Police v Dick

[2010] QMC 23

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Dick & Ors [2010] QMC 23

PARTIES:

POLICE

(prosecution)

v

THOMAS FRANKLIN DICK

(defendant)

PETER MITCHELL PAUL

(defendant)

JENNIFER CORAL FRANK

(defendant)

FILE NO/S:

MAG168289/10(3), MAG173963/10(6), MAG170350/10(3)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge

ORIGINATING COURT:

Magistrates Court at Kowanyama

DELIVERED ON:

17 November 2010

DELIVERED AT:

Kowanyama

HEARING DATE:

17 November 2010

MAGISTRATE:

Bentley JM

ORDER:

Defendants found guilty

CATCHWORDS:

LIQUOR LAW – OFFENCES – possession of alcohol in a restricted area – whether passengers in a vehicle can be in possession of alcohol

Liquor Act 1992, 168B(1), 168B(4), 168B(5)

COUNSEL:

Bowen for defendants

SOLICITORS:

Prosecution on own behalf

ATSILS for defendants

1. The three defendants are each charged that on 29 August 2010 they possessed liquor, within a restricted area, namely Kowanyama, pursuant to s 168B(1) Liquor Act 1992 (the Act). It is agreed by the parties that, at the time of the alleged offence, the three were travelling in a vehicle which was driven by another person who has been convicted and sentenced for possession of the liquor for which the defendants are charged. It is also agreed that the three defendants admitted to police that they owned the liquor the subject of their respective charges.

1. Section 168B(4) of the Act provides that, for an offence against s 168B(1), proof that the liquor was, at the material time, in or on a vehicle, is conclusive evidence that the operator of the vehicle had in possession all the liquor in or on the vehicle unless the operator proves that he or she neither knew or suspected that the liquor was in or on the vehicle.

1. The defendants plead not guilty on the ground that, as the operator of the vehicle is presumed conclusively to have possession of all the liquor in the vehicle, others in the vehicle cannot be in possession of it.

1. Section 4 of the Act defines “have in possession” as including:

Have under control in any place, whether for the use or benefit of the person in relation to whom the term is used or another person, even though another person has the actual possession or custody.

1. Section 4 therefore provides that one person may have possession where they have the liquor under their control and where another person has actual possession. 

1. Section 168B(5) provides:

For subsection (4) it is immaterial that another person claims to have had in possession any of the liquor at the material time.

1. The Explanatory Notes to the Indigenous Communities Liquor Licences Bill 2002, by which the above sections were inserted into the Act, provide:

Person in charge of vehicle liable for offence

Clause 64 of the Bill creates an offence for a person to have in their possession in a public place in a restricted area, more than the prescribed quantity of liquor. This offence will also capture persons travelling in vehicles in public places to ensure that sly-grogging does not undermine area restrictions determined in consultation with the community justice group. The operator of the vehicle will be presumed to be the person in possession of the excess liquor regardless of the number of other people in the vehicle unless the operator proves that he or she neither knew nor had reason to suspect that liquor was in the vehicle. In these circumstances the person to whom the vehicle is registered may be pursued in relation to the offence. Without reversing the onus of proof, it is likely that there would be significant difficulties in enforcing the provision. It would be difficult to prove the operator's knowledge of the liquor in the vehicle. In practice, the operator will be the only party who could establish whether he or she knew the liquor was in the vehicle. The reversal of the onus of proof to aid enforcement of the provision is considered justifiable given the harm that additional supplies of liquor may bring to a community in a restricted area.

1. It is recognised that a person may possess something jointly with another person.[1]  Neither sections 168B(4) and (5) nor the Explanatory Notes displace that principle in regard to the Act and s 4 reinforces it.

   [1] See, for example, Dib & Dib v R 1991 52 A Crim R 64

1. In this case, the driver of the vehicle had the alcohol under her control in that she was driving the vehicle by which it was being transported, however, the defendants, being present in the vehicle, and admitting that they were the owners of the alcohol, had the actual possession or custody of the alcohol. 

1. Accordingly, the prosecution has proven its case beyond a reasonable doubt and I find the defendants guilty.