State of Western Australia : State Director of Public Prosecutions

Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82

Chamberlain v The Queen (No 2) [1983] HCA 39; (1984) 153 CLR 52

CJ v The State of Western Australia [2009] WASCA 42

Hutchins v The State of Western Australia [2006] WASCA 258

Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55

Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367

Martinez v The State of Western Australia [2007] WASCA 143

Maxwell v The Queen [1996] HCA 46; (1995) 184 CLR 501 at 510; [1996] HCA 46; 87 A Crim R 180

Noto v The State of Western Australia [2006] WASCA 278

Peacock v The King (1911) 13 CLR 661

Perna v Police [2007] SASC 306; (2007) 174 A Crim R 68

Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

The State of Western Australia v "R" [2007] WASCA 42

1 The offender has pleaded guilty to possession of heroin with intent to sell or supply. He says that he was in possession of 196 grams of heroin; the State says that he was in possession of 841 grams of heroin.

2 It is accepted that a plea of guilty is an admission of no more than the essential elements of the offence to which the plea relates: Maxwell v The Queen [1996] HCA 46; (1995) 184 CLR 501 at 510; [1996] HCA 46; 87 A Crim R 180.

3 The quantity of a drug in the offender's possession is not an element of the offence but is relevant to an evaluation of the gravity of the offence: Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55 per Anderson J at [67] and Steytler J at [110].

4 The quantity of the drug is only one of a number of factors to consider in sentencing however, I would impose a higher sentence for possession of 841 grams than for possession of 196 grams because the increased quantity of the drug increases the culpability of the offender. It is therefore an aggravating factor within the Sentencing Act and, accordingly, the prosecution must establish beyond reasonable doubt that the offender was in possession of the amount that they allege. (Marker v The Queen)

An overview of the offence and a brief history of the matter

5 On 19 April 2007 the offender, his young son and brother, Flavius Sabau, were observed by police officers near the Yellagonga National Park in Kingsley. He had been driven there in his brother's vehicle, which was parked slightly off the road, and all three proceeded into the National Park. A few minutes later they returned to the vehicle and drove away.

6 Police officers searched the area and located one container with a blue lid and one with a black lid. The area was kept under surveillance.

7 On 20 April 2007 at approximately 6.20 pm the offender returned to the National Park and walked into the bushland. A number of TRG officers were hidden in the tall reeds. They observed the offender walk towards the area under surveillance and bend down and one officer (Surveillance Operator 17, B43-46) heard the distinct noise of an airtight container snap open and a few seconds later heard it closing. The offender stood up and went to walk away. He was apprehended by police. Operator 17 noticed he had a mobile phone in his left hand and threw, from his right hand, a small plastic wrapped package. It is not disputed that package contained 28 grams of heroin.

8 After his apprehension the police recovered the two containers. The blue lidded one contained approximately 12 one ounce packages of heroin (363 grams), wrapped in brown plastic packing tape. It also contained a similarly wrapped package of 10.1 grams of cocaine.

9 In the black lidded container were 17 packages; 16 each contained approximately 1 ounce of heroin wrapped in brown plastic packing tape and one similarly wrapped package contained approx. 3.42 grams of heroin (450 grams).

10 The police located the package thrown into the reeds which, as I have said, weighed 28 grams.

11 The total weight of heroin located was 841 grams. The total weight of the cocaine was 10.1 grams.

12 The accused man was charged with possession of heroin with intent to sell or supply it to another. Flavius was charged with the same offence 10 months later (B3.1-3.3). That count related to the heroin in the black and blue lidded containers and thrown by the offender into the bushes. Further, both men were charged with possession of cocaine with intent to sell or supply to another relating to the 10.1 grams of cocaine in the blue lidded container.

13 The indictment did not specify the weight alleged in each count.

14 On 11 June 2008 the offender pleaded guilty to both counts before another judge and upon the State's application was remanded through to 4 July 2008 for sentencing that being the last day of the trial then set for Flavius. For various reasons that trial was adjourned, ultimately proceeding in September 2008 and resulted in Flavius being acquitted of both charges.

15 On 21 October 2008 the offender appeared for sentencing. The State outlined the material facts, which were broadly those outlined in the preceding passages; defence counsel told the court the offender's plea was proffered on the basis that he was in possession of only 7 ounces of heroin (196 grams) and 10.1 grams of cocaine. The State did not accept that submission and the matter was adjourned to a trial of the issue heard by me on 26 February 2009.

16 The State's position is that the accused man was in possession of all the heroin located in the park (841 grams). The offender's position is that he was in possession of only 196 grams (being part only of the contents of the blue lidded container).

17 There is no dispute relating to count 2 (the 10.1 grams of cocaine).

18 In summary, Mr Levy's position was that his client did not have any knowledge of the drugs prior to 19 April 2007 and was not aware, before being collected by his brother on that date, that he was going to be taken to the National Park and although he was observed in the park on 19 April he was not observed in the precise area where the containers were located or in physical possession of them.

19 He said that his client attended on 20 April 2007, at the request of his brother, to collect an ounce of heroin for delivery to another person. This was the ounce that was thrown into the bush. He accepted his client owned six other ounces of heroin in the blue lidded container and the 10.2 gram package of cocaine but said that his authority to collect related to only 7 ounces of heroin and therefore that was all he possessed. He further stated that the drugs his client admitted possessing were sourced by Flavius (T6, 7, 39) and had not been placed in the containers by his client.

20 Mr Levy SC contended that the containers were not located next to each other and says it would not have been obvious to a person attending on one container that the other was in close proximity.

21 He pointed to the absence of any DNA profile of the offender on either the black lidded container or its contents and said that the DNA on much of the brown tape on the packages within it was consistent with Flavius. Further, he said the DNA evidence excluded his client from being involved with much of the packaging in that container. He said that the black lidded container, which was a Tupperware container, was consistent with being part of a six piece mixed pantry set of Tupperware containers and four items consistent with belonging to such a set were located at Flavius Sabau's residence. (Gardiner B315-316, Blaine 79, Exhibit log B 117.)

22 His position was that the State could not establish beyond reasonable doubt that the accused was in possession of either the black lidded container or more than 196 grams of heroin in the blue lidded container or in a joint criminal enterprise with his brother to possess with intent to sell or supply all of the drugs located in the National Park.

23 The offender elected not to give evidence. If an assertion made by the offender in mitigation is controverted by the prosecution it is necessary for the offender to call evidence on the issue. In the absence of that assertion being controverted by the prosecution or notice from the Judge that he is not prepared to act on that uncontroverted assertion the court is required to act on the correctness of that assertion (Hutchins v The State of Western Australia [2006] WASCA 258 at [25]; CJ v The State of Western Australia [2009] WASCA 42 at [4]). The only assertions that I treat as uncontroverted by the prosecution are those to the effect that the heroin admittedly possessed by the offender was sourced by Flavius and the latter was known by the offender to be in possession of additional heroin (T7, 11). The other assertions made are challenged and unsupported by evidence from the offender and not considered by me.

24 The State submitted that the only reasonable inference to be drawn from all of the proven circumstances was that the offender was part of a joint criminal enterprise with Flavius, to possess with intent to sell or supply all of the drugs located in the park.

25 The State relied on the following circumstances:

1. The offender being observed in the park on 19 April 2007 with Flavius. The State accepted that they were not observed at the precise location where the drugs were found, rather in the general location, and they also accepted there was no evidence of direct contact between the offender and the containers on that date.
2. The offender being the only person seen in the area by the police carrying out the surveillance from 19 April to 20 April (SO16, 30, 27, 16) and on the latter date the offender attended the location and accessing one of the containers by taking heroin from it.
3. The blue lidded container being found directly in front of the black lidded container. The State referred to Surveillance Operative 91's statement to the effect that he located the blue lidded container in a clump of reeds behind a paperbark tree at 10.35 am and at 1 pm whilst looking to the rear of that area located a brown lidded container (SO B13-15, par 11 and 14). This statement relates to the discovery of the containers on 19 April. There is no direct evidence that the police placed these containers back in the precise position where they were found, however the only reasonable inference to be drawn is that they did as it is clear that they intended to keep the area under observation. Evidence as to the location of the container on 20 April is provided by the statement of Adrian John Barker (B53-58, par 14; 20 -21) to the effect that at approximately 8.12 a container with a black lid was located when officers were searching behind the "V" of a paperbark tree. It was secreted in the reeds and also located behind the trunk of the tree was a container with a blue lid which was also secreted in the reeds. The best evidence is the scene DVD (Exhibit 1) which shows the containers being located by police.
4. The strikingly similar method of packaging the contents of the two containers. There were a total of 30 packages of heroin located. 29 contained approximately 28 grams and one contained 3.4 grams. All packets, except one, was wrapped in essentially the same way, that is, wrapped in one or two lunch bags then covered in brown masking tape.
5. The presence of DNA consistent with the offenders being located on the blue lidded container and items within it and DNA consistent with Flavius being located on items within the black lidded container (four pieces of packing tape, one lunch bag and the outer surface of the lid of the container), the blue lidded container (one piece of packing tape inside it) and on the packing tape around the heroin thrown by the offender into the reeds. (Exhibit 2)
6. The lies told by the offender at the time of his apprehension. He lied to the police by telling them that he came to the National Park to relieve himself (Exhibit 1, T6, 7, 12), and that he didn't know anything about the drugs in the containers (Exhibit 1, T8 and 9) and the last time he had visited the National Park was just before the weekend (Exhibit 1, T13) and he'd not thrown any items into the reeds (Exhibit 1, T21 and 26).

26 The State advised that they were not relying on:

(a) the lies told by the accused on Exhibit 1 as evidence of consciousness of guilt;

(b) the contents of any of the telephone or SMS intercepts contained within the brief;

(c) the fact that the black lidded container was consistent with having come from a mixed modular pantry set and there being located, during the police search of the offender's residence, Tupperware containers also consistent with having come from a mixed modular pantry set. (Cotton B106-108, Exhibit log B114)

27 Each of these concessions was, in my opinion, correctly made. As the State accepts, the lies told by the offender could only relate to his credibility if he gave evidence. I have independently examined the transcripts of the telephone and SMS intercepts (B136-167). There is nothing to identify whether the offender is the party described as "1" or "2" in the calls or SMSs nor anything within the conversations that can be said to relate to drug transactions or the items located in the bush. The State fairly indicated the Tupperware containers located at the offenders residence had certain markings which were not found on the black lidded Tupperware container.

28 In reaching my findings of fact I have considered the following:

1. The statement of facts outlined by Mr Rafferty on 21 October 2008. These facts were accepted by the offender.
2. The prosecutorial brief which consists of pp 1 - 345 and pp 662 - 700 and videos served on the offender. (Two of the videos relate to the apprehension of the offender at the scene and are the same as Exhibit 1, the third video is of the search of the offender's vehicle.)
3. The scene DVD (Exhibit 1) which includes an interview with the offender. Although I have been provided with a transcript, the primary evidence is the DVD; the transcript is simply an aide-memoire.
4. A four page document headed State of Western Australia - Flavius Sabau which is a summary of DNA results. (Exhibit 2)
5. Submissions made by counsel on the 21 October 08 and 26 February 09.

29 Although I was the trial Judge at the trial of Mr Flavius Sabau I have not considered the transcript of that trial.

1. On 19 April 2007, the offender, his young child, and brother Flavius went to the Yellagonga National Park in Flavius' vehicle. All three walked into the bushland. Whilst in the bushland they were in the general vicinity, but not the precise area, where the drugs were located. They were not seen to handle or be in contact with the containers locating the drugs. (Undisputed) I find that they were present for approximately 10 minutes (SO87 B8-9).
2. At approximately 6.20 pm on 20 April the offender entered the bushland, opened one of the containers, removed one package containing approximately 28 grams of heroin and when apprehended by the police, seconds later, threw that into the reeds. (Undisputed)
3. The offender was the only person seen at that location during the period of police surveillance from approximately 3 pm on 19 April to 6.25 pm on 20 April. (SO16, 20, 27, 30)
4. The blue lidded container had within it 363 grams of heroin and 10.2 grams of cocaine. The black lidded container had within it 450 grams of heroin. The package thrown into the reeds contained 28 grams of heroin. Almost all packages within, or which had been within the containers (30 out of 31) contained similar drugs (heroin) and similar (29 out of 31) quantities of the drug (approximately 1 ounce lots). (Undisputed).
5. All packages were of a similar nature, that is, wrapped in plastic lunch/freezer bags and further wrapped in brown masking tape. (Undisputed).
6. DNA evidence (Exhibit 2) establishes a connection between the offender and the blue lidded container in that a DNA profile consistent with his DNA profile was located on:
   • The outer surface of the lid.
   • A corner of a freezer bag within which drugs were contained.
   • A plastic lunch bag.
   • A grey shopping bag in which six packages of heroin were located.

It is a reasonable possibility that this DNA profile was on these items as a result of him accessing the blue lidded container to obtain the package of heroin later thrown by him into the reeds.

1. The DNA analysis positively excludes the offender as being a contributor to the DNA samples found on six pieces of packing tape and four lunch bags located in the black lidded container and from the DNA profile found on the inner surface of the black lid (Exhibit 2).
2. There is no DNA link between the offender and the black lidded container. I attach no weight to this absence of DNA. The presence of the DNA of an offender on an item is relevant. The absence of DNA does not establish that he the offender has not had contact with those items. (Egan B271-294 at 294)
3. The offender told several lies to the police officers during the course of his apprehension (Exhibit 1). These lies could only relate to his credit if he gave evidence.
4. The two containers were located within approximately one metre of each other. I base this finding on my viewing of Exhibit 1 which shows the police officers recovering the items on 20 April. The relevant portion commences at 2.14:47 and concludes at 21.22:33. I have watched and re-watched the DVD. It shows a forked tree with a large amount of reeds both in front and behind it. The black lidded container and the blue lidded container are shown in situ. I accept that they are well secreted and they are certainly not side by side. They are in close proximity to each other being, in my estimation, within a metre (21.21:35 - 21.22:35). However, it must be remembered that they are shown close up in situ and the viewer is seeing the position after the police had cleared the reeds. Viewing the DVD just before they are recovered reveals the thickness of the vegetation.
5. It would have been possible to access one of the containers without seeing the other container.
6. The DNA evidence (Exhibit 2) establishes a connection between the DNA profile of Flavius Sabau and the DNA profile recovered from items within the black lidded container, being-
   • four pieces of brown packing tape surrounding packages of heroin;
   • one lunch bag containing a package wrapped in brown packing tape;
   • the outer surface of the container; and

• a piece of brown packing tape wrapped around a package of heroin;

• the brown packing tape wrapped around the parcel of heroin that was thrown into the reeds by the offender.

1. The offender is the brother of Flavius.
2. The drugs admittedly possessed by the offender were obtained by Flavius and he knew Flavius was in possession of additional heroin. (T7, 11, 39). This is the assertion of the offender (T6,7, 39) and is not controverted by the State. (I hasten to add that this assertion was not available to the jury who sat in judgement of Flavius.)
3. The offender is a person prepared to deal in drugs.

31 The State says that the offender and his brother were involved in a joint criminal enterprise to possess all the drugs with intent to sell or supply.

32 I need to be satisfied beyond reasonable doubt that Marius and Flavius Sabau were involved in that joint criminal enterprise and satisfied that the drugs in both the black and blue lidded containers were part of that joint criminal enterprise. If so satisfied then any acts of Flavius, if done in the pursuance and furtherance of the joint criminal enterprise, would be considered to be the acts of Marius.

33 This necessarily involves a consideration of whether the evidence is sufficient to establish the offender was involved in a joint criminal enterprise with Flavius Sabau.

34 A jury acquitted Flavius Sabau of the two charges.

35 The consideration of whether there was a joint criminal enterprise does not involve going behind the jury verdict. The jury that acquitted Flavius considered all the evidence given at that trial (which lasted seven days) which including the calling of expert witnesses by the defence and Flavius' own evidence. That jury did not have the benefit of the assertions made by the offender's counsel detailing, for the first time, Flavius' role.

36 In consideration whether or not the evidence establishes that Marius was in a joint criminal enterprise with Flavius I am confined to considering materials 1-5 referred to in "materials I have considered" at pp 9-10 and not the evidence given in Flavius' trial.

Proof of guilt based on inferences drawn from circumstantial evidence

37 The facts which I have found proved have been stated by me. The State says that after considering all of these facts the only inference that I can draw is that the accused was involved in a joint criminal enterprise with his brother in relation to all of the drugs located at the park.

38 When considering circumstantial evidence one circumstance should not be rejected because considering alone no inference of guilt can be drawn from it (Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 per Gibbs, Mason at 535). All of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence (R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46] per Gummow, Hayne, Crennan JJ; Martinez v The State of Western Australia [2007] WASCA 143 at [190]).

39 It is necessary not only that such an inference be a rational inference but the only rational inference that the circumstances enable me to draw (Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252). The circumstances must bear no other reasonable explanation. This means that, according to the common cause of human affairs the degree of probability that the occurrence of facts proved be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed (Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 per Dixon J).

40 A reasonable doubt will arise where any inference consistent with innocence is reasonably open on the evidence Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579; [1990] HCA 56; 51 A Crim R 181 at 184 - 185).

41 A [court] cannot engage in groundless speculation but it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove facts that would tend to support such an inference. The question is whether or not on the whole of the evidence it is susceptible to a reasonable explanation other than the accused committed the crime charged (Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 105 per Gibbs, Stephen, Mason JJ).

42 The bare possibility of innocence is not sufficient to prevent a finding of guilt if the inference of guilt is the only inference open to reasonable men upon the consideration of all the facts in evidence (Peacock v The King (1911) 13 CLR 661; Barca v The Queen (supra) at 104).

43 In considering this issue I expressly adopt the findings of fact 1 - 8 and 10 - 15 referred to above.

44 I have considered further material in the brief including surveillance evidence to the effect that Flavius' vehicle with its three occupants was observed, after leaving the park on 19 April, travelling to the Osborne Park Hotel. All three occupants then went to a tattoo studio with the offender carrying paperwork (SO99); all were seen leaving the tattoo studio at approximately 10.20 am and the offender was no longer carrying the paperwork (SO99). The vehicle and its occupants then travelled to the Northlands Shopping Centre where at 10.30 am the offender and his brother are seen in the hairdressers. At 11.24 am all are seen to re-enter the vehicle and leave the shopping centre and the vehicle was later seen arriving at the offender's address and Flavius' residence. (SO99, 112, 109, 87)

45 In addition, on 20 April at 4.45 pm, the offender and his brother left the Whitfords Shopping Centre (SO93) where they had been seen working together at a Telechoice kiosk. The offender is shortly after seen arriving at business premises in Wangara and speaking to a male at that address. Subsequently a vehicle arrives and the driver of the vehicle, the offender and the person with whom he had been talking go to the boot of the vehicle and obtain two white plastic bags. All then go to the entrance of the premises. The male with whom the offender had been talking to exits from the rear of those premises on two occasions and goes to a white truck and later the offender comes out of the premises with another male and is seen near the other vehicle, then re-enters the premises and later leaves and travels to the Yellagonga National Park where he is apprehended. (S093, 90, 117, 70, 95, 120)

46 I have also considered the telephone intercept and SMS material (B136-167) and the items seized as a result of searches on the premises of the offender, his car, his brother and their workplace (B113-135).

47 All of that evidence takes the matter no further. It does not lead me to make any further relevant finding of facts.

48 The fact that the offender is seen with Flavius in the park on 19 April in close proximity to where the drugs were ultimately found and the next day attends the park and takes one of the containers into his possession, taken together with the other facts I have found proven establishes beyond reasonable doubt that he and Flavius were involved in a joint criminal enterprise in relation to the blue lidded container. The fact the offender was engaged in the drug trade with his brother is relevant because it establishes that he is the type of person who is prepared to deal in drugs and is to be considered when considering the question of whether the joint criminal enterprise as alleged by the State is established Noto v The State of Western Australia [2006] WASCA 278.

49 After considering all of the materials I am not satisfied beyond reasonable doubt that the offender was in a joint enterprise to possess the contents of both containers. I accept that the proven facts arouse suspicion, even strong suspicion, however what is required is proof beyond reasonable doubt.

50 The only inference reasonably available is not that the two were involved in the alleged joint criminal enterprise. Other inferences, including that the offender had knowledge of only one container are open. Although, as I have said, strong suspicion is aroused I am not satisfied beyond reasonable doubt that the two brothers were involved in a joint criminal enterprise in relation to all of the heroin located in the two separate containers.

51 That, however, does not end the consideration of these matters.

52 As far as the blue container is concerned the offender knew that it contained drugs, he clearly physically possessed the container by opening it, removing one package and replacing it in the reeds. It is submitted to me, that he only had the intention to exercise control or custody over 6 ounces of heroin and the 1 ounce of cocaine that he "owned" (T6) and the ounce he was collecting at his brothers request. He is therefore said to be in possession of only that amount and not the whole contents of the blue container. I reject this contention.

53 As a matter of law possession involves three elements. Each must be proven beyond reasonable doubt. There must be knowledge by the offender of the drugs, custody or control of the drugs and intent to have custody and control of the drugs. Possession means to knowingly have control or custody of the drugs with intent to possess those drugs. Mere knowledge of the presence of drugs by itself doesn't suffice. As to possession generally see The State of Western Australia v "R" [2007] WASCA 42 and cases referred to therein.

54 As to the question of knowledge an offender does not have to know the type or weight of the drug but he cannot be in possession of something unless he has knowledge of it. It is not sufficient for the State to prove that the offender suspects that it is a prohibited drug; he must have knowledge of its existence. Knowledge means actual knowledge or proof of a belief by the offender in the likelihood, in the sense that there was a significant or real chance, that the item in his physical possession or otherwise in his control or under his dominion was a prohibited drug (The State of Western Australia v "R" (supra) at [66]; [2007] WASCA 42; (2007) 33 WAR 483).

55 The second element of possession is that the offender has to have the drugs in his actual physical custody, or have control or dominion in the sense that it can be said he is exercising control or dominion over the drugs in question to the exclusion of persons other than those who he is jointly acting with. If an offender has control over something he doesn't physically have to have the item with him for it to be said to be in his custody or control. Possession can include a person hiding, or being a party to hiding, an item for the purpose of taking it into their physical custody when they wish and hiding it where others are unlikely to find it except by accident.

56 A person can be in possession of drugs even though they are in a place which others have or can access. Drugs can be in a person's possession if they have the ability to access them and it is unlikely as a matter of fact that any third party would interfere with the drug because, for example, it is unlikely that the third party would find them (Perna v Police (2007) 174 A Crim R 68; [2007] SASC 306).

57 The third element of possession is that there must be established an intent to exercise control or dominion over the drug. If satisfied beyond reasonable doubt the offender has knowledge that the substance is a prohibited drug and has physical custody or control that does permit the inference that the accused has an intention to exercise control over the drug (Davis v The Queen (1990) 5 WAR269 at 279; The State of Western Australia v "R" at [66]; [2007] WASCA 42; (2007) 33 WAR 483 at [210]).

58 The offender went to the blue lidded container because it contained drugs. He possessed the container by locating and opening it. His intention was clearly to exercise custody and control over it. He removed one package (which was later thrown into the reeds). As to the remaining packages he intended to, and did exercise, custody and control over them. He replaced the container in a location where he and others with knowledge of its contents and location could access it when they considered it opportune. It does not matter that he did not know the exact number of packages or amount of heroin in the container. I find as a matter of law that he was in possession of the entire contents of the blue lidded container.

59 As to the black lidded container, there is no direct evidence establishing that the offender knew of its existence or that there were drugs in it. He was not seen touching or handling that container. There is nothing directly connecting him with the packaging or the contents. There is no DNA or other forensic link with that container or its contents.

60 The drugs in both containers were for all intents and purposes the same substance and weight and packaged in the same way. There is no evidence to implicate the offender in packaging the contents of the black container. The police searched his residence and his place of work. They carried out forensic examinations of the items seized. There is no telephonic or surveillance evidence linking the offender to that container.

61 Establishing that the offender accessed one container does not establish that he packaged the contents of that container or accessed the other container or was aware of its contents.

62 I have found as a fact that the two containers were located within approximately a metre of each other in heavy reeds. The fact that the offender has accessed one container in close proximity to another does not lead me to infer that he knew of the existence of the other. It is not the only reasonable inference to be drawn from the proven facts.

63 The offender submitted through his counsel that he "is not being so cute to say that he had no idea of the other drugs and that someone else was going to sell and supply it" (T11) nor that it was not being submitted that he was naïve to the fact that his brother was going to be in possession of additional heroin (T7).

64 When placed in their proper context these submissions relate, in my opinion, to the contents of the blue container. Even if they are not so confined, the belief by an offender in the likelihood in the sense that there is a significant or real chance that drugs, in addition to the drugs that he possessed, are in the immediate vicinity is not sufficient to establish possession by him of those additional drugs. The offender must have physical possession or otherwise be in control or have under his dominion the prohibited drugs and have the intent to possess those drugs before he can be said to be in possession of them (The State of Western Australia v "R" at [67]).

65 After considering all of the proven facts and inferences to be drawn from them I am not satisfied beyond reasonable doubt that the offender had actual physical custody of either the drugs in the black lidded container or the container itself or control or dominion of that container or the drugs or intent to exercise control or dominion over the rugs nor as I have previously stated am I satisfied that he was a party to a joint criminal enterprise with Flavius to possess all of the drugs in the park.

66 It is not an unreasonable inference from all the proven facts that he only knew of one container. It is a reasonable possibility that his knowledge was confined to only one container. This conclusion does not depend on my accepting any disputed assertion of the offender but rather on an analysis of the facts I have found proven.

67 The appropriate basis to sentence this offender is that he was in possession of the 363 grams of heroin located in the blue lidded container together with the 28 grams of heroin which he had thrown into the reeds (in total 391 grams) and 10.2 grams of cocaine. That is the basis upon which I shall sentence.