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- Unreported Judgment
MAGISTRATES COURTS OF QUEENSLAND
Fleming v Facer  QMC 2
Senior Constable JN Fleming
Kenneth Allan Facer
Toowoomba Magistrates Court
26 February 2020
Toowoomba Magistrates Court
12 November 2019, 10 February 2020
Acting Magistrate Carroll
Defendant is guilty of the offence as charged. His is ordered to be imprisoned 12 months, wholly suspended for two years. A forfeiture order with respect to the drug.
Snr Constable Wheaton
Mr Brendan Ryan, Ryan Mulcahy Lawyers
- The defendant is charged that on the 16day of August 2018 at Toowoomba in the state of Queensland one Kenneth Allan Facer unlawfully had possession of a dangerous drug namely methyl amphetamine and the dangerous drug was a thing specified in Schedule 1 Drugs Misuse Regulation 1987 and the quantity of the thing exceeded the quantity specified in schedule 3 Drugs Misuse Regulation but less than the quantity specified in schedule 4 Drugs Misuse Regulation 1987.
- The prosecution must prove the elements of the offence beyond a reasonable doubt and negative, to the same standard, any defence raised by the Defence.
- The prosecution elects summary jurisdiction.
- The elements of the offence are;-
- That on the 16 day of August 2018 at Toowoomba the defendant had possession of a dangerous drug, methyl amphetamine;
- That the dangerous drug is a Schedule 1 drug as per The Drug Misuse Regulation 1987
- That the quantity of drug in the possession of the defendant exceeded the quantity specified in Schedule 3 of the Drugs Misuse Regulation but was less than the quantity specified in Schedule 4 of the Drugs Misuse Regulation.
- I make the following findings;-
- On the 15 August 2018 Karen Lesley Metzrof was the manager of Athena Motel Apartments. The principal place of business of Athena Apartments was 214 James Street Toowoomba.
- The apartments in question here were situated at 7 Gostwick Street Newtown, Toowoomba.
- On the above date the defendant attended the James Street address and took a short term stay of unit 2, 7 Gostwick Street Newtown “the unit” for two days, i.e. from 15 to the 17 of August 2018.
- The defendant completed the guest registration card, Exhibit 1. The card shows, inter alia, the name of the defendant as the guest, his mobile number and arrival and departure dates. Unit 2 is a two bedroom unit. The defendant was given the key to the unit which was attached to a rather large key ring. He was advised of the utilities on location and how to get to the unit.
- Detective Sergeant Joel Bryant, then attached to the CPIU in Toowoomba, attended the unit at about 8.15pm on the 16 August 2018 in the company of Detective Doherty. Snr Constable Jade Fleming executed a search warrant, Exhibit 4, on Tameka Bass, a person present at the unit at or about the same time. Detective Doherty and Sgt Bryant assisted Senior Constable Fleming in the execution of the warrant.
- The persons present in the unit when the police arrived were Tameka Bass and males by the name of Warren Sharpley and Jack Sweeney. As one entered the unit the main bedroom was to the left and the second bedroom was almost diagonally opposite with the bedrooms separated by the living area. Senior Constable Doherty searched the second bedroom where he found Bass and Sweeney and found bags containing personal items in the name of Bass and some male clothing in a bag.
- At approximately 8.30-8.40pm Sgt Bryant entered the main bedroom which contained a walk in wardrobe. During a search of the wardrobe, in a cupboard area, he found a black bag, which he described as a purse or toilet style bag. On searching the bag he found a cryovac bag in which he found a clip seal plastic bag containing what he suspected to be methyl amphetamine. He also found a methyl amphetamine smoking utensil, i.e. a crack pipe and some black scales. He asked Senior Constable Doherty to alert Senior Constable Fleming to what he had found.
- Senior Constable Fleming came into the room. He told her what he had found. He also observed some identification material which he observed on a shelf in the vicinity of the bag which was hanging on something on or near a shelf. The identification material was situated within a metre or closer to the black bag and within the shelf area of the wardrobe.
- The defendant was not in the unit at the time the warrant was executed.
- The black bag can be seen at the bottom front of the photo 5183jpg and the bottom right of photo5184jpg. These photos are part of Exhibit 6.
- The identification material was as follows:-
- A driver’s license in the name of Kenneth Facer
- A Medicare card in the name of Kenneth A Facer
- A MasterCard in the name of Kenneth Facer
- A Toowoomba Sports Club membership card in the name of Kenneth Facer
- A social club membership card in the name of Kenneth Facer.
These cards were stacked on top of one another on top a card holder on a shelf in the wardrobe.
- On entering the main bedroom Senior Constable Fleming observed the black bag or purse as she describes it referred to earlier and a black card holder on one of the shelves. On opening the card holder she found a number of identification cards in the name of Kenneth Facer. I am satisfied they are the same identification cards referred to above.
- The above mentioned material moved to a bed in the main bedroom. She arranged Scenes of Crime Officers to photograph the property found in the bedroom.
- Inside the main bedroom but not inside the wardrobe Senior Constable Fleming found a toiletry bag containing a large quantity of prescription medication, some labelled in the name of Kenneth Facer and some not. This maroon bag with indigenous markings thereon can be seen in photo 5183jpg and 5184jpg, both of which are part of Exhibit 6.
- On entering the en-suite of the main bedroom she found dark coloured large male clothing. There was also large male clothing in the main bedroom but it appeared to be too big to have been worn by any of the three people who were in the unit when she executed the warrant.
- Senior Constable Fleming also found a laptop computer and photos of one or two young children who she recognised as the defendant’s children. She subsequently issued a field property receipt for the property found in the unit but cannot recall whom the receipt was issues.
- Senior Constable Fleming obtained CCTV footage of the defendant, whom she recognised, when he registered as a guest at the Athena Apartments building in James Street. The female depicted in the footage she recognised as Temeka Bass who she also recognised in the unit on the 16 August 2018.
- Senior Constable Fleming arranged for the white substance which Sgt Bryant showed her in the plastic cryovac bag to be forensically examined. The Certificate of Analysis is Exhibit 7.
- On the 17 August 2018 Senior Constable Fleming executed a search warrant on the defendant’s home at 42 Seppelt Street Wilsonton. Present at the time were the defendant, Temeka Bass and Jack Sweeney. The defendant told her that he was at home at Wilsonton on the evening of the 16 August 2018.
- During her discussion with the defendant he told her that he had to take his morning medication. He told her it was in a maroon bag “a little like, you know, a zip up bag”. He identified the maroon bag with the aboriginal markings thereon as the bag in which he expected to medication. This is the same maroon bag with aboriginal markings thereon which can be seen in photo 5186.jpg in Exhibit 6.
- Senior Constable Fleming arrested the defendant, whom she recognised and identified in court, and transported him to the Toowoomba Watch House. She told him about the items found in the unit and where they had been located. He said he wanted to speak to his lawyer. He was not formally interviewed. As to the items found in the unit he said that someone would be attending the Toowoomba Police Station to claim ownership of same.
- A person subsequently attended the Toowoomba Police Station that day but Senior Constable Fleming was unable to interview him or her. The following day the person attended and Senior Constable Fleming conducted an electronic record of interview but she did not charge that person with possession of the subject items.
- The defendant did not give or call any evidence.
- Section 129(1)(c) of the Drugs Misuse Act 1986, the “DMA” is in these terms
- “129 evidentiary provisions
- 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”.
- Senior Constable Wheaton referred to the following cases;-
Tabe v The Queen  HCA 59 “Tabe”
Thow v Campbell  QCA 522, “Thow”
R v McGregor  QCA 308, “McGregor”.
- In Tabe the Court was dealing with s 57(c) of the DMA, the predecessor to s 129(1)(c). They are in identical terms. At paragraph 146 Callinan and Heydon JJ wrote, “Section 57(c) is concerned with possession and deals with the relevance of knowledge. To be concerned in the management or control of a place where the drug is located is, pursuant to this section, to be in ‘possession’ of the drug…
Section 57(c) relieves the prosecution of proving knowledge. It is not only to be presumed, it is also to be conclusively presumed unless the accused demonstrate absence of knowledge, or, of reason to suspect”.
- The primary issue in this matter is whether the drug was or was not “at the material time in on a place of which the defendant was the occupier or concerned in the management or control of”?
- If the prosecution prove this issue beyond a reasonable doubt, then subject to the defendant satisfying the court on the balance of probabilities that he had no knowledge of the drug or reason to suspect its presence in the unit, s 129(1)(c) fixes him with possession of the drug.
- I am satisfied that the “material time” was at or about the time that Senior Constable Fleming executed the search warrant and the methyl amphetamine was found by both her and Sergeant Bryant at the unit on 16 August 2018.
- I am satisfied that at material time the defendant was the occupier of or concerned in the management or control of unit 2/7 Gostwick Street Newtown. The reasons therefore are as follows:
- In Thow, Ambrose J, at page 8, wrote, “In the context of s.57(c) of the Act, I take the view that essential to the occupancy of a place for the application of that section the person concerned must at least be making use of that place with at the very least sufficient defacto control or management for 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.”
- On 15 August 2018 the defendant signed the Guest Registration Card, Exhibit 1, to occupy, use or stay in the unit until 17 August 2018. He was given the key to the unit and paid for his accommodation by credit card which was “on file”. That gave him possession or use of the unit for the duration of his stay. It also gave him a measure of defacto control of the unit in that he could come and go as he pleased and could secure the unit and the property therein. He could also control who came to and went from the unit.
- I accept the evidence of Senior Constable Fleming that at the unit she found the identification material, large men’s clothing on the floor of the unit and in the ensuite as well as medication in a maroon toilet bag with indigenous markings thereon. As noted in the CCTV footage in Exhibit 1 and his presence in the court during the trial, the defendant is a big man. This all points to the defendant using the unit as temporary lodgings.
- Of particular significance are the driver’s license, credit card and medication in the defendant’s name. The credit card and driver’s license were found close to where the black bag containing the drug was found and are personal items of property that one uses every day.
- During a discussion between Senior Constable Fleming and the defendant at his home at Wilsonton on the 17 August 2018 he made reference to the maroon toilet bag containing his daily medication.
- The fact that personal items such as childrens’ photos, large male clothing, and credit card, Medicare card and driver’s license in his name and medication some of which was labelled in his name, were found in the unit while the defendant was absent suggests strongly that he intended to return to and that he retained control of or was concerned in the management of the unit notwithstanding that he was absent therefrom. Such facts distinguish this case from Thow where the Court of Appeal was satisfied that the appellant had left or abandoned the premises at the time of the police raid notwithstanding that he had left some of his belongings in the flat.
- Mr Ryan for the defendant submitted that the prosecution could not prove that, as alleged in the charge, Mr Facer was at the unit or in Toowoomba on the 16 of August 2018.
- I reject that submission for two reasons. Firstly, it is contrary to the evidence. Senior Constable Fleming, whose evidence I accept, said that on the 17 August she had a conversation with the defendant at his home during which he told her that he was at his home in Wilsonton the night before i.e. 16 August.
- Secondly, and most relevantly, it is not necessary for the prosecution to prove that the defendant was at the unit or in Toowoomba on the 16 August 2018. The effect of s 129(1)(c) of the DMA is that, provided the prosecution prove beyond a reasonable doubt that the defendant was in occupation of or was concerned in the management or control of the unit at the material time, then unless the defendant can avail himself of the exculpatory provisions thereof, such proven facts is “conclusive evidence” that the drug was in his possession.
- I can take judicial notice of the fact that the unit at 2/7 Gostwick Street Newtown was in Toowoomba on the 16 August 2018. I am satisfied that the prosecution has proven beyond a reasonable doubt that the defendant was on the 16 August 2018 the occupier of or in control of or concerned in the management of the unit at that address. Accordingly there is conclusive evidence that he was on possession of the drug on that date.
- Mr Ryan referred to the decision of Lawler v Prideauz  QCA 395 and to the passage on page 2 where the Chief Justice wrote “…it should be accepted as sufficiently clear that the intended operation of s 57(c) of the DMA 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 immediately obvious possessor and the legislature has thought it necessary or desirable to attribute possession to someone. For this purpose it selects the occupier or controller of the place where the item is found.”
- This is the situation here. There was no immediate relationship of physical possession demonstrated by the defendant in proximity to the drug. There was no immediately obvious possessor in the sense that no person was in physical possession of the drug. However for the reasons stated above it is very clear in my view that the defendant was the occupier of or person in control of or concerned in the management of the unit at the material time.
- The defendant did not give or call evidence so he could not satisfy the exculpatory provisions of s 129(1)(c).
- Schedule 3 of the Drugs Misuse Regulation 1987 provides that the specified quantity for methyl amphetamine is 2 grams and the quantity for the same drug in Schedule 4 is 200 grams.
- The contents of the Certificate of Analysis, Exhibit 7, is admissible in accordance with s 128 of the DMA. It discloses that the quantity of methyl amphetamine examined was 4.848 grams and I am satisfied that such quantity was in the defendant’s possession on the 16 August 2018.
- Accordingly I find the defendant guilty of the offence as charged.
- The quantity of methyl amphetamine in the defendant’s possession, i.e. 4.848 grams pure, was significant. There was no suggestion there was a commercial purpose involved.
- There is some suggestion in the Flavell v Power  QDC 134 at 10, (relying on The Queen v Nguyen and Truong  2QdR285 at 286) that where a defendant is found guilty in reliance on s 129(1)(c), that is was not appropriate to sentence on the basis that he had knowledge of possession of the drug. As the Court said in Truong and Nguyen, “When it came to sentencing, the judge had to come to his own conclusion on the degree of Truong’s involvement and relative culpability. The statue did not determine that for him, the subsection was relevant only to the adequacy of the basis of the basis for conviction…Therefore it has to be taken that within the words of the exception in s.57(c) Truong had not shown that he neither knew nor suspected that the heroin was in the house or more exactly in the bedroom…”
- The defendant has not shown that he neither knew of nor suspected the presence of the drug nor has he offered any explanation for the presence of the drug in the unit.
- In the present matter the drug was found in a bag hanging in a wardrobe of a unit which the defendant rented for two days. In very close proximity the identification documents were found. As noted above, the driver’s licence and the credit card are property items which one would use or be likely to use every day.
- Nobody else has been charged with possession of the drug notwithstanding that the defendant told Senior Constable Fleming that someone would admit thereto.
- Prior to date of this offence the defendant had no relevant criminal history. On 17 October 2019 he was given probation for 12 months for a number of drug offences so the issue of totality is relevant.
- As the matter proceeded to trial the defendant is not entitled to a discount for an early plea.
- Both the prosecutor and Mr Ryan submitted for a wholly suspended sentence and I accept those submissions.
- I order that the defendant be jailed for 12 months wholly suspended for two years. I make forfeiture order with respect to the drug.
- Published Case Name:
Fleming v Facer
- Shortened Case Name:
Fleming v Facer
 QMC 2
Acting Magistrate Carroll
26 Feb 2020