Rabieh v R

Court of Criminal Appeal (NSW)|2024-08-05|Before: Garling J, Adams J

Solicitors: Rezae & Co Lawyers (Applicant) C Hyland, Solicitor for the Public Prosecutions (NSW) (Respondent) File Number(s): 2018/00058863 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 01 September 2023 Before: Bourke SC DCJ File Number(s): 2018/00058853

JUDGMENT

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.

Nature of charge

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.
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.
Section 6 provides a list of circumstances in which a person "takes part in" the supply of a prohibited drug, including if: (a) the person takes, or participates in, any step… in the process of … supply, … (c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier ….
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

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] "After consideration of this diversity of judicial views, I have reached the conclusion that when, as in the statute with which we are here concerned, the words 'permit' and 'suffer' are used in conjunction there is some degree of difference between them, 'suffer' being somewhat less positive than 'permit' and is to be interpreted as meaning passively or implicitly allowing the act in question to take place as distinct from actively or expressly allowing it. The word imports knowingly allowing something to happen that the person concerned could have prevented."
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".
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] "One asks what is the mischief against which this section is aimed. If one asks that question, it seems to this Court plain that the object is to punish those persons who are able to exclude from their premises potential offenders who wish to smoke cannabis in those premises, but do not do so, by making such persons themselves guilty of an offence if they knowingly permit or suffer any of the forbidden activities, those persons being either 'the occupier' or 'concerned in the management' of those premises. This suggests that parliament was intending not that a legalistic meaning should be given to the phrase 'the occupier' but a common sense interpretation, that is to say 'the occupier' was to be regarded as someone who on the facts of the particular case, could fairly be said to be 'in occupation' of the premises in question, so as to have the requisite degree of control over those premises to exclude from them those who might otherwise intend to carry on those forbidden activities …."
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.
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: "26 Several of the cases point to the need to show that the offender had the power or capacity to stop the other's known misconduct. Occupation of premises can establish that right or power …. 27 But other cases have reached a similar conclusion without any such clear statutory prompt. The critical point is the legal capacity to control a situation and the failure to do so with the requisite accompanying state of mind."
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.
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.
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: "21 The fact of occupation, when combined with knowledge that drugs are being manufactured within the premises, may readily support an inference that the occupier at the least suffered the manufacturing process to take place. In this case the appellant and her de facto husband were joint lessees of the premises, which was their de facto matrimonial home. [The husband] had the legal right to (i) be present in the premises; (ii) bring things into the premises; and (iii) invite persons into the premises. It is not apparent what power or capacity the appellant had to prevent [him] from inviting Daher onto the premises or to prevent the two of them from manufacturing drugs inside the premises."
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: "28 In a case in which a joint tenant/occupier of premises is alleged to have suffered or permitted a step in the process of manufacture to take place it may be that the inference of guilt can be drawn from circumstances including that, over a period of time, no step was taken to prevent a joint occupier/tenant from continuing the process of manufacture. That is not this case."
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: "30 The Judge instructed the jury that mere knowledge was not sufficient and it was necessary for the Crown to establish that the appellant allowed her premises to be used for the manufacture of the drug, however, to my mind the directions were insufficient. They did not serve to convey that it was necessary to prove that the appellant had any power or capacity to prevent the manufacture of the drugs in the premises of which [the husband] (who was the manufacturer) was a joint lessee/occupier. There is a real risk the jury may have reasoned towards a finding of guilt once they rejected the appellant's case that she was unaware of the activity."
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]
A passage from Lonie was cited in Sheen, but without discussion or express approval. That passage was, relevantly, in the following terms: "97 Proceeding, as the Court must on the basis that Groom knew that there were substantial quantities of cannabis in the house, the evidence does not disclose the circumstances in which it was brought into the house and how long it had been there. There is often not a lot a wife or de facto wife can do if a husband or de facto husband brings prohibited drugs onto premises …. 98 The matter should be approached on a twofold basis. In the case of a couple living together as man and wife and sharing the rent with the de facto wife in poor health and on a disability pension it is artificial just because the lease is in her name to talk of her having any power to give the de facto husband directions as to what he was to do. Nor is it at all clear that she could legally do so especially if the lease was held in her name on behalf of both of them. For example, it is not easy to envisage a husband being able to evict his wife from the matrimonial home of which he was the lessee if she brought some prohibited drugs on to the premises."
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.
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.
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

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.
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.
On 14 February 2018, Mr Maleki returned from a two-week trip to Thailand. He was met at the airport by the applicant.
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.
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: "ALI: Is our load/shipment and stuff in there in the storage? YOSRA: Yeah. ALI: The loads of illicit drugs, the false bottomed ones - YOSRA: Are they in the storage? Yeah. ALI: The store room. YOSRA: Yes, they are. ALI: Have you checked? YOSRA: Yeah. ALI: Have you actually checked them? Have you gone there and seen them? YOSRA: Aren't they inside those [cardboard] cartons? ALI: No. YOSRA: Where then? ALI: They are behind those boxes. YOSRA: No, I haven't seen them. I once went there and opened it but I didn't search them - ALI: Didn't you see the gunny sacks there? YOSRA: (clicks her tongue for negation) ALI: You mean there is no gunny sack? YOSRA: There are, my dear. How could there possibly be no gunny sacks there? The parking door is always locked … the storage door. ALI: You're always busy playing with your ass? YOSRA: I'm supposed to be in charge of the statistics of the gunny sacks? ALI: Then who else is supposed to do it? YOSRA: It's not like you'd told me to do so? ALI: Didn't I tell you over there, Yosra?"
The applicant's evidence in chief touched on the same topic: [11] "Q. In respect of what was in the caged area downstairs, did you have any control over what Mr Maleki put into that caged area? A. INTERPRETER: No. There were a few boxes from the things of stuff we had moved in. It was still there, and he was constantly nagging at me, 'Just come on, take this away, empty this place. Take your stuff, the house is big, just put it there, why is it there in the cage'. Q. Listen to the question. Did you have any control over what Mr Maleki put inside the caged area downstairs? A. WITNESS: No."
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: "YOSRA: Admit it. You've just arrived and your nagging, my darling. Don't do this. Make changes in yourself. Relax. ALI: From now on I'll be babysitting and you'll be working outside. YOSRA: Oh, really? ALI: Yes. YOSRA: Why? ALI: You'll be working. You'll be selling drugs. You'll be managing the shop. YOSRA: (Laughs) ALI: I'll be taking care of the children. You tell me I can't do what you do. Well, then go ahead and do what I do outside if you can."
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.
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: "ALI: How much money did you spend? YOSRA: I've written them all down. ALI: Still, around how much? YOSRA: I haven't calculated it but I've written down everything - ALI: How much approximately? YOSRA: I think around … 20 thousand, maybe not 20000, a bit less. I paid 5000 to the cabinet maker. I bought a Mac for 2000. ALI: What is Mac? YOSRA: I changed my computer. What else? I paid 1000 for the aircon. I still have to pay the rest. ALI: The air conditioner? Why? YOSRA: They came and changed its place and they did … um … ALI: The device is still there though, isn't it? YOSRA: Yes, the device is there. (inaudible) Sorry to say this but you can't take a shit out and place an air-con in its place inside the wall. These make the shops really cold - ALI: True. YOSRA: And I mean icy cold. Good thing Davood was in the shop. The poor guy came and dissembled all the tables in the house. ALI: Who is Davood? YOSRA: Davood? He is Masoomeh's husband. ALI: I see. YOSRA: He came and fixed the chairs and the table, he fixed the house table. He worked for about two to three hours. No matter how much I insisted he refused to be paid."
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.
The applicant gave evidence of her relationship with her husband, first in chief where she stated: "Q In 2017, what was the state of your marriage? A: INTERPRETER: We didn't have a good relationship. Q: … What do you mean by that? A. INTERPRETER: Alireza at the time was living in a different house, he was there most of the time. He spent very little time with me and the kids, and he was very angry all the time, and we just didn't have a good relationship. Q. I now want to focus on 2017. Can you say anything about Mr Maleki, and whether he was using drugs? A. INTERPRETER: Yes. Q. I think (foreign language) means yes. When you said yes, what do you mean? What was your understanding in regard to Mr Maleki in late 2017? A. INTERPRETER: He was using a lot of drugs, and to a point where most of the time he just wasn't there, I couldn't understand him. Q. There has been mention of, in the evidence, of a trip to Thailand at the start of 2018? A. INTERPRETER: Yes. Q. Did Mr Maleki go to Thailand in the start of 2018? A. INTERPRETER: Yes. Q. What was the purpose of that trip? A. INTERPRETER: So, what he told me was I'm going there, I'm going to get a hotel, rest there, so that I can quit drugs for good."
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.
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.
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: "Q. How were you treating Mr Maleki when he turned to Australia? A. INTERPRETER: I was trying to be very calm with him. I was trying to give him, like, a feeling of peace and that he's good. He's a good person."
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.
With respect to her Iranian culture, she gave the following evidence: [15] "Q. But would you agree with me that the money that was found at your unit on 21 February, $256,000? A. INTERPRETER: I only knew about 196,000. … Q. Why didn't you use that money found by police, whether it was 196 or 256, to escape from Ali? A. INTERPRETER: So, I knew Ali for a long time, and it wasn't like I could just say bye and take off and go. That's not how it works in our culture. A lot of women put up with a lot of stuff, and they just stay and live their life there, and I'm from the same culture. Q. But can you confirm that you had your two brothers, at least, as family members living close-by to you in Sydney? A. INTERPRETER: With all the respect that I have for them, whether they were there or not, it didn't really make much difference."

Jury directions

The first direction given by the trial judge to the jury, relevantly for present purposes, was in the following terms: [16] "The law gives an extended meaning to the phrase 'takes part in' the supply. It includes willing and knowingly providing the premises where a substance is held for the purposes of supply, or willing and knowingly permitting a substance to be stored for the purposes of supply in premises of which the accused is an occupier."
The judge continued, drawing the definition into the context of the present proceeding: [17] "The accused denies that she was a custodian of any substance found in the premises, or that she willingly and knowingly provided any premises at which the substance was kept for the purposes of supply, in that she denies any knowledge of the substances being in the premises. And so you would have appreciated that from hearing the evidence over the last two weeks that fundamentally the accused says she did not know that the drugs were in either of those locations."
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.
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] "Before I go to the next thing I am going to say to you, just coming back to the elements document to add a couple of things. It is in relation to element one under counts 1 and 2, which is as you see, 'That the accused knowingly took part in the supply of a substance'. I need to emphasise that the Crown case is not just that she knew there were drugs in the premises. It is more than that. Mere knowledge is not enough to make out the charge. It is one of the things the prosecution has to prove, that she knew in the sense explained in this document that there was a prohibited drug in the premises. But the Crown case is that she knowingly took part in the supply by willingly and intentionally, if you like, providing the premises or permitting the substance to be stored there, again willingly or knowingly. In other words the Crown says she was an active participant in that sense. The Crown does not suggest that she was just an innocent bystander or a victim of someone else's actions. That would not be enough to make out the Crown case. It is not enough to just know about it, to know about the drugs and not being able to stop her husband, for example, from carrying on this business and having drugs there. That is not the Crown case. The Crown case is that she actively took a part knowingly, in being, effectively, as the Crown put it, a willing custodian at one stage, and that she willingly and knowingly provided the premises. So, proof of counts 1 and 2 requires more than just knowing about the drugs, it requires that she not only knew about them, but that she willingly and knowingly provided the premises at which they could be held or stored for the purposes of supply."
At the end of the summing up, counsel for the applicant raised the matter again in the following terms: [20] "It's the same point that I raised before. And I know your Honour did touch on it again in part, but what I was seeking was a direction in line with Tao and Jasper, but particularly the more recent decision of Sheen at para 30. And the wording that I'm seeking from your Honour is that, since possession in a joint tenancy situation has been raised the issue is whether the appellant had any power or capacity to prevent the conduct which was described to her. Now Tao talks about an admission type situation. That's what I'm seeking, your Honour, I know your Honour did touch on it, but I'm seeking the issue of the power or capacity. In Tao it talks about the power to exclude that person, and in this decision is talking about the same thing, that is the power to evict the person from the premises to stop it. Now it is slightly different in a manufacture situation, Sheen is taking about a manufacturer but here it's the capacity to, as far as the controlled possession, to stop the activity. So we're talking about control. I'd just ask invite your Honour to consider that. I'm duty bound to raise it." The judge declined to give a further direction.

Grounds of appeal

The two grounds of appeal were identified as follows: 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. 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.
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.
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.
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.
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.
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: "22 … 'Now, both production and permission involve knowledge. So one of the things you have got to be satisfied about is that the accused knew what was going on. Whether he was helping oil it up or do something or get the stuff himself or not, he knew about it. If you are not satisfied beyond reasonable doubt that he knew what was happening, well, that is the end of it. You just acquit him of everything.'" The Court stated: "24 … On this occasion defence counsel below did request a re-direction to the effect that, '[m]ere inactivity is not sufficient'. The requested re-direction was not in our opinion necessary or desirable. 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. … 25 There will be cases where the trial judge may find it necessary to traverse the somewhat metaphysical area of inactivity, indifference, condonation, sufferance and permission, but we do not think that the present case is one of them. In our view the learned judge's references to the necessity for the existence of knowledge, control and acquiescence were adequate in the present case. The Court then rejected an analogy drawn with Lonie noting: "26 … The facts of that case reflected a domestic situation over which Ms Groom had little control, and it was extremely difficult to infer that she had the capacity to prevent the activities of the other occupant. This can be distinguished from the present case where the appellant was at least a part-time occupant, where the somewhat dangerous activity that was going on must have been blatantly obvious, and where there was evidence capable of suggesting at the very least that he had drawn his co-occupant's attention to the fact that a batch of something being used in an ongoing [methylamphetamine] production was in the fridge."
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

There should be a grant of leave to appeal, but the appeal should be dismissed. The Court should make the following orders: 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. Dismiss the appeal.
GARLING J: I agree with the orders proposed by Basten AJA, and with his Honour's reasons.
N ADAMS J: I agree with the orders proposed by Basten AJA for the reasons provided by his Honour.

Endnotes

[1987] 1 Qd R 374 at 378 (Matthews J agreeing).
[1967] SASR 251 at 257 (Bright J), 268 (Bray CJ).
[1977] 1 QB 141 (Roskill LJ, Peter Pain and Jupp JJ).
Tao at 144.
[2003] NSWCCA 186; 139 A Crim R 329 (Mason P, Dowd and Adams JJ agreeing).
[2007] NSWCCA 45; 170 A Crim R 533 (Bell J, Sully J and Hoeben J agreeing).
Sheen at [20].
Sheen at [29].
Sheen at [7].
[1999] NSWCCA 319 (Smart AJ, Barr J and Greg James J relevantly agreeing).
Tcpt, p 275(17).
Tcpt, 05/06/23, p 192(2).
Tcpt, p 192(32).
Tcpt, p 258(45).
Tcpt, p 330(13).
Summing up 13/06/23, p 31.
Ibid.
Summing up, p 46.
Summing up, p 47.
Summing up, p 64.
[2001] QCA 71; 121 A Crim R 205 (Thomas JA, Wilson and Douglas JJ).

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