//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2010] NSWCCA 92
appellant. The appeal was allowed. The conviction on the second count was quashed and a verdict of acquittal was entered in respect of that count ([29] and the formal decision).
The appellant's involvement in cleaning and spraying near cannabis plants supported the separate cultivation case, but it did not prove that she knew about the cannabis harvested and stored elsewhere in the house. The Crown's supply case depended on possession, and the Court said possession required knowledge as well as control. It also remained possible that her son, who owned the premises, had exclusive possession of the cannabis in the cupboard. The supply conviction was therefore quashed and an acquittal entered. The cultivation conviction was not under appeal.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,189 words · generated 01/10/2026
In Mogilevsky v R [2010] NSWCCA 92, the New South Wales Court of Criminal Appeal considered an appeal against Gilla Mogilevsky's conviction for deemed supply of cannabis. The judgment was delivered by Latham J, with Fullerton J and Schmidt J agreeing ([1], [30]-[31]). The appeal did not challenge Mogilevsky's separate conviction for cultivating a prohibited plant, and there was no appeal against sentence ([1]).
No linked legislation citations have been extracted yet.
The Crown's cultivation case was conducted on the basis that Mogilevsky participated in a joint criminal enterprise with her three sons to cultivate cannabis at three nearby properties in St Ives. The police found about 1,000 plants across those premises when they executed a search warrant in July 2006 ([2], [10]). The principal direct evidence connecting Mogilevsky to activity at number 80 was surveillance footage from 28 June. The footage showed her vacuuming and cleaning near the plants and spraying them with an unidentified liquid from an atomiser ([3], [9], [14]).
The supply count concerned cannabis found at number 80. Police found 11 heat-sealed bags weighing 4.855 kg in a hallway cupboard, along with about 4 kg of cannabis elsewhere in the house ([11]). The Crown relied on the quantity to invoke deemed supply, but the possession element remained central: the Crown needed to establish that Mogilevsky possessed the cannabis. There was no fingerprint evidence linking her to the bags. Nor was there evidence that she knew about the cannabis in the cupboard. She said she had not looked in the cupboard and had not seen cannabis there ([12], [16]).
The trial advocate's opening described the case variously as a joint criminal enterprise to cultivate and supply and as joint possession of cannabis ([17]-[18]). When the defence made a no-case submission, the trial judge treated the Crown's case as one in which the appellant could be guilty without personal possession or knowledge of the bags, provided she was part of the enterprise and the enterprise included possession of the harvested cannabis ([19]-[24]). Latham J held that approach was wrong for the supply count as it was advanced. The Court allowed the appeal, quashed the conviction on that count and entered a verdict of acquittal ([29]).
The key distinction was between a joint criminal enterprise and joint possession. Latham J said the Crown had used those concepts interchangeably, but “[t]hey were not one and the same thing” ([23]). The distinction mattered because the Crown's position changed in emphasis during the trial. The opening referred to an enterprise to cultivate and supply, and to taking steps in the supply process. By the time of the no-case submission, the Crown's case had been confined to joint possession of cannabis at number 80 ([18], [23]).
For that possession case, knowledge could not be omitted. Latham J relied on R v Amanatidis [2001] NSWCCA 400, which described possession as involving physical control or custody together with knowledge that the thing is in one's control or custody ([26]). The judgment also referred to Jackwitz v R; Franklin v R [2006] NSWCCA 419, which confirmed that knowledge alone is insufficient, and that the Crown must establish physical control and an intention to exercise control ([27]). The court applied those principles to the evidence before it.
The evidence that Mogilevsky had cleaned and sprayed near plants did not establish beyond reasonable doubt that she knew about the harvested cannabis in the cupboard or elsewhere in the house. The judgment noted there was no evidence she knew of the packaging device or the harvested cannabis, which were in rooms other than the main room where she appeared on the footage ([23], [28]). Her participation in the limited activity shown on the footage could not itself prove the knowledge required for the joint-possession case ([5], [28]).
A second evidentiary problem was that the Crown could not exclude the possibility that Uri Mogilevsky, the owner of number 80, had exclusive possession of the cannabis in the cupboard. Latham J noted that he could be taken to have dominion and control over it ([28]). Applying the possession principles, the possibility of another person's exclusive possession mattered because it left the Crown without proof that Mogilevsky had physical control, either alone or jointly.
The trial judge's stated approach was that the Crown did not need to prove knowledge of the bags if it established that Mogilevsky was part of an enterprise that included possession of drugs harvested in the operation ([24]). Latham J described the italicised part of that reasoning as wrong in the circumstances ([25]). The error was not simply that the evidence was circumstantial. It was that the legal character of the case required proof of knowledge and possession, and the evidence did not provide a sufficient basis for the jury to find those elements beyond reasonable doubt.
The judgment presented the relevant possession principles as already established, rather than announcing a new general test. Latham J introduced the authorities as “well-settled” ([25]). Amanatidis supplied the formulation that possession involves physical control or custody plus knowledge. It also explained that control may be shared, but that mere access among a number of people does not establish shared control ([26]). Jackwitz; Franklin confirmed that knowledge of a prohibited substance is not enough, and that physical control and an intention to exercise control must be established ([27]).
The contribution of Mogilevsky is the application of those principles to a trial where the prosecution's theory blurred joint criminal enterprise and joint possession. The judgment makes clear that evidence of participation in one kind of enterprise does not, without more, prove possession for a separate deemed-supply charge. Where the Crown relies on joint possession, it still needs evidence capable of establishing the accused's knowledge of the relevant drugs and control of them, while addressing the possibility of exclusive possession by another person ([23], [28]).
The decision does not set out a comprehensive account of the law governing all joint criminal enterprises or all deemed-supply offences. In particular, it does not decide a case in which an accused's agreement to possess a particular quantity of drugs, and knowledge of those drugs, is proved by different evidence. Latham J stated that if the Crown relied on an enterprise to possess the relevant cannabis, it would need to prove the appellant's participation in an agreement to possess it, which required proof that she knew the cannabis existed at number 80 ([23]). The judgment's holding is tied to the evidence and the way the Crown's case was advanced.
The outcome changed the appellant's position only in relation to the second count. The cultivation conviction remained untouched because it was not appealed ([1]). The Court quashed the supply conviction and entered an acquittal ([29]).
At paragraph 23, Latham J said: “The trial advocate appears to have confused the two concepts and used the terms ‘joint criminal enterprise’ and ‘joint possession’ interchangeably. They were not one and the same thing.” In plain English, proof that a person took part in a broader criminal plan does not automatically prove that the person possessed every item connected with that plan. The prosecution's legal theory must be identified accurately, because each theory has its own elements.
At paragraph 26, the judgment adopted the proposition that possession involves “physical control or custody of the thing plus knowledge that you have it in your control or custody.” Put simply, knowing that drugs exist is not enough by itself, but control without the required knowledge is also insufficient under the stated test. Control can be shared, but the evidence must support actual shared control, not merely the fact that several people could access the place where the drugs were found.
At paragraph 28, Latham J said there was “simply no evidence” that Mogilevsky knew of the cannabis, and that her presence in the main room for about 90 minutes did not justify an inference beyond reasonable doubt that she knew. This passage applies the possession rule to the particular evidence. It does not say that presence at a drug-growing site can never be relevant. It says that, on this record, presence while cleaning near plants did not prove knowledge of the harvested cannabis stored in other parts of the house.
Also at paragraph 28, the Court said the Crown could not rule out exclusive possession by Uri Mogilevsky, who owned number 80. In plain English, the prosecution had not established that the appellant shared control of the cannabis, rather than it being controlled by the owner alone. The judgment therefore identifies both a knowledge gap and a control gap.
Finally, paragraph 29 states the result: the appeal was allowed, the supply conviction quashed and an acquittal entered. This was not an order setting aside the separate cultivation conviction, which was outside the appeal.
The decision is most directly relevant where a prosecution alleges deemed supply based on possession, but the evidence also involves a broader operation in which several people may have participated. It highlights the need to keep distinct the propositions that an accused participated in cultivation, that an accused agreed to a plan involving supply, and that an accused possessed particular drugs found at a particular location ([18], [23]).
It is relevant where the accused is linked to a property or operation through limited conduct, such as cleaning near plants, but the drugs relied on for the supply count are stored elsewhere and there is little or no evidence that the accused knew about them. In Mogilevsky, the footage showed cleaning and spraying near the plants, while the harvested cannabis was found in a cupboard and other rooms; the Court treated that evidentiary separation as important ([11], [23], [28]).
The case also matters where multiple people have access to premises and the prosecution relies on joint possession. Under the principles recited in the judgment, access alone does not establish possession. The Crown must establish physical control and an intention to exercise control, and the possibility that another person had exclusive possession must be addressed ([26]-[28]). The fact that another person owns or controls the premises may be relevant to that inquiry, as it was in this case, but the judgment does not say ownership invariably determines possession.
The precedent does not mean that direct evidence of handling drugs is always necessary. The case concerns whether the evidence in this particular trial could support the necessary inferences. Nor does it establish that a joint criminal enterprise can never support a possession allegation. It says that the Crown must prove the elements of the case actually advanced, and that participation in cultivation cannot substitute for proof of knowledge and possession where the supply count is based on joint possession ([23], [28]).
The supplied judgment is dated 7 May 2010 and discusses earlier authorities, specifically R v Amanatidis and Jackwitz v R; Franklin v R ([26]-[27]). It contains no information about how later courts treated Mogilevsky. On the basis of the supplied text alone, it is not possible to identify later applications, distinctions, approvals or departures from the decision.
For research purposes, the judgment itself indicates the authorities it considered foundational for its possession analysis: Amanatidis for the requirement of physical control or custody together with knowledge, and Jackwitz; Franklin for the related propositions that knowledge alone is insufficient and that physical control and an intention to exercise control must be established ([26]-[27]). Any account of later judicial treatment would require additional judgments not included in the supplied material.
The judgment resolves the appeal on the particular Crown case and evidence, but leaves several matters outside its decision. First, it does not determine the circumstances in which participation in a joint criminal enterprise might support proof of possession where the agreement, the accused's knowledge and the relevant drugs are established by other evidence. It states what the Crown would have needed to prove if its case were an agreement to possess the cannabis, but it does not decide a hypothetical case where that proof exists ([23]).
Second, the judgment does not explain what evidence would have been sufficient to establish shared physical control of the cannabis in this setting. It identifies the absence of evidence of knowledge and the unresolved possibility of Uri's exclusive possession, but does not provide a threshold checklist for other cases ([26]-[28]).
Third, although the prosecution relied on the quantity of cannabis for deemed supply, the judgment's analysis focuses on possession and does not develop the operation of the deeming provision beyond that issue ([17], [23]-[28]). The decision should therefore not be treated, on this text alone, as a comprehensive statement of every element or evidentiary issue arising in a deemed-supply prosecution.
Finally, the material supplied does not show subsequent judicial consideration. Whether later courts have adopted, narrowed or distinguished the reasoning remains an open research question on this source record.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
JUDGMENT OF: Latham J at 1; Fullerton J at 30; Schmidt J at 31
DECISION: 1. The appeal allowed 2. The conviction on the second count quashed and a verdict of acquittal entered in respect of that count
CATCHWORDS: CRIMINAL LAW-Conviction appeal-Supply (deemed) a prohibited drug (cannabis)-Crown confusing concepts of joint criminal enterprise and joint possession-Whether Trial Judge erred in failing to conclude knowledge of drugs essential to joint possession -Whether Trial Judge erred in refusing no case submission and allowing charge to go before Jury
CASES CITED : Jackwitz v R; Franklin v R [2006] NSWCCA 419 R v Amanatidis [2001] NSWCCA 400
PARTIES: Gilla Mogilevsky - Appellant Regina - Crown Respondent
COUNSEL: S Buchen - Appellant M Cinque- Crown Respondent
SOLICITORS: Steve O'Connor (Legal Aid Commission) - Appellant S Kavanagh (Solicitor for Public Prosecutions) - Crown Respondent
IN THE COURT OF CRIMINAL APPEAL 2007/16071
LATHAM J FULLERTON J SCHMIDT J
7 MAY 2010 GILLA MOGILEVSKY v REGINA Judgment 1 LATHAM J : The appellant appeals against her conviction on one charge of supply (deemed) a prohibited drug (cannabis). The appellant was also convicted on one count of cultivate a prohibited plant, but there is no appeal in relation to that offence. There is no appeal against sentence. 2 The Crown case on the cultivate charge was at all times conducted on the basis that the appellant was a participant in a joint criminal enterprise to cultivate approximately 1000 plants, found growing inside three adjacent residential premises at St Ives in July 2006. The other parties to this enterprise were the appellant's three sons, two of whom lived with her in another adjacent property. 3 There was only one piece of direct evidence against the appellant implicating her in the commission of the cultivate offence. That evidence was about 90 minutes of film footage, obtained by the use of a surveillance device in one of the three houses (referred to as number 80), showing the appellant vacuuming and cleaning the floor and the immediate surrounds of the plants, and spraying the plants with an unidentified liquid from an atomiser on 28 June 2006. There was no evidence of the appellant's presence in number 80, or in either of the other two houses where cannabis was growing, prior to that date. The appellant gave evidence during which she sought to cast an innocent explanation on her activities at number 80, namely, that she was conducting a "pranic healing ritual" in an effort to rid her sons of their addiction to cannabis. The jury clearly rejected that explanation. 4 The cannabis the subject of the deemed supply charge was found in 11 bags inside a cupboard in the hallway, loose on the kitchen table and in large plastic tubs and garbage bags in a back room of number 80. There was no evidence capable of demonstrating that the harvested cannabis was the product of the crop that was growing in number 80 as at 28 June 2006. There was no fingerprint or DNA evidence capable of linking the appellant to the bags of cannabis. The appellant made a no-case submission on the supply charge at the close of the Crown case, but was unsuccessful in that regard. The substance of this appeal is that the Judge was wrong to have allowed the case on the supply charge to go to the jury. 5 A good deal of confusion was introduced into the Crown case by the framing of the indictment and by the trial advocate's opening. Both counts were expressed in terms of "knowingly take part in" the relevant offence, between the dates of 22 April and 19 July 2006. In the closing stages of the trial, the charges were amended to refer simply to "cultivate" and "supply". That amendment arose in part out of the no-case submission by the appellant's counsel, but the amendment did not address the fundamental problem with respect to the supply charge. Regardless of whether the appellant was a party to the joint criminal enterprise to cultivate, the supply charge was based on the appellant's possession, jointly with her sons, of the 8.5kg of cannabis found in number 80. Proof of that possession depended upon her knowledge of the cannabis in the house, including the cupboard. That knowledge could not be inferred from the mere fact that the appellant participated in a limited way in the enterprise to cultivate. The Evidence at Trial 6 The appellant leased premises in Cowan Road, St Ives and lived there with her sons Roni and Aitan Mogilevsky. Roni and Aitan were the registered proprietors of the property next door. Roni and his partner were the registered proprietors of a house in Killeaton Street, St Ives and the appellant's third son, Uri, was the registered proprietor of the premises next door to that house. The four houses formed an L-shape near the corner of Cowan Road and Killeaton Street. The backyard of the houses in Cowan Road adjoined the side boundary of Roni's premises in Killeaton Street. 7 The four premises had been the subject of police interest for some months prior to the execution of a search warrant on 18 July 2006. On 23 June 2006 warrants for four integrated listening devices were issued. Two of these devices were installed in number 80 on 27 June 2006. 8 During the period that the houses were under police surveillance, it was noted that the Killeaton Street properties and one of the Cowan Road properties appeared uninhabited, that the electricity to one of the houses had been diverted from the meter box, and that a strong smell of cannabis came from the premises when walking in that vicinity. 9 The appellant's three sons were observed on various dates in May, in and about the premises in Killeaton Street. On 28 June 2006 between 3:30 and 5 pm, Aitan and Roni were captured on the integrated listening device in number 80, opening large bags, working on hydroponic trays and cleaning up. The appellant was also seen in that area for that period of time using an atomiser to spray near the plants, picking up rubbish from the floor, placing it into a clear plastic bag, and vacuuming the floor. 10 When police entered the three uninhabited premises on the morning of 18 July 2006, they found active and sophisticated hydroponic cannabis plantations in each home, which included lighting systems consisting of 600 and 400 watt high intensity discharge lights with timing devices attached. 11 A very strong odour of cannabis emanated from number 80. The windows had been covered with plastic sheeting, and ventilation fans had been installed in the ceilings and in the fireplace. Each bedroom contained hydroponically grown cannabis. There were 11 heat-sealed clear plastic bags of cannabis leaf found in the hallway cupboard which had a total weight of 4.855 kg. A total of approximately 4 kg of cannabis leaf was found elsewhere, including loose cannabis on the kitchen table and a further quantity in large plastic tubs and garbage bags in a back room of the house. A vacuum heat sealer labelled "Foodsaver" was found in a room at the front of number 80, containing 138 plants. 12 A number of items from the four premises were tested for fingerprints. A fingerprint of Uri Mogilevsky was found on a transformer in the Cowan Road house and a fingerprint of Aitan Mogilevsky was found on a transformer and lampshade in a house in Killeaton Street. Otherwise, no fingerprints were identified on any items, including the 11 plastic packages of cannabis from the hallway cupboard of number 80. This result was consistent with the use of disposable gloves, a large quantity of which was found on the lounge room floor of the property in which the appellant lived. 13 In the appellant's bedroom, police found a large locked safe inside a cupboard. When the safe was opened, police found $50,000 in cash, consisting mainly of $100 and $50 notes. The appellant's explanation for the presence of this safe was that one of her sons had placed it there and she knew nothing of the contents. 14 The expert evidence at trial established that the cannabis plants ranged in maturity from seedlings to plants, consistent with an ongoing operation where cuttings are produced to replace the harvested plants. The appellant was observed on the video taken on 28 June 2006 to be using an industrial vacuum cleaner, which was said to be extremely important in maintaining a very clean environment for plants that were susceptible to fungus and pests. 15 The police could not say when the 11 packages of cannabis found in the hallway cupboard were placed there. There was evidence allowing the inference to be drawn that some, if not all, of the cannabis in the bags came from number 80, that evidence being signs of a recent harvest, that is, within the previous month, and empty rooms in those premises. 16 In the course of the appellant's evidence at trial, she maintained that she did not look in the hallway cupboard and did not see cannabis in that cupboard.
The Conduct of the Trial 17 The trial advocate's opening to the jury canvassed the evidence that he anticipated the jury would hear, then embarked upon the following explanation of the Crown case :- So the Crown case in relation to the accused is that she and her three sons were involved in a joint criminal enterprise to cultivate and supply cannabis leaf between 22 April 2006 and 19 July 2006. …………………………………………………………………………… Just going back to the indictment for a moment, it says that the accused did knowingly take part in either the cultivation or the supply of prohibited drug, which is cannabis. ………… "take part in" is defined in a certain Act of Parliament. … A person takes part in the cultivation or supply of a prohibited drug if a person takes or participates in any step or causes any step to be taken in the process of cultivation or supply, because we've got count one which is cultivation, count two is supply, a person who provides or arranges finance for any such step in that process, a person who provides the premises in which any such step when that process is taken or suffers or permits any such step in the process to be taken in the premises of which the person is the owner, lessee or occupier. In this case, as I have already said, she is the lessee, the accused. …………………………………………………………………………. In relation to supply the Crown has to prove the accused supplied the prohibited drug. …… Supply includes sell, distribution. It also includes agreeing to supply, offering supply or keeping or having something in possession for supply. So here in this case in relation to count two there will be no evidence whatsoever called about anybody seeing the accused supplying, there will be none of that. There will be no evidence about seeing the accused's sons supplying this cannabis leaf to anyone because the Crown would be relying on the fact that the accused and her sons had this drug in possession for supply. It was ready to go. It was packaged, ready to go. There is also an extended definition of supply, which includes something called deemed supply. If the Crown can prove that the accused had in possession more than the trafficable quantity, which is 300 g, the law presumes certain things that you have that drug in possession for the purpose of supply. So the Crown is relying on that also, because in this case, as I have already told you, the Crown says that on this particular day at number 80 Killeaton St over 8.5 kg of cannabis leaf was found in those premises. So the Crown is relying on joint criminal enterprise between the accused and three sons. So the Crown says it's all these - so it's joint ownership. 18 The above passages disclose a number of bases upon which the jury were invited to find the appellant guilty of the supply charge. On the one hand, the Crown seemed to be alleging a joint criminal enterprise to supply the cannabis leaf that was cultivated and harvested between 22 April and 19 July 2006. On one view of the opening, the appellant was guilty of supply if she took any step in the process of supply. On another view, the Crown was relying upon joint possession of the cannabis in number 80 and the deeming provision.
19 At the close of the Crown case, the appellant's counsel submitted that the supply charge in the indictment was badly framed, because it was clear that the Crown case was one of deemed possession and logically one could not "knowingly take part in possession". The trial judge responded by suggesting that the charge be amended to one of supply simpliciter, an invitation which the trial advocate took up, over the objection of the appellant's counsel. Following the amendment, the appellant's counsel made a further submission that there was no evidence capable of allowing the jury to conclude beyond reasonable doubt that between the relevant dates the appellant was in possession of 8.5 kg of cannabis, in the absence of evidence that the cannabis was there on 28 June 2006. 20 There followed an extensive discussion between the trial judge, the appellant's counsel and the trial advocate on the subject of possession. The essence of the appellant's counsel's submission on this point was that, to the extent that the Crown was relying upon joint possession, the Crown must eliminate as a rational possibility that the appellant's sons were not individually or collectively in possession of the cannabis, to the exclusion of the appellant. In particular, it was submitted that the Crown was required to exclude sole possession in Uri Mogilevsky, the owner of number 80, who visited the premises a number of times, and who was the only person who was seen to have produced a key to the property in order to gain access. 21 At one point in the course of this discussion, the trial judge said :- What concerns me, whilst there is clear evidence she was part of a cultivation agreement, it is not clear to me that those drugs in that bag were there on the day that she was there. It is not clear to me that they weren't brought there subsequently by one of her sons, maybe as part of this. It's quite possible, I suppose, that they're part of what is cultivated. 22 The trial advocate submitted in response to this comment that there was ample evidence allowing the jury to infer that the cannabis found on 18 July "came from the crop site". The trial advocate referred to the packaging device and the loose quantities of cannabis in other rooms of number 80, together with evidence from the integrated listening device that one of her sons was in the premises four days before the execution of the search warrant. Once again, the trial advocate stressed that "the Crown case is based on joint criminal enterprise". 23 The difficulty with this latter submission is that the trial advocate opened on a joint criminal enterprise to supply the cannabis harvested from all three premises, but by the time of the no-case submission, the Crown case had been confined to joint possession of the cannabis in number 80. The trial advocate appears to have confused the two concepts and used the terms "joint criminal enterprise" and "joint possession" interchangeably. They were not one and the same thing. In any case, if it was the former, the Crown was required to prove the appellant's participation in an agreement between the appellant and her sons to possess the relevant quantity of cannabis, which in turn required proof that the appellant knew of the existence of the cannabis in number 80. If it was the latter, the Crown was still required to prove that the appellant knew the cannabis was in number 80 in the relevant quantity. There was no evidence that the appellant knew of the existence of the packaging device or of the harvested cannabis, all of which were located in rooms other than the main room of the house, where she was depicted spraying and cleaning. 24 The trial judge seems to have embraced the trial advocate's submission with respect to joint criminal enterprise. In the course of delivering reasons for refusing to take count two from the jury, the trial judge said :- At the conclusion of the Crown case, … counsel for the accused submitted I should take the second count from the jury because there is no prima facie case that the accused possessed any cannabis and hence no evidence that she supplied any cannabis. The Crown case is based on a joint criminal enterprise between the accused and her sons to cultivate cannabis and to supply it. The supply charge was based on a contention that there was evidence that those in the joint criminal enterprise possessed the cannabis for the purpose of the enterprise and it was not less in weight than the amount prescribed in the indictable quantity of cannabis. [The trial judge then related the evidence] The prosecutor pointed out that the video of the events of 18 (sic) June showed some stems of plants on the floor, some bags were on the floor and that was a reasonable inference that cannabis and the bag found on the day the search warrant was executed came from cannabis which had hydroponically grown on those premises. Furthermore, on the Crown case the entire operation involves growing, harvesting, bagging and selling. The arrest of the accused and her sons prevented the selling of what had been bagged. The entire scheme was a joint criminal enterprise and the evidence showed she was part of it. I agree with this submission. Certainly it is true the prosecution has put to the jury that the supply charge is based on possession of the drugs in an amount greater than the indictable quantity. It does not have to prove that she had personal possession at all, but it must establish she is part of a joint criminal enterprise described above. In my opinion it does not have to prove she had knowledge of the bag of drugs in order to prove she is guilty. It must establish that she was part of a joint criminal enterprise and that enterprise included in it possession of drugs harvested in its operations. (italics not in original) 25 According to well-settled authority, the italicised part of these reasons is wrong in the circumstances of this case. 26 In R v Amanatidis [2001] NSWCCA 400, Giles JA, with whom Adams J agreed, said :- Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody ( He Kaw The v The Queen (1985) 157 CLR 523 at 537-9, 546, 585-7, 599-600). The physical control or custody may be shared, but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared ( R v Dib (1991) 52 A Crim R 64 at 66-7). It is not enough, however that you are one of a number of persons with access to the thing to the exclusion of other persons - that does not constitute your physical control or custody of the thing or physical control or custody shared with the others of the number of persons. So in R v Filipetti (1984) 13 A Crim R 335 finding drugs in the lounge room of a house occupied by six persons, to which all six had access, did not establish physical control or custody of the drugs by one of the occupants, because any physical control or custody of the one occupant was not to the exclusion of the other occupants and shared physical control or custody could not be inferred; see also R v Bazeley (CCA, 23 March 1989, unreported) and R v Sobolewski (CCA, 21 April 1998, unreported).
27 Simpson J (Barr and Hoeben JJ agreeing) in Jackwitz v R; Franklin v R [2006] NSWCCA 419 confirmed these "unremarkable propositions" at [34] :- Reliance was placed on her behalf on R v Amanatidis [2001] NSWCCA 400; R v GNN [2000] SASC 447; and R v Filippetti (1984) 13 A Crim R 335. It may be accepted that, emerging from these authorities, knowledge of the presence of a prohibited substance is not sufficient to establish possession; the Crown must establish that the prohibited substance is not in the exclusive possession of another person; and must establish physical control and an intention to exercise control over it. 28 In my view, the appellant's counsel's no-case submission had merit. One could be justifiably suspicious about the appellant's actual knowledge of the quantity of harvested cannabis in number 80, but the Crown firmly nailed its colours to the mast and based its case on joint possession on the 11 bags inside the cupboard, among other amounts scattered throughout the house. There was simply no evidence that the appellant knew of the existence of that cannabis, nor could her presence in the main room of the house for 90 minutes on one occasion justify an inference beyond reasonable doubt that she knew. The Crown was also unable to rule out exclusive possession of the cannabis in Uri Mogilevsky, who, as the owner of the premises, could be taken to have dominion and control over the cannabis in the cupboard. 29 The appeal ought be allowed, the conviction on the second count quashed and a verdict of acquittal entered in respect of that count. 30 FULLERTON J : I agree with Latham J. 31 SCHMIDT J : I agree with Latham J. **********
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Mogilevsky
R
The appeal was allowed. The conviction on the second count was quashed and a verdict of acquittal was entered in respect of that count ([29] and the formal decision).