Citation: R v Kabbout [2020] NSWDC 707
Court: District Court of New South Wales
Date: 24 August 2020
Judge(s): Buscombe DCJ
Background
The accused stood trial on three counts arising from a police search of a vehicle on 23 August 2017 at Rosehill. Inside a concealed compartment behind the dashboard, police found 27.71 grams of cocaine and a .32 calibre Fabrique Nationale model 1910 self-loading pistol. The accused was not in the vehicle at the time; his brother and another man were seated inside, and one of them held the keys.
The vehicle had been purchased in July 2017 in the name of a company of which the accused was the sole shareholder, director and secretary. That company was also the registered operator of the vehicle under the Road Transport Act 2013 at the relevant date. The Crown's case rested entirely on circumstantial evidence: no direct evidence placed the accused in or near the vehicle on the day of the search.
The three counts were: supply of a prohibited drug (cocaine); possession of a prohibited pistol without authorisation; and possession of a firearm in contravention of a Firearms Prohibition Order. The trial proceeded before the judge alone, without a jury.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused had sole or exclusive possession of the cocaine found in the hidden compartment, so as to engage the deeming provision in s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) (which deems possession of more than a trafficable quantity to be possession for supply)
- Whether the Crown proved beyond reasonable doubt that the accused possessed the prohibited pistol, either under the common law concept of possession or under the extended definition in ss 4 and 4A of the Firearms Act 1996 (NSW)
- Whether, if count 2 (possessing the pistol) was established, count 3 (possessing a firearm in breach of a Firearms Prohibition Order) necessarily followed
Decision
Buscombe DCJ applied the standard criminal directions applicable to a judge-alone trial, including the requirement that the Crown prove guilt beyond reasonable doubt, and self-directed on the care required when drawing inferences against an accused in a purely circumstantial case. His Honour noted that neither of the two men found in the vehicle was called as a Crown witness, and gave that absence appropriate weight in assessing whether the Crown had discharged its burden.
On the firearm counts, the Crown argued that ss 4 and 4A of the Firearms Act extended the concept of possession to cover the accused's circumstances as registered operator of the vehicle. His Honour rejected this construction, finding that s 4A was not engaged on the facts presented. The DNA of the accused was detected on the pistol grip, but at least one other contributor's DNA was also present on the same item, and His Honour declined to place significant weight on that finding alone. The fingerprints of the other man found in the vehicle were found on a medicine bottle containing ammunition, and no DNA or fingerprints of the accused were found on the cocaine bag or the bag in which the firearm was stored.
On the drug count, His Honour found that the Crown had not proved beyond reasonable doubt that the accused knew of the cocaine or held sole possession of it. The accused was absent from the vehicle, his brother had a criminal history for drug offending, the DNA of an unidentified male was found on the cocaine bag, and nothing linking the accused to the drugs was found at his home. Because exclusive possession was not established, the s 29 deeming provision could not be invoked. His Honour entered verdicts of not guilty on all three counts.
Count 3 was dependent on count 2: His Honour confirmed that because the Crown had not proved possession of the firearm, a not guilty verdict on count 3 followed as a matter of course.
Orders Made
- Accused found not guilty on count 1 (supply prohibited drug)
- Accused found not guilty on count 2 (possess prohibited pistol)
- Accused found not guilty on count 3 (possess firearm in contravention of a Firearms Prohibition Order)
Key Takeaways
- A finding of sole or exclusive possession is a prerequisite before the deeming provision in s 29 of the Drug Misuse and Trafficking Act 1985 can be applied; where two or more persons had apparent access to a concealed compartment, that threshold may not be met.
- Mixed DNA profiles on a seized item do not, without more, establish that any single contributor had possession of that item; the District Court declined to treat a partial DNA match as sufficient proof of exclusive control.
- Under the Crown's theory in this case, ss 4 and 4A of the Firearms Act 1996 were argued to extend possession to a registered operator of a vehicle in which a firearm was found. The District Court rejected that construction on the facts before it, though the precise scope of those provisions was central to the contested legal argument.
- Where no adverse inference is available from an accused's silence at interview or silence at trial, and where two other persons with apparent connections to seized items were not called as Crown witnesses, the cumulative evidential gaps can be fatal to a circumstantial Crown case.
- Count 3 (breach of a Firearms Prohibition Order) was entirely dependent on the establishment of count 2; acquittal on the possession charge necessarily produced acquittal on the prohibition order charge.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 29
- Firearms Act 1996 (NSW), ss 4, 4A, 51D
- Criminal Procedure Act 1986 (NSW), s 133
- Weapons Prohibition Act 1998 (NSW)
- Road Transport Act 2013 (NSW)
- Interpretation Act 1987 (NSW), ss 8, 21, 33
- Firearms Amendment Trafficking Act 2001 (NSW)
Cases:
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Mahmoud v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- Beckwith v R (1976) 135 CLR 569; [1976] HCA 55
- Gardiner v R [2002] NSWCCA 190
- May v R [2012] NSWCCA 250
- R v Bartuccio [2017] NSWDC 286
- R v Wood [2019] NSWDC 778