WHAT CONSTITUTES POSSESSION OF A FIREARM?

August 27, 2014

A number of criminal offences involve possession of an item or substance. Recently the District Court considered the circumstances in which it can be said that a person is in possession of a firearm and the way in which the law has created a broader meaning of that term.

The case involved charges under the Firearms Act of possessing a firearm without a licence (section 11(1)) and possessing a firearm with identifying characters removed (section 24A(7)).

The issue that had to be decided was that of ‘possession’. Had the prosecution proved beyond reasonable doubt that the accused was in possession of the firearms that police had found in a storage locker at Kennards Storage Facility when they searched it in November 2012? Police had located in the locker a semi-automatic rifle and three semi-automatic pistols, two of which appeared to have had the serial number machined off.

The accused man had commenced renting a storage locker at Kennards in 2009 which at the time he said was to store wine for a period of 12 months while he was renovating. To access the locker a customer had to use a PIN code to get through the main gate, and then again to enter the area in which the locker was located. A computer system would record the date and time of each entry through the gates and also into the locker area. The locker itself was secured by a padlock supplied by the customer which then had a sticker attached to it by Kennards to show whether it had been tampered with in which case the seal on the sticker is broken. The records showed that the last date on which the locker was accessed prior to the police search in November 2012 was in May 2011.

The accused admitted that he continued to hire the storage unit in his name until the date of the police search and continued to make payments for it. However, it was established at the trial that a customer could provide their PIN code and key to someone else to allow access to the locker.

When the police search of the locker took place they located the guns each wrapped in a tea towel or T-shirt inside a silver package that was within a wine box. Nothing was found in the locker except for the guns. The police also searched the accused’s home but did not find the key to the padlock that was on the storage locker. The accused could not be physically connected to the guns by either fingerprints of DNA evidence.

The Firearms Act has a specific provision as to what amounts to ‘possession’ of a firearm in section 5(14) that states a person has possession of a firearm if –

  • (a) the person has custody of the firearm or has the firearm in the custody of another; or
  • (b) the person has and exercises access to the firearm; or
  • (c) the person occupies, or has care, control or management of, premises, or is in charge of a vehicle, vessel or aircraft, where the firearm is found.

The last provision doesn’t apply if the person establishes that they did not know and couldn’t reasonably be expected to have known that the firearm was on the premises.

The prosecution asserted that the locker amounted to ‘premises’ and so section 5(14)(c) applied however the District Court concluded that a locker in a wine room accessed by numerous customers could not be described as ‘premises’. Nevertheless, section 5(14)(a) applied on the basis that a person has possession of a firearm if they knowingly have physical custody of it or have the firearm in the custody of another person. Simply being aware of the existence and place of an item doesn’t amount to possession, but the person must intentionally have ‘control’ of the item which involves the power to dispose of it, or to ‘place their hands’ on it. So control includes having access to an item such as property in a house.

This concept of ‘possession’ is extended by section 5(14)(b) which means that a person has possession of a firearm if they have and exercise access to the firearm. That meant that the prosecution only had to prove that the accused was one of a number of people who could access the firearm (as well as proving that he knew of the presence of the firearm in the locker).

The accused argued that it was possible for the firearms to have been put in the locker by an employee of Kennards, or that the accused might have provided his key and PIN code to someone else who stored the guns there without his knowledge. On the other hand, the prosecution said that it would be ‘fanciful’ to suggest that an employee was involved as it would mean that they took the risk of storing the guns in a locker that a customer could access at any time. As to the idea that the key and PIN code could have been given to someone else the prosecution argued that there was no evidence that this occurred, and that the accused had continued to make payments on the locker. Also, the only items located were the guns which would mean that if the accused hadn’t put them there he had hired the locker to keep it empty.

This was a case of ‘circumstantial evidence’ which means that the Court cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with a reasonable hypothesis other than the guilt of the accused’. Nevertheless, for an inference to be ‘reasonable’ it must involve more than mere conjecture and can’t ‘stretch credulity’. In this particular case, the Court was satisfied that the accused was knowingly in possession of the firearms located in the storage locker.

R v Joyce [2014] SADC 125