Fraser v Commissioner of Police
[2008] QDC 156
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- Fraser v Commissioner of Police[2008] QDC 156
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Fraser v Commissioner of Police[2008] QDC 156
Fraser v Commissioner of Police[2008] QDC 156
[2008] QDC 156
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE NASE
No BD1562 of 2007
JOHN EDWARD WILLIAM FRASER | Appellant |
and | |
COMMISSIONER OF POLICE | Respondent |
BRISBANE
DATE 04/03/2008
JUDGMENT
HIS HONOUR: On 22nd September 2006 the appellant, John Edward William Fraser, was convicted of a breach of the Drugs Misuse Act in the Magistrate's Court at Charleville after a summary trial.
The particular breach of the Act was a charge of possession of a small quantity of cannabis sativa (1.4 grams). The drug was not physically in Fraser's possession but was in a house occupied by him, his wife and their two sons.
The cannabis was in a small fishing tackle box located on a shelf in an enclosed veranda. The veranda was described in the trial as a common area used by all the occupants of the house. The shelf was adjacent to a computer. From the photographs it was fixed to an internal wall above the computer. Looking at the photographs, the shelf looks quite cluttered (the whole area, for that matter, looks cluttered) and it is well above the eye level of someone seated at the computer.
The sons, at the time, were aged 22 years and 16 years. Fraser, when he was questioned about the tackle box, said he had not seen it before and was unaware of its presence in the veranda. Apart from the small quantity of cannabis (1.4 grams) the box contained a few hooks and fishing paraphernalia. He told the police nothing in the box belonged to him. His fishing equipment, he said, was in a shed under lock and key.
Logically, the box may have belonged to anyone or more of those living at the house. Being unable to prove the box and, therefore, the small amount of cannabis, was actually in his physical possession, the prosecution framed the case against him on the evidentiary presumption resting on occupiers. Section 129(1)(c) of the Drugs Misuse Act deems an occupier or person concerned in the management or control of a place "in or on" which a dangerous drug is found to be in possession of the drug unless the person shows an absence of knowledge or reason to suspect the presence of the drug in or on the place.
The Magistrate, in determining the charge, accepted the Police Prosecutor's argument that Fraser was "either an occupier or in management or control of these premises and the workstation including the shelf". Mr Hardcastle argued that use of the presumption was misconceived. He also argued that, on the evidence, Fraser had discharged the onus of showing that he neither knew nor had reason to suspect the drug was in or on the place.
Whether or not Fraser was an occupier or in management or control of a place is a question of fact, and an appeal from such a conclusion of fact would not usually be expected to succeed. Nevertheless, I am satisfied the Magistrate fell into error in resorting to the evidentiary presumption on the admitted facts of this case. I will endeavour to explain why I have reached this conclusion in my own words.
In Symes v Lawlor, 69 Australian Criminal Reports, 432, Fitzgerald P and Callinan J commented that the evidentiary presumption in the Drugs Misuse Act continued to cause difficulties in its application. In commenting on the wording of the presumption they said, in part:
"That compendious phrase cannot be satisfactorily construed by an analysis of its separate components. It factors upon the precise place, in or on, which a drug is found and requires that the place be occupied, managed or controlled by the accused. The distinction is to be drawn between any place which is and any place which is not occupied, managed or controlled by the accused and the location of the drug must, for the purposes of the section, properly be ascribable to the former and not the latter. It is to misread and misapply the section to create a presumption of possession against the 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 does occupy, managed or control."
Thus, following that decision, the Court of Appeal held in Lawlor v Prideaux, 70 Australian Criminal Reports 145, that the relevant place a drug was in or on was the person of a visitor to the premises occupied by the defendant. In applying this provision it is, therefore, critical to determine the place for the purposes of the presumption. In turn, the determination of place involves an assessment of the relationship between the suspect and the place.
While the Magistrate's conclusion that, as a matter of fact, Fraser was an occupier and concerned in the management or control of the enclosed veranda and the area about the computer was arguably correct, I do not think he posed the right question. On the facts of this case the relevant place was the tackle box, not the enclosed veranda or the shelf on which the box was sitting.
To characterise the place in or on which the drug was found as the box is merely to give weight to the circumstances the veranda was one of the common areas of the house and that any one of the occupants may have left it there, and to the circumstance that there was no other evidence to link Fraser with the box. Once the tackle box is identified as the relevant place, the evidence is unable to sustain a conclusion beyond reasonable doubt that Fraser had the management or control of the place where the drug was in or on.
In those circumstances, the conviction cannot stand and the appeal will be allowed. The following orders are these:
- (1) the appeal is allowed;
- (2) the conviction and sentencing orders are set aside and in lieu, therefore, the charge is dismissed.