Where the prosecution case for constructive possession of drugs relies on the accused following a co-accused to provide security, the evidence must sustain the inference of following to the exclusion of all other rational hypotheses, including the hypothesis that the accused was travelling independently to the same location knowing drugs would be delivered there. A 5-10 minute gap between arrivals at a rural property, with no evidence of the direction from which the accused came and no evidence of communication, was insufficient to exclude alternative hypotheses. The power under s 30(6) of the Criminal Appeals Act 2004 (WA) to vary sentences for other offences upon acquittal is a true discretion, to be exercised only to the extent the court considers appropriate; where individual sentences are not affected by the acquittal, variation may be limited to adjusting concurrency and cumulacy orders.
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