R v Hansen[2014] QCA 245

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Alan Wilson J's reasons for dismissing this appeal against conviction.

[2] FRASER JA:  I agree with the reasons for judgment of Alan Wilson J and the order proposed by his Honour.

[3] ALAN WILSON J:  The appellant Thomas Grant Hansen was convicted after a trial by jury in May 2014 of one count of unlawful possession of a weapon.  He was fined $1,000.  A conviction was recorded.  He was also charged with armed robbery.  The jury could not reach a verdict on that count, and he was discharged.

[4] He appeals on the sole ground that the conviction for possession is unsafe and unsatisfactory and should be quashed, and that a verdict of acquittal should be entered.  His complaint is that the verdict was unreasonable, and could not be supported by the evidence.[1]

[5] The charge against him was brought under the Weapons Act 1990 (Qld).  Section 50(1) says that: ‘A person must not unlawfully possess a weapon’.

[6] The particular type of weapon here – a cut-down .22 rifle – was what the legislation calls a category C weapon.[2]  The maximum penalty for possession was 200 penalty units, or four years’ imprisonment.[3]

[7] The appellant’s case is, in short, that on the evidence before the jury it could not have been satisfied that he had ‘possession’ of it in a way which meant he could be convicted of a charge under s 50(1).

[8] Possession is defined in Schedule 2 of the Weapons Act to include, in relation to any thing:

(a)having the thing in one’s custody; and

(b)having the thing under one's control in any place, whether or not another has custody of the thing; and

(c)having an ability to obtain custody of the thing at will; and

(d)having a claim to custody of the thing which the claimant has committed to the custody of another, notwithstanding that the thing is temporarily not in the control of the person having such claim.  (Emphasis added)

[9] Words like possession, custody, and control have, unsurprisingly, often fallen for consideration by both criminal and civil courts.  Also unsurprisingly, nice distinctions can attach to their meaning in a variety of contexts.  Examples were referred to in the appellant’s submissions – in the civil jurisdiction, by reference to the decision of McHugh JA (as he then was) in Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd,[4] in which differences between possession, on the one hand, and control on the other, were discussed in the context of the Sale of Goods Act 1923 (NSW) – and, in the criminal jurisdiction, Yeates v Hoare,[5] in which Kaye J addressed Victorian firearms legislation (with quite a different definition of possession) and considered its nuances.

[10] By law, the definition in Schedule 2 applies to all the provisions of the Weapons Act.[6]  As a matter of ordinary construction, the meaning of words like ‘possession’ in a statute is to be determined by reference to their context.[7]  Other statutory instances of the use of the word are, then, of limited assistance.  Nor is it necessarily helpful, to have regard to definitions of the word under other legislation (e.g., the Criminal Code 1899 (Qld) or the Drugs Misuse Act 1986 (Qld)), or in the common law (as the appellant urges, in his written submissions).

[11] The definition in the Queensland Weapons Act has, on its face, a broad reach.  Its language contemplates having present custody or control of a weapon but, also, extends to deem possession where there is present ability to obtain or claim custody.  It also, clearly, includes the circumstance that more than one person may be in possession of a weapon at the same time.

[12] That broad construction and the extensive reach it connotes is consistent with the achievement of the principles of the Weapons Act, set out in s 3, which enshrine the notions that the possession of weapons is ‘…subordinate to the need to ensure public and individual safety’ and that ‘public and individual safety is improved by imposing strict controls on the possession of weapons’.

[13] The evidence about possession was, in the case against Mr Hansen, in limited compass.  For reasons which follow there is no call, or necessity, to go beyond the definition in Schedule 2 to determine if conviction was within the reasonable purview of the jury, properly instructed and applying the law correctly to that evidence.

[14] There were two pieces of evidence concerning the charge.  A prosecution witness, Damien Bussey, said that he met the appellant around September 2012 and on a few later occasions.  His evidence was that the second time they met, Bussey and another person named Bardsley borrowed the cut-down rifle from the appellant,[8] who told them not to lose the gun, and that they had to give him money for using it.[9]  Bussey and Bardsley did use the rifle that same night (7 October 2012) to rob the Kedron Hotel.  After the robbery they contacted the appellant and gave him ‘a bit of money’.[10]  They left the rifle in Bardsley’s car, and Bardsley later drove the rifle back to the appellant.

[15] On a subsequent occasion the appellant collected Bussey and Bardsley from a hotel on the Sunshine Coast and took them for a drive.  Bussey sat in the back seat, and said he saw the same gun under the front passenger seat.[11]  The vehicle was a silver Holden Commodore.

[16] In cross-examination Bussey admitted that he had attempted to falsely implicate the appellant in armed robberies, and that he was addicted to drugs at the relevant time.  It was for the jury to decide whether, notwithstanding those admissions, it should accept Bussey’s evidence that he had obtained the gun from the appellant and, also, seen it in a vehicle he was driving and, apparently, under his control.

[17] The other evidence concerned a police raid on a house at Buderim at around 7.30 am on 21 October 2012.  A police officer, Detective Daniel Pillar, gave evidence that upon entering a house at Buderim he found a group of people – three women and three men – including the appellant.  Pillar said he asked the group whether there were any firearms at the place.[12]  The only person who responded was the appellant who said words to the effect ‘… there's a firearm in the vehicle at the front of the place’.[13]

[18] Pillar gave evidence that he asked if there was a key to the vehicle and ‘after a short look around’ the appellant produced the key from somewhere down to the left side of the lounge, on which he was sitting.

[19] Two officers then accompanied the appellant to a black BMW sedan parked at the front of the premises.  Pillar used the key to unlock the car and opened the driver’s door.  He saw a shortened firearm protruding from under the driver’s seat.  The appellant is charged with possession of that weapon.

[20] When Detective Pillar was cross-examined he admitted that he could not recall the exact words used by the appellant when, as Pillar alleged, he said something to the effect that there was a firearm in the vehicle.  It was put to the police officer the appellant’s response was ‘equivocal’ and might have been something like ‘there might be one in the car’ or something on those lines.  The officer said that he was unable to say, because he could not recall exactly what the appellant said.[14]

[21] The appellant did not give evidence at his trial.  The suggestion that his answer to the Detective's inquiry about the presence of firearms was equivocal, put in the course of cross-examination by the appellant's counsel, is not positive evidence to that end.  In his evidence in chief, the officer gave evidence that in response the appellant said words to the effect that ‘… there's a firearm in the vehicle at the front of the place’.[15]  In cross-examination, he said the same thing, while admitting he could not recall the appellant's exact words.[16]  That is qualification, rather than equivocation, and remains evidence of sufficient weight for a jury to conclude that the appellant spoke some words indicating knowledge on his part, and information, as to the whereabouts of the gun – information which, of course, turned out to be entirely correct.

[22] There was some other evidence concerning the black BMW.  The appellant’s girlfriend Samantha Whiteman was at the house at the time of the police raid.  She gave evidence that, earlier that day, she had been collected from another place by Bardsley, who was driving a black BMW and he took her in that vehicle to the house at Buderim.  The appellant was not in the vehicle during this journey.

[23] The possession charge was addressed in the learned trial judge’s summing up to the jury.  He gave, with respect, unexceptionable directions about the definition of possession under the Weapons Act and, also, the meaning of ‘custody’ and ‘control’ in the context of that definition.[17]  Those instructions were not the subject of any complaint, or application for re-direction.

[24] There was evidence, during the trial, that the black BMW was stolen.[18]  There was also evidence that .22 calibre weapons are probably the most common calibre accounted for in firearms;[19] and, that a significant illegal gun market existed at the time.[20]  This evidence (and the evidence about the silver Commodore) may have engendered a degree of hesitation in the minds of the jury members about the appellant’s control over the gun, and its whereabouts at different times.  It cannot be said, however, that of its nature it must necessarily have left the jury with a reasonable doubt about the question of possession.

[25] The question on appeal is whether, upon the whole of the evidence before the jury, it was open for it to be satisfied beyond reasonable doubt that Mr Hansen had possession of the cut-down .22 rifle, as that term is defined in the Weapons Act.[21]  An appeal here can only succeed if the court is persuaded that, after making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.[22]

[26] The evidence of the police officer was that when six persons were asked about the presence of firearms, only one answered.  That person, the appellant, then correctly proclaimed knowledge that a firearm might be inside a car that was parked at the front of the house.  He was then able to produce the key to that car.  A firearm was found in it.

[27] On that basis alone the evidence was sufficient for the jury to conclude that the appellant had the gun under his control, whether or not it was actually in his physical custody at the time (the second limb of the definition).  It was also open for the jury to conclude that the appellant had the ability to obtain custody of the gun, at will (the third limb) or that it was temporarily in the custody of another person (the possessor of the black BMW) but in circumstances where he maintained a claim to its custody (the fourth limb).

[28] In addition, the jury had the evidence of Bussey about the transaction under which the appellant had, in effect, hired the gun to him and his associate.  That evidence potentially corroborates a claim to possession by the appellant under each of the four limbs of the definition.

[29] It is not for this Court to gainsay the use the jury made of this evidence, beyond the observation that it was, if accepted, plainly sufficient to justify the verdict it reached.  Nothing in the appellant’s submissions is persuasive that acceptance of the police evidence, or that of the witness Bussey, or both, necessarily signifies some irrationality, or unreasonableness, infecting the jury’s reasoning process.

[30] This is a case in which the jury had evidence before it sufficient to justify a guilty verdict.  There is nothing in the case giving rise to a concern that an innocent person has been wrongly convicted.

[31] The appeal should be dismissed.