R v Jasper

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL

70088/02 R v Matthew John JASPER (Matthew John JASPER v Director of Public Prosecutions (NSW))

JUDGMENT 1 His Honour: By Notice of Motion filed 3 December 2002 the applicant/accused sought a determination that the evidence sought to be relied on by the Crown to support two counts in an indictment presented against him on 31 October 2002 was not sufficient to constitute the offences charged, namely supply not less than a large commercial quantity of heroin, and in the alternative, supply heroin. 2 I heard submissions on the Motion on 27 February 2003 and ruled in favour of the applicant indicating that I would give my reasons at a later date. These are my reasons. 3 The applicant was charged in Count 3 as follows: "Between 20 January 2000 and 16 December 2000 at Sydney in the State of New South Wales did supply a prohibited drug, namely heroin, being an amount not less than the large commercial quantity for that drug." 4 He was charged in Count 4 in the alternative as follows: "Between 20 January 2000 and 16 December 2000 at Sydney in the State of New South Wales did supply a prohibited drug, namely, heroin." 5 For the purposes of the Motion no issue arises as to the quantity of the prohibited drug. 6 Count 3 was a charge under s 25(2) of the Drug Misuse and Trafficking Act 1985 (the Act) which provides: "A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence." 7 Count 4 was a charge under s 25(1) of the Act not alleging that a commercial quantity was involved. 8 "Supply" is defined in s 3 of the Act, relevantly, as follows: "includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things." 9 For the purposes of the Motion both parties accepted the facts set out in the document entitled, "Chronology and Facts" (Ex. 1 on the Motion). In summary, some time after the arrest of Vincent Caccamo by the applicant and a fellow detective, David Patison, in relation to drug matters on 20 January 2000, the applicant or Patison (but in any event in each other's company) told Caccamo that they knew he was selling drugs, but agreed that he could continue doing so if he paid them $1,000 a week. Caccamo told them he would take a few weeks to get started. 10 Following this a series of meetings took place between Caccamo and either the applicant or Patison at which various amounts of money ranging from $400 to $1,000 were handed over by Caccamo. Although they knew that Caccamo was supplying heroin, they took no steps to arrest him, carry out surveillance, obtain telephone interception warrants, or supply information they had to their superior officers. Moreover, about 23 May 2000 the applicant, as a result of information obtained from the police computer system, told Caccamo that the details of his runner's car were known to other police and he should change it. 11 The Crown relied on the extended definition of "supply" and submitted that the applicant suffered or permitted Caccamo to sell and distribute, to keep or have in his possession for supply, to receive for supply, and to deliver prohibited drugs. It appears that initially the Crown alleged that the facts amounted to the applicant "permitting" Caccamo to supply the heroin, but it later relied, in the alternative, on the submission that he was "suffering" the supply. In my view for present purposes there is no meaningful difference between "permitting" and "suffering" in this context: cf R v Thomas (1976) 63 Cr App R 65 at 68, R v Sanewski [1987] 1 Qd R 374, R v Lonie & Groom [1999] NSWCCA 319 at [93], R v Bett [1999] 1 WLR 2109 at 2113. 12 In a number of different contexts it has been held that in order to "permit" an activity, it is essential that the person charged has the power and authority to prevent that activity: Adelaide Corporation v Australasian Performing Right Association Limited (1928) 40 CLR 481, Broad v Parish (1941) 64 CLR 588 at 594, R v Souter (1971) 55 Cr App R 403 at 409, Ex parte Jenkins; Re Ross [1965] NSWR 364, R v Lonie & Groom [1999] NSWCCA 319 per Smart AJ at [86] to [92]. In R v von Snarski [2001] QCA 71 at [24], the Court said: "Mere inactivity by a person seeing others doing something does not establish permission. But neither is specific activity always necessary to prove "permitting" in the case of someone who knows what another is doing, has the capability of preventing it , and stands by while the act is done. It is a question of fact in which degree and circumstance may affect the conclusion." (my underlining) 13 As in all cases of statutory construction, the meaning of the words used depends on the context. The cases where persons have been held to have "permitted" or "suffered" the activities of others have all been cases where the concerned had authority either as employer, publican, occupier or such like to prevent the prescribed activity being carried on. In R v Bradbury [1996] Crim LR 808 the English Court of Appeal held that there had to be assistance or encouragement, and mere acquiescence was not enough. This would be in accordance with the general principles of the criminal law because acquiescence without a power to prevent would amount to an involuntary crime consisting of a mens rea without an actus reus. 14 The Crown however submitted that because of his duty and authority under the Police Service Act 1990 a police officer is required to keep the peace and prevent offences, using the best of his skill and knowledge, and that he has a positive obligation to prevent the commission of crime as well as to investigate offences that have been committed. 15 However, notwithstanding that the applicant had the powers of a police officer and knowledge that Caccamo was carrying on business as a heroin supplier, it does not appear from the Chronology and Facts that he had knowledge in advance of any particular intended transactions, and even if he did, it is not clear what powers he would have had in advance to prevent the commission of the offence. Once the offence was committed or even attempted, he would have had powers of arrest but not prior, as there is no power to arrest in advance merely because of knowledge or information that an offence will be committed. 16 As a police officer he was not in a position to stop Caccamo from making a sale or from being in possession of heroin. He was not empowered to arrest him on account of his "intention" to continue to deal in drugs. He was not empowered to arrest him before he committed the offence of supply or posses, but could only do so after he had committed the crime (including an attempt to do so), and only if he then had sufficient admissible evidence to warrant such arrest. In other words, he did not have authority or power to prevent the commission of the offences. It is not relevant for present purposes to consider whether the facts disclosed could amount to a conspiracy between the applicant, Patison and Caccamo to supply prohibited drugs, as such offence was not charged. 17 The real gravamen of the applicant's criminal conduct in relation to these transactions was his soliciting and receiving payment in return for not causing investigations to be carried out which might have resulted either in Caccamo being arrested and charged with offences which he had committed, or in him being led into a position of supplying drugs to an undercover police officer whereupon he could be arrested and charged. The appropriate charges in respect of such conduct were solicit corrupt reward and receive corrupt reward contrary to s 249B of the Crimes Act 1900 which were the charges contained in counts 5 and 6 of the indictment of 31 October 2002 and to which the applicant indicated he would, and subsequently did, plead guilty. 18 For these reasons I ruled that the facts disclosed in the Chronology and Facts did not amount to "permitting" or "suffering" the supply of the drugs and therefore did not come within the extended definition of "supply". 19 The question then arose as to the form of the order that should be made, the Notice of Motion merely seeking a "determination" that the evidence contained in the brief of evidence upon which the applicant was committed for trial did not amount to either offence charged in counts 3 or 4 of the indictment. The Chronology and Facts is, as I understand it, a condensed summary of the committal brief of evidence. 20 The Criminal Procedure Act 1986, s 61(1) provides that an objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or by motion to quash the indictment, before the jury is sworn, whilst subs (2) permits the Court to cause the indictment to be amended in which case the trial is to proceed as if there were no defect. 21 A demurrer admits that all the statements in the count in the indictment are true but it maintains that, even admitting their truth, they are not sufficient in law to make the applicant guilty of a crime, and therefore he is not bound to answer them. It challenges the substantial matters alleged as not constituting any crime at all: The King v Boston (1923) 33 CLR 386 at 396. 22 As the Court of Criminal Appeal said in R v Glynn (1994) 33 NSWLR 139 at 140-1: "A demurrer is concerned only with the adequacy of the facts as stated in the indictment. It is not concerned with the adequacy of the evidence available to the Crown to prove those facts - for the facts as stated in the indictment are, for the purposes of the demurrer, admitted. Accordingly it is an error, in determining a demurrer, to have regard to depositions or other material indicating the evidence available to the Crown. A court is not concerned, in determining a demurrer, whether the evidence available to the Crown will, if adduced and accepted, make out the facts as stated in the indictment. Equally, if the statements of fact averred in the indictment do not disclose an offence by the person charged it is wholly foreign to the demurrer procedure that the court have regard to evidence available, or claimed to be available to the Crown, which might establish any fact or facts which if added to the facts averred in the indictment would make good any deficiency or deficiencies therein and constitute, if true, an offence. What matters are the statements averred in the indictment itself." See also R v Inner London Quarter Sessions [1970] 2 QB 80. 23 In the present case, counts 3 and 4 in their terms clearly specify sufficient facts to justify convictions under s 25(1) and (2) of the Drug Misuse and Trafficking Act 1985, irrespective of whether the Crown has available to it sufficient evidence to establish such facts. It follows that this is not an appropriate case to consider by way of demurrer. 24 Another form of challenge to an indictment is by motion to quash the indictment (or individual counts therein). This is the appropriate course if the indictment (or count) on its face does not disclose an offence or is bad for duplicity or for a number of other reasons: R v Jones (1974) 59 Cr App R 120, R v Wilk (1982) 32 SASR 12 at 14, Archbold (2001 ed) at paras 1-236, 1-190, 1-191. 25 In R v Jones (1974) 59 Cr App R 120 at 126 the Court said that upon a motion to quash a count made before indictment the judge gives his ruling upon the form and matter on the face of the indictment, and the only circumstance in which the depositions and statements can be examined is when the motion to quash is on the ground that the offence is not disclosed by the depositions or statements and there has been no committal for trial of that offence (my underlining). 26 In this the Court followed what had been said by Lord Goddart CJ in R v Chairman, County of London Quarter Sessions (1953) 2 QB 750 which was based on the premise that once there had been a committal for trial, the trial court was bound to hear the case and had no power to quash the indictment on the ground that the evidence available to the Crown would not support the charge. 27 With respect, this reasoning appears to be erroneous, in view of the Courts power, now clearly established, to stay proceedings if such proceedings are doomed to failure: Walton v Gardiner (1993) 177 CLR 378, Ridgeway v The Queen (1995) 184 CLR 19, R v Smith [1995] 1 VR 10 including cases where it is clear beyond argument that there is no evidence of an essential element. Moreover, I cannot see any practical distinction between counts in respect of which there has been a committal for trial and counts in respect of which there has not, and if the depositions and statements can be looked at in the latter case, I see no reason why they should not be looked at in the former. 28 However, because of the doubts which arise because of the English decisions, I consider that the safer and more appropriate course is to make a composite order. 29 I therefore order that all proceedings on counts 3 and 4 in the indictment dated 31 October 2002 be permanently stayed and that the said counts be quashed.

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