La Mancusa v WA Police
[2025] WASC 290
•21 JULY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LA MANCUSA -v- WA POLICE [2025] WASC 290
CORAM: SEAWARD J
HEARD: 21 JULY 2025
DELIVERED : 21 JULY 2025
FILE NO/S: SJA 1006 of 2025
BETWEEN: KALE ANTHONY LA MANCUSA
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1006 of 2025
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE L ATKINS
File Number : BS 1935 OF 2023, BS 251 OF 2022, BS 436 OF 2022
Catchwords:
Criminal Law - Possession of a prohibited drug - Appeal against conviction - Appellant convicted after trial - Whether conviction was unreasonable or cannot be supported having regard to the evidence as a whole
Legislation:
Criminal Appeals Act 2004 (WA)
Misuse of Drugs Act 1981 (WA)
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal granted
Appeal allowed
Representation:
Counsel:
| Appellant | : | Mr P Holmes |
| Respondent | : | Ms K Ellson |
Solicitors:
| Appellant | : | Holmes Criminal Lawyers |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 55 WAR 1
C v WA Police [2024] WASC 79
Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
Egan v The State of Western Australia [2024] WASCA 3
Lia v The State of Western Australia [2020] WASCA 216
MHS v The State of Western Australia [2024] WASCA 85
Rayney v Aw [2008] WASC 295
Yappo v The State of Western Australia [2021] WASCA 133 (S)
SEAWARD J:
Introduction
On 2 October 2024 the appellant, Kale Anthony La Mancusa, was convicted of one count of possessing a prohibited drug, namely 2.25g of methylamphetamine, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (MDA).
Mr La Mancusa seeks leave to appeal his conviction on the single ground that the verdict of guilty is unreasonable and cannot be supported having regard to the evidence as a whole.
The respondent concedes the appeal and submits that leave to appeal should be granted, the conviction set aside and a verdict of acquittal entered in its place by this court.
The matter was heard by me on 21 July 2025 and at that hearing I concluded that the respondent's concession was properly made, and I made orders allowing the appeal. I indicated that my written reasons for doing so would follow. These are those reasons.
The trial
The prosecution case
The key charge the subject of the appeal is charge BS 1935/2023. The prosecution opened its case on the basis that, at 1.03 am, on 22 July 2023, Mr La Mancusa was located unconscious in the driver's seat of a Suzuki vehicle, on Bussell Highway, in Ludlow. There were no other people in the car. Police entered the vehicle to conduct a welfare check on the driver and located a small clip seal bag that was in the centre console, in plain view of the driver. The bag was seized, and its contents were later analysed, and found to contain approximately 2.25 grams of methylamphetamine.
The prosecution called two witnesses, being the two police officers who conducted the welfare check. Mr La Mancusa did not give evidence and the police video record of interview was not tendered in evidence.
At trial, the following was not in issue:
(a)identity, which was formally admitted;[1] and
(b)that the substance found was a drug, with the certificate of analysis admitted into evidence without objection and their being a concession that the substance was a drug.[2]
[1] ts 2 October 2024, 28.
[2] ts 2 October 2024, 3.
The disputed issues at trial were possession and knowledge.
It is not necessary to summarise all of the evidence led at trial. The prosecution case in relation to possession and knowledge was circumstantial. In closing, the prosecution relied upon the fact that there was no one else in the vehicle; that the clip seal bag containing the drugs was found in plain view; that it was found right next to Mr La Mancusa's left arm, and in a place easily accessible.[3] The prosecution accepted that their case turned on the issue of knowledge and invited the magistrate to draw an 'irresistible inference' that Mr La Mancusa knew the drugs were there, on the basis that there was no one else in the car, it was right next to his left arm, and any ordinary person sitting in the driver's seat would have seen the drugs and would have known, most likely, what they were.[4]
[3] ts 2 October 2024, 45 - 46.
[4] ts 2 October 2024, 46 - 47.
The prosecution submitted in closing:[5]
There's a good chance, I believe, that he would have known, and that it's irresistible to say that he couldn't have not known, that the drugs were sitting there in plain view.
The defence case
[5] ts 2 October 2024, 47.
By way of overview, the defence submitted that the magistrate could not be satisfied that the prosecution had established the elements of possession and knowledge beyond reasonable doubt, relying on the following:[6]
(a)two phones were found in the car and no checks were done on the phones;
(b)the car is not owned by Mr La Mancusa and is registered to his step-father, although no checks were done in relation to who owns the car or whether the items in the car belonged to the owner or the car or even the person who drove the car;
(c)Mr La Mancusa's mother uses the car and items consistent with a female were found in the car;
(d)there was no evidence to suggest for how long Mr La Mancusa had access to the vehicle;
(e)Mr La Mancusa was heavily intoxicated, and the court could therefore not speculate about what Mr La Mancusa could see at that time;
(f)no drugs were found in Mr La Mancusa's system; and
(g)no preliminary wipe was done to test for drugs.
[6] ts 2 October 2024, 47 - 48.
The defence further submitted:[7]
a good chance that he knew about it still leaves your Honour with reasonable doubt. Good chance is not the highest burden of proof that the prosecution has to get over.
Reasons for the magistrate's decision
[7] ts 2 October 2024, 47.
The relevant part of the magistrate's reasoning in relation to the question of possession and knowledge is as follows:[8]
[8] ts 2 October 2024, 52 - 54.
He confirmed in cross-examination that Mr La Mancusa didn't say anything about any knowledge of the drugs.
I also note that there is no forensic analysis of the drug bag. There is no DNA. There is no fingerprints brought forward. So what I have is a man who is extremely heavily intoxicated, slumped over, verging on what sounds like unconscious, at the side of the road, having driven a vehicle along Bussell Highway, collided with some cones, pulled over with the lights still on and the keys in the ignition. The time the police arrive, he is passed out in the front seat with an arm draped across the passenger seat.
There is a cigarette packet and lollies by the gear lever, if I put it that way, and Senior Constable Hesp can clearly see, he says, the bag of drugs, and that is visible as soon as he gets to the passenger door. I accept that the drugs are in very close proximity to Mr La Mancusa, who is seated in the driver's seat. My problem in relation to the question of possession is that whilst he is there, it is clear that the prosecution have not negated the possibility of other people having access to that vehicle.
There are at least two people in the frame, neither of whom have been put completely out of the picture. There is no forensic to tie Mr La Mancusa to the drugs. So can it be said that there is an irresistible inference, the only inference open on the evidence? Is the reasonable inference, which has to be irresistible, the only one being that Mr La Mancusa is in that vehicle and had had knowledge of the drugs and therefore can be said to have possessed them and have control and dominion over them?
Is that the irresistible inference based upon the evidence received from the prosecution? I have discrepancies or inconsistencies between the two prosecution witnesses. I'm not saying either of them have in any way deliberately misled the court. They have both given their evidence properly and professionally. The problem I have, though, is that one officer is saying that the drugs were in one position in the car, whereas the other officer is saying then that they were not in - basically they changed the position of where the drugs are within the car and that causes me to query whether the evidence they're given is correct and accurate because, as they're saying, there have been changes in their version of events, to a degree.
I'm not here to speculate upon what can happen. I have to work upon the evidence that I have. The fact remains that there are drugs in the cup holder in the vehicle that the senior constable says were visible at the time. I have no evidence of any other kind, and it's Mr La Mancusa's right not to give evidence. The only person in that vehicle is Mr La Mancusa. La Mancusa is passed out in that vehicle with the drugs next to him, that cup holder being directly next to his driver's seat, and he's in the driver's seat.
There is no evidence of any kind of any other person leaving that vehicle. The officers can't say whether the door was open or not, but the fact remains that he is in that vehicle, he has been in that vehicle for a length of time, unspecified, and he is the driver of that vehicle with drugs in the cup holder next to the driver's seat. So is it an irresistible inference that he is in possession, i.e., has control or demeanour over those drugs?
There's no one else in that car. No one else has been described as leaving that car. There is no evidence of any other person, other than him, and someone else calling St John ambulance and the police to carry out a welfare check. I'm required to give any benefit of the doubt to the accused, and if I have doubt, then I am to acquit. I do note that there have been certain inconsistencies in the police evidence, but the fact remains that they both say that the drugs were in that cup holder and Senior Constable Hesp has obtained those, and they have been found to be methylamphetamine.
On the evidence received, I am not taking into account anything that may have been said by Mr La Mancusa, but the fact remains they're in a vehicle he is driving, right next to him, and, therefore, I am satisfied that there is an irresistible inference that he was in possession of those drugs.
Sentencing and other orders
Mr La Mancusa was sentenced on 23 April 2025 in relation to charge BS 1935/2023 and two other offences. Mr La Mancusa was sentenced to a term of imprisonment of two months in relation to charge BS 1935/2023.
In addition, on 15 May 2023, Mr La Mancusa had been sentenced to a total of 16 months imprisonment conditionally suspended for a period of 18 months, in relation to the following two offences:
(a)BS 251/2022 (possession of methylamphetamine) - 12 months; and
(b)BS 436/2022 (failing obey a data access order) - 4 months cumulative.
The behaviour the subject of charge BS 1935/2023 occurred during the period of suspension. Accordingly, on 23 April 2025, the magistrate also proceeded to deal with Mr La Mancusa in accordance with s 84F of the Sentencing Act 1995 (WA) (Sentencing Act) and ordered Mr La Mancusa to serve a term of 8 months imprisonment for charge BS 251/2022 and term of 2 months imprisonment (cumulative) for charge BS 4336/2022.
The remainder of the offences for which Mr La Mancusa was sentenced on 23 April 2025 did not trigger the application of s 84F of the Sentencing Act.
Legal principles
Appeal from court of summary jurisdiction
This appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision of a court of summary jurisdiction to convict an accused of a charge may be appealed to the Supreme Court by a person aggrieved on the grounds that the court made an error of law or fact or both, or on the basis that there has been a miscarriage of justice.[9]
[9] CA Act s 6(c), s 7(1) and s 8(1).
Leave to appeal is required for each ground of appeal.[10] Leave to appeal must not be granted on any ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[11]
[10] CA Act s 9(1).
[11] CA Act s 9(2).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[12] However, if Mr La Mancusa establishes that the verdict is unreasonable or cannot be supported by the totality of the evidence, then an error material to the decision to convict will be demonstrated, and a substantial miscarriage of justice will also be established.[13]
Principles when parties agree that the appeal should be allowed
[12] CA Act s 14(2).
[13] C v WA Police [2024] WASC 79 [50] - [52] and the cases cited therein.
In Rayney v Aw,[14] Martin CJ made observations on the role of the court in circumstances where parties filed Form 24 pursuant to rule 73 of the Criminal Procedure Rules 2005 (WA) to settle the appeal from a court of summary jurisdiction as follows:[15]
… the court does not act as a mere rubber stamp, endorsing the agreement of the parties without consideration as to the merits of the matter under review. On the other hand, when a minute of consent orders is filed, it will not ordinarily be necessary for the court to undertake the same detailed analysis of the factual and legal issues as if the appeal had been contested. The degree of judicial scrutiny of the orders proposed will depend upon the nature of the issues raised by the appeal, and the nature of the orders proposed.
[14] Rayney v Aw [2008] WASC 295.
[15] Rayney v Aw [2008] WASC 295 [6].
Whilst the present case does not involve a minute of consent orders pursuant to r 73, I respectfully agree with his Honour's analysis on the role of the court in circumstances where parties are in agreement that an appeal from a court of summary jurisdiction should be allowed under the CA Act.
Legal principles regarding an unreasonable verdict
The principles governing a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence was reiterated by the Court of Appeal in the decision of MHS v The State of Western Australia as follows:[16]
[16] MHS v The State of Western Australia [2024] WASCA 85 [124].
(1) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
(2) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(3) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
(4) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court.
(5) The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
(6) A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
(7) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
(8) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
These principles apply to a trial by a judicial officer alone.[17]
Possession
[17] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 at [15] (Gageler, Keane, Gordon, Steward and Gleeson JJ).
Section 6(2) MDA relevantly provides:
A person who has in his or her possession or uses a prohibited drug commits a simple offence.
Section 3(1) MDA defines 'to possess' as:
includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb "to possess" have correlative meanings.
Section 3(1) MDA defines 'prohibited drug' to mean a 'drug to which this Act applies by virtue of section 4'. Methylamphetamine is a prohibited drug within the meaning of the MDA.
In Lia v The State of Western Australia, the Court of Appeal considered the element of 'possession' in the context of a different provision of the MDA. The Court of Appeal outlined that the elements of possession as follows:[18]
Putting to one side for the moment the issue of the accused's knowledge, where a person is charged as a principal offender with an offence contrary to s 6(1)(a) MDA, the State must prove beyond reasonable doubt:
(a) that the accused had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;
(b) at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) MDA;
(c) that the substance or thing was, in fact, a 'prohibited drug' within s 4 MDA; and
(d) (unless the presumption in s 11(a) MDA applies), that the accused intended to sell or supply to another at least some of the substance or thing.
[18] Lia v The State of Western Australia [2020] WASCA 216 [33] and the authorities cited therein.
For the purposes of an offence under s 6(2) of the MDA, the State need not prove that accused intended to sell or supply to another at least some of the substance or thing.
In addition to the above, the Court of Appeal also held that for a charge of possession, the State must also prove the element of knowledge. In this regard, the Court of Appeal held:[19]
(1) the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;
(2) the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was, in fact, 'a drug', within the ordinary and natural meaning of that term;
(3) it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was the specific drug the subject of the charge; and
(4) it is unnecessary for the accused to have at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the weight or quantity of the substance or thing was as alleged in the charge.
Inferences
[19] Lia v The State of Western Australia [2020] WASCA 216 [34] and the authorities cited therein.
The legal principles regarding the drawing of inference in criminal cases which turn upon circumstantial evidence were summarised by the Court of Appeal in Egan v The State of Western Australia:[20]
The principles relating to criminal cases turning upon circumstantial evidence were restated in R v Baden-Clay in the following terms:
(a) when the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused;
(b) the jury can be satisfied of the accused's guilt only where guilt is not simply a rational inference but, rather, the only rational inference that the circumstances permit;
(c) for an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence;
(d) in considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion. (citation omitted)
[20] Egan v The State of Western Australia [2024] WASCA 3 [120] citing R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308.
Disposition
Having conducted my own review of the transcript, and having considered the whole of the evidence before the magistrate, I agree with the submissions made by the respondent (and adopted by Mr La Mancusa) that in drawing the 'irresistible inference' that Mr La Mancusa had possession of the drugs, the magistrate does not appear to have considered whether the prosecution had excluded all reasonable hypotheses consistent with innocence. Specifically, whether the clip seal bag containing the drugs could have belonged to, or have been placed in the car by, someone other than Mr La Mancusa (eg. his mother, step-father or a person who may have been a passenger earlier in the night), and therefore that Mr La Mancusa may not have had knowledge of the existence of clip seal bag and/or its contents. In this regard, the magistrate acknowledged that the prosecution had not negated the possibility of other people having access to the vehicle, and found that there were at least two other people who had not been put 'completely out of the picture'.
Further, having conducted my own review of the whole of the evidence and the transcript of the proceedings, I have respectfully come to the conclusion that there is a reasonable doubt as to the guilt of Mr La Mancusa which I cannot assuage by having regard to such advantage as the magistrate can be taken to have had by reason of having seen and heard all the evidence at trial. I have come to this conclusion based on the combination of the following factors as identified by the respondent (and adopted by Mr La Mancusa):
(a)there is no presumptive testing, no DNA, no fingerprinting, to link Mr La Mancusa directly to the clip-seal bag;
(b)no drugs were found in Mr La Mancusa's system;
(c)the vehicle is not owned by Mr La Mancusa and there was some evidence before the court from Mr La Mancusa himself (albeit he was not cautioned at this stage), that the car is registered to his step-father and that the car is his mother's car;
(d)police officers located two phones in the vehicle and there is no evidence about who they belong to, or who uses them;
(e)the police officers located some items in the vehicle which were more consistent with a female than a male, and which were inconsistent with being owned by Mr La Mancusa;
(f)neither police officer could rule out that there had not been a passenger in the vehicle;
(g)there is no evidence of how the passenger side door of the vehicle came to be open;
(h)it was approximately 1.00am when the police arrived, and it was dark. This would have affected visibility within the vehicle;
(i)Mr La Mancusa was found passed out in the vehicle, was difficult to wake, and does not appear on the body worn camera footage to be overly alert when woken;
(j)there was no evidence as to when Mr La Mancusa first entered the vehicle that night, or how long Mr La Mancusa had been in the vehicle before the police officers arrived. Therefore, Mr La Mancusa may have first entered the vehicle when it was dark and visibility within the vehicle was poor;
(k)Mr La Mancusa was found by police officers heavily affected by alcohol to the point of having passed out;
(k)there was no evidence as to what state Mr La Mancusa was in when he first entered the vehicle that night, and therefore, whether he was in a state to be fully conscious of his surroundings;
(m)there was no evidence, one way or another, about where Mr La Mancusa had been before he was found in the car;
(n)there is inconsistent evidence from the police officers as to the location of the clip-seal bag in the vehicle, and its location is not apparent or clear in the body worn camera footage or screen shot. Therefore, it is not clear that the clip seal bag was in plain view;
(o)Senior Constable Hesp agreed with the possibility that the lolly packet and cigarette packet located near to the clip seal bag could have slid forwards during the course of driving or upon braking and that if those items had been located back towards the cup holders, they could have obscured the contents of the cup holders in their entirety; and
(p)even if it is accepted that the clip seal bag was in plain view where it was found, it would also have been in plain view of, and proximate to, any front seat passenger.
For these reasons, the verdict of guilty is unreasonable and cannot be supported by the evidence. The appeal should be allowed, the verdict of conviction set aside and a verdict of acquittal entered.
Other matters
A consequence of allowing this appeal is that Mr La Mancusa was not convicted of an offence the statutory penalty for which is or includes imprisonment, in circumstances where that offence was committed during the period of conditional suspension imposed on 15 May 2023.
Accordingly, Mr La Mancusa submits that it is also appropriate that the orders made by the magistrate on 23 April 2025 requiring Mr La Mancusa to serve a term of 8 months imprisonment for charge BS 251/2022 and term of 2 months imprisonment for charge BS 436/2022 ought therefore be set aside. I have the power to do this under s 14(1)(c) and/or s 40(1)(l) and/or s 40(1)(m) of the CA Act,[21] and I agree that it is appropriate to do so as those orders were only made as a result of the conviction which has now been set aside.
[21] See also Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 55 WAR 1 [126], [133], [160] - [163]; Yappo v The State of Western Australia [2021] WASCA 133 (S) [10] - [11].
Costs
It is appropriate in all the circumstances that Mr La Mancusa, as a successful accused, be awarded the costs in the Magistrates Court and on appeal pursuant to s 5 of the Official Prosecutions (Accused's Costs) Act 1973 (WA). Having heard from counsel, I was satisfied that the total amount sought of $10,150 was appropriate and in accordance with the relevant costs determinations. The total amount was also agreed between the parties.
Orders
On 21 July 2025, I made the following orders:
1.The appellant is granted leave to amend the notice of appeal in terms of the appeal notice filed on 21 May 2025.
2.Leave to appeal is granted.
3.The appeal is allowed.
4.The verdict of conviction entered on 2 October 2024 on charge BS 1935/2023 is set aside and is substituted with a verdict of acquittal.
5.The order made on 23 April 2025 on charge BS 251/2022 that the appellant serve a term of imprisonment of 8 months, is set aside.
6.The order made on 23 April 2025 on charge BS 436/2022 that the appellant serve a term of imprisonment of 2 months (cumulative), is set aside.
7.The appellant is entitled to his costs of the proceedings in the Magistrates Court and on appeal under the Official Prosecutions (Accused's Costs) Act 1973 (WA), fixed in the sum of $10,150.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MA
Associate to the Honourable Justice Seaward
25 JULY 2025
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