The legal concept of possession involves having intentional control over an object at a given time, either individually or jointly with others. To establish possession, the individual and any co-possessors must also hold the right to exclude others from access to the object. When these criteria are met, an individual is considered to possess the object, whether solely or jointly with others.
Vehicles
There may be instances where you are driving, controlling, or merely a passenger in a vehicle you do not own or that is shared with others. In such situations, you might not be fully aware of all the vehicle’s contents. This lack of knowledge can lead to significant complications if police conduct a search and discover illicit items (such as drugs or firearms) in hidden compartments or areas not readily visible to the driver or passengers.
Relevant case law can assist in determining whether a driver or passenger is legally deemed to possess these items. For instance, in R v Amanatidis [2001] NSWCCA 400, drugs were found in a vehicle driven by the appellant. Although it was established that as the driver and keyholder he had physical control over the drugs, his knowledge of their presence could not be proven.
Police often infer a person’s knowledge or possession of an illicit object if certain conditions are present, including:
- Presence of the person’s DNA or fingerprints on the object, or
- The illicit object’s visibility or accessibility to the driver or passenger, or
- Mentions of the illicit object in text messages, phone calls, or recordings from surveillance devices, or
- The person’s behaviour before the discovery of the object, such as if they were caught supplying drugs and drugs were subsequently found in their vehicle.
Property
When residing in or visiting a property shared with others, you may not be fully aware of the contents in certain areas, especially if you do not have regular access to or use specific parts of the property. This lack of awareness can cause serious issues if police conduct a search and discover illicit items (such as drugs or firearms) in concealed or otherwise inaccessible areas of the property.
Again, relevant case law can assist in determining whether a visitor or occupant is deemed to possess illicit items within a property. In R v Filipetti (1984) 13 A Crim R 335, drugs were discovered in the lounge room of a home occupied by six individuals, each of whom had access to the space. The court concluded that exclusive physical control of the drugs (by one of or all of the occupants) could not be established, and shared control could not be inferred, preventing police from identifying which of the six occupants possessed the drugs.
Generally, police will infer a person’s knowledge or possession of an illicit object within a property in certain circumstances, such as:
- If the person’s personal belongings are near or in the room where the object is found, or
- Presence of the person’s DNA or fingerprints on or close to the object, or
- Visibility or accessibility of the object to the person, or
- References to the object by the person in text messages, phone calls, or recordings from surveillance devices, or
- The person’s actions preceding the object’s discovery, such as if they were caught supplying drugs and drugs were found in the property they were occupying or visiting immediately afterward.
If you or a loved one have been present in a vehicle or property where police discovered illicit items, please reach out to our team for a free consultation.