. There is a clear inference arising which may implicate the accused. When these calls are looked in context the inference does arise.
On 1 May 2011, Rositano sent two text messages to Carbone.[110] The first at 10:21:05 stated: ‘I’m back in Adelaide tonight. I’ll call you. Sorry about yesterday i’ve [sic] been flat out.’
[110] Exhibit P14.
The second text was received at 20:36:05. It stated: ‘Just got back home from being away, i’ll have 2 catch up tomorrow. Sorry.’
I infer that the two text messages were sent in response to the voicemail messages left by Carbone.
On 2 May 2011, Carbone rings the accused.[111] Unfortunately the content of the call has not been transcribed. The call was played in court and I have again listened to it.
[111] Call 3424 Exhibit P10.
It is apparent from the conversation that Carbone missed a call from the accused.
Carbone says: ‘he still hasn’t been able to come out – he got tied up ... he tells me that he would be able to do it today.’
The accused reports that he had his ‘phone off yesterday’.
Carbone said: ‘If we can get things rolling it would be good for you and good for me.’
The accused says that he hasn’t got a dollar to his name at the moment.
This call is generally consistent with Rositano being unavailable due to his being ‘away’.
Carbone makes two further attempts to contact Rositano but the telephone call goes through to voicemail. He leaves messages for Rositano to contact him.[112] The last of the messages is recorded at 17:14:27.
[112] Calls 3427 and 3493 Exhibit P10.
After the last message Carbone rang an unidentified person[113] at 17:27:51.
[113] Call 3495 Exhibit P10 and Exhibit P11.
Male 1: Yes?
Guido Carbone: Do you know anyone who wants to buy one of those things that go into the pockets, and they’re automatics?
Male 1:Uh ... yeah, probably. More than likely.
Guido Carbone: Yeah.
Male 1:Yeah?
Guido Carbone: There is one who’s got about seven of them.
Male 1:What was that?
Guido Carbone: He’s got seven.
Male 1:Seven?
Guido Carbone: They’re all different. He’s got a couple that are nine millimetres. One is twenty two. But he wants good money for these otherwise he won’t let them go.
Male 1:Yeah? _______.
Guido Carbone: He gave me the twenty two to show to people. He wants four and a half. Four and a half.
Male 1:Alright.
Guido Carbone: And the bigger ones go from six and a half to seven. But they are ...
Male 1:Are they new?
Guido Carbone: A Glock?
Male 1:Yeah.
Guido Carbone: Yeah.
Male 1:Are they new? Are they in _________?
Guido Carbone: They’re number nine, yes.
Male 1:Alright. Okay.
Guido Carbone: Automatics. All of them.
Male 1:Okay. I’ll make some calls.
Guido Carbone: And let me know.
Male 1:Okay. No worries. Ciao.
Guido Carbone: Okay. Ciao.
I infer from this conversation that, whoever supplied Carbone with the firearms had seven of them to sell. Further, only one of them had been supplied at this stage to Carbone and that was a ‘22’. ‘He’ wanted four and a half for that firearm. I infer that this is a reference to $4500 as the sale price. ‘The bigger ones go from six and a half to seven’ is a reference to a sale price of $6500 to $7000.
This call is relevant to call 4005 in due course.
It was submitted that this call was an exculpatory call. I reject that submission.
Carbone rang Pat Carbone at 19:14:19 on 2 May 2011.[114]
[114] Call 3501.
After some initial unrelated conversation Carbone states:
Guido Carbone: Nah, I got those things, that go in the pocket, and I had to give ‘em back if we can’t get rid of them.
Pat Carbone: Yeah?
Guido Carbone: Yeah.
Pat Carbone: Oh, okay. (pause) He’s goin’ to Sydney, he hasn’t come back yet. He gets back tomorrow afternoon I think.
Guido Carbone: Yeah. If he lets me keep it, otherwise I have to give it back to him, that’s all.
Pat Carbone: How many there are? How many’s there?
Guido Carbone: Huh?
Pat Carbone: How many are there?
Guido Carbone: There is five or six, I think.
Pat Carbone: Alright.
Guido Carbone: Most are the number nine. And the other is twenty two.
Pat Carbone: Yup. Okay, I give him a call.
Guido Carbone: Now, uh ... is there any other things to do anything, or nothing?
Pat Carbone: Well that’s what I’m waitin’ to hear if—hear if I should _________
Guido Carbone: Yeah?
Pat Carbone: Yeah, yeah.
Guido Carbone: The endive? Isn’t there anything?
Pat Carbone: Well, yea—well, yeah, that’s what I’m sayin’, or can we just ...
Guido Carbone: Alright.
Pat Carbone: ... he still has to give me the money.
Guido Carbone: Alright, let me know as soon as you can. Otherwise, all the things I got here, I have to return them. You know what I mean?
Pat Carbone: Okay then.
Guido Carbone: Alright.
Pat Carbone: No worries. Yup.
This is clearly a discussion about firearms. While it is not entirely clear, it is largely consistent with the previous call. It is consistent with Carbone having seen the firearms and given them back although retaining one (‘it’).
It was submitted that this call was an exculpatory one. I reject that submission. It was submitted that the terminology is different to the way the accused and Carbone spoke over the phone. I agree that Carbone and the accused spoke more ‘carefully’ about matters than Carbone did with other people. That of course applies to the question of whether it is cannabis or guns which was his defence. Carbone clearly had ‘different’ relationships with various people which could lead to a different approach. Again the relationship between the accused and Carbone is informed by all of the contact.
Further, it was submitted that the ‘terminology’ is too ambiguous to make any finding beyond a reasonable doubt in respect of the accused. As discussed, this is a circumstantial case. It is not the case for the prosecution that I can draw an inference from this call alone that the accused is guilty. It is simply a ‘piece’ of the jigsaw.
There is in the call a mention of ‘endive’. This could be a reference to cannabis.
Almost immediately after speaking to Pat Carbone, Carbone rang the accused (19:17:17).[115]
[115] Call 3502 Exhibit P10 and Exhibit P11.
Guido Carbone: The other guy’s got a few problems at the moment. He, uh ... gave a message to a ... somebody close to me
Accused:Yup?
Guido Carbone: ... and, uh, he rang me and, uh, said he can’t ... fuckin speak to me just at the moment, they got a few things happening.
Accused:Yeah, nah, no worries.
Guido Carbone: But ... I’ve got, uhm ... someone else I’m gonna to see. I might give ‘em a ring now, see if I can do something for tonight. If I can’t—
Accused:Uh, that’s alright-
Guido Carbone: I gotta pick it up tomorrow morning ... or tomorrow night. You can come down and pick it up.
Accused:Yeah alright.
The prosecution again point to the coincidence in the timing of the call to the accused. Further, the content of this call is consistent with the problems Carbone was having trying to sell the firearms.
Further, Carbone states he is to: ‘see if I can do something tonight ... If I can’t—I gotta pick it up tomorrow morning.’ Given what occurs the next morning this is significant.
The following day, 3 May 2011, Carbone rang Rocco Carbone at 10:14:07.[116]
[116] Call 3519 Exhibit P10 and Exhibit P11.
During this call Rocco Carbone talks to Carbone about ‘those things we spoke about yesterday.’ He was asked, ‘Are they new.’ Guido responded, ‘They are like new. He used to use them only for practise.’[117]
[117] The accused possessed this knowledge. I am not able to determine how many other people may have known.
Carbone then says:
Guido Carbone: They’re still new. They haven’t been used much. I got rid of one last month.
Rocco Carbone: Yup.
Guido Carbone: Yup, I sold the twenty two. I sold it this morning.
Rocco Carbone: Okay.
Guido Carbone: He gave me ... I sold it last night, but he gave me the money this morning, you know what I mean?
Rocco Carbone: Yup, yup.
Guido Carbone: So when I see you, I’ll give you the money that I owe you.
Rocco Carbone: Oh, that’s okay. Uhm...
Guido Carbone: Yeah.
Rocco Carbone: The others, he’s still got them?
Guido Carbone: Yeah. He still has them.
Rocco Carbone: You can’t show—when will you be home?
Guido Carbone: Not til later, I’m going to do a couple of jobs with my tools, with my ute in the back I got a set of brakes and I gotta do a transmission service on a car.
Rocco Carbone: Yup.
Guido Carbone: Yeah, so I’ll be home, I don’t know, maybe three, four o’clock.
Clearly, Carbone is discussing guns. I infer that he sold one last month and the ‘22’ the night before. He has been paid for the ‘22’ that morning.
This is consistent with what he told the accused he was going to attempt to do when speaking to him the night before.
The prosecution point to the coincidence of the timing of the telephone calls to link the accused to the sale of the “22”.
Further, having spoken to Rocco Carbone approximately 36 minutes later, Carbone rings the accused. The call is not transcribed. The accused says he is driving through the city and asks if he can call back in five minutes.[118]
[118] Call 3524 Exhibit P10.
At 11:02:09 the accused rings Carbone.[119] Carbone says:
[119] Call 3525 Exhibit P10 and Exhibit P11.
Guido Carbone: I did that job for ya.
Accused:Yup?
Guido Carbone: I made fuck all out of it, but still. Listen, uhm ... might be interested in, uh ... a couple of the others.
Accused:Yup?
Guido Carbone: When can I see them?
Accused:Uhm ... (sigh) ... I’ll have to work that out.
Guido Carbone: Well you can come and pick this up now. The, uhm ...paperwork.
Accused:Yup.
Arrangements are then made for the accused to pick up the ‘paperwork’.
It is clear that the expression ‘paperwork’ refers to money. The accused acknowledged that in his own evidence. He said the paperwork related to Carbone selling cannabis on his behalf.
The prosecution make the following points:
1. The sequence and content of the phone calls 18-23 (Exhibit P10) lead to inference that the transaction the accused was informed about can only relate to guns.
2. The person who was supplying the gun(s) to Carbone knew they had only been used for practice. On his own admission the accused had that information.
3. The expression ‘might be interested in a couple of the others’ is more consistent with firearms dealing rather than cannabis.
4. There are no other calls than those referred to that relate to ‘paperwork’. If Carbone had sold a ‘22’ and also cannabis, that is, two transactions, there is no mention of a second transaction in the recorded calls. Of course, this does not preclude the transaction having been performed other than by phone.
5. By this stage there has been no further discussion recorded between the accused and Carbone about a ‘carby’.
The accused submitted that there was an ambiguity about the subject matter and that no inference could be drawn beyond a reasonable doubt that the latter call related to a firearm rather than cannabis. Again, I simply repeat that the prosecution did not suggest that this call alone could prove the case beyond a reasonable doubt. The timing and sequence of the calls leads to a very strong inference that the call relates to guns.
A series of calls between the accused and Carbone then occur as it appears that the accused cannot find the house where Guido Carbone is doing some work.
The last call of that sequence is call 3540[120] and that occurred at 13:21:55.
[120] Exhibit P10.
Just prior to the last call of that sequence, Carbone calls an unidentified male. The number used is the same one from call number 18.[121] This call is transcribed and is call 3536.[122]
[121] Exhibit P10.
[122] Exhibit P10 and Exhibit P11.
Carbone confirms that he ‘sold the one from last night’. There is a discussion about the ‘going rate’ for them and the fact Carbone ‘can’t put much on them, mate I was only working on a couple of hundred bucks meself’. He confirms they have only been used for practice. The unidentified male indicates that ‘they not interested for that sort of money.’
The conversation clearly relates to the attempted sale of the firearms.
The accused submitted that this was an exculpatory call. I reject that submission.
At 16:04:54 on the same day (3 May 2011), Carbone rings the accused.
Guido Carbone: How’d you go with those two parts? Can you get ‘em to my place at all, or not?
Accused:Uh, it’s too much of a fuckin’ ... thing to go grab ‘em and separate ‘em, if you know what I mean?
Guido Carbone: I’ve gotta show ‘em something—yeah, well ... bring ‘em all down.
Accused:Yeah, I know.
Guido Carbone: You know what I mean? I mean, I was just tryin’ to make it easier for him.
Accused:Yeah, yeah, I kinda—
Guido Carbone: Just give me two. If you wanna bring the whole lot, bring the whole lot.
Accused:Yeah. Oh, nah, it’s not that, it’s not that. It’s just goin’ backwards and forwards, if you know what I mean?
Guido Carbone: Well ... do you wanna get rid of ‘em or don’t ya? I can’t go bringin’ ‘em to your house, can I?
Accused:Yeah, nah, I know, I know.
Guido Carbone: You know what I mean?
Accused:Uhm ... what time?
Guido Carbone: Well, mate, I’m on the way home now. It’d be nice if I ... get home, you give ‘em to me, and I’ll fuckin’ ... ring him up, and then within an hour, if he doesn’t uh ... have a look ... or if he looks at it and doesn’t, uh, like the ... the situation, well then I’ll just give ‘em back to ya.
Accused:Alright. Uhm ... yeah, what if he wants the lot?
Guido Carbone: Hey?
Accused:Is he gonna take the lot?
Guido Carbone: Well he might. I mean ...
Accused:Yeah.
Guido Carbone: ... he’s gotta look at ‘em, you know what I mean?
Accused:Yeah, I know. Then there’s no point bringin’ a couple, is there?
Guido Carbone: No, that’s right.
Accused:Yeah.
Guido Carbone: If he has a look at all of ‘em ... he’ll just go back, tell his people what they’re like, and then they will, uh ... say yes or no, and if they ... say yes, I’ll get the paperwork ready and we’re done it.
The accused gave evidence that this call related to the sale of cannabis. I reject that for reasons I discuss later. The structure of this call is just more consistent with the sale of individual firearms rather than cannabis. For example, ‘If he has a look at all of them he’ll just go back, tell his people what they’re like ...’
This is more consistent with guns rather than bags of cannabis. This is particularly so when looked at in the context of the other calls.
About one hour later the accused rings Carbone[123] and they arrange to meet in the next half hour.
[123] Call 3557 Exhibit P10 and Exhibit P11.
The following morning Carbone rings Pat Carbone[124]. Initially there is a discussion about ‘Endive’. The conversation then turns to the firearms. Carbone says, ‘Tell him that I got those things in the pocket. I got five. There is five there.’
[124] Call 3590 Exhibit P10 and Exhibit P11.
He further says, ‘Thirty three thousand, for all five. And they’re almost brand new.’
Carbone says, ‘There is four, number nine’s. And one three eight ... One of the new ones, one of the nine’s, is the Italian one ... Like, the beret ...’
These are clearly references to the calibre of the firearms and the fact that one of them is a Beretta.
There is a long conversation about cars and then a further discussion about Endive.
At 11:30:44 on 4 May 2011, Carbone rings Mr Wayne Wilson.[125]
[125] Call 3598 Exhibit P10 and Exhibit P11.
There is a discussion about the firearms and the price. ‘Thirty three is for the whole five.’ Wayne Wilson says, ‘That’s over six each, isn’t it.’ Guido Carbone states, ‘But there’s some dearer than others, and ... it sort of balances out.’ They arrange to meet later in the day.
At 12:06:49 on 4 May 2011, Rocco Carbone rings Carbone.[126] Rocco Carbone says:
[126] Call 3789 Exhibit P10 and Exhibit P11.
Rocco Carbone: Right. But, do you know that black one?
Guido Carbone: Which black one?
Rocco Carbone: The—the black one?
Guido Carbone: Yeah?
Rocco Carbone: You know, he does that. Just that.
Guido Carbone: Yes, but he wants more.
Rocco Carbone: How much does he want for that? Seven?
Guido Carbone: He’s sold two the other week, for seven.
Rocco Carbone: Seven... five... six, seven... yes, alright. I’ll ring you back. Alright?
Guido Carbone: Huh?
Rocco Carbone: I’ll ring you back.
Guido Carbone: _________ thousand, capiche?
Rocco Carbone: Yeah, no worries. No worries. While I’m here ...
Guido Carbone: Yup?
Rocco Carbone: ... I get the money.
Guido Carbone: Yeah?
Rocco Carbone: And I’ll come and see you, because you have to write the numbers of those ...
Guido Carbone: Yeah, alright.
Rocco Carbone: Okay, for me.
Guido Carbone: Yeah.
Rocco Carbone: But ... I said to him, the black one ...
Guido Carbone: Yup.
Rocco Carbone: ... and he wants the black one straight away though.
Fifteen minutes later Rocco Carbone rings Carbone back.[127]
[127] Call 3922 Exhibit P10 and Exhibit P11.
Rocco Carbone: Hello?
Guido Carbone: Yeah, mate.
Rocco Carbone: Are you home?
Guido Carbone: Yeah.
Rocco Carbone: Yeah, that one should be alright. Should be alright.
Guido Carbone: Yes, that one?
Rocco Carbone: Yeah, he said that one should be alright.
Guido Carbone: Yeah.
Rocco Carbone: I have to come over there.
Guido Carbone: Yeah.
Rocco Carbone: To give me the engine size.
Guido Carbone: I can tell you that now.
Rocco Carbone: Okay.
Guido Carbone: Number nine. There is one, two, three... three number nine now. The last one’s ...
Rocco Carbone: With a number nine?
Guido Carbone: Yeah. And the other is... three eight.
Rocco Carbone: And one—
Guido Carbone: Thirty eight.
Rocco Carbone: Yup.
Guido Carbone: Yup. Okay.
Rocco Carbone: Alright.
Guido Carbone: Yup.
Rocco Carbone: You... can you talk about that for a bit?
Guido Carbone: Sorry? Yup.
Rocco Carbone: Yup. You got a pen.
Guido Carbone: Yup.
Rocco Carbone: To write ________________...
Guido Carbone: Alright, now... there is two that look twins, and a Taurus.
Rocco Carbone: Yup. I told him that.
Guido Carbone: Alright.
Rocco Carbone: Yup.
Guido Carbone: The other one is Italian. One Italian, like the Beret. Understand?
Rocco Carbone: Yup.
Guido Carbone: And uhm—
Rocco Carbone: Capeedle (could be Cappello which means hat)?
Guido Carbone: Yup, like the Beret. Beret, you have to say Beret.
Rocco Carbone: Barritto? Yes, yes.
Guido Carbone: Alright. And the other is... a thirty eight special.
Rocco Carbone: Yup. Special.
Guido Carbone: Yup.
(pause)
Rocco Carbone: Alright. The black one for sure.
Guido Carbone: I got the black one here, and I put it separate.
Rocco Carbone: That one... it’s the one new?
Guido Carbone: they’re all nine’s. Even that. Yes.
Rocco Carbone: Yeah, okay.
Guido Carbone: There’s four nine’s, and one thirty eight. Okay then, buddy. Alright?
Rocco Carbone: Alright.
Guido Carbone: No worries.
Rocco Carbone: Did you tell them that they’re all almost brand new?
Guido Carbone: Yes.
Rocco Carbone: Yeah. Alright.
Guido Carbone: And that’s why he’s... and he said that... you’re on the ball park.
Rocco Carbone: Yeah. Alright?
Guido Carbone: Alright. Alright.
Rocco Carbone: Thirty three thousand, for all of them, if they want.
Guido Carbone: Yeah, I’ve already told him that.
Rocco Carbone: Okay, mate.
Guido Carbone: Alright, bud.
Rocco Carbone: Okay, let me know soon.
Guido Carbone: Ciao—Yeah, I will do.
Rocco Carbone: Ciao.
Guido Carbone: Ciao.
Again there is discussion about the ‘Beret’ the ‘Italian’. There is discussion about the calibre of the firearms and the price.
The DPP relies again on the timing. There is a ‘flurry’ of activity around the sale of the guns.
This call is followed by a further discussion between Rocco Carbone and Carbone.[128] This call refers to selling all of them and Rocco Carbone asks, ‘what’s the best price for all of them?’ Carbone responds that:
[128] Call 3935 Exhibit P10 and Exhibit P11.
Guido Carbone: I can’t do nothing else. Because I only make two hundred for each one, Rocco.
Rocco Carbone: I told him that.
Guido Carbone: Because there’s another one who has to make his money and then he’s gotta give it to him, because they are his.
Rocco Carbone: Yeah.
Guido Carbone: You know what I mean?
Rocco Carbone: they told me... without the three.
Guido Carbone: Uhm...
Rocco Carbone: Without the three. You know?
Guido Carbone: Yeah, I know. He can’t do it.
Rocco Carbone: Alright.
Guido Carbone: He says that he’s got two boxes of ‘pips’ (ammo) as well.
Rocco Carbone: Yup, yup.
Guido Carbone: And he will give it to them.
Rocco Carbone: Yeah, alright. Uhm... well... well you keep them...
Guido Carbone: Yup.
Rocco Carbone: ...and don’t do anything, because he comes later with the envelope.
Guido Carbone: Alright. But... you just gotta do us a favour though?
Rocco Carbone: Yeah?
Guido Carbone: If you can, uhm... hide them for a week.
Rocco Carbone: Yeah?
Guido Carbone: ...but... I will give you the money tonight.
Rocco Carbone: Alright, I’ll do the way he wants me to do it. No worries.
Guido Carbone: You know what I mean?
Rocco Carbone: As long as I know, I can do it.
The call is clearly about firearms and the cost of them. Rocco Carbone is clearly asking for a ‘discount’ for taking them all. The question of the discount is clearly relevant to later calls. I reject the submission that this is an exculpatory call.
Twenty-five minutes later Carbone rings the accused.[129] Three phone contacts had occurred in the meantime. Neither counsel suggested they had any relevance.
[129] Call 3939 Exhibit P10 and Exhibit P11.
I set out the conversation in full. It is clear when looked at in context that this call relates to the sale of the firearms as a whole and whether a discount off the full price can be achieved.
The defendant’s evidence that this particular call relates to the sale of cannabis, in its proper context, is simply unbelievable.
Accused:How ya goin’, matey?
Guido Carbone: How ya goin’, buddy? Alright?
Accused:Yeah, good.
Guido Carbone: You go see your mate...
Accused:Yeah?
Guido Carbone: ...and tell him to sharpen his pencils the best he can... because... it’ll be the whole lot in one hit if the price is right.
Accused:Yeah, what’s that?
Guido Carbone: All—all at once. (pause) he’s gotta give us the price and I’ll tell them.
Accused:Yeah, yeah. That’s what________________.
Guido Carbone: they’re interested but they don’t wanna pay that price, so... tell him to— uh... sharpen his pencil up, give us the best price, I’ll them them, if they say yeah, they’ll take the lot.
Accused:Yeah, thirty—
Guido Carbone: And that’s tonight, and they’re gonna have—
Accused:thir—thirty. That’s—that’s... the best.
Guido Carbone: Hey?
Accused:Thirty... was... for the lot.
Guido Carbone: they don’t wanna pay that for the lot. It’s——it’s not fair on them, they’re not makin’ no fuckin’ discount.
Accused:Yeah. Oh...
Guido Carbone: You know what I’m sayin’?
Accused:Well... yeah. Well tha—that’s what I mean, he... he’s... there’s a offer out there right now for more, so...
Guido Carbone: Well you—you tell me what you—you talk to him and tell me what you wanna do.
Accused:Yeah.
Guido Carbone: Because... they’re eager... they don’t wanna pay...
Accused:Yup.
Guido Carbone: ...that, fuckin’, ___________ odds.
Accused:Yeah, nah, that’s fair enough. Yeah, there’s...
Guido Carbone: You know? And I mean...
Accused:Yeah.
Guido Carbone: ...they’re—talkin’ about the whole lot in one hit.
Accused:Yup.
Guido Carbone: And... that’s tonight for dead certain, a hundred percent.
Accused:Alright.
Guido Carbone: Alright?
Accused:Alright.
Guido Carbone: You ring me back?
Accused:Alright, no worries.
Guido Carbone: Ciao.
Accused:See ya, mate.
The accused calls Carbone about nine minutes later.[130] He tells Carbone: ‘it is what it is, mate. I can’t do anything else, that’s... I’ll, uh... come grab ‘em if that’s... you know what I mean?’
[130] Call 3940 Exhibit P10 and Exhibit P11.
Clearly this is a response to the suggestion from the previous call that he obtain the ‘best price’.
Carbone says ‘I gotta see ‘em again tonight and I’ll let you know.’
At 17:19:56 on 4 May 2011, Carbone rings Wayne Wilson.[131]
[131] Call 3978 Exhibit P10 and Exhibit P11.
Wayne Wilson: I don’t... I won’t be, I won’t be doin them all,
Guido Carbone: Nah that’s alright, cos they’re actually virtually done now,
Wayne Wilson: Ah alright,
Guido Carbone: I had, had to have that other mob ring me, but I just wanted to show you what they were like so you know what I’m talkin about,
Wayne Wilson: Yeah well I was only,
Guido Carbone: they’re a lot better, a lot better looking than the other one you know,
Wayne Wilson: Yeah well the other one was fucking shit hot mate there was nothing wrong with that,
Guido Carbone: Nah, Nah, nah nothing wrong with it.
Wayne Wilson: Yeah,
Guido Carbone: Yeah I’m just saying these are a lot prettier you know,
Wayne Wilson: Yeah I’m just after a, a short, fat one now,
Guido Carbone: Yep.
Wayne Wilson: Yeah so if you come across one let us know buddy,
Guido Carbone: Alright,
Wayne Wilson: Ok thanks...
Guido Carbone: inaudible...one of these then?
Wayne Wilson: Well,...well only if one of me mates was gonna take em, but then I’ve gotta tell him and fuckin all this bullshit, but I wouldn’t want them for meself though Butch,
Guido Carbone: Look,
Wayne Wilson: yeah
Guido Carbone: im gonna know for sure tonight,
Wayne Wilson: about the little one?
Guido Carbone: nah, about all of these,
Wayne Wilson: yeah, yeah...
Guido Carbone: If they don’t go I’ll give you another call.
It is clear that Carbone is still attempting to negotiate the sale of firearms not cannabis.
At 18:01 on 4 May 2011, Carbone rings the accused.[132] He indicates that he wants to show them to someone else ‘tomorrow’. The accused says he has someone else who is going to take them and he wanted to come and grab them. The accused gave Carbone until tomorrow.
[132] Call 3983 Exhibit P10.
Carbone then rings an unidentified male[133] and a general discussion about showing him something occurred. Carbone says that they are hard to get, but they have come across. He further states that they might be gone tonight, but they will be gone tomorrow.
[133] Call 3987 Exhibit P10.
The following morning Carbone calls Wayne Wilson.[134] Wilson tells him that he got in ‘touch with his mate and he wasn’t interested’.
[134] Call 4003 Exhibit P10.
Wilson says that he is interested in ‘one the short one. It has to ‘be $3.20 or $3.80.’ That is likely code related to the calibre of the gun.
There is a general discussion about the price of the five and they are ‘over 6 each’.
There is a general discussion about trying to sell them all together or separately.
On 5 May 2011 at 10:06:27 Carbone rings the accused. Again I set out the text of the call in full. Clearly, the accused was driving as a satellite navigation computer can be heard in the background giving directions.
Accused:Hello?
Guido Carbone: How ya goin’, mate?
Accused:How ya goin’?
Guido Carbone: You, fuckin’, fast asleep last night or somethin’ when I rang ya?
Accused:Did you ring last night, did ya?
Guido Carbone: Fuckin’ rang a few times.
Accused:Oh, fuck. I didn’t even hear it, mate. I must have... put my phone on silent or somethin’.
Guido Carbone: Yeah, fuckin’ hell.
Accused:I looked at it this morning, I saw a missed call.
Guido Carbone: Yeah, it was me. Look, uhm... they only interested in two of ‘em.
Accused:Yeah?
Guido Carbone: Yup. The black one.
Accused:Yup.
Guido Carbone: Uh... you know the light one?
Accused:Yup.
Guido Carbone: And the wog one.
(pause)
Accused:The want one?
Guido Carbone: The wog one.
Accused:Oh, yeah.
GPS:(in background) In three hundred metres...
Guido Carbone: Yup.
GPS:(in background) ... at the roundabout. Turn right.
Guido Carbone: And...
Accused:(laughs)
Accused:...was that seven and six?
Guido Carbone: Hey? What’s that?
Accused:Seven and six?
Guido Carbone: No, you had ‘em both down at six.
Accused:Are they?
Guido Carbone: Yeah.
(pause)
GPS:(in background) Follow the road—
Accused:Yeah, I’ll just... yeah, I’ll just have to come and get ‘em, man. Cuz I got someone else who’ll take the lot, you know what I mean?
Guido Carbone: Well it’s up to you.
Accused:Yeah, I have to do that.
Guido Carbone: Yeah, alright then.
Accused:Alright?
Guido Carbone: Alright, mate.
Accused:Alright, mate. See ya.
Guido Carbone: Ciao.
As can be seen, Carbone talks about ‘only interested in two of em’. He talks about the ‘black’ one and the ‘light’ one. He then talks about ‘the wog one’. These are clear references to the firearms not cannabis. It is clear from listening to the telephone intercept that the accused knows what Carbone is talking about. He says he will have to come and get them. There is discussion about price.
The accused gave evidence that this telephone call related, in his mind at least, to the sale of cannabis. I reject his evidence about that. It is clear from listening to the call that the accused knows what Mr Carbone is talking about.
Further, in its context, there is no doubt that Carbone is discussing the sale or potential return of the firearms. Neither counsel could point to any call which suggested that Carbone was having any discussion with anyone else who was the apparent vendor of the guns. The series of calls show that Carbone was attempting to get the accused to lower the price. He is dealing with other people about guns not cannabis. That is the context in which he is contacting the accused. These calls of course inform the substance of other calls the accused had with Carbone.
In relation to the question of paperwork, he agreed that related to money. He thought he collected ‘around two and a half thousand plus dollars from Mr Carbone’.
In relation to call 3551, Mr Zonta said that two parts was a reference to two pounds. His answer regarding that was unsatisfactory.[197] He said he was unable to be sure whether he had any cannabis in his possession at this point in time.[198] Again, he was very vague in relation to the details of the cannabis.[199]
[197] T 351.
[198] T 352.
[199] T 352-353.
Mr Zonta was asked about how he collected the cannabis form his supplier and how it was packaged. He described them as coming in individual pounds and in another kind of bag. He was unable to say what type of bag it was. He said, ‘it could have been anything’.
Mr Zonta denied that the reference to ‘two parts’ was a reference to two firearms.
In relation to call 3557, Mr Zonta said the reference to meet may have been at his house at Williams Road. He said on that occasion he couldn’t remember properly but ‘it was around about two separate lots which he thought was about seven of one lot and six of another’.[200] He denied it related to firearms. He was unable to say why there was discussion about ‘two separate lots’. He was unable to remember whether there was any discussion about where the cannabis had come from or possible prices.[201] His evidence was unsatisfactory about that.
[200] T 357.
[201] T 358.
Again, after listening to some calls that he did not make to Carbone, he denied supplying any firearms.
In relation to call 3939, he gave evidence that this call related to the marijuana. Thirty thousand again he confirmed was for all of the cannabis. Again he was not able to say whether he discussed with him the price before this conversation.[202] In relation to his statement in the call that, ‘there is an offer out there right now for more’ he says that related to marijuana. When asked what was the offer he said, ‘I don’t really know. It’s probably what I said at the time. Bargaining issue. A bargaining tool’. He conceded there probably wasn’t an offer. He then said he didn’t remember.[203] Despite the fact that Mr Zonta said he hadn’t done ‘a lot of marijuana transactions’ and indeed had only done the ones he talked about in court, he was unable to help with details.[204] I found his answers totally unsatisfactory.
[202] T 363.
[203] T 363.
[204] T 363.
In relation to call 3940, he agreed he was getting back to Mr Carbone and said, ‘he couldn’t do anything else’. He was unable to explain his use of the expression ‘come and grab them’.[205] He said he just wanted to go and get them referring to the pounds of marijuana because he said, ‘I just had enough’.[206]
[205] T 365.
[206] T 365.
Between the calls 3983 and 4003 Mr Zonta said he had not met with Mr Carbone during that period of time.
In relation to call 4005, again Mr Zonta asserted that this related to cannabis. He was unable to explain what he understood ‘the black one to mean’. He thought the ‘black one’ might have been a reference to a bag as indeed that was his explanation about the ‘light one’
He was unable to give a satisfactory explanation for what ‘the wog one meant’. He said he was not interested in what he meant by ‘the wog one’.[207] He denied that the reference to the ‘wog one’ was a reference to the Beretta firearm and that the ‘black one’ was a reference to the Glock firearm. He said he did not understand what Mr Carbone was talking about properly.[208] The reference to the discussion about seven and six, Mr Zonta said related again to pounds of cannabis. He was unable to give a satisfactory explanation for the content of the call particularly when it is looked at in sequence.
[207] T 371.
[208] T 372.
When questioned about when he got the cannabis back he was unable to remember details.[209]
[209] T 377-378.
As the cross-examination progressed, Mr Zonta’s evidence became more vague about the details of the cannabis transactions and his responses as to what the calls were about, more unbelievable.
Evidence of Mr Reed
Mr Reed gave evidence for the defence. He said he was a friend of Mr Zonta’s, having known him for about seven or eight years.
He confirmed that Mr Zonta resided at his place in Paralowie before the break-in on the Easter long weekend in 2011. He confirmed that he worked with Mr Zonta on occasions.
Mr Reed said that his house was broken into and a number of things were stolen including his safe. The safe was ‘pretty big’ and weighed around 300 kilograms. The safe had been kept next to his bed behind a screen. He confirmed that seven of his firearms were stolen and that he had had five of them returned. One of his Glock pistols was not returned nor was a 22 Walther. Both of those firearms were black.
Mr Reed is a member of the Marksman Range which is on Franklin Street. He used to go firing at the range and confirmed that he occasionally went with Mr Zonta.
Mr Reed thought that Mr Zonta had occasionally assisted him with cleaning the guns mainly in the lounge room.[210]
[210] T 327.
Mr Reed confirmed that he was a keen owner and shooter and that he looked after his guns.[211]
[211] T 328.
Mr Reed confirmed that he didn’t have gun cases for each of his guns. He was shown the photographs in Exhibit P2.
He did not identify the bag in which the guns were found in Mr Carbone’s car as seen in photograph number 4.
He identified the gun in photograph 16 as looking like his Taurus 9mm.[212] When asked about the plastic bag in photograph 15 he said, ‘Looks like a plastic bag’.
[212] T 328.
When shown photographs 27 and 28 he recognised the Beretta as his. When asked about the bag he answered, ‘It quite possibly could, I don’t know’.
He was asked questions:[213]
[213] T 330.
QThey wouldn’t be in the plastic bags when they were in your safe.
AI don’t know, it depends.
QDepends on what.
ADepends, because they didn’t all have cases.
QIf they were in the safe, if you had a case they would be in the case in the safe.
AYes.
QWhy would you put them in the safe in a plastic bag, I don’t understand.
ABecause I don’t know to stop them from scratching, so they don’t hit or rub on another firearm. I don’t know.
These answers were anything but convincing.
When cross-examined about signing someone other than a member in at the Marksman Firing Range, Mr Reed was vague and at times evasive. He was asked whether he had seen any of his guests sign in and he said he could not remember. He explained to Mr Zonta that he needed to be signed in.
When cross-examined about whether Mr Zonta helped him with the cleaning he said, ‘I can’t remember. I know he seen me do it. I can’t remember if he helped me’.[214]
[214] T 336.
Mr Reed was not a very impressive witness. I accept parts of his evidence where he confirmed that he did some work with Mr Zonta and that Mr Zonta from time to time stayed with him.
I accept parts of his evidence. I accept that Mr Zonta may have gone to the Marksman’s Range with him on a couple of occasions but I found his evidence about whether Mr Zonta had to sign in most unsatisfactory. I also found his evidence that he may have stored some of his guns in the safe in a plastic bag such as seen in the photographs, highly suspicious and most unlikely. He was a person who valued his firearms. Whilst some of them may not have had a gun case storing them in plastic bags as opposed to something softer seems most unlikely. My impression of his evidence on that point is that he was simply trying to assist the accused. However, I am unable to make a finding beyond reasonable doubt that he did not store some of his firearms in plastic bags.
Common Ground
The evidence against Mr Zonta was ‘circumstantial’. There was however, no dispute about the background facts.
It was not disputed that Mr Reed had seven registered guns lawfully stored in his safe and that these seven guns were stolen on the Easter weekend. The telephone intercepts prove that Mr Carbone sold one gun and most likely a second one. There is no dispute that he was attempting to sell five other guns through various contacts.
It was not disputed that on 5 May 2011 Mr Carbone was found in possession of five of the firearms stolen from Mr Reed.[215] It is not disputed that the police intercepted calls between Mr Carbone and Mr Zonta as alleged by the prosecution. It was not disputed that Mr Zonta was dealing with Mr Carbone in ‘something’ during the relevant period.
[215] Agreed Fact Exhibit P20.
I find all of those matters proved beyond a reasonable doubt. The only real issue at trial was determining whether the prosecution could prove beyond a reasonable doubt that the accused had supplied the guns to Mr Carbone.
Discussion of evidence of the accused
If I accept Mr Zonta’s evidence or, if it was at least a reasonable possibility that he was dealing in cannabis not guns, then he would be entitled to be acquitted.
Even if I reject his evidence then I must be satisfied that the prosecution establishes every element of the offences beyond a reasonable doubt.
Mr Zonta was a very poor witness. I have dealt with some criticisms of his evidence when earlier discussing his evidence.
I specifically reject his evidence that he was involved in supplying Mr Carbone with cannabis for him to sell on his behalf. His evidence about those matters was vague and on occasions confusing. Given his own evidence that this was the only period of time when he was involved in such a matter, his lack of detail, was striking. His evidence about his use of code with Mr Carbone was confusing. His evidence in relation to the use of the word ‘carby’ is an example. It may or may not have been code and it may or may not have been code for cannabis. He was unclear.
The general tenor of the language used during the course of the telephone intercepts does not sit well with his explanation. He was totally unable to account, in any sensible way, for the content of the conversation recorded in telephone call 4005. There is absolutely no doubt in that call that Mr Carbone is talking about guns not cannabis. Mr Zonta simply could not explain his own answers other than that he wasn’t really sure what Mr Carbone was talking about. Having listened to the call and his explanation, I reject his evidence.
Further, there is no support for his evidence in the intercepted telephone calls with third parties. There were many calls intercepted. Counsel were invited and did refer me to what they considered the relevant calls.
The intercepted calls do establish that Mr Carbone had an ‘interest’ in dealing with cannabis. There are some very general references, in code, to that interest. However, Mr Zonta was unable to refer me to any call that contained any discussion with a third party about cannabis in the terms that Mr Zonta now says he was discussing with Mr Carbone. There are no calls that have been referred to that show any discussion about 1 or 2 pounds or indeed 12, 13 or 14 pounds. There are no calls referring to the sort of price Mr Zonta was talking about. There was no reference to ‘6 or 7’, or ‘black’ and ‘light’ bags, no reference to an amount of money per pound nor to a total amount for the cannabis namely around $30,000.
I accept that ‘absence of evidence is not evidence of absence’. It may be, for example, that Mr Carbone did all of his cannabis dealings face to face rather than by phone. However, the point remains that there is no support for Mr Zonta’s evidence in the other telephone calls. I simply have his evidence, which I reject.
I do accept that he was, from January 2011, staying for periods of time with Mr Reed at Reed’s house. I accept that he may have attended with Mr Reed at the Marksman Range. I accept that, from time to time, he may have handled Mr Reed’s guns at Mr Reed’s home. That may account for the presence of his DNA.
His evidence about how his fingerprint came to be on the plastic bags, in which two of the guns were found in Mr Carbone’s vehicle, was highly suspicious. I find it was highly unlikely that Mr Reed kept his guns in that manner when storing them in the safe. However, I cannot totally reject Mr Zonta’s evidence or Mr Reed’s evidence about that.
I reject his evidence about firing the guns at the range. I reject his evidence about him signing a form at the range.
Discussion of the Prosecution case
The prosecution case against Mr Zonta relies on circumstantial evidence. Their case relies largely on inferences to be drawn from conversations recorded in the telephone intercepts. Of course, that evidence has to be considered against the ‘common ground’ facts mentioned earlier.
Circumstantial evidence is simply any fact relevant to a fact in issue in a case from which the tribunal of fact may infer the existence of the fact in issue.[216]
[216] R v Festa (2001) 208 CLR 593.
The strength of circumstantial evidence is usually manifested by the number of individual items pointing to the existence of the fact in issue, although some particular items may themselves point that way more strongly than others.
In Martin v Osborne[217] Dixon J (as he then was) said:
If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person, the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself, or explain or make intelligible the course of conduct pursued ... the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.
[217] (1936) 55 CLR 367.
In Barca v R[218] Gibbs, Stephen and Mason JJ said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”: Peacock v R (1911) 13 CLR 619 at 634; 17 ALR 566. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw”: Plomp v R (1963) 110 CLR 234 at 252; [1964] ALR 267 at 275 (see also Thomas v R (1960) 102 CLR 584 at 605-606; [1960] ALR 233). However, “an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”: Peacock v R 13 CLR at 661. These principles are well settled in Australia.
[218] (1975) 133 CLR 82 at 104.
Thus when the evidence is circumstantial, the jury is required to draw an inference from the circumstances of the case. In a criminal case, those circumstances must exclude any reasonable hypothesis consistent with innocence.
It is of critical importance to recognise that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
In a circumstantial case there can be evidence of matters, which, if looked at in isolation, could yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.[219]
[219] R v Hillier (2007) 233 ALR 634.
As was stated in R v Chamberlain (No 2)[220]
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when they jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness separately in, so to speak, a hermetically sealed compartment; they should consider the accumulation of the evidence: cf Weeder v R.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider “the weight which is to be given to the united force of all the circumstances put together”: per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelan; and see Thomas v R and cases there cited.
[220] (1984) 153 CLR 521.
As Dawson J in R v Chamberlain stated[221]
As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact — every piece of evidence — relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
[221] (1990) 170 CLR 573 at 579
In my view, the circumstances, proved by the prosecution, when looked at in their entirety and in context, prove the guilt of the accused beyond a reasonable doubt. The only rational inference that can be drawn from the case is the guilt of the accused.
I make the point that when looking at what inferences can be drawn from these intercepts, the later conversations between Carbone and others inform both the conversations between the accused and Carbone and the later conversations. This is a case where there is an accumulation of evidence and available inferences as the telephone calls proceed. For example, the first few contacts between the accused and Mr Carbone need to be viewed in the context of the later calls.
I have already gone through the calls in some detail both from the prosecution and defence point of view. It is not possible to assign a ‘weighting’ to each piece of evidence or inference that I accept. Clearly, there are some calls and series of calls that are more important than others.
I summarise the prosecution case which I accept at the end of the case proves the guilt of the accused of all charges beyond a reasonable doubt.
Call 2936 establishes that the accused and Carbone are meeting shortly after the guns were stolen. They discuss the fact that Mr Zonta has a ‘carby’ for him to look at.
Calls 2967, 2968 and 3327 confirm arrangements to meet.
Inferences that arise from the sequence of calls are that the accused as at 28 April 2011 had custody of, or at least access to, the firearms – the ‘carby’. Further, that the accused wanted to meet Carbone to show him the ‘carby’. Also, that a meeting between the two of them took place after call 3327.
Calls 3424, 3525, 3598 and 3935 establish that Carbone was to receive a ‘commission’ for selling the firearms.
Call 3345 is the initial call to Rositano. He refers to the ‘things that go into pockets have arrived’. He refers to five of them. It is, in the context of the case, a reference to five of the stolen firearms. The prosecution rely on the fact that the call to Rositano is only approximately two hours after Carbone and the accused have agreed to meet. I infer that the call was made because of the earlier contact with the accused.
The relevance of the Rositano contact, apart from the discussion, is that a fingerprint matching Rositano’s was located on the plastic bag containing the Glock firearm found in Carbone’s possession.
Call 3346 to an unidentified male clearly relates to the firearm.
The accused rings Carbone on 30 April 2011 at 1.37 pm[222] checking on how he was going with the ‘carby’. Carbone replies that he ‘hasn’t seen him yet’ ... ‘I will give him a ring in a minute’. I infer that this is a call that relates to a firearm.
[222] Call 3361.
After he hangs up, the very next call, within the minute, is to Rositano.[223] This is the same Rositano in call 3345.
[223] Call 3362.
The call goes to voicemail and there are subsequently two further calls at 13:47:43 and 15:57:07 to Rositano none of which are answered. Carbone rings the accused at 16:00:11 and tells him he can’t get hold of him.[224]
[224] Call 3373.
The series of calls beginning with 3361 and finishing with 3373 show that in response to the accused mentioned ‘carby’, Carbone attempts to contact Rositano, can’t contact him and then communicates that fact to the accused.
There are then two text messages following from Rositano to Carbone which in effect say he had been away and he will catch up tomorrow.
Call 3424 records Carbone ringing the accused. Carbone says, ‘he still hasn’t been able to come out – he got tied up’. This is consistent with Carbone’s attempt to contact Rositano but Rositano being ‘away’. Carbone then makes two further unsuccessful attempts to contact Rositano. He then rings an unidentified person referring to things that go into pockets: again another reference to guns.
In this call there is a reference to seven of them. Carbone has been given the twenty two to show people and ‘he wants four and a half’. ‘The bigger ones go from six and half to seven’. This is a clear reference to the prices. The relevance of the ‘twenty two’ to show people becomes relevant in some later calls.
In call 3501 on 2 May 2011 at 7.14 pm, Carbone rings Pat Carbone and repeats some of the information.
In call 3502, three minutes later, Carbone rings the accused. He refers to the other guy having a few problems (Rositano) and he’s got someone he is ‘going to see’. I infer that this again is a call relating to firearms.
Again the prosecution point to the timing of the calls. Carbone is reporting to the accused the ‘problems’ he is having, consistent with the other calls mentioned. Call 3502 is within three minutes of call 3501 and within two hours of call 3495.
The prosecution suggest that it is clear that Carbone is trying to sell Reed’s stolen firearms. The report back to the accused relates to the ‘trouble’ he is having particularly with Rositano. The prosecution point to the inference that Carbone has been given the ‘twenty two’ to show people.
The next series of calls relate to the sale of the ‘twenty two’.
During call 3519 to Rocco Carbone, Carbone tells him ‘I sold the twenty two. I sold it this morning’. This call is at 10.14 am on 3 May 2011.
At 11.02 am on 3 May 2011, less than one hour later, Carbone rings the accused and says that he ‘did that job for you’ and that ‘you can come and pick up the paperwork’.[225]
[225] Call 3525.
Further, Carbone tells him ‘might be interested in ... a couple of others’. The prosecution point to the coincidence of the calls about selling the twenty two and doing that ‘job for you’. The reference to paperwork is clearly a reference to the money for the sale of the twenty two. I infer that this series of calls relate to the sale of a firearm and the reference to the ‘paperwork’ is a reference to the proceeds of the sale of the ‘twenty two’.
Call 3536 records Carbone ringing an unidentified male. He confirms he sold the one from last night. As he did with Rocco Carbone during call 3519, he states they were only used for practice. This is consistent with them being Reed’s firearms.
On the same day at 4.40 pm, call 3551, Carbone rang the accused. He asks ‘How did you go with those two parts. Can you get them to my place at all, or not’. This is a clear reference to call 3525 and him being interested in a ‘couple of others’. This relates to firearms.
A discussion occurs about bringing ‘the whole lot’. The accused asked, ‘Is he going to take the lot’. Eventually, the accused agrees there is no point ‘bringing a couple’. Carbone says, ‘If he has a look at all of them ... say yes or no’.
This, as discussed earlier, with the language used more consistent with guns being provided rather than cannabis.
The prosecution point to the ‘whole lot’ being supplied which is consistent with the five firearms found later in Carbone’s possession.
A short time later[226] Carbone and the accused agree to meet in half an hour.
[226] Call 3557.
On 4 May 2011, a series of calls is recorded which show Carbone was trying to find a buyer for the five firearms and negotiating the price. The prosecution point to the timing of the accused speaking to Carbone the previous evening about bringing ‘the whole lot’, their meeting a short time later and then Carbone the following day attempting to sell the five firearms.
The calls are 3590, 3598, 3789, 3972 and 3935. These intercepts clearly record discussions about the five firearms. The price mentioned is ’33 big ones for the whole five’.
In call 3935 Rocco Carbone asks, ‘what is the best price for all of them’. Carbone says, ‘I can’t do nothing else’. Rocco says, ‘they told me, without the three’. Carbone says, ‘he can’t do it’. This is a clear reference to a sale of the five if the price is under $30,000, that is, no ‘3 in front of it’.
Twenty five minutes later, Carbone rang the accused and told him to ‘go see your mate and tell him to sharpen his pencils as best he can ... because ... it will be the whole lot in one hit if the price is right’.[227] The accused said that thirty was for whole lot and ‘there was an offer out there for more’.[228]
[227] Call 3939.
[228] ‘Thirty three’ mentioned by Carbone earlier most likely included his commission.
The accused agreed to ring back.
When seen in sequence, the calls can only be in relation to the firearms.
Nine minutes later the accused rang Carbone back and said, ‘It is what it is, I can’t do anything else’. He says he will come and grab them.
The inference is that the accused could not sell for the price Carbone was negotiating and there was another offer available and he would come and get them. Carbone says, ‘I gotta see em again tonight and I’ll let you know’.
Despite the apparent failure of the negotiations, Carbone does not give up. Call 3978 records Carbone discussing with Wayne Wilson the firearms. Wilson indicated, ‘I won’t be doing them all’. He said he was after ‘a short fat one now’. Carbone says, ‘I’m going to know for sure tonight’.
Call 3983 records Carbone ringing the accused and telling him that he wants to show them to someone else tomorrow. The accused said he had someone else going to take them and he wanted to come and grab them. He gave Carbone until the next day. Again this series of phone calls clearly show that Carbone is talking to the accused about firearms. There is no “mixing of codes”.
As previously discussed, I have rejected the accused evidence in any event.
Calls 3987 and 4003 record Carbone trying to negotiate the sale.
Call 4005 records Carbone ringing the accused. It is an important call in the prosecution case.
The prosecution relies on the following inferences.
1.A party is interested in two of the firearms.
2.Possibly three firearms are mentioned. Black one, light one and the ‘wog’ one. The ‘wog’ one is a clear reference to the Beretta (which is also black).
3.There are discussions about the price which is consistent with other calls relating to the price of the firearms. (Call 3939, for example, and other calls with interested parties).
4.The accused again says ‘I’ll just have to come and get them man. Cuz I got someone else who will take the lot’.
Two further calls occur before the police raid Carbone’s premises. Again Carbone says to Rocco Carbone ‘He wants to come and get them’. This is a clear reference to the discussion in call 4005.
Accused’s submissions in relation to the intercepts
Ms Downey handed up in the course of her submissions a document dealing with her submissions about the calls. I have taken that document and her oral submissions into account. I have referred to some, but not all of the submissions when outlining the calls.
The accused submitted that the prosecution case relied exclusively on the inferences that can be drawn from the telephone intercepts. Whilst I do not entirely agree with that statement, when coming to my ultimate conclusion in this matter, I have worked only on the telephone intercepts. As previously discussed, in my view, the fingerprint evidence adds to the prosecution case but I have not found it necessary to rely on it.
The accused submitted, that when one stands back at the end of the day, the calls were too inconsistent, too vague and contained too many anomalies for me to be satisfied that the prosecution case was proved beyond reasonable doubt. Further, the defence suggested that relying on Mr Carbone when it is clear that he is ‘a wheeler and dealer’ shows the Crown has a difficulty.
I have taken into account the submissions of the defence in this matter. Ms Downey raised a number of matters which included the following:-
1. Reed and the accused were good friends. Why, she asked rhetorically would Mr Zonta be involved in the selling of his friend’s firearms.
2. Some of Mr Zonta’s evidence was corroborated by Mr Reed.
3. The dealings between Mr Zonta and Carbone indicated a lack of sophistication. The sale of firearms is a very serious matter yet the lack of sophistication regarding the transactions speaks against the sale of firearms.
4. His protestations of innocence when confronted by the police. In addition he is prepared to admit to serious criminal conduct when giving evidence that he dealt with cannabis.
5. There is no evidence of any firearm residue at Mr Zonta’s house or on his person.
6. Criticism of what can be drawn from each of the calls when looked at on an individual basis. I do not intend to go through those as they are set out in the transcript and in the document handled up during submissions. I have considered all of the criticisms she made.
In summary, Ms Downey submitted that I might be suspicious about Mr Zonta’s evidence, but I could not exclude, at least as a reasonable possibility, the fact that he was dealing in cannabis rather than guns with Carbone. She reminded me to bear in mind the presumption of innocence and not ‘jump to conclusions’ which ‘the police have certainly done’. She suggested that the unlucky coincidences are reduced by other unusual or unexplained discussions with the Carbone family and when looked at as a whole, all of these matters rendered it ‘too uncertain’ to be sure beyond reasonable doubt.
None of her submissions, taken in isolation or together, raise a reasonable doubt about the prosecution case.
I have rejected the evidence of the accused. I reject the submissions made on behalf of the accused. The prosecution case, when looked at as a whole, is overwhelming. I find that the prosecution have proved beyond a reasonable doubt, that the only rational inference is that the accused supplied the guns to Mr Carbone as alleged.
In my view, the prosecution case is established beyond a reasonable doubt on the telephone intercepts alone (taken with the ‘common ground’ matters).
However, other evidence was led by the prosecution so I will deal with it even though it is not necessary for my decision.
DNA evidence
A DNA profile was extracted by a swab on the handle of the Para Ordnance hand gun. There were at least three contributors. The accused was not excluded as a contributor. The likelihood ratio was expressed that the profile obtained was 100 million times more likely to have come from the accused than an unknown unrelated person.
I have accepted the evidence of Mr Reed that the accused was present at his house when he cleaned guns. It is likely that the accused went to the Marksman Range with Mr Reed. He may have handled the gun.
The DNA evidence is equivocal and I ignore it.
Fingerprint evidence
I found the evidence of Mr Reed to be most unsatisfactory on the question of how he stored his guns in his safe before they were stolen. I accept some were kept in gun cases.
I find it is most unlikely that he kept others in plastic shopping bags. I am unable, as mentioned, to make that finding beyond a reasonable doubt.
I note that the five firearms, when located by police on 5 May 2011, were all individually wrapped in plastic shopping bags. There were no gun cases found.
The accused’s fingerprints were located on two of the ‘shopping bags’. I am unable to find that the ‘fingerprint’ evidence is conclusive in proving that the accused handled the plastic bags after the theft. However, it is supportive of the prosecution case but as mentioned, I have not used it in my ultimate finding.
Findings
I have considered the evidence in relation to each count separately. This is a case where, as the only issue is whether the accused was talking about cannabis or guns, practically speaking, the charges stand or fall together. That does not absolve me from considering separately, each element of each offence. I have done so.
I find proved beyond a reasonable doubt in relation to each charge that:
1. The firearm particularised in each charge is a Class H Firearm. I accept the evidence of Brevet Sergeant Sanders about that.
2. The accused had possession of the firearms, the subject of each charge. The evidence establishes that the accused had possession of the guns the subject of the charge.
The coincidence of the ‘meetings’ between the accused and Carbone followed by discussions Carbone had with other people about the guns and him showing people the guns, establish that the accused had possession of the guns. The intercepted calls establish that it was the accused who was going to ‘collect them all’ when it looked like negotiations were failing. Possession was going to revert to him.
3. The accused supplied Guido Carbone with each firearm. There is no doubt that someone supplied Carbone with the firearms. They were found in his possession. The only question was who supplied them. I have discussed the evidence which establishes in my view beyond a reasonable doubt that it was the accused who supplied each firearm to Carbone.
4. Carbone was not authorised to acquire the firearm by a permit under the Act or corresponding legislation in another State of Territory of the Commonwealth. This is established on each charge by the contents of Exhibit P19.
Verdict
I find the accused guilty of Counts 2, 3, 4, 5 and 6 on the Information.
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