DIRECTOR OF HOUSING v T (Residential Tenancies) [2009] VCAT 1732

1. The tenant must vacate the rented premises by 29 June 2009.

2. The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 30 days after the date of issue. (Any request must be made no later that 26 December 2009).

3. There shall be a stay on issue of the warrant until 9 July 2009.

For Tenant Mr Furstenberg, Solicitor (3 and 16 June 2009)

Also present for the part of the hearing, Mr Brendan Hoystead, Office of the Public Advocate

Application for possession: premises used for an illegal purpose

1. In this proceeding the Director of Housing (DOH) seeks an order for possession of the rented premises, 96/95 Napier Street, Fitzroy, under s322(1) of the Residential Tenancies Act (Vic) 1997, (the Act) following the service of a notice to vacate under s250 of the Act dated 8 April 2009, alleging that the tenant had used the premises, or permitted their use, for an illegal purpose.

(1) A landlord may give a tenant a notice to vacate rented

premises if the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act.

(2) The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.

1. The notice to vacate is dated 8 April 2009 and requires the tenant to vacate on or before 29 April 2009. It provides the following particulars of the allegation of use of the premises for an illegal purpose:

'On or around 9 January 2009 you used or permitted the rented premises to be used to traffick heroin, which is illegal at common law or under statute. On 9 January 2009 the police executed a search warrant at the rented premises and witnessed you selling heroin from the door of the premises. You later admitted to police that you had been selling heroin from the premises on several occasions that morning. Police located two sets of electronic scales at the premises.'

1. I find that the notice satisfies the requirements of s319 of the Act, and in particular that it satisfies the requirements of s319(d) in that it specifies the reason or reasons for giving the notice, and does so with sufficient degree of detail to enable the tenant to understand the facts being alleged (Smith v Director of Housing [2005] VSC 46, per Bongiorno J).

2. In the case of this particular tenant, T, whose first language is Vietnamese and whose English is limited, there might be an issue as to whether he in fact understood the reasons stated on the notice. No issue was taken with the notice to vacate in this respect, however, and I accept the evidence of Ms Lasek, the housing officer who posted the notice to vacate, that she included the following documents:

(a) a fact sheet in Vietnamese entitled (in English and

Vietnamese) 'Notice to Vacate' and prepared by the Tenants Union of Victoria Ltd with the section heading for a 14 day notice highlighted;

(b) a document in Vietnamese headed (in English and

Vietnamese) 'Do you have a legal problem?' prepared by Legal Aid Victoria;

(c) a single page sheet which states in English, and other languages including Vietnamese, 'This is an important letter from the Office of Housing. If you do not understand any part of it, please contact your local housing officer as soon as possible. A Housing Services Officer will arrange for an interpreter to explain the letter to you'.

1. In the circumstances I am satisfied that T was provided with sufficient information in his own language to understand the nature of the document that had been served on him and to seek any necessary assistance in understanding its detail.

2. The notice to vacate is dated 8 April 2009 and on the evidence of Ms Lasek I am satisfied that it was served on T by sending it to the rented premises by registered post, in accordance with s506(3)(b) of the Act, and also by ordinary post, on 8 April 2009. Under s141 of the Victorian Civil and Administrative Tribunal Act (Vic) 1998, a notice or other document is taken to have been served on a person, in the case of posting, two business days after the day on which the document was posted, in this case 10 April 2009. The notice requires T to vacate on or before 29 April 2009 and accordingly gives T more than 14 days' notice.

3. I find that the notice to vacate served by the Director was a valid notice to vacate.

It was not in dispute that T was arrested by police on 9 January 2009, interviewed with a Vietnamese interpreter present and charged with trafficking heroin, possessing heroin and receiving or possessing the proceeds of crime. At a Contest Mention at the Neighbourhood Justice Centre Magistrates' Court on 1 June 2009, T, who had legal representation for the hearing and the assistance of a Vietnamese interpreter, pleaded guilty to trafficking heroin and possessing the proceeds of crime. The matter has been adjourned for sentencing later this month.

The trafficking of heroin is undoubtedly an illegal purpose within the meaning of s250 of the Act. It is an indictable offence under s71AC of the Drugs Poisons and Controlled Substances Act 1981 (Vic), (trafficking in a drug of dependence). The issue raised in this proceeding by T's solicitor, however, was whether the Tribunal could be satisfied that the premises had been used for the purpose of trafficking heroin.

Mr Pitt for DOH submitted that they were so used and relied principally on the evidence of Constable Adam Pongho, the arresting officer and informant in relation to the charges against T, and the record of interview produced at the hearing by Constable Pongho,. Mr Pitt submitted that the record of interview contained a number of admissions on which the relevant findings could be made.

Mr Furstenberg for T submitted that there were no admissions of any transaction taking place within the premises and that Constable Pongho had not witnessed any sale transaction by T when he observed T on 9 January 2009. Mr Furstenberg also submitted that there was insufficient connection between the premises and the offence to establish the required use of the premises within the meaning of s250 of the Act.

The tribunal heard evidence from Ms Michelle Lasek, housing officer, and Constable Pongho. T was not called to give evidence at the hearing on 3 June 2009. He gave evidence on 27 May 2009, in the context of the tribunal seeking to ascertain whether he had been able to obtain legal advice.

Constable Pongho gave evidence that on 9 January 2009 he was performing duties with the Yarra Drug Unit and went to the rented premises at 12.05 pm to execute a warrant issued under the Drugs Poisons and Controlled Substances Act. As he approached the premises he saw two Caucasian males in conversation with T, who was at the doorway of the premises, the screen door being open.

Constable Pongho said that he approached T, identified himself and on carrying out a search of T, found 1 gram of heroin, in two rocks, wrapped in a page of the Yellow Pages telephone directory in T's hand. He arrested T and cautioned him.

In a search of the premises and a further search of T Constable Pongho said he found the sum of $580 located in T's jacket pocket, which was seized as being the suspected proceeds of crime; a further $270 hidden under a mattress which was also seized; a number of digital cameras, mobile phone and items of women's jewellery which were seized on suspicion that they had either been bought with the proceeds of crime or had been received in exchange for drugs. He also seized a Yellow Pages directory with pages torn out. He did not find any further heroin, nor did he find any scales.

Following the search, T went to Fitzroy Police Station with Constable Pongho. Prior to interviewing T, Constable Pongho arranged for a forensic medical officer, Dr Angela Sungaila, to assess T. The assessment took approximately 20 mins to half an hour. Dr Sungaila found T fit for interview. The tape-recorded interview with T was conducted in the presence of a Vietnamese interpreter.

Constable Pongho said that in the interview, T admitted to purchasing 2 grams of heroin of which he had sold 1 gram through the course of the morning to people who would come to the door, to his address, and knock on the door.

Following the interview Constable Pongho charged T with trafficking heroin, possessing heroin and possessing the proceeds of crime. On 1 June 2009, T pleaded guilty to trafficking heroin and possessing the proceeds of crime. T was represented on that day by a solicitor from Fitzroy Legal Service and there was an interpreter present. Mr Pitt tendered copies of the police brief, the transcribed record of interview and an extract recording the plea of guilty on 1 June 2009.

Under cross-examination, Constable Pongho conceded that he did not witness a sale transaction by T actually taking place. He also agreed that T's answer to one particular question, 40, was not an admission in relation to 9 January 2009. Mr Furstenberg put to Constable Pongho that nowhere in the interview were there admissions as to transactions occurring within T's flat. Constable Pongho stated that his understanding was that people were attending the flat and knocking on the door and T answered the door and sold them heroin.

The following is a summary of the questions and answers in the record of interview that are relevant to the issue in this proceeding. The question and answer numbers appear in brackets.

T admitted buying heroin and stated that when he buys it he buys a few hundred dollars worth because it is cheaper and then divides it up into small portions and has some left to use [20-23]. He bought $400.00 worth on the morning of 9 January 2009 to sell. [24].

T received the heroin from a friend who handed it to him [27]. This friend was contacted by someone else, who T asked to contact the friend. [32].

T did not get the heroin ready for sale in advance by, for example, cutting it up. Whoever wanted to buy it he wrapped it up with paper from the Yellow Pages phone book and gave them what they wanted to buy [41-45].

When asked how people that are coming to buy heroin off him get in - make arrangements to do the transaction - do they call him or just attend his address, T replied that there are people who call and there were people who came directly to the house [48]. T couldn't put an estimate on how many people he saw on the morning of 9 January [51].

On the morning of 9 January, S and D, were also there. T left, bought the heroin and got the two of them to go somewhere [53]. He sold nearly all the heroin he had bought that morning [54]. When the police executed the search warrant T was in possession of a small amount of heroin, about the size of the tip of his small finger, about $150.00 worth [61-65].

Other relevant information from the record of interview included that T had been the victim of an assault 5 days earlier. T was asked if he felt ok to continue and said it was fine, the police could continue to interview him and he agreed that he had been seen by a doctor prior to being interviewed [71]. T declined to answer some of the questions put and said that his solicitor would answer [13, 70 and 91]. Although T made a number of admissions in relation to trafficking in the interview, he did not concede that the goods seized were given to him in exchange for heroin [85] nor did he concede that the cash found was the proceeds of the sale of heroin [83].

T's stated reason for trafficking heroin was that he had come home from hospital after the assault and had gone to the chemist for his methadone. T said the chemist would not provide it because, they said, the hospital had already done so, which was not the case. T was at that time already 3 or 4 days late in receiving his methadone [91].

I had adjourned the hearing on 27 May because T had not been able to obtain legal representation for the tribunal proceeding from Legal Aid, or from the Fitzroy Legal Service, and was on that day in my opinion unwell and not able to represent himself adequately without assistance - he appeared pale, was sweating and seemed confused about some of the questions being asked. T said that he wanted the opportunity to seek a private lawyer. I also directed that T be referred to the duty officer at VCAT from the Office of the Public Advocate.

Mr Hoystead, from the Office of the Public Advocate, was present at the hearing on 3 June 2009. He told the tribunal that he had seen T after the adjourned hearing on 27 May 2009 and had also spoken to his treating doctors who were proposing to carry out some tests to investigate whether T had an acquired brain injury. Mr Hoystead said that he was not a clinician but believed that T understood the proceedings. At the hearings on 3 and 16 June 2009, T was represented by Mr Furstenberg and it is appropriate to record that the tribunal was greatly assisted by Mr Furstenberg's representation of T.

There was evidence that T had suffered an injury as a result of an assault 5 days prior to the interview. Nevertheless, on the basis of the evidence that a forensic medical officer assessed T as fit to be interviewed and the fact that the record of interview was not challenged by T's legal representatives in the criminal proceedings or by evidence called in this proceeding, I consider that admissions made by T in the record of interview can form the basis of findings in this proceeding.

I accepted Mr Furstenberg's submission that in this case, the evidence to be taken into account in making any findings in relation to trafficking should be limited to evidence of what took place on 9 January 2009, because that was the only date referred to in the notice to vacate and that was the date of offence for the purposes of the criminal charges.

The standard of proof in a proceeding under the Act is the civil standard. Although the standard remains the same, when the matters alleged are serious as in this case a higher degree of satisfaction that the standard has been met may be required, Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 350 per Dixon J. As His Honour stated:

'In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.'

In this case, there is no dispute, and I am satisfied to the requisite degree, that a crime was committed: T made admissions in relation to and pleaded guilty to the trafficking of heroin. In determining whether transactions took place at the rented premises and how they took place, I am satisfied that the admissions made by T in the record of interview and referred to above are not in the category of 'inexact proof' or 'indefinite testimony'. Those admissions do not, in my view, require that I make indirect inferences in order to be satisfied of the matters the subject of the admissions. I have disregarded answers that were unclear or where there was an interruption to the interpretation such as those in response to questions 33 and 52.

I find, on the basis of the evidence recorded above, that T was engaged in the trafficking of heroin on the morning of 9 January 2009, that he was at the rented premises when sale transactions took place and that a number of people came to the premises to buy heroin from him. I find that his method of sale on that morning was to wrap pieces of heroin as required in pages of the Yellow Pages telephone directory, which was located in the premises, and sell them to people who came to the premises to buy heroin from him.

There was some argument about whether the premises could be said to be a 'known destination' as submitted for the landlord. Whether or not this is the case - and there was no evidence from any of the purchasers - T's answer to question 48, in my view, supports a finding that some of the people who came to buy heroin from T that morning, those who did not call first, knew to come to the premises. The evidence goes no further.

There was no evidence of a large-scale enterprise at the premises on that date: there was no evidence, for example, that the premises were being used as a place of storage or as a factory for the preparation of drugs for sale. The only heroin found was that in T's possession, consistent with his statements that he had sold most of what he had bought that morning. The evidence was that he was a heroin user and, because of an interruption in his supply of methadone, was trafficking to support his own habit. The question is whether the findings made are sufficient to establish to the required degree that the premises were being used for an illegal purpose.

Both Mr Pitt and Mr Furstenberg provided written submissions on the relevant law and its application. Neither was able to refer to any Superior Court consideration of s250, however both referred to the decision of Member Nihill in Director of Housing v TP (Residential Tenancies) [2008] VCAT 1275 (24 June 2008) ('TP') as being of assistance. That decision refers to three relevant cases that are concerned with possession applications for rented premises. These are discussed below.

Mr Furstenberg also referred in his submissions to a number of cases concerned with State and Commonwealth confiscation of property legislation.[1] He submitted that they were relevant to interpretation of s250 as they dealt with a requirement that the property in question be used in or in connection with the commission of a crime. In his submission, the cases were authority for the propositions that a substantial connection between the activity and the use of the property is required and not a mere accidental or incidental connection; that the unlawful activity must be related to, or dependent upon, or could not have been committed without the use of the property;[2] and that merely carrying out an activity on land is not sufficient for the purposes of forfeiture of that land.[3] The position can be contrasted if the land is being used as a warehouse, or as a safe house, or there was cultivation of the land but the mere presence of a drug on the land would not be sufficient.[4] Mr Furstenberg submitted that what is required is that the premises were central and essential to the crime being committed and not merely the scene of its commission.

The reasons for decision in TP refer to three decisions concerned with applications under tenancy legislation for possession of rented premises on the basis of the use of the premises for an illegal purpose: Majala Pty Ltd v Ellas,[5]; S. Schneiders & Sons Ltd v Abrahams;[6] and Abrahams v Wilson.[7]

In Majala Pty Ltd v Ellas, in the context of allegations that the premises were being used as a 'sly grog shop', Herring CJ considered the words in the relevant statute 'that the lessee.....has been convicted, during the currency of the lease, of an offence arising out of the use of the premises for any illegal purpose'. His Honour stated that the words 'arising out of' mean that there must be some connection with the use of the premises, for example the use of the premises as a common gaming house rather than, for example, the place where an assault took place.[8] I note that s250 of the Act does not contain those words, although as stated below I consider that there must be some link with the premises.

Herring CJ then considered the requirement that it must be established as a matter of fact that the premises are being used for an illegal purpose:[9]

'And, as was pointed out by Lord Hobhouse in Powell v Kempton Park Racecourse Co., [1899] A.C. 143, at p 172, "The phrase 'use-for-a-purpose' necessarily implies a deliberate use, a designed choice of the thing used for the purpose in hand." There is thus involved in cases coming within the sub-regulation, a use of the premises for an illegal purpose that is deliberate and designed on the part of some person, and that person will, in the normal course of events, be the person in control of the premises who, by reason of such control can determine the purpose to which they are to be put. The use for an illegal purpose contemplated by the lessee is thus one for which the lessee is responsible whether he himself makes use of the premises for such purpose or allows someone else to do so. He can control the use of the premises if he wants to.'

In Abrahams v Wilson, where the tenant had been convicted of possession of cannabis, Edmund Davies LJ, stated [10] that the conviction need not refer specifically to the premises but there must be some link between the criminal conviction and the premises which are the subject-matter of the application for possession. His Lordship adopted the test applied by Bankes LJ in S Schneiders & Sons Ltd v Abrahams,[11] which involved the alleged receipt of stolen goods:

'I reject the argument that the section includes only offences in which user of the property is an essential element. But I think it is necessary to show that the tenant has taken advantage of his tenancy of the premises and of the opportunity they afford for committing the offence.'

Edmund Davies LJ cautioned that '[o]ne must, however, look at the circumstances very carefully before an isolated finding on a single occasion is held to constitute proof of such user.'[12] Widgery LJ, applying S Schneider & Sons Ltd, drew a distinction between drugs being in a pocket or handbag, which would not constitute use of the premises and employing the premises as a storage place or hiding place for dangerous drugs.[13]

In considering the authorities referred to, my view is that while it is not sufficient that the premises were merely the scene of the commission of the crime, it is not necessary that the premises be central or essential to the commission of the crime to satisfy the requirements of s250, although those requirements would clearly be satisfied if the premises were central or essential to the alleged crime. There must be a link between the crime and the premises and the use must be deliberate - a choice made by the person in control of the premises who can determine the purpose to which they are to be put. It is not necessary that the crime was dependent on the premises or that it could not have been committed without the premises.

The authorities to do with confiscation of property are helpful in relation to the meaning of 'use', for example R v Rintel,[14] where Pidgeon J stated that the words in the relevant section should have their ordinary grammatical meaning and that there was no warrant to import the adjective 'substantial' to modify them.[15] In my view, there is, similarly, no warrant to import the adjective 'substantial' into s250 of the Act.

To the extent that those authorities indicate a higher test than that described in the cases referred to above to do with applications for possession of rented premises, they can be distinguished, in my view, on the basis that they concern the decision of whether property, including land, will be forfeited to the state by way of an additional punishment for the commission of a crime. Section 250 of the Act is concerned with whether a tenant is entitled to remain on particular rented premises. This is not to say that the consequences may not be serious for the tenant, merely that there might well be a basis for a stronger connection between the crime and the land where the land itself is to be forfeited.

In determining whether there has been the required use of the premises, it is clear that the circumstances of the alleged activity and the nature of the alleged crime are relevant. In TP, for example, the member was considering allegations that the premises were used for the possession and cultivation of cannabis, not by the tenant but by a man described by the member as 'an uninvited and unwelcome visitor...bringing his even more unwelcome cannabis plants.'[16]

The member found it helpful in that case to think about a continuum along which fact situations might be placed, putting cases where the premises had been substantially restructured and large areas given over to the hydroponic cultivation of cannabis at one end and at the other end the presence of a visitor on the premises who happened to have a flick knife or an ecstasy tablet in his or her pocket.

I think that the concept of such a continuum is helpful in cases where the illegal activity is, for example, possession of a drug. If the drug is simply in someone's pocket it is difficult to see how the premises could be said to be used for the purpose of possession. If the premises were being used as a warehouse or storage facility then it would be less difficult to establish the required link.

The case before me concerns the crime of trafficking in a drug of dependence. The idea of a continuum is not, in my view, as helpful in such a case nor is it necessary to refer to it in order to reach a decision. Trafficking is defined in the Macquarie Dictionary, revised 3rd edition as 'to carry on traffic, trade or commercial dealings...to carry on dealings of an illicit or improper kind.' It is established by evidence of sales.

Provided there is a link between the premises and those sales, and deliberate use of the premises for those sales, it does not matter, in my view, whether the trafficking was small or large scale. Bearing in mind the statement by Edmund Davies LJ in Abrahams v Wilson, referred to at paragraph 44 above, it might matter whether the sale was an isolated event on a single occasion, which was not the case here. There is no requirement, in my view, of permanence as was suggested by Mr Furstenberg and there is no requirement that the trafficking be at the higher end of the scale of drug trafficking.

1. In this case the tenant was the person engaging in the illegal activity. He had control over the use to which the premises were put and it was his decision and his choice to use the premises as the place where the trafficking took place. He allowed people to come to the premises to buy heroin and sold heroin to them when they came. The evidence was clear that there were multiple transactions on 9 January - this was not a case of a single sale. It was not a large-scale operation but, in my view, it is not required to be one. I am satisfied to the required degree that T used the premises for an illegal purpose and that while not all the matters set out in the Notice to Vacate have been made out, the landlord has established that on 9 January 2009 T used the premises for the purpose of trafficking heroin. In the circumstances, a possession order should be made.

2. In reaching this decision I have taken into account the tribunal's responsibilities under, and the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter'), which were outlined by the member in TP. I agree that the relevant right in cases under section 250 of the Act is that set out in section 13 of the Charter - the right not to have one's privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

3. As required by section 7 of the Charter, I have considered whether the limit or intrusion on the right is justified, having regard to the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relationship between the limitation and its purpose; and any less restrictive means reasonably available to achieve that purpose. Having considered those matters in this case, my view is that intrusion on the right is justified and is proportionate. The Director of Housing has a legitimate and justifiable interest in ensuring that rented premises are not used for drug trafficking - it is in its own interests and also in the interests of other residents in adjoining or neighbouring public housing.

[1] R v Selcuk [2007] VSC 37, Hollingworth J; R v Rintel (1990) 3 WAR 527 (1991) 52 A Crim R 209 (WACA); DPP (Cth) v Jeffery(1992) A Crim R 310 (NSW CCA); and DPP (NSW) v King NSWSC 394, O'Keefe J.,

[2] DPP (Cth) v Jefferey, at 315 - 317 per Hunt CJ

[3] R v Rintel, per Pidgeon J, at 224 - 225

[5] [1949] VicLawRp 19; (1949) VLR 104

[6] [1925] 1 KB 301, CA

[7] (1971) 2 WLR 923

[8] [1949] VicLawRp 19; (1949) VLR 104, 106

[14] (1990) 3 WAR 527

[16] 2008 VCAT 1275, at p8