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CONTROLLED DRUGS AND SUBSTANCES - Constructive possession

Monday, April 29, 2019 @ 10:42 AM  


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Appeal by the accused from conviction for possessing cocaine for the purpose of trafficking. Police were investigating Darren Pittman for trafficking in cocaine. Police observed Pittman acquire a brick of cocaine from another individual. Thereafter, Pittman stopped at a gas station where the accused entered the passenger side. Pittman walked to the rear of the car and opened the trunk. He closed the trunk and got back in the driver’s seat of the car and moved the car behind a parked tractor trailer. Police then proceeded to arrest Pittman. The accused was sitting in the passenger seat. There was a gray plastic shopping bag on the floor in the foot well of that seat containing the brick of cocaine. The accused denied any knowledge of the cocaine. The trial judge found the accused had knowledge of the cocaine, but his reasons did not include a finding that he had control of the drugs. In reaching his conclusion that the accused had actual possession of the cocaine, the trial judge relied on expert evidence in finding that the actions of Pittman were indicative of him trusting the accused to know about the presence of such a large amount of cocaine.

HELD: Appeal allowed. New trial ordered. The trial judge made no specific finding on control, and it was not a logical inference from the evidence. A finding that Pittman trusted the accused to know about the cocaine did not lead to an implied conclusion that the accused had control of the cocaine. Absent a finding of control, the trial judge erred in applying the legal test for possession. This was an error of law sufficient to set aside the conviction.

R. v. Brake, [2019] N.J. No. 115, Newfoundland and Labrador Court of Appeal, B.G. Welsh, C.W. White and F.P. O'Brien JJ.A., April 3, 2019. Digest No. TLD-April292019001