SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEVY
[2014] SASCFC 114
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)
30 October 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - WHAT CONSTITUTES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OF EQUIPMENT AND IMPLEMENTS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - PRESUMPTION OF POSSESSION BY OCCUPIER
Application for permission to appeal against convictions for drug offences.
After a trial by Judge alone, the applicant was convicted of two counts of trafficking in a controlled substance contrary to s 32(3), Controlled Substances Act 1984. The applicant was the sole occupier of premises in which methylamphetamine, cash, and paraphernalia commonly associated with drug trafficking were located, and stated to police that all items in the premises belonged to her. She applied to a single Judge for permission to appeal against each conviction on grounds that the trial Judge failed to have regard to all of the elements of possession, and failed to have proper regard to the reasonable possibility that possession of the drugs resided in a third person, Mr Hughes, who stayed with her occasionally. That application was dismissed and she now applies to this Court.
Held per Peek J (Kourakis CJ and Blue J agreeing) refusing permission to appeal:
1. The trial Judge correctly delineated the relevant legal principles and correctly directed himself as to the elements of possession both generally and as applied to the particular facts of this case. [18]
2. The trial Judge explicitly stated on a number of occasions that he had considered the question of “possession” in the light of the defence contention that Mr Hughes may have been in possession of the drugs to the exclusion of the appellant. [22]-[24]
3. It was clearly open to the trial Judge to reject the submission that Mr Hughes was in possession of the methylamphetamine to the exclusion of the applicant and instead find on the evidence that the charges were proven beyond reasonable doubt. [26]-[27]
Controlled Substances Act 1984 s 32(3), referred to.
R v Levy [2014] SADC 101, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"possession", "methylamphetamine", "premises", "occupy"
R v LEVY
[2014] SASCFC 114Court of Criminal Appeal: Kourakis CJ, Peek and Blue JJ
KOURAKIS CJ. I gratefully adopt the recitation of the evidence given in the reasons of Peek J. There was no real dispute at trial, nor on appeal, that the methylamphetamine was in the applicant’s physical custody. The primary factual dispute concerns the adequacy of the evidence to prove a culpable mental state.
As the reasons of Peek J demonstrate, the evidence that the applicant knew the drug was in her unit was…
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- R v Levy [2014] SASCFC 114
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- [2014] SASCFC 114
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CaseChat Overview and Summary
The legal issues before the court were whether the applicant was in possession of the methylamphetamine found in the unit, and whether the evidence supported a finding that she intended to traffic the drug. Specifically, the court had to consider the definition of possession in the context of drug offences and the inferences that could be drawn from the presence of drug-related items and cash within the applicant's home. The applicant's assertion that a friend occasionally stayed at the premises, despite her initial statement that no one else lived there, was also a relevant factor in determining control and possession.
The court considered the principles of possession under the relevant legislation, which requires proof that the accused had physical control of the substance with knowledge of its existence and nature. The court noted that possession could be established by circumstantial evidence, and that the presence of a large quantity of methylamphetamine, along with numerous unused press seal bags, a calculator, mortar and pestle, scales with the applicant's DNA, and significant amounts of cash, strongly indicated an intention to traffic. The court found that the evidence, taken as a whole, was overwhelming and that the applicant's arguments were not genuinely arguable.
The application for leave to appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: KOURAKIS CJ, PEEK J, BLUE J
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