Dylan Christopher Stone, 21, yesterday pleaded not guilty in the Warrnambool Magistrates Court to being a prohibited person in possession of a firearm and being a prohibited person possessing an imitation firearm.

Magistrate Michael Coghlan said he was satisfied there was a photo on Mr Stone’s iPhone and it was taken on or before August 23 last year, when Mr Stone was a prohibited person.

He said he heard from Mr Stone’s girlfriend Jessica Penry-Keenan that the first time Mr Stone attended her Denny Street home was on August 17 last year, her 21st birthday.

However, he dismissed both charges because the prosecution could not prove if the firearm in the photo was a real gun or imitation firearm.

Mr Coghlan said it was an unusual case as the only evidence was the photo. He dismissed both charges as neither could be proved beyond reasonable doubt.

He also awarded costs of $1250 against the prosecution.

Police Constable Pat Lynch told the court he was involved in the search of a Denny Street property on August 28 last year when the iPhone was found.

He said the next day the phone was analysed and an image was found on it of Mr Stone holding what Constable Lynch believed was a firearm at the Denny Street home.

A real estate property manager also inspected the Denny Street address on August 28 and made a report to police. The photo of Mr Stone was taken at the property, she said. 

Sergeant James Van Engelen said that when he had found Mr Stone’s iPhone it was switched on and he searched through it to find a series of photographs —  the 14th image showing Mr Stone with what he believed was a firearm. He said ballistics experts could not categorically say it was a real firearm.

Prosecutor Senior Constable Kevin Mullins said Mr Stone had become a prohibited person on June 14, 2011, and had been convicted and charged with trafficking ice and cannabis in July 2012.

In submissions to the court, lawyer Jonathan Rattray said said police accepted that the photo could have been photoshopped or it could be a toy gun.

Senior Constable Mullins said without pointing the gun into a bucket of sand and pulling the trigger it couldn’t be submitted the gun was real.

However, he said the case involved a default situation covered by the imitation firearm charge, similar to the offence of armed robbery where weapons were often not recovered.