South Australian Housing Trust v Pengilly - [2015] SADC 48

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal: Appeal Under Residential Tenancies Act 1995)
SOUTH AUSTRALIAN HOUSING TRUST v PENGILLY
[2015] SADC 48
Judgment of His Honour Judge Tilmouth
24 March 2015
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - GENERALLY
Decision of the Residential Tenancies Tribunal to evict tenant on account of the use of the leased premises for an illegal purpose, upheld on the merits.
Residential Tenancies Act 1995 (SA) ss 31(3), 90(1)(a), 90(2), referred to.
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; Martin v SA Housing Trust [2015] SADC 40; Broad v Parish (1941) 64 CLR 588, applied.

SOUTH AUSTRALIAN HOUSING TRUST v PENGILLY
[2015] SADC 48

This is an appeal from an order of the Residential Tenancies Tribunal of 16 February 2015. The Tribunal dismissed an application by the Appellant, Mr Pengilly, to set aside or vary an earlier order of 2 February 2015. He was then ordered to vacate the subject residence by 27 February 2015.
The essence of the Tribunal’s finding which led to the order to vacate and therefore rescinding the tenancy, was based upon evidence received from two police officers and two written statements from his neighbours. The allegation was that he used the premises for an illegal purpose, namely the manufacture of amphetamine. That contention brings into consideration s90(1)(a) of the Residential Tenancies Act 1995 (SA) which provides as follows:
90 – Tribunal may terminate tenancy if tenant conduct unacceptable
90(1)The Tribunal may, on application by an interested person, terminate a residential tenancy and make an order for possession of the premises if it is satisfied that the tenant has—
(a) used the premises, or caused or permitted the premises to be used, for an illegal purpose;
In essence the Tribunal was satisfied on the balance of probabilities that such an offence was committed, so it is necessary to review the evidence to consider whether that conclusion can be sustained.
Before doing so, it is germane to bear in mind that there is no departure from principle, in an administrative body determining a person has engaged in conduct that constitutes a criminal offence, as a step in the decision making process leading to administrative action, including the capacity to terminate a lease on the ground that tenancy premises were not for unlawful purposes; Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd;[1] Martin v SA Housing Trust.[2] It also pays to remember that in seeking to meet allegations of illegal purpose in the Residential Tenancy Tribunal anything a tenant says before the Tribunal cannot be used in criminal proceedings except proceedings for an offence against this Act or for perjury, a privilege protected by s 31(3) of the Residential Tenancies Act. This is particularly important since Mr Pengilly is due to appear on 7 April this year in the Magistrates Court on charges of selling a prescribed drug and selling a controlled drug in a prescribed area, both aggravated offences to which he is presently pleading not guilty.
[1] [2015] HCA 7, [33-34].
[2] [2015] SADC 40.
The evidence given before the Tribunal may be summarised as follows. On 16 December 2014 police attended the subject property which they searched under a warrant. They found a small container of what was presumptively analysed as amphetamine (formal testing has not yet taken place), resealable deal bags containing a white crystalline substance, a bowl of crystalline substance known to be a cutting agent for mixing with amphetamine, two tablets believed to be ecstasy, a set of digital scales, many empty resealable deal bags and implements used for the consumption of cannabis and other drug paraphernalia. Mr Pengilly was home at the time.
At one stage he was seen to drop a container through the leg of his pants, which fell to the floor, in which was found a tub of brown crystalline substance. Upon proceeding into the kitchen for a formal search, another item dropped through Mr Pengilly’s trousers but this time a small resealable bag containing a white crystalline substance which returned a presumptive positive test for amphetamine. A small amount of drug paraphernalia including a plastic bong was found in the kitchen and during the search of a freezer, police located a plastic bowl containing a white frozen substance suspected to be a cutting agent. Two notebooks were found in a bedroom, one a green book containing a tick list or what was described as a ‘drug creditor’s list’ and one an A4 notepad also containing such a list. The digital scales were found inside a DVD case and the green notebook was found underneath the coffee table in the lounge room.
Mr Pengilly, who could not personally appear before the Tribuanl as his car had broken down, was permitted to give his responses to this evidence over the telephone. He denied the premises were used for illegal purposes. He insisted “nothing’s been proven on none of these charges … these are allegations, that’s all they are”. In relation to the substance of these allegations, Mr Pengilly said the pants were a pair of track pants that he had just pulled on which were not his, that his daughter had arrived and tried to tell the police that they were hers, that he lived at the premises at which his daughter’s and his son’s “come and go a lot”, that the scales found in a DVD case that he had lent and “someone’s obviously brought them back in a DVD cover and I didn’t know about them”, that the notebook and the old exercise book were “about three or four years old which my kids use, which I use, and they’d been sitting around for years and years”, that the bongs were his son’s “I don’t even smoke dope, I had nothing to do with it”, being the most significant of his explanations. Towards the end of the hearing he said this:
You know, I’d just like to say that, and these charges, they shouldn’t be against me. They were my daughter’s and my daughter is coming to court with me when this goes to court, and when this is settled, it will be found that it’s nothing to do with me, it was my daughter.
He later repeated that he had done nothing wrong, that nothing was proven against him, that these were merely allegations, and that he did not permit his daughter to do any of this “I did not allow it, … I didn’t know it was here”. It is unnecessary to enter into a detailed analysis of this material.
As noted earlier, it is not to the point that the charges against him remain outstanding in the criminal court. The simple fact of the matter is that there are too many items found in too many places in the residence of which Mr Pengilly is the sole or principal occupier and from which it can be inferred he must necessarily have known about some of it. Whether or not it was his or his daughters, or for that matter anybody else, such a strong inference arises from the objective facts that he must have known about some of the items. His reaction to the few items found on his person is strong evidence of knowledge.
Accordingly it is inescapable that he at the very least “permitted the premises to be used for an illegal purpose” within the meaning of s90(1) of the Residential Tenancies Act. All that is required in order to satisfy that prescription is that a person permits the illegal activity to occur, in the sense that the person ‘intentionally allows’ a state of affairs that ‘maybe inferred from circumstances which carry with them a reasonable implication of a discretion to liberty to use’: Broad v Parish.[3]
[3] (1941) 64 CLR 588, 594.
In that circumstance, without the necessity for going as far as finding that he has committed any specific offence, the decision of the Tribunal must necessarily be upheld. The appeal is therefore dismissed. As the respondent conceded notice of 28 days would be appropriate, and as by s90(2) of the Residential Tenancies Act the Tribunal is required to specify the date from which the order will operate “being no more than 28 days after the day on which the orders are made”, there will be an order that the appellant vacate the subject premises by no later than 28 days from the date of this judgment.