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Court of Criminal Appeal 7 May 2010

Mogilevsky v R

[2010] NSWCCA 92

Drugs
CRIMINAL LAW CONVICTION APPEAL

Citation: Mogilevsky v R [2010] NSWCCA 92
Court: New South Wales Court of Criminal Appeal
Date: 7 May 2010
Judge(s): Latham J (primary judgment); Fullerton J and Schmidt J (agreeing)

Background

The appellant was convicted in the District Court on two counts: cultivating a prohibited plant (cannabis) and deemed supply of a prohibited drug (cannabis). The cultivation charge was not appealed. The appeal concerned only the supply conviction, which arose from approximately 8.5 kg of harvested cannabis found inside a house at St Ives that the appellant did not own or occupy, but had briefly attended.

The Crown's case rested on the appellant's alleged joint possession of that cannabis with her three sons, who ran a sophisticated hydroponic cannabis operation across three adjacent residential properties. The only direct evidence linking the appellant to the relevant premises was approximately 90 minutes of surveillance footage from 28 June 2006, showing her vacuuming, cleaning, and spraying plants inside the house. She explained this as a "pranic healing ritual." The jury rejected that explanation for the cultivation charge.

The appellant made a no-case submission on the supply charge at the close of the Crown case. The trial judge refused that submission and allowed the supply charge to go to the jury, who convicted. The central question on appeal was whether that refusal was an error.

  • Whether the trial judge erred in refusing the no-case submission on the deemed supply charge.
  • Whether participation in a joint criminal enterprise to cultivate cannabis is sufficient to establish joint possession of harvested cannabis found on the same premises.
  • Whether knowledge of the presence of the cannabis could be inferred from the appellant's single, brief attendance at the premises.
  • Whether the Crown had sufficiently excluded the possibility that another person held exclusive possession of the cannabis.

Decision

Latham J (with Fullerton and Schmidt JJ agreeing) held that the no-case submission should have succeeded and that the trial judge erred in allowing the supply charge to go to the jury.

The court drew a clear distinction between participation in a joint criminal enterprise to cultivate and the separate question of joint possession of harvested cannabis. The Crown had conflated these two concepts throughout the trial. Even accepting that the appellant participated in the cultivation enterprise, that participation did not, without more, establish that she knew of the existence of 8.5 kg of harvested cannabis stored in the hallway cupboard and elsewhere in the house. Knowledge of the cannabis was an essential element of possession, and no evidence capable of proving that knowledge beyond reasonable doubt was placed before the jury.

The court noted that the Crown case was expressly founded on joint possession of the 11 heat-sealed bags in the hallway cupboard, among other amounts. There was no fingerprint or DNA evidence connecting the appellant to those bags. Her presence in the main room of the house for a single 90-minute period on one occasion could not, on any reasonable view, support an inference beyond reasonable doubt that she knew the bags existed in the cupboard.

Latham J further observed that the Crown was unable to rule out the possibility that the appellant's son Uri, as registered proprietor of the premises, held exclusive possession of the cannabis stored there. Exclusive possession in another person is fatal to a joint possession case.

Orders Made

  • Appeal allowed.
  • Conviction on the second count (deemed supply of a prohibited drug) quashed.
  • Verdict of acquittal entered in respect of that count.

Key Takeaways

  • Joint possession of prohibited drugs requires proof, beyond reasonable doubt, that the accused had actual knowledge of the existence of the drugs, not merely access to the premises where they were found.
  • Participation in a joint criminal enterprise to cultivate cannabis does not automatically establish knowledge of, or joint possession over, harvested cannabis found at the same location.
  • Where multiple people have access to a property, the Crown must also establish that the drugs were not in the exclusive possession of another person. Failing to exclude exclusive possession in another person undermines a joint possession case.
  • The Court of Criminal Appeal confirmed that suspicion, even strong suspicion, about a person's knowledge is not a substitute for evidence capable of supporting an inference beyond reasonable doubt.
  • A no-case submission has merit where the Crown cannot point to evidence of each essential element of the offence at the close of its case. Allowing an insufficiently supported charge to proceed to the jury constitutes a reviewable error.

Legislation and Cases Referenced

Cases:
- Jackwitz v R; Franklin v R [2006] NSWCCA 419
- R v Amanatidis [2001] NSWCCA 400
- R v Dib (1991) 52 A Crim R 64
- R v Filipetti (1984) 13 A Crim R 335
- R v Bazeley (CCA, 23 March 1989, unreported)
- R v Sobolewski (CCA, 21 April 1998, unreported)
- R v GNN [2000] SASC 447

Legislation: Not expressly cited in the provided text (the offences relate to deemed supply and cultivation of cannabis under New South Wales drug legislation).