Reported Decision: 170 A Crim R 533 New South Wales Court of Criminal Appeal CITATION: R v Sheen [2007] NSWCCA 45 HEARING DATE(S): 22/2/07 JUDGMENT DATE: 16 March 2007 JUDGMENT OF: Sully J at 1; Bell J at 2; Hoeben J at 34 DECISION: 1. Grant leave to rely on grounds 1 and 2; 2. Allow the appeal and quash the conviction and sentence; 2. Direct a new trial on count 2; 3. Dismiss the Crown appeal. CATCHWORDS: Criminal trial: Directions - "suffering or permitting" premises to be used for the manufacture of prohibited drugs Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 R v Jasper [2003] NSWCCA 186; 139 A Crim R 329 CASES CITED: R v Lonie & Groom [1999] NSWCCA 319 R v Sanewski [1987] 1 Qd R 374 PARTIES: Alysha Sheen (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2006/2072 (Crown Appeal); 2007/0070 (Conviction Appeal) COUNSEL: W Dawe QC (Crown) S Walsh (Applicant/Respondent) SOLICITORS: S Kavanagh J A Glynn (Applicant/Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0306 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ IN THE COURT OF CRIMINAL APPEAL 2007/0070 (Conviction Appeal) 2006/2072 (Crown Appeal) SULLY J BELL J HOEBEN J Friday 16 March 2007 Regina v Alysha Sheen Judgment 1 SULLY J: I agree with Bell J. 2 BELL J: On 17 August 2006 Alysha Sheen was convicted at trial of the offence of knowingly take part in the manufacture of a prohibited drug (methylamphetamine) in an amount not less than the commercial quantity. She was sentenced in the District Court at Tamworth on 24 August 2006 to a non-parole period of 18 months' imprisonment with a balance of term of six months. This sentence was wholly suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on condition she enter into a bond to be of good behaviour for two years. 3 Alysha Sheen appeals against conviction. The Crown appeals against sentence, asserting its manifest inadequacy. The two appeals were heard together. In view of the order I propose on the conviction appeal, it is not necessary to deal with the Crown appeal. The facts 4 The facts on which the Crown relied at trial can be summarised as follows. The appellant and her defacto partner, Todd Tochel, were the joint lessees of premises located at 88 Phillip Street, Carroll. They had been residing at the premises for 12 months at the date of these events. Just before 2.00 am on 1 October 2003 the police executed a search warrant on the premises. At the time the police entered the house the appellant, Todd Tochel and a man named Simon Daher were awake and seated in the lounge room. There was an acrid chemical smell inside the house. In the master bedroom liquid (later analysed and found to be methylamphetamine) was heating in a five-litre reaction flask. Other glassware and chemicals associated with the manufacture of methylamphetamine were found in the bedroom. The appellant's two young children were asleep in two other bedrooms in the house. 5 The police commenced surveillance of the premises late on 30 September. Two cars containing at least four persons were observed arriving at the premises at around 10.00 pm. A woman (who it was open to find was the appellant) came out of the house and appeared to greet the occupants of the cars. There was considerable activity involving persons moving between the premises and adjacent premises at 82 Phillip Street. Two men carried boxes from a shed into the house. Another box was carried into the house from the car in which Simon Daher had arrived at the premises. 6 A police officer spoke with the appellant shortly after the execution of the search warrant. The appellant told the police that she had been living in the premises for about 12 months. She said that Simon Daher had arrived the previous day, and that she had been busy with the children and was not able to say at what time he arrived. She said that she was asleep in the lounge room at the time the police arrived. She denied knowledge of the drug laboratory and said that she was not responsible for it. She said that she had not smelled the chemicals. 7 Todd Tochel gave evidence in the Crown case. He had earlier pleaded guilty to the offence of manufacturing not less than the commercial quantity of methylamphetamine arising out of these events. Simon Daher had also pleaded guilty to the same offence. Mr Tochel said that he and the appellant were the joint lessees of the premises. He said that the drug manufacture had commenced about one hour prior to the arrival of the police. 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. The trial 8 The appellant was arraigned on an indictment that charged her in count 1 that between 29 September and 2 October 2003 at Carroll she had manufactured a prohibited drug (methylamphetamine) in an amount not less than the commercial quantity for that drug and, in the alternative, that between the same dates and at the same place she did knowingly take part in the manufacture of a prohibited drug (methylamphetamine) in an amount not less than the commercial quantity for that drug. Each count is an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985. 9 At the close of the Crown case the Judge directed a verdict of acquittal in respect of the first count. 10 The Crown case in support of the second count was that the appellant had knowingly taken part in the manufacture of the drug in that she had suffered or permitted a step in the manufacturing process to be taken in premises of which she was the lessee/occupier. 11 Section 6 of the Drug Misuse and Trafficking Act (the "DMTA") provides: 6. For the purposes of this Act and the regulations, a person takes part in the … manufacture … of a prohibited drug if: (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that … manufacture … … (c) the person … suffers or permits any such step in that process to be taken in premises of which the person is … lessee or occupier … . 12 The focus at trial was on the Crown's ability to prove the appellant's awareness of the manufacturing process. There was an issue concerning whether the appellant was awake at the time the police executed the warrant and whether any person present in the house would have been conscious of the acrid chemical smell. 13 The Judge summed up to the jury directing them with respect to the elements of the offence as follows: The element of knowingly take part in the manufacture of a prohibited drug has some further definition. At law a person takes part in the manufacture of a prohibited drug by doing one or more of three things. The first is that the person takes part, or participates in any step, or causes any step to be taken in the process of that manufacture. The second way that a person can take part in the manufacture of a prohibited drug is not really relevant in this trial, but I will tell you that it is a person who provides or arranges finance for any such step in the process of manufacture. The third way in which a person can take part in the manufacture of a prohibited drug is if the person provides the premises in which any step in the process of manufacture is taken, or suffers or permits any step in that process to be taken in the premises of which the person is the owner, lessee, or occupier. The Crown must prove also that the accused did that knowingly, that is allowed her premises to be used for the manufacture of a prohibited drug knowing that the process involved the manufacture of a prohibited drug. Knowledge alone is not enough, there have to be the two elements proved by the Crown, that is the taking part in the way that is alleged, by allowing the premises to be used for the manufacturing process, and doing so knowingly. And it has to be the knowledge of Miss Sheen which is proved beyond reasonable doubt, not the knowledge of some hypothetical person in her circumstances. It must be her knowledge that you must be satisfied of (SU 4-5). 14 The Judge summarised the way the parties put their respective cases in the following way: The Crown asks you on the basis of the evidence it has produced here to find that Miss Sheen was knowingly taking part in the manufacture of the methylamphetamine in that she was allowing the manufacturing process to be conducted in premises in which she was living and she knew that what was being manufactured was a prohibited drug and the Crown asks you to conclude that on the basis of the location of the lab in the bedroom, what he says is Miss Sheen's close proximity to it in the lounge room, that she was awake at the time, and the chemical smell in and outside the house. On behalf of the accused it is submitted to you that Mr Tochel has taken responsibility for the manufacture of the drug with Mr Daher and that Miss Sheen was not a participant and was not aware and that there are a number of factors in the evidence which would support that, they being that the glassware and other materials were brought into the house in closed boxes when Mr Daher arrived. Mr Tochel's evidence that he could not smell the fumes in the lounge room, Mr Tochel's evidence that Miss Sheen was asleep in the lounge room and Miss Sheen's denials of knowledge, or taking part in the manufacture, in her conversation with Detective Gregory (SU 12-13). 15 The summing up reflected the way in which the issues had been developed by the parties. There was no application for any redirection by counsel who appeared on the appellant's behalf at trial. 16 The appellant seeks leave to rely on the following three grounds of appeal: 1. Her Honour erred in her summing up by not assisting the jury as to what is meant by the words "suffered or permitted" the manufacturing process to have occurred. 2. Her Honour erred in not instructing the jury that to merely be aware an activity is occurring does not in itself constitute "suffering" or "permitting" any step of the manufacturing process to have occurred as there is also a required element of failing to exercise a power or right to prevent it. 3. Her Honour erred in not instructing the jury that if they found as a fact that the applicant could not have done anything to prevent the manufacturing process from occurring that she should be found not guilty. 17 Ground 2 is a refinement of the complaint made in ground 1 and it is convenient to deal with these two grounds together. Counsel submitted that it was necessary to show that the appellant had some right or capacity to prevent the activity in order to establish that she suffered or permitted a step in the process of manufacture of the drug to take place in the premises of which she was the occupier/lessee. Counsel relied on the decisions of this Court in R v Lonie & Groom [1999] NSWCCA 319 and R v Jasper [2003] NSWCCA 186; 139 A Crim R 329 in support of this contention. 18 Before turning to these cases it is useful to refer to the decision of the Queensland Court of Criminal Appeal in R v Sanewski [1987] 1 Qd R 374. In that case the Court considered the meaning of suffering premises to be used for the smoking of a dangerous drug contrary to s 130(2)(e) of the Health Act 1937-1984 (Qld). Kelly SPJ (with whose judgment Matthews J agreed) concluded, after a review of a number of English, New Zealand and South Australian authorities (at 378): 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 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. Shepherdson J observed (at 379-380): I agree with Kelly SPJ that in s 130(2)(e) of the Health Act "suffer" is 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. If a person actively or expressly allows the act to occur he permits it. However, with respect I have difficulty in agreeing that "suffer" imports knowingly allowing something to happen which the person concerned could have prevented. In my opinion, the use of the phrase "knowingly allow" takes the matter too close to "permit" and tends to obliterate the distinction between "permit" and "suffer". I agree that 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 the element of prevention only arises if the person does not exercise a power which he or she has or a right to stop the occurrence. 19 In Jasper this Court dealt with an appeal by the Crown under s 5F of the Criminal Appeal Act 1912 against a decision to permanently stay counts in an indictment on the ground that their prosecution was foredoomed to fail. It was the Crown case that the respondent, a corrupt policeman, suffered or permitted another to supply drugs by allowing that other, a drug supplier, to continue to deal in drugs in return for the payment of bribe monies. The primary judge held that the respondent did not have the power to prevent in advance any given offence. In granting the stay the primary judge expressed the opinion that, in the context of s 6 of the DMTA, no meaningful distinction was to be drawn between suffering and permitting. Mason P (with whose judgment the other members of the court concurred) held that the primary judge had taken too narrow a view of the concept of suffering for the purposes of the DMTA. His Honour considered the use of both words to point against complete identity of meaning. He favoured the reasoning of Kelly SPJ and Sheperdson J in R v Sanewski, that suffers, when juxtaposed with permits, carries a more passive connotation. His Honour said (at [23]): 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 an 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 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 to stop the occurrence. His Honour commented that several of the cases point to the need to show that the offender had the power or capacity to stop another's known misconduct and, in this context, to observe that occupation of premises can establish that right or power (at [26]). His Honour went on to observe (at [27]): The critical point is the legal capacity to control a situation and the failure to do so with the requisite state of mind. 20 The Crown did not submit on the hearing of the appeal that proof of some power or capacity to prevent the manufacture was not required. In the Crown Prosecutor's submission the Judge's directions to the jury made this much clear. Her Honour instructed the jury that mere knowledge of the manufacturing process was insufficient and that it was necessary for the Crown to prove that the appellant allowed her premises to be used for the purpose of manufacture of the drug. In the Crown's submission the verb to allow is readily understood. It was submitted that the jury would have taken from the directions that the Crown had to prove that the appellant had some right or capacity to prevent the manufacture of the drugs and that she had chosen not to exercise it. 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. Todd Tochel 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 Tochel from inviting Daher onto the premises or to prevent the two of them from manufacturing drugs inside the premises. 22 In Lonie & Groom a quantity of cannabis was found in premises at Somersby leased by Groom who was living in a de facto relationship with Lonie and sharing the house with her. Smart AJ (with whose judgment the other members of the Court concurred) said this: [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. Groom has not been charged for her failure to report Lonie's offence (or offences) to the police. The evidence does not disclose whether Lonie brought the cannabis on to the premises and she became aware of it later and was presented with a fait accompli. Nor does the evidence disclose whether the cannabis was brought on to the premises at the one time or gradually over an extended period or on a number of days. [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. 23 In the Crown's submission the fact that the manufacture was taking place in the bedroom was significant. This was a circumstance that was said to be capable of supporting the inference that the appellant suffered or permitted the manufacture to continue because she might be expected to have control over the use of the matrimonial bedroom. The Crown Prosecutor contended that the absence of any request for further directions suggested that in the atmosphere of the trial no further direction was needed. 24 Before dealing with the latter submission I shall refer in more detail to the way the parties identified the issues at trial. The Crown Prosecutor opened his case telling the jury that "the accused either manufactured with the other two or knowingly took part in the manufacture, that is by allowing the premises in which she had an interest to be used for that purpose knowing it was going on (T 14/08/06 7.33-41)". The Crown Prosecutor did not identify the facts and circumstances from which the inference of the appellant's power or capacity to prevent Tochel making use of the premises, which they jointly leased, to manufacture drugs was to be drawn. 25 In his closing address the Crown Prosecutor placed emphasis on the unlikelihood that the appellant did not know of the manufacturing process. He put it this way: Now as I said to you the other day, the meaning of taking part in includes a person that provides a premises in which any such step in that process is taken, or suffers or permits any step in that process to be taken in premises at which that person is the owner, lessee or occupier or in the management at which the person participates. Now, the clear and unequivocal evidence here is that this accused, Alysha Sheen is an occupier of those premises and I'd suggest to you straight up, it's an affront to common sense to say that she didn't know what was going on. It's an affront to common sense to say that she would try to do something about it because what she says to Detective Gregory on the night is, "I didn't know there was a drug laboratory going in there". Despite the fact that the police have their breathing apparatus on, there's a very, very strong smell (T 17/08/06 12.16-26) … What I'd say to you is that it just defies common sense that Alysha Sheen didn't know what was going on. Put yourself in the position, a number of you are probably married, or have partners, somebody turns up 10.00 o'clock at night, carries stuff into the house and says, "Oh sorry, you can't sleep in the bedroom tonight, something's going to happen in there". You wouldn't say anything about that, wouldn't ask "what's going on? Why is it happening? What are you going to do about it?" now that's what the defence ask you to believe, that she didn't know anything about what was happening. Her house, her bedroom do nothing. As I said it justifies (sic) (just defies), common sense. She clearly knew what was happening. She clearly knew what was happening was being done for a reason late at night, in a semi-rural setting and she clearly knew it was happening on (sic) (in) her house in her bedroom. 26 Defence counsel's closing address was focussed wholly on the question of proof of the appellant's knowledge of the manufacture. Counsel concluded by saying this: Ladies and gentlemen of the jury, there is nothing but doubt in relation to this charge against Alysha. You will see that the circumstances of the case indicate that she had no knowledge of it. It's the prosecution that must prove that she had knowledge of what was going on in the premises. Ladies and gentlemen of the jury, there is no evidence to convict this person. You should bring back a verdict of "not guilty". Thank you. (T 17/08/06 19.41-48). 27 It seems to me to be an inescapable conclusion that defence counsel did not seek any further direction concerning the element of suffering or permitting for the purposes of s 6 of the DMTA because he did not turn his mind to it; the trial was conducted by both parties on the basis that knowledge was the sole issue. 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. 29 The premises were a semi-rural property at which the appellant was living with Tochel and their two infant children. There was no evidence that any step in the manufacture began until after 10.00pm on 30 September. The police executed the search warrant at around 1.50am the following morning. The case against the appellant was circumstantial. No attention was given to the question of what, if any, evidence was capable of excluding the reasonable possibility that the appellant did not have the power or capacity to prevent the manufacture of the drugs over this period of a few hours in the middle of the night. 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 Todd Tochel (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. 31 The appellant requires leave to rely on each of her grounds of appeal under r 4 of the Criminal Appeal Rules. In my opinion the omission to direct the jury that suffering or permitting required proof that the appellant possessed the power or capacity to prevent the manufacture and that knowing it was taking place she failed to do so has occasioned a miscarriage of justice and for that reason I would grant leave to rely on grounds 1 and 2. In the circumstances it is not necessary to deal with ground 3, although, had such a direction been sought, in my opinion, it should have been given. 32 None of the grounds of appeal raised the sufficiency of the evidence to support the appellant's conviction. The Court was thus not called upon to consider the evidence in order to determine whether it would have been open to a properly instructed jury to convict the appellant. In these circumstances I would allow the appeal but order a new trial. 33 For these reasons the orders that I propose are: 1. Grant leave to rely on grounds 1 and 2; 2. Allow the appeal and quash the conviction and sentence; 2. Direct a new trial on count 2; 3. Dismiss the Crown appeal. 34 HOEBEN J: I agree with Bell J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.