Drugs Being Found in a Common Area is Not Enough to Prove Possession

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By Paul Gregoire and Ugur Nedim

On 22 March 1978, NSW police detective Watson introduced himself to Edward Paul Filippetti and his mother at Port Kembla Courthouse.

The detective explained that he had received information about Mr Filippetti having a large number of “buddha sticks” concealed at his Lake Heights house. Buddha sticks are often made of highly potent Thai cannabis wound on short thin sticks of bamboo.

Detective Watson told Mr Filippetti that he had a warrant to search the house. Filippetti assured the officer there was nothing at his home, and although “it was a bit of a hassle” the police could search the place if they wanted to.

Admissions to small amount

On entering the house, police began searching Filippetti’s bedroom. The suspect took one of the officers aside and said, “Look, this is all I’ve got” and handed the officer a small plastic bag containing four buddha sticks, which he said were for personal use.

Police then told Filippetti he was under arrest.

As the search of the bedroom continued, Mr Filippetti became violent and a small altercation ensued between him and the officers. Police then located a piece of paper with cannabis wrapped in it. Filippetti said this was also for personal use.

Found in the shared space

The search then moved into the lounge room. Filippetti became noticeably agitated, suggesting the officers go out the back and search the shed. Police then asked Filippetti’s mother to get out of the seat where she was sitting.

Officers then found buddha sticks amounting to 800 grams of cannabis under the cushion of the seat. Filippetti said he didn’t “know anything about” the marijuana and accused police of planting it there.

His mother assured her son that the police didn’t plant the drugs, as she’d seen officers find them. She further stated that the drugs didn’t belong to her. She then suggested that her son tell the police about them.

Deemed supply

Mr Filippetti was charged with deemed supply of an indictable amount of a prohibited drug, under sections 21, 45A(1) and 45A(4) of the Poisons and Therapeutic Goods (Poisons) Act 1966.

These sections of the Poisons Act have since been repealed, and similar offences are now contained in the Drug Misuse and Trafficking (DMT) Act 1985.

Under current laws, section 29 of the DMT Act stipulates that if a person is found with more than a traffickable quantity of a prohibited substance in their possession, they can be charged with supply, even if there is no evidence that they were intending to provide the substance to another person.

This is known as deemed supply. The police applied this rule when charging Mr Filippetti, as the weight of cannabis was greater than the traffickable quantity. Today, under schedule 1 of the DMT Act, a traffickable amount of cannabis is 300 grams or more.

A jury ultimately found Mr Filippetti guilty on one count of drug supply. On 21 July 1978, NSW District Court Judge Gee sentenced the defendant to 5 years imprisonment, with a non-parole period of 2 years.

The District Court jury trial

During the trial, the jury heard that six people were living in the three bedroom house at the time of the bust. This included Mr Filippetti, his fiancé, his mother, his younger brother, and another de facto couple, Frank Previati and Judy Gulliver.

How the six people were spread out amongst the three bedrooms of the house was not clearly set out in the evidence, but it was clear that all six had access to the lounge room area and made free use of it.

The court also heard that, after police located the drugs, Filippetti said to one of the officers, “Who put me in?” The officer responded that they’d received a tip off. Filippetti then said, “I would like to find out who the bastard was that put me in.”

Later at the police station, Filippetti apologised to police for suggesting that they’d planted the marijuana at his residence. He went on to remark once again that he’d “like to find out who the bastard was that put” him in.

Judge Gee directed the jury that these comments were capable of being taken as admissions that Filippetti was in possession of the cannabis.

His Honour also directed that the defendant’s attempts to create diversions – including when he disclosed the small amount of cannabis in his bedroom, and when he suggested that officers search the shed – could also be used by the jury as evidence that he was in sole possession of the drugs.

They could have been anybody’s

Mr Filippetti appealed his conviction to the NSW Court of Criminal Appeal (NSWCCA) on the ground that the trial judge had made an error in his directions.

NSW Chief Justice Sir Laurence Street outlined that for the charge to be established, it was necessary for the prosecution to prove beyond reasonable doubt that the cannabis was in Filippetti’s “exclusive physical control.” His Honour found his had not been established, as the buddha sticks were found in the “communal lounge room,” where they were obviously not in his sole custody.

His Honour pointed out that, at one stage during the trial, it was put forth that the Crown’s argument could have been built upon the basis of joint possession. However, this point was never pressed, and the Crown’s case rested upon Filippetti’s physical possession.

“Ultimately, the matter appears to come down to the question of whether the Crown had satisfactorily produced material the jury could regard as negating possession on the part of the other occupants of the house,” Justice Street remarked. His Honour found that this had not occurred.

The Chief Justice added that Filippetti’s protests regarding the identity of the “bastard” who turned him in did not conclusively implicate him in the possession of the cannabis.

His Honour added that there was no other evidence that could be taken in conjunction with these statements which proved beyond a reasonable doubt that he had exclusive control over the drugs.

The appellant walks free

“The inescapable fact is there was not enough evidence to enable the jury to rule out the possibility that these buddha sticks in fact were in possession of one of the other occupants,” his Honour continued. And there was no evidence to show they were in Filippetti’s exclusive control.

On 9 November 1978, NSW Chief Justice Street ruled “that the appeal be allowed and that the conviction be quashed.”

His Honour further stated that there was no need for a retrial, as there was no reason to anticipate that a stronger case could be made at a new trial.

Since the time of the appeal, the Filippetti rule of possession has been cited with approval in numerous cases.

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  1. Nancy McFarlane

    This is the reason of the drug epidemic all our families are experiencing,kids think it’s harmless, that is the theme. Parents know better, unfortunately.

  2. Dan Freimayer

    Filipetti’s case had and has nothing to do with drug pandemic, and even lesser to do, with how children view drugs. It was a personal legal case of a man standing up for something that was legally wrong in his eyes, and could have cost him many years in jail. In his legal battle, against the said, crimes act, he proved his to case and set a new, fair, legal precedent. Since then, 1978, because of Filipetti, many persons and families have been dealt with, in a clear, precise and fair manner relating to the said offence of possession, deemed supply. It’s the men of courage, like Filipetti, that took the ball up in the 1960’s-70’s, and a couple of royal commissions, that finally gave NSW, and even Australia, the fairer and more transparent laws we have today. Remember these men and women with thanks, their work brought changes and precedents to the law. When most said, “don’t worry about it, it’s too hard, it will never change”, the Filipetti’s said, “it’s time for change, and it has to start here and today”. Give thought and thanks to these precedent setters, when their precedents give you a fair and transparent legal outcome. Thank you Eddie.

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