District Court New South Wales Medium Neutral Citation: R v Jarrod Craig Hussey [2018] NSWDC 266 Hearing dates: 18-19 September 2018 Decision date: 21 September 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Verdict of guilty Catchwords: Possession of prohibited pistol not authorised by licence or permit Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Firearms Act 1996 Cases Cited: Fitzgerald v R [2014] HCA 28 May v R [2012] NSWCCA 250 Strachan v R [2017] NSWCCA 322 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Jarrod Craig Hussey (Offender) Representation: Counsel: E James (Offender) Solicitors: S Fliegner (Crown Solicitor) File Number(s): 16/376026 Publication restriction: Nil Judgment on verdict 1. Jarrod Craig Hussey is charged that on 19 November 2015 at Homebush West in the State of New South Wales, he did possess a prohibited pistol, namely, 9mm IMI Baby Eagle pistol, not being authorised to do so by a licence or permit. The charge is brought pursuant to s 7(1) of the Firearms Act 1996. By consent, the trial proceeded to be heard by Judge alone on 18 and 19 September 2018. This judgment records my verdict and my reasons for reaching that verdict. 2. The elements of the offence are as follows: 1. On 19 November 2015 at Homebush West, 2. The accused did possess a prohibited pistol, namely, 9mm IMI Baby Eagle pistol, 3. Not being authorised to do so by a licence or permit. 1. The Crown bears the onus of proving the charge beyond reasonable doubt. That involves proving each of the elements listed above beyond reasonable doubt. 2. The accused is entitled to the presumption of innocence. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference. The Crown case 1. The Crown case was mainly a documentary case which included the Crown brief of evidence, which became Ex A. It comprised 42 separate items of evidence which are referred to as Exs A1 through to A42. 2. The Crown case included two DVD's containing film of a search warrant carried out at premises being Unit 17, 11/19 Mandemar Avenue, Homebush West, on 19 November 2015 ("the premises"). A description of that evidence appears below. The Crown also called the Officer in Charge, Detective Senior Constable Timothy Hedley, and Detective Senior Constable Stephen Seymour, who was responsible for filming the execution of the search warrant by way of a hand‑held camera. His evidence is also referred to below. 3. Exhibit A included the following witness statements which were not challenged by cross-examination: 1. Statement of Lakynn King dated 19 November 2015 (Ex A1). Ms King gave evidence that she had been in an intimate relationship with Marcus Klomegah from May 2015 until about August 2015. On 6 August 2015 she stated that she had been in a car outside premises in Homebush West, when Mr Klomegah had shown her a black gun, which she described as looking "similar to one the police carry". She never saw the gun again. Ms King also stated that on 7 August 2015 she signed a lease for an apartment at 17/11 Mandamar Avenue, Homebush West, as a co-lessee with Mr Klomegah. She helped Mr Klomegah move all of his clothing and kitchenware into the unit, but did not move any of her own property in. Their relationship ended on 24 August 2015, and she did not return to the unit thereafter. She had made attempts to have her name removed from the lease, however, at the time of making her statement, had been unable to do so, as Mr Klomegah had not signed forms which allowed her to do so. Ms King was shown photos of a black gun seized during the execution of the search warrant on those premises on 19 November 2015. She described the two photos as being "of a black gun which looks very similar to the black gun that Marcus showed me on 6 August 2015". 1. Statement of Melinda Seeto dated 2 December 2015 (Ex A2) Ms Seeto was the managing agent of the premises and stated that on 7 August 2015 Lakynn King and Marcus Klomegah signed the residential tenancy agreement with Lakynn King listed as the primary tenant, and Marcus Klomegah as the secondary tenant. On 7 September 2015 she had conducted an inspection of the premises and for that purpose had met Mr Klomegah at the premises. It was a two bedroom unit, and in one bedroom there was a bed, furniture and men's clothes in the wardrobe. The other bedroom had no bed in it, however, there were clothes in the wardrobe. On 17 November 2015, Ms Seeto attended the premises to speak to Mr Klomegah about paying his rent. On that occasion she gained access to the premises and saw a female in them and a caucasian male with reddish hair, a full beard, wearing no shirt and a tattoo on his chest saying "This is the life I have chosen". She had a conversation in which she said to that male; "Marcus hasn't been paying his rent and he is not here, so who are you?" The male said: "Jarrod" Ms Seeto: "Are you the person who I'm supposed to be talking to to collect the rent?" The male: "Yeah, yeah you can talk to me, I'm best mates with Marcus and I treat him like my own brother. In fact I just paid his rent a couple of days ago." Ms Seeto: "So you are living here now?" The male: "No but I come here quite often every now and then." Ms Seeto: "But you look very comfortable here. You look like you stay here." The male: "No, no I just hang around for a bit until Marcus comes back." Ms Seeto: "Oh so what time does he usually come back?" The male: "He should be here soon, around 8.30. He finished work between 7.30 and 8." Ms Seeto: "Well should I just wait here?" The male did not reply. Ms Seeto: "I'll leave now and maybe come back later, or can I get you to talk to Marcus about his rent?" At 8.05pm on the same day, Ms Seeto returned to the premises and Mr Klomegah began texting her about paying rent for the premises. A copy of the text messages on 17 and 18 November 2015 are attached to her statement. In one of those texts sent at 9.30pm on 17 November 2015, Mr Klomegah said: "Also can Jarrod be left out of this, as he isn't on the lease agreement or anything." On Wednesday 18 November 2015 at 12.46pm, in another text message, Mr Klomegah asked: "Can some take over the lease if possible?" (sic) In a reply text at 3.01pm that day, Ms Seeto stated: "Also could you please let us know what do you been by having someone else take over the lease?" (sic) In reply, Mr Klomegah stated: "I mean my friend who was there want to be on the lease and continue the lease period is that possible?" By text at 9.58pm that day, Ms Seeto replied: "As for replacing Lakynn with your friend Jarrod, I'll have to ask my company and get back to you tomorrow." Mr Klomegah replied: "Okay thank you." The residential tenancy agreement between Ms King and Mr Klomegah and Mr and Mrs Seeto was Ex 5. It provided that no more than four persons may ordinarily live in the premises at any one time. Also included in the police brief were the Rental Bond Board records in respect of the premises, which recorded that the bond was refunded to Mrs Seeto on 4 December 2015. 1. Statement of Detective Senior Constable Timothy Hedley dated 8 February 2017 (Ex A8) It attached the documents authorising the search warrant, and it was through Detective Senior Constable Hedley that the DVD of the execution of the warrant was played. Also attached to his statement were six photographs, however, photographs numbered 6 and 7 were ruled inadmissible. Photographs 1 to 3 were of the pistol, ammunition and magazine, together with other items revealed during the police search of the premises. Also attached was a sketch plan of those premises, identifying where each of 13 items were discovered during the execution of the search warrant in bedroom 1 (without the bed), and bedroom 2 in those premises. Relevantly, the black beanie containing the pistol was discovered in bedroom 2, partially under the left-hand side of the bed. 1. The Crown case also included statements from the police officers involved in the execution of the search warrant (Exs A18 to A21), together with photographs of the exhibits collected (Ex A22). They included photographs of an Australian Defence Credit card in the name of the accused located in bedroom 1; a photograph of contents of a drawer containing a grey plastic bag containing a magazine with 10 rounds of ammunition, together with a cardboard box containing medication prescribed in the name of the accused; a photograph of a black metal box containing a resealable bag full of blue and red coloured capsules, also found in bedroom 1; photographs of substances found wrapped in plastic bags and set of scales found in bedroom 2; and photographs of a vest referred to as "colours" identifying the Lone Wolf motorcycle club 2. The Crown case relied on the following expert evidence. First, a statement by Ms K A Bujtor dated 3 October 2016. Ms Bujtor is a fingerprint expert and her qualifications were not challenged. She examined various items including the black metal box, (referred to as F1), for fingerprints, and also a number of items for DNA analysis. She also listed a number of items which were forensically examined by crime scene officer Suzannah Pietrantonio. Twenty‑six pages of photographs detailing the forensic examinations were annexed to her statement and became Ex A27. 3. Exhibit A28 was a certificate of analysis pursuant to s 177 of the Evidence Act 1995, under the hand of Ms Alexandra Bate, dated 30 August 2016. Ms Bate, whose qualifications were not challenged, made a comparison of 14 swab samples referred to as R1 to R14, for comparison with buccal samples provided by Mr Ethan Stevenson, Mr Marcus Klomegah and the accused. Relevantly, the Crown relied on the following evidence of Ms Bate: "R11 XF000904978. Tape lift conducted on inside left armpit of OMCG vest X0002113693 A mixed DNA profile was recovered. The major component of this mixture has the same profile as Jarrod Hussey (barcode No. XPS00210073). It is greater than 100 billion times more likely to obtain this major profile if it originates from Jarrod Hussey, rather than if it originates from an unknown, unrelated individual in the Australian population. Due to the low level and complexity of the minor component, further interpretation has not been carried out." R14 XF00090481. Tape lift conducted on the inside area of the black beanie – X0002113685 A mixed DNA profile was recovered. The major component of this mixture originates from an unknown female (individual "C"). Jarrod Hussey (barcode No. XPS00210073) cannot be excluded as a minor contributor to this mixture. Assuming three contributors to this mixture, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from Jarrod Hussey and two unknown, unrelated individuals, rather than if it originates from three unknown, unrelated individuals in the Australian population. Due to the low level and complexity of the additional contributor, further interpretation has not been carried out." 1. Objection was taken to the second item referred to above, but the evidence was ruled admissible (see separate judgment). 2. Attached to the certificate of Ms Bate was an Appendix entitled "Overview of Procedures and Methods used in Forensic Biology/DNA Laboratory, NSW Forensic & Analytical Science Service". It included, under the sub-heading, "Transfer and Persistence of DNA", a commentary on transfer of DNA, either by physical touch or contactless transfer of body fluid, and also indirect transfer via an intermediary, known as "secondary transfer". The paragraph concluded: "Generally, when individuals have been in direct or indirect contact with each other in social or household environments, the possibility that secondary transfer of DNA occurred will be considered reasonable and therefore there may be little evidentiary value to the recovery of DNA from a specified individual." 1. The Crown case included a statement of Michael Murray dated 29 May 2017. Mr Murray is a fingerprint expert and his qualifications were not challenged. He compared the fingerprint images referred to in the statement of Ms Bujtor, referred to above, and in respect of the black metal box, referred to as F1 identified on the base of the box, a fingerprint impression of the accused. 2. The Crown case also included an expert certificate pursuant to s 177 of the Evidence Act 1995 of David Martin Andreatta, a forensic ballistics investigator whose qualifications were not challenged. He examined the Baby Desert Eagle self-loading pistol with the serial number obliterated, the two detachable magazines and 18 cartridges discovered in the premises during the execution of the search warrant. Examination of those exhibits revealed that the pistol was in working order and in his opinion, the pistol was a pistol as defined in s 4(1) of the Firearms Act 1996. The detachable box magazines had a capacity to hold ten 9mm cartridges and the 18 cartridges examined were designed for use in weapons chambered for such 9mm cartridges and were suitable for use in the pistol. In his opinion, the cartridges were ammunition as defined in s 4(1) of the Firearms Act 1996. 3. Exhibit A contained an ERISP transcript of an interview conducted on 15 December 2017 with the accused. That transcript records that having been cautioned, the accused did not answer any questions put to him by the investigating police officers. Also relied on by the Crown was an ERISP transcript of an interview conducted with Marcus Klomegah on 17 December 2015, and again, having been cautioned, Mr Klomegah declined to answer questions put to him by the investigating police officers. 4. Exhibit A40 was a letter from TKL Holdings Australia Pty Limited dated 14 July 2016, that confirmed that the accused was employed by that corporation on a casual basis on 2 September 2015 as a truck driver. 5. Exhibit A41 was a further statement of Detective Senior Constable Hedley outlining the custody of the black beanie located in bedroom 2 of the premises during the execution of the search warrant, and the subsequent obtaining on 19 January 2016 of a further exhibit labelled "tape lift conducted on the inside area of black beanie". That tape lift was subject to the DNA analysis conducted by the expert Ms Bate, and referred to above. 6. Finally, the Crown case included three certificates under s 87 of the Firearms Act 1996, certifying that the accused was not, on 19 November 2015, a holder of a licence or permit authorising possession of a prohibited firearm, under Schedule 1 of the Firearms Act 1996; that he was not, on 19 November 2015, the holder of a firearms licence or permit in New South Wales which authorised the possession, or use of firearms; and thirdly, that he was not, on 19 November 2015, the holder of a firearms licence or permit in New South Wales which authorised the possession of ammunition (Ex A42). 7. There was no evidence adduced by, or on behalf of, the accused. Directions of Law 1. Section 133 of the Criminal Procedure Act 1986 provides as follows: "133(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter." 1. The first direction of law that I give myself is the direction as to the right of the accused, Jarrod Hussey, to silence, namely to not answer questions put to him by police. All people in this country have a right to silence – that is, to choose not to answer questions put to them by the Police. That is what the Police Officer told the Accused when he was asked if he wanted to answer their questions. 2. There are some exceptions to this right, for example, when a Police Officer asks the legal owner of a car, who was driving it at the time of a traffic offence. But those exceptions do not apply here. 3. In this case, it would be quite wrong if the Accused, having listened to what the Police said, and having decided to exercise his right of silence, later found that a jury, or judge sitting as trier of fact, was using that fact against him. I must not do that. 4. It is important, therefore, that I bear in mind that Jarrod Hussey's silence cannot be used against him in any way at all. The fact that he took note of the question given to him by Police and made no comment cannot be used against him at all. Under our law, an Accused person has a right to silence. 5. The next direction I give myself concerns the election of the accused not to give evidence. The accused has not given any evidence in response to the Crown's case. There are a number of important directions of law which I must give myself in relation to that fact. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. As I have already pointed out, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged. The accused bears no onus of proof in respect of any fact that is in dispute. I remind myself that he is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required. 6. I direct myself, as a matter of law, that the accused's decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. 7. Other directions which are relevant to my determination concern the nature of the Crown case and the particular charge on the Indictment. They are included in my determination, as outlined below. First, however, I will summarise the submissions made on behalf of the parties. The Crown submissions 1. In establishing the charge on the Indictment, namely, that the accused did possess a prohibited pistol, the Crown submitted that at the time of the execution of the search warrant on 19 November 2015, the accused was an "occupier", or "in the care", or "control" of the premises. The reason for that, is found is s 4A(1) of the Firearms Act 1996, which provides an extended definition of "possession". 2. The Crown submitted that the accused was more than a mere casual visitor to the premises, and relied on the following 20 matters, and on the combined effect of all 20 matters to prove possession in accordance with s 4A of the Firearms Act 1996. The 20 matters are as follows: 1. Present at the address, partly undressed, two days earlier on 17 November. 2. With the female emerging from the area of the toilet. 3. With distinctive property - the Lone Wolf colours - belonging to the accused (DNA) in a wardrobe on 19 November. 4. With male toiletries in the main bedroom, in the plan, bedroom 2. 5. Within the same room a female wig. 6. With medication belonging to the accused in the other bedroom - bedroom 1. 7. With the black metal box in the bottom drawer of the set of drawers - in bedroom 1 - linked to the accused with a fingerprint. 8. This same metal box containing a large amount of capsules. 9. The accused worked at TKL Holdings - TKL Holdings clothing in bedroom 2 - numerous items of this work wear. 10. Electrical power board, and small appliance/telephone charger on the floor beside the bed. Double candles at the other side atop a bed side cabinet. 11. Accused's statement that he paid the rent (SEETO para 8). 12. Accused's statement that he treats the lease holder Marcus Klomegah "like my own brother" - Crown submits that this makes it much more likely that the accused had access to the address while Klomegah was away for work. 13. Accused's statement that "I come here quite often every now and then" with "I just hang around for a bit until Marcus comes back" - places the accused in care or control or as occupier - while Klomegah is away. 14. With this statement - "I just hang around for a bit until Marcus comes back" set with Marcus's statement "I work away and I come back every fortnight" (Seeto SMS extracts p3) -the accused is indeed much more than a mere casual visitor. 15. Klomegah in the SEETO SMS messages (p6) asking for the accused "Jarrod" to "be left out" - as he is not on the lease - but at p8 asking 'can some [one] take over the lease if possible' - then at 9 asking "I mean my friend who was there want to be on the lease and continue the lease period. Is that possible" — this or the reply was sent the day before the search warrant - ie on 18 November at 9-58pm. 16. Then the reply "As for replacing Lakynn with your friend Jarrod..." she would get back to Klomegah the next day. 17. The spread of the accused's property and effects across both bedrooms - in combination with his relaxed 'at home' appearance on 17 November - in combination with the female friend coming from the toilet area. 18. The accused's connection to the beanie - wrapped around the pistol: The major component of this mixture originates from an unknown female (individual 'C'). Jarrod HUSSEY...cannot be excluded as a minor contributor to this mixture. Assuming three contributors to this mixture, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from Jarrod HUSSEY and two unknown unrelated individuals, rather than if it originates from three unknown, unrelated individuals in the Australian population..." 1. The location of the beanie - arms reach beside the bed, very close to the power board and charger. 2. The beanie used to wrap around the pistol. 1. In so submitting, the Crown relied on the Court of Criminal Appeal's judgment in May v R [2012] NSWCCA 250, where McClellan CJ at CL, (with whom Johnson and Bellew JJ agreed), said in respect of a count of possessing an unauthorised firearm contrary to s 7(1) of the Firearms Act: "32 The legislature has framed an offence in respect of which a person in occupation of premises where an unauthorised firearm is located will be criminally liable unless they can, on the balance of probabilities, discharge the burden provided in s 4A(1) of the Act. That subsection requires the occupier to establish on the balance of probabilities that they did not know or could not be reasonably expected to know of the presence of the weapon. This required more than evidence from which a possible inference could be drawn. The accused must satisfy the trial court that he or she either did not or could not be reasonably expected to know of the presence of the weapon." 1. The Crown submitted that there was no temporal anchor, meaning that the section applies no matter the duration of time involved. There was therefore no temporal prerequisite or condition precedent to the application of s 4A. The accused bore the onus of satisfying the court, on the balance of probabilities, that he "did not know and could not reasonably be expected to have known" that the firearm was on the premises, within the meaning of s 4A(1)(b), relying on Strachan v R [2017] NSWCCA 322 at [33]. 2. The Crown relied on the DNA swab taken from the inside of the beanie and the expert opinion of Ms Bate that the accused could not be excluded as a minor contributor to that mixture. The Crown submitted that the expert's opinion "that it was greater than 100 billion times more likely to obtain this mixed profile if it originated from the accused and two unknown, unrelated individuals, rather than if it had originated from three unknown, unrelated individuals in the Australian population", was highly probative to the issue. 3. The Crown submissions referred to the statement of Ms Lakynn King and her evidence that on 6 August 2015 she had been shown a black gun which was similar to photographs of the black pistol recovered by police in the execution of the search warrant. 4. It was the Crown submission that the accused had possession of the pistol at the time of the search warrant. Section 4A did not require proof that the accused had possession against all the world, either for the life of the pistol or the entire time he was at the address. It was therefore not surprising and was to be expected that DNA from others was connected to the beanie. It was not the Crown case that the accused alone had possession of the pistol for the life of the pistol, the accused having been seen at the premises two days before the execution of the search warrant on 19 November 2015 by Ms Seeto in the premises. The Crown relied on her description of the accused, the male person identifying himself as "Jarrod", and the conversation that took place, which is set out above. The Crown also relied on the SMS messages referred to above, which referred to the accused taking over the lease and the fact that, although he told Ms Seeto that Mr Klomegah was to return "soon around 8.30", she received an SMS from him at 8.05pm stating that he was at his work location. Further, Mr Klomegah had told her in an SMS message that he was a fly in/fly out worker who came back "every fortnight". 5. The Crown submitted that Mrs Seeto having observed the accused in the premises, and there being no suggestion that the accused had broken into those premises, that the tribunal of fact would conclude that the accused had a key to the premises at the time of the search warrant. 6. The Crown submitted that the pistol was located beside the only bed in the main bedroom at the address. It was located near a phone charger on the floor beside the bed, at a point where a bedside table might stand. 7. The Crown submitted that the ammunition and magazine fitting the pistol were located in the second room (bedroom 1), immediately with personal items belonging to the accused, including identification cards and other items including prescription medication in his name. Further, the accused was employed by TKL Holdings, and there were TKL Holdings clothing items at the address. 8. The Crown relied on the item of clothing referred to as "the Lone Wolf colours" as being a circumstance consistent with the accused being in possession of the pistol as at 19 November 2015. However, the tribunal of fact was not asked by the Crown to reason that "he must be guilty" because of the Lone Wolf colours. It was submitted that as a matter of human nature, absent a bedside table, items are put on the floor within arms' reach, meaning in this case, the phone charger and pistol. 9. In his oral submissions, the Crown Trial Advocate rehearsed the 20 factors outlined above, and the combination of those factors, which the Crown relied on to prove beyond reasonable doubt that the accused was an occupier of the premises as defined in s 4A. It was submitted that the female wig located during the search was relevant, in that it was consistent with Mrs Seeto seeing the accused and a female in the premises on 17 November 2015. That indicated short-term occupation or control of the premises by the accused. 10. The Crown submitted that there was no one feature of the Crown case, but that all of the evidence amounted to a "strands in the cable" case of circumstantial evidence, upon which the court would be satisfied beyond reasonable doubt that the accused, upon application of s 4A, was the occupier of the premises, relying on May v R, supra. The accused was therefore guilty of the charge on the Indictment. Submissions on behalf of the accused 1. Counsel for the accused submitted that in proving beyond reasonable doubt, by way of a circumstantial strands in the cable case, "occupation", pursuant to s 4A, encompassed a degree of control. The onus was on the Crown therefore to prove occupation as at 19 November 2015 at the time that the search warrant was executed. It was submitted that occupation could not extend to any person present at the premises beforehand, as that would "fly in the face of common sense". It was submitted that occupation must have a fixed end point, for example, in this case, "until the owner returns". In relation to the 20 matters upon which the Crown relied to make out a circumstantial case, it was submitted as follows, taking the matters out of order: Item 4 – there was no evidence as to who was the owner of the toiletries found in the cupboard and the only reasonable inference was that they were owned by the lessee Mr Klomegah. Further, the electronic scales referred to had fingerprints linking it to Ethan Stevenson. Item 9 – the green folder located in the kitchen identified from "OmniWealth Accounting firm", included a letter dated 10 September 2015, confirming that one W Latu was employed by TKL Holdings, and other personal documents relating to that person. With respect to the TKL clothing, there was no evidence linking that clothing to the accused, either by way of DNA evidence, or sizing of the clothing. The court would therefore afford very little weight to the TKL clothing to establish occupancy by the accused of the premises. Item 3 – the location of this item was important. It was in a separate compartment in bedroom 1, which was used for storage. It was submitted that having one article, namely, the Lone Wolf colours, at another's property does not make one an occupier or provide the basis for such a contention. Item 6 – concerned medications which were prescribed in early 2015. There was no evidence that the medication was required to be taken daily, or when it might have come into the premises. It did not therefore assist the Crown to prove occupation on 19 November 2015. Item 7 – the black metal box which was found in separate drawers in bedroom 1. This was the storage room and the fingerprint evidence was unable to be aged. It leant little weight to the Crown case and the contents of the box had no relevance to the proceedings. Items 2, 5 and 10. It was submitted that these items conflated the Crown case. A stronger case could be made out here that the unknown female was the occupant of the premises. There were lit candles in the bedroom on one side of the bed. Further, the presence of the electrical power board and phone charger on the other side of the bed (near the pistol wrapped in the beanie) gave rise to no inference as to the sex of that person occupying that left side of the bed (if any). Further, there was no evidence of what device the charger was used for. Items 12, 13 and 14. The court should read the conversation that the accused had with Ms Seeto as a whole. The fact that he told her that he "came here quite often, every now and again" meant that he did not reside there and was not in occupation of the premises. The statement that he had paid rent on one occasion merely meant that he had helped his friend out. He had told her "I just hang around …". Further, the lease provided for occupancy by a maximum of four persons. It was submitted that the accused had no motive to lie to Mrs Seeto and had given honest answers to her. Items 15 and 16. It was submitted that the SMS messages between Mrs Seeto and Mr Klomageh confirmed that the accused was not named on the lease and Mr Klomageh had asked for him to be left out of the discussions about payment of rent. There was no reference to Mr Klomegah being away at work. The request that Mr Klomegah made for the accused to take over the lease was a future request for another person to be added to the lease. There was no evidence that Mr Klomegah had discussed that with the accused and it could only be regarded as a future intention. There was no evidence that the accused was in favour of it or had knowledge of it at all. In any event, the accused had not been named in those discussions. It was submitted that Items 12 to 16, when taken as a whole, could only mean that, at its highest, the accused, if he was in occupation, that occupation ceased at 8.30pm on 17 November 2015 when Mr Klomegah was due to return to the premises. Item 17. The only property of the accused, it was submitted, was located in bedroom 1, the storage room. It was submitted that his presence in the premises on 17 November was explicable in a number of ways, for example, he may have been visiting the female. Further, the evidence revealed no spread of his property throughout the premises. In answer to a question from the court, counsel conceded that it was possible for two people to occupy premises. 1. In respect of the DNA evidence linking the accused to the beanie, it was submitted that this was possible by an innocent transference of DNA. The accused submitted that the Appendix to the expert's certificate made it clear that there was a possibility of secondary transfer, which was reasonable in the circumstances. In the light of that qualification to the DNA evidence, it assumed far less useful weight in the Crown case. Further, the location of the beanie added very little weight to the question of whether the accused was an occupier of the premises on 19 November 2015. 2. It was submitted that the Court of Criminal Appeal decision in May did not assist the Crown case, as it dealt with a person who was a lessee or owner of premises. Further, the Crown submission that s 4A had no temporal anchor did not apply here. If that were the case, Parliament would have extended the definition contained in the section to identify a period of time which was relevant. 3. It was submitted that the evidence of Ms King had no context and was of no weight in determining the issue before the court. 4. Further, in response to the Crown's submissions, it was submitted that there was no evidence of Mr Klomegah being at his work location on 17 November 2015. The Crown had therefore not been able to exclude that others had access to the unit, and thus there was no evidence of exclusive possession by the accused. Further, the evidence of Ms King was that Mr Klomegah had been in possession of a similar pistol. It was submitted finally, that having regard to all of the evidence, the Crown could not prove beyond reasonable doubt that the accused was in possession of a prohibited pistol on 19 November 2015. Determination 1. Section 4 of the Firearms Act 1996 contains the following definition of "possession": "Possession of a firearm includes any case in which a person knowingly, (a) has custody of the firearm, or (b) has the firearm in the custody of another person, or (c) has the firearm in or on any premises … whether or not belonging to or occupied by the person. Note. See also s 4A." 1. Section 4A provides as follows: "4A Meaning of "possession" of a firearm – proof of possession (1) Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that: (a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or (b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or (c) on the evidence before it, the person was not in possession of the firearm. (2) In this section, premises means any place, vehicle, vessel or aircraft." 1. In Strachan v R, supra, a case where firearms were located in the home of the applicant, the Court of Criminal Appeal said in relation to s 4A of the Firearms Act: "33 To avoid the effect of the statutory definition, the applicant bore the onus of satisfying the court, on the balance of probabilities, that he "did not know and could not reasonably be expected to have known" that the firearm was on the premises, within s 4A(1)(b)." 1. This was consistent with what the Court of Criminal Appeal had said in May v R, supra, a decision involving the same offence pursuant to s 7, where the appellant was the lessee of premises in which a firearm was found during an authorised police search. At [32], in respect of s 4A(1) of the Act, McClellan CJ at CL said: "That subsection requires the occupier to establish on the balance of probabilities that they did not know or could not be reasonably expected to know of the presence of the weapon. This requires more than evidence from which a possible inference could be drawn. The accused must satisfy the trial court that he or she either did not know or could not be reasonably expected to know of the presence of the weapon." 1. Here, a threshold question arises which was not relevant in either Strachan or May, namely, whether the accused is an occupier of the premises. There is no issue that a pistol was located on the premises on 19 November 2015 during the execution of the search warrant by police. There is further no issue that the accused was not authorised to have possession of a firearm at that time by either licence or permit. The relevant element to be proved beyond reasonable doubt by the Crown therefore is whether, as at 19 November 2015, the accused possessed that firearm. 2. In order to prove that element, the Crown relies on a circumstantial case known as a "strands in the cable" case. To do so it relies on the 20 matters outlined in the Crown's submissions above, and a combination of those matters, to establish the accused's guilt beyond reasonable doubt. Before considering those matters, I must give myself a direction about proving the element of possession by a circumstantial case. 3. The onus is on the Crown to prove the accused's guilt beyond reasonable doubt. That means that I must be satisfied beyond reasonable doubt that the Crown has established its case before I could bring in a verdict of guilty to the charge of possession of the pistol pursuant to s 7(1) of the Firearm's Act. 4. My function as the judge of the facts in this case extends to drawing reasonable inferences or conclusions from the facts that I find established. "Inference" and "conclusion" mean the same thing. The Crown relies on each of 20 items of evidence, and a combination of those 20 items, of what are referred to as circumstantial evidence. In relying upon circumstantial evidence, the Crown seeks that the court find basic facts and then from those facts, draws a conclusion as to the existence of a further fact, namely, possession of the pistol. 5. Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused do the act which the Crown says constitutes the alleged crime charged. For example, it may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case, or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused. 6. In a circumstantial case, the Crown lacks direct evidence of that kind. It does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken. 7. But in a circumstantial case, no individual fact can prove the guilt of the accused. Where the Crown's case depends either wholly or in part on circumstantial evidence, then the jury is asked to reason in a stage approach, and as this matter is being tried by judge alone, I should do so. 8. The Crown first asked me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact that the Crown asks me to find, based upon the basic facts, is that the accused person had possession of the pistol and is therefore guilty of the offence charged. 9. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that I approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of Jarrod Hussey, or whether there is any explanation for that particular fact or circumstance which is inconsistent with Jarrod Hussey's guilt. The correct approach is first to determine what facts I find established by the evidence. Any particular fact to be taken into account does not need to be proved beyond reasonable doubt. I will then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that Jarrod Hussey is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. It follows that I must find Jarrod Hussey not guilty. 10. But if I find that such a conclusion is a reasonable one to draw, based upon a combination of the established facts, then, before I can convict Jarrod Hussey, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of Jarrod Hussey, the circumstantial case fails because I am not satisfied beyond reasonable doubt of Jarrod Hussey's guilt. 11. I understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition. 12. Consistent with that direction, I find the following facts proved on the evidence before me to the required standard, i.e. the balance of probabilities: 1. The accused Jarrod Hussey was present at the premises, partly undressed, on 17 November 2015. 2. Also present at the time Ms Seeto attended the premises was a female. 3. I find that on 19 November 2015 there was property owned by the accused in the premises, established by the DNA evidence in the wardrobe of bedroom 1, being the Lone Wolf colours. 4. I find that there was medication contained in a cardboard box belonging to the accused in the same bedroom. 5. I find in the same bedroom was located an Australian Defence credit card in the name of the accused. Also found in the premises were a number of personal cards identifying the accused. 6. I also find that in the same bedroom was a metal black box located in the bottom drawer of the set of drawers in that bedroom which was linked to the accused by way of the fingerprint evidence referred to above. 7. I am satisfied that the accused, who was employed by TKL Holdings, had workwear in the premises for the purpose of his employment. The fact that there was located in the kitchen a letter identifying T Latu as an employee of the same corporation does not derogate from that finding. 8. I am satisfied that the accused was staying at the premises whilst the lessee, Marcus Klomegah was away, based on the accused's conversation with Mrs Seeto, which took place on 17 November 2015. 9. I am satisfied that Ms King, who had been a lessee of the premises, had not been at the premises since 24 August 2015. 10. I am further satisfied that Mr Klomegah had shown Ms King a pistol similar to the pistol located in bedroom 2 of the premises on 19 November 2015, on 6 August 2015. 11. I find that a pistol was found in the premises on 19 November 2015 wrapped in a beanie and located partially under the left-hand side of the bed, adjacent to an electric power board and phone charger. 12. I further find that DNA lifted from the inside of that beanie linked the accused to that pistol as a minor contributor, and I accept the opinion of the expert Ms Bate, that "assuming three contributors to this mixture, there is greater than 100 billion times more likely to obtain this mixed profile if it originates from Jarrod Hussey and two unknown, unrelated individuals, rather if it originates from three unknown, unrelated individuals in the Australian population". 1. With respect to the question of whether the premises were occupied by, or in the care or control of the accused, Jarrod Hussey, I am satisfied beyond reasonable doubt that the combination of the findings of fact that I have made lead to a conclusion that, as of 19 November 2015, the premises were occupied by Jarrod Hussey. I come to this conclusion by reason of the findings of fact set out above, and in particular, the evidence which establishes that he was present with a female in the premises on 17 November 2015, that clothing and medication belonging to him, together with other items which were either in his name or linked to him by way of either DNA or fingerprint evidence, were located in the premises on 19 November 2015. Further, I am not persuaded that his occupancy had come to an end or been terminated by the return of Mr Klomegah. Rather, a rational inference may be drawn from the whole of the evidence that that had not occurred. Further, it was conceded by counsel for the accused that premises could be occupied by more than one person at the same time. 2. The DNA evidence relating to the trace taken from the inside of the beanie in which the pistol was wrapped was, as stated above, admitted over objection. If that was the only evidence relied on by the Crown, it would give rise to reasonable doubt in respect of the Crown case, based on the qualification to the expert's opinion contained in the Appendix to the certificate and outlined above concerning the transfer of secondary DNA, in this case, by application of the shoe of Detective Senior Constable Seymour to the outside of the beanie. That evidence here clearly reduces the weight of the DNA evidence, however, that is not the single factor relied upon by the Crown to establish its case. 3. Further, there was no direct contact between Detective Senior Constable Seymour and the accused, which distinguishes this case from that referred to in Fitzgerald v R [2014] HCA 28. If Detective Senior Constable Seymour's shoe became contaminated with the accused's DNA, that DNA must have come from within the premises. The manifold other factors which are outlined above, do lead me, consistent with the direction in respect of circumstantial evidence that I have given myself, to a conclusion that the accused was in occupation of the premises. I further find that there is no other reasonable conclusion arising from those facts that is inconsistent with that conclusion. 4. As the accused did not give evidence, there is no evidence upon which to make a finding that the accused "did not know and could not reasonably be expected to have known" that the pistol was on the premises. As McLellan CJ at CL said in May v R, supra, this requires more than evidence from which a possible inference could be drawn. Therefore, by virtue of s 4A of the Firearms Act, the pistol is to be taken to be in his possession as of 19 November 2015. Conclusion 1. I therefore find that the Crown has proved its case beyond reasonable doubt, that on 19 November 2015, at Homebush West in the State of New South Wales, Jarrod Craig Hussey did possess a prohibited pistol, namely, a 9mm IMI Baby Eagle pistol, not being authorised to do so by a licence or permit. 2. There will therefore be a verdict of guilty on the offence charged on the Indictment. Order 1. Jarrod Craig Hussey, you are convicted of the offence pursuant to s 7(1) of the Firearms Act 1996 that on 19 November 2015 you did possess a prohibited pistol, namely, a 9mm IMI Baby Eagle pistol, not being authorised to do so by either licence or permit ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2018