R v Wood

Judge alone trial

1. Where an accused is tried without a jury, section 133 of the Criminal Procedure Act 1986 imposes certain obligations in relation to evidence relied upon by the Judge in reaching a verdict. That section provides: 133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
2. Section 133(2) requires me to expose in this judgement my reasoning process linking the principles of law with the facts found and justifying the latter and, ultimately, the verdict reached: Fleming v The Queen (1998) 197 CLR 250. This requirement however does not extend to publishing a judgement in the form a summing up would have taken had the trial been before a jury: R v Winningham unreported NSWCCA 10 May 1995.
3. Section 133(3) requires me to set out any requirement on me to give a warning to the jury, had this trial been before a jury, as well as the reasons why, notwithstanding the warning or in consequence of it, I have reached a particular verdict; Fleming v The Queen (1998) 197 CLR 250 at [28].
4. I remind myself of a number of fundamental principle, directions and warnings.

Onus and standard of proof

1. First, the Crown bears the onus of proof. The accused need prove nothing, he is presumed innocent unless and until proven guilty. The Crown must prove guilt beyond a reasonable doubt and even the gravest suspicion cannot be equated with proof beyond reasonable doubt. The Crown need not prove beyond a reasonable doubt every fact upon which it relies but only the essential elements of each count.
2. Before I could deliver a verdict that the accused committed the offence I must consider whether there is any rational hypothesis consistent with innocence and only if I could reject such proposition beyond reasonable doubt could I return a verdict of guilty.

Inferences and circumstantial evidence

1. I remind myself that inferences can only be drawn rationally from direct evidence. The Crown case is circumstantial and that requires the Crown to establish the inference which it seeks to have drawn from proven facts.
2. I bear in mind the direction as to circumstantial cases, in particular, that no individual fact can prove the guilt of the accused. Noting the case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence.
3. I note that I must first determine the facts established by the evidence being considered and altogether and determine whether one can conclude from those facts that the accused is guilty beyond reasonable doubt of any offence. I must determine whether there is any other reasonable conclusion arising from the facts found that is inconsistent with the Crown case before coming to a verdict of guilty on any count.
4. I bear in mind that circumstantial evidence may sometimes be more credible and reliable than direct evidence. For example identification evidence which is often dealt with in the standard direction, but that is not applicable in this case.
5. I bear in mind that in a circumstantial case no individual fact can prove the guilt of the accused. I must first, as I have indicated, find certain facts which are established by the evidence; then must consider whether the inference or conclusion from the combination of those established facts justifies a verdict of guilty on any offence.

Separate trials

1. I must give separate consideration to individual counts so that I am entitled to bring in verdicts of guilty on some counts and not guilty of other counts if there is a logical reason for that outcome. If I was to find the accused not guilty on any count, particularly in relation to the acceptance or otherwise of a witness' evidence I would have to consider how that conclusion affected my consideration of the remaining counts.

Witnesses not called

1. I must not speculate as to what may have been said by witnesses who were named in the evidence but were not called.

Agreed Facts

1. I have been greatly assisted by very comprehensive written submissions prepared overnight by counsel at the conclusion of the evidence yesterday and also by the efficient conduct of the trial, which included the preparation of agreed facts. An accurate version of the agreed facts has been summarised by Mr Roff, counsel for the accused in his submissions.
2. On 31 May 2018 the accused was residing at an address in East Gosford with his partner Annaliese Dean, having signed a rental agreement to rent those premises on about 19 March 2018.
3. Police were lawfully intercepting a phone number used by the accused pursuant to a search warrant; they intercepted a number of calls between February and April 2018 on his telephone number.
4. The accused has pleaded guilty to offences of supplying prohibited drug and is awaiting sentence on those offences. The agreed facts of those counts became exhibit M in the trial. As I understand it the fact that the accused had pleaded guilty to those matters was the principal reason for the application for judge alone trial which was not contested.
5. On 9 May 2018 the accused had supplied 223 grams of a prohibited drug to an undercover operative for $38,000.
6. On 23 May 2018 he supplied 536 grams of a prohibited drug to an undercover operative for $37,000. The UCO saw him place the money into a small bag with a shoulder strap.
7. On 31 May 2018, police attended a unit in East Gosford to execute a search warrant believing that was where the accused lived. It became apparent to them that he in fact resided in a neighbouring unit. Police then obtained a search warrant for the correct unit, which was executed about 10.15am.
8. Tactical police entered the unit and located a number of firearms in the roof cavity after removing a man-hole cover. The firearms located by Police include: 1. an unregistered Anshcultz .22 calibre rifle (#1215599), in working order with, an empty magazine that was located in the same area but not attached to the weapon. 2. an unregistered shortened 12 gauge BOITO side by side double barrel break action shot gun (#408297), in working order in the roof cavity near the man hole cover. 3. a shortened double barrel shotgun (#350001), in working order, registered to Mr Sean Burke, and had been reported missing.
9. The firearms were wrapped in orange shirt and white shirt. The man-hole was in the ceiling above the hallway of the unit near to bedroom 2.
10. Police also located a small black Adidas branded bag with a shoulder strap containing $4,950 in Australian cash in a bedroom, described as bedroom 2, on the mud map of the premises (Exhibit 1). Police also found, also found in the roof cavity near the man hole cavity near bedroom 2.
11. Police had information that a person by the name of Michael Moore lived with accused and subject to a firearms prohibition order. This was confirmed by Mr Moore in evidence, and that he had been subject to such an order since 27 November 2017.
12. At the time of the arrival of the police the accused, his partner Annaliese Dean, Andrew Pyke and Hayden Chapman were present.
13. Michael Moore, Tarron Tolmie, Hayden Chapman and Andrew Pyke had each lived at the property for various times over the last few months with the accused and his partner.
14. The accused knows a man named David Van Epen. Mr Moore also said that he knew that person.
15. The accused was interviewed in relation to the drug supply matters but was not asked about firearms because he was not arrested for them until about a month later. He provided a DNA sample and fingerprints. He was not offered the opportunity to take part in an interview when arrested for the firearms offences.
16. The man-hole cover was tested for fingerprints; two were identified as matching Tolmie, the brother of Annaliese Dean and the third print was not identified.
17. The orange and white shirts in which the firearms were wrapped or covered carried a major profile which matched that of Michael Moore. There was a mixed DNA profile found on the firearms but it was too weak or complex for comparison purposes.
18. The Adidas bag with the shoulder strap had DNA matching that of the accused located on the zipper, on the shoulder strap and on the inside of the main zippered compartment.
19. The accused was not authorised by licence or permit to possess firearms.

Evidence in the Crown Case

1. A number of additional facts emerged from the evidence and they have been summarised in the Crown's submissions as follows. 1. Hayden Chapman lived in the house for about 2 months prior to 31 May 2018 and had his own key. Mr Chapman was aware of the existence of the man hole but he had neither gone into the man hole nor touched it. 2. Tarron Tolmie stayed in the house for about 3 or 4 weeks from the beginning of April to the beginning of May. Tolmie said that he stayed there with his sister so that he could get clean from drugs. Tolmie, according to Chapman, was not involved in the drug deals at the house. Tolmie neither paid rent nor had his own key. 3. I accept the evidence showing that Andrew Pyke, also known as Samson or Samsung, arrived at the unit sometime after Chapman and came and went over the ensuing period. Chapman said that Samson would come and stay overnight and sleep on the couch. Tolmie said that there was a bloke that he knew as Samson who would come and stay a couple of days, and would come and go. 4. Michael Moore came and stayed about a month after Chapman moved in, that is, around mid-April 2018. The evidence of Chapman, Moore and Tolmie shows that Moore came and went and did not stay every night. 5. The evidence was that the accused had put $37,000 cash in a black Adidas bag when he was paid by the undercover operative for one of the drug deals. Although the Crown says that the evidence shows that the accused conducted drug transactions at his unit, the accused said that any actual transactions occurred outside the unit. It is clear that work preparatory, and related to the drug transactions and activities took place at the unit.
2. The Crown reminds me that I am not obliged to accept the whole of the evidence of any one witness, that I may accept a part and reject part of the witness' evidence. The fact that part of the witness' evidence is rejected does not mean that the whole of the evidence of the witness must be accepted.

Operation of s 4A of the Firearms Act 1996

1. A central matter for consideration, given the agreed or undisputed facts, is the operation of s 4A of the Firearms Act 1996 which provides that a firearm is taken to be in the possession of a person if it is in or on any premises owned, leased, occupied by, or in the care, control or management of a person, unless the Court is satisfied: 1. the firearm was brought into the premises by a person who was authorised to do so. 2. that the person did not know, and could not be reasonably expected to have known that the firearm was in or on the premises. 3. that on the evidence before the court, that the person was not in possession of the firearm.
2. Mr Roff accepts, in accordance with what is, in my view, the plain meaning of the legislation as well as what was said by McLellan CJ at CL in May v The Queen [2012] NSWCCA 250 at [25]: Section 4A of the Act places an onus on an accused person to satisfy the court on the balance of probabilities of the matters enumerated in s 4A(1): R v Gardiner [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [109]. Otherwise the firearm "is taken to be in the possession of a person in occupation of the relevant premises."
3. His Honour continues at [32], The legislature has framed an offence in respect of which a person in occupation of premises where an unauthorised firearm is located will be criminally liable unless they can, on the balance of probabilities, discharge the burden provided in s 4A(1) of the Act. That subsection requires the occupier to establish on the balance of probabilities that they did not know or could not be reasonably expected to know of the presence of the weapon. This requires more than evidence from which a possible inference could be drawn. The accused must satisfy the trial court that he or she either did not know or could not be reasonably expected to know of the presence of the weapon.

Evidence in the case for the accused

1. The accused gave evidence summarised by Mr Roff as follows. He acknowledged that he signed the lease with Ms Dean when he moved into the unit in March, and that not long after Chapman and Pyke began living there. Tolmie moved in a short time later and Moore started staying there towards the end of April.
2. There were three keys to the premises and he and Dean shared one, Chapman and Pyke shared one, and Moore had one. A person needed a key to use on all the doors to come and go. The accused and Dean shared bedroom 3, Chapman and Pyke shared bedroom 1. Tolmie occupied bedroom 1 until Moore moved in at which point he took over bedroom 2.
3. He agreed that he was using and supplying prohibited drugs which he was sourcing from David Van Epen, and providing them to customers. He either bought the drugs or agreed him to pay them once he had sold the drugs.
4. There were times when he would leave the house on his own or with some of the other occupants of the home. There were other people who would occasionally come into the home including Van Epen.
5. He denied ever possessing any of the firearms which are the subject of the charges. He denied placing them in the roof cavity, denied entering the roof cavity or even touching the man-hole cover.
6. His evidence involved being taken to a number of telephone intercepts. He essentially asserted that he was engaged in a scam. While a plain reading of the transcripts of the telephone intercepts suggests that he was dealing with, and discussing real firearms with the exception of one mention of a replica, his assertion was that he was endeavouring to obtain money upfront from people who wished to purchase firearms but he never provided the promised item and he kept the money. He said he would use pictures sourced from the internet. He also said that he would use replica firearms and try to obtain further replica firearms. He said that as a consequence of this scam he was assaulted on occasions.
7. He did agree that he tried to obtain actual firearms at a later stage but was unable to do so. He said that the only weapon he had was a police baton. He used to tell people things about firearms that were untrue, in order to keep up a pretence.
8. He dealt with a photograph which appears to show a tattoo on a hand holding a firearm; the same type of tattoo that is shown in photographs of the accused. He denied that the photograph in Exhibit F, taken from the phone of David Van Epen, at some unspecified time, was a photo of him.
9. Having examined the photograph in Exhibit F and comparing it with the photographs in Exhibit H, and the photograph of the shotgun on page 7 of Exhibit E I am comfortably satisfied, despite the denial of the accused, that the photograph in Exhibit F, shows the left hand of the accused holding the shotgun, having regard to the unique features of the tattoo which can be seen in each of the photos. I am also comfortably satisfied that the two images shown on page 70 of Exhibit E, the ballistics report, depict the same shotgun.
10. While the accused accepted that he had used the bag containing the $4,950, he denied that the money had come from dealing drug or that it belonged to him at all.
11. In addition to the evidence summarised by Mr Roff in his submissions the accused said that after a drug supply he would bring cash back to the unit and, he would spend money on drugs and clothes. He had been working as a landscaper for $200 cash per day for about three weeks before his arrest and he earned a total of about $2,500, which went to the bond money for the unit. He was also getting $450 a fortnight in Centrelink benefits which he was using for drugs and food.
12. He denied having any firearms, said he had a machete and a police baton. He had knives and piece of a plastic stick. He denied putting any firearms into the roof cavity and he said he had no reason to go into the cavity.
13. He said that Moore stayed every night except when he was reporting to parole at Liverpool, which was, as I have indicated, contrary to the preponderance of the evidence which showed that Moore was an irregular visitor.
14. His evidence as to what he was discussing during the course of the telephone intercepts was very difficult to accept. Apart from the one reference to the word "replica" to which I have referred, the proposition that he was talking in terms set out in the intercepts about anything other than real firearms defies credulity. In short, he said that a number of his statements there were instances of him lying or pretending to have real firearms, so that he did not look like an idiot. He said that he had some knowledge of guns, having grown up in Inverell where his mother had a firearms licence and he was familiar with weapons such as a 22 or 202 rifle.
15. He acknowledged as was shown in the agreed facts on the drug supply matters that he had sold drugs for $37,000 to the undercover operative about eight days before his arrest. He said that he gave the $37,000 to Dave Van Epen.
16. He said that Tolmie makes up a lot of stories and was not telling the truth when he said that he had been told to put cash in the roof by the accused. He denied that he had told Tolmie to put a firearm into the roof. He denied any knowledge of firearms being in the roof cavity.

Consideration of the evidence of the witnesses in the Crown Case

1. There were unsatisfactory aspects of the evidence of a number of witnesses called in the Crown case, some of whom gave evidence in court contrary to assertions made when first spoken to by Police.
2. Mr Chapman, who gave evidence while in custody on undisclosed matters, denied seeing the accused put money or guns in the roof, contrary to his assertion to the police when first spoken to, which was that he had seen the accused putting money in the roof cavity.
3. He said in Exhibit B, "During the time I was staying there none of us really had jobs or worked, we made money from dealing and selling drugs, mostly ice." He said, "I was aware that Mason would put money into the roof I've seen him do it once, I don't know how much".
4. He denied that in evidence. My impression of him during cross-examination was that he was attempting to tailor answers to assist the accused.
5. As the Crown points out there are similarities in the evidence of Mr Chapman and Mr Tolmie, insofar as what they originally told police on separate occasions.
6. Tolmie said that he was told by the accused to put money into the roof cavity on his behalf on several occasions.
7. Tolmie denied in evidence that he was lying to protect Moore. Tolmie said in his interview with the police, at question 264, that he had seen Mason at the manhole cover several times. He said he saw him standing on the stool, but he did not see him have anything, he was either standing on the stool or a bench or a table and he had seen him put it down or lifting it up, presumably referring to the manhole.
8. He said that Mason had asked him to put some money up in the manhole, being a stack of fifties and hundreds about five to six centimetres deep. As the Crown points out there was no evidence of any connection between the two men after they had been together intermittently for a period of some four weeks in early 2018.
9. Tolmie was interviewed in Queensland in February 2019 and Chapman was interviewed in custody in New South Wales in September 2019. There was no basis for concluding that they had somehow concocted a lie about seeing Wood put money in something else into the roof cavity.
10. Although Tolmie had said in evidence that had confessed to police that he had put a firearm in the roof at the direction of the accused, the Crown properly concedes that that conversation did not occur, according to the contemporaneous evidence.
11. Moore's evidence included an acknowledgement by him that he was an irregular occupant of the unit after his release from prison on 27 April 2018. No one suggested that Mr Moore was seen to have access to the roof cavity at any time. As the Crown submits the mere fact that his DNA was on a moveable item such as the shirts does not establish that Mr Moore had put the shirts onto the roof cavity. Mr Moore denied possessing the firearms or knowing that they were there and that appeared consistent with the fact that he was subject to a firearms prohibition order.
12. The evidence establishes that David Van Epen cannot be located despite the attempts of the police, and neither can Mr Pyke (also known as Samson) be located, but I draw no inference as to what they might or might not have said if they were called to give evidence.

Consideration of the accused's evidence

1. I bear in mind in assessing the evidence of the accused that it is unchallenged that he has been kept in custody at Long Bay, no doubt pending sentence on the drug supply charges for the duration of this trial and that involves him in getting up at 4.30am each morning in order to be transported by Correctives truck to Gosford and not returning to the Long Bay Centre until midnight. His food supplies have been limited to frozen sandwiches or other minimal items His evidence was that he was very tired at the time of giving evidence. Making due allowance for those matters, my observation of the accused was that he was able, without any apparent difficulty, to understand and respond to questions put by both the Crown Prosecutor and Mr Roff and also to follow without difficulty the questions as to the contents of many transcripts of recorded calls.
2. As Mr Roff puts, the evidence of the accused comprises the entirety of the case for the accused, but I am unable to accept Mr Roff's submission that he was a forthright or honest witness. Rather, his essential version as to the proposition that he was only discussing replicas in the intercepted phone calls was a convenient reconstruction on my view, in an attempt to avoid inculpating himself.
3. One particularly telling call was that recorded in number 1103, one of several calls had with Anthony Candido on 28 February 2018. The accused said that he had brokered a deal for a replica between Dave Van Epen and Candido and he was surprised to learn that Candido's boss had shot "the thing" and it had blown up in his hand, losing two fingers. He said that Candido wanted a weapon and that he, the accused, knew Van Epen had had one and thus he brokered a deal. That is, as the Crown submits, inconsistent with the contemporaneous conversations with Candido on that day.
4. I bear in mind that, as Mr Roff puts, citing R v Baden-Clay [2016] HCA 35, one must examine any reasonable hypothesis consistent with innocence before coming to the conclusion that a circumstantial case has been established. The only alternative reasonable hypothesis put here by Mr Roff is that the accused was referring to replica firearms in his conversations, and that taken with his denials of knowledge the Crown case has not been established according to the submission.
5. It is put by Mr Roff that there was an opportunity for someone to leave firearms within the roof cavity without the accused being aware. While there may have been an opportunity, there is absolutely no evidence that any of the people attending the unit took such opportunity or had any connection with the firearms which were located in the cavity.
6. I bear in mind in reaching my earlier conclusions as to the photograph the need to consider identification directions such as in Clout v R (1995) 41 NSWLR 312 and Lowe v R (1997) 98 A Crim R 300 and a Fernando ([1999] NSWCCA 66) warning about the potential unreliability of identification of objects. I had those directions in mind when expressing the conclusions that I did earlier in these reasons.
7. The Crown accurately summarised a number of matters which support the rejection of the assertion by the accused that he did not possess the firearms, namely, as I found he was prior to 24 May 2018 photographed holding the exact shotgun that was located in the roof cavity; he clearly has an interest and knowledge of firearms from the telephone calls; in the intercepted telephone calls he was clearly discussing with Courtney the fact that he possessed a .22 rifle with a cartridge capable of holding four rounds of ammunition, which corresponds with the items found in the roof cavity. In short his evidence was not capable of discharging the onus which rested upon him to establish any of the three matters in s 4A(1) of the Firearms Act 1996.
8. There was some debate in the written submissions as to whether the Crown case had been run only on the basis of sole possession, but that is not a matter of any significance in my view. The Crown case involved calling witnesses to rebut the s 4A case, which it was, accurately, envisaged to be relied upon by the accused.
9. An alternative way of summarising the Crown case, as put in the submissions, is that the Crown does not prove possession through the circumstantial case, but rather it rebuts the explanation offered by the accused by adducing circumstantial evidence, it being acknowledged by the accused that the deeming provision in s 4A leads to an evidentiary burden being cast upon the accused.
10. So in short the questions arising under s 4A are: 1. Is it more likely than not that the firearms were brought onto the premises by an authorised person? The answer to that is clearly, no. 2. Is it more likely than not that the accused did not know and could not be reasonably expected to have known that the firearms were on his premises? In the light of my findings the answer to that question is negative. 3. Is it more likely than not that the accused did not possess the firearms. Again in the light of my findings I answer that question in the negative.
11. Those findings lead, in my view, inexorably to a finding of guilty on counts 1 to 5.
12. Count 6 is in a different category. The Crown accepts that the accused bears no such onus in relation to the cash that was located in the bag in bedroom 2. The mere fact that the cash was located in those circumstances is insufficient in my view to justify a finding that the accused did possess that cash in circumstances where there were reasonable grounds to suspect that it was the proceeds of crime.
13. For those reasons the orders are that there be a verdict of guilty on counts 1 to 5 and not guilty on count 6. Note - These extempore remarks were revised without access to the court file

Amendments 28 March 2024 - Correct spelling of "preparation": at [15]. Insert "for" before "the acccused" : at [15]. Correct spelling of "emerged" : [34]. Insert "things" before "about firearms"; delete "things" before "that were untrue": at [45]. 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: 28 March 2024