The loaded danger of deduction when dealing with illegal possession of ammunition

June 1st, 2016
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Amo

By Hendrik Beukes

This article considers the danger of deduction when dealing with technical issues in a case where an accused has been charged with the unlawful possession of ammunition. I submit that in a case where an accused has been charged with either the illegal possession of ammunition and/or illegal possession of a firearm, the result is that the prosecution bears the burden to prove the charge. In doing so, it is critical for the prosecution to lead evidence of a technical nature and failure to do so, should lead to an acquittal. Case law will be considered to illustrate the nature of the technical considerations and application in such matters.

The definition of ammunition and technical aspects

Relevant definitions in terms of the Firearms Control Act

The Firearms Control Act 60 of 2000 (the Act) provides the following definition in s 1 with respect to –

  • ‘“ammunition” means a primer or complete cartridge;’ and
  • ‘“cartridge” means a complete object consisting of a cartridge case, primer, propellant and bullet’.
  • ‘“Firearm” means any –

(a) device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant, at a muzzle energy exceeding 8 joules (6ft-lbs);

(b) device manufactured or designed to discharge rim-fire, centre-fire or pin-fire ammunition;

(c) a device which is not at the time capable of discharging any bullet or projectile, but which can be readily altered to be a firearm with the meaning of paragraph (a) or (b).’

For purposes of this article, the focus is on ammunition/cartridge as defined in the Act, which requires propellant to function through a firearm as contemplated in the definition of ‘firearm’ in
s 1 of the Act.

This brings one to examine the question as to how testing is conducted to establish whether the material contained in a cartridge is indeed propellant. One definition (see M Bussard Ammo Encyclopedia 5ed (USA: Blue Book Publications Inc 2014) at 53) of propellant is a flammable solid which, ‘when confined and ignited, rapidly completes an exothermic reaction (deflagrates) which releases its stored chemical energy in the form of hot, expanding gases. As a heat engine, a firearm converts this energy to kinetic energy using the propellant as fuel’.

Now in order for propellant to be considered as such, it is tested to determine its ballistic properties in a closed vessel.

The closed vessel test

There is only one test (to determine gas volume formation and properties for propellant) as to whether the ‘powder’ inside a cartridge case is in fact propellant and that is the closed vessel test. It is important in the process of determining as to what exactly it is one is dealing with in terms of whether the ‘powder’ inside the cartridge is propellant and, therefore, regulated in terms of the Act.  Also, that by simply burning  (the suspected propellant) without testing for gas volume formation, does not constitute proper scientific testing. (See S v Thinzi and Others (WCC) (unreported case no SS27/2013, 7-8-2014) (Dolamo J)).

Case law

The following case law will be considered in order to examine how the court deals with the technical nature of the subject.

In the matter of S v Filani 2012 (1) SACR 508 (ECG), the appellant was convicted in a regional court on a number of charges including the unlawful possession of a firearm and unlawful possession of ammunition in contravention of the provisions of the Act. The appellant appealed against the conviction and sentence imposed on the various counts. No forensic analysis was conducted on any of the items nor were any photographs handed in to court. In the course of his judgment Pickering J stated (514 H – 515 A): ‘It is clear, in my view, from the definition of “firearm” in Act 60 of 2000, as opposed to the definition of “arm” in Act 75 of 1969, that the legislature no longer intended “firearm” to bear its ordinary meaning as explained in S v Shezi supra. In these circumstances it was incumbent on the state to prove that the weapon of which appellant was allegedly in possession was a firearm as defined in the Act. In my view the state has failed to discharge that onus.’

The court then went on and stated (at 515 F – H) in respect of the argument by the state that because the weapon discharged or propelled a missile with enough force for it to be used for offensive purposes, it should fall within the ambit of the definition of a firearm in s 1 of the Act. ‘In my view, however, given the increased technical nature of the various definitions of “firearm” contained in the later and current Act, such a finding cannot be made in the absence of expert evidence to that effect. Certainly, it is not a matter of which this court may take judicial notice. The state failed to lead any such expert evidence and accordingly failed, in my view, to discharge the onus upon it. In all circumstances, the appellant was wrongly convicted on count 2 [in respect of the firearm count]. Ms Hendricks conceded that similar conditions would apply to count 3 (possession of ammunition)’.

The Filani matter should be distinguished from S v Sehoole 2015 (2) SACR 196 (SCA). In the Sehoole matter, the respondent was convicted in a regional magistrate’s court of contravention of ss 3 and 90 of the Act in that he was found in unlawful possession of a firearm and ammunition. He was sentenced, but the High Court set aside the conviction and sentence in respect of the firearm conviction. Regarding the conviction of possession of ammunition, the High Court held that there was no evidence before the court that the items found in the possession of the respondent constituted ammunition. The state appealed against the judgment. For purposes of this article, the focus will be on how the court viewed the appeal in respect of the ammunition issue.

Mbha JA stated: ‘The state adduced ballistic evidence in the form of an affidavit in terms of s 212 of the CPA [Criminal Procedure Act 51 of 1977] concerning the firearm in question. It will be recalled that Kladie [who was one of the police officials involved in the arrest] had testified about the ammunition he found in the firearm. Whilst it is undoubtedly so that a ballistics report would provide proof that a specific object is indeed ammunition, there is no authority compelling the state to produce such evidence in every case. Where there is acceptable evidence disclosing that ammunition was found inside a properly working firearm, it can, in the absence of countervailing evidence, be deduced to be ammunition related to the firearm. Needless to say, each case must be judged on its own particular facts and circumstances. In the light of what I have stated above, it follows that the High Court erred in finding that a ballistics report was the only manner of proving that the offence was committed’ (at para 19 and 20) (my italics).

Usually the state resorts to a s 212 affidavit by a ballistic technician in the employ of one of the various forensic laboratories in an attempt to prove that a confiscated firearm and ammunition are indeed such as described in the Act. I submit that the role played by the ballistic technician in this respect, is that of an expert witness.

The expert plays a vital part in court proceedings and an example of how the court views this can be seen in Jacobs v Transnet Ltd t/a Metrorail 2015 (1) SA 139 (SCA) where Majiedt JA states (at para 15): ‘It is well established that an expert is required to assist the court, not the party for whom he or she testifies. Objectivity is the central prerequisite for his or her opinions. In assessing an expert’s credibility an appellate court tests his or her underlying reasoning and is in no worse position than a trial court in that respect. … “The evidence of such a witness is of little value where he, or she, is partisan and consistently asserts the cause of the party who calls him”’.

Discussion and considerations

It is trite law that the prosecution must prove its case beyond a reasonable doubt (see Bamba v S (SCA) (unreported case no 20089/14, 11-12-2014) (Mocumie AJA)).

It is also clear that the definition of ‘ammunition’ (and ‘firearm’) in terms of the Act has the effect of imparting a technical nature to it. The closed vessel test has already been described as the scientific manner in which a sample is tested to see if it agrees with known propellant characteristics.

I submit that (in my practical experience), where the issue was whether ‘ammunition’ complied with the definition contained in the Act, a ballistic technician testified that she ‘tested’ the matter found inside the cartridge case by pouring it out on paper and setting it alight. She testified that according to her, if the matter burns it is propellant (see Thinzi (op cit)). This type of testing holds of course no scientific value and should be disregarded as nonsensical. Another method (of assumption) apparently followed, is that if the primer appears unmarked, the cartridge is assumed to be ammunition. Thus no testing is performed on the primer to establish whether the primer is in fact ‘live’ and not defective. Still another and more recent method (this time applied by the court) as employed in the Sehoole matter, appears to be the deduction that ammunition is in fact ammunition. The deduction method has of course no scientific and technical basis and for that reason it is my view that this method cannot be supported.

I submit that the prosecution can only obtain a conviction on a count of unlawful possession of ammunition if it provides a detailed s 212 affidavit showing very clearly how it arrived at the conclusion. I submit that the expert should not assume or deduct merely by looking at the cartridge or the primer of the cartridge. This is particularly relevant in light of the situation that according to my knowledge, there is no closed vessel test facilities available or in use at the South African Police Services Plattekloof Forensic Laboratory.

Conclusion

The state bears the burden of proof throughout criminal proceedings to obtain conviction on the charge of unlawful possession of ammunition (or firearm for that matter) in respect of the Act beyond a reasonable doubt. Failure to provide the required technical and scientific basis for its expert’s conclusion in this respect must lead to an acquittal. It is imperative for legal representatives in these types of cases, to examine the basis of the expert evidence presented by the state.

  • Image taken and supplied by Mr Beukes. At the left of the picture are four primers, the purple is a sealant and is not an indication of whether it is ‘live’ or not. The cases are shown with and without primers and in the foreground there is some propellant.

 

Hendrik Beukes BA (Stell) LLB (NWU) is an advocate at the Cape Bar.

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