CRIMINAL LAW: IT MUST BE YOURS; IT’S ON YOUR PROPERTY!
July 21, 2016
Ever heard the saying that possession is nine tenths of the law? In other words, if an item is in your possession, it must be your responsibility. This is what the police thought when they charged a man for drug possession after they found methylamphetamine and “fantasy,” along with items associated with the manufacture of drugs, on his property. But the Court disagreed, saying that anyone could have put the drugs there.
It was an interesting case that explored the concept of “constructive possession” in South Australian criminal law.
What is constructive possession?
“Possession” is something that is in a person’s power, custody or control. For example, if you are holding a book, you are in possession of it. This is also known as “actual possession.”
“Constructive possession” is where a person may have knowledge of something, but does not exercise actual control over it. The important thing is that the person may exercise control over it if they choose. For example, if they store their book in a locker, even though the locker is located at the local library, they have constructive possession of the book. This is because they have a key to the locker so they can choose to go and get the book whenever they like.
The key to establishing constructive possession is knowledge. This was the determining factor of the Court’s decision.
The facts of the case
The man, who had no previous convictions, was charged with drug trafficking and possession. He was 73 years old with mental and physical disabilities. He needed to use a walking frame and was also his wife’s carer.
He lived on a rural property with paddocks and sheds but rarely left the house.
In 2013, the property was raided by police. They found drugs hidden in various locations.
The prosecution alleged that the man knew that drugs were being stored on the property and allowed them to be hidden so that others could sell them. In other words, he had constructive possession of the drugs.
The prosecution could not prove any direct links between the man and the drugs. This meant that the man could only be found guilty if there were no other reasonable explanations for the situation.
The Court found the man’s poor health and mobility prevented him from entering and inspecting the locations where the drugs were hidden.
The Court found the man not guilty of all charges. It was not satisfied beyond reasonable doubt that he knew of the drugs. There were other possible explanations for the situation, including that:
- The man’s son had secretly hidden the drugs on the property before serving time in prison for drug-related offences.
- Anyone may have been able to enter the property without the man’s knowledge via a pathway at the bottom corner of the property.
- Even if the man knew of visitors, he may not have known that they were hiding drugs on the property.
Knowledge is the key
Without the man having knowledge of the drugs, there was no constructive possession. This, combined with the other reasonable explanations for the presence of the drugs, meant that the man was found innocent.
Websters Lawyers is a criminal law firm, with outstanding criminal lawyers in Adelaide, Ridgehaven and Smithfield. If you have been charged with constructive possession of a drug, or any other criminal law issue, please contact us for a free no-obligation consultation.