Who is “the occupier” of a vehicle under section 129(1)(c) Drugs Misuse Act 1986 (Qld)?
“The occupier” in section 129(1)(c)
Section 129(1)(c) of the Drugs Misuse Act 1986 (Qld) deems possession of drugs found at a premises on “the occupier” of that premises.
‘The occupier’ is not defined in the Act but rather is a question of fact determined on a case-by-case basis by the Courts.
The following points have been considered relevant to determining who “the occupier” is under section 129(1)(c):
- Ownership of the place where drugs are found is not enough to establish occupation of it.[1]
- Mere presence in a place is not enough to establish occupation of it. Rather, occupation is commonly treated as “being dependent upon control, in the sense of being able to exclude strangers”.[2] The occupier of a place will thus have the ability to exclude strangers from it.[3]
- The occupier of a place is distinguished from an occupier of a place. The occupier of a place will purport to exercise a right to exclude others from it. An occupier of a place does not purport to exercise that right.[4]
- The occupier of a place must make use of that place, and have sufficient control of the place to facilitate that use.[5]
- A person may be the occupier of only one part of a place.[6]
“The occupier” of a vehicle?
A vehicle is a ‘place’ under section 129(1)(c)[7] and as such, the same factual considerations apply to the question of occupancy.
In R v P[8] two men, ‘N’ and ‘P’, were charged with possession of drugs found in a parked van. The van was parked at P’s house. N had the keys to the van and admitted to owning it. CCTV footage however showed both men travelling in the van before it was parked at P’s house. Specifically, the footage showed that P drove the van before it was parked. N’s possession of the keys indicated that N took over driving at some point before the van was parked. In coming to the conclusion that P had “at least joint control” of the van, Justice Applegarth referred to the evidence of P driving it as being P’s “earlier presence and control of the van”.[9]
In R v Sellwood[10] police intercepted a car whilst it was parked in a driveway. The appellant was the driver of the car. A second man was in the passenger seat of the car and had been in the car for about 30 seconds before police interception. Drugs were found “leaning against the center console of the car… on the hump, just more over to the passenger side… but leaning against the center console itself”.[11] The passenger was found with a significant amount of cash on him. The inference was that there was to be a drug deal. The driver of the car was found to the occupier of the car. This finding was upheld on appeal.
Conclusion
R v P[12] and R v Sellwood[13] seem to suggest that the starting point to an inquiry of this kind is that the driver, not the passenger, will be deemed “the occupier” of a vehicle.
Although the question of occupancy will turn on the individual facts of a case, taking into account the elements of use and control as outlined above, this appears the logical starting point.
[1] R v Smythe (1997) 2 QR 223.
[2] Thow v Campbell [1996] QCA 522 at 5, citing Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 at 4.
[3] Thow v Campbell [1996] 522; R v Ma [2019] QCA 1.
[4] R v Straker [1997] QCA 113 at 5.
[5] Ibid at 8.
[6] R v Smythe (1997) 2 QR 223.
[7] Drugs Misuse Act 1986 (Qld), s 4.
[8] R v P [2016] QSC 050.
[9] At [26].
[10] [2011] QCA 70.
[11] At [4].
[12] [2016] QSC 050.
[13] [2011] QCA 70.