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Drug possession - 21 September 2023


Who is the ‘occupier’?


This is a tricky question to answer. Someone who owns or leases a house where drugs are found is likely to be found to be the occupier. This is because that person has a legal right to exclude other people from entering or staying in their home.

Put more simply, a person who has control of a place is likely to be considered the ‘occupier’. That person can also be charged under the occupier’s liability provisions, even if they are not home when the drugs are found.

A person who is ‘concerned in the management or control’ of the place could also be considered an occupier.

For these reasons, it is possible that more than one person could be found to be the occupier or owner and jointly charged with possession.

However, not everyone who physically occupies a place can rightfully be called an ‘occupier’ for these purposes. This is a very technical argument to make. Each case has to be considered on its unique facts.

What is defined as a ‘place’?

A place does not just have to be a fixed location such as a building or a house. For example, a place can include a motor vehicle. If there is more than one person in a motor vehicle, the Police may charge all people present under the occupier’s liability provisions. In that case, an accused person would have to exclude themselves as being a person:

  1. in effective control of the motor vehicle;
  2. who owned the motor vehicle; and/or
  3. who purported to exercise their right as an occupier.

There have been cases where a place has been found within a larger place – such as a separate bedroom in a house, or even a separate bedside table within the same bedroom!

How do I fight a charge of drug possession under occupier’s liability?

Normally in criminal proceedings, an accused person does not have to say anything or give evidence. If you are charged with this sort of offence you still do not have to give any evidence, however the burden of proof switches from the prosecution (usually, the Police) to the defendant. Therefore, in order to fight a charge you might have to give evidence.

A person accused of drug possession under the occupier’s liability provisions could fight a charge by proving that either they were not an occupier, or that they neither knew nor had reason to suspect that the drugs were there.

In a case where there is a place within a place, an accused person would have to prove that some other person was the occupier of the smaller place and/or had a right to exclude other people from the smaller place, or that the accused person did not know about the presence of the drugs in the smaller place.

It is very important that you obtain legal advice about how and when to give evidence in a criminal matter, as it can have serious consequences if anything goes wrong. To make sure you have the best chance of fighting a drug possession charge, you need to seek the advice and guidance of experienced criminal and drug lawyers. Here at Mott & Associates, we have helped people fight all sorts of criminal charges including people charged under occupier’s liability provisions.

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