R v Lennon

[1992] QCA 129

COURT OF APPEAL             [1992] QCA 129

FITZGERALD P
DAVIES JA
MACKENZIE J

CA No 312 of 1992

THE QUEEN

v.

STEVEN MARK LENNON

(Appellant)

BRISBANE

... DATE 7/5/92

JUDGMENT

JUDGMENT

MACKENZIE J:  The applicant was charged with unlawful possession of a dangerous drug.  Police went with a search warrant to the flat that he shared with his mother and young brother of some eight years of age.

During the search, the police found a single marijuana seed in a blue plastic container, in a drawer, in a duchess, in the accused's bedroom.  The drawer contained other personal items of his including a wallet.  When the applicant was questioned, he said he went to the drawer every day.  He had put the container there two or three months previously and had not put the seed there.  He admitted to the police that the container, at least, was sitting in plain view in the drawer and that it would be very likely that he would see it, or the seed, when he went to the drawer.  He said that he had no idea of how the seed came to be there and volunteered that it wouldn't have been there if he'd seen it, it would've been out the window.

The Prosecution case was based on the occupier's liability provision in s 57(c) of the Drugs Misuse Act. Under that provision, proof that a dangerous drug was in a place of which a person was occupier or was concerned in the management or control, is conclusive evidence that the drug was in the person's possession unless he shows that neither knew that the drug was in the place nor had reason to suspect that the drug was int he place.

Once the Prosecution establishes that the person was an occupier or a person concerned in the management or control, a persuasive onus rests on the defendant on the balance of probabilities to establish both lack of knowledge of the drug and lack of reason to suspect that the drug was in the place.

The applicant did not give evidence, although that is not necessarily fatal if there is evidence elsewhere establishing the two exculpatory factors.

The submission relied on by Mr Nase is that, given the size of the seed and the location of it in a container in the drawer, the Magistrate erred in failing to hold that the applicant had discharged his onus.  There appears to have been no dispute really, at the hearing, that the applicant fell into the category of an occupier, or a person concerned in the management or control of the drawer in which the seed was found.

The Magistrate, perhaps taking the view that all of those aspects of the matter had been conceded, did not make very explicit findings as to occupation or control but nonetheless held that s 57(c) applied, having discussed briefly the relevant principles applicable to the application of that provision. He had previously described the applicant as the occupier of the house and, in my view, in all of the circumstances, there was ample basis for holding that the provisions of s 57(c) placed an onus on the applicant of the kind I have previously described.

Notwithstanding what has been said by Mr Nase, I also am of the view that there was an ample basis for holding that the applicant had failed to discharge the onus that he had no reason to suspect that the drug was in place.  It was conceded by the Magistrate that he did not know that the drug was in the place.  The container was in plain view in the drawer.  The learned Stipendiary Magistrate has set out his reasons at pp 19 and 20 of the record as to why he has decided that the onus has not been discharged.  That conclusion, in my view, was quite open to him on the evidence.  In the circumstances, I would dismiss the appeal against conviction.

THE PRESIDENT:  Yes, I agree that the appeal against conviction should be dismissed.

DAVIES JA:  I agree.

THE PRESIDENT:  The order of the Court is appeal dismissed.

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