R v Pham & Phan[2010] QSCPR 4

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application for a pre-trial ruling pursuant to s 590AA of the Criminal Code as to the applicability to counts 2 to 6 on the indictment of s 129(1)(c) of the Drugs Misuse Act 1986.  That is the subsection that reverses the onus of proof of possession of a dangerous drug where the prosecution establishes beyond a reasonable doubt that the defendant was, at the relevant time, the occupier or concerned in the management or control of the place where the drug was found. 
2. [2]
   The parties asked for the ruling on the basis that the facts upon which the decision was to be based were “agreed or undisputed ... and where the Crown concedes that those facts represent the highest that the Crown case can be put.”^[1]  This was done to cope with the possibility that I might form the view that the material was not in a satisfactory state to allow me to make such a ruling.  The defendants, who were the applicants, sought the ruling on the basis that their lawyers would then be in a better position to advise them about the future conduct of the proceedings. 
3. [3]
   The evidence put before me consisted of the depositions from the committal proceeding, ex 1, and some statements, ex 2, not tendered at that hearing but from witnesses some of whom gave evidence at the hearing.  An “association link chart” showing alleged connections between the defendants and two adjoining houses relevant to the charges against them became ex 3.  The statements forming ex 2 and the chart in ex 3 were provided to me on the basis that they represented the highest that the prosecution case could be put and, in the case of ex 3 that I not rely on any assertions in writing on it unless they were supported by something else in the evidence.  That was in the context that two of the witnesses had not given all of the evidence referred to in their statements when examined at the committal hearing.  Initially, there had been some differences between the parties as to the detail of the relevant evidence but the parties then proceeded on the basis of the facts I shall outline. 

The prosecution case 

4. [4]
   The prosecution has charged the defendants jointly on an indictment alleging three counts of possessing dangerous drugs and three counts of possessing dangerous drugs in excess of 2 grams.  In the case of each defendant the prosecution alleges that they possessed the same drugs at the same time, jointly and severally.  In the case of each defendant the prosecution relies on all the circumstances as supporting the inference that the defendant knowingly possessed the dangerous drugs as alleged in the indictment or that the defendant was “the occupier or concerned in the management or control” of the place where the drugs were found such that s 129(1)(c) operates to impose a presumption that he possessed the drugs. 
5. [5]
   I shall set out the evidence the parties relied on to make their arguments by reference to the summaries in their respective written submissions with some minor alterations or comments by me.   The main source of the summary is from the prosecution’s written submissions with the incorporation of a number of facts pointed out by the defendants. 

The relevant evidence 

6. [6]
   At 6:45am on 14 November, 2008 police executed search warrants at neighbouring properties, 30 and 32 Gladstone Street, Archerfield.  The residence at 32 Gladstone Street is the last house on the left hand side in a dead end street.  It is a low set timber dwelling that sits behind a six foot wooden fence.  The defendants Van Hoi Pham and Ngoc Phu Phan were the only people present at that address when police arrived.  It seems to be accepted that they were occupants of 32 Gladstone Street.  They took police to bedrooms in the house that they identified as their own.  Documents and personal items of theirs were located throughout the house. 
7. [7]
   The real issue here is whether the evidence establishes to the appropriate standard, namely beyond a reasonable doubt, that they were also occupiers or concerned in the management or control of the property at 30 Gladstone Street or whether all the evidence shows is that they had access to that property at some imprecisely identified times in the past. 
8. [8]
   The registered owner of the house at 32 Gladstone Street, and of the property next door at 30 Gladstone Street, was a woman named Thi Le Tran.  Thi Tran was said by the prosecution to be married to the brother of the defendant Ngoc Phan but the defendants’ counsel pointed out that there was no evidence of that before me.  For present purposes that issue, whether or not she was the sister-in-law of that defendant, does not seem to be vital.  Although she was the registered owner of the properties, there was no indication that she was actually living in either house at the time.  Police have been unable to locate her and at the time of committal she was believed to be living interstate.^[2]
9. [9]
   During the search of 32 Gladstone Street police found a glass bottle with a green and gold “Dolmio” lid in the cupboard under the kitchen sink.  The bottle had been taped up with an off white masking tape so that the contents were not apparent.  Inside was an open cryovac plastic bag, within which was a smaller clip seal bag that contained 100 round tablets.  The tablets were embossed “WS” on one side.  They were analysed and found to contain 0.445 grams of the drug referred to in count 1, 4-Bromo-2,5-Dimethoxyphenethylamine (described as “2C-B”).  The remaining drugs, giving rise to counts 2 to 6, covering methylamphetamine and heroin as well as further quantities of 2C-B, were found at 30 Gladstone Street.  The quantity of drugs at 30 Gladstone Street was significantly greater than the quantity at 32 Gladstone Street.
10. [10]
    Both defendants also had significant quantities of cash in their bedrooms at 32 Gladstone Street at the time of the search.  Ngoc Phan was in possession of almost $15,000 cash, which was found in a decorative jar in his bedroom.  Van Pham had $1,000 cash in his bedroom. There was a large number of empty clip seal plastic bags, and an amount of powder, capable of being used as a drug cutting agent, in the kitchen. 
11. [11]
    A number of items located at 32 Gladstone Street can be linked to items that were found at the premises next door at 30 Gladstone Street.  Other evidence gathered at 30 Gladstone Street can be linked back to the address at 32 Gladstone Street and to the defendants.  These matters were summarised by the prosecution in a table set out below. The effect of this combination of evidence, taken at its highest, the prosecution submitted, was to allow an inference to be drawn that each defendant was the occupier or concerned in the management or control of the premises at 30 Gladstone Street. 
12. [12]
    Some of the more significant evidence, on the prosecution argument, stemmed from the fact that a set of seven keys was found sitting in open view on the television table inside 32 Gladstone Street.  A police officer gave evidence at the committal hearing that he believed that those keys did not fit any door at 32 Gladstone Street but he was not sure whether he tried each key in each door at that address.  When they were tested next door at 30 Gladstone Street it was found that one of the keys opened the rear door at the top of the stairs at that house.  None of the keys could open a screen door in front of the rear door at 30 Gladstone Street but there was no evidence as to whether that door was locked when the search took place or at other times. 
13. [13]
    The search at 30 Gladstone Street took place simultaneously with the search at 32 Gladstone Street.  The house at 30 Gladstone Street is a high set timber dwelling in a fenced yard.  It is separated from 32 Gladstone Street by a six foot fence that extends the length of the boundary. A hole in the fence which is three palings wide had been created in the middle. This hole provided access between two adjacent sets of stairs on the properties. There is no evidence, however, as to when the hole in the fence was created or when it was last accessed by either defendant if at all. 
14. [14]
    The dwelling at 30 Gladstone Street is open underneath.  At the time of the search there were three cars on the property.  They were unregistered and in various states of repair.  The front door was open but the front screen door was locked.  When police arrived and announced their presence there was no response from inside the house.  Detective Senior Constable Martyn, however, made a statement in which he said that he could hear something inside and observed the movement of curtains in the home.  He knocked several times and shouted out “Police”.  He did not observe any person coming to the front door but could still hear movement.  The police then forced entry through the screen door but Detective Senior Constable Martyn and other police could not locate anybody, although the search included the ceiling.  Nobody was observed to leave the building although police had surrounded both houses.  He did find a radio still going, however, as well as “open wine … cooking utensils left out, mattresses, books, movies etc.”^[3]  The defendants were next door in 32 Gladstone Street at the time of the search. 
15. [15]
    The only sign of recent occupation was in the bathroom, where police observed water on the floor and in the sink.  There was no indication that the bedrooms had been recently occupied by anyone.  Police located photographs, documents and other items throughout the house that belonged to both defendants.  Scientific examination revealed Van Pham’s DNA on the two toothbrushes found in the bathroom.  There was more than one DNA profile detected on the bristles of a “Colgate 360” toothbrush.  The major profile was Van Pham’s and the other or others were unidentified.  Van Pham’s DNA was also detected on the bristles of an “Oral B” toothbrush but there was another contributor to the DNA found on the shaft of that toothbrush.  Both defendants’ fingerprints were found at points inside the house.  Ngoc Phan’s fingerprints were also located on items underneath the house. 
16. [16]
    Dangerous drugs were found at various places at 30 Gladstone Street:

1. (a)
   Police located a number of containers in the kitchen area which appeared to contain drugs as well as cutting agents, consistent with the area being used to package dangerous drugs for distribution.^[4]  Three bags of compressed powder were found to contain heroin (13.636 grams pure).  Two bags contained methylamphetamine (12.055 grams pure, in 43.6 grams of powder).  These drugs are the subject of count 2.
2. (b)
   Police looked through a large tool cabinet underneath the house.  At the back of one of the drawers in the cabinet was a bag containing 455 grams of powder, which contained 276 grams of pure heroin (count 3).
3. (c)
   A plastic bag containing 74 round tablets embossed “WS” was found inside the second drawer of the cabinet.  A plastic bag containing 457 round “WS” tablets was found inside the bottom left side of the cabinet (in the same bag as the heroin in count 3).  The tablets were analysed and found to contain 2.3 grams of pure 2C-B (count 4, which the prosecution pointed out should be amended to reflect this amount).
4. (d)
   Police searched inside a partly dismantled blue sedan which was under the house.  On the passenger side they found a green shopping bag.  Inside were 19,469 “WS” tablets sealed in rough textured cryovac bags.  The tablets were analysed and contained 121.1 grams of pure 2C-B (count 5). 
5. (e)
   Two bags containing a total of 77 brown “WS” tablets were found inside a dress shoe that was in a table on the front veranda of the house.  The tablets were analysed and contained 0.3 grams of pure 2C-B (count 6). 

17. [17]
    During the search at 30 Gladstone Street, police also located one set of electronic scales and a cutting board in the kitchen; and one set of electronic scales in the tool box downstairs.  These items returned positive swabs for the presence of heroin and methylamphetamine.  A machine described as a “heroin press”, which was a mechanical hydraulic press with traces of heroin on its plates, was found in close proximity to the tool box which contained pressed heroin.  The defendant Ngoc Phan’s fingerprints were identified at five different points on this press in positions consistent with his having moved the press as opposed to having operated it.  It was not possible to say when this might have happened.
18. [18]
    During the course of the search police spoke to the defendants and they made relevant statements.  Van Pham went to the house at 30 Gladstone Street with police.  He told them: 

1. (a)
   He lived at 32 Gladstone Street.  He had been to number 30 once, “just for the party … a while ago”.
2. (b)
   He had been inside the house on that occasion, but did not touch anything; “I just walked in then out again”. 
3. (c)
   The photos on the wall (some of both him and Ngoc Phan) were there when he came in. 
4. (d)
   He had used the toilet and the sink at the party. 
5. (e)
   He was sure, after being asked twice, that he had never used the toothbrushes that were pointed out to him. 
6. (f)
   None of the property inside the house belonged to him. 
7. (g)
   He was unable to explain how a QPS issued notice to appear in Court (dated 2007) addressed to him came to be inside papers at the house. 
8. (h)
   When the drugs were shown to him he told police that he had never seen them before. 
9. (i)
   He declined to be formally interviewed.

19. [19]
    The evidence, on the prosecution case, it was submitted, taken at its highest, would allow a jury to conclude that the defendant was being deliberately untruthful and trying to downplay his association with the house.  The jury might be satisfied that this was done out of a consciousness of guilt, and that the truth was that he was more intimately connected with that address than he was prepared to admit. 
20. [20]
    Ngoc Phan was also spoken to by police at the scene of both houses.  He told them: 

1. (a)
   He lived at 32 Gladstone Street. 
2. (b)
   The property was rented by him through a private rental agreement. 
3. (c)
   He told police at the outset that he had nothing to declare.  He confirmed that he did not have any large sums of money.  He then confirmed that he was in fact in possession of the $15,000 cash in his room. 
4. (d)
   He gave inconsistent accounts about the person from whom he rented the property, and for how long he had been living there.  He initially told police that he had only been living there for three weeks and that he had no contact details for the owner. 
5. (e)
   He later told police that he “can’t remember” how long he had lived there, and that he had rented the property from Li Tran (since alleged to be his sister in law) after responding to a notice at the Inala shops. 
6. (f)
   He told police that he did not know who lived next door.  He insisted that he had never lived there. 
7. (g)
   When asked about the presence of documents in his name at number 30, Ngoc Phan explained that he is friends with the people living next door, “I used to go over there and talk to the guys that used to live there.  Now they just come and do the cars”.  He clarified this, explaining that “he does not know who lives there now, but that sometimes in the morning they come and fix the cars.” 
8. (h)
   He later spoke of a person he knew as “Danny” who does mechanic’s work at number 30.  When pressed to provide information that might assist to identify “Danny” he indicated that he would not answer any further questions about him. 
9. (i)
   He was not aware of the presence of the Dolmio jar (containing drugs) in the kitchen at number 32, “I don’t usually go to the kitchen and look for stuff”.  When shown the jar he told police “That’s my girlfriend’s jar” and insisted that he did not use the kitchen.  He did however use the noodles that were in a box beside the jar. 
10. (j)
    When asked about the bags of white powder (cutting agent) and plastic bags in the kitchen he explained that they were vitamins that he bought from a friend at the gym.  The plastic bags belonged to his girlfriend and she used them to package lollies. 
11. (k)
    He had repacked some of the powder in the kitchen as he planned to give some away to friends as he does not go to the gym anymore. 
12. (l)
    He accompanied police next door to number 30. 
13. (m)
    When asked to explain the presence of photos and various documents in his name that were on the living room table, his response was “no answer”. 
14. (n)
    When asked whether he had any knowledge of drugs found in the premises his responses varied between “No” and “No answer”. 
15. (o)
    He was asked who collected the mail at number 32 and stated “I don’t know”. 
16. (p)
    In relation to the keys at number 32 that opened the back door of number 30, Phan told police that he did not know whose they were.  When asked whether he had seen them before, he responded “Probably” and later “no answer”.

21. [21]
    The prosecution submitted that the account Ngoc Phan gave police was inconsistent and at times implausible.  His answers were described as selective and it was argued that these matters would at least go to his credit.  The available evidence was also said to be capable of establishing that Ngoc Phan has told a number of material lies that could demonstrate a consciousness of guilt.  Most relevant to the present application were said to be his statements that he had never lived at number 30 and that other people lived there. 
22. [22]
    Police spoke to a number of neighbours and friends of the defendants.  Witness statements were taken from six people who knew them.  That evidence was said to demonstrate that the defendants had exercised some degree of control over the premises at 30 Gladstone Street: 

1. (a)
   Binh Nguyen visited the defendant Ngoc Phan at number 30 on numerous occasions.  One time he asked Ngoc Phan if he could divert his mail to number 30 and Ngoc Phan agreed to this.  In November, 2008, after Ngoc Phan “got into trouble with the police” he agreed to help Ngoc Phan move a refrigerator from 30 to 32 Gladstone Street.  Van Hoi Pham was present on that occasion also.  Binh Nguyen gave evidence at the committal hearing but did not provide all of the evidence which appears in his statement.
2. (b)
   Mai Dang worked with the defendants at a motor mechanic’s shop.  In the beginning of 2008 she attended a party at number 30 Gladstone Street.  It was held under the house.  Van Pham told her that he stayed in the house with the defendant Ngoc Phan.  She also gave evidence at the committal hearing but did not provide all of this evidence, particularly the version from Van Pham about staying in the house with the other defendant, which does, however, appear in her statement.   If that evidence were given at the trial it would only be admissible against Van Pham. 
3. (c)
   Other witnesses describe the occupants of the two houses walking between them quite regularly, including such behaviour at times not long before the police raided both premises.

23. [23]
    The evidence said to link the defendants, the addresses and the dangerous drugs was summarised in a table and in ex 3. The table, with some amendments reflecting the defendants’ views of the evidence, is as follows:

Presumption of possession – the legal arguments

24. [24]
    The proper interpretation of s 129(1)(c) of the Drugs Misuse Act 1986 was not particularly in issue but rather its application to these facts.  Consequently the defendants’ counsel did not quarrel significantly with Mr Robson’s summary of its effect nor he with theirs. The subsection provides an evidentiary presumption of possession:

“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.”

25. [25]
    “Place” is defined in s 4 of the Act to include a motor vehicle.  The Act does not define the terms “occupier”, “management” or “control”.
26. [26]
    The defendants drew my attention in particular to a passage in the Court of Appeal’s decision in Symes v Lawler^[5] dealing with the predecessor of this section where Fitzgerald P and Cullinane J said of the inelegant words “in or on a place of which that person was the occupier or concerned in the management or control of”:

“That compendious phrase cannot be satisfactorily construed by an analysis of its separate components. It focuses 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. A 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, 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, manage or control.

In the present case, the ‘place’ ‘in or on’ which the drugs were located might on the evidence have been the person of the other person in the unit. The prosecution did not prove to the contrary beyond reasonable doubt. That being so, in our opinion s. 57(c) had no material operation against the appellant notwithstanding that he was an ‘occupier’ of the premises.”

27. [27]
    The term “occupier” was also judicially considered in its present context by the Court of Appeal in Thow v Campbell.^[6]  There a house was rented by the appellant’s girlfriend, who was the tenant, and he lived there intermittently.  After an argument she asked him to leave.  He left the house with most of his property, leaving some articles behind, the day before the police arrived.  He was held not to be an “occupier” at the time of the search and his conviction was set aside.  Pincus and Davies JJA said:^[7]

“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 … 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.”

28. [28]
    Their Honours pointed out^[8] that there may be more than one “occupier” of a place, “for example, each of a group of people in possession of premises as joint tenants”.  However in Thow v Campbell, after the appellant split up with the tenant, with whose permission he had been residing there, it was found that the applicant “had moved out, of the premises” so that he was no longer an occupier of them.  The judgment of Ambrose J reflects a similar approach but also draws attention to the relevance of a person’s “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.”^[9] 
29. [29]
    My attention was also drawn to observations of Thomas J about the terms “occupier” and “management or control”, in R v Smythe.^[10]  Mrs Smythe had been charged with possession of a cannabis crop on property she owned.  At its highest she was an infrequent visitor to the property while she lived elsewhere.  Another person, living in a caravan on the property and present at the time of the search, was said to have enjoyed a degree of occupancy and control on the property, although he had not been charged.  His Honour was asked to rule on the question of whether there was a case fit to go to a jury.  In ruling that there was not, he made observations relevant to the issue here.  He expressed the view that the concepts of occupation, concern in management and concern in control of property meant more than mere ownership:^[11]

“The potential relevance of ownership in this context is, I think, the existence of the right to exercise control if an owner chooses to do so. In my view, being ‘concerned in the management or control’ of a place must mean more than bare ownership. Some interest in or personal involvement in control or management must be shown on the evidence before the Crown obtains the benefit of the reverse onus.”

30. [30]
    His Honour took the view that physical occupation is not necessary and that personal involvement, or control may be demonstrated by the possession of keys to the premises, saying:^[12]

“Instances where I have allowed evidence to go to a jury under s. 57(c) include those where the person has a key to a warehouse or to a lock-up shed; or has so conducted himself in relation to the premises where the drug is found, that it may be inferred that he was concerned in their management or control. In such cases it does not matter that the person does not physically occupy the premises on a continuing basis. In the present case, although Mrs Smythe was a joint owner and, coincidentally, for a day or so before the raid, the full owner by survivorship, I do not think that she was in occupation. She was not there, but someone else was.  That person, it may be inferred, had the full run of the premises. He is not shown to have been Mrs Smythe’s servant or agent.”

31. [31]
    Mr Robson for the prosecution submitted that other principles may be extracted from decisions which consider this provision, namely, that physical presence, without more, is not sufficient;^[13] and that evidence that a person lives at the place concerned is sufficient to establish the presumption.^[14]  He also submitted that the terms “occupier”, “management” or “control” must be considered in the context of the “place” where the drug is said to be found and that the decision in Symes v Lawler demonstrates that a larger place, may be divided into components for the purpose of determining who is in occupation, management or control. The determination of the relevant “place”, he submitted, in reliance on that decision, will depend upon the circumstances and invites a focus on the location of the drugs, the precise “place” “in or on” which a drug is found and requires that the “place” be occupied, managed or controlled by the accused.^[15]  Accordingly, he submitted, the relevant place might be construed to be as narrow as “the person” of another who is present at the premises (as in Symes), or a small fishing tackle box^[16].  It may be as wide as an entire block of land.^[17]  Depending on the evidence, a different approach may be taken to different parts of the property.^[18]
32. [32]
    Mr Boe for the defendant Van Hoi Pham also argued, in reliance on the decision in Thow v Campbell, that it is not sufficient to meet the test if all that connected a defendant with the premises at that stage was the presence of some of his belongings. 
33. [33]
    Both defence counsel also submitted, in reliance on Symes v Lawler, that there is also a need, well established by authority, for the “occupation”, “management” or “control” to relate to the portion of the premises at which any drugs may have been found, that is, some specific “place”, rather than a larger area over which several people might exercise dominion.  Moreover, they submitted, referring to Thow v Campbell, that it must be demonstrated that the “ownership”, “management” or “control” was in existence at the relevant time, in this case, 14 November 2008.  An individual, they submitted, cannot be held responsible for the presence of drugs at a place once any relevant connection has been relinquished. 

The parties’ submissions concerning the facts

34. [34]
    On these facts, it was submitted for the defendants, the most the prosecution could show was that the defendants had access to 30 Gladstone Street at some stage in the past and that was not sufficient to establish beyond a reasonable doubt their occupation of that place or their concern in its management or control at the time charged in the indictment, 14 November 2008. 
35. [35]
    The prosecution argument was, however, that, in the context of all the evidence of this case, it would be valid to consider the “place” as being both dwellings, at 30 and 32 Gladstone Street.  This interpretation, it was submitted, would be consistent with all of the available evidence, namely the existence of the drugs themselves, which were said to be clearly connected directly and indirectly, and were found at various locations across the two properties.  Reference was also made to the conduct of the two defendants who, while they slept at 32 Gladstone Street, had means of access to and, at the height of the prosecution case, regularly attended and maintained some level of occupancy at 30 Gladstone Street, in the absence of any other apparent occupier at that address. 
36. [36]
    That last submission was challenged by the defendants who pointed to evidence suggestive of other people having at least used the premises at 30 Gladstone Street, apart from the wraith whose presence was suspected by Detective Senior Constable Martyn.  That evidence was of five documents, such as letters and payslips bearing names other than the defendants, dated variously between 10 October 2007 and 9 November 2007 and located on the dining room table and elsewhere on the premises, a mobile phone not linked to the defendants and possibly used by a female high school student, the mixed DNA profiles on the toothbrushes and 17 identifiable latent fingerprints from people other than the defendants including some found on drug paraphernalia identified as belonging to a person called Nguyen. 
37. [37]
    There does not appear, however, to be any evidence establishing that any other person was in residence at 30 Gladstone Street at the relevant time.  Its owner was not there and could not be located.  There was evidence of other people visiting there, particularly for the purpose of having work done to cars from time to time, and also for at least one social occasion, but not of others apparently living there.
38. [38]
    Counsel for the defendants were willing to concede that the evidence could generate a degree of suspicion but argued that it lacked a temporal context and, taken as a whole, was not capable of establishing that the defendants were the occupiers or concerned in the management or control of 30 Gladstone Street at the relevant time.  Mr Callaghan SC also argued that, where the prosecution case was that both defendants had the management and control of the premises, it was necessary to establish the particular area over which each or both exercised that control.  He submitted that had not been done in this case with the result that there was simply no evidence of management, control or occupation of any relevant place within the house sufficient to attract the operation of the subsection. 

Conclusion

39. [39]
    The prosecution case is partly circumstantial insofar as it relates to the proof of the defendants’ occupation or concern in the management and control of 30 Gladstone Street.  Prima facie there seems to me to be a good circumstantial case that they were at least concerned in the management and control of the property in respect of the conduct of a car repair business there.  The evidence of their involvement with that business is not clear, however, because of the variety and imprecision of the names used to describe the people who worked on cars at 30 Gladstone Street. 
40. [40]
    Their apparent possession at 32 Gladstone Street, the house both admitted to occupying, of a key to the house at 30 Gladstone Street reinforces the conclusion that they were in occupation of it or concerned in its management, as do the other items of evidence relied on to link the activities at 32 Gladstone Street with the premises at 30 Gladstone Street, including the photographs, the similarities between the drugs and their packaging and the evidence from which it could be inferred that the defendants regularly moved between the two premises up to and after the time of the police raid.  That seems to me to be sufficient evidence to go to a jury to establish joint and/or separate control or management by them of the places where the drugs were found. 
41. [41]
    The absence of any other obvious candidate as the occupier or resident of the premises is also relevant.  That there was no such other person in occupation is the effect of the evidence of the condition of the house when it was raided by police and of the neighbours and others who were observers of the activities at 30 Gladstone Street.^[19]  That other people visited the premises from time to time does not preclude the conclusion that the defendants were concerned in its management or control and that that control extended to the individual locations where the drugs were found, particularly when one considers the distinct similarities in the appearance of the drugs found in the different parts of the property with the drug found at 32 Gladstone Street.  Mr Robson characterised it persuasively as effectively one batch of drugs stored at several different places within the two houses. 
42. [42]
    In my view, therefore, there is sufficient evidence to warrant a jury determining the issue raised in respect of counts 2 to 6 on the indictment: whether the prosecution has established beyond a reasonable doubt that each of the defendants was the occupier or concerned in the management or control of 30 Gladstone Street on 14 November 2008 or of the particular place at that address where the illegal drugs were found. 

Ruling

43. [43]
    I would rule, therefore, in respect of each defendant, that a jury should determine whether the presumption contained in s 129(1)(c) of the Drugs Misuse Act 1986 applies to counts 2 to 6 of the indictment.