R v - [2011] SADC 3 | CaseChat AU

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v
RIERA
Criminal Trial by Judge Alone

[2011] SADC 3
Reasons for the Verdict of His Honour Judge Nicholson
27 January 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - WHAT CONSTITUTES
Methylamphetamine, in trafficable quantities, was found in residential premises. The female occupant pleaded guilty to trafficking. Circumstantial evidence suggested that the drugs were in the joint possession of the female occupant and her male partner, the accused. He denied being in possession of the drugs or any of them and pleaded not guilty to two counts of trafficking in a controlled drug. Joint possession not established beyond reasonable doubt.
HELD: Not guilty of both counts.
Controlled Substances Act 1984 s 32(3); R v Nguyen 2010 SASCFC 23 at [95] & [96]; R v Frangos (1979) 21 SASR 331 at 339; R v GNN (2000) 78 SASR 293 at [20]; Barrillo v Bartlett [1966] SASR 286 at 288, referred to.

R v RIERA
[2011] SADC 3
Introduction

The accused, Emile Riera, stands charged, by Information dated 17 November 2010, with two counts of trafficking in a controlled drug. About 10.30 pm on 18 November 2008 police attended at 422 Marion Road, Plympton after receiving information about a loud disturbance occurring inside the house. The police spoke to the co-accused, Ms Alexandra Koulioubas, at the front door and then entered the building. They were told by Ms Koulioubas that the male occupant was at that time in the toilet, being the room described as “ensuite” immediately adjacent to the room described as “office” in the plan, Exhibit P1. The police saw the male occupant (the “accused”) emerge from the ensuite into the entrance foyer and attempted to speak to him. He started to run and after a struggle, in the vicinity of the kitchen area, he was restrained and the police spoke to him.
For reasons that are unnecessary to set out here, the attending police formed a suspicion that the accused might be in possession of drugs. Whilst they were attempting to restrain him a container, subsequently found to contain methylamphetamine, appeared on the floor beneath the accused as if it had come from his possession. The police then arranged for members of the Drug Squad to attend with a general search warrant and later that evening the premises were searched. A substantial quantity (in total, almost 50g) of substances containing approximately 15g of methylamphetamine was found in various locations.
Both Ms Koulioubas and Mr Riera were charged with offences of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act, 1984.
The matter came before me initially to consider rule 9 applications brought on behalf of both accused seeking the exclusion, at trial, of the evidence of what was found during the search on the basis that the search should be characterised as an illegal search. At the conclusion of that part of the hearing I made the following ruling.
(i)I am not satisfied, on the balance of probabilities, that at the time Constables Bertram and Schiek first entered the front door of 422 Marion Road, Plympton, either held an intention to search the male occupant.
(ii)I am satisfied, on the balance of probabilities, that at the time of this initial entry, they intended to check on the welfare of the male occupant and to obtain his account of events.
(iii)It may be that, in all the circumstances at the time of this initial entry, Constables Bertram and Schiek had no lawful authority so to enter, but I reserve further consideration of this issue. However, for present purposes, I have assumed that their initial entry was in circumstances that rendered it unlawful and which gave rise to a civil trespass.
(iv)I am not satisfied, on the balance of probabilities, and in the event that their initial entry was unlawful, that either Constable Bertram or Constable Schiek wilfully or recklessly engaged in an entry they knew to be or thought may be unlawful.
(v)I am satisfied, on the balance of probabilities, that Constables Bertram and Schiek formed an intention to search the male occupant only once they were inside the house, and as a result of their recognition of him as someone with whom they recently had had dealings, in combination with his perceived demeanour and actions inside the house.
(vi)On the assumption that the initial entry was unlawful, the subsequent searches of the male and of the house would also be characterised as unlawful. On this assumption, a discretion as to whether or not the evidence of the fruits of these searches should be excluded arises in accordance with the principles set out in Bunning v Cross (1978) 148 CLR 54 and subsequent authorities that have followed and applied those principles.
(vii)I have reviewed the various principles and factual considerations relevant to the exercise of this discretion. My decision is that the application by each accused to exclude this evidence is refused. It would not be an appropriate exercise of my discretion, in all of the circumstances, if I were to exclude the evidence in this case.
(ix)I reserve the right to provide detailed reasons for this ruling should I be called upon to do so.
As it happens, it will not be necessary for me to provide detailed reasons for this ruling. The matter came before me again on 17 November 2010 for trial. Ms Koulioubas pleaded guilty to one count of trafficking in a controlled drug. However, the accused, Mr Riera, pleaded not guilty to two counts of trafficking in a controlled drug and the trial proceeded before me sitting as judge alone.
The offence of trafficking in a controlled drug
The offence of trafficking in a controlled drug contains three elements each of which must be proved by the prosecution beyond reasonable doubt. There is a qualification to this as far as the second element is concerned, explained below.
First, it must be proved that the substance that the accused had in his possession or dealt with was a controlled drug. In this case there is no contest and the evidence clearly establishes that the substances found by the police contained methylamphetamine, a substance declared to be a controlled drug by regulations made pursuant to the Controlled Substances Act.
Second it must be proved that the accused “trafficked” in some or all of the substances containing methylamphetamine that were found. Section 4(1) of the Controlled Substances Act contains a definition of the verb to traffic.
traffic in a controlled drug means—
(a)     sell the drug; or
(b)     have possession of the drug intending to sell it; or
(c)     take part in the process of sale of the drug;
In this case the Crown asserts that the accused had possession of the methylamphetamine in question intending to sell it. There is no evidence, and the Crown does not contend, that the accused had, in fact, sold any of the drug or had taken part in the process of sale of any of the drug.
There are two aspects to this element of trafficking: was the accused in possession of the methylamphetamine that was found and, if so, did he have an intention to sell it or any of it? In this case, given the quantity of the drug located, if the accused were to be found to have been in possession of the drug, he would be deemed, by operation of law, to have had possession with an intention to sell unless he was able to establish, on the balance of probabilities, that he had no such intention. The issue of intention to sell was not explored in the trial before me. At all times, the accused has maintained that he was not in possession of any of the methylamphetamine and therefore the question of intention is simply irrelevant. In the event that I were to find beyond reasonable doubt that he was in possession of any of the methylamphetamine and given this absence of any evidence put on behalf of the defence on this issue, the accused would be deemed by operation of law to have had an intention of sale.
The third element to be proved by the Crown is that the accused knew that the substance concerned was methylamphetamine or at least a controlled substance. This element was not contested by the accused.
Ultimately, the only question before the court was whether or not the accused was in possession of the methylamphetamine located in the house or any of it. If found to be in possession a guilty verdict would follow.
Factual basis of the Crown case
The Crown case is based, in part, on the following allegations of fact.
Methylamphetamine, in various quantities, was found by police in a number of locations within the office[1] of the house at 422 Marion Road, Plympton, including in a safe that was in a locked state as at the time of the police search. In particular,[2] methylamphetamine was found in two press seal plastic bags in a bin in the office,[3] in a plastic container located in the top draw of the desk in the office,[4] in a square plastic container found on a shelf in the safe,[5] in a small round plastic container found on a shelf in the safe,[6] in a small round plastic container with lid found on a shelf in the safe,[7] in a very small round plastic container found on a shelf in the safe,[8] and in two press seal bags found on a shelf in the safe.[9]
[1]    The room marked “Office” on the plan, Exhibit P1
[2]    Exhibit P3.
[3]    Photograph 1 of Exhibit P4.
[4]    Photographs 5 and 21 of Exhibit P4.
[5]    Photographs 9 and 23 of Exhibit P4.
[6]    Photographs 10 and 24 of Exhibit P4.
[7]    Photographs 11 and 25 of Exhibit P4.
[8]    Photographs 12 and 26 of Exhibit P4.
[9]    Photographs 13 and 27 of Exhibit P4.
As at the date of the police search, 18 November 2008, the accused was the registered proprietor in fee simple of the land at 422 Marion Road, Plympton.[10]
[10] Agreed Fact No. 1 in Exhibit P11.
The accused was present inside the house at the time police first visited to investigate the domestic disturbance and also at the time of the subsequent (that same night) police search and their finding of the methylamphetamine in the house.
That evening and shortly prior to the police entering the house for the first time, the accused had consumed methylamphetamine.
During the initial police visit and whilst they were attempting to restrain the accused, he was in possession of an ice pipe and a small plastic container which held at least 2.57g of susbstance containing 0.36g of methylamphetamine.[11] This methylamphetamine is not the subject of any charge.
[11] I say at least 2.57g of substance because the substance recovered and sent for analysis was scraped from the floor after, on the Crown case, it had been spilt during the accused’s struggle with the police.
The accused, at the time, was a user of methylamphetamine and from time to time would have an interest in obtaining access to methylamphetamine.
As at 18 November 2008, the date of the police search, the residential address of the accused recorded by the Registrar of Motor Vehicles was 422 Marion Road, Plympton, the premises in which the methylamphetamine was located.[12]
[12] Exhibit P9.
For a period prior to and including 14 February 2007 the address recorded for the accused by the Registrar of Motor Vehicles was 12 Kookaburra Crescent, Hawthorndene, for the period 14 February 2007 until 9 October 2009, the address recorded was 422 Marion Road, Plympton and for the period 9 October 2009 until the date of the certificate obtained from the Registrar (that is, 17 November 2010) the address recorded for the accused was again 12 Kookaburra Crescent, Hawthorndene.[13]
[13] Exhibit P9.
Prior to 18 November 2008 the accused had been operating the business Oceania Table Sports from 422 Marion Road, Plympton. This business sold snooker, billiard or pool tables and related accessories.[14] Whilst the agreed fact is in the terms “prior to” 18 November 2008, I am satisfied from the evidence of the co-accused Ms Koulioubas on this topic and on the basis of various observations of the contents of the premises made by the police witnesses that this remained the position as at the time of the search.
[14] Agreed Fact No 3 in Exhibit P11.
In total approximately 49.5g of substance containing approximately 15.23g of methylamphetamine (that is, a concentration of approximately 30%) was found in various locations in the office. However, by far the largest quantity was that in the plastic container located in the top draw of the desk which comprised approximately 45g of material containing approximately 13.9g of methylamphetamine.[15]
[15] Police Item No. 09/A49696-21, Exhibits P4 and P7.
The police found a number of other items of interest in the office:
(i)a quantity of small press seal plastic bags on the desk and in the top of a plastic drawer set located on the desk;[16]
(ii)a glass pipe on the top of the desk and a glass pipe on the shelf in the safe;[17]
(iii)a set of mini electronic scales on the top of the desk;[18]
(iv)a plastic container (with a yellow lid) of assorted cold and flu tablet medications found on the shelf in the safe,[19] all of which contained pseudoephedrine;[20]
(v)a single hand written page found on the desk in the office[21] containing a list of various drug types together with mathematical calculations which, on the basis of the document itself and the evidence of police officer Sheehy, I am satisfied represents someone’s attempt at calculating or identifying the amount of pseudoephedrine that might be contained in various quantities of the drug preparations referred to in the note;
(vi)a wallet containing a drivers licence in the name of the accused and a bank cheque for $5000 made out in the name of the accused;[22]
(vii)a passport in the name of the accused on the middle shelf of the safe behind containers of methylamphetamine;[23]
(viii)a money order made out to Oceania Table Sports on the desk although the evidence is inconclusive as to whether it was located loose on the desk or within the wallet on the desk;[24]
[16] Exhibit P3 and Exhibit P4 photographs 2 and 4.
[17] Exhibit P3 and Exhibit P4 photographs 3 and 8.
[18] Exhibit P3 and Exhibit P4 photograph 6.
[19] Exhibit P3 and Exhibit P4 photographs 7 and 22.
[20] Police item No 09A49692-22 analysed as described in Exhibit P7.
[21] Exhibit P3 and Exhibit P4 photographs 17 and 18.
[22] Evidence of police officer Deacon. It is not disputed that the wallet belonged to the accused.
[23] Evidence of police officer Deacon. The passport was not seized and is not in evidence.
[24] Evidence of police officer Deacon.
Samples of contact DNA were located on some of the items found in the office and subsequently analysed.[25]
(i)A DNA sample was obtained from the outer surface of the container and lid of the plastic container with blue lid found in the top drawer of the desk (containing approximately 45g of methylamphetamine mixture). A mixed DNA profile contributed to by at least three individuals was obtained. The accused could not be excluded as a contributor to the minor component but no likelihood ratio could be calculated and the finding was described by the analyst as of limited evidentiary value, as that term is defined in the report. The co-accused, Ms Koulioubas, was excluded as a contributor to this DNA sample.
(ii)A DNA sample obtained from the plastic container with the yellow lid containing the assorted cold and flu medication and found on the shelf in the safe disclosed a mixed DNA profile contributed to by at least four people. In this case the accused was excluded as a contributor but the analysis was inconclusive insofar as Ms Koulioubas was concerned. In other words the analyst was not able to form an opinion that either excluded or did not exclude Ms Koulioubas.
(iii)A DNA sample obtained from the plastic container with a black spoon found on the shelf in the safe disclosed a weak and incomplete mixed profile contributed to by at least three individuals. Neither the accused nor Ms Koulioubas could be excluded as possible contributors.
(iv)A DNA sample obtained from the small round plastic container found on the shelf in the safe[26] disclosed a weak and incomplete mixed profile contributed to by at least three individuals. The accused was not excluded but Ms Koulioubas was excluded as a possible contributor.
(v)A DNA sample obtained from the plastic container and lid found on the shelf in the safe[27] contained a weak and incomplete mixed profile contributed to by at least four individuals. The accused was not excluded as a possible contributor but Ms Koulioubas was excluded as a possible contributor.
[25] Reports of Kimberley Anne Wyndram dated 11/11/10 and 2/10/09, Exhibit P10.
[26] Item 09/A49696-10 referred to in Exhibit P3.
[27] With reference number 09/A49696-11 as referred to in Exhibit P3.
These DNA findings can only be of very limited assistance. There is no evidence concerning the provenance of the various containers prior to their use as receptacles for methylamphetamine. The DNA evidence, at its highest, is only to the effect that the accused cannot be excluded from having contributed to the DNA samples extracted from some of the containers. Furthermore, no statistical weighting, sufficient to enable an understanding of whether the possibility of his having contributed was extremely remote or something more substantial is available. In any event, even if the DNA located on a container “matched” that of the accused this, of itself, would not be conclusive because there would remain the possibility that he had come into contact with the container at some time prior to it being used as a receptacle for methylamphetamine. As far as Ms Koulioubas is concerned, the fact that she has been excluded as a contributor to some of the DNA samples obtained does not necessarily mean that she has not been in contact with the relevant receptacles. All it means is that these particular samples of DNA identified and tested were not contributed to by Ms Koulioubas. Finally, the fact that for each of the DNA samples tested there was more than one contributor and sometimes as many as four, does not necessarily mean that Ms Koulioubas was not telling the truth when she said that she was the only person who had access to the various containers containing methylamphetamine. Again, the DNA sample tested in each case may have been deposited on the relevant container at a time prior to it being used as a receptacle for methylamphetamine by Ms Koulioubas. Nevertheless, this latter factor is one to be considered when deciding whether or not to accept the evidence of Ms Koulioubas that she was, in effect, the only person with access to the methylamphetamine found in the containers located in the office.
The accused not only conducted his business from the premises but also stayed there, if not on a full time basis, at least on a regular basis. Ms Koulioubas’ evidence was to the effect that she and the accused had an open relationship,[28] that he would stay overnight on average 1 or 2 times a week, that he would on occasions share her bedroom, that there was clothing of his in her bedroom, that prescriptions in his name were kept in a drawer in her bedroom, that before his passport had been moved to the safe it had been kept in a drawer in her bedroom, that she kept control of the accused’s Viagra by keeping it locked in the safe and that the accused had independent access to the house, in that, he could enter as he pleased without waiting for Ms Kouloubias to let him in (indeed on the night of the police attendance the accused arrived home before Ms Koulioubas and waited inside for her to arrive).
[28] By which she meant that he was “permitted” to have sexual relations with other women.

There were CCTV Security Cameras positioned outside the house, images from which could be viewed on computers at various locations inside the house.
The factual matters set out to this point, apart from the alleged finding of a container of methylamphetamine on the accused’s person, are not seriously in dispute. On the evidence before me, I am satisfied about and make findings in accordance with all of the matters set out to this point.
The Crown also submits that additional inferences of fact can be drawn from the evidence in this case. Before considering these matters I need to deal with the defence case.
The accused did not give evidence. However, shortly prior to the trial the co-accused, Alexandra Koulioubas, pleaded guilty to one count of trafficking in a controlled drug and was called to give evidence on behalf of the defence. I remind myself that the accused enjoys the presumption of innocence and does not have to prove anything; the onus or burden of proving the charges is on the prosecution. As far as the central issue in this trial is concerned, the question of whether or not the accused was in possession of the drugs located in the premises, the prosecution must prove its case beyond reasonable doubt. I also remind myself that the accused was not bound to give evidence and had the right, available to everyone, to decline to give evidence. Because this is his legal right I am not to draw any inference adverse to him or to the case he has put forward from the exercise of that right. In particular, the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a makeweight in assessing whether the prosecution has proved its case. I further remind myself that I am not required to be satisfied of the accused’s version of events. Even if I were to reject the accused’s version of events with respect to the issue of possession, the burden of proof remains wholly with the prosecution. Part of the relevance of the version of events put forward by an accused is to consider whether it assists in casting a reasonable doubt on the prosecution case.
The only witness called on behalf of the defence was Ms Koulioubas. I have significant reservations with respect to her evidence. Aspects of her evidence strained credibility, she was frequently inconsistent both during her evidence in court and when her evidence in court was compared with statements made out of court, she admitted telling untruths, at times her evidence was confusing and at times it had the hallmarks of reconstruction or being made up or adjusted on the run. I agree with many of the criticisms of her evidence made by counsel for the Director in her final address. The gravamen or gist of her evidence was that the accused had no access to or responsibility for the methylamphetamine found in the house and that she was its sole possessor.
Ms Koulioubas: Evidence-in-Chief
As at 18 November 2008 Ms Koulioubas had been living in the premises at 422 Marion Road, Plympton for about one year. She was in “an open relationship” with the accused and had been so on and off for seven years. Another man called Luigi Larossi had also been living at the premises with her for about six months, ceasing in about July of 2008. He and she were co-tenants and had entered into a written lease with the accused as landlord for the period 1 December 2007 to 1 December 2008.[29] The accused lived at his mother’s house but slept at the premises “sometimes …once a week maybe, not even; once or twice; depends”. He would either sleep in the bedroom with Ms Koulioubas or at the back of the house on a couch. The accused ran his business from the premises and had an office at the back of the house. The “office” used by the accused was simply a desk located in a foyer area between a storage area and the bathroom.[30]
[29] Exhibit D12.
[30] Ms Koulioubas marked the position of this desk on the floor plan of the house in Exhibit P1.
Ms Koulioubas said that the accused never used the room marked “office” on Exhibit P1, (where the safe and the methylamphetamine were located) for his business whilst she was living in the premises.
The lease document was prepared in order to prove to Centrelink that Ms Koulioubas was living in the premises and to enable her to obtain rental assistance. The rent payable was $350 per week of which she paid half and Luigi Larossi paid half whilst he was living there. In July 2008 she had a fight with Luigi Larossi[31] and asked him to leave. After that she continued to pay rent to the accused at a significantly reduced rate; between $150 and $200 per week.
[31] There is no suggestion in the evidence that she and Luigi Larossi were in any form of relationship other than as co-tenants or flat mates.
On the night of the police search she had been on shift work as a bar attendant at Glenelg. She went home after her shift finished at about 9.30pm. The house was secured and she used her key to get inside. However, the accused was already inside the house. They argued that night and the argument disturbed a neighbour who contacted the police.
Ms Koulioubas told the court that she had arranged for CCTV security cameras to be installed; one at the entrance on the left hand side of the front door and one on the outside left hand side of the house near the office. She said they were installed less than 12 months prior to the police visit and were installed for her own safety given that she was living alone at the premises for the most part and that the premises fronted onto a very busy road, namely Marion Road, which was only two metres or so from the front of the house. The images from the CCTV cameras could be viewed on a network of computers inside the house including in the room marked “office” on Exhibit P1, the desk where the accused did his work, and from one of the rooms marked bedroom.
Ms Koulioubas herself assisted the accused with his business. She worked in the room marked “office”. She was responsible for selling items such as pool tables, pool cue tips, pool cues, brushes and chalk on the internet site known as eBay. She also arranged for the sending of items, the answering of messages, and the listing and re-listing of things for sale. She said that nobody else used that office for business activities while she was there. She said that the accused did not use that office at all for any purpose that she was aware of. The office door had an automatic locking mechanism and routinely was locked in her absence.
She explained how the accused’s wallet came to be in the office. She said that it fell out of his pants when they were fighting in the kitchen that night. She picked up the wallet and took it into the office. She also put her own bag in the office which contained her purse, makeup and keys. She was asked why she put the accused’s wallet in the office, an area to which he had no access, and said “after we scuffled I just picked it up and put it in there because I went in there”. She said she didn’t want it on the ground.
She told the court that the safe located under the desk in the office was her safe and that it had been there for about six months. It was given to her by a friend whom she refused to name. She used the safe “just to secure things”. She was the only person who had a key for the safe. She kept the key in a small personal key holder that could be locked and unlocked with a pin code.[32] No-one else, to her knowledge, knew the combination of the lock and she had not given the combination to the accused. The key holder was kept on the top of a chest of drawers in her bedroom out of the line of sight of anyone present in the bedroom. According to Constable Ellen Sampson, during the police search, Ms Koulioubas opened the key holder and provided a key to Constable Sampson that was then used by the police to open the safe in the office. Constable Sampson said that Ms Koulioubas appeared to use a number from her memory. She did not observe Ms Koulioubas obtain the number from another location or another person.
[32] Exhibit P4 photograph 20.
The accused had no access to the drugs that were in the office and safe but Ms Koulioubas did give him “a little bit” from time to time. She said that the accused knew that she had drugs in her possession but she did not know whether or not he knew that they were in the safe. She said that all of the methylamphetamine was hers.
Ms Koulioubas: Cross-examination
Ms Koulioubas was subjected to a lengthy cross-examination. The burden of the cross-examination was that, contrary to her evidence-in-chief, the accused had unfettered access to the office, the safe and the methylamphetamine. She maintained that this was not the case.
It is not necessary to canvas the cross-examination at any length. For reasons earlier given, I have significant reservations as to the accuracy of all of the evidence given by Ms Koulioubas. This, of itself, does not necessarily strengthen the prosecution case. The Crown still carries the onus of proving beyond reasonable doubt that the accused had (joint) possession of the methylamphetamine. However, there are aspects of Ms Koulioubas’ evidence that might positively assist the Crown in its task.
The cross-examination of Ms Koulioubas provides support for the following inferential and direct findings:
(i)that one or more items in the office and the safe, including some of the methylamphetamine, had been moved or relocated by someone other than Ms Koulioubas;
(ii)that at the time the police arrived to inquire about the domestic disturbance the accused was not, in fact, in the ensuite toilet but was in the office which shared a connecting door with the adjacent ensuite toilet;
(iii)that the delay in his appearing through the main door of the ensuite toilet arose not because he was using the toilet but because he had been trying to put away or hide the methylamphetamine in the office in case the police should enter the office and he exited via the main door of the toilet in an effort to cover his tracks;
(iv)that Ms Koulioubas purchased the methylamphetamine in question after pooling funds provided by other unidentified persons; and
(v)that Ms Koulioubas was unaware at the time of the police visit that the largest container of methylamphetamine had been left in a drawer of the office desk and not in the safe and that Ms Koulioubas was not the only person to have had access to the safe that night.
Ultimately, the Crown contended that another person, the accused, had enjoyed access to the safe on the night and had placed some of the methylamphetamine in locations of which Ms Koulioubas was unaware. For present purposes, I am prepared to assume, without finally deciding, the further factual contentions set out above.
The Crown Case – In Essence
On the basis of the factual matters accepted and assumed as set out above, the Crown case, taken at its highest, can be distilled to the following:
(i)at the relevant time, the accused owned and conducted his business from the premises in which the methylamphetamine was located;
(ii)at the relevant time, the accused was in a sexual relationship with the co-accused, Ms Koulioubas, and cohabitated with her in the premises either on a full-time basis or for substantial periods of each week;
(iii)the accused had access to the house including the office and the safe in the office;
(iv)the accused was a user of methylamphetamine and from time to time required access to a methylamphetamine supply;
(v)the accused consumed methylamphetamine from time to time whilst in the house either with Ms Koulioubas or on his own and including methylamphetamine from the supplies of methylamphetamine kept in the office and the safe;
(vi)the accused had consumed some of the methylamphetamine that had been in the office shortly prior to the first visit by the police;
(vii)the accused had knowledge of the presence of the methylamphetamine in the office and in the safe;
(viii)the accused himself, on occasion, had access to and had taken methylamphetamine from the containers in the office and the safe;
(ix)at the time of the first police visit the accused attempted to put out of sight or hide the methylamphetamine that had been on display in the office;
(x)Ms Koulioubas, with whom the accused was in a relationship and with whom the accused co-habited at least from time to time, has admitted being in possession of and purchasing the methylamphetamine in question on behalf of herself and other unidentified people.
Possession – Joint Possession
The question before me is whether or not it is to be inferred beyond reasonable doubt from the facts, found and assumed, as set out above and summarised under the previous heading, that the accused possessed the methylamphetamine jointly with Ms Koulioubas. It has never been the Crown case that the accused was in sole possession of the methylamphetamine. Whether or not someone is in possession of something is a matter of inference to be drawn from all of the circumstances. I will need to be satisfied not just that it is an inference available on the facts but that it is the only rational inference available such that there is no other reasonable possibility consistent with innocence available on the evidence.
Section 4 of the Controlled Substances Act contains a definition of the term “possession”. However, the definition is of the inclusive type and I adopt the words of White J in R v Nguyen:[33]
It is not clear what purpose is served by the definition, as it does not seem to add to, nor confine, the concept as developed by common law.
I also adopt the statement of principle set out by His Honour in that case:[34]
The basic concepts of possession are not in doubt. Persons have possession of an item if they have physical custody or control of the item or of the place in which it is located, knowledge that the item is in their custody or control, and an intention to control the item. (Emphasis supplied).
[33] [2010] SASCFC 23 at [95].
[34] At [96].
The notion of intention to control has been described[35] as “the intention of exercising power of control over [the item] to the exclusion of others”.
[35] Walters J in R v Frangos (1979) 21 SASR 331 at 339.
In R v GNN[36] Doyle CJ, in the context of His Honour’s consideration of the appropriate way to direct a jury in a case raising the issue of possession, said:
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 emphasis the requirement to prove physical control over the heroin and an intention to exercise control over it.
[36] [2000] SASC 447; (2000) 78 SASR 293 at [20].
On the factual basis of the Crown case here one might readily conclude that the accused had knowledge of the presence of the methylamphetamine in the office and in the safe and that he was able to gain access to it from time to time for his own personal use. However, it does not necessarily follow that he had an entitlement to access the methylamphetamine in the absence of the consent of or permission being granted by Ms Koulioubas. In addition, even if I were to infer that the accused had physical custody of the methylamphetamine or of the place in which the methylamphetamine was located, the question still to be answered is whether or not the accused had the right to and intention to control the methylamphetamine and the use or uses to which it might be put to the exclusion of all persons other than Ms Koulioubas as a joint possessor. Control includes the power or ability to dispose of the methylamphetamine and to do so without reference to any other person or, at least, only in conjunction with Ms Koulioubas.
In this case, the fact that the accused knew of the existence of the methylamphetamine, had from time to time handled the methylamphetamine (taking it in and out of the safe and so on) and, from time to time, had access to the methylamphetamine to enable him to consume some of it is not of itself sufficient to demonstrate that he had a right to control and/or any intention to control the methylamphetamine. It does not necessarily indicate that he had joint control over the methylamphetamine with Ms Koulioubas. This concept was described by Mayo J in Barrillo v Bartlett[37].
Joint possession of an article may be had by two or more persons. It is joint when each person has a share in possessory rights, and the article is in a place that is accessible, perhaps equally accessible, to all. Joint possession does not involve, as it were, fractional rights in the object, or equal rights to some fractional part of the object, but rights to the totality.
[37] [1966] SASR 286 at 288.
The Crown case, as strong as it is as against the accused, is also consistent with the accused knowing of the existence of the methylamphetamine and being entitled to have access to it from time to time but only with the permission of Ms Koulioubas, that is, having no possessory rights. At the end of the day, the question before me becomes does it remain a reasonable possibility on the evidence that the methylamphetamine in the house was in the sole possession of Ms Koulioubas and notwithstanding that she would allow the accused access to it from time to time. The fact that I have reservations about the accuracy of all of the evidence given by Ms Koulioubas does not mean that I, necessarily, must exclude the gist of her account as a reasonable possibility.
In this case Ms Koulioubas has pleaded guilty to possession and has given evidence in court and made admissions which would support a finding that she enjoyed sole physical control over the methylamphetamine and had an intention to exercise that physical control to the exclusion of all others, including, she has said, even the accused. This is the defence case. The Crown submits that she and the accused were in joint possession in that they each had knowledge of the location of the methylamphetamine and each intended, between them, to exercise control over the methylamphetamine to the exclusion of any others.
The Crown case is a strong case. In my view it is highly likely that the accused was jointly in possession of the methylamphetamine found in the house. Nevertheless, the Crown has not established this beyond reasonable doubt. Ultimately, I am unable to exclude the gist of Ms Koulioubas’ account, and therefore the defence case, as a reasonable possibility on the evidence. I enter verdicts that the accused is not guilty of both counts charged on the Information.