June 12, 2012

Many criminal charges relate to the question of whether a person was in ‘possession’ of an item (such as drug possession or unlawful possession of property) and recently the District Court of South Australia confirmed what is required in order to prove ‘possession’.

In this particular case the accused person was alleged to have taken a step in the process of manufacturing a drug by ‘storing’ chemicals used for the production of methylamphetamine. Prosecution relied on an extended definition of ‘manufacture’ in the Controlled Substances Act which says that a person takes part in the manufacture of a controlled drug if they participate in any step in the manufacturing process. The Act also says that a ‘step in the process’ includes storing equipment, substances or materials when done for the purpose of the manufacture of that drug.

Police had searched a workshop with which the accused was connected and located two bottles containing chemicals that are used in the manufacture of methylamphetamine. It was alleged that the accused was storing those chemicals but to prove the case it had to be established that he had possession of them.

Under the law, a person has possession of something if they knowingly have physical custody or control of it. To have control means to have the power to dispose of the item but it does not mean that they have to have it in their immediate possession such as in their hand or pocket. It is enough if it is proved that the item is in a place where the person has the exclusive right or power to place their hands on it, but it is not enough just to prove that the person knew the item was there.

Despite the fact that the Judge had a suspicion that the person charged may well have been involved in a future manufacture of the drug, it was held that the prosecution had not proved a sufficient connection with the premises to establish physical control over the two bottles of chemicals.

There are both factual and legal questions involved in determining the issue of whether a person has ‘possession’ of anything. It is often the case that an individual is charged with possession based on some connection with where an item is located (such as a house or car) despite the fact that they had no knowledge of the presence of the item or that others might have had access to it. For advice regarding criminal charges such as unlawful possession or drug possession or any other criminal case Websters Lawyers in Adelaide offer an obligation free first interview. Websters Lawyers have specialist criminal lawyers with proven experience in criminal cases who can provide all the assistance you require.

R v Cullen [2012] SADC 50