DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was tried in the magistrates court on counts of possession of a dangerous drug namely cannabis sativa, possession of a thing namely a water pipe used in connection with smoking a dangerous drug, and possession of property reasonably suspected of having been used in connection with the commission of an offence defined in Part 2 of the Drugs Misuse Act 1986. Following a summary trial he was on 18 May 2007 convicted of all three offences. Convictions were recorded and one fine of $600, in default eight days imprisonment, was imposed, with six months allowed to pay. He was also committed to the Supreme Court at Brisbane because the offences were committed during the operational period of a suspended sentence imposed by the Supreme Court in October 2005.

2. [2]
   In a notice of appeal filed 4 June 2007 the appellant appealed against his conviction of the offence of possession of a dangerous drug. The notice of appeal made no reference to the other charges of which he was also convicted, and the grounds of appeal stated in the notice related only to that charge. The outlines of argument filed on behalf of the appellant proceeded on the basis that the appeal was against all three convictions, but no application to amend the notice of appeal was ever made.

The prosecution case

3. [3]
   Two police officers were called in the prosecution case. They said that on the day in question they went with a third officer to the appellant’s premises to execute a search warrant. The respondent said that he entered the front of the house via a glass door on to a swimming pool area: p 5. As he did so he saw the appellant look towards him, suddenly stand up and quickly move away:  p 7. By the time he got into the house the appellant was back next to the chair where he had been seated:  p 8. The appellant was shown a copy of the search warrant.

4. [4]
   The other officer who accompanied him said that he began searching the kitchen and located a device for smoking cannabis and some clipseal bags with small green leaf residue in them on a shelf in an alcove off the kitchen containing a water heater and a washing machine: p 22, see also p 10. He pointed this out to the respondent, and then continued to search, and found in a kitchen drawer a small set of electronic scales, a packet of clipseal bags, and another clipseal bag with some green leaf residue:  p 23. He also found a quantity of green leafy material in a toilet bowl in the bathroom:  p 24.

5. [5]
   The respondent said that his attention was subsequently drawn by one of the other police officers to a linen cupboard in the hallway where he saw two other utensils for smoking cannabis: p 12-13. He also saw there a clear plastic bag containing a finely chopped green leafy material. The material in the plastic bag was analysed and shown to be cannabis sativa:  Exhibit 4. All this material was in plain view when one opened the linen cupboard:  p 13. During the search some cannabis sativa and other smoking utensils were found in the bedroom occupied by the appellant’s son:  p 24. These were not the subject of any charges against the appellant.

The defence case

6. [6]
   The appellant gave evidence and called evidence. He said that when he saw the police approach the front gate he hopped up and walked to his son’s bedroom and said “We’re getting raided,” then came back to the lounge room: p 26. He said that the items found in the house referred to earlier were not his. He knew that people smoked in the house but he did not know where they put their stuff. Under cross‑examination he said he had lived there for approximately eight years, it was a rental property; he and his son were the lessees:  p 27. He was responsible for paying the bills. He said he knew that people smoked in the house, normally from the smell:  p 28. He said he spent little time in the house and he worked 12 hour shifts every day so that at home he just ate and slept and went back to work:  p 33. He said that he owned the furniture in the house, except for that in his son’s room, which his son owned:  p 28. He said he did his own washing, and he had access to the laundry alcove or cupboard on a regular basis every Saturday. He denied that he put the material in the toilet bowl:  p 29. The appellant claimed that the cupboard described by police as a linen cupboard was used for keeping toilet rolls and old paint in:  p 32. He said the linen was kept in a different cupboard at the opposite end of the hall.

7. [7]
   The proceedings were then adjourned to 4 May 2007, to enable the appellant to call two witnesses. One witness called was a woman who had come once or twice a week to clean the house of the appellant for a period of a year prior to 27 December 2007:  p 6.^[1]  She said that the items found in the cupboard in the hall, identified in three photographs in Exhibit 3, including in particular the bag of cannabis sativa, were hers:  p 3. She said she had first put the items in the cupboard shown in Exhibit 6 about the middle of the year, and would have a smoke after she had finished cleaning the house before she went home, there being no one else there during the day:  p 6. The son was not there either:  p 11. She said she moved it a couple of times to different positions in the cupboard:  p 7. She said it was put in a position where it was hidden and would not be obvious to someone looking in the cupboard:  p 14. She stopped cleaning just before Christmas when she had a family crisis, and subsequently went to New South Wales:  p 8.

8. [8]
   The defendant called another witness who had been present at the time the police searched the premises: p 16. She identified the photograph of the smoking utensil found in the laundry area as being hers (p 17), kept in the cupboard, a photograph of which became Exhibit 7. She said that she had made it on Christmas day for use on that day by people who were coming over:  p 19. A couple of people, friends of hers, did use it that day while the appellant was there:  p 20. He was outside and they were in the kitchen:  p 21. She said she hid it in the cupboard so it would not be seen, because the appellant did not want it in the house:  p 22.

Possession under the Drugs Misuse Act

9. [9]
   For ordinary purposes, in order to prove that a person was in possession of something, possession of which is an offence, it is necessary to show a mental element, in the form of knowledge of possession of the thing: R v Nguyen & Truong [1995] 2 Qd R 285 at 286. There was no direct evidence in the present case of knowledge of the items found in the search, and the appellant denied any knowledge of them. However, the prosecution relied on s 129(1)(c) of the Drugs Misuse Act 1986 which provides:

“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.”

10. [10]
    The effect of this provision, where it applies, is that it is unnecessary for the prosecution to prove knowledge on the part of the person in question, since the person is taken to have had the drug in his possession unless he shows both the matters referred to in the paragraph: R v Sargent [1994] 1 Qd R 655; R v Nguyen (supra) at pp 286, 287. In the latter case it was pointed out that it did not necessarily follow that it was appropriate to sentence a person convicted in reliance on this provision on the basis that there was knowledge of possession of the drug in question:  p 288.

11. [11]
    There is no doubt that the appellant was the, or at least an occupier of the premises in the sense of the leased house; he was one of two lessees, and each person in possession of premises as a joint tenant is the occupier for the purposes of this provision: Thow v Campbell [1997] 2 Qd R 324 at 326. In the present case the police evidence proved the drug was in a place, namely the house, of which the appellant was the occupier, so it was to be taken to be in his possession unless he showed that he then neither knew nor had reason to suspect that the drug was in that place.

12. [12]
    The ordinary operation of this provision was confirmed by the High Court in Tabe v R (2005) 79 ALJR 1890. That was principally concerned with the application of what was then s 57(d) of the 1986 Act, now s 129(1)(d) of the Act,^[2] in the context of a charge of attempting to possess a dangerous drug, but in the course of analysis of the operation of the legislation all members of the court made some reference to s 57(c), now s 129(1)(c) of the Act. Gleeson CJ said at [22]:

“If an accused person is the occupier of a place (as defined), and a dangerous drug is found on the place, then that is conclusive evidence that the drug was in the person’s possession, unless the person shows absence of knowledge or reason to suspect the presence of the drug.”

13. [13]
    Callinan and Heydon JJ, in a joint judgment, noted at [145] that it reversed the onus of proof, and said at [146] that the effect of the first part of the paragraph was to make a person in possession of the drug as a result of being concerned in the management or control of a place where the drug is located, subject to the person concerned being able to show that he or she neither knew nor had reason to suspect that the drug was in that place. Hayne J, who otherwise dissented, said at [87] that proof of the facts in the first part of the paragraph was conclusive evidence of the further fact, possession by the accused, unless the accused showed that he or she at the relevant time neither knew nor had reason to suspect that the drug was in or on that place. McHugh J, who also dissented, agreed in this respect with Hayne J.

14. [14]
    One issue which was not dealt with in Tabe, however, is the question of whether the provision applies in circumstances where the drugs would be seen to be, on ordinary principles, in the possession of someone else at the relevant time. This issue was considered in two decisions of the Court of Appeal in 1995.^[3]  In Lawler v Prideaux [1995] 1 Qd R 186 the appellant was charged with possession of a dangerous drug in circumstances where the drug was at the relevant time held in the hand of someone else who was inside the premises occupied, managed or controlled by the appellant. As it happened the appellant knew that the drug was there. The principal judgment was delivered by Cullinane J who held that for the application of the provision the relevant place was not the premises but the person of the individual holding the drug. In these circumstances, if there was a place within another place, then the person in possession of the place was the person in control of the first place, not the person in control of the second place, where they differed. This was said to be consistent with the legislative intention because the purpose of the provision was to effect “a statutory possession of drugs in an occupier of or a person concerned in the control and management of premises. It should not, in my view, be construed as doing so where some other person is in actual possession of such drugs.”

15. [15]
    Macrossan CJ agreed, adding at p 187 the comment that “it should be accepted as sufficiently clear that the intended operation of s 57(c) of the Drugs Misuse Act is confined to cases where there is no immediate relationship of physical possession demonstrated by a person in proximity to the item, that is where there is no immediate obvious possessor, and the legislature has thought it necessary or desirable to attribute possession to someone.”  Fitzgerald P agreed with the outcome, analysing the matter on the same basis as Cullinane J.

16. [16]
    The second decision was Symes v Lawler [1995] 1 Qd R 226, where the facts were similar; the appellant was an occupier of premises, in which there was another person who had quantities of dangerous drugs in a pouch which he threw from a window while police were attempting to force entry. Fitzgerald P and Cullinane J in a joint judgment said at p 228 that it was a misreading and misapplication of the provision to treat it as creating a presumption of possession against an accused by demonstrating that, although the immediate place which the drug is in or on is not occupied, managed or controlled by the accused, that place is itself in or on a larger place which the accused did occupy, manager or control. In that case the relevant place was the person of the individual who threw the pouch out the window. Macrossan CJ at p 227 said that the effect of s 57(c) was that the prosecution had the benefit of a situation of strict liability as explained by Dawson J in He Kaw Teh v R (1985) 157 CLR 523 at 590. Subject to that his Honour agreed with the reasons in the joint judgment.

17. [17]
    It seems to me that one effect of those decisions is that a place which is occupied by or within the management or control of a person does not include another place within that first place which is not occupied by or in the management or control of that person. Commonly that will extend to a situation where an individual has in his immediate physical possession something within premises occupied by another, but the definition of “place” is wider than that. By s 4, the term “place” includes a vehicle. Accordingly if a vehicle in the occupation of A is parked in an internal garage in premises in the occupation of B, the interior of the vehicle is not regarded as a place in the occupation of B, and if a drug was found in the interior of the vehicle then s 129(1)(c) would apply in relation to A, not in relation to B. In the same way, if a person C, other than the person A in occupation, management or control of the vehicle, is within the vehicle, then anything which is within the occupation, management or control of C is in a place, for the purposes of this provision, in relation to C not in relation to A.^[4]

18. [18]
    It will be apparent, however, that this qualification has no operation to the facts in the present case. The drugs were found in a cupboard in premises occupied by the appellant, and there was no evidence that the cupboard was occupied by another, or there was any other person particularly concerned with the management or control of it, so as to exclude the application of this paragraph from the appellant under the principle in Symes and Lawler. If the drugs were on the person of another within the appellant’s premises when they were found, or if they were found in a handbag or satchel or other container of the other person, then the effect of this principle is that the paragraph would not apply, but that was not what happened here.

19. [19]
    The drugs, and indeed the other items in respect of the other charges, were found in parts of the premises which could not be sensibly identified as a separate place from the premises occupied by the appellant. It may well be that the principle in those two cases extends beyond immediate physical possession; for example, if residential premises are let to a tenant but the landlord retains occupation of a locked cupboard in the premises, the interior of the cupboard would I suspect be a separate place for the purposes of the application of this qualification. But that was not the situation here. What happened here, even on the defendant’s evidence, was that other people had put the drugs and other items in parts of the premises which were not differentiated from the rest of the premises occupied by the appellant so as to constitute a different place for the purposes of the principle in Symes and Lawler.

20. [20]
    I should add that it did not matter for the purposes of the application of s 129(1)(c) who the true owner of the drugs was. One person can easily be in possession of property owned by another, and it is no defence to a charge of being in possession of dangerous drugs that the drugs are actually the property of someone else. If drugs the property of someone else are found in circumstances which activate s 129(1)(c), the occupier of the premises is taken to be in possession of them so as to have committed the relevant offence unless the occupier discharges the onus placed upon him by the concluding words of that provision. Accordingly it was unnecessary for the magistrate to embark on a consideration of whether the defendant’s witness had divested herself of any ownership or property in the drugs that were left on the appellant’s premises. If the magistrate thought that that was necessary, he fell into error, but a misapprehension in this respect was an error which favoured the appellant, and is not a basis for setting aside the magistrate’s decision. The evidence did not suggest that any of the items were at the relevant time in the personal possession of someone else, so as to take them out of the operation of this section.^[5]

21. [21]
    It follows in my opinion that s 129(1)(c) did properly apply in the present case, so that the appellant was liable to be convicted of the offence subject to his establishing on the balance of probabilities the defence in the paragraph. If this seems an unjust consequence to the appellant in the circumstances of this case, the explanation is that given in the joint judgment in Callinan and Heydon JJ in Tabe (supra) at [150]:

“The consequences for accused persons are heavy ones, but as Wilson J pointed out,^[6] they flow from a legislative response to what is seen as a very serious crime, hard to prevent and difficult to prosecute.”

22. [22]
    The substantial issue at the trial therefore was whether the appellant had succeeded in discharging the onus. Essentially he was unsuccessful in doing so, because of considerations of credit. The magistrate said that where there was conflict he preferred the evidence of the police, and he was entitled to take that view. In all the circumstances, and bearing in mind the advantage that the magistrate had in having seen and heard the witnesses and the effect this had on his capacity to make a proper assessment of their credibility, I do not think that this is a case where it has been shown, on an appeal by way of rehearing,^[7] that the magistrate’s decision in this respect was wrong.

23. [23]
    Even if the defence evidence was accepted at face value, it would be difficult to show on the basis of that evidence that the appellant did not have reason to suspect that the drug was in or about the relevant place, that is to say, his premises. The witness who claimed to have put the drugs in the cupboard said in effect that drugs had been kept by her on the premises for a long time, and she had frequently smoked marijuana on the premises, and there was evidence before the magistrate that marijuana leaves a distinctive smell. Further, she gave evidence of changing the position of the drugs from time to time, and my impression is that the police evidence as to where the drugs were found was not really consistent with her evidence as to where she had left them. It is I think unsurprising that the magistrate reached the conclusion that that onus had not been discharged.

24. [24]
    The solicitor for the appellant relied on the decision of Murray v R (2002) 211 CLR 193, but that case is not applicable where there is a statutory reversal of the onus; that case was concerned with the approach to a defendant’s version in circumstances where there was no reversal of the onus. Reference was also made to the decision in R v Solway [1984] 2 Qd R 75, but that case was concerned with the requirements for possession on ordinary principles, and was not concerned with the application of a provision such as s 129(1)(c). Accordingly it is of no relevance to the appeal against the charge of possession of dangerous drugs.

25. [25]
    However, s 129(1)(c) is expressed to operate only in respect of a dangerous drug, and to be conclusive evidence of possession only of the drug. On its face it has no application to a charge of possession of anything else. Only one of the three charges tried by the magistrate was of possession of drugs, and this provision did not assist the prosecution in relation to the other two, which had to be decided on the basis of the ordinary rules about possession referred to earlier. No basis was advanced in the submissions for the respondent on the appeal, or in the submissions of the prosecutor before the magistrate, on which this provision would apply to the other two charges, although the magistrate appears to have proceeded on the basis that it did apply.

26. [26]
    On page 3 of the magistrate’s reasons there was the statement that “the defendant is now deemed to be in possession of the items pursuant to the provisions of law.” That was on the evidence an appropriate conclusion in relation to the drugs, but I am not aware of any deeming provision applicable to the items the subject of the other two charges. This passage followed reference to the witness who claimed ownership of the drugs, and another witness who claimed to be responsible for the presence in the laundry cupboard of the water pipe, and in view of this, and in the absence of any express finding of knowledge of possession of the items other than the drugs, it seems to me that the magistrate has proceeded on the basis that s 129(1)(c) applied to the other charges as well.

27. [27]
    It is therefore a matter of some importance to determine whether this is an appeal against conviction of all three charges, or just an appeal against the conviction of the charge of possession of dangerous drugs. The notice of appeal identified the “offence(s) of which convicted” as “possession of dangerous drug, namely cannabis, on 27/12/2006.” The grounds of appeal stated related only to that charge. On the other hand, the sentence identified was that imposed for all three offences, and the notice of appeal, in accordance with the form, stated that the appellant desired to appeal to a District Court judge against the order of the magistrate made at the particular court on the particular day. That order was expressed as one order in relation to all three charges. There is now power to amend the notice of appeal, not just the grounds of appeal, so any failure clearly to identify that the appeal was brought against the three convictions does not go to the jurisdiction of this court.^[8]  In all the circumstances, and bearing in mind that the appeal was argued on both sides as if it was against conviction of all three charges, I am prepared to treat the appeal as applying to all three charges. If necessary I would amend the notice of appeal, but I do not consider it is necessary, since I accept that the notice was effective to appeal against all three charges, on its true construction.

Other charges

28. [28]
    In order to find the appellant guilty of the other two charges, it was necessary for the prosecution to prove and the magistrate to find that the appellant knew that he had possession of the items the subject of the charges, as stated earlier. No such finding was made. Leaving aside the question of whether, on all the evidence, it would have been open to the magistrate to infer knowledge of possession of them to the necessary standard, no such finding was expressly made, and the reasons given suggest that the magistrate considered that no such finding was necessary, as a result of an error as to the scope of s 129(1)(c). At the least, they do not demonstrate that no such error was made. In those circumstances the appeal must be allowed, so far as it related to the conviction of the other two charges.^[9]

29. [29]
    The question then arises whether the matter should be sent back for a retrial on those two charges. The offence on which the conviction will stand was the most serious of the charges, and to retry the others it would be necessary to hear all the evidence again. If the evidence was to the same effect, the magistrate could convict only if satisfied beyond reasonable doubt that the appellant knew of his possession of the items, which would involve rejecting his evidence, and perhaps as well some of the evidence from the defence witnesses, on the basis of inferences drawn from what was found when the police searched the premises. So far as I can tell, that does not strike me as a particularly strong case. In all the circumstances, I will not order a retrial.

Another ground

30. [30]
    A second matter raised in the outline of argument on behalf of the appellant was that the magistrate’s decision was adversely affected by a statement by the appellant upon cross‑examination to the effect that he was on a suspended sentence. What happened was that in the course of the appellant’s evidence he mentioned that he had been in prison at one stage, in part of an answer which was unresponsive to the question that he had been asked: p 31 line 21. The prosecutor immediately indicated that that was not a matter which he needed to go into (p 32), and subsequently the magistrate declared that he was not treating that as something which stood against the appellant for the purposes of the trial:  p 34.

31. [31]
    In circumstances where the matter came out because it was volunteered by the appellant in an unresponsive answer under cross‑examination, it was I think fairly open to the magistrate to decide that this was not a ground on which the trial should be aborted. In all the circumstances, it does not seem to me that it is necessary or appropriate to set aside the decision and order a retrial simply because of that event. I am not persuaded that there was any inappropriate use made by the magistrate of this comment by the appellant.

32. [32]
    It follows that in relation to the conviction of possession of dangerous drugs, the matters argued on behalf of the appellant have not been made out, and the appeal is dismissed. In respect of the other two charges, however, the appeal is allowed, the convictions are set aside, and verdicts of acquittal entered. Since one sentence was imposed in respect of all three charges, it will be necessary for the appellant to be resentenced, and when these reasons are published I will fix a suitable date for that to occur.