R v Kabbout

Applicable Legal Principles

1. Turning then to the principles applicable to a judge alone trial; I am required in this judgment to include the principles of law that I have applied and the findings of fact on which I have relied, see s 133 of the Criminal Procedure Act. There must be exposed in my judgment the reasoning process linking those principles of law to the verdicts that are ultimately reached, see Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68. The most important principle of law to be applied in any criminal trial is that the onus of proof is on the Crown and proof is required beyond reasonable doubt. The words "beyond reasonable doubt" carry their ordinary English meaning. Suspicion, no matter how great, is no substitute for proof behind reasonable doubt.
2. The Crown case here is a circumstantial one and I have therefore given myself both an inference direction and a circumstantial evidence direction. Care should be exercised when drawing an inference or conclusion from the evidence I accept when I am drawing that inference or conclusion against an accused. The evidence should be carefully examined to determine that it is reliable and the inference that is sought to be drawn from it is both a reasonable and justifiable inference or conclusion. In a circumstantial case no one piece of evidence proves the guilt of the accused. Each piece of evidence needs to be considered in the context of and in combination with, all of the evidence in the Crown case to determine if the only reasonable inference available is the guilt of the accused. The Crown must negative beyond reasonable doubt all other reasonable inferences consistent with innocence that arise from the evidence.
3. The two men found in the car on 23 August 2017 were not called to give evidence in the Crown case. I have had regard to the fact that I have not heard from those two relevant witnesses in determining whether or not the Crown has proved the two charges beyond reasonable doubt in accordance with the High Court decision of Mahmoud v Western Australia (2008) 232 CLR 397; [2008] HCA 1.
4. In the main the accused declined to answer any questions when interviewed by police about what had been found in the car. No adverse inference can be drawn against the accused for doing so.
5. The accused did not give evidence in the trial. The accused bears no onus of proof in respect of any fact that is in dispute except in certain circumstances in relation to the Firearms Act offence which I will discuss. He is presumed to be innocent unless I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged. The fact that the accused did not give evidence cannot be used against him in any way at all and no adverse inference can be drawn against the accused because he declined to give evidence in the trial.
6. Turning then to the elements of each of the offences on the indictment which the Crown must prove beyond reasonable doubt before I am entitled to return a verdict of guilty. The elements of the supply prohibited drug offence that the Crown must prove beyond reasonable doubt are as follows: 1. That the accused supplied a substance; and 2. The substance was a prohibited drug.
7. Supply is defined in s 3 of the Drug Misuse and Trafficking Act to include sell and distribute and also includes agreeing to supply or offering to supply or keeping or having in possession for supply or sending, forwarding, delivering or receiving for supply or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
8. In relation to the supply allegation, the Crown calls in aide s 29 of the Drug Misuse and Trafficking Act which relevantly provides; "a person who has in his or her possession an amount of a prohibited drug which is not less than the trafficable quantity of the prohibited drug shall be deemed to have the prohibited drug in his possession for supply unless (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply." The trafficable quantity of the drug cocaine is 3 grams.
9. Possession under the Drug Misuse and Trafficking Act is not defined in the Act as such but is determined by the common law concept of possession. Insofar as count 1 is concerned the Crown is required to prove beyond reasonable doubt that the accused had possession of the drugs to the exclusion of all other persons, the Crown case here being one of sole or exclusive possession. The Crown must establish that the accused intentionally had the drugs in some place to which he had access and might go to obtain physical custody or control of them to the exclusion of any other person. In order to establish proof of possession to the requisite degree the Crown must establish beyond reasonable doubt that the accused knew or believed that the substance was a prohibited drug. It is the accused's actual knowledge or belief that must be proved, not what a person in the position of the accused may or might have known. Knowledge or belief may be inferred or concluded from consideration of the surrounding circumstances, bearing in mind the caution to be exercised in drawing an inference against an accused. The Crown need not prove that the accused had knowledge of the specific type of drug said to be in the accused's possession.
10. There is no issue here that the substance alleged to have been in the accused's possession and the subject of the supply count is cocaine and the quantity is more than the trafficable quantity under the Drug Misuse and Trafficking Act for that drug. The essential issue to be resolved in relation to this charge is whether the Crown has proved beyond reasonable doubt that the accused did have exclusive possession of the drug on 23 August 2017.
11. The elements of the possess prohibited pistol offence which the Crown must prove beyond reasonable doubt are as follows: 1; that on 23 August 2017 at Rosehill the accused possessed a pistol; 2; that the pistol was a prohibited pistol being a .32 calibre Fabrique Nationale 1910 model automatic Colt pistol and 3; the accused was not authorised to possess the pistol by licence or permit.
12. There is no issue that the pistol the subject of the Firearms Act charge is a prohibited pistol, there is also no issue that the accused was not authorised to possess the pistol by licence or permit. Again the central issue in relation to count 2 on the indictment is whether the Crown has proven beyond reasonable doubt that the accused on 23 August 2017 had sole possession of the pistol.
13. There are two definitions of "possession" in the Firearms Act; the first is in s 4 and may be termed an inclusive "definition". That section provides as follows: "Possession of a firearm includes any case in which a person knowingly - (a) has custody of a firearm, or (b) has the firearm in the custody of another person, or (c) has the firearm in or on any premises, place, vehicle, vessel or aircraft whether or not belonging to or occupied by the person."
14. The meaning of the term "possession" under the Firearms Act is extended in s 4A which in certain circumstances places an onus on the accused person. Section 4A provides as follows: "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."
15. In the section "premises" means any place, vehicle, vessel or aircraft. The Crown in opening its case indicated that it relied upon the extended definition of possession in s 4A of the Firearms Act. In indicating in his opening the Crown Prosecutor at different points stated that the Crown asserted the provision was engaged because the evidence established that the accused was the owner of the vehicle, occupied the vehicle or the vehicle was in the care, control or management of the accused as at 23 August 2017.
16. The meaning of the terms used in s 4A of the Firearms Act and whether or not it has any application to the facts established by the evidence in this case occupied much of the submission time before me. In particular the meaning of the terms "premises owned, leased or occupied by or in the care, control or management of the person" is of particular importance in this case. The Firearms Act contains no definition of the terms "owned, occupied" or the phrase "in the care, control or management of". I will return to a consideration of the provision and its application shortly.
17. The elements of count 3 on the indictment which the Crown must prove beyond reasonable doubt are as follows: 1. That on 23 August 2017 at Rosehill the accused possessed a pistol, and; 2. He did so in breach of the Firearms Prohibition Order.
18. There was no dispute before me that as at 23 August 2017 the accused was the subject of a Firearms Prohibition Order which was served on him on 12 November 2016. There was no issue before me that if the Crown proved count 2 beyond reasonable doubt then the Crown will have proven count 3 beyond reasonable doubt.

Construction of Section 4A of the Firearms Act

1. I turn then to the construction and application of the extended definition of possession in s 4A of the Firearms Act. As I noted earlier, the construction and application of the extended definition of s 4A of the Firearms Act is a central issue in this trial. The provision has been the subject of limited judicial consideration based on the cases to which I was referred to in argument. The provision appears to have been first considered by the Court of Criminal Appeal in Gardiner v R [2002] NSWCCA 190. That case concerned a conviction appeal in relation to an offence of possessing firearms under s 51D of the Firearms Act. There were a further six offences concerned with the possession of prohibited weapons under the Weapons Prohibition Act which does not have a similar provision to s 4A. The firearms the subject of the Firearms Act offence were found in the storage unit on 20 November 2002. Found in that unit by the police were a prescription in the name of the appellant as well as a number of documents in his name. The only document found that was not in the name of the appellant was a driving manual for a car which had at one stage been owned by him. There was evidence that the storage unit concerned had been leased at the relevant time in the name of the appellant and that he was the only person who had paid the rent on it or been observed to access it. A key to the storage unit and a swipe key for it was found on the appellant's possession when he was searched. The appellant had been found by a jury not guilty of the charges brought under the Weapons Prohibition Act but guilty of the charge brought under the Firearms Act. There was limited consideration of s 4A of the Firearms Act in the principal judgment of the then Chief Judge at Common Law and the consideration was essentially limited to a submission that the acquittals on the prohibited weapons charges showed that the "jury had misgivings about the prosecution case and a reasonable doubt as to the appellant's knowledge of the guns in the storage unit".
2. The Chief Judge at Common Law considered that the presence of s 4A of the Firearms Act explained the difference in the verdicts and there was no inconsistency in them. His Honour at para 106 stated: "Section 4A(1)(b) of the Firearms Act is clearly aimed at a situation where the Crown could not prove knowledge to the requisite standard but the accused cannot adequately explain his alleged lack of knowledge of the presence of the weapons. An accused can quite reasonably be convicted under the Firearms Act provisions while being acquitted under the Weapons Prohibition Act."
3. The decision provides no real assistance in considering the application of the provision to the current circumstances as the evidence in that case clearly established that the appellant leased the unit concerned and was an occupier of it. Given the presence of his personal items within it, that he paid the rent on it, leased it in his own name and was the only person seen to access the unit; there was no issue that the extended definition of possession applied to the circumstances of that case.
4. The Court of Criminal Appeal further considered the provision in May v R [2012] NSWCCA 250. That case involved a conviction appeal concerning a conviction for possessing an unauthorised firearm. The facts as described in the Chief Judge at Common Law's judgment, which is the principal judgment, were that the appellant was a lessee of the three-bedroom house. The firearm concerned was found under the bed which was in her bedroom. The appellant was at the premises on 20 December 2009 when the police found the firearm. Neither the appellant's fingerprints or DNA were found on the firearm or the box in which they were contained. There was evidence that the appellant had lived in the house for many years. Her daughter gave evidence that the appellant usually slept on the sofa in the sitting room and that one of her children slept in the main bedroom. The daughter also gave evidence that the appellant had been away from the house between 3 and 7 December 2009 and that various people had keys to the house and friends of her brother would come and go from it.
5. The trial judge found that the appellant was the tenant of the premises and in the relevant sense the occupier. The trial judge applied the provisions of s 4A of the Firearms Act and found that the appellant had not discharged the onus that was on her under the provision. The Court of Criminal Appeal found that the trial judge had correctly applied the provision and dismissed the appeal. There was no discussion as to the meaning of the term "occupied" presumably because on any view of the evidence the appellant was leasing and occupying the premises. The decision provides no guidance as to the scope of the provision and its application to the factual circumstances here.
6. In the course of argument I was referred to two District Court judgments which have considered the provision. The first is a decision of Hatzistergos DCJ in R v Bartuccio [2017] NSWDC 286. That is a judgment of his Honour in relation to a judge alone trial in which the Crown alleged that the accused on 8 December 2016 had unauthorised possession of a firearm. The Crown sought to rely on s 4A of the Firearms Act and argued that on the facts in that case the accused was an occupier of the premises upon which the firearm was found. The firearm was found by the police on 8 December 2016 in a shed on a large semi-rural property where the accused's father and mother had been living for some 40 years. It appears from the judgment the accused was not physically present on the property when the firearm was found. His Honour expressed the opinion that for the extended definition of possession under the Firearms Act to apply he had to be satisfied beyond reasonable doubt that the accused occupied the premises where the firearm was located. His Honour noted that there was no evidence of the accused owning or leasing the property or of the accused having the control or management of the property. In terms of the applicability of the provision, the sole issue was had the Crown proved beyond reasonable doubt that the accused occupied the premises on the day the police found the firearm.
7. The Crown argued in that case that the accused occupied the property because; a number of his personal items were discovered in a bedroom; it was identified by the accused's father as the accused's bedroom together with the presence of motor vehicles, keys and a logbook where there were links to the accused. The Crown also relied upon work items of the accused found in the shed, a bail slip which showed the accused was bailed to reside at the premises and the fact that the registration plates for the vehicle the accused was driving when stopped by the police were found at the premises. In his judgment his Honour considered the Macquarie Dictionary definition of occupier. His Honour expressed his opinion as to the meaning of occupied as follows: "While I accept that the term 'occupied by' can also embrace a tenant or resident, the term in my view extends beyond such a boundary to include taking up space and to take up possession. In my view the use of the words 'occupied by' is to be given its ordinary meaning in its context as an extended definition. I do not accept that it is to be restricted by its positioning in the section, in my view that term is used disjunctively."
8. In finding that the accused in that case had occupied the premises within the meaning of the provision his Honour considered: "The number of items, their nature and timing of their presence along with the observations from the witnesses satisfies me beyond reasonable doubt that the accused occupied the premises where the firearm was located on 8 December 2016 within the terms of s 4A of the 1996 Act."
9. I was also referred to the decision of R v Wood [2019] NSWDC 778 a decision of M L Williams SC DCJ. It too concerned a case where firearms were found on certain residential premises. A reading of the judgment suggested there was no issue that the extended definition of possession in s 4A that the Firearms Act was engaged. The case turned on whether or not the accused had discharged the onus that the provision places on him and his Honour found on the facts of that case that the accused had not. The decision is not of any real assistance in determining the scope and application of the provision to the circumstances here.
10. None of the cases to which I have been referred considered the application of s 4A of the Firearms Act in relation to a situation where a firearm is found in a motor vehicle.
11. There are two particular difficulties in construing the provision in my opinion. The legislature has sought to apply the provision to four types of premises being any place, vehicle, vessel or aircraft. The phrase "premises owned, leased or occupied by or in the care, control or management of the person" is not easy to apply to all the types of premises encompassed by the provision. For example, it is difficult to understand how a person can be said to have occupied an aircraft, unless it is a relatively small single or two‑seater plane. Can it be said that a person seated on say a 30 seat aircraft, is an occupier of it? What of a person seated in A380 aircraft, is every person seated in the aircraft an occupier of it?
12. It is unnecessary to consider these questions here, but they highlight the difficulty in applying the concepts in s 4A to all the different types of premises that come within its scope. The other difficulty in construing the provision is that, as I noted earlier, no definitions are provided in the statute of the terms "owned or occupied by or in the care, control and management of the person". The Crown did not advance an argument that the accused leased the vehicle in which the gun was found but I note that is a term which is relatively easy to apply to situations involving real property or a vehicle.
13. In considering the approach to be taken to the provisions it is necessary to mention some principles of statutory interpretation. The modern approach to statutory interpretation in Australia is helpfully summarised in Statutory Interpretation in Australia 8th Edition by Professor D C Pearce and Professor R S Geddes. The starting point is to construe the words of a provision in their statutory context. In construing legislation a Court is to prefer the construction of the legislation that would promote the purpose or object of the statute over one that would not promote that purpose or object. See the Interpretation Act s 33.
14. I have considered the Second Reading Speech relating to the introduction of the Firearms Amendment Trafficking Bill pursuant to s 34 of the Interpretation Act. I have also had regard to the principle that Courts will interpret general words according to their accepted legal meaning. I have also had regard to the following comments of Gibbs J in Beckwith v R (1976) 135 CLR 569; [1976] HCA 55: "The rule formally accepted that statutes creating offences are to be strictly construed has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences."
15. Section 4A was introduced into the Firearms Act by the Firearms Amendment Trafficking Act of 2001. The amending Act contained no statement of its legislative purpose. In my opinion, the legislative purpose behind the introduction of s 4A to the Firearms Act is to, in certain circumstances, place a civil onus on persons alleged to have possession of a firearm and to make it easier to prove that a person is in possession of a firearm where they have a particular connection to the premise where the firearm is located. There is no indication in the provision or in the amending Act that the concepts contained in the provision should be given any meaning other than the ordinary meaning they carry when they are used to describe a person's connection to a premise, as that term is defined.
16. In my opinion, some assistance in terms of the scope of the concepts used in s 4A is gained from noting that in the non-extended definition of possession in s 4(c) it speaks of a person having a firearm in or on a vehicle "whether or not belonging to or occupied by the person". That provision draws the distinction between the concept of the vehicle belonging to someone and the concept of a vehicle not belonging to someone. To my mind something belongs to someone if the person owns the thing in question.
17. In considering the meaning of the term "owned" in s 4A it is also of significance that it is contrasted in that provision with the concepts of leased or occupied premises. In my opinion, premises in s 4A are owned by a person if they belong to the person whether or not that person is an individual or a corporation. In coming to this view I have had some regard to the definition of "owned" in the Macquarie Dictionary which includes "belonging or relating to oneself or itself". There are no provisions in the Firearms Act, which in terms of the concept of ownership, would allow the Court to disregard corporate ownership of a premise and attribute the ownership to an individual. If the legislature had wanted to exclude the so-called corporate veil when the concept of ownership was to be determined under the provision, the legislature could easily have specifically provided for that to occur. The concept of the corporation being a separate legal person is a concept well known to the legislature, see sections 8 and 21 of the Interpretation Act.
18. In approaching the provision and the meaning of the term "occupied" in relation to a vehicle, I have had regard to the Macquarie Dictionary definition which includes to take up space, to take possession of, to hold and to be resident or established as a tenant. I have also had regard to the approach taken by Hatzistergos DCJ in R v Bartuccio noting that his Honour was there considering the concept of "occupied" as it related to real property. In my opinion, a vehicle is occupied by someone if they are physically located in the vehicle. Indeed, that is the concept of occupation used in the example given by the then Police Minister of the operation of the proposed s 4A in his Second Reading Speech concerning the introduction of the Firearms Amendment Trafficking Bill in the Legislative Assembly on 30 May 2001.
19. I am prepared to accept that it may be that a vehicle can be occupied by a person in the relevant sense without being physically present but it would be in rare cases in my view. Such a case would be where the evidence proves that a person was in effect using their car as their home and the evidence showed that fact by reason of the fact that many of their personal items were taking up space in the vehicle as at the time of the finding of a firearm within it. Another example would be where there was evidence that they had only recently got out of the vehicle.
20. The concept of a vehicle being in the care, control or management of a person is clearly one of wide import. To my mind, the primary ordinary meaning of the concept of care, control or management of the vehicle relates to a person who is driving it or at least seated in the driver's seat of the vehicle in possession of the keys to it. To my mind, the essence of the concept is one of control of the vehicle which would normally be in relation to a person with the direct ability to start, steer or stop the vehicle.
21. However, while the limit of the scope of the phrase in relation to a vehicle is difficult to define and may depend upon particular factual circumstances, I consider it would at least extend to a case where someone not present in the vehicle was shown to exercise control and management over it. For example, where the evidence showed that the vehicle was parked in a garage to which the person concerned had the only key or where there was evidence that the person concerned had given directions as to who was to have access to the vehicle or how it was to be driven or when it was to be driven or directed where it was to be driven to.
22. The precise scope of the concept of care, control and management of the vehicle will be determined by the particular factual circumstances that fall to be considered in my view.
23. The Crown ultimately accepted that for it to be able to rely upon the deeming provision in s 4A it must prove beyond reasonable doubt that the vehicle was either owned, occupied or in the care, control or management of the accused.

The Evidence

1. I now propose to embark upon a review of the evidence, much of which is not in dispute. I will start with the evidence concerning acquisition of the Toyota Prado in which the firearm and cocaine were found.
2. On 28 June 2017 Brighton Petrol Pty Limited ordered from Terry Shields Toyota at Parramatta a Toyota Prado GXL where a $1000 deposit had been paid and $63,284 was to be financed. A statement from the sales consultant who conducted the sale, Mr Trimbounas, was tendered as part of exhibit 1 and he gave oral evidence which I will discuss shortly. The vehicle that was sold was described as standard and came with seven seats, two seats in the front, three seats in the middle and two seats in the boot area. The statement of Mr Trimbounas records that on the day the vehicle was ordered, 28 June 2017, the accused was in the showroom and Mr Trimbounas believed that the accused was in the company of another man who Mr Trimbounas was unable to describe in his police statement.
3. The finance documents concerning the acquisition of the Prado are in evidence. The loan offer document records the borrower as Brighton Petrol Pty Limited and nominates 67 Edgar Street Bankstown as the address of the company. The accused is shown on the same document as the guarantor and his address is shown as the same as that of the company. The accused signed the loan offer document on behalf of the company and other documents concerning the purchase. The loan was described as a business loan. On the application to guarantee the loan document, an Ali Sweed of 13/157 Moorefields Road Roselands is nominated as a personal referee of the accused. Ali Sweed is one of the persons found in the vehicle when the police first approached it on 23 August 2017. The monthly repayments associated with the vehicle's finance were to be deducted from the company's bank account.
4. In his statement Mr Trimbounas stated that the accused collected the vehicle on 5 July 2017. Mr Trimbounas gave oral evidence that on that day in accordance with his usual practice he showed the accused the features of the vehicle and that the accused then drove the vehicle away. It was suggested to him in cross-examination that the accused himself did not drive the vehicle away, a suggestion he denied. He did give evidence in cross-examination that another man had driven the accused to the Toyota outlet to collect the vehicle but his recollection was that the accused drove the vehicle away. In re‑examination Mr Trimbounas' recollection was that the other man was with the accused on the second occasion that he saw him being 5 July 2017 and not on 28 June as he suggested in his statement.
5. In assessing Mr Trimbounas' evidence about the accused driving the vehicle away, I noted he recalled in evidence that it was on the second occasion when the vehicle was collected that another man had attended with the accused. That recollection differed from his statement. I also have regard to the fact that there is evidence before me at that time the accused was a disqualified driver.
6. In the circumstances, I am prepared to find that the accused did in fact attend the Toyota outlet for the purpose of buying for Brighton Petrol Pty Limited the vehicle and was in the vehicle when it drove from the Toyota outlet. I am unable to find that he himself was the driver of the vehicle, although I am satisfied he was in it when driven away.
7. I turn then to the evidence concerning the company Brighton Petrol Pty Limited. The evidence concerning Brighton Petrol Pty Limited is that it was registered as a corporation from 20 April 2011 and from that date its address was 67 Edgar Street Bankstown. According to the company's ASIC historical extract, the accused was the only shareholder, director and secretary of the company. The issued share capital of the company was one share owned beneficially by the accused.
8. Amongst the documentation in the evidence concerning the purchase by the company of the Prado, is a letter dated 29 June 2017 from the company's accountants, which confirmed that the company was currently active and trading profitably. Under the Road Transport Act, Brighton Petrol Pty Limited was the registered operator of the vehicle as at 23 August 2017 and the nominated address was 67 Edgar Street, Bankstown. The evidence shows that was not the address of the accused as at 23 August 2017 but the address of his brother, Ahmed.
9. I turn then to the events on 23 August 2017. A little after 11am that day, Senior Constable Lollback with Senior Constable McWhirter drove to Prospect Street, Rosehill. Lollback observed the Prado parked on the northern kerb of that street facing an easterly direction opposite the public school.
10. Exhibits 2 and 3 record, along with the evidence of Officer Whitton that the Prado was parked near a building numbered 19-21 Prospect Street. Lollback observed the person Ali Sweed exit the driver's seat and the person Ahmed Kabbout exit the front passenger seat. Ahmed Kabbout was the 29 year old brother of the accused. The accused lived at that time in a unit in the building numbered 19-21 Prospect Street, Rosehill.
11. Lollback had a brief conversation with both men and Sweed unlocked the vehicle. It is clear from the evidence, and in particular from the video evidence, that Sweed had the key to the vehicle and provided it to the police. Lollback opened the rear cargo door of the vehicle and immediately smelt a strong odour of cannabis and also noted that the rear seat of the vehicle had been removed and there was a carpeted floor of an abnormal height and a number of cargo hooks which he considered were not standard.
12. He also noted that it appeared two seatbelts had been removed. Lollback then called for assistance believing that the vehicle contained a large quantity of cannabis somewhere in the boot area. Lollback then said to the two occupants in the vehicle that the car reeked of cannabis and the accused's brother commented that he had just had a "joint". After other police arrived and lifted the rear floor of the vehicle, Lollback states that he could see a number of large resealable bags of what he clearly believed was cannabis. He then placed Sweed and the accused's brother under arrest.
13. Shortly prior to the lifting up of the rear floor of the vehicle by the police, Officer Pagonis in his statement records that both Sweed and Ahmed Kabbout appeared to be nervous and tense in their demeanour. A similar observation was made by Officer McWhirter in his statement.
14. Other officers at the scene located five large resealable bags from what is described as the false floor of the vehicle. Officer Whitham weighed those five bags which weighed in total 2.235 kilograms and he took photographs of them. For reasons that are not explained in the evidence, the green vegetable matter in those two bags was never analysed by the police before they were destroyed.
15. In Officer Pagonis' statement which is before me, in describing what he observed at the Prospect Street scene, he states that after the bags containing the green vegetable matter had been found by the police, Lollback sat in the driver's seat and "appeared to be attempting to locate another hidden compartment in the vicinity of the dash and centre console". He states in his statement that he saw the colour in Ahmed Kabbout's face "go pale and his facial expression appeared to be concerned as he was looking at what Senior Constable Lollback was doing and his stature appeared to become rigid".
16. Officer Brenchley made similar observations of those two men which he recorded in his statement as did Officer McWhirter. The police drug dog then attended the scene and gave a strong indication of the presence of prohibited drugs at the front dash of the vehicle. The police then organised for the vehicle to be towed to Rosehill Police Station.
17. Sweed and the accused's brother were removed from the scene by police and charged. They did not engage in a record of interview with the police. The proceedings against them were ultimately withdrawn in April 2018. Attempts were made by the Crown to have them give evidence in these proceedings but they ultimately were not called in the Crown case.
18. I turn then to the evidence concerning the search of the vehicle at Rosehill Police Station. The search of the vehicle takes place at the Rosehill Police Station and is the subject of video footage before me which was recorded by Officers Whitham and McWhirter.
19. While searching the vehicle, Lollback made observations of the air-conditioning control panel which appeared to be loose. He was able to pry it open and observed what he described as a silver handgun, a white medicine bottle, two small remote controls and a resealable bag containing white powder. I will discuss further evidence about the search in due course.
20. Lollback removed the magazine from the handgun and it contained seven live rounds and no rounds were in the chamber. The white medicine bottle was removed and it was observed to contain five rounds of .32 calibre ammunition and five rounds of .38 calibre ammunition. The gun itself was a silver and black .32 calibre semi-automatic self-loading pistol. The white powder was also removed and it was later analysed and found to be cocaine. The gun and the cocaine are the subject of the first two counts on the indictment.
21. There is evidence that a number of police were involved in the search of the vehicle at Rosehill Police Station. There was a substantial deconstruction of the vehicle conducted by the police as seen in the video of the search.
22. The evidence of Officer Whitham together with what can be seen in the video of the search establishes that during the course of the search, a number of the officers who searched the vehicle would at times take off their used gloves and place them on a table near the searching area. The number of officers who touched the firearm during the search of the vehicle is uncertain.
23. For example, Officer Whitham in his evidence was uncertain as to whether he had, in fact, touched the firearm during the search. The video evidence suggests that at one stage, he took a photo on his phone of the gun without wearing gloves on both hands.
24. The watching of the video shows that at one point, the officer who removed the gun from the vehicle fleetingly touched at least one glove that had been discarded by other officers who had searched the vehicle. It seems likely that he touched the inside of the discarded glove but the precise area that was touched is difficult to be certain of.
25. It appears also from the video that after the gun had been removed from the vehicle, it was turned over by another officer who was part of the officers engaged in the search of the vehicle in the police station. The precise circumstances in which that occurred are not apparent from a watching of the video.
26. Comments made by some of the searching officers at the end of the search suggest that the police may not have fully appreciated what needed to be done in order to ensure the integrity of exhibits that were to be the subject of DNA and fingerprint analysis, prior to commencing their search of the police at the police station.
27. The deconstruction of the vehicle demonstrates that both the hidden compartment at the rear of the vehicle and the one in the dashboard area of the vehicle were substantial modifications made to it with a degree of sophistication about them, when the mechanisms that were involved in accessing them are considered.
28. The Crown stressed the substantial modification to the vehicle within a reasonably short period of time that had passed since the vehicle was purchased and the involvement of the accused in the vehicle's purchase as supporting an inference that the accused knew of the hidden compartment at the front of the vehicle. The Crown argued that in combination with other evidence, it could be inferred that the accused had modified the vehicle with the intention of hiding what was ultimately located.

The Forensic Evidence

1. I turn to the forensic evidence. Firstly, the fingerprint evidence. There was no challenge to the fingerprint evidence that the Crown adduced in its case.
2. The right index, middle and ring fingers of Sweed were located on the top of the medicine bottle found in the hidden compartment which contained the pistol and the cocaine. That is the bottle which contained rounds of ammunition some of which were of the same calibre as the pistol located in the same area. Sweed's fingerprints were also found on parts of the vehicle itself. The accused's right palm print was found on the side of a Coolridge water bottle found in the front passenger side door pocket. In relation to fingerprints it is accepted that it is not scientifically possible to age them.
3. Turning to the DNA evidence. The Crown relied upon two expert reports by Alexander Bate the first dated 31 July 2019; the second report dated 24 July 2020 which essentially was prepared in response to the report of Helen Roebuck dated 20 July 2020. Ms Bate also gave evidence before me and was cross-examined. Ms Roebuck's report was tendered during the course of the cross-examination and she did not give evidence before me.
4. There was no significant dispute as to the DNA evidence; it was accepted that there was no issue concerning the qualification of both experts to give the evidence they gave. It was accepted that the DNA that was examined was trace DNA which is DNA from which it is not possible to identify the type of cells that the DNA originates from. Trace DNA is not able to be attributed to a particular bodily fluid. Both experts indicated that it is not possible to say how long DNA has been on an item for. They both indicate in their evidence that they could not say if DNA had been placed on an item by direct transfer, that is by a person touching an item, or whether by some form of indirect transfer.
5. In considering the relevance of, and what can be drawn from, the DNA evidence I note no DNA sample was taken from Ali Sweed at any stage by the police. Ms Bate did have available to her DNA samples from the accused and from his brother Ahmed. The DNA results of significance that were obtained by Ms Bate are as follows: From a swab of a knot of a plastic bag being the bag in which the cocaine was found a DNA profile of a single male contributor was found. The DNA, as I say, was from a single unknown male contributor, it was not able to be matched to a sample and was not matched on the DNA data base. The DNA recovered from the trace swab of the handle grip of the pistol was a mixture which according to Ms Bates' first report originated from at least two individuals. The accused cannot be excluded as the major contributor to that mixture. Assuming that there were only two contributors to that mixture it is greater than a hundred billion times more likely to obtain that mixed profile from the accused Mohamed Kabbout and an unknown unrelated individual rather than if it originates from two unknown unrelated individuals in the Australian population.
6. Ms Bate stated in her report that the DNA from the minor contributor to the mixture was not suitable for comparison due to the low level of complexity. In commenting upon Ms Bate's observations in her first report concerning the DNA found on the grip of the pistol Ms Roebuck stated in her report: "This DNA profile originates from at least two contributors however it is possible there are additional contributors that are below the analysis threshold which creates uncertainty in the evaluation of the DNA profile. It would be possible to reanalyse the DNA profile to confirm the number of contributors, however even if additional contributors are found to be present it is unlikely this will impact significantly on the statistical analysis relating to Mohamed Kabbout."
7. Ms Roebuck further commented about that mixture in her report, she opined: "It should be noted that it is not possible to exclude Ahmed Kabbout from the DNA profile as there are a number of the components observed in his reference DNA profile that were detected in DNA sample R13. However no statistical evaluation of this finding has been conducted."
8. The sample R13 is the sample found on the grip of the handgun. Ms Bate's second report essentially commented upon Ms Roebuck's report. In relation to the DNA sample where the accused is the major contributor, that is the DNA obtained from the gun's grip, Ms Bate stated that further work was required to confirm the number of minor contributors and to determine if the DNA from the minor contributor or contributors was of sufficient quality to be suitable for comparison to reference samples and for statistical analysis. Ms Bate in her report stated that Ahmed Kabbout was excluded as a contributor for that DNA mixture on the assumption that there were two contributors to the mixture. In her opinion, in order for Ahmed Kabbout to be not excluded from that mixture of DNA there would need to be at least three contributors to the mixture. Further work would need to be done on the mixture to determine if there were in fact more than two contributors to it. Ms Bate in her oral evidence confirmed that to be certain there are only two contributors to the mixture, further work would need to be done.
9. In her oral evidence Ms Bate said she saw no evidence in the mixture to suggest that there were more than two contributors to it, but she could not exclude the possibility that there were, without further analysis of it.
10. Ms Roebuck in her report details that she had watched the first nine minutes of the video of the search of the vehicle that took place at Rosehill Police Station. She records that while appropriate procedures were taken by police during the search, the DNA present on the gun may have been redistributed during handling of it when it was rendered safe by the police. Ms Bate in her second report specifically agreed with that observation.
11. In considering the issue of the possibility of the transfer of the accused's DNA to the grip of the pistol Ms Roebuck opined "If the accused had ridden in the vehicle his DNA could have been deposited on surfaces in it and available for indirect transfer to the gun". In these circumstances, she opined that it was not possible to determine whether the DNA detected on the handle or grip of the gun was deposited through direct contact or indirect transfer. In her second report Ms Bate on this issue commented: "If the accused's DNA was present on surfaces in the vehicle it is possible that another person could have transferred DNA from those surfaces into the hidden compartment or on to the firearm through indirect transfer."
12. Ms Bate in her second report also considered, after watching the video of the search of the vehicle, that as the police officer did not appear to touch any surfaces after changing his gloves it was unlikely that the DNA of the accused was transferred to the grip of the gun via the officer's gloves. Ms Bate agreed that DNA on the firearm may have been redistributed on the firearm during the handling and rendering safe of the firearm by the police during the search. In her oral evidence she explained what was meant by the term "redistributed". Her evidence was that the term referred to the possibility that a police officer, even though gloves were worn, may in effect transfer DNA from one part of the gun to another. Ms Bate also agreed that it was not possible to determine whether the DNA detected on the handle of the grip of the pistol was deposited through direct or indirect transfer.
13. Much of the cross-examination of Ms Bate was designed to explore the issue of the possibility of indirect transfer of the accused's DNA on to the grip of the gun. Ms Bate confirmed that generally when individuals have been in direct or indirect contact with each other in social household environments the possibility of the secondary transfer of DNA occurring will be considered reasonable and that therefore there may be little evidentiary value to the recovery of DNA from a specified individual. Ms Bate in her evidence explained that in such situations it is likely because of the frequency of contact that DNA may be the subject of indirect transfer. Ms Bate also agreed if the accused's DNA was present on surfaces in the vehicle, it was possible that another person could have transferred the accused's DNA from the surfaces into the hidden compartment in the front of the vehicle or on to the firearm through indirect transfer. Ms Bate explained in her evidence that if that occurred the other person may or may not leave some of their DNA behind while at the same time transferring the accused's.
14. Ms Bate accepted that if a police officer in searching the vehicle wearing gloves touched a surface of the vehicle that contained the accused's DNA and then touched the gun that was found it was possible that the accused's DNA could be transferred on to the pistol.
15. The integrity of the DNA mixture found on the gun was also explored with Ms Bate, in particular in light of what can be seen on the video of the search of the vehicle. Ms Bate confirmed that the swab of the pistol grip was taken on 4 September 2017 although the search of the vehicle occurred on 23 August 2017. That part of the video where the searcher of the vehicle has removed the gun to the table where there are discarded gloves and appears to be preparing the gun for placement in a paper exhibit bag was played to Ms Bate. Ms Bate agreed that it would have been preferable if the pistol was not handled after the police officer had touched the discarded glove because of the risk of transfer of any DNA on the glove to the gun.
16. Ms Bate also gave evidence it would have been preferable that the swabs of the car surfaces occurred before the car was effectively deconstructed by the police, because the touching of the car may in effect move DNA from one surface of the car to another.
17. In cross-examination Ms Bate also gave evidence that the root of a human hair does contain DNA and no hair was examined for the presence of DNA. A viewing of stills derived from the video of the search shows what appears to be a hair in the compartment where the gun was found but it is impossible to conclude that that was a human hair.
18. I have considered the DNA evidence, in particular that derived from the hand grip of the gun, in combination with other evidence relied upon by the Crown. I do not think I can place significant weight on the finding of the accused's DNA in the mixture of DNA found on the grip of the handgun. The primary reason I have come to that view is the number of possibilities that the two experts commented upon as to how DNA of the accused may have been transferred to the gun from another person, without the accused ever having touched it directly. It is of particular significance that one of the persons found in the car was an adult brother of the accused, someone whom, given where the vehicle was parked and their family connection, might be thought to be someone who had regular direct contact with the accused and places and things which may contain the accused's DNA. There is also clearly evidence linking the accused to the vehicle which suggests that it is likely that the accused's DNA would be on surfaces within it.
19. The presence of Sweed's fingerprint on the medicine bottle containing ammunition, some of which was suitable for use in the firearm that was found, together with the finding of the DNA of another unknown male on the plastic bag containing the cocaine, all suggest other persons may have had access to the items that were in the front hidden compartment and to that compartment itself. There are also the concerns raised in the evidence about how the search of the vehicle was conducted by the police and the integrity of the handling of the gun for DNA testing. All of these features of the evidence cause me to give very little weight to the finding of the accused's DNA on the handgun the subject of the Firearms Act charge.

Other Evidence

1. On 23 August 2017 Ahmed Kabbout and Swede were charged with possession of the gun and with knowingly take part in the supply of the cocaine and of what was said to be the cannabis found in the rear of the vehicle. Ahmed Kabbout gave as his address when arrested 67 Edgar Street Bankstown, the same registered address of the vehicle. The proceedings against those two persons were subsequently withdrawn on 12 April 2018.
2. The bail reports of both Ahmed Kabbout and Ali Sweed were put into evidence. Of significance is the fact that Ahmed Kabbout has a substantial criminal history. In particular, in 2009 he was convicted of robbery while armed with a dangerous weapon. The weapon concerned was a black semi‑automatic handgun. He has also served sentences of imprisonment for possession of prohibited drugs in 2015.
3. Ali Sweed has less of a criminal record but does have convictions for dishonesty. The officer-in-charge, Officer Sharma, gave evidence that as at the time of his arrest on 23 August 2017, he was suspected by police of being involved in firearm offences other than in relation to the firearm found in the Prado.
4. The accused's Prospect Street address was searched and the police found nothing of interest in relation to the investigation and the officer-in-charge gave evidence that no keys for the Prado were found at those premises. The address at 67 Edgar Street Bankstown was not searched by the original investigating police.
5. Sometime after 23 August 2017 the vehicle was returned by the police to the accused; there is no specific evidence as to how that occurred. There is evidence that the accused was disqualified from driving for two years from 9 December 2015 a period that ended on 8 December 2017. As of 23 August 2017 the accused was the owner, in his own name, of another vehicle a Porsche Cayenne. The wholesale value of the cocaine was said to be $6000.
6. On 25 January 2018 the accused was spoken to by Officer Rogers in Potts Point. The accused and the vehicle were searched; nothing adverse was found. The accused showed the officer effectively how to enter a hidden compartment behind an area of the dashboard. It is a reasonable inference that is the same compartment in which the drug and gun were found. Given the time of that demonstration and conversation with the accused, I do not think any adverse inference in terms of knowledge can realistically be drawn even looking at the whole of the evidence. By that time his brother had been arrested and charged in relation to the finding of the gun and the cocaine.
7. On 30 August 2018 Detective Sharma and other officers attended an address in Barangaroo and arrested the accused. The accused co-operated with the police essentially during his arrest. He responded at one point "Yes you will have full co-operation from me, I've left that shit behind in Bankstown, that is why I live here I don't want any problems". When interviewed that day and shown the gun, the accused indicated he did not recognise it. He was then charged.

Decision

1. I propose to consider count 2 on the indictment first, that is the possess pistol offence. I set out earlier the Crown's reliance upon s 4A of the Firearms Act in proving the accused's possession of the firearm, by reliance upon the extended definition of possession. I also set out earlier my analysis of the provision, and the meaning of the terms contained within it.
2. The Crown has not proven beyond reasonable doubt that the accused owned the premises concerned, being the Prado motor vehicle. In my opinion the evidence establishes that the company Brighton Petrol Pty Limited owned the vehicle as at 23 August 2017. I have discussed the evidence to that effect in my review of it. For the reasons I gave earlier, there is no legal basis for going behind the corporate ownership of the vehicle or of attributing the company's ownership of the vehicle to the accused in his personal capacity.
3. In my opinion, the Crown has not proved beyond reasonable doubt that the accused occupied the premises, being the Prado, as at 23 August 2017. I set out earlier my opinion as to what is meant by a person having occupied a premise, that is a vehicle, within the meaning of s 4A. The accused was not in the Prado when it was searched and the gun found, his brother and the person Ali Sweed were. The accused was not found to have a key to the motor vehicle on 23 August 2017. The key, on the evidence, was with Ali Sweed. In coming to this conclusion I have, in that regard, not lost sight of the fact that the vehicle was parked near a building in which the accused lived in a unit.
4. Apart from the DNA found on the gun, and I have explained why I consider no real weight can be placed on that evidence, the only other evidence linking the accused to the inside of the vehicle on 23 August 2017 is the finding of a water bottle with his fingerprints on it in the front passenger side door pocket. Fingerprints cannot be dated and that evidence provides no basis for a finding that the accused had occupied the vehicle that day in the relevant sense. For the sake of completeness, I record that I have not assessed the significance of that evidence in isolation but have considered it in combination with the other facts the Crown has relied upon in its circumstantial case.
5. In my opinion, the two relevant occupiers of the vehicle, in terms of s 4A, were in fact the accused's brother and the person Ali Sweed. The Crown in the course of submissions, when I raised the significance of the two men being occupiers of the vehicle in the s 4A sense, assumed the burden of submitting to me that the Crown had discharged a civil onus for each of them contained within the section. I think it is doubtful that the onus can be properly applied to persons who are not parties to the proceedings and I do not think the Crown was required to discharge the burden it assumed during submissions. However, the presence of the two men in the front of the vehicle at the time the police commenced to search it, is a matter of considerable importance on the issue of whether the Crown has proved the accused occupied it on the relevant date.
6. I also do not consider that the Crown has established beyond reasonable doubt that the accused had the care, control and management of the premise, being the Prado vehicle. I set out earlier what I consider to be the appropriate meaning of that phrase and its application to a premise that is a vehicle. There is no evidence the accused drove the vehicle that day or sat in the driver's seat in possession of the keys. There is no evidence that the accused at any point that day had keys to the vehicle, the only keys located by the police were those that Ali Sweed had when the police obtained access to it. There is no evidence that the vehicle was garaged that day at the premises the accused occupied. The nominated address for the vehicle, being the address of the accused's brother, which on the evidence, as at 23 August 2017, was not the same address that the accused lived at. There is no evidence capable of supporting an inference that the accused that day directed who was to have access to the vehicle, how it was to be driven, when it was to be driven or parked or where it was to be driven or parked. I have not lost sight of the fact it was parked near a building where the accused lived at the time but the evidence is silent as to how it came to be parked there. In these circumstances, in my opinion, the Crown has not established that the accused had the care, control or management of the premise, being the Prado vehicle, as at 23 August 2017.
7. It follows that the reverse onus contained in s 4A of the definition of possession, has no application to the facts as I find them established here, and the accused was not required to discharge the onus contained in the provision on the evidence.
8. The issue of whether the Crown has proved the element of possession in relation to the Firearms Act charge must then be determined having regard to the definition contained in s 4 of the Firearms Act and general common law principles associated with proof of the possession of an item. I outlined that provision and those principles earlier in this judgment. Relevantly, so far as s 4 is concerned, the issue is; has the Crown proved beyond reasonable doubt that the accused knowingly had the firearm in or on the vehicle concerned, it being irrelevant that the vehicle was owned or occupied by another person whether a corporation or an individual. As the Crown has maintained a sole custody case against the accused, it must prove beyond reasonable doubt that the accused had possession of the firearm to the exclusion of all others. The Crown must establish that he knowingly had the firearm at a place to which he had access and might go to to obtain physical custody or control to the exclusion of any other person. Again, the Crown's circumstantial case has been assessed in accordance with the principles I set out earlier with each piece of evidence being considered in combination with each other.
9. In this case I am not satisfied beyond reasonable doubt that the Crown has proved the accused knowingly had sole possession of the handgun found in the vehicle as at 23 August 2017. The evidence that causes me to have a reasonable doubt about the Crown's case on this basis is as follows: The accused was not found to have the key to the vehicle concerned, the key being with Ali Sweed; the accused was not in the vehicle but his brother and Ali Sweed were; the accused's brother has a history for firearm and drug crime; at the time the firearm was found Ali Sweed was suspected by the police of being involved in other firearm offences unrelated to the gun found in the vehicle; that the police observed changes in the demeanour of both the accused's brother and Ali Sweed, in particular when the police appeared to be interested in the front part of the vehicle; I referred to that evidence earlier; Ali Sweed's fingerprint was found on the medicine bottle which contained ammunition, some of which was suitable for the gun that was found.
10. I am unable to place any significant weight upon the finding of the accused's DNA that was found on the gun's grip for the reasons I gave earlier. There was at least one other contributor to the DNA that was found on the gun and possibly more. The DNA of another male person was found on the bag containing the cocaine that was found in the hidden compartment. The fact that Sweed's fingerprints were found on the bottle containing the ammunition for the gun and the fact another male's DNA was found on the bag of the cocaine strongly suggests that Sweed and perhaps another person had access to the compartment where the gun was found. In that regard I note the evidence that a sample of Sweed's DNA was never taken so his DNA could not be compared with the DNA that was found on that plastic bag. Nothing was found at the accused's premises linking him to the gun, the cocaine or to any item found within the front hidden compartment.
11. For those reasons I am not satisfied beyond reasonable doubt that the accused had sole possession of the handgun the subject of the Firearms Act charge, and I enter a verdict of not guilty in relation to count 2 on the indictment.
12. As I explained earlier, for the Crown to obtain a verdict of guilty in relation to count 3 it had to prove beyond reasonable doubt that the accused possessed the firearm the subject of count 2. As I am not satisfied beyond reasonable doubt that the Crown has proven that the accused possessed that firearm it follows that a verdict of not guilty is to be entered in relation to count 3.
13. In relation to count 1 on the indictment, in order for the Crown to invoke the deeming provision in s 29 of the Drug Misuse and Trafficking Act it must first prove that the accused had the sole possession of the cocaine that was found in the hidden compartment of the vehicle. I am not satisfied that the Crown has proved beyond reasonable doubt that the accused knew of the cocaine or that he had sole possession of it. To some degree my reasons are similar to what I have said as to why I am not satisfied of his guilt of count 2. The accused was not found to have the key to the vehicle concerned, it being with Ali Swede. The accused was not in the vehicle but his brother and Ali Swede were. The accused's brother has a history for drug crime and other offending. Ali Sweed's fingerprint was found on the medicine bottle which contained ammunition, some of which was suitable for the gun that was found.
14. I am unable to place any significant weight upon the finding of the accused's DNA on the guns grip, for the reasons I gave. There was at least one other contributor to the DNA that was found on the gun and possibly more. The DNA of another male person was found on the bag containing the cocaine that was found in the hidden compartment. Neither the accused's DNA or fingerprint was found on the bag containing the cocaine. The fact that Swede's fingerprints were found on the bottle containing the ammunition for the gun and the fact another male's DNA was found on the bag of the cocaine strongly suggests that Sweed and perhaps another person had access to the compartment where the cocaine was found. I note the evidence that a sample of Swede's DNA was never taken so his DNA was could not be compared to the DNA that was found on that plastic bag. Nothing was found at the accused's premises linking him to the gun, the cocaine or to any item found within the front hidden compartment.
15. For all of those reasons I am not satisfied beyond reasonable doubt that the accused possessed the cocaine found in the hidden front compartment of the Prado on 23 August 2017, I therefore enter a verdict of not guilty in relation to count 1 on the indictment.

Orders 1. Accused found not guilty in relation to count 1, count 2 and count 3 on the indictment.

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: 17 November 2020