The Queen v Drozdoff[2012] QDC 220

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  The defence has made a no case submission in relation to each of counts 2 and 3 of the indictment.  Count 2 alleges that on the 24th of November 2010 the defendant had in his possession certain items that had been used in connection with the production of a dangerous drug.  Count 3 alleges that on the same date he unlawfully had possession of a dangerous drug, namely cannabis, of a quantity exceeding 500 grams.

The submission made by Mr Davis is that there is no evidence capable of supporting a finding that the defendant was concerned in the management or control of the place where the cannabis was growing so far as section 129(1)(c) of the Drugs Misuse Act is concerned.  Alternatively, in relation to count 3, and in any event in relation to count 2, the submission is that there is no evidence which is capable of supporting a finding that the defendant was, in the common law sense, in possession of the items or the cannabis.

The Crown relies upon the following four items of evidence in relation to both 129(1)(c) and possession generally, namely:-

1. (1)
   The place, which is a house at 41 Inverness Way, Parkwood is owned by a company owned by the defendant.  Mr Davis conceded that it is effectively owned by the defendant.  As owner in the circumstances of this case, I think the jury could infer that he had a prima facie right to come and go as he pleased.  There is no evidence that anyone else had anything to do with the house in a proprietary sense.

2. (2)
   There was an active alarm system based in the garage of the house connected to two telephones of the defendant.  This alarm system rang when entry to the premises was detected, in that when the alarm was activated, the two phones of the defendant rang.  So, in this sense, the defendant would have been notified of unauthorised entry into the house owned by him.

3. (3)
   A blue and a yellow torch with the defendant's DNA on each were located in the house and this is said to indicate a connection by the defendant to objects found at the place from which the jury could infer that the defendant had access to the place and had entered it.  This is notwithstanding the fact that the evidence is that the DNA cannot be aged.

4. (4)
   Two carbon dioxide bottles were present in the house.  These came from Coregas via Aitken Welding Supplies.  Alfie's Home Maintenance, a business of which the defendant is the sole proprietor, hired carbon dioxide bottles of this type from Aitken Welding Supplies.  One of the bottles was observed by police upon their entry into the premises to be being used.  It was, according to Sergeant Mooney, connected and putting carbon dioxide into the growing room, and seemed to be thereby part of the growing process.  Notwithstanding the submissions made by Mr Davis in respect to the gas bottles, I think the evidence in relation to them is sufficient to enable the jury to find that they came to be in the house via Alfie's Home Maintenance obtained from Aitken Welding Supplies, which in turn were obtained from Coregas.  Whether the jury, at the end of the day, draw that inference is a matter for them.

"Concerned", in the phrase "concerned in the management or control of a place" means, I think, some personal involvement in what is happening, having something to do with it, being interested in it.  "Management" includes the running of, decision-making in relation to the place; directions in relation to the place; organising and regulating matters about the place, and "control" includes directing, guiding, regulating, commanding, overseeing, making decisions directly or indirectly in relation to the place and determining what happens in relation to the place, and matters relating to the course of events in the place.

I think in this sense the four items of evidence relied upon by the Crown are capable of supporting a finding that the defendant was concerned in the management or control of the house at 41 Inverness Way.  Whether they draw that inference or not is another thing.

When each matter is considered together and not in isolation, I think the evidence is capable of supporting such a finding; the evidence is, to use terms from the Bench Book direction at page 106.3 evidence in relation to the defendant's relationship with the house where the cannabis was growing; his activities in relation to that place; and control which he exercised over it.

I think the evidence goes further than mere ownership in the sense referred to by Thomas J in Smythe.  Something more than bare ownership is required.  Some interest in or personal involvement in control or management need be shown before the Crown can obtain the benefits of section 129(1)(c).

I think there is evidence capable of supporting a finding in terms of section 129(1)(c).

So far as possession simpliciter is concerned, or common law possession, the same four items of evidence are relied upon.  I think the evidence is capable of supporting a finding that the defendant had, to his knowledge, physical control or custody of the cannabis growing in the house and the objects referred to in count 2.

The issue so far as those objects are concerned is not whether they were used in the production of the cannabis, but whether the defendant was in possession of them.  The objects and the cannabis were located in his house.  The house was effectively being used as a garden to grow cannabis.  The jury could infer, in my view, that the defendant had knowledge of what was going on in the house and had the requisite degree of control or custody of objects in the house, including those referred to in count 2 and the drugs in count 3.

His ownership of the house should be considered, along with the other three items of evidence.  As I said before, there is no evidence that anyone else had anything to do with the house in a proprietary sense.  Someone else's fingerprints on the light hoods does not affect that.

In my view, the jury could infer that the defendant knew what was in the house and as owner, in the circumstances, had possession of it in the sense that he had physical control or custody of the objects and the cannabis.

For those reasons, I think that there is sufficient evidence capable of supporting findings in respect to section 129(1)(c) and possession, so I am against you, Mr Davis.

MR DAVIS:  Yes, thank you, your Honour.