Citation: Rabieh v R [2024] NSWCCA 154
Court: Court of Criminal Appeal, New South Wales
Date: 16 August 2024
Judge(s): Basten AJA (principal judgment); Garling J and N Adams J (agreeing)
Background
The applicant was convicted at trial of two counts of knowingly taking part in the supply of a prohibited drug, namely methylamphetamine in large commercial quantities. Police found approximately 30 kg in a caged area in the basement of a residential building, and approximately 2.5 kg in a wardrobe in a child's bedroom. The applicant jointly leased the premises with her husband, who was the person alleged to have stored the drugs.
At trial, the applicant ran two lines of defence. The primary defence was that she had no knowledge the drugs were present. Her secondary position was that, even if she had known about them, she could not have prevented her husband from keeping them on the premises given the nature of their relationship, and so could not be guilty of "suffering or permitting" their presence.
The jury rejected both defences and returned guilty verdicts. The applicant then sought leave to appeal, focusing on whether the trial judge had misdirected the jury in relation to her capacity to prevent the storage of the drugs.
Legal Issues
- Whether the trial judge was required to direct the jury that the applicant, as a joint lessee, lacked a legal right to exclude her co-tenant husband from keeping drugs on the premises
- Whether the trial judge was required to direct the jury that, even if she had a legal right to prevent the storage, the applicant had no practical capacity to enforce that right against her husband
- What the correct legal meaning of "suffers or permits" is under s 6 of the Drug Misuse and Trafficking Act 1985 (NSW), and whether the concept of "capacity to prevent" formed a live element of the prosecution case
Decision
Basten AJA began by examining the statutory framework. Under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), it is an offence to knowingly take part in the supply of a prohibited drug. "Supply" includes keeping or having in possession for supply (s 3(1)). Section 6 sets out the circumstances in which a person "takes part in" supply, including where a person "suffers or permits" a step in the supply process to be taken on premises of which the person is the owner, lessee or occupier.
The court reviewed the case law on the meaning of "suffers or permits". Drawing on R v Sanewski, Basten AJA accepted that "suffering" connotes passively allowing something to occur that the person could have prevented, while "permitting" involves more active allowance. Critically, in either case, there must be a mental element, broadly described as knowledge, and a person cannot permit an activity over which they have no control. The capacity to control or prevent is therefore embedded in the concept of permission.
However, Basten AJA held that the relevance of directions about capacity to prevent depends entirely on the way the prosecution case is presented. Here, the prosecution did not allege that the applicant passively stood by and failed to stop her husband's activities. Rather, the case was put squarely on the basis that she was a knowing and willing participant in the storage of the drugs. That is a qualitatively different case from one where an unwilling occupant is said to have permitted misconduct by failing to stop it.
Because the prosecution presented the case as one of active, knowing participation, directions about whether the applicant could legally or practically have prevented her husband's conduct were simply not called for. The jury was told they had to be satisfied of knowledge and willingness beyond reasonable doubt. If the jury had accepted that her evidence about powerlessness raised a reasonable doubt, acquittal would have followed. In those circumstances, no error in the directions was established and the appeal was dismissed.
Orders Made
- Leave to appeal from the convictions for taking part in the supply of large commercial quantities of a prohibited drug was granted.
- The appeal was dismissed.
Key Takeaways
- Whether jury directions on "capacity to prevent" are required depends on how the prosecution frames its case: where the charge is one of knowing and willing participation in drug storage, not passive failure to stop another person, such directions are not legally necessary.
- Under s 6 of the Drug Misuse and Trafficking Act 1985 (NSW), "suffers or permits" a step in the supply process both require a mental element (knowledge) and, at minimum in the case of "permitting," some degree of capacity to control or prevent the relevant activity.
- The Court of Criminal Appeal confirmed that "suffering" is the more passive concept (implicitly allowing something the person could have prevented) while "permitting" involves more active allowance, though in practical terms the prosecution may elect to rely on either limb.
- A joint lessee's rights as co-tenant and any practical limitations arising from a personal relationship are only live issues where the prosecution relies on a theory of passive permission rather than active participation.
- In dismissing the appeal, the court followed the reasoning in R v Von Snarski [2001] QCA 71 that a prosecution based on knowing and willing involvement does not require hypothetical directions addressing scenarios that would only be relevant had the applicant been unwilling or resistant.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 6
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 6, 25
Cases
- R v Jasper [2003] NSWCCA 186; 139 A Crim R 329
- R v Sanewski [1987] 1 Qd R 374
- R v Sheen [2007] NSWCCA 45; 170 A Crim R 533
- R v Von Snarski [2001] QCA 71; 121 A Crim R 205
- Regina v Lonie & Groom [1999] NSWCCA 319
- Regina v Tao [1977] 1 QB 141
- Samuels v Centofanti [1967] SASR 251