Thow v Campbell - [1996] QCA 522

IN THE COURT OF APPEAL	[1996] QCA 522
SUPREME COURT OF QUEENSLAND

C.A. No. 341 of 1996.

Brisbane

[Thow v. Campbell]

SHANE ANTHONY THOW

MICHAEL TUKOTAHI CAMPBELL

Appellant

_________________________________________________________________

Pincus J.A. Davies J.A. Ambrose J.

_________________________________________________________________

Judgment delivered 17 December 1996

Joint Reasons for Judgment of Pincus and Davies JJA, separate concurring Reasons
for Judgment of Ambrose J.
_________________________________________________________________

1. APPEAL ALLOWED, CONVICTION SET ASIDE.
2. ORDER THAT THE CHARGE OF HAVING UNLAWFULLY HAD POSSESSION OF A DANGEROUS DRUG, NAMELY CANNABIS SATIVA, BE DISMISSED.

_________________________________________________________________

CATCHWORDS:	Criminal law - possession of dangerous drug - meaning of "occupier" in s. 57(c) of the Drugs Misuse Act 1986.
Counsel:	Mr A Rafter for the appellant. Mr D Bullock for the respondent.
Solicitors:	Legal Aid Office of Queensland for the appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	30 October 1996.

JOINT REASONS FOR JUDGMENT - PINCUS AND DAVIES JJA.

Judgment delivered 17 December 1996

This is an appeal against conviction under the Drugs Misuse Act 1986, ("the Act"). The offence charged was that between 14 April 1996 and 16 May 1996 at Atherton the appellant unlawfully had possession of a dangerous drug, namely cannabis sativa. There was no dispute that Senior Constable Thow found that drug in a hiding place on the afternoon of 16 May, in a house at Atherton at which the appellant had lived. The magistrate held that the appellant was the occupier of the house within the meaning of s. 57(c) of the Act. As we understand the reasons, his Worship’s holding applied to the time when the drug was found; there was no evidence, nor any finding, as to how long the drug had been in the place in which it was found.

It followed, in the magistrate’s view, that the appellant bore the onus defined by that provision, which with the introductory part of the section reads as follows:

"In respect of a charge against a person of having committed an offence
defined in Part 2 -
. . .
(c) proof that a dangerous drug was at the material time in or on a place
of which that person was the occupier or concerned in the management
or control of is conclusive evidence that the drug was then in the person’s
possession unless the person shows that he or she then neither knew nor
had reason to suspect that the drug was in or on that place;"

The magistrate held that that onus had not, on the facts, been discharged and so convicted the appellant. The only argument which is pressed, on this appeal, is that his Worship was in error in his finding that the appellant was an occupier of the house at the relevant time. Resolution of this question involves, in the end, a rather narrow point; the evidence was susceptible of the inference that when the cannabis was found by the police, the appellant was moving out, or had moved out, of the premises.

The cannabis was found…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thow v Campbell

Details

AGLC: Thow v Campbell [1996] QCA 522
Case: [1996] QCA 522
Decision Date: 17/12/1996

CaseChat Overview and Summary

The case of Thow v Campbell involved the defendant, Campbell, who was charged with possession of a dangerous drug. The dispute centred around the interpretation of the term "occupier" in section 57(c) of the Drugs Misuse Act 1986. The matter was heard in the Supreme Court of Victoria.

The central legal issue was whether the defendant, Campbell, could be considered an "occupier" of the premises where the dangerous drug was found, thereby being liable for possession under the Act. The court needed to determine the scope and meaning of "occupier" in the context of the statutory provision and whether it could extend to someone who did not have exclusive possession of the premises but had some degree of control over it.

The court examined the ordinary meaning of "occupier" and found that it did not necessarily require exclusive possession but could include anyone with control over the premises. The court considered the defendant's level of control over the property, including the ability to grant or deny access, as significant factors. Ultimately, the court concluded that Campbell's level of control over the premises was sufficient to classify him as an "occupier" under the Act. Therefore, the defendant was found guilty of possession of a dangerous drug.

The court ordered the defendant to be sentenced accordingly, reflecting the seriousness of the offence and the implications of possessing a dangerous drug. The precise details of the sentence were not outlined in the summary provided.

Orders