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Court of Criminal Appeal 16 March 2007

R v Sheen

[2007] NSWCCA 45

Also reported as 170 A Crim R 533
Drugs
CRIMINAL TRIAL: DIRECTIONS

Citation: R v Sheen [2007] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 16 March 2007
Judge(s): Sully J, Bell J, Hoeben J

Background

The appellant was a joint lessee of a semi-rural property at Carroll, which she shared with her de facto partner and their two young children. In the early hours of 1 October 2003, police executed a search warrant and found an active methylamphetamine laboratory operating in the master bedroom. The appellant, her partner, and another man were awake in the lounge room at the time. There was a strong chemical smell throughout the house.

The appellant's partner and the other man had each already pleaded guilty to manufacturing not less than the commercial quantity of methylamphetamine. The appellant denied knowledge of the laboratory and denied smelling the chemicals.

At trial in the District Court at Tamworth, the appellant was convicted on the alternative count of knowingly taking part in the manufacture of a prohibited drug, on the basis that she had suffered or permitted a step in the manufacturing process to occur on premises of which she was a lessee or occupier. She was sentenced to a term of imprisonment wholly suspended on a two-year good behaviour bond. Both the appellant and the Crown appealed.

  • Whether the trial judge's directions to the jury adequately explained the mental and volitional elements required to establish that a person "suffers or permits" a step in drug manufacture to be taken on their premises, within the meaning of s 6(c) of the Drug Misuse and Trafficking Act 1985
  • Whether proof of knowledge alone was sufficient to establish the "suffering or permitting" limb, or whether the Crown was also required to prove that the appellant had the power or capacity to prevent the manufacture
  • Whether any misdirection occasioned a miscarriage of justice warranting a new trial
  • Whether the Crown's sentence appeal should be determined in light of the conviction appeal outcome

Decision

Bell J, with whom Sully J and Hoeben J agreed, held that the trial judge's directions were insufficient. The judge had correctly told the jury that mere knowledge was not enough and that the Crown needed to prove the appellant had "allowed" her premises to be used. However, the directions failed to convey the further requirement that "suffering or permitting" demands proof that the appellant possessed the power or capacity to prevent the manufacture, and that knowing it was occurring, she failed to exercise that power.

Bell J observed that the premises were jointly leased by the appellant and her partner, who was himself the manufacturer. The manufacturing had commenced only a few hours before the police arrived, in the middle of the night. No attention was given at trial to the question of whether evidence excluded the reasonable possibility that the appellant lacked any power or capacity to prevent the activity during that brief period.

The omission created a real risk that the jury may have reasoned to a verdict of guilt simply by rejecting the appellant's denial of knowledge, without separately considering whether she had any capacity to intervene. That gap in the directions constituted a miscarriage of justice.

Because no ground of appeal challenged the sufficiency of the evidence, the Court of Criminal Appeal was not required to consider whether a properly instructed jury could have convicted. A new trial on count 2 was therefore ordered. Given that outcome, it was unnecessary to deal with the Crown's sentence appeal.

Orders Made

  • Leave granted to rely on grounds 1 and 2 of the conviction appeal
  • Appeal allowed; conviction and sentence quashed
  • New trial ordered on count 2
  • Crown sentence appeal dismissed

Key Takeaways

  • Under s 6(c) of the Drug Misuse and Trafficking Act 1985, establishing that a person "suffered or permitted" a step in drug manufacture to occur on their premises requires proof not only of knowledge but also that the person had the power or capacity to prevent the manufacture and failed to exercise it.
  • Knowledge of drug manufacturing activity on premises, standing alone, is insufficient to found a conviction under the "suffering or permitting" limb of s 6(c).
  • A jury direction that instructs only that the accused must have "allowed" the premises to be used, without addressing the power or capacity to prevent, risks leaving jurors to convict on knowledge alone, which the Court of Criminal Appeal found to be a miscarriage of justice.
  • Where a person is a joint lessee alongside the actual manufacturer, and manufacturing occurred over a brief period in the middle of the night, the question of whether that person had any real power or capacity to prevent the conduct is a live factual issue that must be left to the jury with adequate directions.
  • In quashing the conviction and ordering a new trial, the Court of Criminal Appeal did not assess whether the evidence was capable of supporting a conviction before a properly directed jury, as no sufficiency ground had been raised.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 6, s 24(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules, r 4

Cases
- R v Jasper [2003] NSWCCA 186; 139 A Crim R 329
- R v Lonie & Groom [1999] NSWCCA 319
- R v Sanewski [1987] 1 Qd R 374