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9
Court of Criminal Appeal 5 October 2001

R v Amanatidis

[2001] NSWCCA 400

Also reported as (2001) 125 A Crim R 89
Drugs
CRIME DEEMED POSSESSION OF HEROIN HEROIN FOUND IN LOCKED CAR HEROIN WAS IN HIS CUSTODY OR CONTROL DAUGHTER WAS A DRUG USER CONVICTION QUASHED.

Citation: Amanatidis v R [2001] NSWCCA 400
Court: NSW Court of Criminal Appeal
Date: 5 October 2001
Judges: Giles JA, Hulme J, Adams J

Background

The appellant was convicted in the District Court of deemed supply of heroin under the Drug Misuse and Trafficking Act 1985 (NSW). Deemed supply is established by proving possession of more than three grams of heroin, without needing to prove an actual act of supply.

Police found heroin concealed in a Longbeach cigarette packet inside a locked car. The appellant had driven the car to where it was parked and was holding the keys when apprehended. He was also carrying a small amount of heroin on his person at the time.

The complicating factor was the appellant's daughter. She had regular access to a second set of keys, drove the car on occasions (including the night before the arrest), and had personal items inside the car including a passport, Medicare card, and passbook. She was also a known drug user with prior convictions involving heroin and prohibited drugs. The appellant, when first approached by police, lied about owning the car keys and denied driving a car at all.

  • Whether the appellant had physical custody or control of the heroin found in the locked car
  • Whether the appellant had the requisite knowledge that the heroin was in the car, so as to complete the elements of criminal possession
  • Whether, in light of all the evidence, the jury's verdict was unreasonable because knowledge could not be established beyond reasonable doubt

Decision

The Court divided two-to-one on reasoning, with the majority (Giles JA and Adams J) upholding the appeal and quashing the conviction, and Hulme J dissenting.

On physical custody or control, all judges agreed the appellant had the necessary physical element. He had driven the car to its location and held the keys. This was not a case like R v Filipetti, where drugs were found in a shared space accessible to multiple unidentified persons. The appellant's daughter may have used the car previously, but the appellant was the one with the keys on the day in question.

On knowledge, the majority found this element was not proved beyond reasonable doubt. The Court noted that the mere presence of heroin in a car does not, of itself, establish knowledge. The appellant's lies to police about the car keys were capable of an alternative explanation: that he was covering for his daughter, knowing she used the car and suspecting she may have left drugs in it. The telephone conversation the appellant had with a police officer before arriving at the premises was too ambiguous to be read as proof of knowledge that heroin was specifically in the car.

Hulme J, dissenting, took the view that the cumulative weight of the evidence, including the location of the heroin under the driver's seat, the timing of the appellant's arrival after the telephone call, the value of the heroin (at least $4,500 uncut), and the persistence of his lies, was sufficient for the jury to conclude beyond reasonable doubt that the appellant knew the heroin was there. However, the majority disagreed and found that on the M v The Queen standard, the verdict was unreasonable.

Orders Made

  • Appeal upheld and conviction quashed

Key Takeaways

  • Criminal possession of a drug requires both physical custody or control and knowledge that the thing is within that custody or control. Either element alone is insufficient.
  • A conviction will not be sustained where an alternative reasonable hypothesis for the accused's behaviour, consistent with innocence, cannot be excluded beyond reasonable doubt.
  • Lies told by an accused to police do not necessarily establish consciousness of guilt in relation to the specific charge. Where another plausible reason for the lie exists (here, protecting a family member), a jury directed in accordance with Edwards v The Queen (1993) 178 CLR 193 cannot treat those lies as determinative.
  • The Court of Criminal Appeal confirmed that shared access to a vehicle does not automatically result in shared possession of items found in it. The physical custody question turns on who held control on the occasion in question, while the knowledge question remains separately assessed.
  • Ambiguous telephone conversations cannot bear the weight of establishing knowledge of specific contraband where the words used are too obscure to support one interpretation over another.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 29 (deemed supply)

Cases
- M v The Queen (1994) 181 CLR 487 (standard for unreasonable verdict)
- He Kaw The v The Queen (1985) 157 CLR 523 (elements of criminal possession)
- Edwards v The Queen (1993) 178 CLR 193 (lies as consciousness of guilt)
- R v Filipetti (1984) 13 A Crim R 335 (shared access and possession)
- R v Clarke (1995) 78 A Crim R 226
- R v Dib (1991) 52 A Crim R 64 (shared physical custody)
- Domican v R (1991-1992) 173 CLR 555
- Basto v R (1954) 91 CLR 628
- Moors v Burke (1919) 26 CLR 265
- Cumming (1995) 86 A Crim R 156
- R v Bazeley (CCA, 23 March 1989, unreported)
- R v Sobolewski (CCA, 21 April 1998, unreported)