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District Court 13 December 2024

R v Ahmad (No 1)

[2024] NSWDC 676

DrugsFirearms & weapons
CRIMINAL PROCEDURE — TRIAL — JUDGE

Citation: R v Ahmad (No 1) [2024] NSWDC 676
Court: District Court of New South Wales
Date: 13 December 2024
Judge: Sutherland SC DCJ

Background

The accused faced six counts on indictment following a police operation that resulted in his apprehension. The charges included possession of not less than a commercial quantity of methylamphetamine, three separate counts of possessing .22 long rifle calibre cartridges found in different areas of a motor vehicle, possession of a prohibited weapon (a .22 long rifle calibre firearm magazine), and possession of a prohibited firearm (a .22 calibre GEVARM E-1 self-loading rifle) without a licence or permit.

All of the items the subject of the charges were located inside a motor vehicle. The central factual dispute was whether the accused was the person driving that vehicle immediately before his apprehension by police. The vehicle was registered to a third party, and DNA from another person was found on the trigger area of the prohibited firearm.

The accused and the Crown jointly applied for the trial to proceed as a judge-alone trial under s 132 of the Criminal Procedure Act 1986 (NSW). The accused did not give evidence.

  • Whether the Crown proved beyond reasonable doubt that the accused was the person driving the vehicle at the relevant time
  • Whether the accused possessed the drugs and firearms found in the vehicle, applying both the common law definition of possession and the extended deeming provision under s 4A of the Firearms Act 1996 (NSW)
  • How circumstantial evidence and inferences could properly be used to establish the critical facts, including application of the Shepherd direction
  • The evidentiary significance, if any, of the failure to call two identified persons connected to the vehicle (the registered owner and the person whose DNA was found on the firearm)
  • The admissibility and use of communications evidence, including a video sent by the accused depicting the firearm

Decision

The court was required to determine whether the Crown had proved each element of each count beyond reasonable doubt, applying the applicable legal principles in a judge-alone trial pursuant to ss 132 and 133 of the Criminal Procedure Act 1986. Sutherland SC DCJ reminded himself that findings of fact could only be drawn from the evidence, that no adverse inference could flow from the accused's election not to testify, and that any circumstantial inference could only be drawn if it was the reasonable inference properly available from proven facts.

On the critical factual question, the court was satisfied beyond reasonable doubt that the accused was driving the vehicle at the relevant time. The Crown relied on a combination of surrounding circumstances, and the court applied a Shepherd direction, meaning that each intermediate fact necessary to support the ultimate finding of guilt also had to be proved beyond reasonable doubt.

The court addressed the significance of the two uncalled witnesses: the vehicle's registered owner and a person whose DNA appeared on the firearm's trigger. While the court noted it could not speculate about what those witnesses would have said, it was entitled to take into account their absence when assessing whether a reasonable doubt existed. Ultimately, that absence did not generate the requisite doubt.

The court drew on the reasoning in Joseph Sultana v R (1994) 74 A Crim R 27 to address the relationship between the drug-related communications, the firearm, and the question of possession. It found that communications on 26 December, in which the accused sent a video of the firearm inside the vehicle to reinforce a persuasive message about an apparent shortfall in quantity, were relevant to establishing his knowledge of and control over those items. Regardless of who physically placed the methylamphetamine in the vehicle, the court was satisfied beyond reasonable doubt that the accused possessed it when he drove from Churchill Street to Patterson Street. Verdicts of guilty were returned on all six counts.

Orders Made

  • Verdicts of guilty entered on all six counts in the indictment
  • The matter listed for mention on 3 February 2025, with a hearing date to be fixed in February 2025 for the matters before the court pursuant to s 166 of the Criminal Procedure Act 1986

Key Takeaways

  • The District Court confirmed that in a judge-alone criminal trial under ss 132 and 133 of the Criminal Procedure Act 1986, the judge must explicitly set out the principles of law applied and the findings of fact relied upon, consistent with AK v Western Australia (2008) 232 CLR 438 and Fleming v R (1998) 197 CLR 250.

  • Where the prosecution relies on circumstantial evidence to establish a critical fact, a Shepherd direction applies: each intermediate fact that is indispensable to a finding of guilt must itself be proved beyond reasonable doubt, not merely inferred on the balance of probabilities.

  • The failure to call witnesses who have an identified connection to a crime scene (here, the vehicle's registered owner and the person whose DNA appeared on the firearm) does not automatically create a reasonable doubt, but the court is entitled to factor in that absence when assessing the overall strength of the Crown case.

  • Under the reasoning endorsed in Sultana, evidence that a person possessed a firearm can be relevant not merely as propensity evidence but as logically probative of involvement in drug supply, where it forms part of the same transactional context.

  • Possession of items found in a vehicle does not require the accused to have physically placed those items there; proof of knowledge and control at the relevant time is sufficient to establish possession, whether under the common law definition or the extended deeming provision in s 4A of the Firearms Act 1996.

Legislation and Cases Referenced

Legislation

  • Criminal Procedure Act 1986 (NSW), ss 132, 133, 166
  • Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2), 29
  • Firearms Act 1996 (NSW), ss 4A, 7(1), 74(3)
  • Weapons Prohibition Act 1998 (NSW), s 34(1)

Cases

  • AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
  • Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
  • Fleming v R (1998) 197 CLR 250
  • He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523
  • Joseph Sultana v R (1994) 74 A Crim R 27
  • R v Tang [2008] HCA 39; (2008) 237 CLR 1
  • Shepherd v The Queen (1990) 170 CLR 573