R v Amanatidis

[2001] NSWCCA 400

Reported Decision: 125 A Crim R 89

New South Wales

Court of Criminal Appeal

CITATION:	R v Amanatidis [2001] NSWCCA 400
FILE NUMBER(S):	CCA 60697/00
HEARING DATE(S):	6 July 2001
JUDGMENT DATE:	5 October 2001
PARTIES :	R v Michael Amanatidis
JUDGMENT OF:	Giles JA at 1; Hulme J at 15; Adams J at 62

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0338
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

COUNSEL :	M Sexton SC & P Baker - Crown P Byrne SC & J Barnett - Appellant
SOLICITORS:	S E O'Connor - Crown Turnbull Hill - Appellant
CATCHWORDS:	CRIME - deemed possession of heroin - heroin found in locked car - appellant had driven car to where it was found and had keys - heroin was in his custody or control - but appellant's daughter had use of other keys to car and had chattels in car - daughter was a drug user - appellant's knowledge that heroin in car not established by his driving it and having keys - no other evidence capable of establishing knowledge beyond reasonable doubt - conviction quashed.
CASES CITED:	Basto v R (1954) 91 CLR 628; Cumming (1995) 86 A Crim R 156; Domican v R (1991-1992) 173 CLR 555; Edwards v The Queen (1993) 178 CLR 193 He Kaw The v The Queen (1985) 157 CLR 523; M v The Queen (1994) 181 CLR 487; Moors v Burke (1919) 26 CLR 265; R v Bazeley (CCA, 23 March 1989, unreported); R v Clarke (1995) 78 A Crim R 226; R v Dib (1991) 52 A Crim R 64; R v Filipetti (1984) 13 A Crim R 335; R v Sobolewski (CCA, 21 April 1998, unreported).
DECISION:	Appeal upheld and conviction quashed.

IN THE COURT OF
CRIMINAL APPEAL

CCA60697/00
DC 99/31/0338

GILES JA
HULME J
ADAMS J

Friday 5 October 2001

R v AMANATIDIS

Judgment

1 GILES JA: The appellant was convicted of a charge of supplying heroin. The supply was a deemed supply under s 29 of the Drug (Misuse and Trafficking) Act 1985, established by proof of possession of more than 3 gms of heroin.

2 The heroin was in a Longbeach cigarette packet in a locked car. The appellant had driven the car to where it was parked when the heroin was found, and had keys to the car. There was no evidence one way or the other as to whether the appellant had been accompanied in the car by another person.

3 There was evidence -

(a) that there were other keys to the car at the house of the appellant and his daughter, available for the use of his daughter;

(b) that the appellant's daughter drove the car on occasions and had driven it the previous night;

(c) that the appellant's daughter's regular brand of cigarettes was Longbeach;

(d) that the appellant's daughter had been convicted of an offence of possession of heroin and another offence relating to a prohibited drug, and had been acquitted of seven charges of supplying a prohibited drug;

(e) that there were in the car when the heroin was found a passport, a Medicare card and building society passbook in the name of the appellant's daughter and men's and women's clothing; and

(f) that at the time the car was searched the appellant said of the clothing to "be careful; that's my daughters, she might have a syringe in her shirt".

4 The appellant submitted that the verdict of the jury was unreasonable because, on these facts, there was a reasonable possibility that the heroin found in the car was in the possession of someone other than the appellant: perhaps a person who had accompanied the appellant in the car when it was parked where the heroin was found,or more realistically the appellant's daughter.

5 In considering this submission, some further matters must be taken into account.

6 The appellant was himself a heroin user. When apprehended in the circumstances next mentioned, he was carrying a foil and a piece of paper each containing a small quantity of heroin.

7 The appellant was apprehended when he came to premises at which the police were present for other reasons. Before he came to the premises he telephoned to speak to their occupant. The police answered the telephone. The police officer said that he was a mate of the occupant "just helping him get rid of some gear", and the appellant said "Have you got enough? How many are left? I'm coming around shortly." A search of the appellant revealed a packet of Longbeach cigarettes and some car keys.

The appellant denied that the car keys were his, saying that they were his house keys, and said that he did not have and did not drive a car; he said that he had come to the premises in a taxi. In fact, the keys were the keys to the car, which was parked outside the premises, and the appellant was a frequent driver of the car.

8 When formally interviewed the appellant acknowledged that he had driven the car to the premises. When asked who owned the heroin found in the car he said "No comment". When asked if he could explain why the heroin would be in a car he was driving he said "I haven't got a clue". When asked if he could explain why anyone would put it in the car he said, "Yeah. A lot of people hate me, you never know, a lot of things happen".

9 Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody (He Kaw The v The Queen (1985) 157 CLR 523 at 537-9, 546, 585-7, 599-600). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared (R v Dib (1991) 52 A Crim R 64 at 66-7). It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons - that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in R v Filipetti (1984) 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was

not to the exclusion of the other occupants and shared physical control or custody could not be inferred; see also R v Bazeley (CCA, 23 March 1989, unreported) and R v Sobolewski (CCA, 21 April 1998, unreported).

10 The appellant had physical control or custody of the heroin in that he had driven the car to where it was parked and held the keys to the car. Even if another person had accompanied him, the appellant held the keys; the appellant's daughter might have driven the car the pervious night, and had available to her the other keys, but the appellant drove it on this occasion and had the keys then in use. It was not an R v Filipetti situation.

11 But the apparent involvement of the appellant's daughter in drug abuse and her clear use of the car made the question of the appellant's knowledge that he had the heroin in his control or custody particularly important. He did not admit knowledge, and in the circumstances knowledge could not be established beyond reasonable doubt simply by proof that the heroin was found in the car (see for example R v Clarke (1995) 78 A Crim R 226 at 232). What more was there?

12 First, there was what the appellant said to the police officer in the telephone call. It was suggested that the appellant was asking whether the occupant of the premises had enough heroin and saying that he was coming around to bring more. To my mind what was said was too obscure to warrant this interpretation, and what the appellant said to the police officer can not contribute to knowledge of heroin in the car.

13 Secondly, there was what the appellant said to the police about the car keys, not driving a car and coming in a taxi. These were lies. It was suggested that the appellant lied from consciousness of guilt, because he knew the heroin was in the car and did not want the police to find the car and search it. The appellant conceded this as possible ,but said that it was equally possible that the lies were because he knew of his daughter's drug abuse and was fearful that in her use of the car she might have left drugs or evidence of drug use in it. To my mind a jury instructed in accordance with Edwards v The Queen (1993) 178 CLR 193 could not have been satisfied that there was no reasonable hypothesis for the telling of the lies other than consciousness that telling the truth would implicate the appellant in the possession of heroin.

14 In my opinion, on applying the principles expounded in M v The Queen (1994) 181 CLR 487 the appeal should be upheld and the conviction quashed. It is not necessary to deal with other matters raised in the appeal.

15 HULME J: On 18 October 2000, a jury convicted the above named Appellant of a charge that he, on 2 October 2000 at Port Macquarie, did supply a prohibited drug, viz. heroin. On 19 October, he was sentenced by Judge Garling to imprisonment for 3 years, including a non-parole period of 18 months.

16 The trial which was held in Port Macquarie, commenced on 17 October. The single issue litigated at the trial was whether the Crown had produced sufficient evidence to establish to the necessary standard that the Appellant was in fact in possession of the prohibited drugs in question. An application for a verdict by direction was made at the end of the Crown case but refused.

17 The Crown case was while police officers were at Flat 1, 14 Murray St, Port Macquarie, at about 9.30 one morning investigating other matters, a caller had rung, asking to speak to an occupant of those premises. A police officer had taken the call and said the person sought was unavailable. The caller rang back 2 minutes later and the following conversation, inter alia, occurred:-

Appellant "Who are you?
Police "I'm a mate of Darren's. I'm just helping him get rid of some gear."
Appellant "Have you got enough? How many are left? I'm coming around shortly."

18 The police officer who had taken the call said that he recognised the voice of the caller as that of the Appellant.

19 Soon afterwards the Appellant arrived. He was searched and he was found to be carrying one foil containing 2.5 grams of powder and another piece of paper containing .09 grams of powder. Both of these items contained heroin although neither was analysed for the degree of purity. The Appellant said that the foil was half heroin and half sugar.

20 The search of the Appellant revealed also a packet of Longbeach cigarettes and some keys. When asked about them, the Appellant denied that the keys were his. When one of the police officers asserted that they were his car keys, the Appellant said that they were his house keys. When the police officer said about one of the keys that it was a Magna key, the Appellant said that he didn't have and didn't drive a car. When asked where he had come from he said that he had come to the premises in a taxi.The Appellant was taken downstairs where one of the keys fitted a locked brown Magna sedan parked outside.

21 At the time the police fitted the key to the vehicle they also searched it. They found under the driver's seat a Longbeach brand cigarette packet containing a plastic bag in which was a compressed substance weighing 9 grams and consisting of 73.5% heroin. The packet also contained a cigar. The Appellant denied all knowledge of the packet and its contents. Again he denied driving the vehicle to the premises. Also found in the vehicle in the glove-box were a passport and a building society passbook in the name of the Appellant's daughter, Anna and a family Medicare card. In the boot were men's and women's clothing. At the time the boot was searched and some clothing was apparent, the Appellant had said "be careful with that, that's my daughter's, she might have a syringe in her shirt."

22 A couple of hours later, the Appellant participated in a recorded interview. During the course of it he said that he could not recall saying that he had arrived at the

premises in a taxi. He acknowledged having driven there. He gave his address as 8 Sunnyside Crescent, Port Macquarie and said that he lived at his parents' place.

His statements as to use of the vehicle were not all consistent. He asserted that the vehicle was his mother's and that he, his daughter and a couple of friends drove it - p5.

Later in the interview he said that the only persons who drove it were himself, his daughter and his mother - p15. When asked about his mother's use of the vehicle the Appellant prevaricated but did say that she did not go out much, he didn't recall, she had not used it on that or the preceding day but probably drove it the previous week.

The tenor of those answers was that his mother drove the vehicle rarely, though she had keys to the vehicle and could take it if she needed it - p14. Later he said that his mother didn't drive the vehicle and "just me and Anna is the ones that use the vehicle the most" - p16. The Appellant said that he had a key to the vehicle. Anna did not but there was another key in a cupboard at home that anyone could use -p16.

23 The Appellant said that his daughter had driven the vehicle on the previous night - p15.

24 He denied putting the cigarette packet under the driver's seat and asserted that he was surprised it was there. When asked if he could tell the police who owned the plastic bag and the rock form white powder he said "No comment". When asked if he could explain why the heroin would be in a motor vehicle he was driving he said, "I haven't got a clue". In response to the next question, "Can you explain why anyone would put it there?" the Appellant said, "Yeah. A lot of people hate me, you never know, a lot of things happen." He acknowledged he was a heroin user.

25 The Appellant denied that he smoked cigars. He said that his daughter smoked any cigarettes she could find but her regular brand was Longbeach. There was also evidence that Anna had been convicted of one offence of possession of heroin and one relating to another drug and had been acquitted of some 7 charges of supplying a prohibited drug.

26 One police officer gave evidence that he had seen the vehicle about 6 times in the preceding month and on each occasion the driver was the Appellant. A second officer said that he had seen the vehicle on at least 20 occasions in the 3 or 4 months prior to 2 October and on each occasion the Appellant was the driver.

27 There was also evidence that heroin was supplied for immediate use in quantities of .1 of a gram, referred to as a "cap" or a $50 deal. Heroin would never be used intravenously at purity of 73%. It is commonly broken down from block form to powder, and by being mixed with something else its purity reduced at times to as low as 25 to 30%.

28 The Appellant did not give evidence, nor was any called on his behalf.

29 The Appellant has appealed on 3 grounds:-

(i) His Honour's directions on the element of possession were inadequate.
(ii) His Honour's directions on the use which the jury might make of the fact that the appellant had told lies were not sufficiently related to the relevant circumstances of the appellant's case.
(iii) The verdict of the jury is unreasonable having regard to the evidence in the case.

Ground 1
His Honour's directions on the element of possession were inadequate.

30 His Honour's directions included the following:-

"The other thing you have got to be satisfied of beyond reasonable doubt is this; that is the accused had the heroin in his possession.
Now what is the meaning of "possession"? In order to possess something, a person does not have to own it. What is necessary is that
he must knowingly have that thing in his physical custody, or at some place under this control. He must have the intention and the
ability to exercise control and dominion over it, to the exclusion of all others. By "knowingly", in this context, is meant that the accused
knew either of the existence, or the likely existence of the item in question - that is the heroin - and was aware that it was likely to be a
narcotic drug. You have to be satisfied beyond reasonable doubt that he had possession of the heroin...
The Crown says the accused had possession of this drug. The accused said "I didn't have possession of it", and that is, you may well
think, what you have to decide...
The Crown says you will be satisfied it was in his possession... This is one of those cases where no one sees him with it in his possession...
so what the Crown relies on is what is known as circumstantial evidence.
... However, before you can find an accused person guilty of a crime on the basis of circumstantial evidence, you must be satisfied that such a finding is not only reasonable, but that it is the only reasonable finding to make. It follows, that if there is another finding which is reasonably open - that is if there is another reasonable explanation which is consistent with innocence, it is your duty to find the accused not guilty ...
The circumstantial evidence the Crown would have you rely on in this case are these matters; the Crown's case, as I understand it, is that the accused drives to the vicinity of this unit with the heroin in his possession under the seat of the car, knowing it is in his possession ..."

31 His Honour put the Appellant's case in, inter alia, these terms:-

"It is argued on behalf of the accused that you could not be satisfied beyond reasonable doubt of the guilt of the accused because you could not be satisfied that he had in his possession the drugs. These things are put forward to you; it is his mother's car. True it is she does not drive it a lot, but it is her car. His daughter, Anna, does drive the car. You look at the record of interview, you see that, you see she had it, it is said, the night before.Anna has had a conviction for heroin use. Other persons' personal items were found in the car. There was a passport. There was a Medicare car. There was ladies' clothes. There is a distinct chance that this drug, this heroin, could have been Anna's, could have been in the car unbeknown to the accused. They are matters which are argued on behalf of the accused and which you will, of course, consider."

32 At the conclusion of the summing-up, in response to an invitation to raise any matters of law, counsel for the accused said:-

"Your Honour there is just one matter. It's the situation where Your Honour did tell the jury about the items belonging to Anna Amantidis in the car ,and you told the jury about the Crown having to prove beyond reasonable doubt exclusive possession on the part of the accused. It was wondering whether it would be appropriate to tell the jury that even - the accused doesn't have to prove anything, the Crown even has to negate, they bear the onus of negating possession on the part of another person, it's not up to the accused to prove that another person may have possessed the item."

33 His Honour responded, inter alia, as follows:-

"The jury have heard you. I believe that my directions to the jury are they must be satisfied beyond reasonable doubt of the exclusive possession by the accused. I believe that covers it."

34 This exchange was in the presence of the jury. In the appeal it was submitted the summing-up did not convey in sufficiently clear terms that it was necessary for the Crown to satisfy the jury that it was not a reasonable possibility that the heroin in question was in the possession of some other person. It was submitted that the evidence of other people having access to and use of the place in which the quantity of heroin was found, that is the motor vehicle, should have been explained to the jury on the basis that if they considered that it was reasonably possible that some other person might have placed the heroin where it was found, then they should acquit the Appellant.

35 I disagree. "Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence." - Domican v R (1991-1992) 173 CLR 555 at 561. A judge is not obliged to mention all of the matters set up on behalf of an accused as affecting the probabilities - Basto v R (1954) 91 CLR 628 at 637. And as I said in R v Pauna with the concurrence of the other members of the Court, a judge's obligation to "fairly direct the consideration of the jury to the matters raised by the accused in his defence" does not impose on a judge a duty to indulge in needless repetition of what a jury has recently heard. It must not be forgotten that, at least in cases where an accused is represented by counsel, the duty to place a defence case before a jury is primarily that of counsel and there is nothing in the material before this Court to suggest that the duty was not properly performed".

36 Counsel who appeared at trial for the Appellant was experienced and the last mentioned remarks apply here.

37 The issues in the case were within short compass. There had been 30 pages of evidence during the second morning. Counsel addressed before lunch on that day. The summing up commenced after lunch and concluded at 10 past 3. No doubt if the point is as important as is now suggested, counsel did not overlook it. There is no reason to think that the jury would have forgotten what was said in that regard. The judge adequately instructed the jury. He was under no obligation to descend to the detail sought. This ground fails.

Ground 2

His Honour's directions on the use which the jury might make of the fact that the appellant had told lies were not sufficiently related to the relevant circumstances of the appellant's case.

38 His Honour's directions on the topic of lies included the following:-

"The third matter is this; the accused lied. Or they allege the accused lied. It is a matter for you whether or not the accused lied. But you may well think that the accused did tell a lie to the police officer."

39 His Honour then referred to parts of the Appellant's ERISP as to the use of the motor vehicle and continued:-

"Now you will recall the police officer's evidence, and you will recall seeing it on video, where he denied driving the vehicle there and said he came by taxi. He later says in his record of interview he drove it there. It is a matter entirely for you. It would appear to be a lie. Now what use can you make of that?
The Crown says that from all of that you can infer consciousness of guilt. Consciousness of guilt may be inferred from among other things the telling of lies. However, before you can take such a lie, as is alleged by the Crown, into account, you must be satisfied that it was a deliberate lie, that it related to an issue that was material to the offence charged, and that it was told by the accused because he feared that he would be found guilty if he told the truth, or before he was unable to give an innocent explanation or account for his conduct, which was the subject of that lie. You must remember that people do not always act rationally and that conduct of this sort may sometimes be explained away in other ways, for example, as a result of panic, fear, a desire to protect others, to hide other misconduct on his part, which has nothing to do with the offence with which he has been charged. It is necessary for the Crown to eliminate any reasonable possibility that the lie was told for such a reason.
Furthermore, even if you are satisfied that he was motivated by a consciousness of guilt, before this can assist the Crown you must be further satisfied that what was in his mind was guilt of the offence charged, not some other crime ...
What the Crown would say to you is you would have no trouble in finding it was a lie, you would have no trouble in finding it was deliberate, and that you would be satisfied that he told it because he did not want the police to know that he had driven there in a car which was in the vicinity in which there was a substantial amount of heroin.
You will remember what I said to you about the reason people sometimes lie, and take all that into consideration."

40 In a second response to the invitation to seek re-directions, counsel for the Appellant said:-

"... Your Honour talked about lies, and Your Honour defined lies, and you emphasised what the Crown was saying about lies, and you talked about the reasonable explanation for telling lie. There's just one thing - I was just wondering whether Your Honour would say well the defence, or the accused - on behalf of the accused they're invited to consider that there may well be a reasonable explanation in the light of one of the examples you gave about protecting people."

41 His Honour responded:-

"I thought I did that. No, I will not go any further than that. I believe I have given that direction."

42 This exchange also was in the presence of the jury.

43 Unsurprisingly, no authority was cited for the proposition that his Honour's summing up was deficient in the respect contended for. My remarks made when considering the first ground apply here. This ground also fails.

Ground 3
The verdict of the jury is unreasonable having regard to the evidence in the case.

44 The offence of "supply" charged against the Appellant was based on s29 of the Drug (Misuse and Trafficking) Act 1985, the effect of which is that a person found in possession of more than 3 grams of heroin is deemed to have that drug in possession for the purposes of supply unless the contrary is shown. It was submitted that the evidence was insufficient to prove possession by the Appellant of the heroin found in the motor vehicle and in particular insufficient to exclude, as a reasonable possibility that it was possessed by someone else such as the Appellant's daughter or a passenger he might have had in the vehicle before parking it where it was found and searched.

45 There was in fact no evidence at the trial as to the existence of any such passenger. Indeed, the possibility does not seem to have even been raised until the appeal but, if it is a reasonable hypothesis, effect must be given to it.

46 In He Kaw The v R (1984-1985) 157 CLR 523, the High Court considered, inter alia, what the Crown had to establish in proceedings brought for an offence under s233B(1)(c) of the Customs Act which, so far as is relevant, provided:-

"Any person who -
(c) without reasonable excuse (proof whereof shall lie upon him) has in his possession, or attempts to obtain possession of, any prohibited
imports to which this section applies which have been imported into Australia in contravention of this Act;
shall be guilty of an offence."

47 In the course of doing so, the majority of the High Court made it clear that the element of possession required physical control or custody and knowledge that the relevant goods are in such custody or control - pp537-542, 546, 585-9, 598-602. In He Kaw The v R issues of knowledge of the nature and characteristics of the relevant goods also arose but for the purposes of this case I do not need to direct attention to these matters.

48 The physical custody or control required can exist even though the property is at some distance from the possessor. Furthermore the custody or control may be joint. Thus in He Kaw The v R Gibbs CJ with whom Mason J agreed, said (at 538):-

"In Moors v Burke (1919) 26 CLR 265, which is discussed in Williams v Douglas , the Defendant was held not to be in actual possession of certain wool suspected of being stolen because he had placed the wool in a locker which was not under his control. It was decided that actual possession meant "the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused".

49 In Moors v Burke (at p270) the High Court had accepted a passage in Pollock and Wright on Possession in the Common Law:-

"The word "possession" is used in relation to movable things in three different senses. Firstly, it is used to signify mere physical possession ... which is rather a state of facts than a legal notion. The law does not define modes or events in which it may commence or cease. It may perhaps be generally described by stating that when a person is in such a relation to a thing that, (1) so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and (2) so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him, or in some receptacle belonging to him and under his control, he is in physical possession of the thing." ... The receptacle belonging to him and under his control implies that it belongs to no one else and is subject to no other person's independent control. This is, if necessary, madestill more clear by the passage at p.129: "no phrase is more usual for describing the ordinary test of possession than the question - 'had he the separate undivided and exclusive control of the thing'?"
...
Possession is proved by various acts varying with the nature of the subject matter. But exclusiveness is essential. That, of course, does not mean that several persons may not in concert have and exercise that exclusive possession as against the rest of the world."

50 In this case the heroin was in a locked vehicle near where the Appellant was and to which he had a key. The only other key, according to what he said in his ERISP, was at home. There was no evidence how far that home was away but resort I have had to a map of Port Macquarie shows that it was some appreciable distance away - 19 blocks or more. I appreciate that map was not in evidence but it may be inferred that a local jury would have known of the distance. Putting aside the question of knowledge for the moment, in these circumstances it is apparent that the Appellant could "assume, exercise or resume manual control" of whatever was in the car at his pleasure and, as against other persons, those items were in his control. And, assuming the Appellant knew of the heroin, this was so even if it was his daughter who had placed the heroin under the Appellant's seat.

51 In light of the directions given, the jury's verdict involves a finding that the Appellant intended to exercise control over the drugs. On the assumption that he knew of the drug's presence, his possession of the keys of a locked car parked outside where he was and which he had been driving shortly beforehand provides a clear basis for this finding.

52 As has been said, during the hearing of the appeal the possibility was raised that some unidentified passenger had placed the drugs under the seat, that it might have been intended that that person, possibly waiting nearby and keeping the car under observation, should recover them. There was no evidence of any such person but equally there was no evidence that there was not, any failure of such person to appear at the time the vehicle was being searched by police being readily explicable. In this situation, and subject of course to the Appellant having known that the heroin was there, I would still regard the Appellant as in possession during the time he was in the premises at 1/14 Murray St, immediately prior to the police discovery of the heroin. In the absence of evidence, I would not be prepared to regard it was a reasonable possibility that the circumstances of any such person were such that he could have prevented the Appellant from assuming, exercising or resuming manual control of the drugs had the Appellant wished to do so.

53 On the assumption that there might have been such a person, an alternate possibility is that the heroin was the subject of joint possession. Exclusive possession was the way in which the Crown presented its case to the jury but it would have been no defence had the possession the Appellant had been jointly with another - c.f. Cumming (1995) 86 A Crim R 156. However, for the reasons apparent in the immediately preceding paragraph, I do not need to rely on this possibility.

54 The Court was referred to 2 cases - Filippetti (1984) A Crim R 335 and R v Bazley (unreported, CCA, 23 March 1989 - wherein it was held that drugs found in the presence of a person could not be shown to have been in that person's possession. However both are distinguishable: For the facts of each supported the inference that the possession of the drugs, exclusive of any involvement of the particular accused, may have lay with another person. Here there was evidence that the Appellant had the only available key to the vehicle in which the heroin was.

55 I turn to the topic of knowledge. As I have recounted, the Appellant said that he did not know of the heroin under the seat and any conclusion that the Appellant did know of the heroin must arise as a matter of influence. In that regard, some reference should be made to the evidence. I have referred to the fact that 2 small items containing heroin were found on the appellant. In his ERISP he acknowledged that he was a heroin user, using about 5 times a week at a cost of $200 to $250 per week. He said that his income was about $160 per week, the difference being supplied by his father more or less on request. There was also evidence that the Appellant's daughter had one conviction relating to possession of heroin, and had had one charge of supply a prohibited drug withdrawn, and had had 7 counts of supply a prohibited drug dismissed.

56 The mere fact that the heroin was in the car being driven by the Appellant that day leads me to think that he probably knew of its presence there. The fact that the car was one usually driven by the Appellant makes the inference stronger. Furthermore, I regard it as unlikely that the Appellant's daughter would use, unbeknown to the Appellant, the area under the driver's seat of the car he usually drove as a storage place for heroin when she was not in the car. On the evidence, that heroin was worth at least $4,500, uncut.

57 Next, there was the co-incidence of the appellant's arrival in a car containing heroin soon after he had made the phone call deposed to by the police officer. If he did not know of the heroin the coincidence might fairly be described as extraordinary. The terms of that conversation are clearly indicative of an interest in either acquiring or supplying heroin. I regard the latter as more probable because it seems to me that if the Appellant's interest were in acquisition, in the context of his concern about quantity he would have provided some indication of what he wanted. Furthermore, against a usage of 5 times per week, he apparently had 2, if not the equivalent of more, doses on him, suggesting no immediate need.

58 Finally there were the Appellant's lies concerning whether he had arrived in the car. I accept the possibility that the lie might have been told to protect his daughter. However, particularly in light of his persistence in this regard, it seems to me far more likely that the reason was the Appellant's knowledge of the heroin.

59 Considered individually, I would not have been prepared to reach beyond reasonable doubt some of the conclusions expressed in the immediate preceding paragraphs. However, when all of these matters are considered in combination, it seems to me as was accepted by counsel for the Appellant during the hearing of the appeal - T6, that it was open to the jury to conclude beyond reasonable doubt that the Appellant was aware of the presence of the heroin in the car.

60 Accordingly, the third ground of appeal also fails.

61 The appeal should be dismissed.

I agree with the reasons for judgment of Giles JA and with the orders his Honour proposes.