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

v.

MICHAEL TUKOTAHI CAMPBELL

Appellant

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

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Judgment delivered 17 December 1996

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

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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 at the house, at 23 Beatrice Street, Atherton, in a police search on the afternoon of 16 May 1996. The police also found in the house some items belonging to the appellant, including photos, shaving gear, a passport and a cheque book. The fact relevant to the question whether the appellant was an occupier of the house on the afternoon of 16 May 1996 came principally from the evidence of a 15 year old girl, Patchouli Forscutt, and that of the appellant himself. Patchouli Forscutt said that she had lived with her mother Andrea at the house since 1993. She said that the appellant’s relationship to her mother had been that "they were sort of together", but did not live together. She was asked whether they were boyfriend and girlfriend; she agreed with that and said that they had been boyfriend and girlfriend "on and off really for three years". Her mother left the Atherton house early in April 1996, according to Patchouli, and went to Tully for about a month; before she left Atherton to go to Tully, she had asked the appellant to leave the Atherton house. But the appellant did not do so, at that stage; Patchouli said in effect that the appellant divided his time between Cairns and Atherton and used stay in the Atherton house for a couple of days at a time. Friends of Patchouli used also stay at the Atherton house from time to time.

The appellant agreed that Andrea Forscutt went from the Atherton house to Tully early in April and returned about a month later. He also agreed, in effect, that after Andrea Forscutt went to Tully he used stay at the Atherton house for two or three days at a time and in between lived in premises at Cairns. When Andrea Forscutt returned from Tully, according to the appellant, he stayed at the Atherton house "all the time until we split up in two weeks time". He said the split up occurred because of an argument which took place on the day before the police came and found the cannabis; that is, the argument took place on 15 May 1996. On the following day, the appellant said, he took some belongings down to Cairns in the morning and when he had returned to collect his remaining belongings, the police arrived. Those police may not have included Snr Const. Thow, who found the cannabis - but that point seems not to matter. According to the appellant he only had a bag of clothes at the Atherton house and the rest of his clothes were at Cairns.

A possible difficulty in disposing of the appeal is that the magistrate had before him some evidence which he might or might not have found convincing; it is perhaps unclear to what extent his Worship accepted what the appellant said relevant to the question of his being an occupier. Other evidence the appellant gave, in an attempt to discharge the onus we have mentioned, was not believed. The magistrate’s reasons for finding for the prosecution on the former point may be gathered from two passages in the record. In answer to a submission of no case to answer the magistrate remarked:

"The fact was that [the appellant] was an occupier up until the mother went to Tully. He was told to leave, but in fact even though he had taken up premises in Cairns he was spending both time in Cairns and in Atherton. Therefore, he had not fully vacated the premises."

In giving his final reasons for decision the magistrate said:

"Certainly there’s no doubt in my mind that the defendant was an occupier of the premises which he stated that he stayed in the premises for another two weeks after the mother of the child witness returned home before finally leaving."

These records suggest that the court was willing to act on the basis that the evidence of the appellant as to the events of 15 and 16 May was true; it was, in effect, contended before us that on the basis of that evidence the Court below was entitled to hold that prior to deciding to leave, in consequence of the argument we have mentioned, the appellant was an occupier and that he remained so on 16 May because he had not completed moving out.

We were referred to the decision of the Court of Criminal Appeal in Fox [1986] 2 Qd.R. 402, relating to the meaning of the term "occupier" in s. 5 of the Health Act 1937-1981. It appears to us, however, that the term "occupier" in s. 57(c) of the present Act, being undefined, should not be assumed to have the same meaning as the word bore in the 1937 Act, which included a fairly elaborate definition; it would be a mistake to treat that definition as applicable to the present statute.

Occupation is a question which can arise in various contexts. Commonly it is treated as being dependent upon control, in the sense of being able to exclude strangers: Council of the City of Newcastle v. Royal Newcastle Hospital (1959) 100 C.L.R. 1 at 4, a decision of the Privy Council, is an example. Ordinarily, one would expect that a person capable of being described as "the occupier" of premises would have, alone or with others, at least some de facto control of the premises. Here, there was no evidence suggesting, nor any attempt made by the prosecution to prove, that the appellant had or purported to exercise a right to exclude anyone from the Atherton house or that he exercised any other sort of control over it.

Although the provision says "the occupier", not "an occupier", there may be more than one occupier; for example, each of a group of people in possession of premises as joint tenants is "the occupier" for the purposes of s. 57(c), but the use of the word "the" is in our view some guide to the intended meaning. It might suggest that if a number of people are living in a house one may be "the occupier" and the others not. For example, it seems unlikely that if a family consisting of a couple and their dependent children are living in a house, each of the children is necessarily "the occupier" of the whole house for the purposes of the section.

In the present case, Senior Const. Thow was asked whether Andrea Forscutt was the tenant of the premises and said she was. That must have been hearsay, but there was no objection to the question and the answer may be taken to be correct. The proper inference, then, is that the appellant was in the period of about a fortnight prior to 16 May living in the house with the permission of the tenant, but with no right of control; nor was any attempt made to prove that he exercised control over the premises as a matter of fact, rather that of right.

It was contended that in these circumstances the appellant was not shown to be "the occupier" throughout that fortnight, but, as it seems to us, it is unnecessary to determine that. The essential point is a narrower one and its character is identified by the ruling the magistrate made in answer to the submission of no case, which ruling we have quoted above. His Worship ruled that, although the appellant had been told to leave, he had not "fully vacated the premises". As we have suggested above, this remark implied acceptance of that part of the appellant’s evidence in which he said that he lived with Andrea Forscutt in the house for two weeks after her return from Tully, that they then "split up" because of an argument on 15 May, that on the following day he took some belongings down to Cairns in the morning and when he had returned to collect the rest the police came. On these facts, in our opinion the prosecution did not establish that at the relevant time, which was, we accept, the time when the police found the marijuana referred to in the evidence, the appellant was "the occupier". Assuming that he would have fulfilled that description until 15 May, the proper inference from the evidence was that he ceased to be the occupier on the morning of 16 May when, because he and Andrea Forscutt had "split", he went to Cairns with part of his belongings. The fact that he did not take all he possessed on the first journey does not, in our opinion, suffice to show that he remained "the occupier" in the afternoon of 16 May; all that connected him with the premises at that stage was the presence of some of his belongings.

It follows, in our opinion, that the appeal should be allowed and the conviction set aside; we would also order that the charge of having unlawfully had possession of a dangerous drug, namely cannabis sativa, be dismissed.

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 17 December 1996

I have had the advantage of reading the reasons for judgment of Davies JA and Pincus JA and am content to adopt the statements of fact contained in it. In determining whether upon the facts found by the Magistrate the appellant could be found to be "the occupier" of the house where the cannabis sativa was discovered the term "occupier" must be construed in the context of s.57(c) of the Act. The relevant words are, "in or on a place of which that person was the occupier or concerned in the management or control".

The meaning to be given to the term "occupy" must depend upon the context in which the term is used. There are many reported cases dealing with its connotation in rating cases where "actual occupation" as distinct from possession was the basis of assessment for rating purposes. For a discussion of the authorities on this topic generally I refer to The King v. Melladew [1907] 1 KB 192. I refer to the observations of Collins MR at p. 201 concerning cases where "animus habitandi" and "animus revertendi" was considered where buildings were left vacant and/or unused for the purpose for which they were designed and furnished for various reasons. While those cases are of no direct assistance to the construction of the term "occupier" in s.57(c) of the Drugs Misuse Act 1986 they do demonstrate that the animus or intention with respect to his use of the premises which the person said to occupy them had at a particular time, and/or the particular purpose for which he "used" them was relevant.

In the context of s.57(c) of the Act, I take the view that essential to the occupancy of a place for the appplication of that section the person concerned must at least be making a use of that place with at the very least sufficient defacto control or management of it to facilitate that use. Very often such control or management will involve at least defacto possession of the place although not necessarily an exclusive one.

Upon the facts of the present case, the only connection that the appellant had with the place in question at the material time was the fact that he had left some articles which he owned there when he left the previous day with most of his property. On the facts he had no intention or animus with respect to that place when he returned on the day the drugs were found except to take the few items of property which for one reason or another he had not taken with him when he left the premises the previous day. Whatever licence he had to occupy the premises up until the time he departed the day before the cannabis sativa was found had clearly been revoked. The lady who owned the house had obtained a court order with a view to preventing him from continuing to reside there. He had decided to leave and on the material had in fact left intending to not live or make any further use of the place thereafter - subject to his not in law continuing "to make use of it" by reason of his failure to take all the items of his property with him when he departed intending to discontinue making use of it as a place where he might intermittently reside.

In my view upon its proper construction s.57(c) of the Drugs Misuse Act does not have the effect of making a bailor of goods at a place an occupier of that place merely on the basis of the bailment of his goods. Such a view would take out of context the term "occupier" from the phrase in which it is found: "that person was the occupier or concerned in the management or control of" the place.

On the material before the Magistrate at the material time the only connection between the appellant and the place where the drug was found was that he had either deliberately or inadvertently left a few items of property there after he had ceased to reside there; on the facts he had no "animus revertendi". In my view that was an insufficient connection with that place to categorise him as an "occupier" of it.

I agree that the appeal should be allowed and the appellant's conviction set aside.