R v Alford - [2007] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ALFORD
Criminal Trial by Judge Alone
[2007] SADC 81
Reasons for the Verdict of Her Honour Judge Simpson
10 August 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
The accused was charged with possession of cannabis, a prohibited substance, for sale on 1 April 2006, contrary to s 32(1)(e) of the Controlled Substances Act 1984 - fourteen packages of cannabis, weighing a total of about 6.2 kg, were located in the accused's car at an address at Plympton Park - the car had been left by the accused at the premises some hours before - there were other people living at the premises, where two separate cannabis crops were located - the accused was staying at a hotel at the time the cannabis was found - he had keys to the car in his possession - whether the prosecution had established that the accused had the cannabis in his possession at the relevant time - whether the accused had a requisite degree of knowledge that the cannabis was in the car at the time the cannabis was found - whether the accused had exclusive custody or control over the car or the cannabis - whether the accused intended to exercise control over the cannabis: Verdict : Not guilty.
Controlled Substances Act 1984 ss 32(1)(e), 32(3), referred to.
Tabe v R (2005) 225 CLR 418; He Kaw Teh & The Queen (1985) 157 CLR 523; Moors v Burke (1919) 26 CLR 265; R v GNN (2000) 78 SASR 293; R v Amanatidis (2001) 125 A Crim R 89; R v Dib & Dib (1991) 52 A Crim R 64; R v Filippetti (1978) 13 A Crim R 335; The Queen v Kranz (1989) 151 LSJS 178; Ron Swee Cheong Lai (1989) 42 A Crim R 460; R v Moubarak (2002) 219 LSJS 276; Question of Law Reserved (No 4 of 1997) (1998) 71 SASR 228; R v Rowan (2003) 81 SASR 364, applied.
R v Long;R v McDonnell (2002) 137 A Crim R 263, distinguished.

R v ALFORD
[2007] SADC 81

The accused, Michael Shane Alford, is charged with the offence of possessing cannabis for sale, contrary to section 32(1)(e) of the Controlled Substances Act 1984 (‘the Act’). Particulars of the offence are that on 1 April 2006 at Plympton Park, the accused knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling it to another person. It is further alleged that the amount of cannabis involved in the offence was more than 2 kg.
The trial proceeded as a trial before a judge without a jury, pursuant to section 7(1) of the Juries Act 1927. The accused pleaded not guilty.
Section 32(1) of the Act provides,
A person must not knowingly—
(a)manufacture or produce a drug of dependence or a prohibited substance; or
(b)take part in the manufacture or production of such a drug or substance; or
(c)sell, supply or administer such a drug or substance to another person; or
(d)take part in the sale, supply or administration of such a drug or substance to another person; or
(e)have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
A prohibited substance means a substance declared by the regulations to be a prohibited substance for the purposes of the Act.[1] By Regulation 5 of the Controlled Substances (Prohibited Substances) Regulations 2000 (‘the Regulations’), cannabis is declared, in Schedule 1 to the Regulations, to be a prohibited substance.
[1] Sections 4 and 12(4) Controlled Substances Act 1984
The accused faces a serious charge. He is entitled to a presumption of innocence in his favour. The law regards him as innocent unless his guilt has been proved beyond reasonable doubt. The burden of proving the charge to which the accused has pleaded not guilty is wholly on the prosecution. He is not to be found guilty on insufficient or doubtful evidence. It is not enough for the prosecution to show a mere suspicion of guilt, or to show that an accused person is probably guilty. Each element of the offence must be proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt on each element of the charge against him will do.
The prosecution must prove the following elements of the charge:
1.The material in question was cannabis;
2.Cannabis is a prohibited substance;
3.The cannabis was in the possession of the accused;
4.The accused knew that the material in his possession was cannabis, a prohibited substance, or at least it was a substance, the possession of which was illegal; and
5.The accused had the cannabis in his possession for the purpose of sale.
Section 32(3) of the Act provides:
For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.
Pursuant to Regulation 6 and Schedule 2 of the Regulations, the prescribed amount of cannabis for the purposes of s 32(3) of the Act is 100 gm. Where a person is charged with the offence of possession of cannabis for sale, and is found to be in possession of more than 100 gm of cannabis, the law presumes that the possession was for the purpose of sale, unless the person proves on the balance of probabilities that the possession was not for the purpose of sale. It is not material that the sale may take place outside the State of South Australia. (R v Rowan (2003) 81 SASR 364 at 369; Question of Law Reserved (No 4 of 1997) (1998) 71 SASR 228 at 234)
There is no dispute that if the accused is found to have been in possession of more than 100 gm of cannabis, the presumption that it was for the purpose of sale to another person applies.
The Evidence
There is very little dispute in relation to the evidence called by the prosecution. On 17 March 2006, the accused stayed at the Comfort Inn at 540 Marion Road, Plympton Park. The Comfort Inn is and was owned and managed by Mr and Mrs Shearn. The accused gave his personal details when he checked into the hotel including his address, 61 Manuka Parade, Gorokan, New South Wales. He stayed for one night, departing on 18 March 2006.
At some time on the morning of 18 March 2006, cleaning staff at the hotel drew the owner’s attention to a white 21 kg ETA Mayonnaise bucket which the owner was told had been found in the room occupied by the accused. Mr Shearn said that he went with cleaning staff to the room and saw the bucket on the floor. He noticed, after removing the lid, a very pungent odour coming from the bucket and residue which appeared to him to be like dried, crushed cannabis leaf material. Mr Shearn said that the bucket he was shown when he gave his evidence[2] was the same, or the same type, as the one found in the room occupied by the accused. He said he believed he had kept the bucket for a while before disposing of it.
[2] A white bucket marked exhibit 27 by Mr Whetton and tendered as Exhibit P2
On 1 April 2006, the accused again checked in to the Comfort Inn at Plympton Park. He gave the same address of 61 Manuka Parade, Gorokan, New South Wales and he produced his driver’s licence. The licence had a photograph of the accused on it. The driver’s licence was photocopied and the registration number of the accused’s car, a silver 1994 Holden VR Commodore sedan, VLL-537, was noted on the photocopy of the accused’s driving licence by Mr Shearn[3]. The registered owner of the motor vehicle driven by the accused is Mrs Glenda M Alford of the same address as the accused[4]. Mrs Alford married the accused on 16 October 1993[5].
[3]    Exhibit P4
[4]    Exhibit P9
[5]    Exhibit P11
At 1.40 pm on 1 April 2006, a police officer, Sergeant Whetton, went to the Comfort Inn. Mr Whetton went into the room which had been allocated to the accused. The accused was not there. Mr Whetton observed nothing of particular interest to him in the room at that time. He spoke to the hotel owner. Mr Shearn showed him the 21 kg ETA Mayonnaise container. Mr Whetton looked inside it. He noticed a smell he identified as cannabis. He booked the container Mr Shearn showed him into Police Exhibit Property, having allocated it a number 38[6]. I am satisfied that Mr Shearn did not dispose of the bucket otherwise than by giving it to Mr Whetton.
[6] Exhibit P8
Detective Senior Constable Harden was conducting plainclothes surveillance in relation to the accused on 1 April 2006[7]. At 4.48 pm, Mr Harden, with other police officers, followed the accused, who was driving the silver Holden Commodore VR sedan, New South Wales registration VLL-537, from Marion Road, Plympton Park to Blackler Avenue, Plympton Park. At 4.50 pm, Mr Harden observed the vehicle stopping on the western side of Blackler Avenue. The accused got out of the driver’s seat. He walked up to the gates at the rear of premises on the corner of Blackler Avenue and Shakespeare Avenue, Plympton Park, premises known as 29 Shakespeare Avenue, Plympton Park. The gates to the rear yard of the house face on to Blackler Avenue. The accused went into the back yard and opened the gates from the inside. He got back into the motor vehicle and reversed it into the rear yard of the house. He closed the gates to the yard. At 6.30 pm, the accused was observed walking back from Blackler Avenue to Hawker Avenue, Plympton Park and into the rear of the Comfort Inn.
[7] Exhibit P15
At 7.15 pm on 1 April 2006, Mr Harden observed a female person coming out of the front door of the house in Shakespeare Avenue. She walked to a black Holden Statesman sedan, registered number WKF-430, which was parked on Blackler Avenue. She got into the driver’s seat. Another car, a white Nissan Skyline sedan, registered number VZW-960, was observed reversing out of the driveway of the house at Shakespeare Avenue. The black Holden Statesman sedan then drove into the driveway of the house, followed by the other vehicle, the white Nissan Skyline sedan. It is agreed that the black Holden Statesman sedan, registration number WKF-430, was at the relevant time registered in the name of Tracy Ann Waldie. It is also agreed that as at 1 April 2006, the white Nissan Skyline sedan, registration number UZW-960, was registered in the name of Shane Malcolm Evans. It is agreed that at the relevant time Mr Evans was the sole tenant of the premises at 29 Shakespeare Avenue, Plympton Park, the registered proprietor of which was Daniel Michael McShane[8].
[8] Exhibit P18
Detective Senior Constable Jennings received information from Mr Whetton on 1 April 2006 in relation to an interstate drug transaction and he was advised that investigation was required at the house at 29 Shakespeare Avenue, Plympton Park. He went to the house at about 9.50 pm. He met Sergeant Quinton and Constable Matthews there. Mr Jennings and the other police officers went to the front door. They knocked on the door and announced themselves as police officers. There was no response. Mr Jennings observed that a security camera located on the inside of the front window was focused at the front entrance.
When the police officers were unable to force entry through the front door, they removed a windowpane from the double window at the front of the house. They searched the inside of the house, without finding anyone or anything of significance at that time. The back door was deadlocked. The police officers went out through the front window and walked down the side of the house to the rear yard.
At the rear of the house at 29 Shakespeare Avenue is a separate dwelling, a converted garage, attached to the house and known as 29A Shakespeare Avenue, Plympton Park. It is agreed that Mr Peter Mika was the sole tenant of 29A Shakespeare Avenue, Plympton Park at the relevant time. There were several cars in the back yard, including the car which the accused had been seen driving. For ease of reference, I will refer to it as ‘the accused’s car’. There was a silver Lexus motor vehicle, registration number VWH-895, which it is agreed was registered in the name of Mr Mika. Mr Mika was also the registered owner of a red Maserati, registration number VXJ-222, which was in a shed at the rear of the house[9].
[9] Exhibit P18
Police officers knocked at the sliding door of the separate dwelling. It was eventually opened by Mr Mika, who let them in. Inside the dwelling, was a room that had been set up as a hydroponic growing room. There were a number of large black pots that contained what appeared to police officers to be a harvested cannabis crop.
Adjacent to the carport where the accused’s car was parked, on the left hand side of the car, there was a shed from which emanated a smell of cannabis and the sound of an oscillating fan. Police officers forced entry into the shed. In one of the rooms in the shed there were five small cannabis plants being grown under lights and in another room, three fully grown cannabis plants, cultivated hydroponically.
The accused’s car was searched by police officers. There were no keys with the vehicle. Mr Jennings said that the four doors of the car were closed, but not locked. Access to the boot was obtained by operating a boot lever in the glove box of the car. Mr Jennings said that no search was made of either 29 or 29A Shakespeare Avenue, Plympton Park for keys to the Commodore. He said there was no need for it because the vehicle was unlocked and police officers did not require the keys to search the car.
Fourteen Cryovac plastic bags, which were all subsequently found to contain female cannabis plant material, were located in the accused’s car. Cryovac packaging removes air from the plastic bag before the bag is sealed. Two Cryovac plastic bags were found concealed within the hollow part of the spare wheel, which was inside a wheel well on the left hand side of the boot of the car. Concealed within the underside of the rear bench seat, were eight individual Cryovac packages, which had been placed in hollowed sections of the foam fabric of the seat base. The packages were held in place by duct tape. Four more Cryovac packs were found by the police officers secreted in the backrest of the rear bench seat of the vehicle.
The registration papers for the vehicle in the name of Mrs Alford, were found in the glove box of the vehicle. A Virgin Blue Boarding Pass was located in the front passenger foot well of the car. The Boarding Pass was in the name of Christopher Conlon and was for travel from Sydney to Adelaide on the morning of the 31 March 2006. Police officers who were keeping another room at the motel under surveillance on 1 April 2006 overheard a conversation regarding a flight to New South Wales in the name of John Peters. Subsequent inquiries by police revealed that a John Peters had booked a flight for travel to New South Wales the next morning, 2 April 2006. The phone number provided to the airline when the booking was made for Mr Peters was the same phone number as that listed in the accused’s mobile phone under the listing for ‘Home’. There was some speculation by police officers as to whether Christopher Conlon and John Peters were fictitious names. Apart from the evidence of the phone number given to the airline, there is no evidence about who Mr Conlon or Mr Peters might have been or how they might be involved in the matter.
Sergeant Whetton remained at the Comfort Inn between about 1.40 pm and 10 pm on 1 April 2006, except for a period between 3.11 pm and 4.22 pm when he returned to the Sturt Police Station to make some further inquiries. He went to the room occupied by the accused at the Comfort Inn at about 9.50 pm and spoke to him. He found that the accused had a set of Holden keys, which fitted the vehicle with New South Wales registration number, VLL-537. The accused had a mobile telephone with him in which the number for Shane Evans, the tenant of the property at 29 Shakespeare Avenue, was saved.
The accused was arrested at the Comfort Inn at about 10 pm. Although no direct surveillance was made of the accused between about 6.40 pm when he was seen returning to the Comfort Inn and 10 pm, when he was arrested, the evidence suggests, without contradiction, that he was at the hotel during the whole of the intervening period.
A series of photographs of the vehicle which had been driven by the accused, the cannabis located in it and the entrance to the building described as the shed in the rear yard of the house at 29 Shakespeare Avenue, Plympton Park, were taken by Senior Constable Bartlett about 10.30 pm on 1 April 2006.[10]
[10] Exhibit P6
At 10.40 pm, Mr Whetton went to the premises at Shakespeare Avenue. He directed other police officers to arrest Mr Mika, on account of the cannabis hydroponic growing room located in his dwelling, the two cannabis cultivations in the shed next to where the accused’s car was parked and the quantity of cannabis found in that vehicle. A 21 kg white ETA Mayonnaise bucket, apparently identical to the one found at the Comfort Inn, was located in one of the bedrooms. Mr Whetton seized the bucket and marked it with the number 27.[11]
[11] Exhibit P2
Police officers were stationed at the premises between 12.22 am and 7.30 am on Sunday 2 April 2006, in order to secure the crime scene[12]. At about 7.40 am on 2 April 2006, Senior Constable First Class Pickburn attended at 29 Shakespeare Avenue, Plympton Park[13]. Mr Pickburn has training and experience in crime scene investigation. He took photographs of the premises and some of the rooms inside. Photographs 1-3 and 5-10 inclusive of the photographs he took were tendered as Exhibit P5. Photographs 22-28 were tendered by the accused as Exhibit D7. It appears, from the photographs of the premises that the tenant, Mr Shane Evans, was living at the house at the time.
[12] Exhibits P12, P13, P14
[13] Exhibit P16
At about 1.45 pm on 2 April 2006, Mr Pickburn attended at the Sturt Crime Scene examination room with Mr Whetton and photographed the fourteen separate bags containing cannabis. The photographs were tendered as part of Exhibit P5, photographs 71-98 inclusive. Mr Pickburn examined the Holden Commodore sedan, registration number VLL-537, the Cryovac bags and some of the hydroponic equipment for fingerprints.
The fourteen bags located in the vehicle were examined at the Forensic Science Centre. The bags were weighed individually. They each contained between 430.4 gm and 458.9 gm of female cannabis plant material. The total amount of female cannabis plant material contained in the bags was 6204.5 gm.[14] The identification of the material as cannabis and the weight of it are not disputed.
[14] Exhibit P10
Detective Brevet Sergeant Copland has training and experience in the South Australian Police Force investigating illegal drug offences, including drug manufacture or cultivation, distribution in this State and interstate trafficking of illegal drugs. His expertise was not challenged. Mr Copland said that in his experience, dealers in cannabis prefer cannabis packaged in pound lots, generally packaged in a shopping bag, together with a Cryovac bag, which contains any odour and allows for neater packaging and ease of concealment. Although the price that might be obtained for a pound of female cannabis plant material varies according to supply and demand at the time, in his experience, it is likely to be between $2000 and $3000. Wholesale dealers will buy it, for example, for $2000 and sell it on for $2800.

In Mr Copland’s experience, cannabis is transported from South Australia to other states in pound lots, for monetary gain. Cryovac packs of cannabis weighing between 430.4 gm and 458.9 gm are consistent with wholesale dealing in lots weighing approximately one pound. Mr Copland said that in his experience transport is often undertaken by couriers, who receive a fee for taking the cannabis interstate, commonly $100 per pound. A courier is often likely to be paid on delivery, rather than beforehand and may never be paid at all.
The accused did not give evidence. That is his right and I draw no adverse inference against him on that account.
The Issue
It is the prosecution case that the evidence establishes beyond reasonable doubt that:
1.   the material located in the Cryovac bags hidden in the car was cannabis;
2.   cannabis is a prohibited substance;
3.   while the accused did not have the cannabis within his immediate, manual possession, it was in the Cryovac packages hidden in the car, which was registered in his wife’s name, and which he was using, and for which he retained the keys;
4.   the accused knew that the cannabis was in the car, and that cannabis was at least an illegal substance;
5.   the accused had the right to exclude any other person from interfering with or exercising control over the cannabis;
6.   the accused intended to exercise control over the cannabis;
7. pursuant to section 32(3) of the Act, it is to be presumed on account of the amount of cannabis, over 6.2 kg, that the accused had the cannabis in his possession for the purpose of sale to another person.
It is the accused’s case that the evidence does not establish beyond reasonable doubt that the accused, in the sense required by law, knowingly had the cannabis in his possession.
The Law
I bear in mind the principles, which are well settled, in relation to what the prosecution must prove to establish that the accused knowingly had cannabis ‘in his possession’. Lord Diplock has said that in ordinary usage, "one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control". (Director of Public Prosecutions v Brooks [1974] AC 862 at 866: Tabe v R (2005) 225 CLR 418 at 423)
Knowledge on the part of the accused must be established. Where it is necessary to reach a conclusion that a person has contravened a law making it a criminal offence to possess an article or substance of a certain kind, the degree of knowledge required is likely to be greater than that required, for example, in the context of civil disputes or criminal charges where possession of itself does not connote guilt.
In He Kaw Teh v The Queen ((1985) 157 CLR 523 at 539), Gibbs CJ, after reviewing the authorities, concluded that:
"[W]here a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ('in his possession') themselves necessarily import a mental element".
The fact in issue, knowledge, is not limited to knowledge gained from personal observation, or certainty based upon belief in information obtained from a third party, although those states of mind would suffice. The word "awareness" is sometimes used as a synonym. A belief in the likelihood, "in the sense that there was a significant or real chance", of the fact to be known, will suffice. (Saadv The Queen (1987) 61 ALJR 243 at 244; 70 ALR 667 at 668-669 per Mason CJ, Deane and Dawson JJ)
(Tabe v R (2005) 225 CLR 418 at 423-424 per Gleeson CJ)
The accused must have the property either in his manual possession, or in a place to which he (and any person acting in concert with him) may go without physical bar in order to obtain manual possession of it.
Where the Crown seeks to establish an accused’s possession of property, not found within his manual possession, but rather in premises to which he has access, it must – in order to establish beyond reasonable doubt that it was the accused rather than anyone else who had such possession of that property – persuade the trier of fact that the accused has the legal right to exclude all persons from the premises in which the property is situated (other than those acting in concert with him). Put another way, the prosecution must prove that at the relevant time when possession is alleged, the accused had the right to exclude any person not acting in concert with him from interference with the property in question. It is not enough that the accused is one of a number of persons with apparently equally free access to the exclusion of other persons. (Moors v Burke (1919) 26 CLR 265 at 270, 274: Dib and Dib (1991) 52 A Crim R 64 at 66-67 per Hunt J; R v GNN (2000) 78 SASR 293 at 296 per Doyle CJ)
The prosecution must establish not only that the accused had physical control or custody of the property in question, to the exclusion of other persons, or persons other than those with whom it is shared, but also that the accused laid claim to, or intended to exercise or assert control over it. (Ron Swee Cheong Lai (1989) 42 A Crim R 460 at 463-464; R v Amanatidis (2001) 125 A Crim R 89 at 90-91; Filippetti (1978) 13 A Crim R 335 at 338; R v Kranz (1989) 151 LSJS 178 at 189; R v GNN, above at 298; R v Moubarak (2002) 219 LSJS 276 at 279)
Conclusion
At about 10 pm on 1 April 2006, police officers found fourteen Cryovac packages containing a total of 6204.5 gm of female cannabis plant material hidden in an unlocked Holden VR Commodore with New South Wales registration, VLL -537. The car was registered in the name of the wife of the accused and he was seen driving it. For the purposes of this matter, it can be considered as the accused’s vehicle.
It appears that the accused was familiar with the premises at 29 Shakespeare Avenue, Plympton Park (‘the premises’). The accused’s car had been reversed into the driveway by the accused at about 5 pm that afternoon, after he had opened gates to the rear yard. At the premises, there was hydroponic cannabis production in a shed adjacent to the carport where the car was parked, and a recently harvested cannabis crop in the adjacent attached dwelling. The accused spent about an hour and a half at the premises, before returning to the Comfort Inn, where he was staying, at around 6.30 pm, taking the keys to the vehicle with him.
The premises were rented to Shane Evans, who was living there. A white plastic 21 kg ETA Mayonnaise bucket[15] was found by police officers when they searched the premises. It was identical to a different white bucket, in which there was thought to be a residue of dried cannabis plant material, located in March 2006, by cleaners at the Comfort Inn in a room most recently occupied by the accused[16]. Mr Peter Mika rented the separate dwelling attached to the premises. He was at home when police officers attended at the premises later that night. Another vehicle parked at the premises belonged to Tracy Ann Waldie. A woman was observed at about 7.15 pm on 1 April 2006 moving the car from the street at the same time as a car belonging to Shane Evans was being relocated in the driveway.
[15] P2
[16] P8
There is no doubt that the accused must have, at some level, known the tenant of the premises, Shane Evans. Mr Evans’ telephone number was saved in his mobile phone. The accused showed some familiarity with and ease of access to the premises when he opened the back gates from inside the yard, reversed the car he was using into the driveway and closed the gates. He stayed at the premises for around an hour and a half.
It must have been apparent to the accused that cannabis was being cultivated at the premises. Although in my opinion, the evidence can be given very little weight, it might be inferred from the white bucket found in the room he occupied overnight at the Comfort Inn in March 2006 that as at 1 April 2006, the accused had some familiarity with cannabis, and possibly the premises, where a similar bucket was later found. That evidence is not to be used to reason that the accused must therefore be guilty of the charge of possession of cannabis for the purpose of sale on 1 April 2006. It might in different circumstances have been one circumstance, to be taken into account with other evidence, tending to rebut any suggestion that the accused was unfamiliar with the premises or with the substance, cannabis. (R v Long: R v McDonnell (2002) 137 A Crim R 263 at 269-270) However, no suggestion of that kind arises in this case.
There is no dispute that fourteen Cryovac packs of cannabis, weighing a little over 6.2 kg, were found in the car. The accused was not at the premises when the Cryovac packages of cannabis were found. No fingerprints were found on the Cryovac packages of cannabis. There is no evidence as to when the cannabis was put in the spare wheel in the boot and under and behind the rear seat. In particular, there is no evidence that the cannabis was in the car when the accused arrived at the premises, or during the time the accused spent at the premises, as opposed to after he had left.
There is no evidence that the accused was responsible for putting the cannabis in the car. Although there might be speculation about other people who were at the premises having some involvement in the secreting of the cannabis in the car, there is no evidence, and it is not suggested by the prosecution, that any other persons were acting in concert with the accused. Accordingly, there is no issue in this case of the accused acting in concert with others in relation to the offence charged.
There is evidence that, at the relevant time, Mr Evans, the tenant of 29 Shakespeare Avenue, and Mr Mika, the tenant of 29A Shakespeare Avenue, Plympton Park, had free access to the premises where the accused left his vehicle, and to the vehicle itself. Mr Mika was arrested on 1 April 2006 on account of the cannabis being cultivated at the premises and located in the accused’s car. There was also a woman who was seen moving a car in the driveway of the premises on the evening of 1 April 2006, after the accused had left. The accused is not jointly charged with others. There is no suggestion that the accused shared possession of the cannabis with others.
The evidence does not establish beyond reasonable doubt, in my opinion, that the accused knew, or was aware, "in the sense that there was a significant or real chance", or held a belief in the likelihood that the cannabis was in his car at the time it was found.
The evidence does not establish that the accused had the right to exclude others at the premises from exercising control over or interfering with the cannabis.
In that event, there is strictly no need to consider whether or not it can be inferred from the evidence that the accused intended to exercise control over the cannabis in the future. Nevertheless, assuming that the evidence established that the accused knew the cannabis was either already in his car, or believed it was to be put into his car overnight, there is some slight evidence from which such an intention might be inferred. The accused left his car at the premises, unlocked, taking the keys with him. The accused had the keys to his car with him at the Comfort Inn. No other keys to the car were located. The inference is open that the accused intended to return to collect his car at a later time himself. He was to stay only overnight. The evidence is that his permanent residence was with his wife in New South Wales. Police officers are aware that there is transport of cannabis from this State to New South Wales, often in packs similar to those found in the car. Couriers are commonly paid a fee for the transport of cannabis interstate.
On the other hand, there were two, or possibly three other people at the premises who might also have intended to exercise control over the cannabis which was found in the unlocked car. Enquiries from an airline confirmed a flight to Sydney booked for 2 April 2006, in the name of a John Peters, but with the home phone number of the accused provided as a contact number, suggesting the possibility that the accused was to fly back to New South Wales under another name.
If it were necessary to decide the issue, in my opinion, it is not possible to be satisfied beyond reasonable doubt that the accused intended to exercise control at some time in the future over the cannabis found in his car.
In summary, in my opinion, the evidence does not establish the accused knew or was aware that the cannabis was in his car when it was found there by police officers. Even if the accused had knowledge of the cannabis in his car, or a belief that it was likely that the cannabis would be put in the car overnight, there remains in my view a reasonable possibility open on the evidence that a person or persons other than the accused had free access to the premises, and the car where the cannabis was hidden, the right to exercise control over the cannabis and the intention to exercise control over it.
The prosecution has not established beyond reasonable doubt that the accused knowingly had possession of cannabis. My verdict is that I find the accused not guilty of the offence charged.