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District Court 8 November 2019

Grierson v R

[2019] NSWDC 669

Fraud & dishonestyFirearms & weapons
CRIMINAL CONVICTION APPEAL CIRCUMSTANTIAL EVIDENCE CREDIT OF WITNESSES.

Citation: Grierson v R [2019] NSWDC 669
Court: District Court of New South Wales
Date: 8 November 2019
Judge: Abadee DCJ

Background

The appellant was convicted in the Burwood Local Court on 25 February 2019 of two offences: possession of identification information with intent to commit fraud (under s 192K of the Crimes Act 1900 (NSW)), and unauthorised possession of a prohibited firearm (under s 7 of the Firearms Act 1996 (NSW)). He appealed both convictions to the District Court.

The offences arose from events in September 2017 at an Airbnb property in Newtown. The appellant had obtained access to the property by falsely identifying himself as the registered guest, Troy McDonald. A property manager, Ms Deacon, discovered a bag containing financial documents in multiple names at the property, as well as what appeared to be a gun in a holster in a bedroom. She removed the firearm and reported the matter to police.

When police attended the property, the appellant again initially identified himself as Troy McDonald. He was only identified as Alexander Grierson when officers sighted his passport. During that initial exchange, the appellant made a remark identifying the item in question as a "lighter," which the District Court treated as significant in establishing his awareness of the firearm's presence on the premises.

  • Whether the documents in the appellant's possession constituted "identification information" for the purposes of s 192I of the Crimes Act 1900 (NSW)
  • Whether the appellant possessed that identification information with the intention of committing fraud
  • Whether the appellant was in possession of a prohibited firearm (including an imitation firearm) within the meaning of s 7 and s 4A of the Firearms Act 1996 (NSW)
  • Whether the appellant could rely on the exception in s 4A(b) of the Firearms Act, which excuses possession where a person did not know and could not reasonably have been expected to know the firearm was on the premises

Decision

Identification information offence: The appellant's counsel conceded at the appeal that the documents found in his possession satisfied the definition of "identification information" under s 192I of the Crimes Act. These included a credit card in one name and bank and credit statements in another. The remaining question was whether the appellant possessed that information with the specific intention of committing fraud. Abadee DCJ found, on the circumstantial evidence, that the Crown had established this element beyond reasonable doubt.

Firearms offence: The central dispute was whether the appellant knew the imitation firearm was present at the Newtown property. Under s 4A of the Firearms Act, a firearm is taken to be in the possession of a person if it is on premises they occupy or manage, unless the court is satisfied the person did not know and could not reasonably have known it was there. The District Court rejected the appellant's claim of ignorance.

The Court placed particular weight on the appellant's spontaneous identification of the item as a "lighter" when police first raised the subject of a gun. This response, in the Court's assessment, demonstrated not merely that the appellant knew of the object's existence but that he understood police were inquiring about its presence in premises he occupied or managed. The Court also preferred the evidence of the police officers over the appellant's account in resolving contested factual matters, noting the Magistrate's advantage in assessing demeanour.

The Court accordingly found both offences proved to the requisite standard and dismissed the appeal.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • A conviction appeal to the District Court under s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) proceeds by way of rehearing on the Local Court record; the appellate court must give the judgment it thinks should have been given at first instance, but must recognise its disadvantage in assessing witness credibility compared to the original tribunal.
  • Under s 4A of the Firearms Act 1996 (NSW), a firearm is presumed to be in a person's possession if it is on premises they occupy or manage; the person must satisfy the court they lacked knowledge of its presence to displace that presumption.
  • The District Court held that a defendant's spontaneous, accurate identification of a concealed item during a police inquiry can constitute evidence of knowledge sufficient to defeat the s 4A(b) exception, even where the specific words of the exchange are disputed.
  • Possession of identification information under s 192K of the Crimes Act 1900 (NSW) is a specific intent offence; the Crown must prove the defendant held the information with the intention of committing or facilitating an indictable offence, in this case fraud.
  • In dismissing the appeal, the Court applied the principle from Baden-Clay that circumstantial evidence may support a finding of guilt where the circumstances are inconsistent with any reasonable hypothesis of innocence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192I, 192K, 428B
- Firearms Act 1996 (NSW), ss 4, 4A, 4D, 7
- Crimes (Appeal and Review) Act 2001 (NSW), s 11

Cases:
- Charara v R (2006) 164 A Crim R 39
- Fox v Percy (2003) 214 CLR 118
- The Queen v Baden-Clay (2016) 258 CLR 308