Possession:

From

R v Amanatidis [2001] NSWCCA 400

9 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).

Mogilevsky v R [2010] NSWCCA 92

State of New South Wales v Madden [2024] NSWCA 40

• [126] It is evident from these paragraphs that the primary judge’s conclusions were informed by his adverse credit findings in respect of SC Darnton. More than that, however, it was common ground that it was Mr Turner who, at all material times, was in possession of and carrying the bag. SC Darnton was quick to assert that the bag was the Respondent’s. It was, according to what the Respondent subsequently said, in fact her mother’s but, irrespective of that, it was not a bag which the Respondent had been carrying at the time she was detained or arrested. As such, neither the bag, let alone the knife, was in her custody or possession.
• [127] It is well established that a charge under s 527C(1)(a) of the Crimes Act in respect of a person who “has any thing in his or her custody” refers to that thing being in the person’s custody at the time of the person’s apprehension by police. As Gleeson CJ observed in R v English (1989) 44 A Crim R 273 (R v English) at 280, “at least in relation to the element of custody, the offence retains its historical connotation of being caught red-handed”; see also Cleary v Wilcocks (1946) 63 WN (NSW) 101. The “custody of a knife charge” was made pursuant to the subsequently repealed s 11C(1) of the Summary Offences Act (see now s 93IB of the Crimes Act) which provided that a “person must not, without reasonable excuse (proof of which lies on the person) have in his or her custody a knife in a public place or school”. There is no material difference between the reference to “custody” as between s 11C(1) of the Summary Offences Act and s 527C(1)(a) of the Crimes Act.
• [163] The State accepted in its written submissions that it would have needed to be proven that the Respondent had the intention and ability to exercise control and ownership over the knife to the exclusion of all other people: R v Filippetti (1978) 13 A Crim R 335. The Respondent relied upon the act of possession, as described in Director of Public Prosecutions v Brooks [1974] AC 862 at 866, as being what is to one’s knowledge, physically in one’s custody or under one’s physical control, pointing out that at all material times, the bag containing the knife was in Mr Turner’s possession.