R. v. Murphy (G.J.), (2014) 352 N.S.R.(2d) 178 (CA)

• Judge: Beveridge, Farrar and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 23, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 352 N.S.R.(2d) 178 (CA);2014 NSCA 91

R. v. Murphy (G.J.) (2014), 352 N.S.R.(2d) 178 (CA);

      1112 A.P.R. 178

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. OC.036

Gordon James Murphy (appellant) v. Her Majesty the Queen (respondent)

(CAC 420792; 2014 NSCA 91)

Indexed As: R. v. Murphy (G.J.)

Nova Scotia Court of Appeal

Beveridge, Farrar and Scanlan, JJ.A.

October 23, 2014.

Summary:

A jury convicted the accused of possession of drugs for the purpose of trafficking on the basis of constructive possession of drugs found in his apartment when he was not present. The accused had denied any knowledge of, or control over, the drugs. He appealed his conviction on the ground that the verdict was unreasonable and unsupported by the evidence.

The Nova Scotia Court of Appeal allowed the appeal and acquitted the accused.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - Police obtained a search warrant to search the accused's residence, a storage locker they believed that he had rented and an apartment - The only evidence connecting the accused to the apartment was the property manager's belief that although the apartment was rented by someone else (McMullin), the accused was the sole occupant - The accused's sister testified that the accused never lived there; that it was McMullin's apartment and the accused only kept his two cats there - Nothing was found at the residence or storage locker, but they found drugs and drug paraphernalia in the apartment (not in plain view) - Another person was asleep on the couch - The accused was not present - A jury, accepting the property manager's evidence that the accused was the sole occupant, convicted the accused of possession of drugs for the purpose of trafficking on the basis of constructive possession - The accused admitted staying overnight at the apartment 3-4 nights a week, but denied knowledge of, or control over, the drugs - There was no direct evidence (fingerprints, mail, personal items, possession of keys to the apartment) connecting the accused to the apartment - The Nova Scotia Court of Appeal set aside the accused's conviction and substituted an acquittal - Although constructive possession could be inferred by mere occupancy, in these circumstances, the verdict was unreasonable and unsupported by the evidence - The court noted that there was not "a shred of direct evidence ... that the [accused] had knowledge of and control of the drugs ... An inference of these essential elements could only be via a finding of sole occupancy. It would have taken very little additional evidence to sustain these verdicts, but there was none".

Narcotic Control - Topic 577

Offences - Possession - General - Constructive possession - [See Criminal Law - Topic 4865 ].

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 7].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 8].

R. v. W.H., (2013), 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 8].

R. v. Grey (E.) (1996), 89 O.A.C. 394 (C.A.), refd to. [para. 39].

R. v. Pham (K.T.) (2005), 204 O.A.C. 299 (C.A.), affd. (2006), 349 N.R. 387; 213 O.A.C. 399; 2006 SCC 26, refd to. [para. 43].

R. v. Smith (C.J.) (2012), 396 N.B.R.(2d) 367; 1024 A.P.R. 367; 2012 NBCA 99, refd to. [para. 48].

R. v. Sampson (V.J.) (2009), 276 N.S.R.(2d) 193; 880 A.P.R. 193; 2009 NSSC 133, refd to. [para. 52].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 75].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 80].

R. v. Seck, 2011 QCCA 2250, refd to. [para. 80].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 87].

R. v. Gagnon (Y.R.J.) et al. (2000), 136 O.A.C. 116; 147 C.C.C.(3d) 193 (C.A.), refd to. [para. 87].

Counsel:

Darlene MacRury, for the appellant;

Mark Donohue, for the respondent.

This appeal was heard on September 15, 2014, at Halifax, N.S., before Beveridge, Farrar and Scanlan, JJ.A., of the Nova Scoita Court of Appeal.

On October 23, 2014, Beveridge, J.A., delivered the following judgment for the Court of Appeal.