Bukvic v Police - [2013] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BUKVIC v POLICE
[2013] SASC 79
Judgment of The Honourable Justice Sulan
5 June 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
ENERGY AND RESOURCES - ELECTRICITY - OFFENCES
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - OTHER MATTERS
Appeal against convictions for cultivating a controlled plant contrary to s 33B(3) of the Controlled Substances Act 1984 (SA), possession of prescribed equipment contrary to s 33LA(1) of the Controlled Substances Act 1984 (SA) and interfering with an electricity meter contrary to s 85(1)(b) of the Electricity Act 1996 (SA) - after searching a premises police located 18 cannabis plants being grown hydroponically across three rooms in a house - the electricity meter had been tampered with - no-one present at the time of the search - documents and personal items in the name of the appellant were located in several rooms of the house and in a car parked in the driveway - appellant found by police at another address and no key to the premises was located on him - whether verdicts against the weight of evidence - whether the verdicts unsafe and unsatisfactory - whether Magistrate failed to give adequate reasons.
Held: Appeal dismissed - although the Magistrate did not state in precise terms the test to be applied in cases where the prosecution rely on circumstantial evidence, satisfied that correct legal principle was applied - having regard to the evidence as a whole satisfied beyond reasonable doubt that appellant cultivated the cannabis, had possession of the prescribed equipment without reasonable excuse and interfered with the electricity meter.
Controlled Substances Act 1984 (SA) s 33B(3), s 33LA(1), s 4(7); Electricity Act 1996 (SA) s 85(1)(b), s 85(3); Magistrates Court Act 1991 (SA) s 42; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 reg 8AA, referred to.
Taylor v Hayes (1990) 53 SASR 282; R v Peacock (1911) 13 CLR 619; Plomp v R (1963) 110 CLR 234; Barca v R (1975) 133 CLR 82; Chamberlain v R (No 2) (1984) 153 CLR 521; Shepherd v R (1990) 170 CLR 573; Douglass v R (2012) 290 ALR 699; Moors v Burke (1919) 26 CLR 265; R v GNN [2000] SASC 447; The Queen v Frangos (1979) 21 SASR 331, considered.

BUKVIC v POLICE
[2013] SASC 79
Magistrates Appeal: Criminal

SULAN J: This is an appeal against conviction. The defendant and appellant, George Bukvic, pleaded not-guilty to three offences. It was alleged that on 26 September 2011, he:
Cultivated a controlled plant intending to sell controlled plants, contrary to s 33B(3) of the Controlled Substances Act 1984 (SA) (“the Act”);
Had possession of equipment of a kind prescribed by regulation, without reasonable excuse, contrary to s 33LA(1) of the Act; and
Interfered with a meter for measuring the consumption of electricity supplies by an electricity entity without proper authority, contrary to s 85(1)(b) of the Electricity Act 1996 (SA).
The defendant was convicted by a Magistrate of all three counts. He appeals on three grounds. First, it is submitted that the finding of guilt in relation to each count was against the weight of evidence. Secondly, that the verdicts of guilt on each count are unsafe and unsatisfactory. Thirdly, it is contended that the Magistrate failed to adequately express her reasons for rejecting hypotheses consistent with the innocence of the defendant with respect to Counts 1 and 2.
Background
On 26 December 2011, three police officers attended a house at Modbury North. At all relevant times, the premises were owned by Ms Kanittha Khorat. They gained entry and searched the premises. No one was present at the time. Police observed three rooms being used to grow cannabis plants hydroponically. Each room contained six plants in individual pots.
Police also found equipment including light shades, light globes, transformers and an air filter that were being used to cultivate the cannabis. Subsequent investigations also revealed that there had been tampering with the electricity meter.
Police found a number of items in the name of the defendant at the premises. There were two vehicles in the drive way. One of the vehicles, a Holden Commodore sedan registered in the name of the defendant’s father, Lazo Bukvic, contained a number of documents in the name of Mr G. Bukvic. Inside one of the bedrooms police found numerous personal items in the name of George Bukvic including an expired driver’s license and an Expiation Notice issued to the defendant. Other documents found in the defendant’s name were addressed to a house at 15 Hissar Ave, Salisbury North and another to an address at Parafield Gardens. A diary located in the bedroom was found to contain left and right thumbs prints identical to those of the defendant. In a second bedroom police found an unmade bed and items of clothing. A visa in the name of the defendant was located in a vent in a bedroom ceiling.
Police also found $885 cash in one of the bedrooms and $3000 made up of $50 notes in a kitchen cupboard. By letter dated 21 December 2011, solicitors acting for the defendant wrote to police in respect of a sum of $3,970 which was seized by police from the premises. It was claimed that the money belonged to the defendant and was the remainder of significant cash withdrawals evidenced by bank statements.
Police arrested the defendant at the Salisbury North address on the same day. In a bedroom which the defendant told police officers was his, police discovered no male clothing that appeared to belong to the defendant except for four folded t-shirts. Police found women’s clothing and possessions in the bedroom.
The owner of the Modbury North premises, Khorat, gave evidence that she was in Thailand between June 2010 and March 2012. She was not aware that anyone was staying at the premises and she did not receive any rental income during that time. Nicholas Lymberopoulos is the father of Khorat’s daughter. There was evidence that Lymberopoulos contributed to the purchase of the premises but did not live there. Lymberopoulos had keys to the premises. Khorat denied knowing the defendant. Lymberopoulos admitted to police that he knew the defendant.
The defendant did not give evidence. At trial, a letter was tendered by the defendant from his father, Lazo Bukvic. The letter asserts that, at the relevant time, the defendant was residing with his parents at their Salisbury North address. Lazo Bukvic was not called to give evidence. The prosecutor at trial objected to the tender. The objection was overruled. No reasons were given. The facts asserted in it are hearsay. The defendant’s father was available to give evidence at the trial.
To avoid any potential unfairness, I provided the defendant with the opportunity to call Lazo Bukvic before this Court to give evidence regarding the contents of the letter. I reserved my decision and indicated that I would not consider my reasons until counsel informed my Chambers whether or not it intended to call Lazo Bukvic. Counsel informed me that he would not call the witness. Accordingly, I have proceeded on the basis that the letter has no evidentiary weight.
Magistrate’s findings
The Magistrate concluded that the defendant had taken part in a step in the cultivation of the cannabis, namely the guarding of the plants and equipment. The Magistrate stated in her reasons:
As to count 1, the evidence establishes, and I make findings beyond reasonable doubt, that there were 3 dedicated grow rooms in the premises, there were nutrients on the kitchen table and the smell of cannabis was evident even from outside the premises. The nature of the documents found at the premises belonging to Bukvic are indicative of him being present there over an extended period from at least May 2011. Having regard to the necessary inferences that can be drawn from all of the evidence, I am satisfied beyond reasonable doubt that Bukvic participated in a step in the cultivation of the cannabis, namely by guarding the plant(s) and equipment.
I am also satisfied that he was in (at) least joint occupation of the premises at that time and I make that finding beyond reasonable doubt.
The Magistrate found that the defendant was in possession of the prescribed equipment found at the premises and that he did not have a reasonable excuse for doing so. The Magistrate said:
As to count 2, again I must consider the nature and extent of Bukvic’s control over the prescribed equipment at the relevant time having regard to the practical circumstances of the case and the likelihood of interference with the prescribed equipment by others (outside of any relevant agreement).
Again, Bukvic will not be in possession of the prescribed equipment merely because he knows where it is located or has acquiesced or allowed another person to have possession of it (R v G.N.N (2000) SASC 447).
None of Bukvic’s fingerprints were located on any of the items of prescribed equipment.
Importantly, there was no evidence to establish that anyone, other than Bukvic, was residing or staying at the premises at or about the relevant date.
It may be argued that Lymberopoulos or indeed Khorat had the ability to exercise control over the prescribed equipment given their relationship to the premises. However the mere fact Bukvic may not have been the only person with access to the prescribed equipment does not mean he is not in possession or control of it.
In my view, in his role as the person guarding the plants and the equipment, Bukvic had immediate physical control of the prescribed equipment, to the exclusion of others not acting in concert with him.
I find beyond reasonable doubt that Bukvic was in possession of the prescribed equipment found at the premises. There was no evidence that he had a reasonable excuse for doing so.
In relation to count 3, the Magistrate found that the defendant was an occupier of the premises such that it could be presumed that he interfered with the electricity meter. The Magistrate found:
The evidence leads me to conclude that at the relevant time, Bukvic was staying (or indeed residing) at the premises. This is despite the fact that a key to the premises was not located on him. He clearly gained access to the premises on or before the relevant date. I consider, in light of all the evidence, to be beyond the realms of reasonable possibility that all of the items found in the premises with a connection to Bukvic were placed there by others. I am satisfied beyond reasonable doubt that Bukvic had been present at the premises and either staying or residing there for a period of several months leading up to the relevant date.
As such I consider that Bukvic had possession of the premises necessary to activate the presumption in Section 85(3) of the Electricity Act. There was no evidence presented to the contrary. Although Bukvic’s solicitor’s tendered a letter from Lazo Bukvic as an exhibit (Exhibit D1), the author of that letter was not called to give evidence.
The appeal
This appeal is brought pursuant to section 42 of the Magistrates Court Act 1991 (SA). In Taylor v Hayes, Perry J discussed the nature of such appeals:[1]
While I suppose that there is no harm in using words such as "unsafe, unjust or unsatisfactory" or "cannot be supported having regard to the evidence", or the words "miscarriage of justice" in the expression of grounds in support of an appeal under the Justices Act, they are words which are of more particular significance in relation to appeals under s 353 of the Criminal Law Consolidation Act.
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate's findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the magistrate upon which it was open for him to reach the decision the subject of the appeal.
[1] Taylor v Hayes (1990) 53 SASR 282, 291.
For the reasons that follow, it is convenient to deal with ground three of the appeal first.
Ground three
Ground three of the appeal is that the Magistrate failed to adequately express her reasons for rejecting hypotheses consistent with the innocence of the defendant with respect to counts 1 and 2. Counsel for the defendant contends that the Magistrate did not adequately articulate the test which she applied in concluding that the prosecution had proved the case against the defendant beyond reasonable doubt. The case against the defendant was circumstantial. It relied upon the Magistrate drawing inferences from unchallenged facts and deciding whether those inferences were sufficient to establish guilt beyond reasonable doubt.
Counsel for the defendant submits that the following passage demonstrates that the Magistrate did not articulate the correct test:
...Having regard to the necessary inferences that can be drawn from all of the evidence, I am satisfied beyond reasonable doubt...
The test to be applied when the prosecution case relies upon circumstantial evidence was considered in R v Peacock.[2] In that case, a medical practitioner was convicted of the murder of a woman said to have died from the result of an abortion and whose body was never found. One of the issues before the High Court was whether evidence of facts led by the Crown to prove the cause of death was sufficient for a conviction. Griffiths CJ stated:[3]
The rules of evidence are the same in criminal as in civil law, and the rules of logic and common sense as to what inference may be drawn from acts are the same whether the case is civil or criminal. In civil cases where the evidence is nicely balanced, the recognized practice is to leave it to the jury to say which hypothesis they accept, where there are two equally, or nearly equally, probable hypothesis. But this is certainly not the practice in criminal cases. It is practice of Judges, whether they are bound to give such a direction or not to tell the jury that, if there is any reasonable hypothesis consistent with the innocence of the prisoner, it is their duty to acquit.
[2] (1911) 13 CLR 619. See also: Plomp v R (1963) 110 CLR 234; Barca v R (1975) 133 CLR 82; Chamberlain v R (No 2) (1984) 153 CLR 521; Shepherd v R (1990) 170 CLR 573.
[3] R v Peacock (1911) 13 CLR 619, 630.
Similarly, in Martin v Osborne, Dixon J said:[4]
If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.
[4] (1936) 55 CLR 367, 375.
Counsel for the defendant submits that the Magistrate’s reasons were not sufficient to indicate that she had reasoned in accordance with the above principle. It is contended that, if the Magistrate did not articulate the correct test, then this Court cannot be satisfied that the correct standard of proof was applied. In support of this contention, counsel relies on the decision in Douglass v R.[5] In that case, the High Court held that the correct standard of proof had not been applied where inadequate reasons were given after a trial by judge alone. The appellant complained that the Judge had arrived at a conclusion of guilt without rejecting his sworn denial of the offence. The High Court found that the failure to record any finding in relation to the appellant’s evidence left open the possibility that the Judge simply relied on the complainant's evidence and proceeded to convict upon it, applying a standard less than proof beyond reasonable doubt. The Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ) stated:[6]
To dismiss the appellant’s complaint respecting the sufficiency of the reasons on the footing that the judge’s acceptance of CD’s evidence necessarily carried with it rejection of his evidence was to overlook that the judge’s acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was not persuaded by the appellant’s evidence, he could not convict unless satisfied that it was not reasonably possibly true.
In R v Keyte, Doyle CJ explained why a judge is required to give reasons for the judge’s verdict following a trial under s 7 of the Juries Act 1927 (SA). These included that in the absence of reasons, the appellate court is unable to determine whether the judge has correctly applied the relevant rules of law. In this case, the failure to record any finding respecting the appellant’s evidence left as one possibility that the judge simply preferred CD’s evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error. It is unnecessary to address the consequence of that error in circumstances in which, as will appear, the appellant’s second ground must succeed.
[Citations omitted.]
[5] (2012) 290 ALR 699.
[6] Douglass v R (2012) 290 ALR 699, [13]-[14].
While Douglass confirms that the reasons of a judge sitting without a jury must be sufficient to indicate that the judge has applied the correct principles of law, it is to be observed that there is more than one way by which a judge or magistrate may discharge this responsibility.
In my view, the Magistrate’s reasons were sufficient to indicate that she had applied the correct legal principle. The Magistrate correctly directed herself in conventional terms as to the onus and standard of proof. She said:
I am still required to determine whether the prosecution can establish each element of each offence as against each individual defendant beyond reasonable doubt.
…
Neither Lymberopoulos nor Bukvic elected to give evidence. I remind myself that it [sic] not for either defendant to prove or disprove anything.
The Magistrate considered the largely unchallenged evidence in detail and drew appropriate inferences where they were available on the evidence. Although she did not state in precise terms the test to be applied in cases where the prosecution rely on circumstantial evidence, I am nonetheless satisfied that the correct legal principle was applied. The defendant did not give evidence at trial and no statement was made to police.
Grounds 2 and 3
It is convenient to deal with grounds 2 and 3 of the appeal together. Counsel for the defendant submits that the finding of guilt in relation to each count was not supported on the evidence and that the verdicts of guilt on each count are unsafe and unsatisfactory.
Count 1

Section 33B of the Controlled Substances Act 1984 (SA) provides:
(3)A person who cultivates a controlled plant intending to sell it or any of its products or believing that another person intends to sell it or any of its products is guilty of an offence.
...
(5)If, in any proceedings for an offence against subsection (1), (2) or (3), it is proved that the defendant cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of proof to the contrary, that the defendant had the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence.
A growing cannabis plant is a “controlled plant” within the meaning of s 4(1) of the Act. The 18 cannabis plants found growing in the Modbury North premises are a “trafficable quantity” pursuant to Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000.
Counsel for the prosecution contends that the defendant ought to be found liable under any of the following definitions of “cultivate”.
Section 4(1) of the Act states that “cultivate” a controlled plant means:
...
(b) nurture, tend or grow the plant; or
...
(e) take part in the process of cultivation of the plant;
Counsel further relies on the definition of “a step in the process of cultivation” contained in Section 4(7) of the Act.
For the purposes of this Act, a step in the process of cultivation of a controlled plant includes, without limitation, any of the following when done for the purpose of cultivation of the plant:
...
(b)     storing the plant or equipment, substances or materials;
...
(d)     guarding or concealing the plant or equipment, substances or materials;
...
(f)    providing or allowing the use of premises or jointly occupying premises.
Counsel submits that the evidence which supports the conclusion that the defendant cultivated the cannabis stems broadly from the same evidence that establishes that the defendant resided at the premises at the relevant time.
Evidence that the defendant resided at the premises
The evidence which the prosecution rely on as supporting the conclusion that the defendant was the only person who resided at the premises at the relevant time is as follows:
·Documents and personal items in the name of the defendant were found in the Holden Commodore parked in the driveway of the premises;
·A bedroom in the premises appeared to be lived in. This bedroom contained a number of personal items and documents in the name of the defendant;
·One of those personal items was a diary. The diary had the defendant’s fingerprints on it and contained a number of notes and other entries. The following entries are pertinent:
·6 January 2011: “spoke to a lawyer re living in a house where there’s a hydro. So long I don’t take any part in it then it’s okay to live in the house without repercussions”.
·19 March 2011: “moved in as difficulties arose at previous abode. I was made aware that there were plants growing at this place and I again consulted lawyer as to the legal ramifications of being at a residence used for growing. Again advised so long as I don’t take part in cultivating I would not [fail?/ fall?]”.
·Other documents found in the bedroom included an expired driver’s licence in the name of the defendant and other letters and documents in the defendant’s name. They spanned the period 16 March 2011 to 13 September 2011;
·Cash in the amount of $885 located in a second bedroom was claimed by the defendant as belonging to him;
·Cash in the amount of $3,000 located in the kitchen cupboard above the fridge, claimed by the defendant as belonging to him; and
·A visa issued by the Department of Immigration and Multicultural and Indigenous Affairs in the name of the defendant was located in a vent in the ceiling of the second bedroom.
As to the evidence that supports the conclusion that the defendant was residing at the premises during the period of cultivation:
·Ms Khorat gave evidence that she left Australia in June 2010 to visit her ill mother in Thailand. She did not return to Australia until 14 March 2012. About two or three weeks after Ms Khorat left Australia, Lymberopoulos followed to be with his daughter. Over the period that she was away, Lymberopoulos was also in Thailand for most of the time. He would stay in Thailand for periods approximately 3 months at a time, broken up by periods of about 2 weeks back in Australia for Centrelink purposes; and
·None of the documents located at the premises in the names of Khorat, or Lymberopoulos, or both, suggest that either of them were present at the premises during the period June 2010 to March 2012.
Counsel for the defendant submits that the evidence is only capable of supporting the inference that the defendant was a singular occupier of a room, coming and going from the premises. Counsel contends that the evidence of the defendant’s presence at the premises does not support the inference that the defendant cultivated the cannabis. Counsel points to the fact that no key to the premises was found on the defendant and that there is no forensic link between the defendant and the cannabis plants or equipment. Counsel further submits that the diary entries dated 6 January and 19 March 2011, support the contention that the defendant was merely an occupier of a room in the premises and was not involved in the cultivation of the cannabis.
I do not accept as a rational explanation consistent with innocence that the defendant was merely an occupier of a room in the premises with no involvement in the cultivation of the cannabis.
As to the length of occupation of the premises by the defendant, the documents located at the premises coupled with the diary entries of 6 January 2011 and 19 March 2011 support the inference that the defendant resided at the premises from 19 March 2011. The evidence as to the layout and use of the premises supports the inference that the premises were adapted for the primary purpose of the cultivation of cannabis, and that they were in fact being used for that purpose.
The defendant’s documents and personal belongings were sprawled across several rooms in the house. The money which the defendant claimed belonged to him was located in a second bedroom and a kitchen cupboard. An inference is open that the defendant had not limited his occupation to one room, and that he had unrestricted access to all rooms in the house. The entries in the diary support the inference that the defendant knew the cannabis was being cultivated on the premises. The smell of cannabis could be detected from outside of the house and chemicals used for growing the cannabis were stored on the kitchen sink. There is no evidence that anyone else resided at the premises. Although, fingerprints of the co-defendant, Lusha, were located on the surface of light shades used in the hydroponic set up, this evidence does no more than show that Lusha handled the shades at some point. When police searched the premises they had to force their way inside and there was no evidence that entry to the premises had been forced on a previous occasion.
Considering all the evidence as a whole, I am satisfied beyond reasonable doubt that the defendant cultivated the cannabis. He did so by guarding the plants and equipment.
Count 2
In relation to the possession of prescribed equipment, section 33LA of the Act provides:
A person who, without reasonable excuse (proof of which lies on the person)—
(a) has possession of any prescribed equipment; or
...
is guilty of an offence.
“Prescribed equipment” is defined in reg 8AA of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) to include metal halide lights, high pressure sodium lights and mercury vapour lights of 400 watts or greater, carbon filters and devices (including control gear, lamp mounts and reflectors) designed to amplify light or heat. I am satisfied that the items found inside the premises fall within the definition of “prescribed equipment”.
In Moors v Burke,[7] the meaning of possession was considered. The High Court said:
"Having actual possession" means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it where he alone has the exclusive right or power to place his hands on it, and so have manual custody when he wishes. In its nature it corresponds to its companion expression "conveying", which necessarily involves instant personal physical control to the exclusion of others. These two expressions are obviously intended to cover the whole ground of actual personal control — that is, whether the property is kept stationary or is in motion. But it does not include the case of a person who has put the property out of his present manual custody and deposited it in a place where any other person independently of him has an equal right and power of getting it, and so may prevent the first from ever getting manual custody in the future. In that event the property is not in his actual possession: it is where he may possibly reduce it again into actual possession, or, on the other hand, where the other person may himself reduce it into his own actual exclusive possession."
As can be seen, the court identified two forms of control that would suffice. One was "present manual custody". The other was having it in a place where the person in question "has the exclusive right or power to place his hands on it". The court held that the wool was not in the actual possession of Mr Moors, because another person had an equal right and power to open the locker and take out the wool.
[7] (1919) 26 CLR 265, 274.
It is to be observed a person will not be in possession of something merely because he or she knows where it is located or has acquiesced or allowed another person to have possession of it.[8]
[8] R v GNN [2000] SASC 447.
In The Queen v Frangos,[9] the defendant was charged with knowingly having possession of a prohibited drug. King CJ observed that, in general, if a person has physical custody or control of an item, together with the requisite knowledge that he or she has physical possession or control of that item, then the person is in possession of the item. Walters J, with whom Wells J agreed, said:[10]
Although what does constitute possession may vary according to each set of circumstances, and according to the context in which the word “possession” is used, it seems to me that in order to prove possession, it must ordinarily be shown that the possessor had the thing in his physical custody or control under circumstances which demonstrated that he had a conscious mental recognition of the thing’s presence, and that he was assenting to being in custody or control of it. Thus if a person were to take an article into his custory or control in circumstances showing that his state of mind was such that he had knowledge of its existence, and that he accepted it with the intention of exercising power of control over it to the exclusion of others, or with the presumed intention “to do so in case of need” (The Queen v. Curlija), he may be said to have had possession of it. A similar approach to the concept of possession and the mental element appropriate to possession is illustrated by the observations of O’Brien J. (with whose reasoning Street C.J. and Yeldham J. concurred) in Reg. v. Rawcliffe, where the learned Judge said:
“In order that a person should have exclusive physical control of an article, some knowledge or intention in him is necessary to associate him with the article, but this mental element extends no further than that inherent in such control, namely, the intention to have exclusive physical control of the article itself, or some other article, or some place wherein it is in fact carried or contained or located. It is not inherent in that mental element that the person should know or suspect, or have reason to suspect, just what the article is or that it is in fact carried or contained or located in some other article or place over which he has by intention the exclusive physical control”.
In the present case, the issue of possession was left to the jury, and on the facts, I think the animus possidendi¸ the requisite mental element of possession, could clearly be implied.
[Citations omitted.]
[9] (1979) 21 SASR 331.
[10] (1979) 21 SASR 331, 339.
The inescapable inference from the finding that the defendant resided at the premises and had control over the premises, and had knowledge that the equipment was there, is that he had immediate physical control of the prescribed equipment to the exclusion of others not acting in concert with him.
Count 3
Pursuant to s 85(1)(b) Electricity Act 1996 (SA):
(1) A person must not, without proper authority—
(a) abstract or divert electricity from a power system; or
(b)interfere with a meter or other device for measuring the consumption of electricity supplied by an electricity entity.
Section 85(3) further states:
(3)If, in proceedings for an offence against subsection (1), it is proved that a device has been installed or any other act done, without proper authority, the apparent purpose of which is to abstract or divert electricity to any particular land or place or to affect the proper measurement of electricity supplied to any particular land or place, it will be presumed, in the absence of proof to the contrary, that the occupier of the land or place installed the device or did the other act with that purpose.
An “occupier” of land or place is defined by s 4 to mean “a person who has or is entitled to possession or control of the land or place.”
On the unchallenged evidence presented at trial of the Technical Standards and Safety Officer, I am satisfied that there had been interference with the electricity meter.
For the reasons started earlier, I am satisfied that the defendant had possession or control of the premises from at least 19 March 2011. He therefore occupied the premises for the purposes of the Electricity Act from that date. Although he was not physically there when the police searched the premises, I am satisfied that he was an occupier of the premises at that time.
The defendant is presumed, in the absence of proof to the contrary, to be the person who committed the act of interference. I am satisfied that there is no proof to the contrary. The assertion in the letter from the defendant’s father that the defendant resided elsewhere at the relevant time carries no weight. Counsel has not called the author of the letter to give evidence. I am of the view that the presumption has not been rebutted.
Conclusion
For these reasons, I dismiss the appeal.