Hargreaves v The South Australian Housing Trust - [2012] SADC 166

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Residential Tenancies Act 1995)
HARGREAVES v THE SOUTH AUSTRALIAN HOUSING TRUST
[2012] SADC 166
Judgment of His Honour Judge Cuthbertson
4 December 2012
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION
Eviction from premises - appeal against decision of Tribunal - failure to adjourn proceedings - finding that tenant had used premises for illegal purpose.
Appeal against order of Tribunal evicting tenant from premises where illicit drug precursors were located.
Tenant evicted after location of illicit drugs, precursors and equipment.
Failure to adjourn eviction proceedings pending outcome of criminal proceedings for Manufacture of a Controlled Drug, Possession of Prescribed Equipment and Possession of a Prescribed Drug - whether in circumstances where manufacture of illicit drugs has been held to take place in premises that constituted use of premises for an illegal purpose contrary to s 90(1)(a) of the Residential Tenancies Act 1995.
HELD: In absence of an application to adjourn, the Tribunal decision in proceeding to hear the application was correct. Finding that the premises had been used for an illegal purpose upheld.
Appeal dismissed.
Residential Tenancies Act 1995 s 90, referred to.
Timms v South Australian Housing Trust (2003) 226 LSJS 42; R v Palombe (1989) 52 SASR 526, considered.

HARGREAVES v THE SOUTH AUSTRALIAN HOUSING TRUST
[2012] SADC 166
Introduction

This is an appeal pursuant to s.41 of the Residential Tenancies Act 1995 in relation to a decision of the Residential Tenancies Tribunal made on 25 May 2012 to evict the appellant from premises located at 33 Grosvenor Place, Wynn Vale.
The grounds of the original application of the landlord to evict were as follows:-
On 29 February 2012, SAPOL attended the property at 33 Grosvenor Place, Wynn Vale, and located a clandestine drug laboratory within the house. SAPOL arrested the tenant, Wayne Hargreaves, and he has been charged with Manufacture of a Controlled Drug, Possession of Prescribed Equipment and Possession of a Prescribed Drug. Mr Hargreaves has been bailed to a property at 2 Jenkin Court, Mallala. SAPOL have declared the property to be a dangerous area, due to the chemicals used in the clandestine laboratory. Chemicals and glassware were removed from the premises by SAPOL on 29 February 2012. Due to the seriousness and known risks associated with drug manufacture, Housing SA now has no other option than to seek to have the tenancy terminated.
By Notice of Appeal dated 14 June 2012 the appellant appeals the orders of the Residential Tenancies Tribunal made on 25 May 2012. Whilst a number of grounds were initially asserted the argument finally proceeded on only two grounds.
The grounds upon which the proceedings ultimately were argued were as follows:
1.That the Tribunal should have adjourned the application until after criminal proceedings in relation to the same incident were resolved.
2.That the Tribunal was in error in holding that the appellant had:
Used the premises, or caused or permitted the premises to be used, for an illegal purpose. See s.90 (1) (a) Residential Tenancies Act 1995.
Application of Legal Principles
The Full Court has held that, on appeals to the District Court from the Residential Tenancies Tribunal, pursuant to s.41 of the Residential Tenancies Act, the role of the Court is to determine whether or not some error by the Tribunal has been established as distinct from hearing the case afresh. Whilst there is provision in the Act which allows the rehearing of evidence there must be a particular reason for doing so and the mere fact that a party is not happy with the result at first instance is not an appropriate reason.
The ultimate issue is whether error has been demonstrated on the part of the Tribunal. (See Timms v South Australian Housing Trust (2003) 226 LSJS 42.
No application was made before me to rehear the evidence nor to adduce additional evidence.
The failure to adjourn the proceedings
There can be no question in my view that the Tribunal would have had power to adjourn the proceedings pending the outcome of criminal proceedings which relate to the subject of the proceedings before the Tribunal. In my view such power if not inherently vested in the Tribunal exists by virtue of a combination of ss 32(1)(a),(b),(g),(j) and (k) of the Residential Tenancies Act 1995.
Good reason to adopt such a course might be because expensive, complicated and lengthy enquiries could be spared the Tribunal by awaiting the outcome of the matter in the criminal proceedings or, if the tenant had good grounds for arguing that forcing him to deal with the eviction proceedings before his criminal trial might force him to provide further material which could be used against him in the criminal proceedings.
In any event, the simple answer is that the tenant did not make any application to stay the proceedings. He has not demonstrated any prejudice or consequence as a result of his decision to proceed with the Tribunal hearing at the time.
The drug laboratory was inherently dangerous and it was important that the proceedings take place as soon as reasonably practicable.
The appeal must fail on this ground.
Was the Tribunal in error in coming to the view that the appellant had used the premises for an illegal purpose pursuant to s.90(1)(a) of the Residential Tenancies Act.
The appeal on this ground did not challenge any of the factual findings of the Tribunal but rather sought to argue that, upon those factual findings, it was an error to find that the appellant “used the premises….for an illegal purpose”.
The evidence of the respondent which was accepted included the following:
…..
·on 28 February 2012 police seized a quantity of chemicals including iodine in its natural state, hypophosphorous acid, pseudoephedrine (found in 249 blister packs), caustic soda, hydrochloric acid, a solvent and acetone;
·they also found several items of glassware, a reaction vessel and other apparatus including a stand, gas burner and grinder;
·these items are commonly used in the manufacture of the illegal drug methamphetamine and the only item which was not present which would have been required for its manufacture was a condenser, and that could easily have been removed from and brought back to the property;
·in his experience, the amount of chemicals and equipment present suggested a well organised medium level illegal drug manufacturing arrangement;
·the items seized were spread throughout the property;
·in his assessment the chemicals presented a safety hazard and in particular, their combination could create a toxic gas similar to mustard gas;
·the presence of rubber gloves, face masks and protective eye gear suggested the persons using the equipment were aware of the potential safety hazards from the chemicals;
·also removed from the property was a small quantity of white paste which is suspected to be methamphetamine.[1]
[1] See reasons for order of the Tribunal p2
The appellant had given evidence that on the night of 27 February 2012 he stayed at the home of his partner and was called to his house by a friend to find two men in the house who had brought the equipment to his house and were starting to put some of it away in cupboards.
One of the men had been to his house before and so was aware that the appellant kept a spare key under an ashtray out the back and that is how they entered the house. Just as they were leaving the police arrived and the appellant was arrested.
The appellant said he was not involved in the manufacture of an illegal drug and did not allow his property to be used for that purpose.
If that version of events was accepted on the balance of probability then in my view the appellant would have succeeded in proving that the premises had not been used for an illegal purpose by him. The Tribunal however, not surprisingly, rejected the story which has all the hallmarks of being a fanciful one.
The version of the appellant having been rejected, the Tribunal found that the volume of chemicals and equipment and the dispersed location of them throughout the property and in cupboards dispelled any suggestion that the offending material had been recently brought to the premises and led to the inference that the premises had been used or permitted to be used for the illegal purpose of the manufacture of methylamphetamine and that the offending material must have been there for some time.
It has not been argued nor has it been demonstrated that that finding was in error save on the basis that it is argued that such usage did not constitute a breach of s.90(1)(a) of the Act, insofar as it did not constitute use of the premises for an illegal purpose.
In the Director of Public Prosecutions v George (2008) 102 SASR 246 George was found to have grown cannabis in a shed at the rear of his property.
A question for the Full Court was whether the land was “an instrument” of the offence for the purposes of s.7(1).
In the Criminal Assets Confiscation Act 2005 property is described as an “instrument” of an offence if it is:-
(i)used in, or in connection with the commission of an offence; …..
In the decision of the majority, Doyle, CJ discussed the question of what constituted use of land being an instrument of the offence pursuant to s.7(1).
The additional phrase “used in or in connection with” exists in the definition of “instrument” in s.7 of the Criminal Assets Confiscation Act and does not exist in s.90 of the Residential Tenancies Act. In R v Palombe (1989) 52 SASR 526 at 531-32 Cox, J discussed the wider meaning to be attributed to the use of that phrase (referred to by Doyle, CJ at para 57).
His Honour pointed out that the composite expression is one that has been frequently used and has been said to have a wide reach (para 58).
His Honour said at p263:
75There are a number of circumstances that lead me to the conclusion that the land was used in connection with the commission of the offence of producing cannabis.
76The offence was not merely committed on the land. It is in no sense an accident or coincidence that the offence was committed there, as it might be if a visitor called in and sold some cannabis while on the land. The shed provided a convenient and secure place to grow the cannabis, in particular because the use of the shed and of the land enabled access to electricity and water supplied to the land. Although only part of the land was used to grow cannabis, the part used (the area of the shed) cannot be regarded as trifling or insignificant. The use of the shed and of the land was temporary, but not momentary. The use of the shed and the land was not unplanned. I infer that the shed was chosen by Mr George as a suitable place to grow the cannabis.
77The use of the land facilitated and contributed to the commission of the offence. It was not just the place where the offence was committed. I have identified features that made the use of the land attractive to Mr George. It accords with ordinary language to refer to the land as a means of growing cannabis, as a thing by which the growing of the crop was effected. In terms of the significance of the use, although it was temporary it was not momentary. The portion of the land that was used was not trifling or insignificant.
78Although, on those scant facts, the case lies close to the limits of the reach of the definition, I consider that it falls within it. Standing back, and bearing in mind the purpose of the CAC Act, it is not surprising that a person who grows cannabis hydroponically on land, or in a building on land, is found to be using the land in connection with the commission of the offence of growing the cannabis.
The Tribunal took into account the geographic dispersal within the premises of the illegal items and the lack of any ephemeral or fleeting nature of the production.
There is nothing before me to indicate that the Tribunal has wrongly directed itself as to the relevant criteria in determining the issues under s.90.
Given the factual findings (which have not been challenged) in my view the Tribunal was correct in coming to the conclusion that the appellant “used the premises or caused or permitted the premises to be used for an illegal purpose.
The premises were used because they gave cover to the illicit activity. It must have been an activity which occurred over a period of time. It must have been an activity which required the use of land space, storage space and protection from prying eyes. The premises were not merely incidental to the illegal purpose. The illegal purposes required the use of the premises.
In my view, the Tribunal was correct in its conclusion that the appellant had “used the premises for an illegal purpose”.[2]
[2] A90(1)(a) Residential Tenancies Act 1995
I have noted but not taken into account in reaching this decision that the appellant has now pleaded guilty to a criminal charge in connection with the issues relevant to this matter.
Orders
Accordingly, the appeal is dismissed.
The appellant is required to vacate the premises by 4.p.m. Friday 4 January 2013.