R v Jasper

[2003] NSWCCA 186

Reported Decision: 139 A Crim R 329

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v Matthew John JASPER [2003] NSWCCA 186
HEARING DATE(S):	4 July 2003
JUDGMENT DATE:	8 July 2003
JUDGMENT OF:	Mason P at 1; Dowd J at 40; Adams J at 41
DECISION:	Appeal upheld and orders made by Dunford J on 11 April 2003 be set aside.
CATCHWORDS:	CRIMINAL LAW - Appeal by Director of Public Prosecutions - Criminal Appeal Act 1912 ss 5C and 5F- Drug Misuse and Trafficking Act 1985 - "supply" - permitting or suffering another to supply - corrupt police officer allows dealer to continue supplying in return for ongoing bribes - officer arguably guilty of "supply" (D)
PARTIES :	REGINA v Matthew John JASPER
FILE NUMBER(S):	CCA 60070/2003
COUNSEL:	Appellant: R Cogswell SC (Crown)/ Dr J Quilter Respondent: J Dailly SC
SOLICITORS:	Appellant: S E O'Connor Respondent: Walter Madden Jenkins

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 70088/2002
LOWER COURT JUDICIAL OFFICER :	Dunford J

CCA 60070/2003

MASON P
DOWD J
ADAMS J

Tuesday 8 July 2003

REGINA v Matthew John JASPER

FACTS:
The respondent was a police officer who entered into corrupt arrangements with a heroin dealer, Vincent Caccamo. He pleaded guilty to four of the six counts contained in the indictment, but sought a permanent stay of the proceedings on two charges alleging that he “ did supply a prohibited drug, namely heroin” on the basis that such charges were doomed to fail. Dunford J upheld this position, reasoning that there was no evidence of the essential element of “supply”.

The issue on appeal is whether the facts as agreed are arguably capable of supporting the charges of “supply” within the terms of Section 3 of the Drug Misuse and Trafficking Act 1985 . More specifically, the issue is whether the respondent “suffered” or “permitted” the supply of heroin by Caccamo.

HELD per Mason P, allowing the appeal (Dowd J and Adams J agreeing):

1) The charges of supply against the respondent did not meet the high threshold of inevitable failure required to grant a permanent stay of the proceedings: Walton v Gardiner (1993) 177 CLR 378 at 393 and 411. [19]-[20]

(a) It is arguable that there is a meaningful difference between “permitting” and “suffering” in the context of the definition of “supply” in Section 3 of the Drug Misuse and Trafficking Act 1985 : R v Sanewski [1987] 1 Qd R 374; Barton v Reed [1932] Ch 362 at 375; Beaumont v St Kilda Borough [1975] 2 NZLR 369 at 370; R v Lonie [1999] NSWCCA 319 at [92]. [21]-[22]
(b) It is arguable that in light if his awareness of the act of supply and his position as a police officer, the respondent “permitted” or at least “suffered” the supply of heroin by doing nothing. [25], [29]-[30]
(i) “Permitting” and “suffering” involve an element of awareness of the act as well as an element of failing to exercise a power or right to prevent it: R v Sanewski [1987] 1 Qd R 374 at 380. [23]
(ii) The test for this second element is whether the person had the legal capacity to control a situation and failed to do so with the requisite accompanying state of mind: Rochford Rural Council v Port of London Authority [1914] 2 KB 916; Bond v Reynolds [1960] VR 601 at 602; R v Sanewski [1987] 1 Qd R 374 at 379; Elliott v Nanda (2001) 111 FCR 240 at 291-3. [27] –[28]
(iii) The respondent had that capacity due to his status as a police officer and his capacity to arrest on reasonable suspicion of past criminality, thereby stopping its continuation. [25], [29]-[30]
(c) It is arguable that by entering into the agreement whereby Caccamo was allowed to continue selling heroin subject to paying a toll of $1,000 per week, the respondent “permitted” or “suffered” the supply of heroin. [30], [35]
(i) Knowledge of something likely to be done in the future may amount to the level of knowledge implicit in the word “permits” where there is a belief that the act is highly likely or probable to happen (“shutting one’s eyes to the obvious”): R v Souter (1971) 55 Cr App R 403 at 407-8; R v Thomas (1976) 63 Cr App R 65 at 69; Lyver v State of Victoria [1983] 2 VR 475 at 478; Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 at 446; Chappell v A Ross & Sons Pty Ltd [1969] VR 376 at 382. [33]-[34]

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CCA 60070/2003

MASON P
DOWD J
ADAMS J

Tuesday 8 July 2003

REGINA v Matthew John JASPER

Judgment

1 MASON P: The respondent was a police officer who entered into corrupt arrangements with a heroin dealer, Vincent Caccamo. In January 2002 the respondent was charged with several offences and on 23 September he was committed for trial to the Supreme Court.

2 An indictment containing six counts was presented on 31 October 2002. The charges were that the respondent:

1. On 20 January 2000, at Manly in the State of New South Wales, being then an agent of the Crown, namely, a member of the New South Wales Police Service, did corruptly solicit from Vincent Caccamo the sum of $10,000.00 as a reward for, or otherwise on account of, showing favour to Vincent Caccamo, in relation to the affairs or business of the agent’s principal, namely, the Crown.

2. Between 20 January 2000 and 7 March 2000 at Manly in the State of New South Wales, being then an agent of the Crown, namely, a member of the New South Wales Police Service, did corruptly solicit from Vincent Caccamo the sum of $80,000.00 as a reward for, or otherwise on account of, showing favour to Vincent Caccamo, in relation to the affairs or business of the agent’s principal, namely, the Crown.

3. 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 prescribed for that drug.

4. 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. Between 20 January and 7 March 2000 at Manly in the State of New South Wales, being then an agent of the Crown, namely, a member of the New South Wales Police Service, did corruptly solicit from Vincent Caccamo payments of $1,000.00 per week as a reward for, or otherwise on account of, showing favour to Vincent Caccamo, in relation to the affairs or business of the agent’s principal, namely, the Crown.
6. On 12 July 2000 at Brookvale in the State of New South Wales, being then an agent of the Crown, namely, a member of the New South Wales Police Service, did corruptly receive from Vincent Caccamo the sum of $300.00 as a reward for, or otherwise on account of, showing favour to Vincent Caccamo, in relation to the affairs or business of the agent’s principal, namely, the Crown.

Counts 3 and 4 were charged in the alternative.

3 The respondent indicated that he wished to plead guilty to all matters brought against him by the Crown. However, he was advised by senior counsel that the facts asserted by the Crown did not, at law, amount to the offences of “supply heroin” that were the subject matter of counts 3 and 4.

4 A notice of motion was filed seeking as its principal relief a “determination by the Court that the evidence contained in the brief of evidence upon which the Accused was committed for trial… [did] not amount to either offence charged in counts 3 and 4 of the Indictment”.

5 The motion came on for hearing before Dunford J on 27 and 28 February 2003. It proceeded on the basis of a largely formal affidavit by the respondent’s solicitor and a document entitled “Chronology and Facts” which summarised the evidence which the Crown would be seeking to tender on the trial of counts 3 and 4. For the purposes of the motion both parties accepted the facts as set out in the latter document.

6 The motion did not constitute a demurrer or motion to quash the indictment. It was accepted that counts 3 and 4 charged known offences. The relief that was ultimately pressed was for an order that proceedings on counts 3 and 4 be permanently stayed on the basis that the proceedings were doomed to failure. In a reserved decision Dunford J made such an order together with a consequential order that the said counts be quashed (R v Jasper [2003] NSWSC 285). It is these orders that are challenged in this appeal by the Director of Public Prosecutions brought pursuant to ss5C and 5F of the Criminal Appeal Act 1912.

7 In the proceedings before Dunford J in February 2003 the respondent pleaded guilty to the other four counts in the indictment and the Court received evidence referable to sentencing. The respondent was remanded for sentence, bail refused. It is clear that there will be a substantial custodial sentence even if the indictment is confined to the four counts on which the respondent has pleaded guilty. Sentencing was however deferred to enable his Honour to consider the issues raised in the motion.

8 Counts 3 and 4 were charges in the alternative, each alleging that the respondent “did supply a prohibited drug, namely heroin”. Count 3 was brought under s25(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.

9 Count 4 was a charge under s25(1) of the Act not alleging that a commercial quantity was involved.

10 For the purposes of the motion no issue arises as to the quantity of the prohibited drug. What is at issue is whether the facts as agreed for the purposes of the motion are arguably capable of supporting the charges of “supply”. Section 3 of the Act relevantly provides that supply

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. (emphasis added)

11 Dunford J summarised the essential facts in the following terms:

9. …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.

12 The “Chronology and Facts” shows that the corrupt relationship originated on 20 January 2000 when Caccamo was arrested by the respondent and Patison. At that stage, the officers knew that Caccamo was a regular purchaser of heroin who employed a driver (Kinlay) and two street level suppliers (Price and Jeffries). Corrupt arrangements were made for the two police officers to assist Caccamo in obtaining bail. Caccamo was charged with the supply of a large commercial quantity of heroin relating to offences in 1999. He declined to be interviewed but successfully got bail.

13 Sometime later there was a meeting at Caccamo’s home attended by the respondent and Patison. According to the “Chronology and Facts” (correcting obvious errors):

… either David Patison or the accused (but in any event in each other’s company) said to Vincent Caccamo “we know you’re selling because we just saw you pull in with Anthony [Markarian, his driver at the time] and I’m sure you went to get on”. It was agreed that Vincent Caccamo could keep selling heroin but that he would have to pay the accused and David Patison $1,000 per week. The accused and David Patison agreed that any money Vincent Caccamo gave them would be divided equally between them. According to David Patison, Vincent Caccamo told him and the accused that he would take a few weeks to get started.

14 Thereafter between March and December 2000 there were at least 17 meetings between Caccamo and one or other of the corrupt police officers most of which were intercepted by electronic surveillance. Sums of money were regularly paid over. Caccamo was purchasing between 7 and 14 grams of heroin per day during the period. There was evidence capable of showing that the police officers knew that Caccamo’s capacity to continue paying them depended upon his capacity to continue dealing in heroin and that he was dealing regularly, using known “runners”.

15 During this time nothing was done by the officers to prevent the ongoing supply of heroin by Caccamo, let alone report the accumulating evidence of it to their superiors or anyone else in the Police Service. As indicated by Dunford J, the respondent also gave active assistance to Caccamo by telling him of information obtained from the police computer system relating to the details of his runner’s car and suggesting to him that he should change those details.

16 Dunford J held that the proceedings on counts 3 and 4 were doomed to failure because it was clear beyond argument that there was no evidence of the essential element of “supply”. The nub of his Honour’s reasoning was as follows:

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 City 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." ([Dunford J’s] 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 possession, 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 s249B 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".

17 His Honour proceeded to discuss the appropriate remedy in the circumstances. He held that this was not a proper case to consider by way of demurrer, because counts 3 and 4 clearly specified facts to justify convictions under s25(1) and (2) of the Act. Nor was it thought appropriate to quash the indictment in view of doubts as to whether such relief could be granted after committal for trial. These conclusions are not in issue in the present application.

18 Dunford J explained the order for the permanent stay and quashing of counts 3 and 4 that he was about to make by reference to the power to stay proceedings doomed to failure including cases where it was clear beyond argument that there was no evidence of an essential element in the offences charged. He cited Walton v Gardiner (1993) 177 CLR 378, Ridgeway v The Queen (1995) 184 CLR 19 and R v Smith [1995] 1 VR 10.

19 To stay proceedings permanently on the basis of abuse of process because the proceedings are incapable of success requires that it be shown that the proceedings “can be clearly seen to be foredoomed to fail” (Walton at 393 per Mason CJ, Deane J and Dawson J) or that they will “inevitably and manifestly fail” (at 411 per Brennan J with whom Toohey J agreed). This is a high threshold.

20 In my view, the material addressed in the motion did not rise to the level making it appropriate for this exceptional judicial power to be exercised. I wish to go no further than indicating, in general terms, why the trial on the counts to which the respondent was unwilling to plead guilty should not have been summarily aborted. This is not the proper context for a definitive appellate ruling on the issues raised.

21 First, I do not accept that there is no meaningful difference between “permitting” and “suffering” in the context of the definition of “supply” in s3 of the Act. At the very least, the contrary proposition is arguable and can be decided when and if the facts point up a critical distinction. The cases cited by his Honour in par [11] of his judgment are not directly in point, as his Honour recognises by the use of “cf”. Indeed some of them do not involve statutes in which “permit” and “suffer” are juxtaposed.

22 The very fact that each word is used in the present definition points against complete identity of meaning. As presently advised, I see nothing in the context to displace the reasoning in Sanewski where Kelly SPJ (at 378) and Shepherdson J (at 379-80) suggested that when the words are juxtaposed “suffer” carries a more passive connotation, meaning passively or implicitly allowing an act to take place as distinct from actively or expressly allowing it (ie “permitting” it). See also Barton v Reed [1932] Ch 362 at 375, Beaumont v St Kilda Borough [1975] 2 NZLR 369 at 370, R v Lonie [1999] NSWCCA 319 at [92]. This at least is an arguably correct interpretation, notwithstanding the contrary views in English cases dealing with the phrase “knowingly permits or suffers” (R v Thomas (1976) 63 Cr App R 65, R v Bett [1999] 1 WLR 2109).

23 This is not to say that the offence of supplying a prohibited drug would be established by mere proof of suspicion in one person that an act of “supply” (as defined) is or is about to be committed by another. A person does not suffer or permit conduct over which he or she has no control or of which he or she is ignorant. For a person to “permit” or “suffer” another to sell and distribute etc prohibited drugs requires more than awareness of the act in question. I agree with Shepherdson J in Sanewski who said (at 380):

… In ‘suffer’ there is an element of awareness of the act in question occurring as well as an element of failing to prevent the occurrence of the act by the person concerned. I would add that the element of prevention arises only if the person concerned does not exercise a power which he or she has or a right to stop the occurrence.

24 This last sentence leads to my second difficulty with the reasoning of the learned primary judge. Dunford J held that the respondent lacked the power to prevent in advance the commission by Caccamo of the offence of “supply”. His reason was that even a police officer with knowledge of a particular intended transaction would not have the power to prevent it by the arrest of the offender-to-be. His Honour correctly observed that the respondent was not empowered to arrest Caccamo on account of Caccamo’s intention to continue to deal in drugs.

25 In my view this took too narrow a view of the facts and the relationship between the corrupt police officer and Caccamo, at the very least arguably so. It is at the very least arguable that the respondent “suffered” Caccamo to supply heroin on one day when, knowing of Caccamo’s intent to do so, the respondent failed to take or initiate any action with a view to Caccamo’s arrest for having (to the officer’s knowledge) supplied heroin over the previous day or days. This is an example of the difficulties in determining these issues on assumed and summarised facts rather than descending into the detail of the transactions upon which the summary is obviously based. Nevertheless, the summary alone was in my view capable of supporting the conclusion that Caccamo was in the daily business of dealing over a period of many months, using a modus operandi known to the respondent. Well before the respondent was himself arrested, there was ample opportunity for Caccamo to be “taken out” through his arrest by or at the instigation of the respondent. By doing nothing, the respondent suffered and/or permitted Caccamo to continue dealing in order to source the stream of bribes.

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 (eg Thomas, Bett, Sanewski), although each of the cases cited contain a clear implication to that effect because being an owner or occupier who permits or suffers the crime to take place is part of the relevant offence.

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. Thus, in Rochford Rural Council v Port of London Authority [1914] 2 KB 916, the Port Authority was convicted of “suffering” sewage to flow into a creek. The sewage had escaped from a drain vested in the Authority. Darling J said (at 922):

Apart from decisions one would have said that if, without committing a legal wrong, a person is in a position to stop a thing, and does not stop it, he ‘suffers’ it. Thus, if a person is in a situation where he might, without committing any legal wrong, prevent a stream from flowing in a particular direction and he does not prevent it, he ‘suffers’ it to flow in that direction; but he cannot be said to ‘suffer’ it if he is not in a position either physically to prevent it or by law he ought not prevent it.

28 Later (at 924) his Lordship said:

If a man knowingly permits a thing to happen he certainly suffers it to happen. A man who suffers a thing to happen does not necessarily permit it, as he may not have the physical power or the right to stop it; but if he has that power or right, and does not stop it, he suffers the thing to happen.
See also Bond v Reynolds [1960] VR 601 at 602, Sanewski at 379, Elliott v Nanda (2001) 111 FCR 240 at 291-3 and the cases on knowledge discussed below. Other cases are cited by Dunford J at [12].

29 As a police officer, the respondent had power to preclude the ongoing supply of heroin by and through Caccamo. That power stemmed from the officer’s authority to arrest based on suspicion with reasonable cause as regards past offences (cf Crimes Act s352(2)(a)). Power was, arguably at least, also vested in the respondent by virtue of his capacity as a police officer to report what he knew to others in the Police Service who could and would themselves have responded appropriately to the clear pattern of ongoing criminality. The power to initiate close investigation by police which would have had the effect of impeding Caccamo’s ongoing activities is also relevant. In fact, the respondent exercised his authority as a police officer to guard Caccamo’s rear on the occasion where Caccamo was given a specific tip-off following the respondent’s access to the police computer systems (COPS).

30 The respondent submitted that the facts did not show that he had sufficient knowledge of past “supply” by Caccamo to justify arrest. I disagree. It seems to me that it was certainly arguable that the respondent was privy to a great deal of information about Caccamo’s ongoing activities that gave him reasonable cause to arrest him. He knew in general terms that Caccamo was continuing to deal in heroin. The clearest evidence was the arrangement itself which involved the officers knowing in advance that Caccamo would keep selling heroin and agreeing that he could continue doing so, subject to paying a toll of $1,000 per week. This agreement was itself an act of “permission” at the outset, and as evidence of its performance came to him week by week, the respondent (and the Police Service) was provided with evidence that Caccamo had been doing that which he had been initially permitted to do.

31 The above analysis makes it unnecessary to consider the correctness of his Honour’s reasoning (at [15]) that the test for “permit” and/or “suffer” required “knowledge in advance of any particular intended transactions”. Lest I be wrong in the views already expressed I would add that I respectfully disagree with his Honour on this point also. I certainly think the contrary to be arguable and, what is more, it is an argument that should take place in the context of facts proven in evidence and laid out in detail.

32 There are many statements in cases discussing the knowledge element implicit in the word “permits”. Thus, in Adelaide City Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481, Knox CJ said at 487 (emphasis added):

… indifference or omission is ‘permission’ within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done , (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby failed to prevent it. This statement of the legal position was not challenged in argument before this Court.

33 Knowledge is more than suspicion and, to that extent, the passage just quoted needs to be adjusted in a criminal context. But the reasoning remains authoritative as regards the object of the knowledge and the recognition that (for the law) the future can be “known”. Knowledge of something likely to be done in the future may suffice, at least if that knowledge rises to the level of “shutting one’s eyes to the obvious” (Souter at 407-8, Thomas at 69, Lyver v State of Victoria [1983] 2 VR 475 at 478, Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 at 446). This extends to the obvious in the future as well as the obvious in the (continuous) present.

34 Similarly, in Chappell v A Ross & Sons Pty Ltd [1969] VR 376 Winneke CJ and Smith J said (at 382, emphasis added):

We think that in accordance with the natural use of language it [“permitting”] involves not only a right or capacity on the part of the permittor to prevent the contravention, but also a state of mind amounting to consent to, or acquiescence in, the contravention. And consent or acquiescence must include an element of knowledge or foresight. Actual knowledge that the contravention is being or will be committed would plainly be sufficient. Likewise, we think a belief that a contravention is highly likely or probable would suffice. The weight of judicial authority, in our opinion, supports this view. For these reasons, ‘permission’, in our opinion, cannot be equated with a careless or negligent failure to prevent a contravention.

These remarks were supported by citation of authority and were made in the context of a crime of permitting another person to drive in a manner contrary to the Motor Car Act 1958 (Vic) .

35 The respondent submitted that what was “known” about the future dealings of Caccamo was not particular enough to bring home the likely commission of the offence of supply by Caccamo in the future. I disagree, for reasons similar to those set out at [30] above.

36 Finally the respondent submitted that other charges were available to reflect the criminality involved, including a charge of conspiracy. This proposition is irrelevant for a court that does not exercise the prosecuting role. It is therefore unnecessary to address the extent to which the proposition is also a debatable one.

37 I reiterate that the views expressed in this interlocutory appeal are intended to do no more than explain with such specificity as is necessary why I cannot accept that a trial on counts 3 and 4 was doomed to fail in light of the “Chronology and Facts”. According to counsel, this appeal raises a novel issue that is not squarely addressed in any decided case. This Court has not conducted any detailed researches on the point. The present appeal calls for prompt resolution so that the trial and/or sentencing of the respondent can be embarked upon without further delay.

38 It is unnecessary to address the Director’s separate challenge to the order quashing counts 3 and 4. It is submitted that his Honour erred in doing so because there was no formal defect apparent on the face of the indictment and because the respondent had been committed for trial (cf R v Jones (1974) 59 Cr App R 120 at 126). What is clear is that Dunford J made the quashing order on the basis that it flowed automatically in the circumstances from the permanent stay. It is unnecessary to consider his power to do so because if the stay is overturned, so too must the quashing.

39 I therefore propose that the appeal be upheld and that the orders made by Dunford J on 11 April 2003 be set aside.

40 DOWD J: I agree with Mason P.

41 ADAMS J: I agree with Mason P.

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Last Modified: 07/11/2003