We would all like to think that we know the people that we live with. However, with rental prices being what they are and the often inevitable urge to leave home at the first opportunity, adolescents frequently house share to keep costs of living to a minimum.
Often resulting in living with people that they do not know very well or at all. With the first sense of freedom however, should come with an appreciation and degree of responsibility, particularly when considering circumstances where drugs are found in a property.
Regardless of the type and/or quantity of drugs which may be located in a house section 129(1)(c) of the Drugs Misuse Act 1986 reverses the onus of proof for the prosecution for an offence of possession of that drug. That is, while a fundamental concept of criminal law is that the prosecution bears the onus of proof to establish beyond reasonable doubt that the evidence constitutes an offence, section 129(1)(c) provides that: “…proof that a dangerous drug was at the material item 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.”(emphasis added)
That is, whilst it is a defence to a charge of possession to establish that they neither knew, nor had reason to suspect that the drug was in that place, the onus is upon the person to prove on the balance of probabilities that there was not the requisite knowledge. The Drugs Misuse Act relieves the prosecution of the burden of proving knowledge. The Act also presumes that a person has knowledge unless it is able to be demonstrated that there is an absence of knowledge, or of reason to suspect it.
The issue in house share arrangements is whether it can properly be said that the place where the drugs where located were under the effective management or control of a particular person. It needs to be considered if the items were in a communal area of the shared property or in a room of one person, whether there was any one person’s personal items around the drugs and the obscurity of the location generally.
Where drugs are found on a person within a shared house, it would seem clear that the reversal provisions would not apply to capture all occupants of the property. Also if there is an immediate proximity of the drugs to a specific person, then the drugs can only be said to be in that person’s possession.
The reversal provision does not apply where a person may be an occupier of a property but do not exercise management or control of the place where the drugs were found. For instance, if the drugs were located in the top draw of a bedside table in a room of one of the occupants, it is clear that other occupants of the house did not exercise management or control over that very specific location and, as such were not in possession of the drugs.
Whether a person can be considered an “occupier” is also a question of circumstance. If a person stores some personal belongings at a house where he or she used to live and there is evidence that they have not been making use of the place with sufficient control or management to demonstrate that they are an occupant. It is merely the remaining belongings which have the connection to the property not the owner of the belongings. Also, mere ownership of a house is not enough. Otherwise, the unfortunate circumstance would result where landlords were captured by the reversal provisions due to the activities of their tenants. There must be some interest or personal involvement in occupying the residence.
The reversal provision seeks to enable the prosecution of persons involved in drug activities less onerous. However, it inherently may result in the prosecution of unsuspecting parties. While every matter will depend upon the circumstances, it is prudent to be cautious and aware of the activities of the people you live with. Every young person moving into a house or flat with people they do not know very well should be aware of these laws. No parent wants their child charged for possession of drugs where a house mate is storing their stash of drugs in the kitchen cupboard.
Please be aware that you do not have to ‘own’ or be using drugs to be in possession. The offence is “possession” not ownership.
