Statutes - Interpretation - Rules of construction - Words to be given literal and grammatical meaning - Words only to be inserted in exceptional cases.

Misuse of Drugs Act 2001 (Tas), s3(3).

Thompson v Goold & Co [1910] AC 408; Bermingham v Corrective Services Comm of New South Wales (1988) 15 NSWLR 292, followed.

Allison v Lowe B13/1988; Fox v Warde [1978] VicRp 37; [1978] VR 362; R v Phung [2003] VSCA 32, discussed.

Judgment Number: [2004] TASSC 13

ASHLEY WILLIAM ROY ARNOLD v TREVOR MAURICE STRINGER

1 What is the meaning of the words "on any land or premises occupied by the person ..." as enacted in the Misuse of Drugs Act 2001 ("the Act"), s3(3) which provides:

"(3) Without restricting the generality of the expression 'possession', a controlled substance is taken to be in a person's possession for the purposes of this Act so long as it is on any land or premises occupied by the person, or is enjoyed by the person in any place or is in the person's order and disposition, unless the person proves that he or she had no knowledge of the substance."

2 The respondent was charged with having possession of cannabis contrary to the Act, s25. He appeared in a court of petty sessions and pleaded not guilty. Mr G A Richardson (counsel for the respondent both in the court of petty sessions and on this motion to review) and the police prosecutor, told the learned magistrate that all the facts were agreed. Those facts fell into two groups. First it was agreed that:

"On 17/1/03 as a result of a search conducted by drug investigation officers with a search warrant at 4 - 6 Knox Street Queenstown, the residence of Trevor Stringer, 4.85g of cannabis was located behind the seat cushion in armchair from [sic] the lounge room."

3 Second, a portion of a record of interview between the respondent and a police officer was tendered in evidence by consent. The part of that exhibit that is relevant to the issue reads as follows:

"LB [police officer] Are there any drugs or related materials in the house?

TS [respondent] No.

(Cannabis located in lounge room)

LB What is in this bag?

TS It's marihuana.

LB Whose is it?

TS It's my chair it's probably mine, I'm generally the only person that sits in that chair, I don't know how old it would be.

LB Caution, do you understand?

TS Yep.

LB Can you tell me where this would have come from?

TS I don't remember it so no, but it's not hard to come by.

LB Do you use cannabis?

TS Very occasionally yeah.

LB Does anyone else in the house use it?

TS You'll have to ask them.

LB So this could belong to someone else?

TS No it would be mine I sit here, I would have just forgotten about it."

4 After portion of the respondent's record of interview had been tendered, counsel for the respondent told the learned magistrate that he and the prosecutor could not agree on the legal outcome of those facts, "so we thought we'll come to the umpire and let him give the decision". The umpire's decision was to dismiss the complaint upon the basis that he was not satisfied of the respondent's guilt beyond reasonable doubt. The applicant now seeks a review of that decision upon the ground that:

"The learned magistrate erred in fact and/or in law in failing to find that the respondent had possession of the controlled substance (cannabis) by virtue of s3(3) of the Misuse of Drugs Act 2001, the respondent not having proved that he had no knowledge of the said substance."

5 The Act, s3(3), was not mentioned in either the submissions or the reasons for judgment in the court of petty sessions. In the course of his argument before the learned magistrate, Mr Richardson submitted that the clear inference from the record of interview was that the respondent was not the only occupier of the residence "... so that the presumption does not apply".

6 Upon the hearing of the motion to review, Mr Richardson explained his submission by saying that it was "widely accepted" in courts of petty sessions that if there is evidence of multiple occupation of premises, the Act, s3(3), does not apply. He said that the subsection was not referred to at first instance because of this widely accepted view of the meaning of s3(3). Mr Richardson submitted that this alleged interpretation by the courts at first instance was correct and pursued his argument by resorting to various hypothetical instances such as the finding of a bag of cannabis in the Christ College dining room when it was "occupied" by several dozen students. Such hypothetical factual situations are of little assistance. They simply ignore the plain fact that Parliament did not legislate with reference to "exclusive possession", and in any event, by far the majority of premises are occupied by more than one person.

The Act, s3(3)

7 Determination of the issue requires me to ascertain the intention of the Parliament from the words enacted by s3(3) in accordance with the canons of statutory construction established by the common law and, where relevant, the Acts Interpretation Act 1931. See Mills v Meeking [1990] HCA 6; (1990) 91 ALR 16 at 29 - 31.

8 The provisions of the Act, s3(3), were first enacted in the Poisons Act 1971, s3(3). That Act is still in force and s3(3) has not been amended since its original enactment. The only difference between the words of the Act, s3(3), and the words of the Poisons Act, s3(3), is that the language of the former has been modernised and made gender neutral. The operative words are identical.

9 In this case, it appears clear that the cannabis was found on "land or premises". It may be that this expression is tautologous, although nothing turns on this. In its strict meaning, "premises" are all the fore parts of a deed before the habendum (Touch 75; 2 BL Comm 298). However, for a long time, "premises" has assumed the more popular meaning of land and/or buildings. There is an interesting reference in the judgment of Goddard LJ in Gardiner v Sevonoaks RDC [1950] 2 All ER 84 at 85 as to how this development came about. Parliament has further extended the meaning of "premises" by enacting in s3(3), that "premises" includes a conveyance. Further, the meaning of conveyance is also extended by the same subsection, to include aircraft, vehicle or vessel. One suspects that this may also be tautologous.

10 Accordingly, the cannabis "is taken to be" in the respondent's possession if he "occupied" the land or premises at the time the evidence established the existence of the cannabis on that land. The undisputed evidence was that at the time it was proved that the cannabis was behind a seat cushion on a chair, the respondent was using the house as his residence. Indeed, the evidence went further and established that the chair was generally only used by him. In these circumstances, there can be no doubt that the respondent was the occupier of the premises on which the cannabis was at the relevant time. Mr Richardson did not seek to contend to the contrary. It is beside the point that those premises might also have been occupied by others. Most premises are occupied by more than one person. Mr Richardson's submission on the hearing of the motion to review involved the proposition that the Court should construe s3(3) as meaning "on any land or premises exclusively occupied by the [respondent]", but that would require the Court to write a word into the subsection that is not there.

11 It is an accepted canon of construction that the Court may write a word into a statute if it is obvious that a simple mistake or drafting error has been made. See Winkley v Paton (1943) 60 WN (NSW) 162; Lindner v Wright (1976) 14 ALR 105. However, as Lord Mersey said in Thompson v Goold & Co [1910] AC 409 at 420:

"It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of a clear necessity it is a wrong thing to do."

12 Stephen J expressed the same view when he said in Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 649:

"Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no power of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St Mellons RDC v Newport Corporation [1952] AC 189, at p 191, 'If a gap is disclosed, the remedy lies in an amending Act' and not in a 'usurpation of the legislative function under the thin disguise of interpretation'."

13 The foregoing is sufficient to dispose of this motion to review, but having regard to what I was told about the claimed widely held interpretation of the Act, s3(3), it is perhaps appropriate that I should make some reference to the meaning of the word "occupation" as enacted in that subsection.

14 The Privy Council observed in Mandrassa Anjuman Islamia of Kholwad v Municipal Council of Johannesburg [1922] AC 500 at 504, that "[t]he word 'occupy' is a word of uncertain meaning. ... It's precise meaning in any particular statute or document must depend upon the purpose for which, and the context in which, it is used". In Fox v Warde [1978] VicRp 37; [1978] VR 362, McInerney J was concerned to construe the word "occupier" in a statute that made it an offence to (inter alia) be an occupier of any part of premises for the purpose of "habitual prostitution". The evidence established that an act of prostitution took place in a room at a massage parlour. There was evidence by way of admissions that the defendant worked for the massage parlour on a regular basis, five days a week. This evidence disclosed that there were a number of rooms in the premises, all of which were used by the defendant and others who worked there. Different rooms were used by different persons for massages. The evidence did not establish beyond reasonable doubt that the room in which the relevant act of prostitution took place had been used by the defendant on any other occasion. McInerney J held that there was no evidence of occupation for the purpose of the statute. In reaching this conclusion, his Honour said, at 367:

"That is not to say that in proving that the defendant is an occupier it is not relevant to rely on the very user of the premises by the defendant. Indeed, user would ordinarily be one of the maters from which a court would be asked to draw the inference that the person concerned was the occupier of those premises. It is not, in my view, necessary to show the 'occupation' to use a neutral word, of the premises by the defendant is permanent. There can be few, if any, occupations which are permanent in that sense. One the other hand, a mere transitory use of premises, as in the instances put by Mr Uren, is not sufficient, in my view, to constitute occupation. Use on one occasion only would not normally, I suppose, be sufficient in itself to demonstrate that the person so using the premises is an occupier. It is not, in my view, necessary to show that the occupation is a lawful occupation. The occupation of premises by squatters on the scale that has occurred in London in recent years has, on any view of it, been on a number of occasions an unlawful occupation of those premises. The unlawfulness does not prevent the squatters from being regarded as the occupiers of premises, if the inference can otherwise be drawn that they are occupiers.

Again, it is not essential that the occupation be exclusive of others. It is clear that there may be cases ¾ such cases are to be found in the books ¾ where the occupation has been an occupation along with other people. Repeated use of the premises and localization of the premises used may go a long way towards showing that the defendant is the occupier of those premises."

15 In Allison v Lowe, B13/1988, Nettlefold J considered the meaning of "occupation" as enacted in the Poisons Act, s3(3). At the outset, his Honour noted that the word was of uncertain meaning and referred to the two cases I have mentioned. He then noted, at 2, that the statute under consideration was a penal statute and therefore any construction must not ascribe to the word a meaning that goes beyond the literal meaning. He then also noted that the statute sought to proscribe conduct that was contrary to the public interest. There follows this fairly lengthy, but important, passage that I respectfully adopt:

"Occupation includes possession as its primary meaning, but it is not confined to legal possession; the actual possession of a squatter would do provided the other circumstances of the case were sufficient to ground a conclusion of occupation. But it also includes something more. That point is made clear when you reflect upon the position of the owner of a vacant house. He has legal possession and may maintain trespass against anyone who invades it, but as long as he leaves it vacant he is not rateable for it as an occupier. (The Queen v St Pancras Assessment Committee [1877] 2 QBD 581 at 588; President of Shire of Poowong and Jeetho v Gillen [1907] VicLawRp 8; [1907] VLR 37; R v Tao [1976] 3 All ER 65; Shorter Oxford English Dictionary, 'occupier' - 'one who takes or (more usu) holds possession; a holder, occupant').

It is not essential that the occupation be exclusive of others. It is clear that there may be cases - such cases are to be found in the books - where the occupation has been an occupation along with other people (Fox v Warde (supra)). Examples abound and the following may be taken as an extremely small sample - husband and wife who are cohabiting in a house owned by them jointly and who have children living with them and guests, co-tenants, co-licensees provided they have the right to exclude others and co-squatters provided they in fact exclude others.

It is not necessary to show that occupation is permanent. But mere transitory user is not sufficient (Fox v Warde (supra)).

A person may be treated as an occupier if he holds a licence by virtue of which he is entitled to and is enjoying immediate exclusive possession of the premises and has the requisite degree of control over them to exclude from them anyone other than his co-licensee (cf R v Tao (supra)).

Parliament has not provided us with a definition of the term 'occupier'. Having regard to the multiplicity of the circumstances which may arise, probably Parliament intended to avoid the rigidity of a fixed definition. It intended that, at the end of the day, whether, on the facts of a given case, the accused was an occupier of the premises in question was to be left to the common-sense of the jury subject always, of course, to the overriding duty of the presiding judge to direct the jury whether on the evidence it was open to them to find that the accused was the occupier and, if it was open to them, to direct them concerning the meaning of the term in the Act and the rules relevant to a correct determination in the given case (cf R v Tao (supra)). Having regard to 'the mischief rule', but not overlooking that it is a penal statute, and the consequence of that as stated above, no doubt a presiding judge would not be astute to restrict the jury in any instance where the Crown case contained the necessary essentials and a conviction was a just and appropriate result in all the circumstances. In any event it is probably not possible to formulate a true definition which will be appropriate in every case which might arise. That reflection is a further factor pointing to the importance of leaving the jury role as unrestricted as is consistent with justice to the accused and any relevant rules of law. Certainly a legalistic approach to the question whether the accused was an occupier is to be avoided. At the end of the day it will be a question of fact and degree whether, on the evidence, the accused can fairly be said to have been the occupier (cf R v Tao (supra))."

16 The same approach was taken recently in Victoria. In R v Phung [2003] VSCA 32, the Victorian Court of Appeal was required to consider the meaning of the word "occupied" as enacted in the Drugs, Poisons and Controlled Substances Act 1981 (Vic), s5. The provision is identical to the Poisons Act, s3(3). Vincent JA, with whose reasons the other members of the Court agreed, said, at par29:

"The word 'occupied' in s5 does not stand alone. It is used in conjunction with 'used, enjoyed or controlled' to encompass a wide variety of factual situations. Whether an accused person's connection with premises falls within the provision is, as his Honour instructed the jury, a matter of fact. It was not, of course, to be determined by reference to indicia of occupancy applicable in other contexts. The question posed by Roskill, LJ in R. v Tao [1977] 1 QB 141 '[W]hat is the mischief against which this section is aimed?' arises here. In that matter, it was the punishment of those who permitted the smoking of cannabis in premises under their control. His Lordship then said at 144:

'This suggests that Parliament was intending not that a legalistic meaning should be given to the phrase "the occupier" but a common sense interpretation, that is to say "the occupier" was to be regarded as someone who, on the facts of the particular case, could fairly be said to be "in occupation" of the premises in question, so as to have the requisite degree of control over those premises to exclude from them those who might otherwise intend to carry on those forbidden activities I have already indicated.'

There can be no doubt that the 'mischief' with which the legislature was concerned included the trafficking in and possession of drugs of dependence when enacting the relevant provisions of the Drugs, Poisons and Controlled Substances Act. Accordingly, the kinds of connection with premises encompassed by s 5 must be seen to be related to and inextricably linked with the deemed possession which arises once the required occupation, use, enjoyment or control is found to exist."

17 I hope the foregoing makes it clear that the Act, s3(3), is not to be read as if it has no application in a case where the premises are "occupied" by more than one person. Every case will turn upon its own facts, having regard to the matters that are set out in the cases to which I have referred. As McInerney J said in Fox v Warde (supra) at 368, to try and formulate a definition of the word "occupied" that will fit every case would be "extremely dangerous and calculated to be misleading to those who hereafter have to apply the law". However, I venture to think that absent some special circumstances, it is most unlikely that the hypothetical hapless diners in the Christ College dining room are unlikely to be found to be in occupation of that room for the purposes of the Act, s3(3).

18 This motion was brought on by the applicant in order to deal with the issue of statutory interpretation. The amount of cannabis was extremely small and counsel were agreed that should I be of the view that error of law attended the order of dismissal, I should simply set aside the order and in lieu thereof impose a conviction. I so order.