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District Court 14 December 2023

Jeske v R

[2023] NSWDC 565

Assault & violenceFirearms & weapons
CRIMINAL LAW APPEALS AND REVIEWS CONVICTION APPEAL FROM LOCAL COURT CRIMINAL OFFENCE BURDEN OF PROOF EXCEPTIONS AND PROVISOS

Citation: Jeske v R [2023] NSWDC 565
Court: District Court of NSW
Date: 14 December 2023
Judge: Abadee DCJ

Background

The appellant had been convicted in the Parramatta Local Court on 5 July 2023 on four sequences: possession of an unauthorised pistol (Seq 1), affray (Seq 2), and two counts of unauthorised possession of ammunition (Seq 3 and 4). He had been acquitted on two other sequences. All offences were alleged to have occurred at Guildford in September 2021.

The two incidents underlying the charges were treated separately. The affray charge arose from an incident on 5 September 2021, involving an alleged use of unlawful violence toward another person. The firearm and ammunition charges arose from a search of the appellant's rented premises on 10 September 2021, during which a pistol and ammunition were found concealed in a beanie inside the kitchen range hood. The appellant's DNA was detected on the pistol's magazine.

The appellant appealed all four convictions to the District Court. The appeal proceeded as a rehearing on the certified transcripts and exhibits from the Local Court. A notable procedural complication was that no transcript of the Magistrate's reasons was available, meaning the District Court could not assess what, if any, demeanour-based credit findings had influenced the outcome below.

  • Whether the prosecution had proven the element that the appellant was "not authorised by a licence or permit" to possess the pistol (an issue raised at the hearing but not in written submissions)
  • Whether the appellant knew he was in possession of the pistol, having regard to the evidentiary exception in s 4A of the Firearms Act 1996 (NSW)
  • Whether the appellant used unlawful violence toward the complainant so as to satisfy the elements of affray under s 93C(1) of the Crimes Act 1900 (NSW)
  • Whether the appellant knew he was in possession of the ammunition the subject of Seq 3 and Seq 4

Decision

Sequence 1 (Unauthorised possession of a pistol): Abadee DCJ set aside this conviction. The prosecution had not proven that the appellant lacked a licence or permit authorising him to possess the pistol, an element the Crown was required to establish. Although this issue had not been raised in the written submissions, it was ventilated at the hearing and proved fatal to the conviction. The court did not, however, treat this as precluding the firearm evidence from being relevant to the ammunition charges.

Sequence 2 (Affray): The District Court confirmed this conviction. CCTV footage and an intercepted telephone call formed the prosecution's evidentiary foundation. The court reviewed those materials, including the CCTV footage shown during the appeal hearing. His Honour was satisfied, applying the elements of s 93C(1) and the principles drawn from Colosimo v DPP (NSW) and I v Director of Public Prosecutions, that the appellant had used unlawful violence toward the complainant in circumstances that would have caused a person of reasonable firmness to fear for their personal safety.

Sequences 3 and 4 (Unauthorised possession of ammunition): The convictions on both counts were confirmed. The location of the appellant's DNA on the magazine of the pistol, which was loaded with the ammunition in question and concealed in the appellant's beanie within his rented premises, was described as compelling evidence. The appellant's alternative hypotheses, grounded in his own testimony, did not raise a reasonable doubt. The court also found the DNA evidence relating to a CD case found at the same premises (directed primarily to Seq 4) to be cross-admissible in relation to Seq 3. The parties agreed at the appeal hearing that no logical basis existed for a different outcome between the two ammunition sequences.

Orders Made

  • The appeal was partly allowed.
  • The conviction for Sequence 1 (possession of an unauthorised pistol) was set aside.
  • The convictions for Sequences 2, 3, and 4 (affray and two counts of unauthorised possession of ammunition) were confirmed.

Key Takeaways

  • Under s 7(1) of the Firearms Act 1996 (NSW), the prosecution bears the burden of negativing the existence of a licence or permit authorising possession; failure to prove this element is fatal to a conviction, even where other evidence of possession is compelling.
  • The District Court confirmed that the affray offence under s 93C(1) of the Crimes Act 1900 (NSW) can be committed by a single individual acting alone, provided the use of unlawful violence is directed at a person present and would cause a person of reasonable firmness to fear for their safety.
  • Forensic DNA evidence linking an accused to a component of a firearm (here, the magazine) found within premises of which the accused was the sole tenant can constitute compelling proof of knowing possession of ammunition loaded into that magazine.
  • Evidence held primarily admissible in relation to one charge may also be cross-admissible in relation to a separate but factually related charge on the same indictment.
  • The absence of a transcript of the Magistrate's reasons created a forensic limitation in this appeal: the District Court could not identify what demeanour-based credit findings, if any, had influenced the outcome below, which affected the application of ordinary appellate principles regarding witness credibility.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 65(3), 93C(1)
- Firearms Act 1996 (NSW), ss 4A, 7(1), 87(a)
- Road Transport Act 2013 (NSW), s 53
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
- Public Order Act 1986 (UK), ss 3(1), 6(2), 8

Cases:
- Colosimo v DPP (NSW) (2005) 64 NSWLR 645
- Dowling v Bowie (1952) 86 CLR 136
- I v Director of Public Prosecutions [2002] 1 AC 285
- R v Raabe (1985) 14 A Crim R 381
- R v Scott [2023] NSWDC 271
- Vines v Djordjevitch (1955) 91 CLR 512
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- Lunney v DPP (2021) 105 NSWLR 236
- Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253