Fraser v Commissioner of Police

[2008] QDC 156

[2008] QDC 156

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE NASE

No BD1562 of 2007

JOHN EDWARD WILLIAM FRASER	Appellant
and
COMMISSIONER OF POLICE	Respondent
BRISBANE ..DATE 04/03/2008

JUDGMENT
HIS HONOUR: On 22nd September 2006 the appellant, John Edward

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William Fraser, was convicted of a breach of the Drugs Misuse trial.

The particular breach of the Act was a charge of possession of	10
a small quantity of cannabis sativa (1.4 grams). The drug was not physically in Fraser's possession but was in a house occupied by him, his wife and their two sons.
The cannabis was in a small fishing tackle box located on a	20
shelf in an enclosed veranda. The veranda was described in the trial as a common area used by all the occupants of the house. The shelf was adjacent to a computer. From the
photographs it was fixed to an internal wall above the
computer. Looking at the photographs, the shelf looks quite	30
cluttered (the whole area, for that matter, looks cluttered) and it is well above the eye level of someone seated at the computer.
The sons, at the time, were aged 22 years and 16 years.	40
Fraser, when he was questioned about the tackle box, said he
had not seen it before and was unaware of its presence in the
veranda. Apart from the small quantity of cannabis
(1.4 grams) the box contained a few hooks and fishing
paraphernalia. He told the police nothing in the box belonged	50

to him. His fishing equipment, he said, was in a shed under
lock and key.
Logically, the box may have belonged to anyone or more of 2 JUDGMENT 60

1

those living at the house. Being unable to prove the box and,
therefore, the small amount of cannabis, was actually in his physical possession, the prosecution framed the case against him on the evidentiary presumption resting on occupiers.

Section 129(1)(c) of the Drugs Misuse Act deems an occupier or	10
person concerned in the management or control of a place "in or on" which a dangerous drug is found to be in possession of the drug unless the person shows an absence of knowledge or reason to suspect the presence of the drug in or on the place.
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The Magistrate, in determining the charge, accepted the Police
Prosecutor's argument that Fraser was "either an occupier or
in management or control of these premises and the workstation
including the shelf". Mr Hardcastle argued that use of the
presumption was misconceived. He also argued that, on the	30
evidence, Fraser had discharged the onus of showing that he neither knew nor had reason to suspect the drug was in or on the place.
Whether or not Fraser was an occupier or in management or	40
control of a place is a question of fact, and an appeal from
such a conclusion of fact would not usually be expected to succeed. Nevertheless, I am satisfied the Magistrate fell into error in resorting to the evidentiary presumption on the
admitted facts of this case. I will endeavour to explain why	50

I have reached this conclusion in my own words.
In Symes v Lawlor, 69 Australian Criminal Reports, 432, 3 JUDGMENT 60

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Fitzgerald P and Callinan J commented that the evidentiary
presumption in the Drugs Misuse Act continued to cause
difficulties in its application. In commenting on the wording
of the presumption they said, in part:

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"That compendious phrase cannot be satisfactorily
construed by an analysis of its separate components. It
factors upon the precise place, in or on, which a drug is found and requires that the place be occupied, managed or controlled by the accused. The distinction is to be
drawn between any place which is and any place which is

not occupied, managed or controlled by the accused and the location of the drug must, for the purposes of the section, properly be ascribable to the former and not the	20
latter. It is to misread and misapply the section to create a presumption of possession against the accused by demonstrating that although the immediate place which the drug is in or on is not occupied, managed or controlled by the accused, that place is, itself, in or on a larger place which the accused does occupy, managed or control."

Thus, following that decision, the Court of Appeal held in

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Lawlor v Prideaux, 70 Australian Criminal Reports 145, that the relevant place a drug was in or on was the person of a visitor to the premises occupied by the defendant. In applying this provision it is, therefore, critical to determine the place for the purposes of the presumption. In

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turn, the determination of place involves an assessment of the

relationship between the suspect and the place.

While the Magistrate's conclusion that, as a matter of fact,

Fraser was an occupier and concerned in the management or

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control of the enclosed veranda and the area about the
computer was arguably correct, I do not think he posed the
right question. On the facts of this case the relevant place
was the tackle box, not the enclosed veranda or the shelf on 4 JUDGMENT 60

1

which the box was sitting.

To characterise the place in or on which the drug was found as
the box is merely to give weight to the circumstances the

veranda was one of the common areas of the house and that any	10
one of the occupants may have left it there, and to the
circumstance that there was no other evidence to link Fraser
with the box. Once the tackle box is identified as the
relevant place, the evidence is unable to sustain a conclusion
beyond reasonable doubt that Fraser had the management or	20
control of the place where the drug was in or on.
In those circumstances, the conviction cannot stand and the
appeal will be allowed. The following orders are these:
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(1) the appeal is allowed;

(2) the conviction and sentencing orders are set aside

and in lieu, therefore, the charge is dismissed.

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5 JUDGMENT 60