Rabieh v R [2024] NSWCCA 154

Rabieh v R [2024] NSWCCA 154 · Read the judgment on AustLII

Catchwords: Supply prohibited drug – ‘knowingly take part’ – ‘suffers or permits’ – offending among joint tenants

In this decision the Court of Criminal Appeal (‘CCA’) has considered what the Drug Misuse and Trafficking Act 1985 means when it talks about ‘knowingly taking part’ in the supply of a prohibited drug. In particular, the Court has examined the inscrutable phrase ‘suffers or permits’ in the definition – and provided a blissfully concise summary of some of the principles. When it comes to joint tenants and the question of whether both people are liable for what happens in the premises, the Court has said that the key question is control, which turns on the facts of the case – but that issue only arises where there is some evidence to suggest opposition by one of the parties.

After a jury trial, the applicant was convicted of two counts of knowingly taking part in the supply of a prohibited drug, involving not less than the large commercial quantity of methylamphetamine. One amount of 30kg and another of 2.5 kg was found in locations in the house she shared with her husband. At trial she gave evidence to the effect that the drugs belonged to her husband, and she didn’t know they were there; the jury verdict necessarily meant that this had not been accepted. She also argued at trial that even if she had known about the drugs, there was nothing she could’ve done about it, given her relationship with her husband. The appeal judgment refers obliquely to evidence she had given of a relatively restrictive cultural situation as the context for the relationship, whereas the prosecution evidence sought to establish that the relationship was not as restrictive as claimed. The evidence of whether the applicant could have stopped her husband from the offending was important because she was charged with ‘knowingly taking part’ in the offending. The legislative definition of ‘takes part in’ includes that a person will have taken part in a supply if the person ‘suffers or permits any … step’ in the drug supply process to be taken in premises of which the person is the owner, lessee, or occupier.

The expression ‘suffers or permits’ has variously been described as being tautological and having ‘archaic overtones’ (see [10]). That notwithstanding, in the kind of rare passage that makes a casenote author’s heart sing, Basten JA (with whom Garling J and N Adams J agreed) concisely summarised the principles applicable to ‘suffers or permits’ at [8] as follows:

• Neither suffering nor permitting a step can happen without a mental element which can be sufficiently described as ‘knowledge’;
• Whilst ‘suffering or permitting’ involve similar concepts, ‘permitting’ may involve more active involvement than ‘suffering’. And
• One cannot permit an activity over which one has no control.

However, in relation to that final point relating to control, the question at the heart of this appeal was whether the applicant had either the legal power or (assuming she had such legal power), whether she had the practical capacity to do so. The trial judge had issued a jury direction to the effect that ‘mere knowledge’ was not enough to make out the charge in this case, and that the prosecution’s case was that the applicant not only knew but willingly and knowingly provided the premises for the purpose of supply. On appeal the applicant criticised the trial judges’ directions as being insufficient, arguing that there should have been a direction directing attention to the applicant’s lack of power or capacity to evict the principal offender (her husband) in order to stop the offending.

On appeal the CCA observed that where the critical question is one of control, the circumstances of the individual case will be of critical importance; it is unlikely that prior cases will provide much by way of useful guidance (at [12]). To the extent that some earlier decisions suggested that a joint tenant has no legal power to control activities of another tenant, and no power to prevent another tenant from inviting other people onto the premises for illegal activities, those decisions should not be taken to have been expounding legal principles to that effect (at [15]-[22]). Joint occupation may be relevant where the evidence suggests that there is opposition by one of the parties to the criminal conduct of the other. There was a seeming endorsement of a Queensland appellate decision to the effect that mere inactivity will be insufficient for the purposes of ‘permission,’ although proof of specific activity may not always be necessary (at [50]). However, in this case the prosecution case was that the applicant was an active and willing participant (at [48]). If the jury had accepted the applicant’s evidence to the effect that she was not an active and willing participant, then they were required to acquit. Where the prosecution case was one of participation by a knowingly and willing participant, then knowledge and willingness had to be established beyond reasonable doubt. In those circumstances, a direction about what might, hypothetically, have been in issue if the applicant had been unwilling or resisting her husband was unnecessary (at [51]).