Citation: R v Jarrod Craig Hussey [2018] NSWDC 266
Court: District Court of New South Wales
Date: 21 September 2018
Judge: Mahony SC DCJ
Background
The accused was charged with possessing a prohibited pistol on 19 November 2015 at Homebush West, contrary to section 7(1) of the Firearms Act 1996. Police executed a search warrant at a unit and recovered a 9mm Baby Eagle self-loading pistol wrapped in a beanie, along with ammunition, magazines, and personal items linked to the accused.
The accused was not the registered tenant of the premises. The central question was whether he was nonetheless in possession of the pistol through his occupancy of, or control over, the unit on the date of the search.
The trial proceeded by judge alone with the consent of both parties. The accused exercised his right to silence during police interview and did not give evidence at trial.
Legal Issues
- Whether the accused was an "occupier" of the premises within the extended definition of possession in section 4A of the Firearms Act 1996, such that the pistol was taken to be in his possession
- Whether the Crown's circumstantial case, comprising 20 individual strands of evidence, was sufficient to establish occupancy beyond reasonable doubt
- Whether the accused had discharged the statutory defence under section 4A that he did not know and could not reasonably be expected to have known that the pistol was on the premises
Decision
Issue 1: Extended Possession Under Section 4A
Section 4A of the Firearms Act provides that a person who is an occupier of premises on which a firearm is found is taken to be in possession of that firearm, unless they prove on the balance of probabilities that they did not know and could not reasonably have been expected to know it was there. The Crown relied on this provision because there was no direct evidence of the accused physically handling the pistol (at [28], [50]).
Issue 2: Was the Accused an Occupier?
The Crown advanced a "strands in the cable" circumstantial case built on 20 evidentiary matters. Taken together, these included the accused being seen at the premises with a female on 17 November 2015 (two days before the search), personal clothing and prescription medication in his name found at the premises, a fingerprint impression identified on the black metal box containing the pistol, and DNA traces from inside the beanie in which the pistol was wrapped (at [61]-[62]).
The court was satisfied beyond reasonable doubt, considering all established facts in combination, that the accused was an occupier of the premises as at 19 November 2015 (at [62]). The court noted that premises can be occupied by more than one person simultaneously, and was not persuaded that any occupancy by the accused had been terminated by the return of another person (at [62]).
Issue 3: DNA Evidence and its Weight
The DNA evidence linking the accused to the beanie was admitted over objection but the court acknowledged that, standing alone, it would have given rise to reasonable doubt. The expert appendix disclosed a possibility of secondary DNA transfer, including via contact with a police officer's shoe (at [63]). However, because the Crown's case rested on the cumulative effect of all 20 matters rather than on the DNA evidence alone, this qualification did not defeat the prosecution case (at [63]-[64]).
Issue 4: Statutory Defence
The accused gave no evidence at trial, and no other evidence was led on his behalf. There was therefore no material on which the court could find that he did not know, or could not reasonably have been expected to know, that the pistol was on the premises (at [65]). By operation of section 4A, the pistol was taken to be in his possession, and the Crown proved its case beyond reasonable doubt (at [65]-[66]).
Orders Made
- Verdict of guilty on the charge of possessing a prohibited pistol contrary to section 7(1) of the Firearms Act 1996
Key Takeaways
- Under section 4A of the Firearms Act 1996, a person found to be an occupier of premises where a firearm is located is taken to possess that firearm, and must affirmatively prove on the balance of probabilities that they did not know and could not reasonably have been expected to know of its presence (at [47], [65]).
- A "strands in the cable" circumstantial case does not require any single strand to prove guilt beyond reasonable doubt; the court assesses the cumulative weight of all established facts viewed as a whole, rather than testing each fact in isolation (at [57]-[58]).
- DNA evidence affected by a plausible mechanism of secondary transfer will carry reduced probative weight. Here, it did not defeat the prosecution because it formed only one element of a multi-strand circumstantial case (at [63]-[64]).
- An accused person's silence during police questioning and decision not to give evidence at trial cannot be used against them as an admission of guilt, to fill gaps in the Crown case, or to strengthen the prosecution's position in any way (at [24]-[26]).
- Occupancy of premises for the purposes of section 4A is not defeated merely because another person also has access to or occupies the same premises; concurrent occupation by more than one person is legally possible (at [62]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Evidence Act 1995
- Firearms Act 1996
Cases
- Fitzgerald v R [2014] HCA 28
- May v R [2012] NSWCCA 250
- Strachan v R [2017] NSWCCA 322