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Court of Criminal Appeal 26 September 2003

Regina v Ruiz-Avila

[2003] NSWCCA 264

Also reported as 142 A Crim R 459
Drugs
CRIMINAL LAW USE OF PREMISES LEASED BY APPELLANT REQUIREMENT OF KNOWLEDGE

Citation: Regina v Ruiz-Avila [2003] NSWCCA 264
Court: Court of Criminal Appeal of NSW
Date: 26 September 2003
Judge(s): Hidden J; Greg James J; Newman AJ

Background

The appellant was convicted in the District Court on three counts under the Drug Misuse and Trafficking Act 1985: knowingly taking part in the supply of cannabis leaf, knowingly taking part in the supply of ecstasy, and knowingly taking part in the cultivation of cannabis. All three offences related to a unit in Wollongong that the appellant had leased from July 2000. The prosecution case rested on the appellant's role as lessee: he paid rent, held keys, and had apparently visited the premises, but did not live there.

When police executed a search warrant in March 2001, they found large quantities of cannabis, equipment for drying and packaging it, a substantial set of electronic scales, and 323 ecstasy tablets in a kitchen drawer. There was no direct evidence the appellant had sub-let the unit, though other men also had access to it. The appellant did not give evidence at trial.

The Crown alleged the appellant "suffered or permitted" steps in the supply and cultivation to occur on premises he leased, bringing him within the scope of section 6(c) of the Drug Misuse and Trafficking Act 1985. He did not appeal his conviction on the cannabis supply count (count one), but challenged both the ecstasy supply conviction (count two) and the cannabis cultivation conviction (count three), and also sought a reduced sentence on count one if the other convictions were quashed.

  • Whether the trial judge's directions to the jury on the knowledge element for the ecstasy supply count were legally correct
  • Whether the evidence was sufficient to sustain a conviction for cultivation of cannabis, given the limitations of the Crown's case at trial
  • Whether, if counts two and three were quashed, the sentence on count one should be reduced

Decision

Count two (ecstasy supply): misdirection on knowledge. The trial judge directed the jury to ask whether the appellant "knew or was aware that there was a real or significant chance" the premises were being used for drug storage and supply. The Court of Criminal Appeal found this formulation, derived from Bahri Kural v The Queen, was misapplied. The High Court in Kural had expressly cautioned that its remarks were guidance for trial judges, not a direction to be read to juries. The correct requirement was that the prosecution prove the appellant actually knew the ecstasy was present in the unit, not merely that he was aware of a significant chance it might be there. Awareness of a possibility is relevant to inferring actual knowledge, but it does not itself constitute the requisite mental element for the offence.

Count three (cannabis cultivation): insufficient evidence. The Crown's case at trial was confined to alleging that cultivation occurred within the unit. However, the evidence established only that harvested and drying cannabis was found there; the cultivation itself appeared to have taken place elsewhere. No cultivation equipment that had actually been used was identified at the premises. Because the Crown restricted itself to that case, the Court held there was no basis on which the jury could properly have been satisfied the cultivation occurred at the unit. The conviction could not stand.

Remedy and sentence. The Court declined to order a new trial on either count. On count two, the Crown case was not strong, the appellant had already served more than ten months of his sentence, and part of the effective head sentence was referable to count three. Applying the principles from Director of Public Prosecutions (Nauru) v Fowler, the Court concluded the interests of justice did not require retrial. On count three, the Crown could not use a new trial to advance a different case than the one it chose to run. The sentence on count one was reduced from twelve months to ten months to reflect the quashing of the other convictions, with immediate release ordered.

Orders Made

  • Appeal on counts two and three allowed; convictions on those counts quashed and verdicts of acquittal entered
  • Leave to appeal sentence on count one granted; sentence of twelve months imprisonment quashed and substituted with a fixed term of ten months commencing 14 November 2002 and expiring 13 September 2003
  • Appellant to be released forthwith

Key Takeaways

  • Under section 6(c) of the Drug Misuse and Trafficking Act 1985, a conviction for knowingly taking part in drug supply on leased premises requires proof that the accused actually knew the drug was present; awareness of a real or significant chance of its presence is relevant to inferring knowledge, but does not itself satisfy the element.
  • The guidance in Bahri Kural v The Queen (1987) 162 CLR 502 on inferring intent was expressly not intended as a jury direction, and transplanting it directly into jury instructions constitutes a legal error.
  • Where the Crown restricts its case at trial to a particular factual basis, a conviction cannot be sustained by evidence that only supports a different basis for the same offence.
  • The Court of Criminal Appeal confirmed the principle from DPP (Nauru) v Fowler that the interests of justice do not always require a new trial after a conviction is quashed, particularly where the Crown case is weak and significant time has already been served.
  • Allowing an appeal against conviction on some counts may warrant reduction of the sentence imposed on a surviving count where the original sentencing structure was built across all counts.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 6(c)
- Customs Act 1901 (Cth), s 233(b)(1)(b)
- National Parks and Wildlife Act 1974 (NSW)

Cases
- Bahri Kural v The Queen (1987) 162 CLR 502
- He Kaw Teh v The Queen (1985) 157 CLR 253
- Giorgianni v The Queen (1985) 156 CLR 473
- Pereira v Director of Public Prosecutions (1988) 63 ALJR 1
- R v Giorgi and Romeo (1981) 7 ACrim R 305
- R v Greatorex (1994) 74 ACrim R 496
- Histollo Pty Ltd v Dir-Gen of National Parks and Wildlife Service (1998) 45 NSWLR 661
- Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627