R v Hill [2012] ACTSC 121

• A - Statement by Erin Byrne (27/11/09)
• B - Photographs of Items found in Vehicle
• C - Statement by Jennifer Stone (24/2/10)
• D1 - Statement by Christiaan Pieterse (22/01/10)
• D2 - Notes by Christiaan Pieterse (21/1/10)
• D3 - Photographs of firearm taken by Christiaan Pieterse
• E1 - Statement by David Fleming (26/11/09)
• E2 - Warrant to Search Gregory Hill (15/10/09)
• E3 - Request for Forensic Procedure (26/10/09)
• E4 - Information re Forensic Procedure (26/10/09)
• E5 - Order for Forensic Procedure (26/10/09)
• E6 - Transcript of Police Interview No. 1, re search of vehicle (26/10/09)
• E7 - Transcript of Police Interview No. 2, re forensic procedure (26/10/09)
• F - RTA Infringement Search re offence 25/06/09
• G1 - Statement by Ricky Keegan (5/11/09)
• G2 - Photograph of text message from Hill to Keegan's Phone
• G3 - Statement by Ricky Keegan (2/7/12)
• H - Statement by Benjamin Roberts (14/1/12)
• J - Transcript of phone conversation between Police and Hill
• K - Statement by Jeremy English (1/1/10)
• L - Statement by Brett FitzRoy (5/1/10)
• M - Statement by Nicholas Arley (12/11/09)
• N - Statement by Robert Munro (30/11/09)
• O - Statement by Cameron Knight (1/12/09)
• P1 - Statement by Matthew Lee (25/11/09)
• P2 - Property Seizure Record A48209
• P3 - Property Seizure Record A48210
• P4 - Statement by Matthew Lee (2/7/12)
• Q - Statement by Damien Toohey (26/11/09)
• R - Statement by Phillip Reeks (29/11/09)
• S - Statement by Robert Langlands (30/11/09)
• T - Statement by David Boston (28/12/09)
• U1 - Custody Report of 2x Bullets in Firearm
• U2 - Custody Report of Black Case for Key Ring Firearm
• U3 - Custody Report of MSSK in the name of Gregory Hill
• U4 - Custody Report of Key Ring Firearm
• V1 - Evidentiary Certificate (29/6/12)
• V2 - Evidentiary Certificate (26/6/21)
• W - Case Log of Seizure Exhibit Report
• X1 - Property Item Log - Ammunition Bullets
• X2 - Property Item Log - Key Ring Firearm
• X3 - Property Item Log - Other - NEC

and I heard submissions from the Crown prosecutor and the accused's counsel, after which I stood over the trial for my judgment.

1. The essential elements of the charge brought against the accused are that as at 26 October 2009:
   1. the accused possessed something;
   2. the something that the accused possessed was a firearm;
   3. the firearm that the accused possessed was a prohibited firearm; and
   4. the accused was not authorised by licence, permit or otherwise to possess the prohibited firearm.
2. At the beginning of the trial, I asked the accused's counsel "What's the issue in the trial? Possession or the weapon?" and the accused's counsel replied "There's a requirement to prove that in fact it is a prohibited firearm and there's an issue as to possession as well."
3. I consider it to be unfortunate that the accused did not formally admit as facts that:
   1. he was the owner of the silver coloured Holden Statesman sedan, ACT registration plate YxxxxE, as at 26 October 2009;
   2. the loaded key ring firearm and black leather case were found by police in the lockable compartment on the right-hand side of the vehicle's steering column at about 1.40 pm on 26 October 2009;
   3. the key ring firearm was a prohibited firearm; and
   4. he was not authorised, as at 26 October 2009, by licence, permit or otherwise to possess the prohibited firearm;

as, by his admitting these facts, the focus of the trial would have been on the question whether the evidence proved beyond reasonable doubt that, as at about 1.40 pm on 26 October 2009, he possessed the prohibited firearm, and the Crown prosecutor need not have called some of the witnesses or tendered many of the various exhibits.

1. I record that the accused did not give evidence or call any evidence during his trial.
2. As I am the judge of the facts as well as the judge of the law, I recognise that the following principles, which are designed to ensure that the accused receives a fair trial according to law, govern the trial:
   1. the Crown has the burden to prove the guilt of the accused;
   2. the accused does not have any burden to prove anything;
   3. the level or standard of proof is proof beyond reasonable doubt;
   4. the accused is presumed to be innocent, unless and until his guilt is proved by the evidence, beyond reasonable doubt;
   5. I must bring an open and unbiased mind to the evidence, I must view it coldly, clinically and dispassionately, and I must not let emotion enter into the decision making process;
   6. I must assess the evidence rationally, using logic and commonsense;
   7. I may accept a witness' evidence wholly or in part or reject a witness' evidence wholly or in part;
   8. the accused's silence in court, like his silence when interviewed at the police station, is not evidence against him, it does not constitute an admission of anything by him, it cannot be used to fill any gaps in the evidence that I see and it cannot be used to add weight to the evidence that I accept;
   9. if the evidence satisfies me beyond reasonable doubt of the accused's guilt, then the accused loses the presumption of innocence and I must find him to be guilty;
   10. if, however, the evidence fails to satisfy me beyond reasonable doubt of his guilt, then the accused remains presumed to be innocent and I must find him to be not guilty.
3. I am satisfied beyond reasonable doubt of these facts:
   1. the accused was driving the silver coloured Holden Statesman sedan, ACT registration plate YxxxxE, when it was stopped by police on Isabella Drive in Isabella Plains in the ACT at about 1.40 pm on 26 October 2009;
   2. the accused was alone in the vehicle when it was stopped by police on 26 October 2009;
   3. the key ring firearm and black leather case were found by police in the lockable compartment on the right-hand side of the vehicle's steering column on 26 October 2009, see the photograph numbered 7 in exhibit B;
   4. the key ring firearm was loaded with a bullet in each cylinder, see the photograph numbered 10 in exhibit B;
   5. the key ring firearm is, and was at 26 October 2009, a prohibited firearm as defined in Schedule 1 of the Firearms Act, see page 2 of the report attached to exhibit D1;
   6. the bullets in the key ring firearm are, and were at 26 October 2009, ammunition as defined in Schedule 1 of the Firearms Act, see page 2 of the report attached to exhibit D1;
   7. the accused is not, and was not on 26 October 2009, authorised by licence or permit or otherwise to possess the key ring firearm, see exhibit V1;
   8. the accused is not, and was not as at 26 October 2009, authorised by licence or permit or otherwise to possess the bullets, see exhibit V2;
   9. the accused's DNA was found on an outside surface of the black leather case, see page 3 of the report attached to exhibit C.

I am satisfied beyond reasonable doubt of these several facts because, after all of the evidence was presented, these facts were really not disputed by the accused.

1. The first issue that arose in the trial was whether the evidence proved that the accused was the owner of the Holden Statesman sedan, ACT registration plate YxxxxE, as at 26 October 2009.
2. I accept the evidence of Mr Keegan that, in May 2009, he sold the vehicle to a man who said that his name was Greg Hill, which is the name of the accused, who lived in a house in a suburb of Chisholm, which was the suburb in which the accused lived, and whose telephone number was 04xxxxxx27, which is the number of the accused's mobile telephone. I accept the evidence of the recorded telephone conversation between police and the man who said that his name was Greg Hill and his mobile telephone number was 04xxxxxx27 on 21 June 2009, when the man enquired about the finding of his stolen silver coloured Holden Statesman sedan, ACT registration plate YxxxxE. I accept the evidence of Constable English and Constable Fitzroy that the man who claimed to be the owner of the silver coloured Holden Statesman sedan, ACT registration plate YxxxxE, identified himself as Gregory Dean Hill. I accept the evidence of the text message received by Mr Keegan on a date between 13 and 24 August 2009 from "Hilly", who lived at xx Barangaroo Street in Chisholm, which was the accused's address. I accept the evidence of the payment on 14 December 2009 by Greg Hill of xx Barangaroo Street in Chisholm in the ACT of the penalty for the driving offence committed on 25 June 2009.
3. The presumption of continuance, of which the accused's counsel disavowed any knowledge, is that if a fact is proved to exist at a particular time then, in certain circumstances, it will be presumed to have existed at an earlier time or at a later time. It is nothing more than a convenient way of describing a process of logic or reasoning involving the drawing of inferences from proved facts; see R v Noonan (2002) 127 A Crim R 599; 2002 NSWCCA 46. Thus, the facts that the accused claimed to be the owner of the silver coloured Holden Statesman sedan, ACT registration plate YxxxxE, on 21 June 2009 when he recovered the vehicle from Constables English and Fitzroy after it had been stolen from his home, and that on 14 December 2009 he as owner paid the penalty for the driving offence committed on 25 June 2009, allows me to draw the inference that he was the owner on 26 October 2009.
4. Accordingly, I am satisfied that as at 26 October 2009 the accused was the owner of the silver coloured Holden Statesman sedan, ACT registration plate YxxxxE, that he was driving when it was stopped by police on Isabella Drive in Isabella Plains.
5. The second issue that arose in the trial concerned the finding of the key ring firearm and the black leather case.
6. In her statement, see exhibit A, Constable Byrne wrote, "About 1.50 pm, I located a loaded key ring firearm, black and silver in colour in the console to the right of the steering wheel. The item was photographed in situ." As I have said already, the photograph numbered 7 in exhibit B shows the key ring firearm in the lockable compartment on the right-hand side of the vehicle's steering column. This photograph does not show the black leather case in the compartment. However, the photographs numbered 8, 12 and 13 in exhibit B show the key ring firearm and the black leather case on the vehicle's driver's seat. In her evidence, Constable Byrne said to the Crown prosecutor, "I recall Detective Sergeant Michael Pearce examining the item [the key ring firearm] and I believe he removed the firearm from the black [leather] case" see transcript page 13, line 23, before she photographed the firearm in the compartment and she said to the accused's counsel, "Question: When you arrived there, your recollection was, you saw the firearm in the case and you were pretty sure that the firearm was in the case?" Answer: "I believe so." Question: "Sergeant Pearce got the firearm out of the case and was playing with it?" Answer: "Yes." Question: "The photographs that have been tendered don't show the way that you originally saw the firearm?" Answer: "No." See transcript page 16, line 15.
7. I conclude that the key ring firearm was inside the black leather case inside the lockable compartment on the right-hand side of the vehicle's steering column when it was found by Sergeant Pearce, that Sergeant Pearce removed the key ring firearm from its black leather case, and that Sergeant Pearce put the key ring firearm into the vehicle's compartment, where it was photographed by Constable Byrne.
8. The third issue that arose in the trial related to the evidence of the finding of the DNA of the accused on the black leather case and the weight or value to be placed on that evidence.
9. I accept the evidence of Ms Stone that:
   1. the DNA of the accused, together with the DNA of at least two other people, was found on a swab taken from an outside surface of the black leather case, see page 3 of the report attached to exhibit C;
   2. the DNA on the swab was separated into major and minor components, see transcript page 20, line 40;
   3. the major component was quite distinct from the minor component, see transcript page 21, line 10;
   4. the accused cannot be excluded as the source of the major component of the mixed DNA found on the swab, see page 3 of the report attached to exhibit C;
   5. the accused's DNA was on the black leather case more likely because of primary transfer, rather than secondary transfer, see transcript page 23, line 14 and line 26.
10. I am satisfied that the accused's DNA was found on an outside surface of the black leather case and that the accused's DNA came to be on the case because of primary transfer from the accused, that is by the accused touching the case with a hand, rather than secondary transfer, such as by the case being placed onto the driver's seat of the vehicle which had been driven by the accused.
11. The fourth issue that arose during the trial concerns the evidence, see paragraph 11 above, which the Crown prosecutor submitted was a lie told by the accused to distance himself from the contents of the silver coloured Holden Statesman sedan, ACT registration plate YxxxxE, because he knew that, by telling the truth, he would implicate himself in the commission of an offence related to the key ring firearm.
12. Generally speaking, the Crown can rely upon what an accused person says, for example, a lie, or does, for example, flight or the hiding or disposing of something associated with an offence, as evidence of an awareness or consciousness of guilt of the person. The Crown relies upon the accused's answer "I don't know, no comment" to the question "Who is the owner of this vehicle?" and his answer "Whenever we can borrow it" to the question "How often do you use this vehicle?", see the answers to questions 42 and 43 on page 7 of exhibit E6, as lies showing an awareness or consciousness of guilt.
13. A lie is something said by someone who knows, at the time of saying it, that it is untrue. A lie can be taken into account as evidence of an accused person's guilt if the lie relates to an issue that is relevant to the offence allegedly committed by the accused person, that is, it must relate to some significant circumstance or event connected with the alleged offence, and if the reason for the accused person telling the lie is fear that telling the truth might reveal the accused person's guilt in respect of the alleged offence, that is, fear that telling the truth would implicate the accused person in the commission of the alleged offence.
14. Of course, it is recognised that people do not always act rationally and that the telling of a lie may be explained in a way other than as showing an awareness or consciousness of guilt. The person telling the lie may have a reason for lying other than seeking to conceal his or her guilt for the commission of a particular offence, for example the lie may be told out of panic or fear; to avoid an unjust accusation; to protect someone else; to avoid a consequence unrelated to the particular offence; or an inability to articulate an appropriate response to the question because of drunkenness or sleeplessness.
15. I am satisfied of these things:
    1. the accused knew that police were asking him about his knowledge of the key ring firearm found by police in the compartment on the right-hand side of the steering column of the vehicle that he had been driving, see questions numbered 39 and 41 of exhibit E6;
    2. the accused lied intentionally and deliberately in his answers to questions 42 and 43 of exhibit E6;
    3. the accused knew, at the time of giving them, that his answers to questions 42 and 43 of exhibit E6 were untrue;
    4. the accused realised, at the time of giving his answers to questions 42 and 43 of exhibit E6, that, if he told the truth, he might incriminate himself in an offence related to the key ring firearm; and
    5. the accused lied in his answers to questions 42 and 43 of exhibit E6 to distance himself from the items, including the key ring firearm, found by police in the vehicle.
16. The Crown's case against the accused is a circumstantial evidence case. The Crown prosecutor submitted that the accused has been shown to have been in possession of the key ring firearm on 26 October 2009 because:
    1. he was the owner of the vehicle in which the key ring firearm was found;
    2. he was driving the vehicle when it was stopped by police;
    3. he was alone in the vehicle when it was stopped by police;
    4. the key ring firearm in the black leather case was found in the compartment to the right-hand side of the vehicle's steering column within minutes after it was stopped by police;
    5. his DNA was found on an outside surface of the black leather case which contained the key ring firearm;
    6. he lied about his ownership and use of the vehicle to distance himself from commission of an offence related to the key ring firearm;

and, therefore, submitted the learned Crown prosecutor, the only reasonable and rational conclusion to draw from these proved facts is that the accused had the firearm in his possession.

1. Thus, the remaining issue in the trial, and, perhaps, in reality, the only issue in the trial, is whether the evidence shows that the accused was in possession of the key ring firearm at about 1.40 pm on 26 October 2009 when police stopped the vehicle that he was driving.
2. The Firearms Act provides, so far as is here relevant, that a person has possession of a firearm if the person has the firearm at premises owned or occupied by the person, see s 10(1)(b) of the Act. I consider that subparas (a) and (c) of subss (1) and (2) of s 10 are not relevant to the instant case.
3. The dictionary for the Firearms Act defines "occupier" of premises to include "a person believed on reasonable grounds to be an occupier of the premises; and a person apparently in charge of the premises" and defines "premises" to mean "the whole or any part of any land, building or other structure, vehicle, vessel, aircraft or place".
4. I have found the accused to have been the owner of the silver coloured Holden Statesman sedan, ACT registration plate YxxxxE, as at 26 October 2009, see paragraph 28 above. It is beyond argument that the accused was in charge of the vehicle at 1.40 pm on 26 October 2009 when it was stopped by police.
5. Accordingly, the accused had the key ring firearm in his possession at about 1.40 pm on 26 October 2009 because he was in a vehicle of which he was the owner and occupier.
6. However, the Firearms Act provides, so far as is here relevant, that a person is not to be taken to have possession of a firearm only because the firearm is at premises owned or occupied by the person, if the person does not know that the firearm is at the premises, see s 11(1)(a) of the Act. In other words, applicable to this instant case, the accused is not to be taken as having possession of the key ring firearm as at 1.40 pm on 26 October 2009 when the vehicle that he was driving was stopped by police simply because it was in the vehicle of which he was the owner and occupier, if he did not know that it was in the vehicle. I consider that neither subpars (a) or (c) of s 11(1) is relevant to the instant case.
7. And, to explain the effect of s 11(1)(b) of the Firearms Act, the Act says that, "To remove any doubt, a defendant to a prosecution for an offence against this Act who wishes to rely on a matter mentioned in subsection (1) has the evidential burden in relation to the matter", see section 11(2) of the Act. In other words, applicable to the instant case, if the accused wishes to rely upon the fact that he did not know that the key ring firearm was in the vehicle, of which he was the owner and occupier, when, at 1.40 pm on 26 October 2009 he was stopped by police driving the vehicle, the evidential burden to prove the fact lies on the accused.
8. An evidential burden is an obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue. The Criminal Code 2002 (ACT) defines "evidential burden" to mean "the burden of presenting or pointing to evidence that suggests a reasonable possibility that a matter exists or does not exist", see s 58(7) of the Criminal Code. Generally speaking, the party upon whom an evidential burden to prove a fact in issue lies must adduce evidence of the fact or lose. However, the Criminal Code provides that "the defendant no longer has the evidential burden in relation to a matter if sufficient evidence to discharge the burden is presented by the prosecution", see s 58(5) of the Criminal Code. The question whether there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue is a question of law, see s 58(6) of the Criminal Code.
9. The fact in issue, or matter, to use the words in s 11(2) of the Firearms Act, and in s 58 of the Criminal Code, raised by the accused by his relying upon s 11(1)(a) of the Firearms Act, is his knowledge that the key ring firearm was in the vehicle that he was driving when at about 1.40 pm on 26 October 2009 it was stopped by police. In other words, the accused must present or point to evidence that suggests a reasonable possibility that he did not know that the key ring firearm was in the vehicle that he was driving when it was stopped by police.
10. As the accused did not present any evidence, the accused's counsel pointed to the fact that the black leather case, in which the key ring firearm was concealed, or hidden, or disguised when it was found by police, had a mixed DNA on the swab taken from an outside surface of the case showed that at least two other people had touched the case and he submitted that this fact "raises a reasonable likelihood that those persons exercised some sort of dominion over that item, that they had handled the item, that they had exercised control over that item, that they secreted or one of them secreted the item in the console of the vehicle that has the door that closes on it", see transcript page 50, line 16.
11. I accept that the fact that the swab taken from an outside surface of the black leather case revealed a mixed DNA shows that the DNA of at least two other people was on the case by way of primary or secondary transfer. But this evidence does not prove what the accused's counsel submitted that it proved and it is not evidence that the accused must present or to which he must point in order to discharge his evidential burden. All this evidence proves is that at some time before 1.40 pm on 26 October 2009 at least two other people had touched the black leather case, that is, primary transfer, or the case had touched something that at least two other people had touched, that is, secondary transfer.
12. The accused's counsel submitted that, as there is evidence that at least three people had touched the black leather case, "there is an explanation consistent with Mr Hill's innocence, with his lack of knowledge in respect of the matter because there is evidence to point to a reasonable possibility of someone else being involved", see transcript page 51, line 22. Again, the evidence that at least two other people had touched the black leather case is not evidence of the accused's lack of knowledge that the key ring firearm was in the vehicle that he was driving when it was stopped by police at 1.40 pm on 26 October 2009.
13. In my opinion, as a matter of law, there is nothing in the evidence relevant to the question whether the accused did not know that the key ring firearm was in the vehicle that he was driving at the time when police stopped the vehicle. Accordingly, the accused has failed to discharge the evidential burden which lies on him pursuant to s 11(1)(b) of the Firearms Act.
14. As to the Crown's circumstantial evidence case, see paragraph 40 above, and putting aside the effect of s 10(1)(b) of the Firearms Act, I agree with the Crown prosecutor that, in the absence of evidence to prove who other than the accused had access to the vehicle or drove the vehicle, the only reasonable and rational conclusion which can be drawn from the proved facts, as detailed in paragraph 40 above, is that the accused was in possession of the key ring firearm at 1.40 pm on 26 October 2009 when the vehicle that he was driving was stopped by police.
15. Thus, I find the accused to be guilty of possessing a prohibited firearm on 26 October 2009 when not authorised by licence, permit or otherwise to do so.
16. Also, I find the accused to be guilty of possessing ammunition on 26 October 2009 when not authorised by licence, permit or otherwise to do so.

I certify that the preceding fifty six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Solicitor for the prosecution: The ACT Director of Public Prosecutions