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Supreme Court 11 April 2003

R v Jasper

[2003] NSWSC 285

DrugsPublic order & justice offences
CRIMINAL LAW SUPPLY PROHIBITED DRUG "PERMIT" SUPPLY WHAT CONSTITUTES CRIMINAL LAW & PROCEDURE CHALLENGE TO INDICTMENT

Citation: [2003] NSWSC 285
Court: Supreme Court of New South Wales, Common Law Division (Criminal)
Date: 11 April 2003
Judge(s): Dunford J

Background

The accused was a police detective charged with two counts of supplying heroin under the Drug Misuse and Trafficking Act 1985. The Crown's case was that after arresting a drug dealer named Caccamo, the accused (together with a fellow detective) struck a corrupt arrangement with Caccamo, allowing him to continue selling heroin in exchange for weekly cash payments. The accused also used police computer records on one occasion to warn Caccamo that his runner's vehicle had come to the attention of other officers.

The accused took no steps to arrest Caccamo, initiate surveillance, obtain telephone interception warrants, or report the matter to superior officers. The Crown did not allege that the accused had sold, distributed, or physically handled any heroin himself. Instead, it relied on the extended statutory definition of "supply," arguing that by standing by and accepting payments, the accused had "permitted" or "suffered" Caccamo to supply heroin.

The accused moved by Notice of Motion to have counts 3 and 4 in the indictment permanently stayed and quashed, on the basis that the available evidence was insufficient to constitute the offences charged.

  • Whether a police officer who knowingly allows a drug dealer to continue operating, while accepting corrupt payments, "permits" or "suffers" supply of a prohibited drug within the extended definition of "supply" under s 3 of the Drug Misuse and Trafficking Act 1985
  • Whether a police officer's general statutory duty to prevent crime is sufficient to give that officer the power and authority to "prevent" supply in the specific sense required for a "permitting" charge
  • Whether the court could look at committal depositions when ruling on a motion to quash or stay counts in an indictment
  • What the appropriate procedural remedy was: demurrer, motion to quash, or permanent stay

Decision

Dunford J held that, to "permit" or "suffer" an activity in the relevant legal sense, a person must have the actual power and authority to prevent that activity from occurring. This principle, established across a range of contexts including employment, liquor licensing, and occupancy of premises, means that mere inactivity or acquiescence is not enough. Without the capacity to prevent the conduct, there is no actus reus, and a finding of criminal liability based on mental state alone would be inconsistent with basic principles of criminal law.

The court found that, although the accused held general police powers, he did not have specific advance knowledge of particular transactions, and had no power to arrest Caccamo merely because he knew Caccamo intended to continue dealing. Arrest was only lawful once an offence had been committed or attempted, and only if sufficient admissible evidence existed at that point. A police officer's general duty to prevent crime under the Police Service Act 1990 did not translate into the kind of direct authority over the offender's conduct that "permitting" requires.

On the procedural question, the court considered the distinctions between demurrer, motion to quash, and permanent stay. Dunford J found that a demurrer was inappropriate because the counts on their face were not legally impossible. His Honour disagreed with English authority suggesting that, after a committal for trial, a court cannot examine depositions to assess whether an essential element can be established. Given the clearly established power of Australian courts to stay proceedings doomed to failure, Dunford J saw no principled reason to distinguish between counts committed for trial and those that were not, and held that depositions could be examined in both cases.

Because of residual uncertainty arising from the English decisions, the court made a composite order combining a permanent stay and a formal quashing of the two counts.

Orders Made

  • All proceedings on counts 3 and 4 in the indictment dated 31 October 2002 permanently stayed
  • Counts 3 and 4 quashed

Key Takeaways

  • "Permitting" or "suffering" another person to supply drugs requires that the accused had actual power and authority to prevent the supply from occurring. General knowledge that an offence would occur is not sufficient without that capacity to prevent it.
  • A police officer's general statutory duty to prevent crime does not, by itself, constitute the kind of authority over a third party's conduct necessary to satisfy the "permitting" element of a supply offence.
  • Mere acquiescence in another person's criminal conduct, without a power to prevent it, produces a mens rea without an actus reus and cannot found criminal liability for "permitting" under the extended definition of supply.
  • Where evidence available to the Crown is plainly insufficient to establish an essential element of a charged offence, a permanent stay of proceedings is an available remedy even after a committal for trial. Dunford J expressed disagreement with English authority suggesting otherwise.
  • A composite order permanently staying proceedings and formally quashing the counts is appropriate where uncertainty exists about which procedural mechanism (motion to quash or stay) is strictly correct.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(1) and 25(2)
- Criminal Procedure Act 1986 (NSW), s 61(1) and (2)
- Crimes Act 1900 (NSW), s 249B
- Police Service Act 1990 (NSW)

Cases
- Adelaide Corporation v Australasian Performing Right Association Limited (1928) 40 CLR 481
- Broad v Parish (1941) 64 CLR 588
- The King v Boston (1923) 33 CLR 386
- Walton v Gardiner (1993) 177 CLR 378
- Ridgeway v The Queen (1995) 184 CLR 19
- R v Lonie & Groom [1999] NSWCCA 319
- R v Glynn (1994) 33 NSWLR 139
- R v von Snarski [2001] QCA 71
- R v Sanewski [1987] 1 Qd R 374
- R v Smith [1995] 1 VR 10
- R v Wilk (1982) 32 SASR 12
- R v Bett [1999] 1 WLR 2109
- R v Bradbury [1996] Crim LR 808
- R v Souter (1971) 55 Cr App R 403
- R v Thomas (1976) 63 Cr App R 65
- R v Jones (1974) 59 Cr App R 120
- R v Chairman, County of London Quarter Sessions (1953) 2 QB 750
- R v Inner London Quarter Sessions [1970] 2 QB 80
- Ex parte Jenkins; Re Ross [1965] NSWR 364