R v Levy - [2014] SASCFC 114

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 114
Court 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Levy

Details

AGLC: R v Levy [2014] SASCFC 114
Case: [2014] SASCFC 114
Decision Date: 30 October 2014

CaseChat Overview and Summary

The applicant, R v Levy, sought leave to appeal against a conviction for drug trafficking. The appeal was based on two grounds, which a single judge had previously refused to consider as arguable. The case involved the discovery of methylamphetamine, drug paraphernalia, and a significant amount of cash during a police search of the applicant's unit, of which she was the sole lessee. A friend, Mr. Hughes, was stopped in a vehicle leaving the unit and found to be in possession of methylamphetamine, and he also possessed keys to the unit.

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

A single Judge refused permission to appeal; her Honour considered that the case was overwhelming and that neither of the grounds were genuinely arguable. The applicant renews her application to this Court for permission to appeal on the same proposed grounds. The evidence On 5 July 2012, police officers were maintaining observations of a unit at 4/61 Buller Terrace Alberton, the home of the applicant (the unit). At about 5:30pm, they observed a vehicle leave the unit, stopped it, and identified the driver as a Mr Hughes. His wallet was searched and inside was found a small amount of methylamphetamine in a small press seal bag. In the vehicle was found a set of house keys which were seized by police. Police then searched the unit, and the keys that had been seized were found to fit the front door. The keys were later given to the applicant by the police. The applicant was the sole lessee of the unit and was the only person present when police arrived. The unit had two bedrooms but only one of those was set up as a bedroom. The second was set up as a spare room. The applicant told the police that no-one else lived at the premises but also said:QBut you’ve got a is it a male … that was a male that was um stopped in a vehicle near your address?A Yeah, yep.Q Who’s that?A Just a friend of mine.Q So he doesn’t live with you, doesn’t stay or anything?A Oh he stays occasionally, we’re adults, been locked up for a while. During the search, police located in the lounge room:[1] inside a silver cigarette tin, six press seal bags which contained a total of 6.1 grams of powder with 2.66 grams of pure methylamphetamine (count 1) and inside a matchbox, a further nine press seal bags containing 4.49 grams of powder with 2.63 grams of pure methylamphetamine (count 2). [1] There may be some uncertainty whether these items were found in the lounge room but it is to the advantage of the applicant that they were, since the lounge room might be envisaged as more of a “common area” than, say, the applicant’s bedroom. The police also located the following items commonly associated with trading in drugs:·17 unused press seal bags inside the upholstered lid of an ornamental box in the lounge room, and a further 128 unused press seal bags in a shoe box on the floor of the same room.·A calculator, mortar and pestle, and a marble chopping board together on a coffee table in the lounge room. It was alleged that this was set up as a “cutting area”.·A set of scales (which were functioning) capable of measuring to a 0.00 of a gram which had traces of methylamphetamine on the weighing surface and a DNA profile from the buttons matching the applicant with a likelihood of 50 billion to one. The scales were beneath the coffee table identified as the “cutting area”.·Four new unused syringes in a blue cooler bag on the floor of the applicant’s bedroom.·Four mobile phones, three of which were charged and operational. Two of these were in the applicant’s bedroom.·$4,675 in cash inside a blue pencil case on the floor of the lounge room.·$545 in cash and the applicant’s driver’s licence inside a white “Guess” brand wallet near a mattress in the lounge room. ·A matchbox containing a press seal bag in turn containing three press seal bags that each contained a brown paste later analysed and found to contain methylamphetamine. The matchbox also contained a further press seal bag which contained another press seal bag containing a cream paste later analysed and found to contain methylamphetamine.·A white cylindrical plastic tube with a screw-on cap that looked like an inhaler, containing three plastic bags, one within another, with one containing a cream paste later analysed and found to contain methylamphetamine, and three further bags each containing a cream paste also later analysed and found to contain methylamphetamine.·A gold coloured paper envelope containing a press seal plastic bag containing a cream paste later analysed and found to contain methylamphetamine.·Further bundle of two press seal bags, one containing 57 small new unused press seal bags and the other 71 small new unused press seal bags. These were located in a black shoe box on the floor of the applicant’s lounge room.

Decision

Reasons for decision

KOURAKIS CJ PEEK J BLUE J

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Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ, PEEK J, BLUE J

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