Rabieh v R

1. [1]

   BASTEN AJA: The applicant, Yosra Rabieh, seeks leave to appeal from two convictions for knowingly taking part in the supply of a prohibited drug, being not less than the large commercial quantity of methylamphetamine. Two separate quantities of the drug were found by police on premises occupied by the applicant and her husband, Ali Maleki. A larger amount, being a little over 30 kgs, was found in bags or sacks in a caged area in the basement of the units; the smaller amount, being a little over 2.5 kgs, was found in a wardrobe in a child’s bedroom.

2. [2]

   The applicant was also convicted of possessing an amount of money in excess of $100,000 reasonably suspected of being the proceeds of crime. She has not sought to appeal from that conviction.

3. [3]

   At her trial, the applicant’s primary defence was that she had no knowledge of the presence of the drugs on the premises. She also claimed that had she known of the drugs, which belonged to her husband, there was nothing she could have done about it and accordingly would not have been guilty of suffering or permitting him to have the drugs on the premises, given the nature of their relationship.

4. [4]

   The jury verdicts involved a necessary rejection of the first line of defence, namely that she had no knowledge of the presence of the drugs. The focus of the appeal was the directions given by the trial judge with respect to her power or capacity to prevent the drugs remaining on the premises. For the reasons which follow, there should be a grant of leave to appeal, but the appeal should be dismissed.

Nature of charge

1. [5]

   While the two grounds of appeal focus on the precise terms of the directions given by the trial judge, Judge Bourke SC, it is convenient to start by setting out the relevant statutory provisions.

2. [6]

   Each charge alleged an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (Drug Act). That provision makes it an offence for a person to supply or knowingly take part in the supply of a prohibited drug. Pursuant to s 3(1), the term “supply” is defined to include “keeping or having in possession for supply”. It was that limb of the definition which was engaged in the present case.

3. [7]

   Section 6 provides a list of circumstances in which a person “takes part in” the supply of a prohibited drug, including if:

4. [8]

   The principles established by cases discussed below include the following propositions, namely that (i) neither suffering nor permitting a step to be taken can occur without a mental element which may sufficiently for present purposes be described as knowledge; (ii) whilst “suffering or permitting” involve similar concepts, the latter may involve more active involvement than the former; and (iii) one cannot permit an activity over which one has no control. At the heart of the present application is the question whether the applicant had either the legal power to control Mr Maleki’s activities on the premises or, assuming she had such legal power, whether she had a practical capacity to do so. The adequacy of the judge’s directions to the jury turned on the combination of the proper formulation of the legal elements of permission, having regard to the circumstances revealed in the evidence and the manner in which the prosecutor presented the case. It is convenient to deal with the legal elements first.

Legal elements of permission

1. [9]

   There are numerous cases discussing the meaning of “permit” in various statutory contexts. There are other cases discussing the meaning of “suffer” and “permit” when used disjunctively in the same provision. After referring to a number of judicial pronouncements as to the difference (or lack of difference) between the two terms, Kelly SPJ stated in R v Sanewski: [1]

2. [10]

   There is much to be said for the view expressed by Bright J and, on appeal, by Bray CJ, in Samuels v Centofanti [2] that the word “suffer” in penal statutes “now has archaic overtones”. Whether the expression “suffers or permits” in s 6 of the Drug Act involves a conjunctive hendiadys, or is tautological, or uses the words in slightly different senses need not be resolved: pragmatically, the prosecution was content to rely upon “permits”. Rather, the applicant emphasised the requirement of knowingly allowing something to happen that the person concerned “could have prevented”.

3. [11]

   Before the trial judge, counsel for the applicant relied upon two cases to demonstrate the importance of capacity. In Regina v Tao [3] a student with a licence to occupy a room in a hostel was charged with knowingly permitting or suffering the smoking of cannabis on the premises. Little more need be said about the facts because the case turned upon whether the defendant could properly be described as an “occupier”. However, in the course of addressing that issue, Roskill LJ stated: [4]

4. [12]

   Two propositions may be derived from Tao. The first is that the purpose of such provisions in drug legislation is tolerably clear and that the language in which it is expressed should where possible be given a common-sense construction based on the ordinary meaning of the words used. Secondly, where the critical question is one of control, the circumstances of the individual case will be of critical importance, making it unlikely that prior cases will provide much by way of useful guidance. That is because juries are not taken to judicial discussion in earlier cases and in other situations, but are directed to apply the language of the statute to the facts as found by them.

5. [13]

   Nevertheless, the applicant pressed the Court with submissions based on two further judgments of this Court. The earlier, being the second case to which the trial judge was referred, was R v Jasper. [5] The procedural situation and the facts were very different from the present case. Jasper was a police officer who had accepted money to allow a drug supplier to continue his activities of supplying heroin to customers. The officer was charged with suffering or permitting the supply of heroin. The case had nothing to do with the control of premises; nor did it involve a jury trial. The case involved an appeal from an interlocutory judgment granting a permanent stay of proceedings on the basis that the prosecution would inevitably fail, a proposition the Court rejected. Mason P observed:

6. [14]

   The phrase in the first sentence set out above, “the power or capacity” to stop misconduct might be thought to refer to a legal right or power, as the reference to occupation of premises suggests. The second passage, at [27], expressly identifies as the critical point, “the legal capacity to control a situation”. Neither of these statements deals with the issue in the present case which involved two persons each of whom was a tenant of the premises and married to the other, in circumstances involving a potential disparity in cultural standards as to the power relationship.

7. [15]

   The second case in this Court was R v Sheen. [6] The facts involved a degree of similarity with the present circumstances in that the appellant and her de facto partner were joint lessees of premises used for the manufacture of methylamphetamine.

8. [16]

   After paying particular attention to the reasoning in Sanewski adopted in Jasper, Bell J noted that the prosecutor had accepted that it was necessary to prove that “the appellant has some right or capacity to prevent the manufacture of the drugs and that she had chosen not to exercise it”. [7] The judgment continued:

9. [17]

   The precise relationship between the first sentence in this passage and the last is unclear. However, ultimately the question was whether the directions to the jury were adequate. The reason that they were not, turned upon the time available for the manufacturing exercise to take place. Thus, Bell J stated:

10. [18]

    The issue was, therefore, whether during some period between 10.00pm when the men arrived at the house, and 1.50am, when the police intervened, the appellant had “the power or capacity to prevent the manufacture of the drugs over this period of a few hours in the middle of the night”. [8] Indeed, the jury might have considered that an even shorter period was available as the de facto husband, who had given evidence in the Crown case, said that the drug manufacture “had commenced about one hour prior to the arrival of the police” and that the appellant “had been asleep on the lounge at the time the police arrived and she had not taken part in the manufacture of the drug”. [9] The Court relevantly concluded:

11. [19]

    Two observations may be made in relation to the last passage. First, no attention was given to the precise direction which should have been provided in circumstances where it was inconsistent with the only defence run by the accused, namely lack of knowledge, in which she had the support of her de facto. Secondly, no indication was given as to how to deal in such a direction with the situation of joint tenants. The observation at [21], as to the power or capacity of one joint tenant to exclude the other or his friends or prevent his activities, left the matter entirely at large. However, that issue had been addressed in Regina v Lonie & Groom. [10]

12. [20]

    A passage from Lonie was cited in Sheen, but without discussion or express approval. That passage was, relevantly, in the following terms:

13. [21]

    Lonie, though decided long before Sheen, appears to be the source of confusion as between three different propositions, namely that, (i) a joint tenant has no legal power to control the activities of another joint tenant; (ii) an occupier who has attempted, unsuccessfully, to control activities on her premises, and (iii) an occupier who is intimidated by the person and is, as a practical matter, unable to control his or her activities.

14. [22]

    With respect to (i), Lonie misstated the issue by envisaging “a husband being able to evict his wife from the matrimonial home”. The question is not one of evicting a person, but of not permitting certain unlawful activities to occur on premises over which the person has control. With respect to (ii), implicit in the observation in Sheen at [21], is that a joint tenant does not have any power to prevent the other tenant from inviting third persons onto the premises and conducting illegal activities on the premises. If those propositions are to be taken as involving legal rulings, then no joint occupier, whether co-owner, joint tenant or licensee with control, can be charged with permitting illegal activities to take place on their premises. That would be a bold proposition and one which one might expect would be made explicit were it intended. The soft language of “it is not apparent what power or capacity the appellant had”, and “[t]here is often not a lot a wife or de facto wife can do” suggest no legal principle was being expounded. With respect to (iii), the statement clearly turns on a factual element, namely a power imbalance, but invites a comparison with a defence of duress, which has not been addressed in any of the cases.

15. [23]

    In order to address whether in the present case the directions given by the trial judge to the jury were adequate in this respect, it is necessary to turn to the case presented by the prosecutor.

Factual background

1. [24]

   There was in evidence in the form of a residential tenancy agreement for a unit in an apartment block in Bouvardia Street, Asquith, in the names of the applicant and her husband dated in mid-2017. A letter addressed to them by name on 21 December 2017 from the property manager indicated a rent increase effective from 9 March 2018. They were properly treated as joint tenants of the premises which included a car park in a basement area, access to which required a security card. The designated parking spot for the applicant’s unit included a caged area with a padlock for security.

2. [25]

   A search warrant executed on 21 February 2018 located two separate quantities of methylamphetamine, the bulk of which was in bags or sacks in the caged area in the basement carpark for the unit and a small quantity, as noted above, in a wardrobe in a child’s bedroom. Police also located $264,750 in cash in bundles of notes.

3. [26]

   On 14 February 2018, Mr Maleki returned from a two-week trip to Thailand. He was met at the airport by the applicant.

4. [27]

   Prior to 14 February 2018, both the applicant’s car, a 2016 blue Mercedes sedan registered in her name, and a 2016 black Lexus station wagon registered in the name of Mr Maleki, had been fitted by police with recording devices. A key part of the prosecution case was a translation of a conversation between Mr Maleki and the applicant (in Farsi) as they drove home from the airport. The conversation was relevant for three purposes.

5. [28]

   First, the prosecutor relied on passages which appeared to relate to illicit drugs and which were said to demonstrate the applicant’s knowledge of the drugs on their premises. The transcription commenced:

6. [29]

   The applicant’s evidence in chief touched on the same topic: [11]

7. [30]

   Returning to the recorded conversation in the trip from the airport, in a brief exchange, prior to a discussion of a luxury flower business the applicant was seeking to establish, the following took place:

8. [31]

   Secondly, the whole of the transcript was relied upon by the prosecution to demonstrate a comfortable bantering relationship between the applicant and her husband. The last passage was an example in that regard. That evidence was relevant as a rebuttal of any suggestion by the applicant that she was in fear of her husband and could not prevent the storage of drugs in their residential premises. It is neither practicable nor necessary to set out the whole of the transcription: suffice to say that it was well open to the jury to accept the prosecution characterisation of the conversation in that regard.

9. [32]

   Thirdly, the conversation was relevant to rebut a suggestion that they had a “culturally conventional” marriage in which the applicant was subservient to her husband’s direction. Apparently speaking of the luxury flower shop the conversation was in part as follows:

10. [33]

    Later she described how she proposed to run the luxury flower shop, including wrapping flowers individually in particular coloured paper. Again, it was well open to the jury to infer from the lengthy conversation that the applicant was a person of some strength of character and business acumen and unlikely to be subservient to the directions of her husband.

11. [34]

    The applicant gave evidence of her relationship with her husband, first in chief where she stated:

12. [35]

    A police officer had given evidence in the prosecution case of a call from Mr Ali Maleki on 24 November 2017, following which they attended at the Bouvardia Street apartment. At the apartment they spoke to the applicant who invited the police into the premises. The police recorded her statement that there was “an argument between her and her husband, Ali Maleki”. [12] Details were recorded in accordance with a number of questions asked as a matter of protocol where an incident was classed as “a domestic violence situation” and a “victim’s card” was left, an event which was said to occur “[e]ven if there is no offence disclosed or detected”. [13] The officer gave evidence that he was not aware of any other police records relating to their relationship.

13. [36]

    The applicant gave evidence of violence by her husband when he was on drugs “several times”, including an occasion in 2016, shortly after their daughter had been born when he punched her in the stomach and the “stitches came apart so I ended up going to the hospital”. She said she was at the hospital for half a day.

14. [37]

    She also stated that in November 2017, when she had called police, Mr Maleki had “slapped me across my face, and I fell on the ground and then he started kicking me”. [14] At the time when he returned to Australia, the following exchange occurred:

15. [38]

    Unsurprisingly, the applicant’s accounts of her relationship with Mr Maleki and his conduct towards her were challenged in cross-examination. It was suggested that she had an opportunity to record her complaints when interviewed by the police, but did not. She was also taken through the transcript of the conversation in the car.

16. [39]

    With respect to her Iranian culture, she gave the following evidence: [15]

Jury directions

1. [40]

   The first direction given by the trial judge to the jury, relevantly for present purposes, was in the following terms: [16]

2. [41]

   The judge continued, drawing the definition into the context of the present proceeding: [17]

3. [42]

   Shortly thereafter, during a ten-minute break, counsel for the applicant noted that the prosecutor had handed up a copy of Sheen and referred to [22] in Sheen quoting from Lonie. No specific variation of the directions was sought at that stage, but the judge noted, [18] “All of these things of course depend upon the evidence in a particular case”, to which counsel for the applicant assented.

4. [43]

   Despite the somewhat indeterminate nature of the last exchange, when the jury returned from the break the judge dealt with a query which he had received and then stated: [19]

5. [44]

   At the end of the summing up, counsel for the applicant raised the matter again in the following terms: [20]

Grounds of appeal

1. [45]

   The two grounds of appeal were identified as follows:

   1. (1)

      the learned trial judge erred in the directions given in relation to proof that the applicant knowingly took part in the supply of a prohibited drug; and/or

   2. (2)

      a miscarriage of justice was occasioned by the inadequacy of the directions given in relation [to] proof that the applicant knowingly took part in the supply of a prohibited drug.

2. [46]

   Although the grounds appeared to engage separately the second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW), the arguments proffered in support of each were the same, namely a failure to give a further direction to the jury in the terms proposed at the end of the summing up, as set out above.

3. [47]

   There was no error in failing to give the further direction: indeed, the judge was correct in declining to give a further direction in the terms sought. He was correct to note that the appropriate directions in relation to “taking part in” a supply of drugs would turn upon the circumstances of the case.

4. [48]

   As the judge explained in the more expansive direction set out at [43] above, the prosecution case was that the applicant was “an active participant”: that was reflected in the language of “willingly and knowingly” providing premises and permitting their use for storing drugs. By contrast, the fact that two persons are in joint occupation of premises may be relevant where there is evidence of opposition by one to the criminal conduct of the other. That is the antithesis of willing participation in the conduct. The same may be said of lack of physical or persuasive capacity to resist the continuing criminal conduct of a spouse or close relation. Again, the question of resistance only comes up because the person’s participation or involvement is unwilling.

5. [49]

   Further, the approach adopted in Sheen should be understood in the circumstances which arose in that case. One significant feature which was not addressed was how directions in relation to an alternative case should be expressed, in circumstances where they were inconsistent with the primary case (namely lack of knowledge of the existence of the drugs). That issue was no doubt not addressed in Sheen because the alternative case was not even raised at the trial. The judgment was unusually favourable as an application of rule 4.

6. [50]

   Closer to the present case was the reasoning of the Queensland Court of Appeal in R v Von Snarski. [21] With respect to the element of “permitting”, the Court noted that the trial judge had directed the jury in the following terms:

7. [51]

   Although the reasoning in Von Snarski tended at times to blur the distinction between the sufficiency of the evidence to support a charge and the need for a direction, the thrust of the reasoning was sound. In the present case, a prosecution based on knowing and willing involvement did not call for directions as to what might, hypothetically, have been in issue had the applicant been unwilling or resisting the activities of her husband. If the jury had accepted that her evidence in that regard raised a reasonable doubt, they were required to acquit. Where the prosecution case was one of participation by a knowing and willing participant, as was made clear to the jury, knowledge and willingness had to be established beyond reasonable doubt.

Conclusion

1. [52]

   There should be a grant of leave to appeal, but the appeal should be dismissed. The Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal from her convictions for taking part in the supply of large commercial quantities of a prohibited drug.

   2. (2)

      Dismiss the appeal.

2. [53]

   GARLING J: I agree with the orders proposed by Basten AJA, and with his Honour’s reasons.

3. [54]

   N ADAMS J: I agree with the orders proposed by Basten AJA for the reasons provided by his Honour.