Apostolides v The Queen
[1990] HCATrans 48
i~
~
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M38 of 1989 B e t w e e n -
NICHOLAS JOHN APOSTOLIDES
Applicant
and
THE QUEEN
Respondent
Application for special
leave to appeal
MASON CJ DAWSON J
TOOHEY J
GAUDRON J
Apostol ides McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT HOBART ON WEDNESDAY, 14 MARCH 1990, AT 11.59 AM
Copyright in the High Court of Australia
HlT 5 / 1 /ND 1 14/3/90 MR D. GRACE: If the Court pleases, I appear on behalf of
the applicant. (instructed by Grace & MacGregor)
MR L. FLANAGAN, QC: May it please the Court, I appear
with my learned friend, MR G. SILBERT, on behalf
of the respondent. (instructed by the Solicitor
to the Director of Public Prosecutions)
MASON CJ: Yes, Mr Grace. MR GRACE:
Thank you, Your Honour. Your Honours should have before each of you an outline of submissions
on behalf of the applicant together with a folder
of materials containing the authorities and
legislation that will be referred to in the course
of the application.
MASON CJ: Yes, we have that. MR GRACE: The history of the matter is that - - - MASON CJ: You can take it that we are familiar with the history of the matter and that we have read the
judgments in the Court of Criminal Appeal.
MR GRACE: If the Court pleases.
McHUGH J: Could you just tell me, what happened to the sentence on count 5, the 12 man ths' sentence?
It does not seem to have been dealt with in the
wrap up by the Court of Criminal Appeal. If
you go to page 184:
count 5, twelve months' imprisonment -
and then -
sentences on counts 1, 2 and 7 be served
cumulatively upon each other and cumulatively
upon the sentence imposed on count 3 making
an aggregate head sentence of three years
and nine months -
well, what happened to count 5, is that - - -?
MR GRACE: There is a provision in the PENALTY AND SENTENCES ACT 1985 of Victoria, section 15, which deems
to be consurrent every sentence of imprisonment
imposed unless there is an order for cumulation
made. That is why there was no order for concurrency
made in respect of count 5.Your Honours, this application raises for
consideration the following issues: firstly,
the meaning of the word "occupied" within
section 5 of the DRUGS, POISONS AND CONTROLLED
SUBSTANCES ACT. And if I could turn to that
HlT5/2/ND 2 14/3/90 Apostol ides specific section and read it to the Court. It
reads as follows:Without restricting the meaning of
the word "possession", any substance shall
be deemed for the purposes of this Act to
be in the possession of a person so long
as it is upon any land or premises occupied
by him or is used, enjoyed or controlled
by him in any place whatsoever, unless theperson satisfies the court to the contrary.
The effect of that section is to reverse the
burden of proof, once occupation or use, enjoyment
or control is established and provides, in those
circumstances, for a conviction to be allowed
to stand in the absence of mens rea, the absence
of knowledge of possession or existence of the
substance.
The second aspect which is set out in the
outline that it is requested this Court give
consideration .to is this: the necessity or otherwise
for a trial judge to define and explain to a
jury the meaning of the word "occupied" in
circumstances where, one, the allegation that the
application occupied the premises or part of
the premises was disputed; two, it was a crucial
issue in the trial because if proved beyond
reasonable doubt it brought into operation the
deeming provision contained in section 5; and,
three, without guidance and direction members
of the jury may have applied different meanings
to the word "occupied".
Amplification of those three matters may be found by reference to specific pages in the
transcript. Firstly, at page 21 of the application
book, approximately two-thirds of the way down
the page, the policeman Dole is being cross-examined
by counsel for the applicant and these questions and answers were given:
Yes, all right. Now, you say that initially in the conversation there was reference
to where are you living, and what he said,
among other things, was "My address is
19 Parker Street, Footscray"; is that right?
You can refer to your notes?---What he said was, "Here at the moment - - -
Would you just answer my question?---Yes.
He said, among other things, "My address
is 19 Parker Street, Footscray," Correct?
---Yes, that's correct.
HlTS/3/ND. 3 14/3/90 Apostol ides
Put it down now. You can listen to what I'm asking you. All right. Now, you say
he also said, "Here at the moment"?---Yes.
At the same time as giving some other
address; is that right?---Yes, that's correct.
And then, the second question on page 22:
Surely, as an experienced detective on a
drug raid, he was something left right up
in the air, "Where are you living?" "Here,
at the moment, but my address is 19 Parker
Street, Footscray." Now, didn't that perhaps
prompt you to say, well, where do you live,
if you're giving another address?---No,
not at the time.
Not at the time?---No.
Well, did you go to 19 Parker Street,
Footscray?---No, I didn't.
And you've told the truth when you tell
the gentlemen and ladies of the jury that
he said, .qu:i:te spontaneously, "Here at the
moment. My address is 19 Parker Street", Parker Street, Footscray; correct?---Yes,
that's correct.
Well, did it perhaps occur to you to say,
well, what do you mean, "Here at the moment",
coming here for a cup of tea, or here for
a week, or here for a day or here for a
month? Did it occur to you to perhaps askhim what he meant?---No, not really, I just
took it in the context of his answer to
my question, where I said to him, "And where
are you living?" and he said, "Here at
the moment. My address is 19 Parker Street,
Footscray." at the moment wasn't 19 Parker Street, Footscray, was it?---No, it wasn't. No, it was North Road, Newport?---Yes, that's correct. Well, I ask you, Detective, as an experienced detective, why didn't you ask for an explanation of the inconsistency?---Well, I didn't - it didn't seem pertinent at the time. Well, that's inconsistent, isn't it? Here
HlTS/4/ND 14/3/90 Apostol ides No, thank you. Well, did you think it
pertinent to ask what he meant by "here
at the moment", or did you not th ink it
pertinent?---Well, I have gone into it further
in my conversation after I've cautioned
him.
And then, later down that page; His Honour asked the question - that is on page 23:
Yes. What did you want to say, Mr Dole?--- Well, I've said to him, "Which room are
you staying in at the moment?" and he said, "The one down the back." and then I've asked
him further, "Are there any drugs in that
room?" and he said, "Just a bit of marijuana
which is for my own personal use. I havea smoke now and then." So I look at that
as questioning him further as to his answer,
"Here at the moment."
Mr Brustman then asks:
I see. And do you say that anything you have just read out indicates whether he's
staying there for a minute, an hour, a week-
end, or a month, or not?---Well, it indicated
to me that he was staying there. That he
was living there.
Living there?---Yes.
It's all of a sudden become "living there",
has it?---That's the opinion that I formed.
At page 53 of the application book, the policeman
McClure is cross-examined as to the persons who
~·.ere living at the premises or rather who were
present at the house at the time of the police
raid and half-way down the page he is asked this:
Just before I go back to that. There were four people in that house; is that right?---
There were.
One was Mr Despott; is that right?---That
is correct.
One was Mr Robinson?---That is correct. One was Mr Harrison?---That is correct. One was Mr Apostolides?---That is correct.
Was Mr Harrison questioned?---Not by myself,
no.
HlTS/5/ND 5 14/3/90 Apostol ides By anyone else?---I believe he was spoken
to, yes.
He was found in the same room as all the
others; is that right?---That is correct.
You say with all these paraphernalia of
drugs?---That is correct.
I take it his name and his address and details
of him were taken?---I believe they were.
And then, questions were asked on page 54 as
to the questioning made by McClure of the
co-accused Despott and Despott, as the Court
will be directed to later, gave evidence on behalf
of the prosecution against the applicant. And in the course of Despott's record of interview
he gave these answers in respect of questions
asked of him. The last line of page 53 of the application book:
Did you formally ask Mr Despott this: "Are the premises rented?" "Yes". "Whose name
was the house rented in?" "Mine"?---Yes.
Did you ask him this: "Who lives with you"?--- I did, yes. Was his answer: "Laurie Robinson and my
girlfriend, but she is in hospital with
cancer"?---That was the reply.
Did you ask him: "Who else was at your
house earlier when police attended7'and
did he say "Nick and Mitch"?---That is correct.
Did you ask him, "Is it correct that Mitch
was sent home by the police?" "Yes"?---
Yes, that is correct.
Did you then ask him: "What is Nick's last name?" and did he say, "I don't know"?--- That is the reply he gave. That is what he said; right?---That is the reply he gave, yes. "How long have you known Nick for?" "Four weeks"; is that r ight---That' s correct. Did you say, "How often do you see Nick?" "Not very often"?---That's correct.
Now, Despott recanted on those answers in the
course of his evidence later in the trial. He
H1T5/6/ND 6 14/3/90 Apostol ides said that what he told the police was not true; that
he had lied to the police. And I will draw the Court's attention to those passages shortly.
At page 60 of the application book there
is cross-examination of the policewoman Eastaugh.
At page 61 there are questions asked of the man
called Mitchel Francis Harrison. He W:?.S the
man who was present in the lounge room at the
time of the police raid. He was the man who
had been observed coming into the premises a
few minutes prior to the police raid in companywith Apostolides, the applicant, and he was asked
questions by Eastaugh at the scene. And, in cross-examination, the fifth question on page 61
of the application book:
But you certainly asked him and you got
an address of the fourth person there?---Yes.
You asked him, "Why are you here"?---I am
visiting.
Or something like that?---That is correct.
When you came into this house there was
the paraphernalia of drugs in the lounge
room; is that right?---Yes, there was.
It is fair to say that all four persons, including this Harrison, whose address and
name you got, were in that room?---They
were, yes.
Do you recall what Harrison was doing, or
don't you remember?---Harrison arrived there
about three or four minutes before we entered
the pr~mises. We saw him arrive. Did you see fit to question him any further
about why he was coming there?---We had
a short discussion on it and then he was - - -? Told to go?---That is correct.
At page 62 there are questions about who identified whose room as whose and at the sixth line:
Mr Robinson apparently was using - - -?---
He lived in the lounge room.
MR BRUSTMAN: Just before this witness goes,
Your Honour, I understand my client wants
to ask something.
And then there is a break whilst the instructing
solicitor approaches the dock. His Honour then
HlTS/7/ND 7 14/3/90 Apostol ides
steps in and asks, in my submission, some very telling questions. His Honour says this: Y6u say Mr,Despott said he was in the centre
room?---That's correct, sir.
Mr Robinson apparently occupied the lounge
room?---Yes, he did.
Where did Mr Apostolides say he was?---In the rear bedroom.
These quest ions were asked in the presence of
the jury. I will just repeat that: Mr Robinson apparently occupied the lounge
room?
The learned trial judge is using the word "occupied" to describe Mr Robinson's presence in the lounge
room.
At page 163 of the application book there
is a schedule of location of drugs which schedule
was prepared for the purposes 0f the arguments
before the Court of Criminal Appeal which indicates
the location of the drugs at the premises, the
amounts and whereabouts in each particular room.
Count 1, it will be remembered, was subject to
a plea of guilty on the part of the applicant, , as was count 2. Count 3, 4, 5, 6, 7 and 8 related
to trafficking and possession respectively a
the heroin, methylamphetamine and tetrahydrocannabinol.
The heroin and methylamphetamine were found
in various locations in the lounge room. There was also heroin found in traces in the kitchen.
The lounge room was the place where police found
all four persons upon entry into the house.
It was a place where Robinson slept. It was a place where Despott was in a half-dazed condition
as a result of heroin abuse, lying on the couch
at the time that police arrived. A syringe was
found in the bathroom, indicating a recent use
of heroin which Despott later admitted as being
his use and heroin was found sitting on the floor
in front of him.
He pleaded guilg to possession of heroin
and was subsequently sentenced by the court and
that occurred two weeks prior to Apostolides's trial. At page 68 of the application book, Despott having been called by the Crown, begins his evidence
and he explains at pages 68 to 70 the circumstances
HlTS/8/ND 8 14/3/90 Apostol ides by which he came to be living at that particular
address. At the bottom of page 68: You were looking for accommodation with your girlfriend; is that so?---Yes.
At about October of '86, did you know
Mr Apostolides?---I knew of him, yes.
At page 69:
Did you have any conversations with him
concerning accommodation?---Yes, I did.
And then, another question down:
I am interested in conversations that you
had with Mr Apostolides?---Right. Well,
we went to have a look at a flat in Williamstown
and Nick and Laurie and these two friends
of my girlfriend's were already living in
the flat.
You indicated a person by the name of Laurie.
Do you know that man's surname?---Robinson.
They were living in a flat; is that so?---Right.
Yes.
Did you have any conversation about seeking
accommodation with Mr Apostolides?---Yes,
when were were at the flat.
Was there any agreement between yourself
and him as to what was _going to happen
about your accommodation?---Yes, there was.
What agreement was that?---That as Laurie
was going to need somewhere to live as well,
we agreed that if I got a house, my girlfriend
and I got a place to stay, that Nick would pay the bond and the first month's rent,
and then after that the rent would be worked
out between Laurie and I. And as Nick had
business with cars between New South Wales
and Victoria, whenever he was in Melbourne,
he would be staying at our place.
In the months leading up to the time of
this conversation; did you have a problem
with the drug heroin?---I certainly did.
Did you make that fact known to Mr Apostolides?
---Yes, I did.
HlTS/9/ND 9 14/3/90 Apostol ides You eventually leased premises at No 57
North Road, Newport, is that so?---Yes.
That lease was for a period of six months;
is that so?---Yes.
Later down the page, about half-way down the page, the question was asked:
How long before that raid had you moved
in? That occurred on a Thursday?---On
the Monday before.
When you moved in, did you move in with
your girlfriend?---Yes, I did.
At the time that you moved in, who else
had moved in, if anybody?---Well, Lauriehad all his things there. Laurie Robinson
had already moved in and most of his belongings
and a few things that I believe belonged
to Nick, were already in the house.
And then later down the page:
Who was that occupied by? -
talking about the bedroom, the second room -
---My girlfriend and I.
Who occupied that bedroom? -
that is the other bedroom -
---At that time, Nick was in that bedroom.
Where was Mr Robinson sleeping?---On a mattress
in the front room in the lounge room. Now, at page 73, near the completion of his
examination in-chief of Despott, the second question on that page:
During the period between the Monday and
the Thursday at the address in Newport,
how often was Mr Apostolides there?---
Practically, a fair bit of the time, actually.
Was he sleeping there?---Yes, except for
one night.
Now, it must be remembered that between the time
of the persons moving into those premises, on
the Monday, and the police raid on the eveningof the Thursday, there were only three possible
nights where persons could have slept at those
H lTS /10/ND 10 14/3/90 Apostol ides
premises. The claim by Despott was that Apostolides had slept there two out of the three nights.
Apostolides claimed that he had slept there only
one night.
At the bottom of page 73, after Apostolides
had dispensed with the services of his counsel,
he cross-examined himself and he asked this question:
You were present at 57 North Road when the
police raided the premises?---Yes, I was.
I was there too?---Yes, you were.
Along with Mitchell, Harrison and Laurence
Robinson?---That's right.
When you were conveyed back to the police
station, you were asked questions?---Yes.
You gave answers to them questions?---Yes.
Were you asked this question: "Whose name
is the house rented in?" and your answer
was, "Mine"?---Most likely, yes.
"Who lives with you?" Your answer was "Laurence Robinson and my girlfriend, but she's in hospital with
cancer". Did you answer that?---Yes. Were you asked, "Who else was at your house
earlier when police attended?" and your
answer was, "Nick and Mitch"?---That's right.
So he is put in the category of people living
at the premises, this is when he is first asked
questions by the police as:
"Laurence Robinson and my girlfriend, but
she's in hospital with cancer".
"Who else was at your house" ..... "Nick and Mitch" -
Mitch has been let go by the police, as they think
he is not living there, therefore he ought no'::
to be charged. And Nick is put in the same category as Mitch. Then you were asked, "Is it true that Mitch
was sent home by the police?" and your answer
was, "Yes"?---Yes.
and your answer is: 11 I don't know"? - - -Most You were asked, "What is Nick's last name?" likely, yes.
HlTS/11/ND 1 1 14/3/90 Apostol ides Were you asked, "How long have you known
Nick for?" and your answer was, "Four weeks"?
---Yes, it was.
Were you asked, "How often do you see Nick?" and your answer was, "Not very often"?---Yes.
Were you telling the truth then, Mr Despott?
---No, I wasn't.
You were lying then?---At that time, yes.
Now you are telling the truth?---Yes.
You expect this jury to believe that you
are telling the truth now, but you were
lying previously to the police?---Well,
when you consider how much heroin I was
using at the time, I was a pretty rattled
person as compared to now.
And then over the page, at page 75, there are
questions asked about lies and how many lies
he has told in his life. At the bottom of page 76, the question is asked: You occupied these premises with my money;
is that what you are telling the court?---Yes.
Why did you put the house in your name?---
Because I was the one that took the lease
out.
At page 86, at the bottom of the page, these
questions were asked:
You are confirming that it is your place?
---Right.
The house at 57 North Road, Newport, belongs
to you?---Yes.
You are renting it?---Yes. It is in your name. What's in it is yours, too, Mr Despott; isn't it?---No.
Not everything?---No.
Except for the bodies. My body, Robinson's body and Mitchel Harrison's body?---Your clothing, Laurie's clothing. My clothes?---The stuff you had in your bag, whatever Laurie had.
Adidas bag?---Yes.
HlTS/12/ND 12 14/3/90 Apostol ides What was in the Adidas bag?---I'm not too
sure.
You just mentioned a minute ago there was
clothes?---No, I am talking about the clothes
that were in the house.
My clothes?---Yes, you had clothes in the
house.
Where were they, Mr Despott?---In the back
room.
So you moved into the house on the Monday?---Yes.On the Thursday evening the police came through?---Yes.
At page 90 there are questions about Robinson
and his position when the police arrived. Half-way down the page:
They dropped the charges against Robinson;
didn't they?---Yes, they did.
There was evidence before this court that
Mr Robinson was clutching the Adidas bag
in a sleeping position when the police made
entry to the premises; do you recall
Mr Robinson clutching the Adidas bag?---
No, I don't.
There was evidence in this court that a
syringe and a State bank book in Robinson's
name was found in the back room; do you
know anything about a syringe and a bank
book?---No, I don't.
Was Mr Robinson using drugs?---Not that
I know of. He was sharing the house with you; wasn't
he?---Yes.
At page 91, two-thirds of the way down the page,
this is a telling spot and I wish to emphasize
this aspect of the cross-examination:
ACCUSED: So you agree the house is in your name?---Yes, I do.
It is your house?
HIS HONOUR: Mr Apostolides, you have gone over that twice already .....
HlTS/13/ND 13 14/3/90 Apostol ides
ACCUSED: You were in charge of that premises, Mr Despott: weren't you?---Yes, I was.
And everything in it?---Everything I knew
of, yes.
Did you know there was heroin in there?---
Yes, I did.
Now, that was the evidence that had anything
to do with the issue of occupation. The trial judge, in his charge to the jury - - -
MASON CJ: Just before you come to that, could I ask you
this question: when was the lease entered into?
MR GRACE: There was a lease produced to - - - MASON CJ: Yes, but it is not in the application book. MR GRACE: In fact, I think there was a lease tendered. MASON CJ: Yes, exhibit U, bu~ ~_t: has not b-==~n reproduced.
MR GRACE: Well, at page 70 of the application book there are questions of Despott in examination in-chief.
At the top of the page:
That lease was for a period of six months;
is that so?---Yes.
From 10th October of 1986 until 10th April,
1987?---Yes, that could be right.
And then there is a document handed to the witness and he agrees that it is his signature and the
lease is - - -
MASON CJ: Y~s, ½ut it does not necessarily indicate when th'= - th'=
transcript does not indicate when the lease was actually executed.
MR GRACE: No. I am unable to assist the Court in that respect except to say that it is clear that the premises were first occupied on 20 October 1986
by any of the persons involved in this case.
At page 112 of the application book, the -
perhaps before I get to that, Your Honours, at
page 93 there is discussion which proceed~dactually from page 92 and there are some pages
omitted but the discussion was in relation to count 8 on the presentment which was a charge of trafficking in tetrahydrocannabinol. The
learned trial judge had discussions with the
learned Crown Prosecutor and, as a result of
H lTS/14/ND 14 14/3/90 Apostol ides those discussions, the learned trial judge
determined that he would direct the jury to bringin a verdict of not guilty in respect of count 8;
that is trafficking in tetrahydrocannabinol.
At the conclusion of that discussion,
His Honour asks this, half-way down page 93 of
the application book:
- - - if I take that away - is there anything
else you want to say in relation to how
the Crown puts it in relation to the various
drugs?
MR RYAN: No, sir. HIS HONOUR: The possession and trafficking, would you concede there are alternatives?
MR RYAN: No doubt about that, sir, certainly, so that on Your Honour's indication at the
moment that the Crown's left - with regards
to the THC - with the possession of the
THC, and when we come to alternates in terms
of possession, the Crown would be relying upon the deeming provision in section 5,
that the Crown maintains that Mr Apoltolides
was an occupant of the address, and that
he's deemed to be in possession of the item,
but in any event, he says that the items
that were found - the police evidence is
that the items that were found in that rearbedroom were identified by him as his, as
I understand the state of the evidence at the moment, so that in any event, there's an admission as to his possession of it
without even going to section 5, but quite
clearly on the evidence, there is evidence
to show that Mr Apostolides is an occupier
of that residence. HIS HONOUR: Yes. MR RYAN: So that he would then be deemed to be in possession of the THC.
HIS HONOUR: Yes. MR RYAN: I had intended to go to the jury on this basis, for the purposes of each
of the material, that the Crown really isn't
looking for the jury to be directing their
minds to the possession because what we
say is that it is quite clearly trafficking
in all the circumstances of it, but in relation
to the THC there is a difficulty, because
it does sit out to one side.
HlTS/15/ND 1 5 14/3/90 Apostol ides And then, over the page, on page 95, Mr Ryan
continuing:
I had not particularly wanted to delve into
the provisions of s. 5 of the Act, but with
what Your Honour has indicated and what
I had anticipated was that I was going to
the jury on the basis, he has admitted to
it in any event, but even if he had not
the provision of s. 5 is there to deem himto be in possession.
Mow, he is talking about the THC there and it
will be seen later that - in fact, he did not
at any time admit that the THC was in his possession
with his knowledge.
In the judgment of the Full Court, His Honour
Mr Justice Crockett clearly indicated, at page 170
of the application book, tha::
The question of occupancy was of some
importance, as the Crown had put its case
of possession of the drugs of dependence
by reliance upon s. 5 of the Act.
So it was clear that the Crown relied upon the
deeming provision to prove possession. Those were the counts that the jury ultimately convicted
the applicant upon, finding him not guilty of
the trafficking charges that were before it and
the learned trial judge, as will be seen, did
not direct the jury at any stage whatsoever as
to the meaning of the word "occupied", as tothe requirement that they must be satisfied beyond
reasonable doubt as to the existence of occupation or that he occupied the premises before
the deeming provision could come into operation.
TOOHEY·J: Mr Grace, when Justice Crockett says on page 170 that: the Crown had put its case of possession .....
by reliance upon s. 5 -
do you say that the Crown relied solely upon
section 5?
MR GRACE: Yes. TOOHEY J: But not upon some general notion of possession? MR GRACE: I say they relied solely on section 5. There was no evidence of knowledge.
TOOHEY J: Of?
HlTS/16/ND 16 14/3/90 Apostol ides
MR GRACE: Knowledge on the part of the applicant. There was no evidence of mens rea; there was no evidence
that he had the actual physical possession of
any of these items found on the premises.
TOOHEY J: Section 5 offers a deeming provision; it does
not attempt to define "possession" except by
the deeming provision which then_op2rat~s:
unless the person satisfies the court to
the contrary.
Presumably you satisfy the court to the contrary
by showing that although a substance was found:
upon land or premises occupied by -
the accused -
or is used, enjoyed or controlled by him - and nevertheless the substance was not in that
person's possession, whatever that term might
mean. In other words, the Act operates in two ways: one, by its deeming provision; otherwise, by leaving the meaning of "possession" completely
at large in the sense that it is undefined.
MR GRACE: Yes, that is the case, Your Honour. TOOHEY J: In any event, the way you are putting your argument is that we need not be concerned with the meaning
of "possession" except in relation to the deeming
provision.
MR GRACE: Yes, and it must be remembered too, Your Honours, that the word "occupied" is not one of the elements
that has to be proved to prove possession. Once the word "occupied" or the fact of occupation
is proved beyond reasonable doubt then possession
is deemed, with or without knowledge or with or without any mens rea on the part of the occupier.
(Continued on page 18)
14/3/90
Apostol ides
TOOHEY J: Well, unless the person charged satisfies the court, nevertheless, that he was not in possession
of that substance.
MR GRACE: At page 105 of the application book the learned trial judge, in the second paragraph, about seven
or eight lines down from the top of the page, he
discusses the standard of proof beyond reasonable
doubt in that paragraph. He says this: What it means is that the Crown on all the
evidence must establish to your satisfaction
the guilt of the accused beyond reasonable
doubt in respect of all the elements that go
to makeup the charges laid against him.
I will define those elements for you later on.
Well, he does define them later on at page 112 but
it is submitted that he does so in a most unsatisfactory
manner and makes no mention of any definition of the
word "occupied". At page 112 he says this:Before we turn to possession, I direct you what the Crown rrrust prove in relation to this
count. First of all, it must prove that the
offence occurred at the place and time alleged,
namely, Newport on 23rd day of October 1986.
It is entirely a matter for you as is any
question of fact but it seems to me there is
no contest that, if this offence was committed,
it was committed at Newport and on that date.
That is what the Crown rrrust prove.
Next, the Crown must prove that the offender
was the accused man. That he had in his
possession (I will leave possession for a moment)
a drug of dependence and I direct you that heroin
is a drug of dependence as is cannabis and
hashish or TCH and that the Crown has established
as it is entitled to do under the legislation, this element of the charge. It has done that, by producing the Certificate of Analysis from an
analyst and a botanist. It does that by virtueof the legislation. Therefore, if you are satisfied that at
Newport on 23rd October 1986 Mr. Apostolides had in his possession a drug of dependence, in
respect to count 3, that is heroin, then the
Crown has established those elements to your
satisfaction beyond reasonable doubt.
That leaves for determination the word
'possession'. Of course, what I say in relation
to possession in respect of count 3 also applies
to count 5, that is possession of Methylamphetamine,
and count 7, possession of TCH or hashish.
HlT6/l/LW 18 14/3/90 Apostolides Possession has two elements, Mr Foreman.
First of all, it means a capacity to exercise control over the thing which is said to be possessed, in this context, of course, either heroin or amphetamine or hashish. That control may be exercised either alone or jointly with
another or with others. There must be present an
intention that the man intends to enjoy and exercise such capacity of control over that
particular drug, that is, capacity to exercise
control, either alone or jointly, and an intention
to exercise control.
By the DRUGS POISONS AND CONTROLLED SUBSTN,TCES
ACT, s.5 of it, the definition of possession has
been extended by the Parliament.
And he reads the section to the jury and goes on:
In other words, to escape the operation of s.5
of the DRUGS POISONS AND CONTROLLED SUBSTANCES ACT,
the accused must satisfy you that he was not in
possession of a drug of dependence on the balanceof probabilities.
Now, just stopping there, the learned trial judge has
made no mention of standard of proof necessary to
prove that the applicant occupied the premises.
It is not mentioned once there that the Crown must
prove, beyond reasonable doubt, before the deeming
provision comes into operation, that the applicant
occupied the premises. And then His Honour goes on to say this: In default of his so doing -
that is, satisfying the reverse onus upon him
s.5 speaks with undiminished authority. He is therefore deemed to be in possession of heroin
in respect to count 3. This is the only matter in this trial in which the accused carries any
onus of proof which, as I said, is on the balance
of probabilities, otherwise the burden of proofis on the Crown throughout the trial to establish
the guilt of the accused beyond reasonable doubt
of all the elements of the offences charged.
Do you think that is clear, Mr.Foreman, as I have
expressed it to you?
Answer:
Yes.
H1T6/2/LW 19 14/3/90 Apostolides His Honour:
I see it is time when we are about to adjourn.
I will reserve it briefly to be revived in
your memories tomorrow. It is really not a
difficult concept as you analyse it.
The next day, His Honour repeats the terms of
section 5, at page 114, and at the end of the secondparagraph, he says:
In other words, he must satisfy you that he was
not in possession of a drug of dependence, and
he must satisfy you on the balance ofprobabilities.
He has called no evidence at all about that
matter, so the presumption of section 5 operates.
Now, just stopping there, he is telling the jury, in
terms, that they must convict on a count of possession
without having first told them that they must be
satisfied beyond reasonable doubt as to the fact of
occupation.
DAWSON J: But he has told them that they must be satisfied beyond reasonable doubt on the question of possession.
That would carry back to the question of occupation,
would it not?
MR GRACE: Well, with respect, without - - -
DAWSON J: Maybe that is the question?
MR GRACE: Yes, that is the question. And His Honour goes on: Once you are satisfied that any substance, namely the heroin or amphetamines or hashish, was upon any land or premises occuped by
Mr Apostolides, or that any heroin, amphetamine or hashish was used or controlled or enjoyed by him as a matter of fact, then that section deemed him to be in possession of them. Is that clear, Mr. Foreman? So it is a question of whether you are
satisfied on the evidence that he was in occupation
of the land or premises at this street in Newport,
or alternatively, whether he used or controlled
or enjoyed any of those substances. Those mattersare questions of fact for determination by you.
Now, one of the complaints that was raised in the
Court of Criminal Appeal, and, indeed, is one of the grounds for appeal before the Court should special leave
be granted, is that the learned trial judge failed to
adequately direct the jury, if at all, that they had
to be satisfied beyond reasonable doubt as to occupation.
HlT6/3/LW 20 14/3/90 Apostol ides
MASON CJ: But very early on in his directions did not the trial judge make it plain to the jury that whenever
he used the expression "whether you are satisfied",
that that carried with it the criminal onus?
l1R GRACE: Yes, he did. But when he was referring on page 115 to the word "satisfied", he had just previously indicated
to the jury the question of satisfaction on
a balance of probabilities at page 114, and the complaint was that the jury may have gained the
impression that all they had to be satisfied on the evidence, in respect of occupation, was that on the balance of probabilities, he was an occunier.
There is no mention of the words "beyond reasonable doubt" on pages 114 and 115 and it must be remembered
that this was a new day, the judge was refreshing the minds
of the jury as the concept of possession and there is no mention of the words "beyond reasonable doubt 11 •
Now, at page 127 of the application book, the
trial judge begins to outline to the jury the basis
of the prosecution and defence cases as put to the
jury and he reiterates what, obviously, the learned
Crown Prosecutor had said to the jury at pages 127
and 128. And then at page 129 he says this:
Because once you are satisfied this accused is
in occupation of the house then having regard
to what was found and where it was found and the
evidence of Despott, who only speaks of course
of heroin, but his evidence involves the accused in having a dominant say in which went on in the
house; accept that, and you will have no
hesitation in concluding that this man was in
possession of these drugs of dependence.
And at page 130 he gives the defence case outlined
to the jury some consideration and he comments that in relation to Apostolides, half-way down the page:
He says he has made no admissions at all in
this case, either of living at the house or
being concerned with any drug dealing, except
the matters he pleaded guilty to.
And then over the page, at page 131, second paragraph:
He said that there is no evidence of any
intent on his part, no evidence of any knowledge
of drugs.
At page 137 of the application book, two-thirds of the
way down the page, the jury retires to consider its
verdict. His Honour asks for any exceptions from
the learned Crown Prosecutor. Mr Ryan says:
H1T6/4/LW 21 14/3/90 Apostol ides No, sir. Only what arises as a result of the
Foreman's question, the cormnent I would seek to
make is this: from my experience a botanist is not capable of identifying one lot of
cannabis as being source from another lot.
His Honour: No, I think that is right.
Mr Ryan: That was the only comment I would make.
The only matter by way of an exception is whether or not occupation ought to be defined for the
purposes of the jury. It need not necessarily
be done, bearing in mind the facts that are
alleged by the Crown.
His Honour: No. Did you have an application, Mr Apostolides?
Accused: Yes, I have an exception, Your Honour.
Your Honour, I object to the application of section 5 of the 1981 DRUGS POISONS CONTROL
SUBSTANCES ACT and that it has been applied to
my circumstances of being in the premises and
being deemed in possession of the
Diacetylmorphine. Your Honour, Despott has
acknowledged trafficking in heroin; the material
Exhibits were his, in his premises and not mine. His plea of guilty to trafficking arises out of
that very possession. Your Honour, I was merely a visitor to the premises, who had stayed there on
other occasions. The material that I've acknowledged, the marijuana in the bag, my
connection to the heroin trafficking enterprise
is only circumstantial, and that I was visiting
Despott to sell him marijuana. Your Honour, I was not in possession of the heroin.
At page 142, His Honour directs the jury in
relation to the meaning of the words "trafficking" and
"possession" and this is following a jury question.
At page 142, at the top of the page, the jury asks for clarification and an explanation of the definition
of "trafficking" and,secondly, "possession".
His Honour gives a direction of trafficking in which
he is quite wrong and which he later has to correct
again. At page 143, the foreman asks the question,
half-way down the page -perhaps a third of the way
down the page, the foreman asks:
Just one question to mind. That is particularly
myself. Maybe you have answered one it will
explain the other perhaps. Does it actually mean as far as trafficking, if a person is there?
His Honour: Sorry.
HtT6/5/LW 22 14/3/90 Apostolides Foreman: If a person is actually within the
premises, does it mean that he is also liable
as a trafficker?
His Honour: If the evidence satisfies the jury
that that person in those premises possesses that
drug, yes.
Foreman: Possesses, right.
And then he goes down to discuss possession and
His Honour says this:
Let us turn to possession. Here the Crown must prove in relation to it possession by
Mr Apostolides of a drug of dependence.
Normally, possession as you would understand
has two elements to it. First of all a capacity
to exercise control over the thing said to be
possessed; in this context, the heroin, the
amphetamine, the Hashish. That control may be
exercised either alone or jointly with another
person or persons. At the same time there must be present an intention in the mind of the
particular person to exercise that capacityto control the drugs.
That is the broad concept of possession
at the common law. Here, the Parliament by
this legislation under which Mr. Apostolides is
charged has extended that definition. And the
Parliament has said this: That possession
extends to any substance upon any land or
premises occupied by the accused or anysubstance used controlled or enjoyed by the
accused in fact. That shall be deemed to be in
his possession unless he satisfies the court,
which in these proceedings means, you, the
jury, to the contrary. And he must satisfy you
dependence on the balance of probabilities. that he was not in possession of a drug of In other words, it is more probable than not that what he says is true.
Foreman: All right.
His Honour: Does that assist you, Mr. Foreman? Foreman: Yes, it does.
And then some further questions were asked.
At page 145, after the jury have retired again,
His Honour asks the learned Crown Prosecutor as to
anything to be raised from what he tol.d the
jury and the learned Crown Prosecutor tells him that
what he told the jury in relation to trafficking is quite wrong and he should direct on the point as to
whether mere presence would indicate guilt of trafficking.
23
HlT6/6/LW 14/3/90 Apostol ides At page 147, His Honour says this, half-way
down the page:
I have given a redefinition of trafficking
and I asked was that what had been required
and then Mr. Foreman asked the question, which
I misunderstood. I thought it related to
possession but on hearing the tape played back
it was to the effect that if the jury found
that a person was in a house, could that
amount to trafficking itself and I answered yes.
I answered that because I misunderstood the
question. It is no.
Foreman: It is not.
His Honour: No. Let me tell you what trafficking
is again. As distinct from possession and
mere presence in the house.
Foreman: Right.
And then he goes on to define trafficking. But if I could go back, perhaps, to page 144 once more when
His Honour redefined possession. At no stage, at
that time, did he give any direction to the jury
as to the meaning of the word "occupied" or as to thestandard of proof they would have to be satisfied
as to the fact of the applicant occupying the premises
before they could bring the deeming provision into
operation. And that was the substance of the learned trial judge's charge to the jury on that
concept. I have noticed the time, Your Honours,
is this a convenient time. I am happy to go on if the Court wishes.
MASON CJ: We might continue for a short time, Mr Grace . MR GRACE: At page 170 of the application book, the Court of Criminal Appeal, and particularly His Honour
Mr Justice Crockett, considered this question of occupation, .and half-way down the page, in a passage I have already
read to the Court:
The question of occupancy was of some
importance, as the Crown had put its case of
possession of the drugs of dependence by reliance
upon section 5 of the Act.
The section is then stated:
In this case it was said that so far as the
drugs found in his room were concerned, the room
being occupied by the applicant, those drugs
were thus deemed to be in his possession.
So far as the drugs found in the lounge room
HlT6/7/LW 24 14/3/90 Apostol ides were concerned, it was said as that
room was occupied by the applicant jointly
with the other persons resident in the
premises, then those drugs were deemed to
be in his joint possession.It is perfectly true that the Judge did not, in the course of his charge, explain to the jury what was involved in the use of the
word "occupied" or give any examples to the
jury of what might or might not constitute
occupancy, nor did he lay down for their
guidance any test which might be used by them
to determine.whether or not as a matter of fact
the applicant was in occupation of one or.other or both of the rooms of the house to which
I have referred.
In my opinion, there was no necessity, in the
circumstances of the case, forthe Judge to have
given any such directions. It may be allowed there
may be cases in which some direction or
amplification of the meaning of the term is
called for. However, this, in my view, is not one of those cases. The applicant, as I have indicated, stood mute. He confined himself, as had his counsel before him, to seeking to make
out what defence he could by way of cross-examination
of the Crown witnesses. From that cross-examination it appears that the issue which was being raised
was whether or not the applicant was at the
material time a resident in the subject premises
or was merely a visitor. He was suggesting in the course of his cross-examination that he was no
more than a visitor, but these suggestions were
rejected by the witnesses to whom they were put.
The applicant, of course, was particularly
suggesting by his cross-examination that he was
not a resident.
The manner in which the case was conducted
shows, therefore, that the dispute, if it were
a dispute, was concerned with the question as to whether the applicant was a visitor or resident,
that is to say was or was not an occupier.
And in my respectful submission, that analysis by
His Honour Mr Justice Crockett is quite incorrect.
McHUGH J: What do you mean by that? Do mean his analysis of the contest of the trial or his analysis of the
legal effect of the visitor resident dichotomy?
HlT6/8/LW 25 14/3/90 Apostolides MR GRACE: Both, Your Honour, with respect. The question at the trial, the dispute at the trial, was whether
the applicant occupied the premises or not. That
was the dispute fairly and squarely raised on thematerial to which I have referred the Court to.
To classify the dispute as being whether he was
a visitor or a resident, in my respectful submission,
blushes over the whole gravamen of the argument.-
of the dispute. One may be an occupier, even if a mere visitor, depending on the circumstances.
One may be an occupier, if a resident. One may not be an occupier, even if a resident. There are
different situations that call for different
interpretations. The jury was given no - - -
McHUGH J: There was a critical question here about the
lounge room and one view was that your client was an
occupier of the rear bedroom, not a question as to
whether he could be said to be an occupier of the
lounge room.
MR GRACE: Yes. MASON CJ: What do you say that the expression "occupied by" him means in section 5?
MR GRACE: I say that the expression means that the accused must have some measure of control over the mischief
to which the section is designed to prevent.
That is, the mischief is, bringing on to one's
premises drugs of dependence, or knowledge of the
bringing on to one's premises of those drugs, andhaving no ability and exercising no ability
to control. The question is one of control and
degree of control, as will be seen in the cases that
I will analyse, perhaps, after lunch, will
indicate that the common thread that links all the
cases that will be cited in support of the argument -the common thread is that to be an occupier
one has to have a degree of control over the mischief to be prevented from being brought on to
the premises.
TOOHEY J: If that is right, and it may or may not be, then the deeming provision has a fairly narrow operation.
It really does not much more than restate what
the law as to possession itself may say.
MR GRACE: Well, depending on the fact circumstances,
Your Honour, it may have a very wide operation.
To give one particular example that comes to mind,
imagine a boarding house where there may be 12 rooms,
where there are boarders who pay rent. There is a
corrnnon lounge room that all of them use for the
purpose of watching television. In that common
lounge room is found, as a result of a police raid,
HlT6/9/LW 26 14/3/90 Apostol ides when all are present in the room watching television,
a quantity of drugs. The question is whether the legislature intended that persons in that situation
to be placed in a position of having to satisfy
the court on a reverse onus that they were not inpossession.
In my submission, in that particular example,
the legislation was minded to cover situations
where the keeper of the premises, the person in
charge of the premises, the person in control of the
premises, was the person who was to be culpable
under the deeming provision. And that, in my submission, is clear from an analysis of the early
legislation which this section derives from and the
first such Act in Australia,as far as my researches
indicate, was the OPIUM PROHIBITION ACT. Your Honours
have a copy of that, and that was passed in
1905. The parliamentary debates that surround
the passing of that Act indicate that there was
a great problem in the community, particularly within
the Chinese community, of opium dens existing and
the legislature was wanting to cut out the incidence
of opium addiction in the community, and opium
possession at that time was quite legal until the
passing of the Victorian Act of 1905. The legislature wanted to cut that out so they attempted, by passing
this deeming provision which is contained in
section 8 of that Act, to place on the keeper of
the premises, the person in control of the premises,
the obligation of excluding from the premises the
mischief that the legislation intended to prevent.And in my submission, that provision which has followed
through in almost identical form to today, is also
meant to cover the same situation today.
MASON CJ: Very well, we will adjourn now, Mr Grace, and we
will resume at 2.15 pm.
AT 12.53 PM LUNCHEON ADJOURNMENT
HlT6/10/LW 27 14/3/90 Apostol ides UPON RESUMING AT 2. 16 PM:
MASON CJ: Yes, M~ Grace.
MR GRACE: If the Court pleases, the deeming provision in
section 5 has been in existence in similar form
since the passing of the OPIUM SMOKING PROHIBITION
ACT, 1905 (Victoria). However, there has been no adequate judicial consideration of the
meaning of the word "occupied" as contained
within the section.
Contained within the folder of materials
that Your Honours have are copies of the successive
sections that appeared in the various Acts of
the Victorian Parliament since 1905 commencing
with section 8 of the OPIUM ACT which, if one
reads, is in identical form in the POISONS ACT,
1915, section 33, section 32 of the POISONS,
ACT 1928, section 33 of the POISONS ACT 1958,
section 28 of the POISONS ACT 1962, and the only difference between those sections and the
present section 5 is that once the onus is cast
upon the accused person he is now required to
satisfy the court to the contrary; that is,
that he is not in possession whereas before
he had to satisfy the court that he had no
knowledge thereof so that there may besituations where, although someone has knowledge,
he may not be in possession because he has not
the power, ability or means to in any way controlthe drug.
The predecessor to the present section 5
being section 28 of the POISONS ACT 1962, (Victoria), has been described as "Draconian legislation" when
existing on its own and also in combination with
sections proscribing trafficking in dru3s and an
i}lustration of that particular point is borne
out by reference to se~tion 73(2) of the DRUGS
ACT and that subsection reads as follows:
Where a person has in his possession, without being authorized by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by
that person in that drug of dependence.
So that, although it is not the case in the case
of the applicant, because he did not have a
traffickable quantity, the combined effect of
section 5, the deeming provision, and section 73(2)
is to produce with either section standing alone
or in combination a Draconian piece of legislation
HlT7/l/SH 28 14/3/90 Apostol ides and it has been described as such in a number of
oases decided by the Full Court of the Victorian
Supreme Court.
In the case of REG V ELEM, (1982) VR 295
at page 299, at line 11, the Full Court in a
joint judgment said this:
The combination of ss. 28 and 32 -
and 32 was .a forerunner to section 73(2) -
can thus be seen to be Draconian
legislation. They have been introduced into the POISONS ACT in order to attempt
to deal with a particularly dangerous typeof offence and one which it is no doubt
felt demands Draconian treatment. It behoves
the courts, however, to be astute to see
that provisions of this kind are strictly
construed and fairly applied. It is contrary
to the traditional concepts of our criminal
law that a person should upon his trial
be required to answer a charge proved by
deeming provisions such as are found ins. 28, but it is undoubtedly within the power of Parliament to reverse the onus of proof in criminal proceedings. That
is the effect of s. 28. But the deeming provisions should be allowed no greater
operation or effect than Parliament has
expressed. The form of s. 32(5) differs from that of s. 28, but it has a similar
effect. Although it is properly described
as an evidentiary provision, it has the
effect of attaching a particular quality
to an accused's possession of a specified
drug or of requiring him to show by evidence
that his possession was not for the stated
purpose.
That statement in REG V ELEM was approved in REG V HOLMAN, (1982) VR 471 and there His Honour
Mr Justice Lush indicated at page 474, line 30
his ~pproval of ELEM's case.
Previous decisions of the courts in relation to the words "occupied", "occupation", "occupies"
and "occupier" have meanings dependent upon the
statute under consideration and the context in
which the word is used. Some decided cases conflict in their approach to the prob1em.
For instance, residency does not necessarily
mean one is an "occupier"; a visitor may be
an "occupier"; an "occupier" does not necessarily
have to be a resident or user of premises; transitory
HlT7/2/SH 29 14/3/90 Apostol ides use of premises does not necessarily mean one is an
"occupier" and, if one uses as a starting point
the second edition of the Oxford English Dictionary, one can see that the words "occupation", "occupied",
"occupier", "occupying" have many different and
varied meanings.
The rating cases approach the question from a particular point of view and it is significant
to mention the SHIRE OF POOWONG AND JEETHO V
GILLEN, (1907) VLR 37, a decision of a single
judge of the Victorian Supreme Court and a
decision of the High Court in ROYAL NEWCASTLE
HOSPITAL V COUNCIL OF THE CITY OF NEWCASTLE, (1956)
CLR 495 and that case went on appeal also to the
Privy Council.
In the SHIRE OF POOWONG case, the defendant
had been living with his wife and family for six
years in a house built on Crown land. He had laid water on the land and had cultivated and
fenced it. He had not paid rent nor had it been demanded of him. The Shire of Poowong and Jeetho levied rates upon the land. Gillen objected to
the payment of rates because he said he was
occuping the land unlawfully. His Honour Mr Justice Hood at page 40 of the judgment,
approximately half-way down the page, referred
to a judgment of His Honour Mr Justice Lush in
REG V ST PANCRAS ASSESSMENT COMMITTEE, (1877)
2 QB 581 at page 588 and quoted as follows:
"Occupation includes possession as its primary
element, but it also includes something
more. Legal possession does not of itself constitute an occupation. The owner of a vacant house is in 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.
If, however, he furnishes it, and keeps it ready for habitation whenever he pleases to go to it, he is an occupier, though
he may not reside in it one day in a year.On the other hand, a person who, without having any title, takes actual possession of a house or piece of land, whether by leave of the owner or against his will,
is the occupier of it." It is, of course, a question of fact in each case. If a man is merely there for a night or two,
as in the case of a tramp sleeping in an
outhouse - he is not in occupation. Butif he is living on the land for a continuous period of time the magistrates may properly draw the conclusion that he is in occupation of it.
HlT7/3/SH 30 14/3/90 Apostol ides In COUNCIL OF THE CITY OF NEWCASTLE V ROYAL
NEWCASTLE HOSPITAL, the High Court decision,
there was bushland attached to the hospital
which was owned by the hospital. There was
an exemption in the rating Act which provided
that any land owned by a hospital or a charitable
institution would be exempt from rates. The Council of the City of Newcastle sought to levy
rates on the bushland owned by the hospital
saying that it was not occupied by the hospital
and, therefore, ought not to be allowed to claim
the exemption. At page 500 of the judgment
in the last line, His Honour Mr Justice Williams
had this to say:
As was pointed out by Isaacs J. in KNOWLES
V NEWCASTLE CORPORATION 'occupation' is
not synonymous with mere legal possession.
It includes possession, but it also includes
something more~. His Honour referred to the well-known passage in the judgment
of Lush J. in REG V ST PANCRAS ASSESSMENT
COMMITTEE -
which is the quote that I referred to earlier and
went on to say this:
But it must be remember that L6sh J~ was
there dealing with the meaning of rateable
occupation in England where, to be rateable,
the occupation must be beneficial, and
his Lordship was discussing what constitutes
the beneficial occupation of a house and
there is a great difference between whatconstitutes the occupation of a house and
the occupation of vacant land.
When the case went on appeal to the Privy Council
Lord Denning who delivered the judgment of
Their Lordships - it is a case reported at (1959) 100 CLR 1 - at page 4, the second paragraph
half-way down the page, His Honour said this:
In these circumstances it is unnecessary for their Lordships to consider whether the
two hundred and ninety-one acres were "occupied"
by the hospital: but in view of the argument
submitted to them, their Lordships would
say a few words on it. The hospital was
undoubtedly in legal possession of the
two hundred and ninety-one·acres; for the
simole reason that, where no one else
occupation. Occupation is matter of fact
is in possession, possession follows title.
and only exists where there is sufficient
measure of control to prevent strangers
from interfering -
H1T7/4/SH 3 1 14/3/90 Apostol ides I will just repeat that:
Occupation is matter of .fact and only exists
where there is sufficient measure of control
·to prevent strangers frbm interfering -
Now, that passage was referred to in the judgment
of Their Honours Justices Marks and Fullagar
in the case of the applicant but, with respectit is submitted that Their Honours did not apply
that statement of principle of Lord Denning
to the facts of the case. At page 181, the
quotation that I have just read to the Court
contributed to Lord Denning is set out and
His Honour Mr Justice Fullagar says this,
half-way down the page:
That, I think, more accurately expresses
the notion of occupation in the section,
being a matter of factual control.
Now, it is. to.he noted that His Honour made
no reference to the argument placed before the
Court of Criminal Appeal as to the argument
that the question of occupation must be related
to the degree of control of the applicant in
relation to the premises. His Honour did not address that issue at all. Similarly, His Honour Mr Justice Marks
at page 182, said this - fifth line:
If the matter is one of fact, as I
believe the law states it is, then there
will be a number of considerations. However, a person in premises without any-rights
in law could nevertheless be in "occupation"
within the meaning of a statutory provision
such as the one here under consideration.
It seems to me that once the law states that "occupation" is a question of fact, it is not correct to introduce a need to
prove certain legal rights, although proofof the existence of such rights might have very real cogency of proof of "occupation".
In my respectful submission, His Honour
Mr Justice Marks misconceived the issue. It
is not a question of rights b~t on~ of control.
So that a squatter in unlawful occupation of
a house, nevertheless may be an occupier and may
be in occupation of that particular house for
the purposes of section 5 if he exercises control
as to who comes into the house, as to what comes
into the house and has the ability to exclude
persons or substances coming into the particularhouse; and the same in the SHIRE OF POOWONG case.
HlT7/5/SH 32 14/3/90 Apostol ides It is not a question of legal rights because
Mr Gillen had no legal rights; he was in
unlawful occupation. It was a question of
control that he had over the premises. In
my submission that was the relevant telling
factor.
In the case of FOX V WARDE, (1978) VR 362,
the court there considered section 12(1)(a) of
the VAGRANCY ACT 1966 (Victoria). That sectionreads as follows:
"Any person who (a) being the tenant,
lessee, or occupier, or person in charge
of any premises uses such premises or
any part thereof, or knowingly permits such
pEemises, or part thereof to be used as a
brothel, or for the purposes of habitual
prostitution, wh~ther of one woman ormore, or for soliciting, or accosting persons
therein, or thereon for the purposes of
prostitution shall be guilty of an offence."
There, a prostitute was charged with being an
occupier of a room within premises and that she
used that room for the purposes of habitual
prostitution. This was a decision of a single
judge of the Victorian Supreme Court, His Honour
Mr Justice Mcinerney. At page 366, line 25, His Honour said this about th~ word "occupy" after
referring to a Privy Council decision and he
quoted from that decision:
''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;
and it is in the sense that it is said
in the rating cases that the occupation
of premises by a servant, if such occupation
is subservient and necessary to the service, is the occupation of his master: RV SPURRELL, (1865) LR 1 QB 72. At other times 'occupation' denotes nothing more than physical presence
in a place for a substantial period of
time, as where a person is said to occupya seat or pew, or where a person who allows his horses or cattle to be in a field or to pass along a highway, is said to be the occupier of the field or highway for
the purpose of s. 68 of the RAILWAY.-CLAUSESACT 1845 ..... Its precise meaning in any particular statute or document must depend on the purpose for which, and the context in which, it is used."
Then, he discusses certain submissions made
by counsel and, at page 367, line 5, His Honour
says this:
H1T7/6/SH 33 14/3/90 Apostol ides That is not to say that in proving
that the defendant is an occupier it is
not relevant to rely on the very user of
the premises by the defendant. Indeed, user would ordinarily be one of the matters
from which a court would be asked to draw
the inference that the person concerned
was the occupier of those premises. It
is not, in my view, necessary to show the
"occupation", to use a neutral word, ofthe premises by the defendant is permanent.
There can be few, if any, occupations which
are permanent in that sense. On the other hand, a mere transitory use of premises,
as in the instances put by Mr Uren, isnot sufficient, in my view, to constitute
occupation. Use on one occasion only would not normally, I suppose, be sufficient
in itself to demonstrate that the person
so using the premises is an occupier.
It is not, in my view, necessary to show that the occupation is a lawful occupation.
The occupation of premises by squatters on the scale that has occurred in London
in recent years has, on any view of it,
been on a number of occasions an unlawful
occupation of those premises. The unlawfulness does not prevent the squatters
from being regarded as the occupiers ofpremises, if the inference can otherwise
be drawn that they are occupiers.
Again, 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. Repeated use of thepremises and localization of the premises
used may go a long way towards showing
that the defendant is the occupier of those premises. His Honour then goes to consider the concept
of "occupier" used in a related provision of
the Act and he refers to SYLVESTER's case and
I will be referring to SYLVESTER's case shortly.
At line 49, His Honour said this:
In the present case the only evidence
showing any capacity in the applicant to
exclude other people from the room of
which she is alleged to have been the occupier
is her answer when asked whether she had
the power to exclude others during the
massage, that she was required to. "Do you lock the door of the massage room when
you are massaging a customer?" "Yes,
HlT7/7/SH 34 14/3/90 Apostol ides
v.e ~ to." I do not read that answer as indicating that she had the kind of control
of the premises requisite to establish
that she was an occupier within the meaning
of s. 12(1)(a).
So, it is that word "control" that finds its
way into the judgment and, in my submission,
that is the principle that guides courts in
the interpretation of who is an occupier.
In SYLVESTER V HODDER, (1976) VR 733,
which was a case also on the same VAGRANCY ACT,
Hodder was charged with being:
An occupier of a house, to wit, a room
at 94 Grattan Street -
Carlton -
which was frequented by thieves or persons
with no visible lawful means of support.
He was the lodger in one of those rooms at the
premises which he used as a dwelling. At page 734, of the judgment of His Honour Mr Justice Sholl,
the last paragraph on that page, His Honour said
this:
With regard first to the meaning of
the word "occupier" in sec. 69(3) -
which now corresponds with section 6 of the VAGRANCY
ACT -
there is a decision of the Full Court which
binds me, and in which it was long ago
quite clearly laid down that the word is
not used in the sense of "tenant" or "lessee",
but in the sense merely of "keeper". In RV SAYERS (1867), 4 WW & A'B (L) 46, a
Full Court, comprising Stawell CJ, Barry J.
and Eyre Williams J., had before it a case
stated by General Sessions on an appeal
from the decisions of a police magistrate,
who had convicted each of the defendants
(husband and wife) separately of being "the occupier of a house frequented by reputed thieves or persons having no visible
lawful means of support". The defendants occupied a house proved to have been frequented
by prostitutes, and the male defendant
was the holder of a beer licence for the
premises. It was argued for the wife that
she could not have been an "occupier" at
the same time as her husband. At p. 47 the Court said:
H1T7/8/SH 35 14/3/90 Apostol ides As to the objection that the wife was not
an "occupier" with her husband, this statute .....
did not use the word in the same sense
as the English and local law relating to
municipalities; but rather in the same
sense as the word "keeper" in the English
police statutes. The wife might not be a legal "occupant", but she might certainly
by interfering with the management assist
as a "keeper" of such a house; and as a
keeper of such a house, she would under
the English law be clearly liable.
Her conviction ..... was affirmed -
as was Hodder's.
The firearms cases adopt a similar attitude
to the legislation. YEATES V HOARE, (1981) VR 1034,
a decision of His Honour Mr Justice Kaye, is an
example of the operation of the deeming provision
in section 40 of the Victorian FIREARMS ACT.
Now, if one looks at section 40 of the
Victorian FIREARMS ACT, one will see an obvious
similarity to the deeming provision in section 5
of the DRUGS, POISONS AND CONTROLLED SUBSTANCES ACT.
Now, if I could read section 40(1) of the FIREARMS
ACT to the Court:
Any person who occupies any land or premises or that part of any premises on or in which
any firearm pistol machine gun or prohibited
weapon is found shall for the purposes
of this Act be deemed to be in possession
of that firearm pistol machine gun or prohibited
weapon unless the contrary is proved.
Now, that in terms is similar in import, in
impact, to section 5 of the DRUGS ACT and although
His Honour Mr Justice Kaye did not consider
any of the previous decisions particularly in point on the meaning of the word "occupier", he
found in the circumstances of that case the
defendant was clearly an occupier of the premises
and that case clearly gives an example of where
the deeming provision has been used to prove
possession of firearms but, most significantly,
for the case of the applicant here today~ and I say significantly because this next decision
I will refer to was specifically qualified by
Their Honours Justices Marks and Fullagar in
their judgment in the applicant's case. It
is a decision of HALL V FOSTER, which is an
unreported decision of the Victorian Supreme
Court, of His Honour Mr Justice Hampel on
1 August 1984. Now, the facts in HALL V FOSTER
bear some elucidation. The applicant in that
H1T7/9/SH 36 14/3/90 Apostol ides case was a member of a motorcycle club. That
motorcycle club occupied premises in Orrong Road,
Toorak. The applicant rented a room at those premises and, in that room, when the police
raided, they found leaning against a record
player and clearly in view of any person who
looked around the room, a firearm. The applicant maintained that the firearm was
not his and he had no knowledge of its presence.
The applicant had been absent for some days
prior to the police raid only returning shortly
before the raid. Also, evidence that the firearm
belonged to another member of the club who hadplaced it in the room that day and intended to
remove it that evening was called.
The magistrate concluded that he was an
occupier of the room and deemed to be in possession.
The court considered the authorities of REG V TAO,
FOX V WARDE and YEATES V HOARE and, given that
fact situation, at page Sa, His Honour said this:
In TAO's case, a Cambridge undergraduate
who lived in a hostel owned by his college was
convicted of permitting his room to be used for
the smoking of cannabis. The relevant
English legislation made it an offence
for the occupier of premises knowingly to permit or suffer certain activities to take place on the premises. Roskill LJ.
delivered the judgment of the Court of
Criminal Appeal and said:·
'"the occupier' was to be regarded as
someone who, on the facts of the particular
case, could fairly be said to be 'in occupation'
of the premises in question, so as to have
the requisite degree of control over those
premises to exclude from them those who
might intend to carry on those forbidden
activities." In determining the nature of the legal right to use the premises enjoyed by the
appellant, His Lordship considered that
it was an exclusive contractual licence.
His Lordship concluded:
"It was, in our view, clearly a licence
which gave him not merely a right to use
but a sufficient exclusivity of possession,
so that he could fairly be said to be 'the
occupier' of that room."
His Honour then went on to discuss FOX V WARDE,
SYLVESTER V HODDER AND REG V SAYERS and, at
page 9a, last paragraph, His Honour said this:
HlT7/10/SH 37 14/3/90 Apostol ides In my opinion, these passages indicate
that although occupation need not be exclusive
of others, there must be some right inthe applicant to prevent unauthorised entry
by persons who are not co-occupiers.
His Honour, in deciding the case before him, considered that the applicant did not have "the kind of control of the premises requisite to establish that she was an occupier within the meaning of
s. 12 ( 1) (a)" of the VAGRANCY ACT -
and he is referring there to FOX V WARDE.
Although the provision His Honour was
considering was different from that with
which I am presently concerned, in my
opinion, the same considerations are
relevant.
And His Honour refers to a decision in YEATES V
HOARE, and concludes, on page 10a, one-third of
the way down the page:
In my opinion, these three cases
indicate that to be an occupier of premises
or part of premises within the meaning
of s. 40(1), a person must have a sufficientdegree of control over those premises or
part of them either alone or in combination
with other co-occupiers so as to have the
right or power to exclude others from entering
or bringing unauthorised articles into
the premises or part thereof. In the present case there is no evidence that the applicant
had such rights.
In my view, the Magistrate gave the
word "occupier" too wide a meaning.
The order to review was made absolute and the conviction was quashed.
(Continued on page 3 9)
H1T7/ll/SH 38 14/3/90 Apostol ides
MR GRACE (continuing): Now, it may be said that the facts in HALL V FOSTER are very similar to the facts in
the applicant's case that Your Honours are dealing
with today. There, there is obviously more than one
person present. There, other people had access tothe room, whether it be the lounge room or the bedroom
at the rear. The applicant disclaimed any knowledge of existence of the THC, the hashish,
the heroin, the amphetamine. There was no
evidence put before the court that he had any rights
of control, that is, the ability to exclude others
or substances being brought on to the premises.
McHUGH J: But, you could infer that, could you not? Supposing some stranger had attempted to come into the
lounge room. Why would he not have been able to exclude him?
MR GRACE: He may well have been able to do so, Your Honour, but, with respect, the jury was never given the opportunity to consider that question and as to
whether an inference could be drawn from that fact
would certainly be a matter for argument before thejury. But, by reason of His Honour's misdirection,
in my submission, or failure to direct, the jury were
never given the opportunity to even consider whether
an inference could be drawn to make this person
an occupier by reason of the measure of control in
the case of the applicant.
McHUGH J: We would accept that the jury were told they had to find that he was the occupier.
MR GRACE: Yes, but they were given no direction, with respect, as to what was connoted by- that word?
What was the connotation of the word "occupied",
I ask rhetorically?
McHUGH J: Is that a special leave point?
MR GRACE: Well, in my submission, it is. McHUGH J: Why? MR GRACE:
Because this is Draconian legislation. There has been no judicial consideration of this particular word,
as it is used in the DRUGS ACT in Victori~ and what judicial consideration there has been has been inadequate, in my submission. There is similar provisions in existence in Tasmania and Western
Australia. The authorities on the subject are scant. There are differences of opinion, as is evidenced by the judgment of the Court of Criminal Appeal in this
case, as to what is the appropriate test to determine
"occupation". His Honour Mr Justice Crockettmade no mention of HALL V FOSTER.
HlT8/l/JH 39 14/3/90 Apostolides
specifically overrule it. Every day in Victoria
Their Honours Justices Marks and Fullager said not
persons are being charged under section 5,
deeming provisions, with possession of drugs.
Houses are being raided and people are being charged.
There has been no judicial direction, whatsoever,
in Victoria, as to the meaning of the word "occupied"
and when matters come to trial, what directions
the jury should be given as to the meaning of that
word.
McHUGH J: What about CLARKE.ANDJOHNSTONE? MR GRACE: CLARKEANDJOHNSTONE is an example of a case where the trial judge did give a direction to the jury of
the meaning of the word "occupied".CLARKEANDJOHNSTONE, in my submission, supports my
contentions totally. There, the issue was not even
as grave as it is in the applicant's case. There,
Jbhnstone - and this was a plantation case, as
Your Honours would recall - was a part owner of the
land. Johnstone arranged for the purchase; he was
involved in the management of the land on which there
was cultivated a large quantity of ~arihuana~plants
and yet the matter of occupation,which one using the
principles enunciated by the Court of Criminal Appeal
in the applicant's case, would have said it is
clearly a matter of fact as to whether Johnstone is
an occupier or not. Nevertheless, the trial judge
did direct the jury specifically on that question and
I can direct the Court to the particular passages
in question. The decision is reported at ( 1986) VR 643 and at page 650 the Court considered a
misdirection point on appeal:
His Honour the learned trial Judge
misdirected the jury as to the meaning
of the word 'occupation'.
At line 49, the Full Court said this: In dealing with "occupation" the learned
trial Judge told the jury: "Now whether or
nor any of the accused was in occupation
of Running Creek is a question of fact for
you. Occupation in that context means more
than having the right to occupy. It requires
that the accused whose case you areconsidering did actually occupy the land.
It would be sufficient if the accused
maintained a physical presence by
constantly being present. He or she could
occupy the farm by being there themselves,
or by their agents. Thus a person may occupy
land or premises even though he or she visits
HlT8/2/JH 40 14/3/90 Apostolides those premises only rarely, if he or she
has someone else constantly at the premises
for him:or her. Thus a man may occupy a factory by having his employees there five
days a week. He could well be the occupier although he only went there rarely or not
at all ... If you were satisfied beyond
reasonable doubt that the accused whose case
you are considering did in fact occupy the
farm in the sense that he or she was actually
in occupation herself or by her agent, then
this section would come into operation and
if it did it would then be for that accused to
satisfy you that he or she did not know
that the cannabis was there.
DAWSON J: See, that only goes to show that each case depends on its own facts, does it not? In this case, you
would say, "Well, now look, you have got to decide,
first of all, whether this was a shared house
and if it was a shared house, how many of the
facilities were actually shared and how many were
reserved exclusively for use of one or other of the
occupants". Having said that, there is not much more
you can say, is there?
Now, no doubt, in addresses, at least the
address of the Crown, this matter was dealt, was it?
MR GRACE: Well, one would have expected that to have occurred. DAWSON J: Yes, maybe the judge could not add very much more. You cannot really give a legal definition of
"occupation", can you?
MR GRACE: No, but you can certainly guide the jury on the meaning of the word in the context of that particular
case.
DAWSON J: True. Very little guidance would be necessary here,
would it not, in the context of a shared house as opposed to premises which are vicariously occupied
or where there are complications.
MR GRACE:
Yes, well there was dispute as to the sharing aspect.
DAWSON J: That is right, that is the question. MR GRACE: Yes, it is the control aspect that is vital, in my submission, for the jury to have explained to it.
DAWSON J: I am not sure that that is not unrealistic in this situation. It is really a question of whether
they all used certain rooms and the other rooms were
used exclusively by certain people. That is aboutas far as you can go in that situation, is it not?
HlTS/3/JH 41 14/3/90 Apostolides
McHUGH J:
Unless the jury came to the view that Robinson had exclusive use of the lounge room, there is almost
no way that it could be found that your client was not in occupation, is there not? MR GRACE: Well, the jury would have to be satisfied beyond reasonable doubt that he had a sufficient measure
of control to exclude others or prohibited substances from coming on to the premises.
McHUGH J: But, he is in the house; he has got a room of his own there - that is the lounge room, whatever that
means in this context. Once you get him in the place, you reject his defence that he was a mere
visitor. It is almost inevitable that he was an
occupier unless Robinson had the exclusive use of the
lounge room, is it not?
MR GRACE: I indicated before lunch a question asked by His Honour the learned trial judge of a policeman
as to who occupied the lounge room and the answer
was, Robinson. I also pointed out the question asked by the accused, himself, in cross-examination of Despott, "Who was in charge of the house? I was.
I controlled everything".
McHUGH J: That would not prevent your client being an occupier even though - - -
MR GRACE: Well, the evidence was to the contrary, in my submission. Although inferences could be drawn that
he may have been the occupier, there was evidence to
the contrary which was equally sustainable, in
my submission. And, moreover, as I indicated
earlier, the learned trial judge at no stage told
the jury in his directions that they had to be
satisfied beyond reasonable doubt that he occupied thepremises.
McHUGH J: Yes, I know, but this is not the Court of
Criminal Appeal.
MR GRACE: I appreciate that in itself is not a special leave
point. However, it has to be considered along with the rest of the charge bearing in mind the whole
context, the whole atmosphere that the learned trialjudge created in giving his directions in that manner.
DAWSON J: Was the matter dealt within addresses? MR GRACE: Well, the only gleaning one can get from the transcript is that at one stage His Honour discussed
counsel's propositions with the jury. At page 127
he commences those observations. At page 129 at the
top of the page, His Honour paraphrasing, obviously,
what the learned Crown Prosecutor had to say, said this:
HlT8/4/JH 42 14/3/90 Apostolides Because once you are satisfied this accused
is in occupation of the house - - -
DAWSON J: This is the Crown Prosecutor? He is actually, as it were, putting his words.
MR GRACE: One would suppose so, yes. He is paraphrasing the Crown Prosecutor's words.
DAWSON J: Yes. MR GRACE: then having reg~rd to what was found and where it was found and the evidence of Despott, who only speaks of course of
heroin, but his evidence involves the accused
in having a dominant say in what went on in
the house; accept that, and you will have nohesitation in concluding that this man was in possession of these drugs of dependence. Now, the jury did not accept Despott's evidence.
Despott gave clear and unequivocal evidence that the
applicant was trafficking in heroin through the
agency of Despott. The jury acquitted the applicant of trafficking in heroin. The only evidence that he was trafficking in heroin was the evidence of
Despott. So, the other evidence that Despott gave may or may not have been accepted by the jury. One does not know. If they did not accept any of his evidence then the applicant, in my respectful
submission, as a result of the learned trial judge's
charge, was not given an opportunity of acquittal by
failure to direct adequately or at all in relation
to the word "occupied".
Now, it was also put by the learned trial judge
to the jury - perhaps if I might just digress a
little bit here - that they could also use the deeming
provision if they were satisfied that the applicantused, enjoyed or controlled any of the substances
found on the premises. There was no evidence of use or enjoyment and the evidence of control -
particularly in relation to the heroin and the
amphetamines because the heroin was found in three
different locations. One location was on the floor
in the lounge room where it was contained in a small
plastic bag containing three foils of heroin and one
foil of amphetamine in the same bag. Another
location, on the floor near the fireplace in the
lounge room, was another foil of heroin and on scales
in the kitchen there were traces of heroin.
The basis of control of that heroin was crucial
to the issue of trafficking in that drug because
without control the applicant could never have beenconvicted.
H1T8/5/JH 43 14/3/90 Apostolides
DAWSON J: Well, it is control of part of the premises rather than the heroin, is it not?
MR GRACE: No, it is control of the substance. McHUGH J: No, it is not, not in the first instance. MR GRACE: I am talking about use, enjoyment or control as it is set out in the section.
McHUGH J: Which section? MR GRACE: Section 5. McHUGH J: You are talking about the second limb? MR GRACE: Yes, the second limb because the trial judge also went to the jury on the basis of that second
limb, use, enjoyment or control.
McHUGH J: Yes. MR GRACE: It is obvious that the jury were not satisfied that he used, enjoyed or controlled because, first
of all, there was no evidence of use or enjoyment
of the drugs, amphetamine, heroin or - - -
DAWSON J: But, the use, enjoyment or control, unless I am wrong, refers to the land or premises, does it not?
MR GRACE: No, it refers to the substance, with respect, Your Honour.
DAWSON J: Yes, I think you are right. TOOHEY J: It is your argument, Mr Grace, that would import the notion of control into the first limb although
it is not there in express terms.
MR GRACE: Yes. TOOHEY J: 'But is there express terms in relation to the second limb?
MR GRACE: That is right. DAWSON J:
But, when you talking about the first limb, you must be talking about control of the land or premises.
MR GRACE: Yes, and in respect of the second limb, it is control of the substance.
DAWSON J: Yes, you are right. MR GRACE: Now, it is clear the jury, in my submission, could not have reached the conclusion that the applicant
controlled the substance because if it had, it would
HlT8/6/JH 44 14/3/90 Apostolides have convicted him of trafficking because the
evidence was, of Despott, that the applicant
brought the heroin on to the premises, used Despott
as a selling agent and through that procedure made
money. The jury rejected that proposition and in so doing, in my submission, rejected any notion of
use, enjoyment or control by the applicant of any
substances on the premises. So, therefore, the
only basis upon which the Crown could go to the
jury, as was certainly put by the Crown in their
arguments before the judge's address, the only basis
was deemed possession through occupation of the land
or premises.
In HARRIS V McKENZIE, a decision of the New
South Wales Court of Appeal, the court - - -
TOOHEY J: Sam of these cases are a bit removed, Mr Grace,
are they not? I mean, can you tell us what use you would seek to make of that judgment.
MR GRACE: The use is a very limited use, I appreciate and accept. At page 147, His Honour Justice Kirby said:
"Occupier" normally means the person who
has the immediate supervision and control
of premises.
And, at page 152, His Honour Justice Mahoney refers
to the NEWCASTLE CITY COUNCIL case and at page 153
line 4:
In the end, occupation, as a term, describes what a person is doing in relation to
particular premises. To assign a meaning to the word is, in this sense, to determine
what that person must be seen to do or,
possibly, to be able to do in relation to
the premises. This will involve, not merely
what he may do by way of exclusion of
strangers ..... but also what he does or may do in relation to them generally.
I appreciatethat area of law is, perhaps, getting
a little bit away as Your Honour Justice Toohey
indicated but it is the approach that I seek to
follow of these cases in relation to the interpretation
of the word "occupied" in the section. There can be
no doubt further that satisfaction of proof of the
existence of that fact must be proved beyond
reasonable doubt and that itself was confirmed by
REG V CLARKE AND JOHNSTONE.
If the Court needs any further clarification on
that particular issue, CHAMBERLAIN V REG, a
decision this Court will, no doubt, be familiar with
A:posto 1.des HlT8/7{JH 45 14/3/90 also is clearly authority for the proposition that
proof of a material fact of which the word
"occupied" must be, must be proof beyond reasonable
doubt.
The case of REG V TAO, which was a case that
was referred to earlier in the judgment of
His Honour Mr Justice Hampel in HALL V FOSTER,
(1976) 3 All ER 65 - the facts, I think, have been
sufficiently outlined - at page 67f of the judgment
of the Court of Appeal, Lord Justice Roskill had
this to say:
One asks what is the mischief against which
this section is aimed. If one asks that
question, it seems to this court plain that
the object is to punish those persons who
are able to exclude from their premises
potential offenders who wish to smoke
cannabis in those premises but do not do so,
by making such persons themselves guilty of
an offence if they knowingly permit or suffer
any of the forbidden activities, those persons
being either 'the occupier' or 'concenred
in the management' of those premises. This
suggests that Parliament was intending not
that a legalistic meaning should be given
to the phrase 'the occupier' but a common
sense interpretation, that is to say 'the
occupier' was to be regarded as someone who,
on the facts of the particular case, couldfairly be said to be 'in occupation' of the
premises in question, so as to have the
requisite degree of control over those
premises to exclude from them those who
might otherwise intend to carry on thoseforbidden activities I have already
indicated. That is the way in which this
court would approach the question of
construction, apart from authority.
In my submission, exactly the same statement of
principle could be applied to the interpretation
of section 5 of the DRUGS, POISONS AND CONTROLLED
SUBSTANCES ACT, Victoria . The only way of curing possible injustices that may occur in cases
of this nature is to give the jury a clear and
unequivocal direction where "occupation" is an issue
as to how they should approach the problem ofdetermining whether someone occupies the premises.
The common thread that runs through all the cases on
the meaning of the word "occupier" and other
grammatical forms of that word is that in order to
be an occupier, a sufficient measure of control to
prevent mischief being brought on to the premises
must exist.
HlTS/8/JH 46 14/3/90 Apostolides
McHUGH J: Is that right in relation to section 5 because it is occupation of the land or premises and
once you are found to be an occupier than you
are,prima facie, responsible for anything that is
upon that land but it does not mean that you have
got to have knowledge or the capacity to control
that, does it? I mean, it might be just put there.
MR GRACE:
That is one of the matters you can raise in your defence, that you had no knowledge of the existence
of the substance on . the premises. McHUGH J: Yes, but what about the occupation itself? You were saying that the occupier is the person who
can prevent the substance from coming on. v.Jhy do you say that?
MR GRACE: Because the section was aimed to proscribe the use by persons in their homes of prohibited
substances which have deleterious effects upon
the health of the individual. The section could not have been framed in that way, in my submission,
to cover all persons who just happened to be on
premises at the time that police happened to attend.
McHUGH J: Well, it may be. MR GRACE: For instance, if I was having a dinner party and I invited 12 guests and I was sitting in my dining
room, the police attended and on my buffet in my
dining room there was a bag containing someprohibited substance, on one view of the word
"occupied", all persons present would be guilty of
offence under the deeming provision.
McHUGH J: Well, they do not occupy the premises, do they? They might occupy a seat in it, they might have some
licence to move around the room.
MR GRACE:
In my submission, without judicial direction as to the extent of the meaning of that word, how are
courts to direct their minds as to what is covered
by the width of that expression? On one view, and I will refer the Court to the Oxford English Dictionary,
one can occupy a pew for a very short period of time
or a lengthy period of time and not be an occupier
of premises. One can be present at a dinner party, at my dining room table, and on one view of the
police, if they happen to raid the premises, be an
occupier of that room or that house. In my submission, there must be a more restrict.ed meaning;
to that word and the judge must give direction
to a jury in their interpretation of that word.
It is possible, in this case of the applicant,
in the absence of the direction, that the jury members
themselves individually may have applied different
HlT8/9/JH 47 14/3/90 Apostolides meanings to that word. It is quite possible in
this case and it is my submission that it does give
rise to a special leave point because of the
Draconian nature of the legislation,the fact that hundreds of people are being charged every week
under this section and there is no clear
judicial - - -
McHUGH J: It does not help you to determine whether it is a special leave point to describe it as
Draconian. Some people might say it is a very desirable section.
r:1R GRACE: Well, I only can refer back to what the
Full Court of the State of Victoria said in
ELEM's case - - -
McHUGH J: Yes, I know. r:1R GRACE: - - - as to the strict interpretation and application according to just principles and clear
clarification of the term and the need for
direction to jury should be mandatory where the issue
is raised.
And, furthermore, in my respectful submission,
the state of the law in Victoria is uncertain
in its application. I ask rhetorically, is it the policy of the Act to place an evidentiary onus on
a person who lives at premises where drugs are found?
If so, why not include all persons who visit
premises,where drugs are found, as occupiers? Is it
to include my invalid infirmed grandmother of
86 years of age who lives in a back room?
TOOHEY J: Mr Grace, you cannot expect from the Court some sort of statement that is going to resolve all these
questions. You really have two complaints. Your primary one, as I understand it, is that there was
complete absence of guidance to the jury and if that
is correct then, I suppose, that has to be supplemented by some indication of what is an
appropriate direction in that case but it is going a
bit far to ask, as you appear to be asking at the
moment, for some sort of statement which can be
applied to all sorts of circumstances, however they
might arise.
r:1R GRACE: If I did imply that, I did not mean to. I was asking these questions rhetorically, with respect,
Your Honour. In relation to the point of failure to
direct, could I refer the Court to the unreported
decision of ALLISON V LOWE, a decision of
Mr Justice Nettlefold of the Tasmanian Supreme Court
on 11 April 1988 and page 4 of that judgment - I
would seek to adopt, respectfully, what - as a point
of my argument - His Honour Mr Justice Nettlefold had
HlT8/10/JH 48 14/3/90 Apostolides to say at paragraph 7. There, His Honour said this:
Parliament has not provided us with a definition of the term "occupier".
And there, I may repeat, the court was there
determining for consideration the almost identical section in the Tasmanian legislation:
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.
..... 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.
Now, what is inherent in that passage from
His Honour is the need in a given case and, in my submission, the applicant's case is a given case, for
a clear and unequivocal direction to the jury as to
the way it should approach the issue of the word
"occupied" and, in my respectful submission, what
His Honour Mr Justice Nettlefold had to saysupports the points that I have sought to make - - -
HlTS/11/JH 49 14/3/90 Apostol ides
DAWSON J: But, it does show that anything that this Court
might say about the meaning of the word "occupier"
is not likely to be of general application that
was ·not already apparent. It is a question which depends on its own facts;. the answer to it depends on its own facts in this case as in most other cases.
(Continued on page 51)
HlTS/12/JH 50 14/3/90 Apostolides MR GRACE:' .The.issue perhaps that is left for this Court
to decide is whether in the circumstances of this
case it was incvrrbent. upon the learned trial judge to
give a direction to the jury in the terms complained
about and, in my submission, that issue in itself
raises a special leave point and falls within the
criteria set out in section 35A of the JUDICIARY ACT.
DAWSON J: That is what it comes down to, does it not, whether
this mere omission gives rise to a special leave
point the fact of the omission?
MR GRACE: Yes, and also, in my respectful submission, the case
falls within the criteria that Your Honour
Justice Dawson enunciated in MORRIS V REG
as to the appropriateness of a particular application
for the grant of special leave. As I indicated earlier this matter is of great public importance
bo the administration of criminal justice in Victoria,
because of the prevalence of drug offences in the
connnunity; because of the fact that drug use and abuse
is rife in the connnunity and the legislature has seen
fit to reverse the traditional onus of proof in this
particular section and,in my respectful submission,
the need for this Court to resolve differences of
opinion and also to give clear direction and guidance
as to the need for trial judges in these circumstances,
to give direction on the point is, in my respectful
submission, a matter worthy of a grant of special leave.
If the Court pleases.
MASON CJ: Thank you, Mr Grace. Yes, Mr Flanagan.
MR FLANAGAN: May it please the Court. If the Court pleases, in our submission, in the circumstances·· of the applicant's
case no direction as to the meaning of "occupied"was
required by the trial judge in the instant case. We
point out immediately, Your Honoura,that this decision
of the Full Court cannot be interpreted as saying
that there can be no case in which a direction of the
type sought . must be given. The court is allowing for
the fact that there may becases in which some direction or amplification of the meaning of the word "occupants" or "occupancy" - - -
MASON CJ: Well ordinarily you would expect the trial judge to
give some assistance, would you not?
McHUGH J: This may not be a special leave case, but I would
have thought this point was almost hopeless. This
point you are running at the moment. Surely this was a case where the trial judge should have given some
direction having regard to the evidence as to who wasoccupying,~ who was in what room and what substance
was where.
HIT9/l/CM 51 MR FLANAGAN, QC 14/3/90 Apostolides
MR FLANAGAN: We would have submitted, Your Honour, that probably the real question in the case, leaving
aside the special leave point for the moment, waswhether the jury were left without any or any
sufficient guidance on the matter and we would
merely meet that, if I am going to get to that point,
be saying, "Well, what extra could the judge have
done in the particular circumstances?", and in that
context - - -
TOOHEY J: Well perhaps the first question is, what did the
judge do?
MASON CJ: What guidance did he give? TOOHEY J: Before you start looking for the extra guidance,
what guidance was offered to the jury at all?
MR FLANAGAN: Well, he told them what the onus of proof was, to start with,Your Honour, and he gave them a
definition of "possession" and it was in the usual
common law, the appropriate terms.
MASON CJ: But what about occupation? That was the critical matter.
MR FLANAGAN: I do not know that the choice of the word "critical" is perhaps the proper expression, with
respect,Your Honour. My learned friend has conceded that this matter went to the jury, not purely on the basis of the occupation of the premises by the accused,
but also on the basis of the fact that the substances
which were found there were - it was open to them to
conclude that they were'used, enjoyed or controlled in
any place whatsoever. "
McHUGH J: But since there was a verdict for the accused on the trafficking counts ,it is not very likely that
the jury convicted him on that meaning of the
definition, is it?
MR FLANAGAN: Well that is speculation, Your Honou~ with respect, but the fact that they did acquit him on the trafficking
counts seems to indicate that at least they took careful notice of the judge's directions and they have
obviously analysed the matter and the Court will see
that they were out for some time, that they came back
and they specifically asked questions on at least two
occasions as to the meaning of "possession", and
His Honour gave them the proper definition. Now if my friend is right-and I am leaving the special leave
point alone for the moment- in saying, "Well look, the
judge should have told them that some element of
control is essential to amount to occupancy,th~t the
accused had some element of control~, well in fact
what he said to them in terms of the ordinary common law definition covers the element of control, in any event, in our submission.
HIT9/2/CM 52 MR FLANAGAN, QC 14/3/90 Apostolides
McHUGH J: ~ut what the trial judge said was almost misleading
having regard to the issues. Surely in the context
of this case there were two separate questions:
whether he occupied the rear room and whether he
occupied thelounge room? But the trial judge at 115 said to them: it is a question of whether you are satisfied
on the evidence that he was in occupation of
the land or premises at this street in Newport -
and so on. It was not much guidance to them. It
was apt to mislead them.
MR FLANAGAN: We would submit that it would not mislead them, Your Honour, but I suppose we have to concede that
it does not give any great guidance in the particular
circumstances of the case, but the real question is:
does the particular circumstances of this case call
for that particular guidance? And what we are saying, I suppose,Jour Honours, to the Court is this, that
as my learned friend says, sections similar to this
have been in use in Victoria since 1905 or 1908 or
whatever it was and of course these sort of sectionsare used much more in prosecutions in this day and age
than perhaps they were hitherto. Perhaps that has
got to do with the fact that there are a lot more
crimes of this nature than hitherto, but the fact of
the matter is, the judges quite frequently - it is
a regular part of their function now to be dealingwith this sort of deeming provision in all of the
sorts of cases we are talking about, but especially
in drug cases, and it has not been the practice in
Victoria to give any specific direction as to the
meaning of the word "occupancy", any more than it
has been - - -
McHUGH J: But what about CLARKE AND JOHNSTONE? There was a fairly - - -
MR FLANAGAN: That was a case where some guidance and direction was given, we conced~ Your Honour.
MASON CJ: Are you saying it is not the practice to give
guidance in Victoria?
MR FLANAGAN: No, I am not saying that, Your Honour. I am saying it is not the practice to define or give a
meaning to the jury of the word "occupancy". I am sorry if I misinformed Your Honour on that. They do not any more than for instance they normally would
give a definition of what is meant by "used" or
"enjoyed" or "controlled", and it is very unlikely
that they would ever get to the stage of giving a
definition of "in any place whatsoever", as it seems
HIT9/3/CM 53 MR FLANAGAN, QC 14/3/90 Apostolides to be very broad, and that is the point in the
legislature's intention, we would say, was to create
very broad and use very broad terms that laymen
might understand and not to use technical terms andthere is probably validity in the submission, with respect, that in using this form of legislation it is the intention of the draftsmen to get away from technicality, to get away from the problems that the
law has faced over what really amounts to possession
in a particular circumstance and to use ordinary
non-technical laymen's language and it would be
submitted that to take my learned friend's interpretation
of what the word "occupation" means, or "occupied"
means, would be to import into that word, as he would
put it, some element of control by the accused person.
And it is submitted that to do that, to say that a person only occupies a place when he has some actual
element of control, is not saying much more than the
cormnon law definition says, as exactly as the judge
put it to them at page, I think, 112, where he putit to them in these terms:
Possession has two elements, Mr Foreman.
First of all, it means a capacity to exercise
control over the thing which is said to be
possessed, in this context, of course,
either heroin or amphetamine or hashish.
Might I just pause to say something that perhaps has not been brought to the Court's attention yet,
and there maybe a mis interpretation as to it. In
terms of the back room the bedroom, which was said to be used by the applicant, there was hashish
found there, quite apart from the marihuana. I
was not sure that that had been stated clearly
earlier, Your Honour. But then to go back to what His Honour is saying: That control may be exercised either alone or
must be present an intention that the man jointly with another or with others. There intends to enjoy and exercise such capacity of control over that particular drug, that is, capacity to exercise control, either alone or jointly, and an intention to exercise control.
Well now -
DAWSON J: Now,that is a fairly technical sort of definition, it. may or may not have assisted the jury, but in relation to occupation he could have said something
so simple, just something to the effect, "Well
gentlemen, the question really is whether this was
Robinson's room or whether it is a room used by all
of them. Now you may well conclude that if it was
used by all of them, they all occupied it, because
occupation does not have to be exclusive. If it was
HIT9/4/CM 54 MR FLANAGAN, QC 14/3/90 Apostolides Robinson's room, well then,it may be a different
situation".
J:1R FLANAGAN: Well, I concede he could have said that,
Your Honour.
DAWSON J: And then the jury would have been directed in the
right way, p.it in the right direction anyway.
J:1R FLANAGAN: I have to concede he could have said that, Your Honour.
DAWSON J: But they are at sea otherwise.
| • | J:1R FLANAGAN: | Yes, but the point that I am making, Your Honour, |
my friend is saying that the jury may have been
confused as to what their true function was here,
that they did not get the adequate guidance that
should be deemed to be necessary to be given to the
jury.
McHUGH J: But that is the problem, is it not, because there
is ambiguity in the word "occupied". You have only got to see the difference of opinion between
Mr Justice Hampel in HALL V FOSTER and
Mr Justice Fullagar in this particular case. The what 11 occupied11 means.and yet the matter is just left learned judges in the supreme court cannot agree upon to the jury at large.
J:1R FLANAGAN: Well, we would have submitted Your Honour, in
answer to that question, that it would be quite wrong
of the judge to attempt to give a legal _ definition to the word "occupied", because that may seem to confuse rather than to assist in a case. The
real question is whether he addresses their attention
to what the real matter for decision in the case is,
and the question here is that His Honour has told them
over and over again that they have got to be
satisfied of possession beyond reasonable doubt. He has told them of the fact, the structure of his charge
is to give the definition, which is the normal
definition given in almost all -cases,and I say almost
all, but the one that is regularly given, and then
to say that the Parliament has extended what "possession"
means. And every time he talks about "beyond reasonable doubt" he is talking about "possession" including the
extended meaning of it. So that we say there was no suggestion here that they might have been mislead as
to where the true onus was. He expressed it any number of times. We concede that nCMhere in here
will you find that he specifically says, "You have
to be satisfied, beyond reasonable doubt, that he
was the occupant". He does not say that. You cannot
find it here. It is not there, but in the way in which he structures his charge every time, he is structuring
HIT9/5/CM 55 14/3/90 Apostolides it by defining "possession11 , defining the onus and
saying that the Parliament has extended the meaning
0£ the word "possession" by including these situations, but he does not go on to give a legal meaning to each
of those particular situations. And we say he has done no less and no more than just that and we do
put it that in the particular circumstances of the
case. even though, for instance, the hashish was
found in the bedroom there was no need to go on
and analyse every little bit of evidence that was
there in relation to that and there was a syringe
found Lnere, for instance, and some money, I think
from memory, and of course the marihuana to which
he had already pleaded guilty and I think a bag anda brown box that contained the cake of hashish and
silver foil, which is the sort of thing used to
package these materials when in fact they are being
trafficked in,and what you would expect them to be in
if somebody is in possession of them.
But what we say, in relation to that_- it
is hard to imagine what more His Honour could have
said in those circumstances, for instance about the
usage or enjoyment of them. Does he go on to say, "Well, they were there and you can infer usage from
it" that there is no actual evidence that anybody
saw him chewing it or smoking it or whatever one does
with these various substances? So that we would put
it that the jury were left under no illusions at all
here. At all times he is saying to them, 11 You have got to be satisfied beyond reasonable doubt what
"possession' means, and it has an extended meaning".
Now I cannot put words into His Honour's mouth and
suggest that there are thingstbere: that he said or
we can infer that he should have said. We can only go on what he has actually said to them. As to the special leave point, Your Honours, we
would put in here that if the Court were to take the
view that there had been some omission, in the
circumstances, that the law required some particular direction in these particular circu ances nevertheless it does not give rise a special leave point in the circumstances of this case. As I say, this Court of Criminal Appeal~ not the High Court- really are deciding, unanimously, that in the
particular circumstances of this case it was not
necessary for the judge, as a matter of law, to give
directions further than he did. They are not for a moment in fact Mr Justice Crockett says that in his
judgment which is agreed in by the other two, at
page 171:It may be allowed there may be cases in which some direction or amplification of the meaning
of the term is called for.
HIT9/6/CM 56 14/3/90 Apostolides
Now they have examined the circumstances of this case and they have said no more in this particular
case in terms of other courts following them: than
the fact that the particular circumstances of this
case did not call for any further direction. And a lot of the reason one might have thought - I mean
might be regarded as significant in the particular case
there are a lot of reasons that no doubt compel
is that the fact that this deeming provision, which
in that one respect changes the onus of proof, there
was no effort in this particular case. This was not
a case where the judge really was compelled ~o go
into any detail about it and start giving a lot of
assistance, which may have not assisted the accused at all because this was a case where he stood mute.
McHUGH J: Is there not error in the approach of Mr Justice Crockett
at 171 where - - -
MR FLANAGAN: 171, Your Honour? McHUGH J: 171, the page to which you referred us, where His Honour says;
The manner in which the case was conducted
shows, therefore, that the dispute, if it were
a dispute, was concerned with the question as to whether the applicant was a visitor or resident, that is to say was or was not an occupier.
Now,His Honour seems to have taken the view that
if he was a resident in the premises. then he was
an occupier but in the context of this case that
does not follow at all, does it? He may well have been a resi.dent in the premises but he may not
have been an occupier of the room where the heroin
was.
MR FLANAGAN: Well, Your Honour, if we look to that case that
was referred to earlier the one of CLARKE AND JOHNSTONE, that is whre some assistance was sought to be given
to the jury and it was said that there was no error
in what the judge had done there and that it was not
inadequate direction. They go on in fact to say that it was too favourable, because the judge had started
off there at the foot of page 650, by saying:
(Continued on page 58)
HIT9/7/CM 57 MR FLANAGAN, QC 14/3/90 Apostolides MR FLANAGAN (continuing): Occupation in that context means more than
having the right to occupy. It requiresthat the accused whose case you are considering
did actually occupy the land. It would be sufficient if the accused maintained a physical
presence by constantly being present.
Well, then they go on later to say that requirement of
"constant physical presence" is not necessarily for
proof of occupation.
MASON CJ: There is nothing wrong with that sentence in itself. It would be wrong if you read it as requiring
physical presence by constantly being present.
MR FLANAGAN: Yes, Your Honour. But what I am putting to the Court there is that mere physical presence may
amount to occupation. It does not necessarily
follow that it has to, but it may and in this case
when His Honour Mr Justice Crockett is talking about
being a resident, it must be assumed that, at least,
he is talking about , presence - physical presence. I would submit to the Court that what His Honour
is doing there is perhaps not using the most
felicitous language to express what it was that he was
intending to convey, but what he was really doing was
drawing a distinction there between what was really
fought out as the real issue between the jury and the
Crown and on the one side you have got the defendant
who stood mute, endeavouring by cross-examination,
to which he very rarely gets an answer his way- but
suggesting by cross-examination--and His Honour
position of having to try to work out,from haviLg read
that cross-examination, what it is - the best it is
that can be said for the accused and what he is trying
to say for himself and what the accused - and he has got
to confine himself within the language that the accused - the words he is using to convey whatever it is he is
wanting to get through to the jury and what the fellow,
obviously, was trying to put into the jury's mind as
being a reason for acquitting him was this concept
that he really was not connected with the place
of controlling it or :b. charge of it, they were the sort
of questions he put to the accomplice, for instance.
But his contact was merely- although he did not the
word - of a transitory nature whereas the Crown case
was making it perfectly clear that there was an actual
positive arrangement, lease and so forth,and that the accused had entered into an arrangement with these
other people; there were four people who had accessto the house who were apparently living there; that
certain rooms were common to them, the lounge,and some
HlTl0/1/JL 58 14/3/90 Apostolides were set aside, to some extent in the sense that
they were used for sleeping purpose exclusively
by. different people but not necessarily so as to
exclude one from having access to any one or other
of the rooms._. Clearly that was not ·what the .ev:i:dence
conveyed. The other thing, of course, is that che accused, himself, was apprehended in the very lounge room
where all these things are seen to have been and,
in terms of the heroin which was a rather more serious matter, in terms of the possession or the
trafficking. But the point, I think - I do not want to get away from it, Your Honours - am trying to rnake
is that here is a judge in a Court of Criminal Appeal
that has very big lists trying to deal with a business
with expediency and expedition; trying to, having read
the particular cross-examination of the accused - because it is all he had to go on to try to work out what it was that the accused was trying to get through to the jury
as to being the reason why he should be acquitted and
whilst it might be suggested that there is an infelicityin language, that it is not, perhaps, as precise as
it should be, His Honour is, nevertheless, I would
respectfully submit to the Court, accurately identifying
the two poles - what the polarization was that, on
the one hand you have got a person saying, "Look the
Crown case has been that I slept there, I lived there,
I was in an arrangement, I did not stay there all the
time but I was actually trafficking, directing and
controlling things on the premises",whereas what he is
saying himself - and he did not go into detail, of
course, about any of these things he just tried to take
particular points and get the best interpretation that
he hoped the jury would place upon it favourable to
himself and in doing that he was trying to convey theidea,as he put to the accomplice, "Well look you are
suggesting I was in charge of it" and some others say,
"But look yo1,1 were in charge of the premises". All he was really doing was endeavouring to say, "My part
in these proceedings was transitory~ I told the police
at the time I did not sell drug~_ Yes,I was there,
they got me there". He does not say it but that is what he is trying to convey to the jury and that was the
simple issue. Was he in a situation where the law would normally deem him to be in possession, in the
ordinary sense, or do we have to imply, or extend the
meaning of the ACT, so as to get him into some situation
where he is deemed to be something? In this case,
clearly, that was one of the factors in the Crown case
but the real point is that, we would submit, that the
jury can have been under no illusion as to what the real
issue was in the case .. The accused had not, in any way,by giving any evidence at all,set out to show that, in
fact, he did have this transitory or fleeting connection
with the place. Really it was the Crown case going to
the jury with everything that the judge could find to sayfor him and, in those circumstances, we would submit,
HlTl0/2/JL 59 MR FLA..~NAGAN, QC 14/3/90 Apostolides there was very little more the judge could have said.
I can see what Mr Justice Dawson puts, that you could
have gone into some detail; you could have, perhaps,
been more felicitous in the choice of language. It
might have been that you might have said a number of
things, but what we are saying is none of it - or what
we are really saying is that what the judge did here
was adequate under the circumstances of the case; that
the jury could not have been under any illusion as to
what their duty was. The onus was expressed accurately over and over again and when Mr Justice Crockett- coming
back to the point that was put to me by Your Honour a moment ago - when he is using this word of sort of distinguishing between 'resident' and 'visitor',I would
suggest he is merely using it as a convenient usage
of language if, perhaps, not an exact one, to indicate
this real issue in the case, what the case really was
as he interpreted i½ and it must be conceivably, we
suggest to Your Honours, that it is not easy to find the right words in this sort of context where the man has not p.opped into the box, or has not made an unsworn
statement and said something. The judge is really in a
very difficult situation trying to do his best in his
charge and that is a matter which, of course, this Court
would be well appreciative of. I do not know that there
is any other matters I want to address to the Court,
with respect. No I think that is all we wish to put
to the Court, if the Court pleases.
MASON CJ: Yes, thank you,Mr Flanagan~ Yes, Mr Grace. MR GRACE:
Just some short matters in replY, Your Honours. To solve the problem of drug use and abuse through a dee::iin:: clause such as the one under consideration, one ave.me of approach which the legislature has adopted is to put possession in the person, it is submitted, who might be
expected to have the right to determine who is entitled
to enter and remain on the premises and a right todetermine what substances are allowed or excluded from
the premises. Some measure of control in the individual concerned
is necessary, in my submission, to qualify one as having
occupied premises within the deeming: provision and
some possible assistance may be obtained from section 35
of 1:he Victorian INTERPRETATION OF LEGISLATION ACT 1984
which says this, in subsection (a):
In the interpretation of a provision of an Act or subordinate instrument-
(a) a construction that would promote the
purpose or object underlying the Act or
subordinate instrument (whether or not thatpurpose or object is expressly stated in the
HlTl0/3/JL 60 14/3/90 Apostolides Act or subordinate instrument) shall be
preferred to a construction that would not
promote that purpose or object -
In my submission, the purpose or object of section 5 is to put possession in the persons who have got some degree of measure of control and that is how the
section ought to be interpreted. The failure of the learned trial judge to give any, or adequate, direction
as to the meaning of the word "occupied", in my
submission, deprived the applicant of a fair chance of
acquittal. He did not have the opportunity to have the jury consider properly and under proper direction
as to what was meant or what steps they could take in
determining whether he occupied the premises.
In relation to what His Honour Mr Justice Crockett
had to say - and I adopt, with respect, the comments
of His Honour Justice McHugh -whether one is a visitor
or a resident really blurs the whole issue. A visitorcan be an occupieL a resident can be an occupier; a
resident may not be an occupier,a visitor may not be
an occupier. Establishing whether one is a visitor or
a resident is only one step along the way to establishing
whether one occupies or do not occupy a particular
premise.and, further,adequate directions were needed
because each individual member of the jury may have
adopted a different meaning to the word "occupied"
and,in my submission, that also is a telling factor
in relation to the particular injustice of this case and,
in particular, in respect of the administration of
justice that has occurred in this case. ~~dto adopt what
His Honour Justice Dawson said in MORRIS V REG (1987)
74 ALR 161 -it is also reported at (1987) 163 CLR 454. At
page 176,His Honour Justice Dawson said this, at line 46:
Section 35A of the JUD IC I.ARY ACT. 1903 ( Cth) allows
the court to have regard to· any matters that itconsiders relevant, which confirms the
discretionary nature of the jurisdiction to grant special leave. The section goes on to provide that, in exercising that jurisdiction, the court shall
have regard to the public importance of any
question of law and the need to resolve judicial
differences of opinion concerning the state of the
law. In addition the court shall, under the
section, consider whether the administration of
justice, either generally or in the particular
case, requires an application for special leave
to be granted. Those criteria are to be_ found inprevious decisions of the court 1nd the section,
as far as it goes, is declaratory.
In my submission, at the very least, the grant of special
leave is justified because the question of resolution of
HlTl0/4/JL 61 14/3/90 Apostol ides differences of opinion between judges of the differences of opinion between judges and courts
:i.:1.1 various C:ifferent justidictions. Unless the Court
has any specific matters my attention ought to bedrawn to that completes my submission.
MASON CJ: Yes, thank you Mr Grace. The Court will take a short
adjournment in order to consider the course it
will oursue in this matter.
AT 3.48 'PM SHORT ADJOURNMENT
UPON RESUMING AT 3.58 PM:
MASON CJ: The principle ground urged in support of this application
for special leave to appeal is that the trial judge
failed to give the jury sufficient guidance as to the
meaning of the words "occupied by him" where they appear
in section 5 of the DRUGS, POISONS AND CONTROL
SUBSTANCES ACT 1981 of the State of Victoria.The trial judge did not offer any definition of the word "occupied" or any examples of what constitutes
occupation for the purposes of the section. Perhaps
that was because the concept of occupation does not
readily lend itself to legal definition and the question
whether a person may be said to be in occupation of
particular premises turns very much on the facts of the
given case. Nonetheless, notwithstanding the view
expressed by the Full Court at page 171 of the
application book,we consider that the trial judge should
have given further guidance to the jury by way of illustration and analysis of the evidence. However, we are not persuaded that this case, if special leave
were granted, would result in any useful elaboration
of general principle and having regard to the way in
which the trial was conducted we are not persuaded
that on this, or any other ground, there has been any
miscarriage of justice. Accordingly the application
for special leave to appeal is refused.
MR FLANAGAN: May it please the Court. AT 4.00 PM THE MATTER WAS ADJOURNED SINE DIE
HlTl0/5/JL 62 14/3/90 Apostolides
Key Legal Topics
Areas of Law
-
Criminal Law
-
Statutory Interpretation
-
Evidence
Legal Concepts
-
Charge
-
Sentencing
-
Statutory Construction
-
Appeal
0