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Court of Criminal Appeal 8 July 2003

REGINA v Matthew John JASPER

[2003] NSWCCA 186

Also reported as 139 A Crim R 329
Drugs
CRIMINAL LAW CRIMINAL APPEAL ACT 1912 SS 5C AND 5F DRUG MISUSE AND TRAFFICKING ACT 1985 "SUPPLY" OFFICER ARGUABLY GUILTY OF "SUPPLY" (D)

Citation: Regina v Matthew John Jasper [2003] NSWCCA 186
Court: Court of Criminal Appeal, New South Wales
Date: 8 July 2003
Judge(s): Mason P, Dowd J, Adams J

Background

The respondent was a serving police officer who entered into a corrupt arrangement with a heroin dealer. In exchange for ongoing weekly payments of $1,000, the officer allowed the dealer to continue supplying heroin without interference. The officer was charged with six offences, including two counts (charged in the alternative) alleging that he had "supplied" heroin contrary to the Drug Misuse and Trafficking Act 1985.

The officer indicated a willingness to plead guilty to the other four counts but contested the supply charges. His senior counsel advised that the agreed facts did not, as a matter of law, amount to "supply." He applied for a permanent stay of counts 3 and 4 on the basis that those charges were doomed to fail.

Dunford J at first instance agreed and permanently stayed those two counts, then also quashed them. The Director of Public Prosecutions appealed to the Court of Criminal Appeal.

  • Whether the agreed facts were arguably capable of supporting charges of "supply" of a prohibited drug under the Drug Misuse and Trafficking Act 1985
  • Whether a police officer who knowingly allows a drug dealer to continue operating, in exchange for bribes, "permits" or "suffers" the supply of heroin within the meaning of the definition of "supply" in section 3 of the Act
  • Whether the threshold for a permanent stay on grounds of inevitable failure had been met

Decision

The Court of Criminal Appeal unanimously upheld the appeal, with Mason P writing the principal judgment and Dowd J and Adams J agreeing. The central question was not whether the respondent was guilty, but the much lower and more specific question of whether the charges were so hopeless that a permanent stay was justified. That threshold, drawn from Walton v Gardiner (1993) 177 CLR 378, requires that proceedings be doomed to inevitable failure before they can be permanently stayed.

Mason P held that the charges cleared that threshold. The definition of "supply" in section 3 of the Drug Misuse and Trafficking Act 1985 includes "permitting or suffering another person to supply." The court found it arguable that there is a meaningful distinction between "permitting" and "suffering," and that both concepts involve two elements: awareness of the relevant act, and a failure to exercise a power or right to prevent it.

On the second element, the court found it arguable that the respondent held the relevant power by virtue of his status as a police officer. A police officer has a legal capacity to arrest on reasonable suspicion of past criminality and thereby to stop its continuation. By doing nothing, while aware of the ongoing supply, the officer arguably satisfied the test.

The court also accepted it was arguable that the arrangement itself constituted "permission." Entering into a deal under which the dealer was expressly allowed to continue selling heroin in exchange for weekly payments involved at least a belief that supply was highly likely or probable. Authorities from multiple jurisdictions supported the proposition that "shutting one's eyes to the obvious" about likely future conduct can satisfy the knowledge element of "permits." The court emphasised that these findings were interlocutory and intended only to establish why a trial on the counts was not doomed to fail.

Orders Made

  • The appeal was upheld.
  • The orders made by Dunford J on 11 April 2003 (permanent stay and quashing of counts 3 and 4) were set aside.

Key Takeaways

  • A permanent stay of criminal proceedings on the ground of inevitable failure requires a very high threshold: the prosecution must be doomed to fail, not merely difficult or uncertain.
  • Under section 3 of the Drug Misuse and Trafficking Act 1985, "supply" includes "permitting or suffering" another to supply. The Court of Criminal Appeal confirmed it is arguably meaningful that "permitting" and "suffering" are distinct concepts, each potentially carrying different shades of awareness and passivity.
  • "Permitting" and "suffering" both require awareness of the relevant act and a failure to exercise a power or right to prevent it. The capacity to control a situation, rather than actual control, is the relevant test.
  • A police officer's statutory capacity to arrest on reasonable suspicion may, arguably, constitute the required power to prevent ongoing supply, such that deliberate inaction in exchange for bribes could satisfy the "permitting or suffering" element.
  • Knowledge that an act is highly likely or probable in the future (described as "shutting one's eyes to the obvious") can satisfy the knowledge requirement implicit in the word "permits," at least for the purposes of clearing the inevitable-failure threshold at this interlocutory stage.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), section 3 (definition of "supply")
- Criminal Appeal Act 1912 (NSW), sections 5C and 5F

Cases
- Walton v Gardiner (1993) 177 CLR 378
- R v Sanewski [1987] 1 Qd R 374
- Barton v Reed [1932] Ch 362
- Beaumont v St Kilda Borough [1975] 2 NZLR 369
- R v Lonie [1999] NSWCCA 319
- Rochford Rural Council v Port of London Authority [1914] 2 KB 916
- Bond v Reynolds [1960] VR 601
- Elliott v Nanda (2001) 111 FCR 240
- R v Souter (1971) 55 Cr App R 403
- R v Thomas (1976) 63 Cr App R 65
- Lyver v State of Victoria [1983] 2 VR 475
- Douglas-Brown v Commissioner of Police (1995) 13 WAR 441
- Chappell v A Ross & Sons Pty Ltd [1969] VR 376
- R v Jones (1974) 59 Cr App R 120
- R v Jasper [2003] NSWSC 285 (the decision under appeal)