Jeske v R

The issues

1. The issues identified in the parties' written submissions (MFI 1 and MFI 2) were as follows.
2. For sequence 1, whether, by reason of s 4A of the Firearms Act, on the balance of probabilities, the appellant knew that he was not in possession of the pistol or knew of the pistol being located on the premises where it was found, or whether, on the whole of the evidence, he was not in possession of the firearm.
3. However, I note that for this sequence, another issue was ventilated on the hearing of the appeal that had not been raised in the written submissions. This was that the prosecution had not proven the element that a person in possession of a pistol was "not authorised (to possess) by a licence or permit."
4. For sequence 2, whether the appellant used unlawful violence towards Khalil Alameddine.
5. For sequences 3 & 4, whether the appellant knew he was in possession of the ammunition (in each sequence).
6. There are, in effect, two incidents giving rise to the sequences. I will deal with them in chronological order.

Elements and interpretation of the offence

1. This offence contains the following elements: 1. A person uses unlawful violence towards another person; and 2. The person's conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety; and 3. (by s 93D(2)) The person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.
2. "Violence' is defined (in s 93A) to mean "any violent conduct, so that - (a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and (b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short)".
3. Section 93C contains other matters potentially assisting with the interpretation of this offence. First, by s 93C(2), if 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
4. Secondly, the hypothetical person of reasonable firmness need not actually be, or be likely to be, present at the scene (s 93C(4)).
5. Thirdly, the affray can be committed in private places (s 93C(5)).
6. Some of these interpretative matters were considered in Colosimo v DPP (NSW) (2005) 64 NSWLR 645. At [19], Johnson J observed: ".. a s.93C offence does not require a specified number of persons to be present together using or threatening unlawful violence. An individual who is acting alone in using or threatening unlawful violence towards another may be convicted of an offence under s.93C. If two or more persons use or threaten unlawful violence, the conduct of those persons may be taken together and considered for the purposes of determining whether an offence of affray has been committed under s.93C(1) of the Act. However, the offence does not require a group of persons to be so acting for an offence to be committed.
7. At [20], his Honour observed that the use of "unlawful" in s.93C(1) confirms the continued availability of self-defence.
8. More generally, his Honour construed the provision consistently with the approach given to a corresponding offence (ss 3(1), 6(2) and 8) of the Public Order Act 1986 (UK). His Honour referred, inter alia, to two observations in the speech of Lord Hutton in I v Director of Public Prosecutions [2002] 1 AC 285 which are of present significance. Those observations were:

• The purpose of the offence is "to punish a person or persons who engaged in a face to face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear".
• The actual or threatened violence must be directed to a victim who was present.

1. In written submissions on this appeal, the Crown also invoked common law principle that an individual (victim) cannot consent to an affray: R v Raabe (1985) 14 A Crim R 381 (at 383, 390).

Evidence

1. This offence was alleged to have been committed on 5 September 2021. In the Court of Attendance Notice, the charge was relevantly particularised as being that the accused: "..did use unlawful violence towards Khalil Alameddine by conduct such that a person of reasonable firmness if present at the scene would have feared for their safety."
2. On the day in question, police responded to a report of an assault taking place on Osgood Street, Guildford, but on arrival, police were met by residents who denied that any violence had occurred.
3. The prosecution relied upon an intercepted telephone call (proving the report to police) and CCTV footage from neighbouring houses (Ex 17 in the Local Court). The CCTV footage, or at least a material portion of it, was shown in this Court.
4. The appellant conceded his presence outside the house where the alleged affray occurred, but denied ever touching Khalik Alameddine. The appellant accepted that the CCTV footage had indicated that he had pushed Khali Alameddine's father.
5. In the Local Court, once shown the footage, the appellant maintained his position, expressed in his evidence in chief, that he had acted in self-defence, being concerned by the father's prospective use of a rake. The appellant said that he believed that Mr Alameddine's father was coming towards him with a rake, that he was in imminent danger and that, accordingly, he pushed the father away "to make some distance". He could not recall in which hand the father was holding the rake and explained that his "memory's not all that great".
6. But in this appeal, his legal representative accepted that the CCTV footage had indicated that the push (which occurred when the father's back was turned to the appellant) preceded the father holding the rake. Nevertheless, the appellant's legal representative argued that this was not a very significant mark against the appellant's credibility. A recording (Ex 27) in the Local Court had only recently been produced and the appellant was only mistaken as to the sequence of events. It was the case that Khalil Alameddine's father held a rake.
7. The appellant submitted, firstly, that there was no evidence that Khalil Alameddine, who had been specifically identified in the Court Attendance Notice, was the subject of unlawful violence. Indeed he had denied that he was. Secondly, there was doubt about any actual physical alteration. Khalil Alameddine, the alleged victim, denied any assault or, for that matter, anything like it. There were two other persons at the residence who denied seeing anyone being assaulted or there being 'any issues'.
8. The appellant also complained of unfairness. In the prosecutor's opening in the Local Court, and the way that the prosecution had conducted the case, its position was that the appellant had directed unlawful violence towards Khalil Alameddine. But eventually the prosecutor relied upon a fallback position that the unlawful violence was directed towards Khalil Alameddine's father. It was suggested that this change of position by the Crown had forensic consequences. It might have been open for the appellant to call the father to give evidence had the appellant become aware of the shift.
9. The appellant submitted that the only thing captured on the CCTV footage was a push. But, it was argued, a mere push was not sufficient to constitute an affray; even though the push would constitute the offence of common assault. No bystander of reasonable firmness would likely fear for their personal safety by witnessing a push.
10. The Crown submitted that proof of the element of 'unlawful violence' does not hinge upon the identity of the victim. That is to say, the identity of the victim is not material. It would not matter who the victim actually was so long as unlawful violence was directed towards someone. It is not necessary for the prosecution to prove that violence was actually perpetrated upon a nominated victim. It was sufficient that the hypothetical onlooker, or bystander (who may or may not be present) might, if the person was present, fear for their safety because of an accused's conduct.
11. The Crown submitted further that evidence from Mr Alameddine and the latter's father holding a rake did not amount to a defence of self-defence, which the Crown was required to negate in order to prove the element of unlawful violence.
12. The Crown points to the appellant's concessions in the hearing of the Local Court that he was depicted in a portion of the CCTV footage and that he had pushed Mr Alameddine's father (albeit that this was said to be in self-defence). The Crown further says that the CCTV footage belied the notion that the appellant acted in self-defence in relation to the father.
13. In written submissions, the Crown further prays in aid the operation of s 93C(2), but at the hearing, Mr Crown did not explain how that might operate to advance its case.

Consideration

1. As a matter of construction, for the offence of affray, there are three 'actors', as it were, in relation to this offence. First, is the accused. Secondly, the accused directs unlawful violence to someone (the 'victim') who is present at the scene of the accused's actual or threatened violence. The third is the notional bystander of reasonable firmness who is taken to be present at the scene.
2. In the Colosimo decision referred to earlier in these reasons, Johnson J (at [12]-[13]) noted some extrinsic material relating to the instant offence and how the legislative reform was to deal with instances of 'group disorder' or 'public order'. Part 3A of the Crimes Act, itself, in which s 93C is contained, is titled 'Offences relating to public order'.
3. It is, in my view, of the very nature of the offence that it could encompass violent conduct, in a group setting embracing potentially a number of persons to whom violent conduct of an accused person is or may be directed, but against whom the accused may not actually know. It is not difficult to see the intended scope of the provision, exemplified in a local derby football game. A supporter of team A (X) says something which displeases a supporter of team B (Y). Y throws a bottle against X in the crowd. The identity of X is not material to Y. The act of violence may terrify those in the crowd who are in close proximity to X and Y.
4. The mental element of this offence is simply that the accused intends or knows that their conduct is violent. It is not that the accused has the motive to threaten or inflict violence against someone or some persons who the accused knows.
5. That is not to say that the identity of the victim would not be relevant or material for all purposes. Thus, it would be relevant in any sentencing exercise. But short of that, it might also be relevant to an assessment of whether the notional bystander would fear for their safety.
6. Another feature of the offence, as I construe it is that what marks it out from an offence like common assault (or other forms of assault) is the effect, or impact of the violence upon the notional bystander. To this extent, the offence is to do with the effect of unlawful conduct upon persons who are deemed to be (and in many cases actually are) present. A measure of this is that violence need not actually be inflicted against the victim themselves. That effect is, to paraphrase, one of fear. Fearful people, triggered by a perception of a person's unlawful violence towards another, may act in unpredictable and unsafe ways in a way that may be injurious to public order.
7. In light of this process of construction, the first point I should deal with is the appellant's complaint about the prosecution's effective substitution of Khalil Allameddine's father for Khalil Allameddine as the 'victim' or the person against whom the accused directed violence.
8. In my view, for reasons stated, the identity of the victim, for this particular offence is not a material element of the offence. Although it is necessary for a victim, or victims, to be present at a scene, that circumstance does not elevate the identity of the victim, or victims, as being material to proof of the charge. In any given case, including the size of the group, there may be multiple persons against whom the accused intended or was aware that he was engaging in violent conduct towards. The construction suggested by the appellant, which emphasises the materiality of the identity of the victim, would substantially impair the reach of the proscription in a way that is antithetical to the purpose of the proscription, of preserving public order.
9. Nor do I consider that by the content of the court attendance alone, or questioning of the appellant, was there conduct by the Crown - or the defence - that made the identity (name) of the victim material. Although Khalil Allameddine was specified, that should not preclude the Crown from contending that the offending could have been established by proof of another person, or other persons, present to whom violence was inflicted or threatened.
10. As I infer from the evidence, as it emerged, it appeared that it was only the conduct of the appellant against Alameddine's father, that was depicted on the CCTV footage, but there was a dispute in the evidence whether violence actually was inflicted or threatened by the appellant against Alameddine had appeared 'off camera', so to speak.
11. However, once it became clear that the appellant was prepared to concede that he pushed the father of one of his friend's, and further, once the appellant was prepared to accept, as his Counsel did in this appeal, that there was no defence of self-defence that was viable (to cause doubt about the element of unlawful violence), there was no particular forensic disadvantage that the appellant could, or did, point to arising from the Crown's shift in position (other than to aid the Crown to proof of the offending), since there was already a live issue emerging from the evidence whether the appellant had not only been violent towards Khalil Alemeddine but also to others. Nor do I divine any particular conduct by the appellant that made the identity of the victim material; as distinct from the objection raised on his behalf in his legal representative's closing address in the Local Court.
12. I find that the prosecution did prove the element of unlawful violence towards a person. That person was Khalil Alameddine's father. I note in this respect that the accused pushed that person. As the definition provision (s 93A(b)) indicates, it matters not, for the purposes of the first element, whether the accused intended to cause that person harm.
13. In the circumstance in which the push occurred (including the person having his back turned to the appellant), the appellant knew or intended to engage in the violent conduct.
14. This violence was unlawful: it was not justified by self-defence (or anything else). The only basis for that proposition was the father holding a rake, but the evidence, which the appellant's legal representative accepted in this Court indicated that the rake was held after the push. The Crown disproved the notion of self-defence as a hypothesis consistent with the appellant's innocence.
15. That leaves the final element, concerning the causal reaction of the notional bystander of reasonable firmness.
16. In this case, there were a range of actual onlookers. Some appeared to come out of their homes. Aside from what the CCTV footage actually revealed about the accused's conduct, there were people furtively moving around the particular house in question where the affray occurred. It appeared that at least one person was chasing a moving motor vehicle up the road. The atmosphere in which the violence eventually occurred appeared tense; even febrile. The area in which the affray occurred was not a vast land area. It appeared that there was apprehension that violence would occur.
17. This CCTV footage materially undermines the evidence relied upon by the appellant of some actual onlookers disclaiming any real concern about the events that they say that they saw.
18. In this context, the appellant pushed his friend, Khalil Alameddine's, father. He did so from behind so that the father was unprepared to meet the violence. The latter was essentially in a defenceless position.
19. Contrary to the appellant's submission, I find that it was of material significance that after giving evidence about apprehending that the father might inflict injury upon him with the rake, the appellant had changed tack. Leaving aside other features of his evidence, in my view this would have significantly impaired acceptance of his credibility (which will be relevant to consideration of the other sequences). It not only undermined any defence of self-defence. It also, which is the much same thing, minimised his responsibility for the circumstances of the push.
20. The notional onlooker of reasonable firmness in the vicinity, in my view, would have thought that if the appellant was prepared to resort to inflicting unprovoked violence upon a somewhat elderly man from behind in the circumstances and environment alluded to that I have described, would be fearful. I am satisfied that the causal element of the offence is also established.
21. I am satisfied that each of the elements of the offence are made out to the requisite standard.

A preliminary point of construction

1. I now consider the appellant's point raised for the first time in this Court. The issue arises because it appears that the accused said or did nothing in the Local Court to indicate his reliance upon the exception to s 7(1): that he was authorised to possess the firearm. It is hardly surprising that such stance was taken. If the accused raised the issue of authority to possess and failed, it would practically compel a finding of possession to make out the offence.
2. At the hearing of this appeal, although not in the Local Court, the appellant's legal representative submitted that the short way home for him was the prosecution did not prove the essential element that (on the contested premise that the appellant was in possession of the firearm) he was not authorised to be in possession by licence or permit. His legal representative argued that for cases of the instant kind, it might have been expected that the Commissioner of Police (or presumably an informed delegate) would provide an official statement to prove that matter.
3. By the wording of s 7(1), indubitably, the prosecution must prove that the person possessed the pistol.
4. But the wording also indicates an exception: liability arises from the fact of possession "unless the person is authorised to do so, by a licence or permit."
5. Section 7(2) provides that: "Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person - (a) uses a pistol or prohibited firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the pistol or prohibited firearm, or (b) contravenes any condition of the licence." (emphasis supplied)
6. It appears from s 7(2)(a), at least, that there may be circumstances in which an evidentiary onus, falls on an accused, but the underlying factual predicate is that the accused has authority for possession of the firearm of some kind and the question turns, in substance, upon whether they have exceeded the authority. There is no question in this case of excess of authority. It is the anterior question whether there was any absence of authority at all.
7. Acknowledging that there are different purposes and objects of the different legislation, it strikes me that some analogy may be drawn in road transport offences, like s 53 of the Road Transport Act 2013 (NSW), proscribing a person from driving a motor vehicle without being licensed to do so. So far as I am aware it has never been suggested that for this offence, a defendant to a charge must raise as an issue, or bear an evidentiary onus, that they were licensed, with the prosecution to bear the ultimate burden of negativing the issue.
8. In my opinion, s 7(1) could be characterised as an enactment laying out the ground of liability, including an exception itself, which the prosecution must negative. [2] It is a material element of the offence under s 7(1) that requires the prosecution to prove that the person in possession of the firearm is not authorised to do so. This accords with policy. The Firearms Act generally creates an entitlement to possession of a firearm by the state, but the state authorises possession by grant of permit. The importance of licences and permits for the possession of firearms is underscored by the detailed provision made for them in Part 2 of the Firearms Act. They are an integral part of a scheme to provide exceptions to the general proscription under the legislative regime for the possession (and use) of firearms. An important consequence of the licensing regime is that law enforcement authorities know of, or have the ready means of ascertaining, those persons with lawful justification for the possession of firearms.

The contest about possession

1. By s 4A(1) of the Firearms 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."
2. This offence (and the offences for sequences 3 & 4) was alleged to have been committed on 10 September 2021. That was the date that police executed a search warrant at 41A Woodstock St, Guildford. There was some evidence - applicable to this sequence (and also sequences 3 & 4) - that the owner of the premises was Mr Al Shinawa. He identified the appellant, by nickname and description (and phone number), as living in the granny flat, at the rear of the main premises. The appellant agreed that he was the only person who rented the premises and indicated that he had moved into the premises in March 2021.
3. The firearm was located by police in the rangehood area in the kitchen. It was DSC Lopez who discovered the firearm and other items of property, concealed in a rangehood stove. It was found wrapped in a beanie which the appellant accepted belonged to him. It was put to DSC Lopez, but he denied that he had failed to change gloves so as to avoid the transference of DNA.
4. The appellant conceded that the firearm was found within the premises that he was residing in. This concession effectively engaged the operation of s 4A with the result that the appellant was deemed to be in possession unless he proved, on the probabilities that: (a) he did not know, and could not have reasonably been expected to have known of its presence in the premises (s 4A(1)(b)); or (b) was not in possession of the firearm (s 4A(1)(c)).
5. In the Local Court, according to the Crown, the only evidence relating to the appellant's state of mind was from him.
6. The appellant gave evidence that the premises were a 'hangout for the boys', including Fadi Zreika and Asad Alahmad. DSC Poggian had located items of property belonging to those individuals during the execution of the search warrant. Both Zreika and Alahmad had criminal histories. The appellant said that there were three sets of keys to the premises, including those held by Messrs Zreika and Alahmad.
7. During the execution of the search warrant, the appellant said that he had never seen, or touched the firearm or had any prior knowledge of it being located in the premises. He also said he had never accessed the rangehood.
8. However, the appellant emphasised that he had not only denied knowledge of the firearm in Court. He had earlier denied knowledge when he gave a broadly contemporaneous statement to Detective Senior Constable Poggian.
9. The Crown says that the learned Magistrate's rejection of this evidence was influenced by adverse findings against the appellant in respect to his credibility or reliability. That had been manifested in several ways: (a) his testimony about the affray being contradicted by the CCTV footage of it; (b) his repeated statements of non-recollection about circumstances.
10. If his evidence was to be rejected, his case could only be supported by inference from other circumstances. This relevantly included the presence of other individuals (with firearm offences) being present in the premises. An expert called by the prosecution could not exclude the appellant as being a contributor on the exterior of the magazine to the firearm (Exhibit 2 in the Local Court, being evidence of a forensic biologist, Ms Wedervang), but to the extent that the prosecution relied upon DNA evidence, there was evidence about transference of DNA.
11. The Crown derided these matters as not even sustaining an inference as to the appellant's lack of knowledge: they only sustained a possibility that someone else deposited the firearm or the appellant's DNA. Overall, the Crown contended that the appellant had not discharged his onus under s 4A.

Consideration

1. The transcript of the hearing in the Local Court, at least up to the point when his Honour delivered his reasons, indicated that the hearing occupied two days (4-5 July 2023). Early on the first day, there were certain preliminary issues, including a dispute about a subpoena. Apparently in the course of this, there was a discussion about what was in dispute about sequence 1. The transcript (4/7/23 T 7.23 and T 8.48) indicated that the legal representative for the accused identified his client's denial of possession and his Honour indicated his understanding that the "real issues" for sequence 1 was the element of possession.
2. I am unable to discern in those early passages of the transcript, the accused's evidence in the Local Court, or in closing submissions in the Local Court, any admission by the accused that he did not hold a permit or licence for the pistol that was located. Nor am I able to discern any express indication by the accused's legal representative in the Local Court that the element of an absence of authority for the pistol was not contested.
3. The Crown supplied no answer to the appellant's point that before the Local Court the prosecution had not proven, beyond reasonable doubt, that he was not authorised, by licence or permit, to possess the pistol. On this appeal, the Crown did not point to any evidence to support that contention. There was no certificate signed by the Commissioner, to the effect that the appellant did not hold a licence or permit, which would have been admissible as prima facia proof of that fact (Firearms Act, s 87(a)). There was nothing, for example, in the evidence of the officer in charge (Senior Constable Fox) regarding any inquiry made about the appellant's status as being unauthorised to use a firearm.
4. That being so, an essential element of the offence for s 7(1) of the Firearms Act, was not proven.

Essential elements of the offence

1. This offence is constituted simply by a person possessing ammunition for any firearm.
2. However, exceptions to the offence arise where: 1. the person is the holder of a licence or permit for a firearm which takes that ammunition, or 2. is authorised to possess it by a permit.
3. The Crown acknowledges that for the offence under s 65(3), there is no corresponding deeming provision to that which applies to the concept of possession of a firearm under s 4A. That being so, by reason of s 7 of the Crimes Act 1900 (NSW) which, by its terms, applies to other legislation where possession without lawful cause of excuse is an offence, possession is proven by the person: 1. having the property in his or her custody, or 2. knowingly having the property in the custody of another person, or 3. knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or the use of another.
4. It will be apparent there will be no liability if the prosecution cannot negative the possibility that the accused did not know that the ammunition was in the premises tenanted by the accused.
5. As with the offence for sequence 1, these offences were alleged to have been committed on 10 September 2021. On the date the search warrant was executed a total of 17 rounds of ammunition were discovered by DSC Costibol.
6. The ammunition were effectively in two parcels. For the sequence 3 offence, there were 11 rounds of ammunition found in the magazine loaded in the pistol located in the rangehood stove in the kitchen.
7. For the sequence 4 offence, there were 6 rounds of ammunition in a CD case in a zip lock bag. A tea towel had been placed on top of the ammunition. All of these items were located in the external laundry.
8. The ammunition was of the same type.
9. The Crown acknowledges that it cannot invoke any presumption on the mental element for this offence (on the two counts) in s 4A.
10. The Crown relied upon the circumstance of the appellant's DNA being found on the zipper of the CD case; and also on the magazine of the firearm in which ammunition was found.
11. As with sequence 1 in relation to the firearm, the appellant denied any knowledge of ammunition. He repeated that denial in Court: he denied seeing it prior to the execution of the search warrant and denied holding the CD case that the ammunition was found in. He said he may have seen the tea towel that was on top of the zip bags.
12. In answer to this, the Crown referred to the appellant's evidence in cross-examination. He said he understood that the ammunition was in the CD case and knew that his DNA was on the CD case outside the zipper and he accepted the possibility that he had held the case. The appellant also said he would have moved the tea towel inside the case to see the ammunition, but said he did not remove the ammunition itself.
13. The appellant argued that the evidence was not sufficient as to enable the prosecution to discharge its onus of proof beyond reasonable doubt. On the DNA evidence, the appellant's DNA was not on other parts of the pistol, such as the trigger or handgrip. His legal representative suggested that there was a possibility of DNA transference: the officer who had touched the firearm had also touched his own phone and had touched other items as well.

Consideration

1. Generally, and doing the best I can not having seen any witness myself, to my mind, there are significant doubts about the appellant's reliability given his professed memory limitations. I also harbour real doubt about his credibility. He moved some considerable length from his evidence of ignorance of the ammunition to acceptance of matters that (objectively) betokened his possession. I referred earlier to the significant concern the Court had about his credibility after maintaining, in the face of clear CCTV footage to the contrary, that he only pushed Mr Alameddine's father in self-defence. I accept, further, the force of the Crown's point about the frequent explanation given by the appellant that his memory of events (which to an ordinary person may have been very troubling, given their nature) was not good.
2. I reject the appellant's evidence on what he said about ammunition. Applying Liberato, then, it remains the case that the Crown must prove the appellant's possession of the ammunition beyond reasonable doubt on the basis of all of the evidence. But it does so in the context where the suggested alternative hypotheses said to be consistent with his innocence is based upon his testimony.
3. I take into account matters concerning the appellant's sole tenancy and his moving in to the premises.
4. Although sequence 1 is to be set aside for other reasons, that does not mean that evidence of possession of the firearm is not relevant to proof of possession of the charge for sequence 3. In my opinion, the location of the appellant's DNA on the magazine of the pistol, in which the ammunition was loaded, is compelling. I accept the Crown's submission in this appeal, that it is not the case that firearm charges against either Messrs Zreika or Alahmad had been proven at the time of the Local Court hearing; let alone at the time of the offending. Further, the possibility of handling by others of the same magazine (noting the expert's finding that the DNA on the magazine originated from at least two individuals) does not derogate from the fact that the appellant's DNA was on the magazine to the pistol located in the appellant's beanie and concealed in the range hood in the kitchen in his rented property.
5. Further, the appellant's DNA on the CD case found also in the same tenanted premises as the firearm, although evidence primarily directed to sequence 4, is, in my view also cross-admissible in relation to sequence 3.
6. I have considered the closing submissions of the legal representative for the appellant in the Local Court. None of those alter my conclusion.
7. I find that the element of possession is established and the Crown disproved the defence of absence of knowledge.
8. There was no evidence to sustain the exceptions in s 65(3)(a)-(b) which the Crown was required to negative. That being so, the offence is made out.
9. Although I am conscious that I am dealing with a separate charge for sequence 4 to sequence 3, at the hearing of this appeal, it was common ground that there is no logical reason why the outcome for sequence 4 should be any different to the outcome for sequence 3.

Orders

1. The appeal is partly allowed.
2. The conviction for sequence 1 is set aside.
3. The convictions for sequences 2, 3 and 4 are confirmed.

Endnotes

1. See also Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 per Meagher JA (Gleeson JA and Simpson AJA agreeing) at [25]
2. Dowling v Bowie (1952) 86 CLR 136 at 139 - 140; Vines v Djordjevitch (1955) 91 CLR 512 at 519. 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: 14 December 2023