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Queensland Police Service v Dunlop[2019] QMC 3

Queensland Police Service v Dunlop[2019] QMC 3

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Police Service v Dunlop [2019] QMC 3

PARTIES:

QUEENSLAND POLICE SERVICE

v

JASON MARK DUNLOP

FILE NO/S:

MAG-00090815/18(1)

DIVISION:

Magistrates Courts

PROCEEDING:

Criminal Trial

ORIGINATING COURT:

Magistrates Court, Mackay

DELIVERED ON:

3 May 2019

DELIVERED AT:

Mackay

HEARING DATE:

19 September 2018

MAGISTRATE:

A/Magistrate J M Aberdeen

ORDER:

Defendant found “Not Guilty”

CATCHWORDS:

WEAPONS – Offences – Possession – Element of knowledge in concept of possession under the Weapons Act 1990.

WEAPONS – Offences – Possession – Liability of occupier – construction of s.163(3A) Weapons Act 1990.

COUNSEL:

For Prosecution: Ms Beard (civilian prosecutor)

For Defence: Mr P Clark (Solicitor)

SOLICITORS:

Queensland Police Service – Prosecution Corps

Strutynski Law, Mackay

REGISTRY: Mackay

MAG-00090815/18(1)

QUEENSLAND POLICE SERVICE

v

JASON MARK DUNLOP

DECISION

  1. [1]
    The Defendant Mr Jason DUNLOP appears before the Court charged with seven (7) offences which can be shortly described as follows:-
  1. (i)
    Possess dangerous drug Cannabis on 24 April 2018;
  2. (ii)
    Unlawfully possess a handgun being a Category H weapon on 24 April 2018;
  3. (iii)
    Unlawfully possess a rimfire rifle modified to fire with a full[y] automatic action, being a Category R weapon, on 24 April 2018;
  4. (iv)
    Unlawfully possess a silencer(s)[1] being a Category R weapon on 24 April 2018;
  5. (v)
    Unlawfully possess a rifle being a Category B weapon on 24 April 2018;
  6. (vi)
    Possess ammunition without authority on 24 April 2018;
  7. (vii)
    Possess a pipe that he had used to smoke a dangerous drug, on 24 April 2018.
  1. [2]
    To charges (i), (iv), (vi) and (vii), the Defendant has entered pleas of “Guilty”.
  1. [3]
    To charges (ii), (iii) and (v), the Defendant has entered pleas of “Not Guilty”.

PROSECUTION CASE:

  1. [4]
    On the 24 April 2018, police officers, under the direction of Senior Constable Tara Stanton, executed a search warrant under the provisions of the Drugs Misuse Act 1986 on a rural property located at 39 Okuloo Road, Netherdale.
  1. [5]
    Upon arrival at the property, police proceeded to the residence some distance from the entrance, with the Defendant’s wife, Ms Rebecca Dunlop. While doing so, they passed a large shed some 2 kilometres from the house. Police officer Ward was dropped off at the shed, and remained there while the remainder of the police contingent continued to the residence.
  1. [6]
    Upon arrival at the residence, police found the defendant Mr Dunlop, a small child, and a Mr David Dennis, the Defendant’s cousin, who lived in a caravan on the property. All persons were formally detained to facilitate the search, and all adults present were administered cautions and advised of their rights, pursuant to the Police Powers and Responsibilities Act 2000. All adults present advised their understanding of the caution administered to them.
  1. [7]
    A search then commenced of the residence, and of the land adjacent to the residence. A number of relevant items were found during the course of the search.
  1. [8]
    Within the dwelling, a quantity of ammunition[2], a small quantity of cannabis, and an “ice pipe” were located near a computer desk. Police also found what appeared to be silencers, and more ammunition, on the patio outside the house itself.
  1. [9]
    A further quantity of ammunition was found outside the residence, near what appeared to be targets[3].
  1. [10]
    A search of the defendant’s JEEP vehicle parked outside the residence located a homemade silencer.
  1. [11]
    Also outside the residence, police located a quadbike. During a search of this vehicle, the seat was lifted, and a black bag was found under the seat. Inside this bag was what appeared to be a “derringer” style handgun[4]. A search of a second quad bike located both .22 and .30-30 ammunition[5]. Upon a later search of the defendant’s wife’s vehicle, Constable Stanton observed what appeared to be a purse which matched the bag in which the handgun had been located on the quad bike – in her words “they appeared to be [a] matching set”[6].
  1. [12]
    Following the search of the residence and surrounds, attention was directed to the large shed which the police had passed on their entry to the property. This shed was not visible from the residence, and the residence was not visible from the shed.
  1. [13]
    Upon arrival by police at the shed, it was found to be locked, with the key to the shed being on the Defendant’s keyring. Notably, a key to the quadbike, under the seat of which had been found the derringer handgun, was also on that keyring.
  1. [14]
    The shed was opened (through two locked doors), and the search then continued within the shed[7].
  1. [15]
    Within the shed, police found a cut-down .22 rifle with a telescopic sight[8], and a magazine, in a duffel bag. Behind a sheet of building material leaning against a wall of the shed, was found a lever-action 30-30 rifle, and ammunition to fit[9].
  1. [16]
    The searchers also found a 3-D printed handgun frame, a .22 calibre rifle bolt, further ammunition, and a number of objects thought to be homemade silencers, or at least attempts to make such.
  1. [17]
    The prosecution tendered, without objection, three (3) certificates relating to the three firearms the subject of the charges, as follows –

    Exhibit No  2A   Derringer handgun (charge (ii))

        2B  Stirling cut-down .22 rifle (charge (iii))

        2C  Marlin lever-action .30-30 rifle (charge (v))

  No submission was made to me concerning these certificates by Mr Clark, who appeared for the Defendant, and I accept the certificates, and intend to give effect to them according to their terms.

  1. [18]
    The prosecution also tendered two (2) further certificates, which stated that neither the Defendant[10], nor a Mr Bradley Scott ARMITSTEAD11 held any type or form of weapons licence or permit as at the 24 April 2018. The significance of Mr Armitstead will become apparent shortly.
  1. [19]
    Senior Constable Stanton gave evidence, and confirmed the execution of the search warrant, and the attendance at and search of the premises occupied by the Defendant and his family.
  1. [20]
    Through Constable Stanton was tendered a CD containing, in two files, a video recording including audio, of the carrying out of the search, and of conversations with the Defendant.
  1. [21]
    There was also tendered a USB containing a digital video and audio file, recorded by the body-worn camera worn by Constable Newnham, which showed the actual finding of the handgun, the cut-down .22 rifle, and the Marlin 30-30 rifle, as well as other items (eg ammunition, and silencers/parts of silencers, as well as part of a 3-D printed handgun).
  1. [22]
    I have viewed both of these documents in their entirety.
  1. [23]
    Senior Constable Stanton testified that she searched Ms Dunlop’s vehicle, and located a purse which, to her perception, matched the black bag holding the handgun which was found under the seat of one of the quad bikes. Ms Dunlop, according to Constable Stanton, admitted that the bag in which the handgun had been found belonged to her[11]
  1. [24]
    Constable Stanton also stated that when questioned about some of the items found, Mr Dennis suggested that police speak with Mr Bradley Armistead. The Defendant also stated that he had some friends who had attended at his property some three to four days prior to the arrival of the police to go shooting. The Defendant also stated to Constable Stanton that “everyone goes in the shed”13.
  1. [25]
    In response to questioning by Mr Clark (for the Defendant), Senior Constable Stanton stated that she had ascertained that the Marlin 30-30 was one of two firearms which had been stolen from a Mr Madigan in Mackay. It was also stated that sometime earlier in the year there had been a falling out between the Defendant and Mr Armitstead. It also appeared that Mr Armitstead had left the area, and had not been able to be located by police in order to be interviewed about the weapon.

DEFENCE CASE:

  1. [26]
    Mr Dunlop gave evidence in his own defence.
  1. [27]
    The Defendant stated that he had lived at the property since about September 2017[12]. He had previously worked as a coal driller in an underground coal mine. While doing so, he had been involved in an industrial accident consisting of an explosion within the mine following a failure to properly seal an air-conditioning unit after re-gassing. In this incident he suffered a severe neurological injury which has left him virtually unemployable[13].
  1. [28]
    As a result he suffers from a number of ongoing symptoms. He has a memory defect, and it has adversely affected his motor skills[14]. He lost about 15 seconds of memory from the time of the accident, which he will not recover. He has been assessed as having a 24% “mental illness” (disability ?) by WorkCover, and by his neurologist[15].
  1. [29]
    He has been in receipt of ongoing daily medication for a period in excess of 5 years, namely Clonezapam, an anti-anxiolytic drug. In the absence of medication, he gets “too hotted up”, and blacks out. He is also taking anti-depressants[16]. He has used cannabis occasionally in an effort to self-medicate[17].
  1. [30]
    During his initial conversations with Constable Stanton, and during his examination and cross-examination at trial, the Defendant adverted to the difficulties he had encountered as a result of his workplace injury. No medical evidence was called on his behalf confirming his accident and the after-effects. But he was not challenged on his statements of past and current symptomology. I mention these matters at this point because, while they do not go to criminal responsibility, they do have a bearing upon how I assess the weight of Mr Dunlop’s statements, both to the police, and in evidence before me.
  1. [31]
    His ongoing disability and symptomology mean that he cannot undertake meaningful work. He is assisted around the property by his cousin Mr Dennis. He can do some work for a few hours a day[18], but has to rest; and, as indicated, is under a substantial regime of medication.
  1. [32]
    He has a number of friends (not further identified) who have come to the property, prior to the day of the search, to shoot their guns. His own involvement with actually shooting guns belonging to others was not explored in his questioning.
  1. [33]
    He admitted to occasional attempts to self-medicate with cannabis, and to having used methamphetamine, via a glass pipe, in the days before the raid.
  1. [34]
    While the locations of the ammunition and the silencers were consistent with a clear lack of concern or attention as to their safety or storage, there was a clear difference with respect to the three firearms, each of which was, I think, deliberately concealed.
  1. [35]
    The Defendant told police that various people would ride the quad bikes at the property (“everybody”).
  1. [36]
    When the quad bike was initially searched, the hand gun under the seat was not found. The officer involved can be heard to state, on videotape, that he did not realize, at that time, that the seat lifted up. Only when a further search was carried out was the seat lifted. This was not explored in evidence. It may have been useful to have evidence as to why the seat might be lifted, eg to re-fuel, or to service or tune the vehicle. It may have been probative to have this information. Even in the absence of any evidence as to when the handgun may have been placed under the seat, it would be relevant if the seat had to be frequently lifted in the normal course of usage. If it was only lifted on rare occasions by users, that too may have been useful to know.
  1. [37]
    In his evidence, Mr Dunlop stated, when asked about the friends he had who would come to his property to shoot, stated that he had engaged a Mr Brad Armitstead to attend his property to eradicate (viz, by shooting) wild pigs, wild dogs and water rats, which posed a threat to Mr Dunlop’s pastured goats[19]. Mr Dunlop stated he had receipts for the money he had paid to Mr Armitstead for eradication, and that he had kept these as he needed them for his tax, as a primary producer[20].
  1. [38]
    With respect to the handgun found on the quad bike, Mr Dunlop stated that when told about it by police, he assumed it must have been brought to the property by Mr Armitstead[21]. Similarly, he stated, with respect to the cut-off .22 rifle found in the shed.
  1. [39]
    Mr Dunlop also confirmed that he had provided to Mr Armitstead keys to the front gate of the property, and to the shed[22] – 

“…he also had my bike[23] – was left down at the shed, so whenever he turned up from work he could just go and do his thing”.

  1. [40]
    The Defendant stated he had not seen the Marlin 30-30 prior to the date of the raid.
  1. [41]
    With respect to the 3-D printed handgun frame, Mr Dunlop stated26 that his psychiatrist, or perhaps neurologist (“shrink”), had told him to take up a hobby to

keep his “brain a bit active”. He got into 3-D printing[24], which he found calmed him down, and thus assisted him to manage his anxiety.

  1. [42]
    In about January 2018 – about 3 months before the police raid – there had been a falling-out between the Defendant and Mr Armitstead which arose due to Mr Armitstead failing to do work on machinery for which he had been paid by Mr Dunlop – “he skipped without paying…he owed me about 8 ½ grand…”[25].
  1. [43]
    When asked by his Counsel, the Defendant stated that he was unaware whether or not he had raised these matters with Constable Stanton (or police) on the day the search was carried out. The Defendant stated that he was uncertain if he had. He stated that he had been medicated, but he did recall his cousin Mr Dennis saying something like “just tell them” which he related to the information concerning Mr Armitstead[26].
  1. [44]
    With respect to the black bag containing the handgun found on the quad bike, Mr Dunlop told the prosecutor that there were a number of old bags in the shed “exactly the same”, which he was in the process of going through and dumping30.
  1. [45]
    Mr Dunlop was cross-examined at some length on aspects of his evidence, and maintained a consistent claim that he was unaware of the presence of any of the three firearms, found by police, prior to their arrival.

CONSIDERATION:

  1. [46]
    These are criminal proceedings. It follows that the onus of proof[27] at all times remains upon the prosecution. I must be satisfied, beyond any reasonable doubt, before I am able to find the Defendant “Guilty” of the charges in issue.
  1. [47]
    The principle facts are that on the day in question, three weapons were found on premises under the control of the Defendant. A handgun was found under the seat of a quad bike. Two firearms – a lever action 30.30 rifle, and a cut-down .22 automatic rifle - were found in a shed, on the Defendant’s rural property, containing a great deal of property belonging to the Defendant and his family. The former was behind a sheet of panelling leaning against a wall. The latter was contained, along with other property, in a bag similar to a duffle bag. This shed was locked when the police sought to enter it, and it is noted that the Defendant had the keys[28] to what appeared, on the video footage, to two doors, both of which had to be unlocked.
  1. [48]
    The Defendant has at all times denied knowledge that the firearms were in the position in which they were found, or indeed, on his property at all. He raises, therefore, a defence which goes to a central element of the concept of “possession”.
  1. [49]
    The prosecution, however, has advanced its case on two bases – (i) upon the “usual” meaning of possession, whereby it submits that I draw the inference, from all the evidence before me, that the Defendant must have known that the three firearms in question were on his property; and (ii) pursuant to section 163(3A) of the Weapons Act 1990 pursuant to which, in given circumstances, an occupier is “taken to have been in possession” of the firearms, subject to three specified exceptions33.

(a) “Possession” in its usual sense:

  1. [50]
    It is trite law that, generally speaking, “possession” in its usual (and common law) sense, requires knowledge of the item in question;
  1. [51]
    Such was confirmed by Queensland’s courts soon after the introduction of the Criminal Code. In Crudginton v Cooney, Chubb J, a Judge with extensive criminal law experience, said[29]:

“The word possession connotes knowledge of that which is possessed… unless the things were upon his premises with his knowledge they were not in his possession at all.”

  1. [52]
    His Honour adhered to this approach in Molloy v Hallam, relying on the same authorities, in 1903[30]. This decision was confirmed by the Full Court consisting of Griffith CJ, Cooper and Real JJ. The judgment of the Full Court was delivered by Griffith CJ, who stated[31]:

“Chubb J thought that there was no evidence of the hide being in the defendant’s possession to his knowledge and held that a mens rea was necessary. Section 23 of the Criminal Code provides that a person is not criminally responsible for anything that occurs independently of his will. A man cannot therefore be convicted of having possession of property supposed to be stolen if he knows nothing about the possession.”

  1. [53]
    Save to the extent to which this rule may have been modified, either by statute or by appellate decision, it remains the law with respect to the concept of “possession”[32].
  1. [54]
    Can it be said that the Defendant had the requisite knowledge to satisfy the usual sense of “possession”?
  1. [55]
    There is no room for doubt that (i) the Defendant was, at all relevant times, in control of the property at 39 Okuloo Road, Netherdale. Nor can it be denied that the three firearms, the subjects of charges (ii), (iii) and (v) were found at that property, in a shed to which the Defendant had access and control. Mr Clark did not argue to the contrary during the course of the trial.
  1. [56]
    Similarly, it is not in contended that ammunition for at least calibre .22 and 30-30 were not found at various places through the Defendant’s property[33], eg in the lounge room, a bedroom, on the patio, in at least one quad bike parked at the premises, in the yard (near what looked like a target), and in the shed. Further, and, in a sense, disturbingly, this ammunition was found in places to which any person – including, for some of it, the Defendant’s 3-year-pld toddler – could have gained access. There was no apparent attempt to store or secure the ammunition safely[34]. On the contrary, its locations pointed to extreme carelessness[35].
  1. [57]
    Although they were not the subject of any charge, it can also be taken into account that in the shed were found (i) a .22 rifle bolt, and (ii) a 3-D printed (in what appears to be a white plastic-like material) frame or receiver of a handgun.
  1. [58]
    Of further concern, was the fact that a number of what appeared to be similar to silencers (albeit with one exception, probably homemade) in the Defendant’s JEEP, on the patio outside the house, and in the shed. The count from the shed was eleven (11) silencers or pieces thereof, including non-working attempts at manufacture[36], which did not include the items found on the patio, or in the Defendant’s JEEP.
  1. [59]
    Of course, the Defendant has already entered pleas of Guilty to the charges of possessing ammunition and silencers. Thus he accepts he had the necessary knowledge to support “possession” of these items. And, as I have indicated, the very possession of these further items concentrates focus upon the Defendant’s claim that he did not know any of the three firearms were on his premises.
  1. [60]
    Based upon the finding of the ammunition and the silencers, I think it is reasonable to form a view that the Defendant had some particular interest in firearms, even though he was not a licensed firearm holder and, according to his statement to police, he did not own a firearm himself.
  1. [61]
    The defendant told police that he tried making silencers to avoid the situation where, when a pest animal was shot by the person who was employed by him to eradicate vermin on his property, the sound of the first shot would disperse any other vermin in the vicinity. The silencers, so he claimed, were intended to allow a more surreptitious harvest of pest fauna[37].
  1. [62]
    That may be one explanation. There are other possibilities as well. The use of a silencer, in and of itself, in my opinion, takes on a strategic significance in the case of any usage of a firearm. The very thought that silencers are readily available, and could be used for “non-innocent” purposes, is deeply disturbing.
  1. [63]
    Such concern notwithstanding, I have to be careful not to readily imply some malevolent motive to the Defendant, in respect of his making of silencers, without very compelling evidence.
  1. [64]
    His affected memory, and his disordered thoughts, may well contribute to a lessthan-ideal care with respect to ammunition he has found on his property. It is, of course, very possible that he may have had friends who came to his property to shoot. The location of the apparent target suggests this was so. And the finding of shell cases, “dud” rounds (and possibly some live rounds), not far from the target, lend support to that possibility.
  1. [65]
    With the one possible exception[38], the silencers were crudely-assembled devices which may or may not have worked. There was no evidence of any testing of these devices. There was similarly no evidence as to how many live rounds, as opposed to what the Defendant described as “duds”, were found lying around the place.
  1. [66]
    I noted, in the course of evidence, that the handgun found on the quad bike appeared to have a thread at the end of the barrel. Such appears clearly in Exhibit 3. But no evidence was led before me as to whether this was a feature which might have facilitated attachment of a silencer – more to the point, attachment of one or more of the silencers which were found at the property.
  1. [67]
    Similarly with the cut-off .22 semi-auto rifle (charge (iii) ); there seems to be some sort of modification to the end of the barrel of this weapon. From the photographs, there is a hint of a thread on page 6/26 of Exhibit 3. Again, however, there was no evidence before me that any of the silencers found at the property were compatible with that thread (assuming that’s what it was).
  1. [68]
    Had it been the case that such comparisons were carried out, and had showed a positive match between these two firearms and any of the silencers, that may have been an important fact to consider.
  1. [69]
    With respect also to the cut-off .22 rifle, I was unable to locate in the video footage, which I believe constitutes almost the entirety of the interaction between the police and the Defendant that day, any questions posed to the Defendant, or answers by him, as to other items which appeared, on the video, to have been contained in the same bag in which the cut-off .22 had been located. He was not asked about ownership of the bag, nor of the other items found within it[39].
  1. [70]
    There was an absence of any suggestion that trace evidence, in the form of finger or palm prints, or any matching DNA profile, had been lifted from any of the three firearms found. These traces, of course, are not always present – some surfaces are hostile to the retention of this type of data. However, it was clear that searching police contemplated that attempts to lift trace evidence would be made[40]. Any of such traces which were identifiable as belonging to the Defendant, would, I suspect, have made my task here considerably easier.
  1. [71]
    One final matter also should be mentioned. The Marlin 30-30 lever-action rifle, in a soft black vinyl guitar case, was found in the shed behind a sheet of building material which was leaning against a wall. Checks of that weapon’s serial number revealed that it had belonged to a Mr Madigan of Mackay. At some date after the search, Constable Stanton spoke to Mr Madigan (a licensed person), and inspected his weapons security facility. It was found that two of his weapons were missing (one of which was the Marlin), and had obviously been stolen. Constable Stanton then contacted the defendant, who told her that a Brad Armitstead might “know something in relation to those firearms”[41]. Constable Stanton, upon further inquiry, established that a Bradley Scott ARMITSTEAD did indeed exist (with a d.o.b. of 23/11/89), and that he had left Mackay “rather quickly” one to two weeks previously. Subsequent efforts to locate him had been unsuccessful (he had “since successfully eluded police”[42]).
  1. [72]
    It is fairly clear, to me at least, that Exhibit 5B for the prosecution, which is a certificate stating that Bradley Scott ARMITSTEAD dob: 23/11/89 was not, at the time of the search, or at any other time, the holder of an appropriate firearm licence or permit, was tendered to answer a possible argument involving s.163(3A)(a) of the Weapons Act, namely, that the weapon/s had been brought to the place in question (the defendant’s property) by a licensed holder. I am not sure that Mr Clark raised such an argument; and perhaps Exhibit 5B was obtained and tendered purely as a matter of precaution.
  1. [73]
    I accept the tendering of Exhibit 5B was a reasonable step, in the light of what Constable Stanton was told by Mr Dunlop, and the existence of s.163(3A)(a); but the injection into this inquiry of a potential third party, in the form of Mr Armitstead,

does complicate the situation to some extent. This intrusion has the potential to become more relevant if, as claimed, Mr Armitstead had keys to the gate of Mr Dunlop’s property, and to the shed where two of the guns were found[43].

  1. [74]
    I also, of course, have to factor in to my assessment such matters as were raised by the Defendant, and I have referred above to most of the matters touched upon by Mr Dunlop in his evidence.
  1. [75]
    Knowledge to underpin possession may be the subject of direct evidence, for example, by way of an admission by an accused person that they were aware of the existence of the weapon; or may be indirect, in that the necessary knowledge may be inferred from all the circumstances of the case. However, as is necessary with other categories of circumstantial evidence, if the requisite knowledge is to be inferred from the circumstances, then that knowledge must be the only rational inference.[44]
  1. [76]
    Taking into account all the circumstances, as known or inferred from the evidence adduced at trial, I am not convinced that a finding of the requisite knowledge to underpin possession is the only rational inference available.
  1. [77]
    Such degree of (I believe well-founded) suspicion as I entertain as to what was happening at the Defendant’s property, where ammunition and silencers were openly and admittedly in abundance, fails to dislodge the persisting concern I have that the Defendant may have been, as he claims, in complete ignorance as to the presence of these firearms on his property. It can readily be accepted that he did allow friends to shoot on his property, and that in the case of one of them, he actually paid him to do so. So much I have no difficulty in accepting. Mr Armitstead’s apparently-hasty departure from Mackay, and the absence of any indication that Mr Dunlop was or is suspected of having stolen Mr Madigan’s guns, have also fuelled my concern.
  1. [78]
    Upon consideration and review of all of the evidence, I accept Mr Dunlop’s evidence, and find that he did not have actual knowledge[45] that the firearms the subject of the present charges had been left at his property.
  1. [79]
    This finding, however, is not the end of the case.

  (ii) “Constructive” possession – section 163(3A):

  1. [80]
    The prosecution has also placed reliance upon s.163(3A) of the Weapons Act 1990.
  1. [81]
    This section lays down that, subject to three exceptions, in relation to any charge of the unlawful possession of a firearm under section 50 of the Act (which includes the present contested charges) a person is taken to have been in possession of the firearm if there is proof that the firearm was, at the material time in a place of which the person was the occupier or concerned in the management or control unless the person shows
    1. (a)
      that the firearm was brought to the place by someone who was authorised to have possession of the firearm; or
    2. (b)
      that the person neither knew nor had reason to suspect that the firearm was in or on the place; or
    3. (c)
      that someone other than the person had responsibility for the weapon.
  1. [82]
    Neither party was able to place before me any case in which section 163(3A) had been judicially considered; and I was unable to locate any such authority myself.
  1. [83]
    One is, however, immediately struck by the words of the “(b) exception” to the operation of s. 163(3A) – “neither knew nor had reason to suspect”; in that it bears a striking similarity to a comparable provision contained in section 129(1)(c) of the Drugs Misuse Act 1986, a provision which has occupied a substantial amount of judicial time.
  1. [84]
    Section 129(1)(c) of the DMA received its most careful examination by the High Court in Tabe v R[46]. That arose through the appellant’s contention that the knowledge of an accessory to a charge of attempting to possess a dangerous drug required proof by the prosecution that the principal offender had actual knowledge that a package contained methamphetamine. The determination of this question necessitated consideration of the interaction of sections 57(c) and (d) [as they were then numbered] of the DMA.
  1. [85]
    The Appellant’s contention was rejected by a majority of the Court[47], and within the majority’s reasons, it is that of Callinan and Heydon JJ, in a joint judgment, which most clearly addressed relevant aspects of [the now] section 129(1)(d).
  1. [86]
    Section 129(1)(d)’s predecessor, in their opinion, did alter the common law with respect to the content to be afforded to the term “possession”[48].
  1. [87]
    It did so, they opined, in two ways – firstly, it reversed the onus of proof with respect to “possession”. Rather than the prosecution carrying the onus to prove possession (including the mental element of knowledge), once the opening words were satisfied (ie, that the item was found on premises in respect of which the Defendant was the occupier) the onus of disproving knowledge then shifted to the Defendant[49].
  1. [88]
    The second alteration to the usual law of knowledge in possession was that the section substituted for “knowledge” the concept of “reason to suspect”55.
  1. [89]
    This alteration means that, in order to show the “(b) exception”, Defendant must convince the Court, not only that he had no “knowledge” that the firearms were in the relevant premises, but further that he had no “reason to suspect” that they would be there.
  1. [90]
    I have already indicated that I accept that Mr Dunlop had no “knowledge” that the firearms were on his premises. The facts, taken with the evidence of the Defendant, also fail, in my opinion, to disclose any basis for a finding that Mr Dunlop would have had any “reason to suspect” that the firearms were on his premises.
  1. [91]
    Accepting that friends of the Dunlops would bring their guns to the property to shoot, it is not readily apparent why, when they left, they would (i) leave their guns (or some or one of them) in the shed or on the quad bike, or (ii) why, if they did leave them in the shed or on the quad bike, they would conceal them?
  1. [92]
    In the case of Mr Armitstead, it would not be normal reasoning to suspect that a person who made a part of their living as a shooter, would leave any of their weapons on the employer’s premises when they had finished their work; even less that they would conceal them there[50].
  1. [93]
    There are two further exceptions created by s.163(3A) – (a) that the firearm was brought to the place by an authorised possessor; and (c) that someone other than the Defendant had responsibility for the weapon.
  1. [94]
    With respect to the “(c) exception”, it follows from my findings that I am unconvinced that a third party had no role in the placement of these firearms. But I think that “responsibility” in the exception would require identification, with some precision, of a person who had supervisory responsibility for the firearm. Any suspicion I may entertain about possible involvement of a third party (including one who may have stolen the rifle) would fall well short of proof for the purpose of the “(c) exception”. Similarly with the .22 calibre firearms.
  1. [95]
    With respect to the “(a) exception”, having regard to the fact that one of the weapons was stolen, and at least one of the others was unregistrable (being fully automatic), it is difficult to imagine anyone who would have had “authorised” possession when the weapons were secured in the shed, and the quad bike[51].
  1. [96]
    The only one of the s.163(3A) exceptions which can have any operation in this case is the “(b) exception”, as I have already outlined.
  1. [97]
    In order to bring himself within one of the s.163(3A) exceptions, the Defendant must “show” that he had neither knowledge nor reason to suspect. The expression “show” in the section could mean (broadly) “prove”[52]. In considering the evidence by the Defendant, I have taken “show” to be commensurate with proof “on the balance of probabilities”59; ie that I must feel an “actual persuasion” that his account, that he did not know of the presence of the firearms on the property, was true.
  1. [98]
    Whilst I may well, as previously stated, entertain suspicion as to the range of the activities carried out at the Defendant’s property, that suspicion, even if wellfounded, does not translate into proof beyond a reasonable doubt as to his knowledge of the three particular firearms the subject of these charges.
  1. [99]
    Applying this standard to the evidence placed before me, I find the Defendant Not Guilty of each of the three contested charges before me, and accordingly he is discharged with respect to those three offences.
  1. [100]
    I will hear the parties as to sentence with respect to the remaining four charges.

J M Aberdeen

Acting Magistrate

Mackay

3rd May 2019

[with Annexure]

Footnotes

[1] The precise number of items found, working and not working, or objects which constituted attempts to make such, was not clear on the evidence. 

[2] Found on the floor of a cupboard in the bedroom: T/s p 1-24 – Senior Constable Newnham.

[3] A substantial quantity of ammunition is pictured in Exhibit No 3, a series of photographs taken of the items found during the police search. This ammunition clearly included different calibres, with some of it being easily- recognised .22 calibre ammunition, and some carrying a “30-30” calibre stamp. Further ammunition was found on the residence’s external patio, and in the luggage compartment of one of the three quad bikes outside the residence: see generally Exhibit No 6 – body-worn camera footage depicting aspects of the search. The similarity of most of the ammunition found lying around (.22 and 30-30 calibres) to the unlawful weapons located (.22 and 30-30 calibres) is noteworthy.

[4] Subject of Charge (ii).

[5] Transcript p 1-24 line 29.

[6] T/s p 1-6 line 11 et seq. Ms Dunlop acknowledged she was the owner of the bag in which the handgun had been found on the quad bike. Mr Dunlop, in his evidence, stated that there were a number of disused bags, including some similar to the one containing the handgun, in the shed. The presence of the bag, in which the hand gun was held, to my mind, provides a nexus to the shed, and highlights the significance of those who may have had access to the shed prior to the raid.

[7] I can best describe the shed, from the video footage recorded, as a cluttered mess.

[8] Subject of Charge (iii).

[9] Subject of Charge (v).

[10] Exhibit 5A. 11 Exhibit 5B.

[11] Transcript p 1-12 line 16 etc. 13 T/s p 1-16 line 19.

[12] T/s 1-41 line 20.

[13] See T/s 1-42 line 6 et seq.

[14] Ibid line 1.

[15] Ibid line 12.

[16] T/s 1-41 line 38.

[17] Exhibit 4, first file.

[18] Eg, If he went out in the sun, his face and hands would swell up: T/s p 1-32 line 11.

[19] He had engaged him on four or five occasions (T/s p 1-39 line 24), but was unable to recall the most recent engagement – ie, that which last preceded the raid – without reference to his tax records: T/s p 1-38 line 43.

[20] T/s p 1-30.

[21] T/s 1-31 line 9.

[22] Ibid line 17.

[23] Mr Armitstead fitted his gun case to this quad bike, and the Defendant fitted some lights so that vermin shooting could take place at night: T/s 1-39 line 5. 26 T/s 1-32 line 30.

[24] Two 3-D printers were clearly depicted in the search video footage at his computer station. Why he chose to 3-D print a handgun frame, rather than any one of a myriad of quite innocent inanimate objects, was not explored with him.

[25] Ibid line 30.

[26] Ibid line 39. Constable Stanton did state in her evidence that Mr Dennis had been the initial source of information about Mr Armitstead, when Mr Dennis gave his initial statement to the police. In the absence of Mr Dennis, this could not be pursued at trial. 30 T/s p 1-38 line 30.

[27] Subject to any statutory exceptions - as to which, see below.

[28] The relevant keys seem to have previously been either in the ignition of one of quad bikes outside the residence, or may have been in the caravan occupied by Mr Dennis. It is not clear to me which was the case. 33 A copy of the relevant provision, as it stood at the time of trial, was placed before me by the Prosecution, and was received and marked as Exhibit No 8. A copy of the entire section 163, which is quite lengthy, is annexed to these reasons.

[29] [1902] St R Qd 176, at 180, citing R v Cohen (1858) 8 Cox CC 41, and R v Willmett (1848) 3 Cox CC 281. The former was a ruling at the Old Bailey, while the latter was a ruling at Assizes; but the basic principle had been authoritively confirmed by the Court of Exchequer Chamber in R v Woodrow (1846) 15 M & W 404 [153 ER 907] per Pollock CB at 415 [912]: “…a man can hardly be said to be in possession of anything without knowing it”, and per Parke B at 418 [913]: “…a man has not in his possession that which he does not know to be about him. I am not in possession of anything which a person has put into my stable without my knowledge”.

[30] [1903] St R Qd 282.

[31] At 288. During the course of argument, following a mention of mens rea, Griffith CJ (at 285) had interposed: “Section 23 of the Criminal Code applies. It does not seem to have been referred to in the Court below.” This primacy of the Criminal Code in the interpretation of “possession” under criminal law was reaffirmed ninety years later in R v Clare [1994] 2 Qd R 619, per Pincus JA at 639 et seq and per Davies JA at 645 [41].

[32] See generally Williams v R (1978) 140 CLR 591 (HCA); R v Clare [1994] 2 Qd R 619; Tabe v R (2005) 225 CLR 418; R v Boyesen [1982] AC 768, per Lord Scarman at 773-774.

[33] There may have been other calibres, including .22 Hornet, and .45 Colt: see Exh 3, p 26/26.. No further evidence was led as to these.

[34] The Defendant told police that he picked up the ammunition when he found it, but then could not remember where he had put the ammunition (query with respect to the ammunition found on the floor of the main bedroom cupboard).

[35] Although, in fairness to the Defendant, he did acknowledge, when speaking to police early on the occasion of the raid,  that his condition and medications had the effect that he didn’t care as much about things as he should”.

[36] All items would appear to fall within Category R: Weapons Categories Regulation 1997, s. 8(1)(h).

[37] T/s p 1-30 line 29 et seq; T/s 1-33 line 27. He had assumed (but had not specifically asked) Mr Armitstead had a firearm licence.

[38] One of the items found on the patio was suggested, by one of the searching officers recorded on video, as possibly being a flash suppressor, and/or silencer. It appeared to be of a more sophisticated design to the other silencers found, which appeared to be substantially tubes and “gaffer” tape.

[39] Some of which appeared, on the video footage, to be clothing. There was no evidence of any forensic examination of this clothing. Mr Dunlop was asked about a “camouflage”-type bag found in the shed, but this was a different bag to that in which the charge (iii) weapon was found.

[40] Exhibit 4, body-worn footage Constable Stanton, statement to Defendant by a male officer, at about 00:54:10. I also note that an Identifying Particulars Notice was served on the Defendant, and that there was no allegation, within the charges brought before the Court, that he had not complied with that requirement, which included a supply of DNA by swab.

[41] T/s p 1-18 line 35.

[42] Constable Stanton, T/s 1-20 line 7.

[43] See T/s 1-21 line29 et seq, XXN of Constable Stanton; it seems that the source of some of this information was Mr David Dennis, the Defendant’s cousin. I gained the impression, from what was said, that it had been the prosecution’s intention to call Mr Dennis, but that when the time came, he had left the precincts of the Court: T/s p 1-29 line 10. No application for an adjournment was made by either party, nor was there any request for a warrant to be issued to apprehend and return Mr Dennis to the Court.

[44] R v Clare [1994] 2 Qd R 619, at 635 [48] per Fitzgerald P; R v Shew [1998] QCA 333 [27].

[45] I should also mention that I do not believe that either section 50 of the Weapons Act, or the definition of

“possession” in Schedule 2 to the Act, properly construed, change in any way the usual accepted content of “knowledge” for the purpose of possession: compare Callinan & Heydon JJ in Tabe v R op cit at 459 [145].

[46] (2005) 225 CLR 418 (HCA).

[47] Gleeson CJ, Callinan and Heydon JJ; McHugh and Hayne JJ dissenting.

[48] Joint judgment at 463 [151].

[49] Joint judgment at 459 [145] and 465 [155]. 55 Joint judgment at 459 [145].

[50] The mere fact that other people may have had access to the shed provides no “reason to suspect’ (without other evidence) that there may have been firearms in the shed: compare Thompson v Monteath [1993] ACL Reporter [130 QLD 180] (QCA).

[51] I am not in a position to suggest what authorisation may have been possible in the case of the handgun in the bag.

[52] Although I concede that “prove” could be construed as requiring a higher degree of proof than “show”. 59 Joint judgment at 459 [145]. Note that the joint judgment also referred, with apparent approval, to the judgment of Wilson J in He Kaw Teh v R (1985) 157 CLR 523 at 558, where his Honour indicated that “prove” (as used in a reverse-onus context in Sherras v de Rutzen [1895] 1 QB 918) meant no more than “to adduce evidence of” – which would then require rebuttal by the prosecution.

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service v Dunlop

  • Shortened Case Name:

    Queensland Police Service v Dunlop

  • MNC:

    [2019] QMC 3

  • Court:

    QMC

  • Judge(s):

    J M Aberdeen

  • Date:

    03 May 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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