Possession

For possession in relation to drugs, see the definition of possession under Supply of Prohibited Drug and Deemed Supply at [5-1800].

[3-700] Suggested direction

A dictionary would tell you that to possess something means to have that thing. I need to clarify that concept of possession as it is recognised by the law in the present context.

The essence of the concept of possession in law is that, at the relevant time, you intentionally have control over the object in question. You may have this control alone or jointly with some other person or persons. You and those persons (if any) must have the right to exclude other people from it. If these conditions are fulfilled, then you may be said to have possession of that object, whether it is your own sole possession or whether it is a joint possession with somebody else.

It is not necessary for you to have something in your hand, pocket, wallet or purse before the law says that you have it in your possession. Further, you do not need to own something in order to possess it. You can possess something temporarily, or for some limited purpose. You can possess something jointly with one or more other persons.

I will give you some examples. Some of you probably have a television set in your home. Even though you are now physically here in this courtroom and the television set is back in your home, the law would regard you nonetheless as being in possession of it.

You and your spouse might have bought it jointly, and you might accordingly both own it. The law would regard you, as well as your spouse, as being in possession of it.

Perhaps you have not bought the set but are renting it from a rental company. You do not own it. Nonetheless, the law would regard you, but not the rental company, as being in possession of it.

Perhaps you have not bought it and are not renting it but a friend has left it with you to mind for a few weeks whilst he or she is away on holidays. For the time being, you are in possession of it and your friend is not.

In defining possession earlier, I used the phrase “intentionally have control”. This is to make clear that if something has been, for example, slipped into your suitcase unknown to you, you are not regarded as having possession of it in law, even though the case that you are carrying could be said to be under your control.

[3-710] Notes

1. 

This direction concerns the general concept of possession apart from any relevant statutory definition: Crimes Act 1900, s 7. Section 7 deals with situations which, although falling short of actual possession, may be deemed to amount to possession: R v Dib (1991) 52 A Crim R 64.

2. 

Cases on possession are: He Kaw Teh v The Queen (1985) 157 CLR 523 especially at 627, 629 and 648; R v Baird (1985) 3 NSWLR 331; R v Cotterill (unrep, 7/6/93, NSWCCA); and R v Micallef [2002] NSWCCA 480.