Allison v Lowe

[1988] TASSC 81

Serial No B13/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Allison v Lowe [1988] TASSC 81; B13/1998

PARTIES:  ALLISON
  v
  LOWE

DELIVERED ON:  11 April 1988
JUDGMENT OF:  Nettlefold J

Judgment Number:  B13/1988
Number of paragraphs:  15

Serial No B13/1988

List "B"

ALLISON v LOWE

REASONS FOR JUDGMENT  NETTLEFOLD J

11 April 1988

1. Notice to review decisions made in the Court of Petty Sessions at Hobart on the 8 December 1987 whereby the applicant was convicted on one charge of selling a prohibited substance contrary to s55(1)(b) of the Poisons Act 1971, two charges of possessing a prohibited substance contrary to s55(1)(b) of the Poisons Act 1971 and one charge of failing to disclose his source of supply contrary to s90D(2)(b) of the same Act.

1. The argument on the hearing of the notice to review makes it necessary for the Court to direct itself concerning the correct construction of s3(3) of the Act.

1. It reads as follows:–

"(3)     Without restricting the generality of the expression 'possession’, a substance or plant shall, for the purposes of this Act, be deemed to be in the possession of a person so long as it is on any land or premises occupied by him or is enjoyed or controlled by him in any place or is in his order and disposition unless he proves that he had no knowledge of the substance or plant."

1. The directions are as follows:–

1         Considered alone and without any context the word "occupy" is a word of uncertain meaning. Sometimes it denotes legal possession in the technical sense as when occupation is made the test of rateability under certain statutes. At other times "occupation" denotes nothing more than physical presence in a place for a substantial period of time as when a person is said to occupy a seat or pew (Madrassa Anjuman Islamia of Kholwad v. Municipal Council of Johannesburg [1922] 1 AC 500; Fox v Warde [1978] VR 362).

2         The court must construe the word "occupied" not alone and without any context, but in a specific context about which the following matters should be noted:–

(a)It is part of a penal statute. Therefore the court must, to the degree which is reasonably possible, eliminate uncertainty which can be the mother of inconsistency and, hence, injustice. Also, the court must not ascribe to the words of the provision a meaning which goes beyond the literal meaning. The fact that it is a deeming provision in such an Act strengthens the need for that approach (R v Clark and Johnstone [1986] VR 643).

(b)It is part of the Poisons Act 1971. That is an Act designed to proscribe certain conduct which, in a grave way, is contrary to the public interest. One must seek to gain a real insight into the mischief against which s3(3) is aimed.

(c)The canon of construction "words may take their colour from their context" applies. (Fox v Warde (supra)).

(d)The precise meaning to be ascribed to the term "occupied" must depend on the purpose of the Act and the subsection and the context in which it is used. (Madrassa's case (supra)).

3         Occupation includes possession as its primary meaning, but it is not confined to legal possession; the actual possession of a squatter would do provided the other circumstances of the case were sufficient to ground a conclusion of occupation. But it also includes something more. That point is made clear when you reflect upon the position of the owner of a vacant house. He has legal possession and may maintain trespass against anyone who invades it, but as long as he leaves it vacant he is not rateable for it as an occupier. (The Queen v St Pancras Assessment Committee [1877] 2 QBD 581 at 588; President of Shire of Poowong and Jeetho v Gillen [1907] V.L.R. 37; R v Tao [1976] 3 All ER 65; Shorter Oxford English Dictionary, "occupier" – "one who takes or (more usu.) holds possession; a holder, occupant").

4         It is not essential that the occupation be exclusive of others. It is clear that there may be cases – such cases are to be found in the books – where the occupation has been an occupation along with other people (Fox v Warde (supra)). Examples abound and the following may be taken as an extremely small sample – husband and wife who are cohabiting in a house owned by them jointly and who have children living with them and guests, co–tenants, co–licensees provided they have the right to exclude others and co–squatters provided they in fact exclude others.

5         It is not necessary to show that occupation is permanent. But mere transitory user is not sufficient (Fox v Warde (supra)).

6         A person may be treated as an occupier if he holds a licence by virtue of which he is entitled to and is enjoying immediate exclusive possession of the premises and has the requisite degree of control over them to exclude from them anyone other than his co–licensee (cf R v Tao (supra)).

7         Parliament has not provided us with a definition of the term "occupier". Having regard to the multiplicity of the circumstances which may arise, probably Parliament intended to avoid the rigidity of a fixed definition. It intended that, at the end of the day, whether, on the facts of a given case, the accused was an occupier of the premises in question was to be left to the common–sense of the jury subject always, of course, to the overriding duty of the presiding judge to direct the jury whether on the evidence it was open to them to find that the accused was the occupier and, if it was open to them, to direct them concerning the meaning of the term in the Act and the rules relevant to a correct determination in the given case (cf R v Tao (supra)). Having regard to "the mischief rule", but not overlooking that it is a penal statute, and the consequence of that as stated above, no doubt a presiding judge would not be astute to restrict the jury in any instance where the Crown case contained the necessary essentials and a conviction was a just and appropriate result in all the circumstances. In any event it is probably not possible to formulate a true definition which will be appropriate in every case which might arise. That reflection is a further factor pointing to the importance of leaving the jury role as unrestricted as is consistent with justice to the accused and any relevant rules of law. Certainly a legalistic approach to the question whether the accused was an occupier is to be avoided. At the end of the day it will be a question of fact and degree whether, on the evidence, the accused can fairly be said to have been the occupier (cf R v Tao (supra)).

8         The following propositions of an evidentiary character are important in this case:–

(a)On the applicant’s own showing his furniture was in the premises and that was a factor which, in the circumstances, was of some weight. (See The Queen v St Pancras (supra)).

(b)It was relevant to consider whether the applicant could fairly be said to be in occupation of the premises so as to have the requisite degree of control over them to exclude from them those he wished to exclude (cf R v Tao (supra)).

(c)User will ordinarily be one of the matters from which a court will be asked to draw the inference that the person concerned was the occupier of the premises. Repeated user of the premises may go a long way towards showing that a defendant was the occupier of those premises. (See R v Tao (supra); Fox v Warde (supra)).

1. The words "without restricting the generality of the expression 'possession’" cannot have ascribed to them the significance contended for by the applicant. The subsection operates to enable the prosecution to succeed in a given case, notwithstanding that the accused was not in possession in accordance with the ordinary meaning of that word in law, provided the case can be brought within the four corners of the other words of the subsection. The "mischief rule" is sufficient to produce that result. Common sense strongly suggests that, in certain classes of cases described by the words used, there should be a conviction notwithstanding the inability of the prosecution to prove possession according to ordinary conceptions. Experience teaches that sometimes it is difficult to prove possession to the criminal standard of proof. Common sense suggests that the learned magistrate was entitled to take into account that the facts relevant to whether the applicant was the occupier of those premises were within the applicant's own knowledge and the applicant was far from outgoing about those facts. I have read the relevant parts of the transcript and the expression "far from out–going" is very apt. And, of course, the learned magistrate did not accept him as a witness of the truth. When making these two points I do not overlook that the burden of proof was on the prosecution from first to last and did not shift at any stage. No tribunal of fact would use the propositions in this paragraph to fill a gap in a prosecution case. A tribunal may, however, use them in a limited, circumspect and relevant way when assessing the strength of the proofs actually produced by the prosecution.

1. It was open to the learned magistrate to find that Mrs. Robertson was in the premises as the de facto wife of the applicant. On the evidence, it was not open to him to find that she was an occupier. But her presence in the house does not detract from the conclusion that he was the occupier. And the presence of Miss Pittiglio on the premises does not detract from the latter conclusion. The evidence which was accepted did not prove her status there. But it was open to the learned magistrate to find that she was there at his invitation and with his permission, a circumstance consistent with him being the occupier of the premises.

1. The learned magistrate did find that the applicant was the occupier of the premises (p.29 of his reasons). When his ruling on the "no case" submission (which is incorporated in his final reasons) is read with those final reasons it is clear that he was satisfied beyond reasonable doubt that the applicant had actual possession and control of the premises. And there was evidence which entitled him to reach that conclusion.

1. The meaning of the words "occupier" and "occupied" varies according to the subject matter (Wheat v E Lacon & Co Ltd [1966] AC 522 at 577, 583 and 589 – 590). Hence, cases from other branches of the law, such as occupiers’ liability law, do not assist.

1. The word premises in the subsection has its ordinary dictionary meaning cited in Smith v. Taylor (supra), "a house or building with its grounds or other appurtenances". There was no good reason to think that the laundry–toilet building at the rear of the house was occupied separately and good and adequate reason to think that it was in the same occupation as the house. I do not stay to refer to all the evidence on that point. But I mention in passing that some drugs in the kitchen were packaged similarly to drugs found in the laundry–toilet building, the same type of plastic bag being used and the weights of the bags being the same in each place. To that fact should be added the true nature of the scales which are in evidence.

1. I am satisfied that the learned magistrate did not misdirect himself on any essential matter. Nor is there any evidence of a fatal non–direction. The circumstance that he did not refer specifically to the special statutory provision the subject of R. v. Fox [1986] 2 Qd.R. 402 does not persuade me that he was guilty of any error.

1. I refer briefly to some of the evidence which influenced the learned magistrate. There is the following:–

(a)       the evidence of the applicant's comments about the rates notice;

(b)       evidence of the applicant’s furniture and other belongings being in the house;

(c)what was in effect an admission by the applicant that he was exercising some control over the house on the night of the raid;

(d)evidence that the applicant gave the address of these premises as his address on more than one occasion. Evidence suggesting that the applicant resided at 131 Warwick Street at various times over a period of some years:

(e)evidence that, although the premises may have been owned by the applicant's mother, she had not lived there for a period of the order of 18 months;

(f)evidence of how the applicant used the premises on the night of 3031 July 1986 and, according to Mrs Robertson, on one or two of the immediately preceding nights. This is coupled with evidence of his knowledge of minute details, details of a type usually known only to a resident of a house;

(g)evidence which lead the learned magistrate to think that "it is clear that the defendant lived there even though he may have lived elsewhere".

1. There are also the following matters:–

There were a lot of valuable illicit drugs on those premises (see the reasons for the value). Those drugs were capable of constituting damning evidence against someone if they could be sheeted home. Therefore, at the critical time, it is highly likely, to say the least, that the controller of those drugs was also in fact in control of the premises. To get the full impact of that proposition it is necessary to advert to the evidence showing the places on the premises where the drugs were found and the materials for the packaging of drugs which were found in association with the drugs. His Worship found, and was entitled to find, "that the cannabis was located at the premises in the places and quantities as claimed by the police and was not brought there by them or any of them or by any unknown third person".

1. There was evidence from the defence that at one time the title to the premises was in the applicant’s name, although the title reverted back to his mother in 1981. It was the defence case, however, that the property was at all times his mother's property and the title was put in his name temporarily for her convenience. But it is further evidence of a close connection with the premises not possessed by Mrs Robertson or Miss Pittiglio.

1. It is helpful to refer to the evidence as to how the police found the front and back doors of the house. There are other references in the course of the reasons given by the learned magistrate but I do not find it necessary to repeat them.

1. For these reasons all the grounds set out in the original notice to review which have been argued are rejected. One ground which was added by amendment at the hearing remains and must be the subject of a further hearing.