Sclaptsi v The King - [2022] SASCA 122

Supreme Court of South Australia
(Court of Appeal: Criminal)
SCLAPTSI v THE KING
[2022] SASCA 122
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)
1 December 2022
CRIMINAL LAW - EVIDENCE
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - OFFENCES - POSSESSION OR USE GENERALLY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRESUMPTIONS
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DEFENCES
CRIMINAL LAW - PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS
Appeal against conviction.
The appellant was charged on Information in the District Court with one count of Aggravated Possession of a Firearm Without a Licence (Count 1) and one count of Trafficking in a Controlled Drug (Count 2). He elected to be tried by judge alone.
The appellant denied any knowledge of the presence of the firearm and cannabis which were found in a cavity between the roof and the ceiling in the appellant's shed.
The trial Judge, in his reasons, first considered Count 2. His Honour was not satisfied beyond reasonable doubt that the appellant knew that the cannabis was in the ceiling cavity however, his Honour found on the balance of probabilities that the appellant had falsely denied any knowledge of the presence of the cannabis and firearm. Accordingly, the Judge acquitted the appellant on Count 2.
The Judge convicted the appellant on Count 1. The verdict of guilty on Count 1 was based on the Judge's finding that the appellant was an occupier of the property on which the items were found and the rejection of the appellant's evidence that he was unaware of the presence of the firearm. In rejecting the appellant's evidence, his Honour relied on his earlier finding that the appellant had falsely denied any knowledge of the presence of the cannabis and firearm.
The appellant appeals on three overlapping grounds of appeal. The primary issue on appeal is whether it was open to the trial Judge to rely, in support of the verdict of guilty on Count 1, on a finding that the appellant knew that the cannabis was in the shed when the Judge acquitted the appellant on Count 2.
Held (by the Court), dismissing the appeal:
1. The appellant was not denied the benefit of the 'earlier acquittal'.
2. The tension between the verdicts is a product of the different onus applicable on each count on the element of the appellant's knowledge of the presence of the firearm and cannabis.
3. The principle that the accused must be given the benefit of an earlier acquittal has no application on a concurrent trial of several offences before a judge alone.
Controlled Substances Act 1984 (SA); Firearms Act 2015 (SA) ss 6(2)(d), 6(3)(a), referred to.
Garrett v The Queen (1977) 139 CLR 437, distinguished.

SCLAPTSI v THE KING
[2022] SASCA 122
Court of Appeal – Criminal: Kourakis…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Sclaptsi v The King [2022] SASCA 122
Case: [2022] SASCA 122
Decision Date: 1 December 2022

CaseChat Overview and Summary

The appeal concerned Mr Sclaptsi, who was tried before a judge alone on charges of aggravated possession of a firearm and trafficking cannabis. The dispute arose from the verdicts returned by the judge, which Mr Sclaptsi argued were inconsistent.

The court was required to determine whether the verdicts were legally inconsistent, particularly in light of the principle that an accused should benefit from an earlier acquittal. It also had to consider the application of reverse onus provisions in relation to the firearm offence and whether the judge's findings on the cannabis trafficking charge contradicted the acquittal on that count.

The court reasoned that the verdicts were not inconsistent because the elements of the aggravated possession of a firearm offence did not require proof of knowledge of the cannabis. The prosecution had discharged its onus of proof for the firearm offence through the uncontested fact of Mr Sclaptsi's occupancy of the premises. The judge's adverse finding on the balance of probabilities regarding the cannabis trafficking charge was used solely to reject the defence on the firearm count, where Mr Sclaptsi bore the onus of proof. Furthermore, the principle of benefiting from an earlier acquittal was held to be inapplicable in a trial by judge alone where multiple offences are heard concurrently.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Sclapsti’s appeal must be dismissed. The verdicts are explained by the reverse onus of proof applicable on the first count which was engaged by reason of the uncontested fact that Mr Sclaptsi was the occupier of the premises. Mr Sclaptsi was not denied the benefit of the ‘earlier acquittal’ on the second count for several reasons. First, in form at least, the verdict first returned at the end of the Judge’s reasons was the verdict of guilty on the firearms offence. Secondly, the finding that Mr Sclaptsi had falsely denied he knew of the presence of the cannabis was not used in proof of the elements of the offence of aggravated possession of the firearm. The prosecution case was proved by the uncontested fact that Mr Sclaptsi occupied the premises in which the firearm was found. Accordingly, the finding that the prosecution had proved those elements of the aggravated firearms offence in respect of which it carried an onus, did not contradict Mr Sclaptsi’s acquittal on the trafficking count. The adverse finding made on the balance of probabilities on the trafficking count was used only to reject the defence case on the firearms count on which Mr Sclaptsi carried the onus of proof. Thirdly, the principle that an accused must be given the benefit of an earlier acquittal has no application on a concurrent trial of several offences before a judge alone. The evidence Relevantly to the matters raised on the appeal, the following facts were agreed at trial:1.As at 31 January 2018, Mr Sclaptsi was the sole occupant of the premises. 2.The vegetable matter which the police testified they found in the ceiling of the shed on the premises was cannabis and had a total weight of 852 grams.3.The firearm found in the roof of the shed was a self-loading rifle. The barrel and timber stock of which had been reduced in length. The firearm was loaded with a magazine containing 15 live Winchester Super X rounds of 22 calibre ammunition.4.As at 31 January 2018, Mr Sclaptsi was not the holder of a firearms licence.5.Neither fingerprints nor DNA were found on the plastic bags containing the cannabis nor on the firearm.6.In January 2018, SAPOL received two separate intelligence reports that Mr Sclaptsi was trying to sell a gun which he kept in his garage. The last mentioned fact was presumably agreed by Mr Sclaptsi because it was thought to support Mr Sclaptsi’s defence that he had been set up. When police attended on 31 January 2018, they scaled fences to enter Mr Sclaptsi’s rear yard believing the roller door at the front was locked. They found that a shed in the rear yard was unlocked. It was divided into four rooms, two of which had been set up for growing cannabis hydroponically. Police gained access to the roof cavity by standing on a filing cabinet which was in one of the other rooms. There was a narrow gap between the roof and ceiling. There they found the cannabis and the firearm. The firearm was in a black drawstring bag, which was, in turn, wrapped in a green plastic rubbish bag and sealed with black electrical tape. In the house police located implements for the smoking of cannabis, digital scales and small plastic bags.

Decision

Reasons for decision

This case does not fall within the principle stated in the first underlined sentence because the finding that Mr Scalptsi had not proven that he was ignorant of the presence of the firearm, and the cannabis, did not tend to overturn the verdict of not guilty on the cannabis trafficking charge. That is so because the elements necessary to support a conviction on the former did not include knowledge of the presence of the firearm, let alone of the cannabis. Nor could the verdict of not guilty on the cannabis charge support a plea of autrefois acquit in the way described in the second and third underlined sentences. Those conclusions do not apply to a trial by judge alone in which both counts are heard together. The apparent tension between the inscrutable verdicts of a jury dissipates in the face of the reasons of a trial judge which explain the contrasting verdicts by reference to the onus of proof.Conclusion We would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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