Police v Measey - [2017] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MEASEY
[2017] SASC 194
Judgment of The Honourable Justice Peek
21 December 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
The appellant was charged on separate Complaints with one count of possession of cannabis contrary to s 33L(2)(a) of the Controlled Substances Act 1984, and one count of failing to obey a reasonable direction for the safe and efficient regulation of traffic given to him by a police officer contrary to rule 304(1) of the Australian Road Rules, both charges arising from the circumstances surrounding the actions of police after stopping a vehicle in which there were three occupants. The appellant was seated in the front passenger seat.
The Magistrate found both charges proven. The appellant appeals against the Magistrate’s findings in relation to the possession of cannabis charge only.
The prosecution case was that, subsequent to the vehicle being stopped and the appellant alighting, a police officer – who was not called to give evidence - searched the vehicle and located a small bag of cannabis somewhere in the area of the front passenger’s seat. When questioned by the police, the appellant, who was intoxicated and irate at the time, said words to the effect that he would have smoked the cannabis had the police not been present.
Held per Peek J, allowing the appeal:
(1)     The Magistrate did not correctly approach and analyse the evidence relevant to the issue of possession, and misdirected himself as to the required elements of possession.
(2)     The possession charge was not proven beyond reasonable doubt on the evidence and inferences available before the Magistrate.
(3)     The finding of guilt is set aside and the complaint is dismissed.
Controlled Substances Act 1984 s 33L, referred to.
Taylor v Hayes (1990) 53 SASR 282, applied.
R v Khalil (1987) 44 SASR 23; R v GNN (2000) 78 SASR 293, discussed.
R v McCarthy [2015] SASC 11; R v Frangos (1979) 21 SASR 331; R v Curlija [1967] SASR 1, considered.

POLICE v MEASEY
[2017] SASC 194
Magistrates Appeal: Criminal
PEEK J.
Introduction

The appellant was charged on separate complaints with one count of possession of a controlled drug (cannabis) contrary to s 33L(2)(a) of the Controlled Substances Act 1984 (the Act), and one count of failing to obey a reasonable direction for the safe and efficient regulation of traffic given to him by a police officer contrary to rule 304(1) of the Australian Road Rules. Both charges arose from the circumstances surrounding the actions of police on 7 September 2016 near Pimba after stopping a vehicle in which the appellant was a passenger.
The charges were each found proven by a Magistrate after a trial on 27 September 2017. The appellant appeals against the Magistrate’s finding of guilt in relation to the cannabis charge only.
The grounds of appeal
The appellant’s two grounds of appeal are in an inappropriate and discursive form. The first ground asserts that the search of the vehicle in which the appellant was a passenger was unlawful and that the evidence should have been excluded; it is unnecessary to reproduce it. The second ground of appeal appears as follows:
Ground 2
6.The Learned Magistrate could not possibly have found that the Respondents case was proven beyond a reasonable doubt based on the facts of the matter.
7.As such the Learned Magistrate misconstrued the legal standard of proof or misapplied the facts and therefore took into account an irrelevant consideration or failed to take into account relevant considerations raised at trial.
8.The Learned Magistrate also misapplied or failed to adequately consider the legal concept of ownership and possession.
9.To elaborate on above, The Learned Magistrate found that ownership of the cannabis attached to the Appellant because;
a. The cannabis was located ‘somewhere’ under the seat he was sitting in the car; and
b. The Appellant said ‘he would smoke the cannabis’ when questioned what he would do with it police were not there’.
10.The Appellant submits that there were two other people in the vehicle that were not asked whether the cannabis was their cannabis. The owner of the vehicle who was not in the vehicle at the time of being searched was not asked if the cannabis was his cannabis.
11.There were no fingerprints taken of the bag in which the cannabis was in and it was accepted by the Learned Magistrate that the Appellant when asked who’s cannabis is this that he responded with a question – ‘under my seat?’
12.In all of the circumstances the Learned Magistrate could not possibly have formed an opinion that he was satisfied beyond reasonable doubt that the cannabis was the Appellants cannabis.
There are two distinct aspects of ground 2 of appeal. The first aspect involves the question of whether the Magistrate correctly approached and analysed the evidence relevant to the issue of possession and whether his Honour misdirected himself as to the required elements of possession. The second aspect involves the question of whether the charge was proven beyond reasonable doubt on the evidence and inferences available before the Magistrate.
For the reasons which follow, I allow the appeal on the basis of each of the two aspects of the second ground and quash the Magistrate’s finding of guilt of that charge. It is unnecessary to deal with the first ground of appeal.
The evidence at trial
At around 7:50pm on 7 September 2016, the appellant was one of three people travelling in a Ford sedan (the Ford sedan) which was timed by police as being driven at 158 kilometres per hour on the Stuart Highway near Pimba. Mobile patrol Police Constables Starkey and Blackwell stopped the vehicle and attempted to interview the driver. However, the appellant, who was sitting in the front passenger’s seat and was heavily intoxicated, alighted from the vehicle and began yelling at the police. He was saying that the vehicle belonged to his father and was questioning the alleged speed at which it was timed by police.
The police told the appellant that the preparation and administration of the expiation notice would take 15 minutes but this did not mollify him. Inexplicably, he walked onto the Stuart Highway and stood in the south-bound lane. By this time it was dark and the police officers could see headlights approaching in the distance. As the vehicle (which in fact later proved to be a road train) continued to approach,[1] both the police officers and the driver of the Ford sedan told the appellant to get off the road but the appellant refused. As the vehicle continued to approach, Constable Starkey forcibly removed the appellant from the road. He estimated that by this time, the truck was less than ten seconds away from hitting the appellant.
[1] Constable Starkey gave evidence that the truck was travelling at approximately 100 kilometres per hour, however Constable Blackwell estimated it was travelling at 30 to 40 kilometres per hour.
The appellant was then restrained and Constable Blackwell issued him with an expiation notice for failing to obey a reasonable direction of a police officer. By this time, two additional police officers had attended to assist. One was Constable McKenzie who subsequently searched the Ford sedan and is said to have located a bag containing less than 25g of cannabis somewhere in the area of the front passenger’s seat (where the appellant had been sitting). It is necessary to be circumspect here because, as it happened, Constable McKenzie was not called as a witness and his evidence was in no way agreed.
The examination-in-chief of Constable Starkey
Constable Starkey was one of the officers who originally conducted the traffic stop. After recounting the above difficulties encountered with the appellant, he gave the following evidence relevant to the cannabis charge:
A… At that point, due to the issues that we had with Mr Measey a Port Augusta patrol, which was heading south on a prisoner conveyance, stopped by our location. Once they were there those officers conducted a vehicle search of the speeding vehicle and from there a small amount of green vegetable matter was located in that vehicle.
QDid you have any conversation with the defendant in regard to that cannabis?
AYes, I interviewed him on a notebook statement in regards to that quantity that was found.
QDo you remember that conversation?
AAm I able to refer to my notes?
QI will have to seek authority from his Honour.
HIS HONOUR:     Any objection?
MR WRIGHT:    No.
HIS HONOUR:     Refer to your notes if you need to, constable.
AWill I continue?
APP DEBONO:    Yes, thank you.
AI haven’t got Mr Measey word for word but what I have written down is this, Mr Measey responded, ‘What do you think, cunts’. I responded by saying, ‘Is this cannabis yours’. He later said ‘In my seat’. I then said ‘What are you going to do with the cannabis’ and Mr Measey says, ‘Smoke it all now with you dog cunts, you third world cunts’ and that was the end of the conversation due to his demeanour.[2]
[2]    A serious problem with the accuracy of the transcription of this answer is discussed immediately below.
HIS HONOUR:     Sorry, after you said, this cannabis is yours and he said what?
AHe said ‘In my seat’. So the cannabis was located in the foot well of the vehicle on the passenger side.
APP DEBONO:    As a result of that interview did you take any action in regards to that cannabis being attributed to the defendant?
AYes, we issued a cannabis expiation notice.
QWhy did you issue him with an expiation notice for the cannabis after that interview; what was your mindset after that interview with him?
AThe mindset was the cannabis was located in his seating position in the vehicle. At the time I understood that he knew what the cannabis was and when asked what he was to do with the cannabis he quite clearly stated he would smoke it if police weren’t present.
QDid that give you the opinion that was his and that is why you gave the expiation notice?
AYes, it was.   (Emphasis added)
An uncertain transcription error
Prior to the hearing of the appeal, counsel for the respondent provided the Court with a document seeking to substitute for the above emboldened passage the following:
I said Mr Measey what word for word I held the bag out [indecipherable], ‘What is this’ Mr Measey responded, ‘What do you think, cunts’. I responded by saying, ‘Is this cannabis yours’. He then said ‘In my seat’. I then said ‘What are you going to do with the cannabis’ and Mr Measey said ‘Smoke it all now if you dog cunts weren’t here, you third Reich cunts’ (Emphasis added)
However, during the hearing of the appeal, I indicated to counsel that that proposed passage in substitution could not be correct because it is nonsensical:
HIS HONOUR:     As it stands at the moment it reads ‘I said Mr Measey what word for word I held the bag’ I mean that doesn’t make sense.
MR RODRIQUEZ:       I understand that.
HIS HONOUR:     It is almost certainly that something is wrong. … what comes out of your attempt, you don’t have a grammatical sentence at all. It is highly likely that you have been unable to correctly hear at least one word in that sentence. It has got to be so.
MR RODRIQUEZ:       Yes.
HIS HONOUR:     For example, if ‘what’ were in fact ‘not’, then it would be a perfect sentence and, indeed, it wouldn’t be far off the sense that was in the original transcript.
HIS HONOUR:     Now, I’ve listened to it but not with good earphones, as I think you would need, and I’m not in a position to say it is ‘not’ rather than ‘what’, but it’s much more likely to be ‘not’ rather than ‘what’ because one makes sense and the other doesn’t.
MR RODRIQUEZ:       Yes, your Honour.
HIS HONOUR:     I mean, that’s as far as I can take it.
MR RODRIQUEZ:       It’s difficult, yes. I can’t really add to that. I agree with what your Honour says in the sense that what is written in this document before your Honour doesn’t make sense.
Later I had the following dialogue with Mr Wright, the appellant’s counsel:
HIS HONOUR: Mr Wright, you’ve heard what’s passed between myself and Mr Rodriquez. I suppose you would wish to proceed basically on that basis, as we said, there’s going to be difficulties in deciphering exactly what was said in that first part, as Mr Rodriquez points out, but that it’s likely that what’s being proffered as a word ‘what’ is more likely to be something like ‘not’ which would make sense in the sentence and against the background of the case. Are you happy with that?
MR WRIGHT: I’d agree with that, thank you.
I draw from the above that Constable Starkey conceded at trial, in some form of words, that he was not purporting to be able to reproduce exactly what the appellant said to him at this point in the conversation. This is hardly surprising since the appellant was highly intoxicated, yelling and behaving erratically and unpredictably.
The cross-examination of Constable Starkey
The cross-examination of Constable Starkey proceeded thus:
QConstable, just a few questions. You said that you did not search the vehicle, is that correct?
…
AYes. That was a colleague of mine due to me just keeping an eye on Mr Measey, one of the constables from the Port Augusta patrol, he had a look around the vehicle and he located the cannabis.
QSo you didn’t see where the cannabis was located personally in the vehicle, is that correct?
AConstable McKenzie searched the vehicle. He located the cannabis in the foot well and I went over and just observed it and due to him being on the prisoner conveyance, that is why I issued the expiation notice.
QI was just asking just a yes or no. Did you view the cannabis on or near the passenger seat, or the foot well of the passenger seat in the vehicle, constable?
AYes, I did, on the floor in the passenger foot well.
QAnd did you say it was a Sergeant McKenzie that actually located it?
AI believe it was a Constable McKenzie.
QThen he advised you he had located it, is that right?
AThat’s right.
QThen you viewed it?
AYes, that’s correct.
QAnd he hadn’t touched it?
AI don’t believe he did, no. I was keeping an eye on Mr Measey, so I was not there at the vehicle at the time of the search.
QThere were three other passengers in the vehicle. I beg your pardon, there were two other passengers in the vehicle, is that correct?
AThat’s correct, yes.
QWere any of those persons as far as you were aware, asked whether or not the cannabis was there?
AI didn’t ask that question. I am not sure if Constable Blackwell or any of the other constables did.
And later:
QJust jumping around a bit, there are not many more questions, one of the questions that I do have is in respect to the cannabis. You have asked Mr Measey, ‘Is this cannabis yours’, and then he has said, ‘In my seat’. From your perspective is that a question back to you, ‘In my seat?’
ANo, he seemed very unresponsive so he was just giving indicative answers. He wasn’t asking any questions.
…
MR WRIGHT: From your observations did he appear responsive when you were asking him the questions about the cannabis?
AWell, the cannabis, I think I was in possession of the cannabis so he knew what I was talking about. He was very defensive and aggressive whilst I was asking these questions.
Next, the prosecution called Constable Blackwell, who was partnered with Constable Starkey on the day in question. He gave evidence that he had no involvement with the discovery of the cannabis or the subsequent enquiries that were carried out with the appellant, as he was inspecting the expiation notices which had been prepared by Constable Starkey.
The final prosecution witness was Constable Cardno, who had arrived with Constable McKenzie after the appellant had been removed from the highway and restrained. He gave evidence that at the time that Constable McKenzie and himself had stopped to assist the other police officers, they were in the process of transferring a prisoner from Coober Pedy to Port Augusta. He said that his main priority was to maintain supervision of the prisoner and that he “was not privy” to the conversations between the other officers and the appellant. He gave the following evidence:
QDid you have any conversation with your partner in regards to the vehicle that the other patrol had stopped?
AYes, he was asked to search the vehicle, which he did, so he did search the vehicle under the Controlled Substances Act. Roxby had suspicions due to the behaviour of Measey that he may have been under the influence of alcohol or drugs, so that was the conversation they had and McKenzie began to observe the vehicle.
QDid you observe that search?
AYes, I observed that from where I was standing.
QDid you make any observations of anything that was found in that search?
AYes, he indicated that he had located cannabis in the vehicle and he prepared to talk to the Roxby patrol about what he had found.
And thus the end of the prosecution case was reached with Constable McKenzie, the officer who had discovered the cannabis, not called. Prior to the defence case commencing, the following exchange between the Magistrate and the prosecutor occurred:
HIS HONOUR:     Is that your case?
APP DEBONO:    It is, but well, it is not. I just had some communications with my friend at the bar table in regard to McKenzie I should have probably flagged at the start. McKenzie is the searching officer so he is the one we obviously need to have if the possession and the search is in issue.
HIS HONOUR:     Not so much possession, but perhaps the search.
APP DEBONO:    It was brought to my attention very early on this week that he is on some urgent sick leave or something so I have not been able to get him here so if my friend is amenable to me seeking an adjournment?
MR WRIGHT:    I will make some submissions if it helps.
HIS HONOUR:     It would have been nice to have been told before.
APP DEBONO:    Yes, I know.
MR WRIGHT:    I call Mr Measey.
HIS HONOUR:     Wait a second. There is an application for an adjournment to call another witness.
MR WRIGHT:    There has been plenty of time since the charge.
From that somewhat surreal beginning, a three-way discussion between the Magistrate and the two counsel concerning the question of the legality of the search blossomed and continued for a little under two pages of transcript. The topic of the application for an adjournment appears to have been completely forgotten by all three participants and the conversation concluded when the Magistrate asked counsel for the appellant “are you going to call Measey” and counsel proceeded to do so. Presumably this point marks the close of the prosecution case, although formal closure is not recorded in the transcript.
The appellant’s evidence relating to the cannabis offence
The appellant gave the following evidence-in-chief concerning the discovery of the cannabis (commencing with an allusion to the sequellae to his foolish behaviour on the Stuart Highway):
AAfter repeated requests for them to release the cuffs because I was in pain they finally come over and released the cuffs and put a second cuff on me and left me layingon the ground and that is when the other patrol had arrived by this time and the officer went over to the car and claimed to have found a bag of cannabis. I believe he stated it was under the passenger seat, not in the foot well, and he asked whose it was and one of the other two Roxby Downs officers pointed at me and said, ‘Just say it is his’. That is when I said, ‘Why, because it was under my seat’.
QDid you know that that package, did you know there was any drugs under your seat?
AI had no idea there was any drugs in the car, none whatsoever.
QDid you see the police officer searching for the vehicle?
AI see him go to the passenger door. I don’t believe he searched the back of the car, he just went to the front seat where I was sitting.
QWas there any other police officers that attended at the car?
AAt this point I think Starkey was near me and Blackwell was at the boot of the red Ford, I assume still doing paperwork.
QAs far as you were aware, was anybody else questioned in respect of the drugs that were found in the car?
ANo. Like I said, there were just one of the two Roxby Downs officers pointed at me and said, ‘Say it is his’.
...
QDo you recall a conversation that you had with a Constable Starkey, where he asked you a question about whether or not the cannabis was yours?
ANo I don’t believe he ever asked that question. If he did I did not hear it and therefore would not have responded to it.

During cross-examination the following evidence was given:
QI want to ask you a few questions in regards to the cannabis now. You were sitting in the passenger front seat of the motor vehicle?
AYes.
QFrom the police officer’s evidence the cannabis was found in the foot well of the motor vehicle?
ANot to my recollection, no. He said under the seat.
QDuring both police officers’ evidence today they said.
AI am talking about what I remember hearing that night.
QI am asking about today. They said it was in the foot well of your seat, so you are denying that?
AOne officer said that. The other one didn’t see it, I am sure it was only Starkey that stated he saw it. That is one officer. Blackwell never seen it.
QSorry, Starkey do you disagree that the cannabis was located in the foot well of the passenger seat?
AI don’t believe so. From what I remember of the night, that is not the way of it.
QSo do you agree that Constable Starkey held the bag of cannabis up to you and questioned you and asked you about it?
ANo, again I don’t recall him holding it. The other officer had it. I didn’t exactly see what it was but it was in his hand. I never seen the dope in the car, I never seen the dope in the officer’s hand but he was holding something.
QSo you are saying that Starkey didn’t show you what it was and asked you a question about the cannabis?
ANo. He may have been the officer that asked whose it was but he didn’t ask me directly.
QSo did you respond to him, ‘What do you think cunt’.
AI might have said that later on when he just saying, just say it is his and write it out as mine, I might have said that, yes, but later on in different context.
QWhat about the question, ‘Is this cannabis yours?’
AI don’t recall that question being asked.
QYou didn’t respond, ‘In my seat’?[3]
[3]    This line of the transcript provided by the lower court read: "You didn't respond, 'Near my feet'?" However both parties agreed that this was incorrect and I proceed on that basis.
ANo, I recall them saying, one of the officers saying, ‘Whose cannabis is this?’ or ‘Whose is this’ and like I say one of them pointed to me and said, ‘Say it is his’ and I said, ‘Why, because it is under my seat’ as a question as to why you point your finger at me and blame me for that.
QHow did you know it was under your seat?
ABecause the officer said it was under the seat. The officer who is not here, McKenzie I believe it was.
QDo you recall him asking you what you were going to do with this cannabis?
ANo, I don’t recall that bit.
QWhat about your response, ‘Smoke it all now, if you dog cunts weren’t here, third Reich, cunts’?[4]
[4]    Again, the transcript provided by the lower court file contained uncontroversial errors which parties agreed should be amended for the purposes of the appeal.
ANo, again I don’t recall saying that.
QHe just made it all up?
AIf I said it like anything that it would have been later afterwards, not at that point and it was would have been in response to the way I was being treated by them.
QSo that officer has made all of that conversation up, just out of the blue?
AHalf of it, he has twisted it. I did say under the seat but as a question as to why I was being blamed for it when there is no reason to believe it is mine.
QDo you want the court to believe that this police officer is lying about this about this so that you are the one who is telling the truth?
AWell, I don’t know, that is just what they have written there. I am just telling you what I recall of the evening.
QBut if you are saying it didn’t happen.
AI am not going to speculate.
QThen you are inferring that he is lying, are you not?
AThat he is mistaken.
QIt is not that you are not telling the truth?
AI am not lying. To the best of my knowledge I am telling the truth, yes.
…
QI put it to you that cannabis was yours and you did admit that it was yours and you going to smoke it.
A     No, no, no, definitely not.   (Emphasis added)
In relation to the Ford sedan, the appellant gave the following evidence:
QThe vehicle you told the court that you were in, whose vehicle was it?
AIt was my father’s car.
A…
QYour father’s car, have you travelled in that vehicle before?
AI have done, yes.
QOther than you travelling in that, have other people travelled in that vehicle?
AYes, quite a few people have used that vehicle.
QQuite a few people use that vehicle; why is that?
AWell, it is a vehicle we usually use, or dad uses to go to Port Augusta or Adelaide so often people want to borrow a car and go down to Port Augusta or something, we will lend, dad will lend that to them.
QSo the predominate person that uses the vehicle is the owner of the vehicle?
AProbably, yes, but it is not used much around Coober Pedy because it is low and it doesn’t like the roads.
Evidence as to the appellant’s state of intoxication
The evidence as to the appellant’s behaviour and comments made subsequent to the discovery of the cannabis needs to be interpreted in light of the evidence as to the appellant’s mental state at that time. By all accounts, including his own, the appellant was highly intoxicated. Constable Starkey gave the following evidence:
QYou have said in your affidavit, constable, at paragraph four, I am happy for you to look at it, that Mr Measey, I am para phrasing here, appeared to be very much under the influence of alcohol and/or drugs. Why was that?
AJust his demeanour. He was at a very high level for a very long time, so that is why I thought he had either been drinking or taken some other substances. Just his character was not like of a, I would not say normal person, but a normal aggressive person at that time he would have like, calmed down and we were being calm and responsive to his needs and also the driver’s and he got to the point I would say his demeanour was that of, that the driver was also assisting us in trying to calm his passenger.
Constable Blackwell also gave evidence in cross-examination thus:
QConstable, I only have a few questions. You have mentioned in your affidavit that he appeared heavily affected by either drugs or alcohol. Do you accept that?
AThat is my belief when he exited the vehicle.
In fact, Constable Blackwell’s evidence relating to the appellant’s offence of failing to follow a reasonable direction of a police officer perhaps best highlights the extent to which the appellant was not thinking logically or clearly:
AHe got out the car yelling at us, saying things like, ‘We should not interfere with people’s daily lives and things like that. He was swearing at us, throwing his arms around, shaping up to us, if I can use that term, tensing his muscles, yes, quite angry and intense. We just explained once we had gone through the processes with the driver that they could continue on their way but that just incensed him even further.
QSo you were not able at that point to calm him down at all?
ANo, even the driver of the vehicle he was travelling with, attempted to calm him down and yes, it just had no effect.
QSo after this had all been going on for some time was there anything else that the defendant did that gave you concern?
AYes, at one point he sauntered out on to the Stuart Highway. It was pitch black out there at that time of night, still carrying on and saying it was his right to be out there and things like that and swearing police. At the same time a semitrailer, a B triple was heading south at speed towards him. We asked him to get off the road as the triple got closer. We yelled at him to get off the road, finally directing him, giving him police directions to get off the road.
…
AHe, well, he made it difficult by tensing up. At one point he tried to run back to the road before the truck arrived. We grabbed him again and sort of taken him to the soft shoulder, taken him down to the ground and we handcuffed him for his safety.
The appellant gave evidence that he had been drinking whiskey. He denied that he had taken drugs.
An analysis of the evidence
I proceed with a consideration of the evidence directed to the cannabis charge, although all of the evidence must be considered as background material.
The initial finding of the cannabis by Constable McKenzie
The evidence concerning the initial finding of the cannabis and its precise location when it was first seen by Constable McKenzie is unfortunately rather nebulous due to the fact that he was not called at trial with no agreement in place concerning his evidence.
From the evidence that we do have, there is no doubt that Constable McKenzie searched the interior of the Ford sedan, including the area around the front passenger seat. However, a careful analysis of Constable Starkey’s evidence shows that his assertion in cross-examination (reproduced above) that Constable McKenzie found the cannabis in the foot well (as distinct from under the seat) was based on an assumption made by Constable Starkey when he saw the cannabis in the foot well not long after Constable McKenzie had previously found it.
Constable Starkey stated in cross-examination that: “I was keeping an eye on Mr Measey, so I was not there at the vehicle at the time of the search.” The fact is that Constable Starkey did not see Constable McKenzie actually find the cannabis. The evidence is quite consistent with the reasonable possibility that Constable McKenzie saw or felt something under the seat and pulled it out into the foot well to inspect it, and then announcing that he had found cannabis. Constable Starkey thereupon came over in response and saw the cannabis in the foot well.
The conversation between Constable Starkey and the appellant about the cannabis
There is a clear conflict between the evidence of Constable Starkey and that of the appellant concerning what the appellant said about the front passenger seat in which he had been sitting. The evidence of Constable Starkey appears above. On this aspect, Constable Starkey said that there was the following very short exchange: “I responded by saying, ‘is this cannabis yours’. He then said ‘in my seat’.”
However, the appellant gave evidence that he did say the words ‘in my seat’, but in the quite different context of Constable McKenzie asserting that he had found the cannabis under the front passenger seat and that he, the appellant, had responded in the form of a question ‘in my seat?’ as can be seen in the following cross-examination of the appellant:
QSo do you agree that Constable Starkey held the bag of cannabis up to you and questioned you and asked you about it?
ANo, again I don’t recall him holding it. The other officer had it. I didn’t exactly see what it was but it was in his hand. I never seen the dope in the car, I never seen the dope in the officer’s hand but he was holding something.
QSo you are saying that Starkey didn’t show you what it was and asked you a question about the cannabis?
ANo. He may have been the officer that asked whose it was but he didn’t ask me directly.
QSo did you respond to him, ‘What do you think cunt’.
AI might have said that later on when he just saying, just say it is his and write it out as mine, I might have said that, yes, but later on in different context.
QWhat about the question, ‘Is this cannabis yours?’
AI don’t recall that question being asked.
QYou didn’t respond, ‘In my seat’?
ANo, I recall them saying, one of the officers saying, ‘Whose cannabis is this?’ or ‘Whose is this’ and like I say one of them pointed to me and said, ‘Say it is his’ and I said, ‘Why, because it is under my seat’ as a question as to why you point your finger at me and blame me for that.
QHow did you know it was under your seat?
ABecause the officer said it was under the seat. The officer who is not here, McKenzie I believe it was.
QDo you recall him asking you what you were going to do with this cannabis?
ANo, I don’t recall that bit.
QWhat about your response, ‘Smoke it all now, if you dog cunts weren’t here, third Reich, cunts’?
ANo, again I don’t recall saying that.
QHe just made it all up?
AIf I said it like anything that it would have been later afterwards, not at that point and it was would have been in response to the way I was being treated by them.
QSo that officer has made all of that conversation up, just out of the blue?
AHalf of it, he has twisted it. I did say under the seat but as a question as to why I was being blamed for it when there is no reason to believe it is mine.
(Emphasis added)
The Magistrate’s findings concerning the disputed conversation
The Magistrate summarised the appellant’s evidence in relation to the cannabis charge as follows:
[24]    … Police searched the car. Mr Measey had no idea there were drugs in the car.
[25]    Just after the cannabis had been found, one of the police officers pointed to Mr Measey and said, ‘Just say it is his’. Mr Measey said he was on the road for no longer than twenty seconds. He did not receive an expiation notice at the time but received expiation notices in the post later. Constable Starkey did not ask him if the cannabis was his.
[26]    Mr Measey admitted having a conversation with Constable Starkey and saying, ‘In my seat’ but said this was a question. I am not inclined to reject Mr Measey’s evidence in that regard. However, I accept the evidence of Constable Starkey that Mr Measey, when asked what he was going to do with the cannabis, indicated that he would have smoked the cannabis if police were not there.   (Emphasis added)
In stating that he was not inclined to reject Mr Measey’s evidence that ‘in my seat’ was said as a question, the Magistrate necessarily allowed the possibility that there was much more said than recounted by Constable Starkey. For ‘in my seat?’ to have been said by the appellant as a question, one must also allow that the contextual conversation that led to the appellant asking that question must have been quite different to Starkey’s version of the conversation, namely that he had said ‘is this cannabis yours’ to which the appellant responded ‘in my seat’. Once one allows that ‘in my seat?’ was said as a question, the issue of exactly what was the actual full conversation between Constable Starkey and the appellant concerning the provenance of the cannabis is thrown into considerable doubt.
The Magistrate failed to correctly analyse the evidence
The Magistrate’s process of reasoning leading to his conclusion of guilt was as follows:
[30]    In relation to the possession of the cannabis, the cannabis was found in the motor car occupied by three people. It was not Mr Measey’s motor car. It belonged to his father.
[31]    I am satisfied beyond reasonable doubt that Mr Measey had a conversation with police as recorded by Constable Starkey in accordance with the evidence he gave. However, apart from aggressively asserting that he would smoke the cannabis if police were not there, there was no admission by Mr Measey that the cannabis was his.
[32]    It is clear from the conversation that Mr Measey knew that the substance was cannabis. Not a great deal turns on that. He then asked police whether the cannabis was found under his seat and then he was asked what he proposed to do with the cannabis and he indicated that if the police were not there he would have smoked it.
[33]    I am satisfied beyond reasonable doubt that Mr Measey knew cannabis was in the car and that he was in a position to exercise control over the cannabis. I so conclude based on its position in the vehicle and Mr Measey’s admission that he proposed to smoke the drug.
[34]    I am satisfied the cannabis belonged to Mr Measey and not to any other occupant in the car. I therefore find the second charge proven beyond reasonable doubt.
Paragraph [30] is unexceptionable and nothing more need be said.
However, at paragraph [33] the Magistrate appears to be saying that he finds that the appellant “knew cannabis was in the car and that he was in a position to exercise control over the cannabis”[5] based on first, “its position in the vehicle” and second, on “Mr Measey’s admission that he proposed to smoke the drug.” I will deal with those two matters in that order.
[5] I return to the meaning and elements of “possession” below.
“Its position in the vehicle”
The problem with the Magistrate basing his finding of possession of cannabis guilt in part on “its position in the vehicle” is that his Honour makes no finding at all as to where the cannabis was found in the vehicle. As noted above, the prosecution evidence adduced was not inconsistent with the cannabis having been found under the front passenger seat by Constable McKenzie but it certainly was not established beyond reasonable doubt that the cannabis was found by Constable McKenzie in plain view in the front passenger foot well. It is entirely uncertain whether the Magistrate was proceeding on the basis that “its position in the vehicle” when first found by Constable McKenzie was under the front passenger seat or in the front passenger foot well.
“Mr Measey’s admission that he proposed to smoke the drug”
The prosecution suggests by reference to the audio recording, and I think correctly, that the evidence given by Constable Starkey concerning this statement was as follows:
I then said ‘What are you going to do with the cannabis’ and Mr Measey said ‘Smoke it all now if you dog cunts weren’t here, you third Reich cunts’
The Magistrate appears to derive from this exchange that the appellant “indicated that if the police were not there he would have smoked it” (at paragraph [32]) and that this was an admission by the appellant “that he proposed to smoke the drug” (at paragraph [32]).
It should be obvious that this form of questioning was highly objectionable and the answer should have been excluded if counsel appearing had bothered to object. Since the cannabis had been found in close proximity to where the appellant had been sitting and since the very form of his question reveals that Constable Starkey believed that the appellant was guilty of an offence of possession of cannabis, it is clear that Constable Starkey’s question should have been preceded by a caution[6] and it was a clear case for exclusion of the answer. That obvious objection was not taken, but one is nonetheless still faced with a real question of the weight, if any, that can be properly attached to the appellant’s answer for the following reasons.
[6] It may be added that there are occasions in which fairness requires that, before a caution becomes necessary, or in addition to a caution, the person being questioned be informed of the nature and purpose of the investigation by the police. Such may well have been the position here. Some of the authorities are summarised by Blue J in his ruling on the voir dire in R v McCarthy [2015] SASC 11 including the important decisions in R v Murphy (1996) 66 SASR 406 and R v Priddis (Unreported, Supreme Court of South Australia, Cox J, 22 September 1994).
First, it is to be noted that the question of ‘what are you going to do with the cannabis’ is vague and purely hypothetical given that the appellant had no power to do anything and the appellant recognised as much in his answer. Further, the word “you” may also be understood as meaning “the three of you” and “smoke it all now” is consistent with an answer meaning “we would smoke it all”.

Second, the statement “smoke it all now” does not establish that, prior to the Ford sedan being stopped by the police, the appellant knew that there was cannabis in the car or that he had had an intention at that earlier time of smoking such cannabis. Rather, what occurred here was that an amount of cannabis was held up by a police officer, a vague question was put to the appellant and a response meant to be insulting or facetious or both was given by the intoxicated appellant. In the context of a conversation in which, on his version, he was asked by Constable Starkey what he was going to do with the drug very soon after expressing his surprise that the cannabis was found near his seat, it is entirely plausible that, in his intoxicated and reckless state, he responded with a flippant remark which cannot be properly construed as an admission of possession.
The present case has certain parallels with the decision in R v Khalil.[7]There the appellant was being tried on a charge of breaking, entering and stealing three rifles and evidence was led of a portion of a conversation with prison warders during which he apparently made a damaging admission. However, a real question of whether he was then speaking seriously was raised if one had regard to his words in a different part of the conversation relating to a quite different pending charge which was not before the jury. Having failed on a voir dire application to exclude the evidence, counsel for the appellant elected not to cross-examine so as to bring out the further conversation which would have raised the possibility of overall jocularity but also would have had the disadvantageous effect of exposing the further serious charge. The conviction was set aside on the basis of error by the trial Judge in declining to exclude the evidence. Of present relevance, O’Loughlin J (with whom White and Johnston JJ agreed in separate reasons) stated:[8]
There is no doubt that where a confession is equivocal, the court may quash a conviction founded solely thereon: S L Phipson, The Law of Evidence (13th ed, 1982), p 449; R v Barker (1915) 11 Cr App R 191; R v Smith (1979) 5 Crim LJ 161. I have already quoted the evidence of Officers Standish and Moore and if, in every sense, they accurately reproduced the words spoken by the appellant, then there is, of course, no room for ambiguity. He did not, in answer to the question, say that “the police say that I stole three machine guns”. According to their evidence he clearly and unambiguously said words to the effect “I stole three machine guns”, adding that the police had recovered two. But the evidence of Standish and Moore that I have thus far quoted or referred to does not tell the full story. The full story can only be gleaned by having regard to their evidence in the voir dire examination, for that discloses that the conversation relating to the machine guns was part only of a larger conversation between the officers and the appellant.
[7] (1987) 44 SASR 23.
[8] (1987) 44 SASR 23, 37-38.
Of course, the appellant’s statement might possibly constitute an admission that he was aware what cannabis looks like, but such an inference is of very little weight since that is common knowledge in society today. The appellant’s statement might possibly constitute an admission that he was an experienced cannabis smoker but that is far short of proof of possession of the particular amount of cannabis in issue here.
The requirement of “possession” under the Controlled Substances Act 1984
For the purposes of s 33L(2)(a) of the Act, a person will be in possession of cannabis if he has it in his physical custody or control in circumstances which demonstrate that he has a conscious mental recognition of its presence and that he has the intention of exercising control over it, or over its disposition, to the exclusion of others, or of doing so in case of need.[9]
[9] Cf. R v Frangos (1979) 21 SASR 331, 339 (Walters J, with whom Wells J concurred); R v Curlija [1967] SASR 1, 4 (Napier CJ, Chamberlain J and Walters AJ). The term “possession” is defined in the interpretation section (s 4) of the Act as including “(a) having control over the disposition of the substance or thing; and (b) having joint possession of the substance or thing”. The effect of this statutory inclusory definition on the common law is not substantial. I have added a reference to “disposition” and the matter of joint possession does not presently arise.
However, as Doyle CJ (with whom Prior and Olsson JJ agreed) observed in In R v GNN, “possession is a notoriously elusive legal concept. It is difficult to explain”.[10] In GNN, heroin was found inside a house of which the appellant was the householder but two men had been visiting at the house at the relevant time. In those circumstances, Doyle CJ stated:[11]
First, it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury's part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who were at the house that night. Thirdly, it was necessary to emphasise the requirement to prove physical control over the heroin and an intention to exercise control over it. It was necessary to relate these matters to the facts, in a practical way, to avoid the risk of the jury convicting on an unreliable basis. It was necessary to give directions that dealt adequately with the possibility that the heroin was in the possession of one of the men found in the house.
[10] R v GNN (2000) 78 SASR 293, 296.
[11] Ibid, 296-297.
The possibilities that had to be guarded against in GNN also arose in the present case. Even if the appellant had been aware, prior to the traffic stop by the police, that there was some cannabis inside the Ford sedan, and even if it were the case that, given the opportunity, he would happily smoke it, such falls far short of establishing that he was “in possession” of that cannabis. The Magistrate had before him the appellant’s uncontested evidence that:
-The appellant was not the owner of the vehicle in which the cannabis was located;
-The appellant was not driving the vehicle;
-Two other adult persons were in the vehicle at the time it was pulled over by the police but neither were questioned about the cannabis; and
-The vehicle is used by “quite a few people”, as the appellant’s father, who is the registered owner of the vehicle, often lent it to people who “want to borrow a car and go down to Port Augusta or something”.
However, far from properly directing himself in relation to such matters, the Magistrate here misdirected himself as to possession. Thus the only mention made by the Magistrate concerning the elements of possession appears thus:
[33] I am satisfied beyond reasonable doubt that Mr Measey knew cannabis was in the car and that he was in a position to exercise control over the cannabis. I so conclude based on its position in the vehicle and Mr Measey’s admission that he proposed to smoke the drug.
[34] I am satisfied the cannabis belonged to Mr Measey and not to any other occupant in the car. I therefore find the second charge proven beyond reasonable doubt.
(Emphasis added)
A statement that “Mr Measey knew cannabis was in the car and that he was in a position to exercise control over the cannabis” falls well short of an adequate direction in the present circumstances. Even if “Mr Measey knew cannabis was in the car”,[12] the mere fact that “he was in a position to exercise control over the cannabis” is not enough to establish that the appellant was in possession of it. If one or both of the other two occupants of the Ford sedan knew that cannabis was present they would also have been in a position to exercise control over it. An owner of a house may know that a tenant has a small amount of cannabis. A parent may know that an adult son or daughter living under the same roof has a small amount of cannabis. But the person with knowledge in such examples is not in possession of the cannabis even though he or she might well be able to confiscate it, and in that sense be “in a position to exercise control over the cannabis”.
[12] As noted above, that is a very big if since there appears to be insufficient evidence upon which such an inference could be drawn beyond reasonable doubt.
The critical question is not whether the subject person is “in a position to exercise control over the cannabis” but rather whether it is established beyond reasonable doubt that he has a conscious mental recognition of its presence and that he has the intention of exercising control over it, or over its disposition, to the exclusion of others, or of doing so in case of need.[13]
[13] See footnote 9 above.
The Magistrate has incorrectly and insufficiently directed himself at paragraphs [33] to [34] concerning the critical matter of possession. It is necessary to add that his Honour’s further remark at paragraph [34] that “I am satisfied the cannabis belonged to Mr Measey and not to any other occupant in the car” which is perhaps directed at a possession/ownership distinction[14] does not appear to be based on any identifiable evidence in the case.
[14] Obviously there are many situations where a person has possession of an item that is owned by a different person. The prosecution are only required to prove possession, not ownership.
Conclusion as to the Magistrate’s process of reasoning and directions
For the reasons stated above, I conclude that the Magistrate did not correctly approach and analyse the evidence relevant to the issue of possession and that his Honour misdirected himself as to the required elements of possession. This aspect of ground 2 of appeal is therefore made out. Allowing the appeal on this aspect of ground 2 would lead to a consideration of the broad discretion to either order a retrial or dismiss the charge. I consider that a retrial would not be warranted here in all of the circumstances including: that an acquittal on a retrial is likely; that if convicted, the penalty is likely to be very moderate; that the appellant still faces sentence on the “fail to obey direction charge”; and that the expense to the public of a retrial here is simply not justified in all of the circumstances. Accordingly, the preferable exercise of discretion would be not to order a retrial.
However, I also conclude that the second aspect of ground 2 of appeal is made out, namely that the charge was not proven beyond reasonable doubt on the evidence and inferences available before the Magistrate. The correct consequence of success on this second aspect of ground 2 of appeal is an order for dismissal without retrial. In Taylor v Hayes, Perry J stated:[15]
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.
[15] (1990) 53 SASR 282, 291.
Having performed that independent review of the evidence, I consider that, in all of the present circumstances, possession by the appellant of the subject cannabis was not proven beyond reasonable doubt. Accordingly, by reference to that second aspect of ground 2 of appeal, I find the appellant not guilty of that charge. I order that that complaint be dismissed without an order for a retrial.
Orders
1.   The appeal is allowed.
2.   The finding of guilt of the charge of possession of cannabis is quashed.
3.   The appellant is acquitted of the charge of possession of cannabis and that complaint is dismissed.