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R v Jasper

R v Jasper

Case [2003] NSWCCA 186 8 July 2003

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jasper

Details

AGLC: R v Jasper [2003] NSWCCA 186
Case: [2003] NSWCCA 186
Decision Date: 8 July 2003

CaseChat Overview and Summary

The appellant was convicted by the Supreme Court of Victoria of offences under the Drug Misuse and Trafficking Act 1985, specifically for being involved in the supply of drugs. The Director of Public Prosecutions has appealed the decision on the basis that the trial judge erred in his interpretation of the statutory term "supply." The High Court of Australia was tasked with determining whether the corrupt police officer's actions in permitting and suffering another to supply drugs constituted a "supply" under the Act.

The primary legal issue was the interpretation of the term "supply" in the context of the Drug Misuse and Trafficking Act 1985. The appellant argued that his actions did not constitute "supply" as he was not directly involved in the transaction of drugs. The DPP contended that the appellant's actions, in allowing and facilitating the supply of drugs in return for bribes, amounted to "supply." The court had to decide whether the statutory term "supply" could encompass indirect involvement in the drug trade, such as through corruption or facilitation.

The court held that the term "supply" was not limited to direct involvement in the transaction of drugs but could also include indirect involvement, such as permitting or suffering another to supply. The court reasoned that the statutory purpose of the Act was to combat drug trafficking and misuse, and a broad interpretation of "supply" was necessary to effectively address this issue. The court found that the corrupt police officer's actions in allowing and facilitating the supply of drugs, in return for bribes, constituted "supply" under the Act. Consequently, the appeal was upheld, and the conviction was reinstated.

The court ordered that the conviction be reinstated, and the appellant be subject to the penalties prescribed by the Drug Misuse and Trafficking Act 1985. The court emphasised the importance of a broad interpretation of the term "supply" to effectively combat drug trafficking and misuse, and the need to hold accountable those who indirectly facilitate the supply of drugs, including corrupt law enforcement officers.

Orders