SUPREME COURT OF QUEENSLAND

1. THE COURT:  The appellant was tried on the following charges:

Count 1

(Section 8(d) Drugs Misuse Act 1986)

 That between the twenty-eighth day of September, 1997 and the twenty-ninth day of November, 1997 at Brisbane in the State of Queensland, BARRIE RANDALL VON SNARSKI unlawfully produced a dangerous drug namely, Methylamphetamine

And the quantity of the dangerous drug namely Methylamphetamine, exceeded 2.0 grams

ALTERNATIVELY

Count 2

(Section 11 Drugs Misuse Act 1986)

 That between the twenty-eighth day of September, 1997 and the twenty-ninth day of November, 1997 at Brisbane in the State of Queensland, BARRIE RANDALL VON SNARSKI being the occupier of a place namely unit 138 Admiralty Towers 2, 501 Queen Street, Brisbane did permit such place to be used for the commission of a crime defined in Part 2 of the Drugs Misuse Act, 1986

2. The jury acquitted him of the first count but convicted him of the alternative second count. This is his appeal against that conviction.

3. The appeal is confined to two grounds:

1. (A)
   The learned trial judge erred in his directions relating to the offence of "permitting premises";

2. (B)
   There has been a miscarriage of justice in that the verdict of the jury was against the weight of the evidence.

4. The task of this court then is to examine the challenged directions and to examine the evidence in order to determine whether it is unreasonable or cannot be supported having regard to the evidence under s 668E(1) of the Code. It is convenient to commence with a brief summary of the evidence.

5. On 28 November 1997, detectives with a search warrant went to Unit 138 in Admiralty Towers 2 at 501 Queen Street, which the warrant asserted was occupied by Matthew Fraser Amberville. Upon entering no one was found to be present, and a search commenced. Shortly thereafter the police were informed that two persons were coming up in the lift. The appellant was then observed to open the door of the unit and enter the premises. He was detained. His companion, Matthew Amberville (also known as Gilbert), took flight and escaped.

6. During questioning, the appellant informed police that he stayed at the unit when he came to Brisbane and that he had been staying there for the past three days. He added that "Sometimes I stay here when I'm in Brisbane". He said he did not really know who owned or leased the unit. His key, he said, had just been given to him by Amberville.

7. The unit contained three bedrooms. In a wardrobe in the first or main bedroom some items of the appellant's clothing were found, along with personal documents (his birth certificate and a postpack envelope addressed to him). In addition there was a bag on the floor containing his underwear. In the second bedroom there were items that belonged to Amberville. In the third bedroom there was a box containing a substantial quantity of methylamphetamines and extensive laboratory equipment and substances that had been used in the production of methylamphetamines.

8. In the kitchen there was a beaker in the kitchen refrigerator which contained partly produced methylamphetamines. The benches had not been wiped, and swabs were able to be taken from them. These indicated that methylamphetmine had been produced there. The refrigerator contained components at a stage of production which would require further combination in order to be converted into methylamphetamine. The inference was open that current production of that substance was ongoing at the time of the police visit. Such activities were extensive and exacting, and could not have been other than apparent to an occupant of the premises.

9. Also found in the kitchen was a note (Exhibit 44) which has been conveniently referred to as the "Hi Matt" note.

This note, which was in the appellant's handwriting, stated:

"Hi Matt

To bed at 4

The batch is in the fridge.  Hope you had a good night & that the prospect of working for Clough made your night.

Night mate.
Baz"

On the same page there was endorsed a reply, namely:

"Baz,       4.50 AM

Have never felt so honoured!!  At least he paid for his own meals!

Matt"

10. Other handwritten notes were found on paper described as a chemical document addressed from "M" to "B" and from "Matt" to "Baz". One of these stated:

"B,

Had to go back to meet P again to get the money.

Won't be long!

M"

The notes written by "B" or "Baz" were in the appellant's handwriting.  There can be no doubt that the "Matt" was Amberville and the "Baz" or "B" was the appellant. 

11. In the dining area, on the table, police found personal items of the appellant, a packet of pseudoephedrine and a recipe for production of amphetamines.

12. The appellant's briefcase, which he had with him, contained a wallet. In the wallet there were two keys, one of which was an electronic "swipe card" which allowed access to the building and lift. The other key was for the secure storage area in the basement of the building attached to Unit 138. In that storeroom police found items including a notebook with chemical notations, photocopies from chemical textbooks, chemical formulae and a sketch of apparatus. Some of these, notably Exhibits 50 and 58, were in the appellant's handwriting, and dealt with the process of producing hypophosphorus acid and phosphoric acid, which can be used in the production of methyamphetamine, and of manufacturing sodium hypophosphate. However those substances had not been used in the production that had occurred at Unit 138.

13. Evidence was given by Mr Norris and Ms Brady who were involved in the management of Admiralty Towers. They produced a lease showing the tenants to be "Matthew Fraser and Barry Snazky". Their address at the time of making of the lease was given as 1121 Cintra Road, Bowen Hills. One of the signatures appears to be "B Snazky", although formal proof was not tendered of the signature. The names of permitted occupants were stated to be "Mathew, Barry and Shamus". The tenancy was to commence on 29 September 1997 and to conclude on 29 March 1998 at a rental of $820 per week. Mr Norris said that these tenants had two carparks. One used a black Mercedes Sports and the other with a green Audi. The Mercedes was owned and used by the appellant. There was evidence that he had entered into a leasing arrangement in relation to that vehicle on 7 November 1997.

14. Evidence from Ms Durman was that she was at relevant times employed by Mr Amberville and the appellant in a property management and letting business in which no letting fee had ever been received and by which no tenant had ever successfully been placed. She was paid $400 per week in cash by either one of them. She confirmed that from time to time she "went around" with Amberville and the appellant. She had been with them on the occasion when they were looking at the apartment when Amberville and the appellant made the decision to take it. Up to that time the appellant and Amberville had been living together at "Cloudlands". During the ensuing period she said that the three of them would meet at the office at least once a day, but in cross-examination said, "Barry was away a fair bit. In Mackay".

15. There was evidence that the appellant had at least one trip to America. There was evidence of a departure from Australia on 21 August and of a return to Australia on 3 November 1997, but no direct evidence of his movements between those dates. However, the evidence concerning the appellant's involvement in inspecting the apartment and agreeing to take it goes against the suggestion that he was absent from Australia throughout the period 21 August to 3 November.  There was also evidence from Ms Ross that when the appellant took possession of the Mercedes vehicle on 7 November 1997, he informed her that he had to travel that night to Mackay.  There is no direct evidence of his presence in Brisbane between that date and 25 November 1997.  This date represents the start of the three day period immediately before the police search took place.  The appellant admitted to police he had been staying at the unit for these days – although he claimed to have been living in Mackay and to have only returned for these three days.

16. The appellant did not give or call any evidence in his defence.

Directions of the learned trial judge: ‘Occupation’ and ‘permitting’

17. His Honour rightly identified the case to the jury as one which was based upon circumstantial evidence.

18. It is not necessary to canvass the directions given on count 1 (production) at any length. On the alternative count ("permitting premises"), his Honour indicated that the Crown had to satisfy the jury: (1) that the appellant knew "what was going on" as regards the production of the methylamphetamines, and (2) that he acquiesced in it.

His Honour's directions included the following:

"One of the essential questions here is the knowledge of the accused, if he was helping or permitting and so on, he must have known about it going on.  Well, if you say, … there is a reasonable possibility he did not know what was going on, you would acquit him.  It is as simple as that."

19. His Honour repeated this message in clear and emphatic terms. His Honour further indicated that:

"The Crown have got to satisfy you not merely that he knew about it but that he acquiesced in it.  He went along with it."

20. The first objection taken by Mr Kimmins for the appellant is that his Honour's directions on the issue of occupation were inadequate. His Honour clearly told the jury that they needed to be satisfied that he was an occupier and referred to the evidence that the appellant was one of the two tenants, that he had access and that he had keys. The issue as to whether or not he was the occupier was dealt with in part in summing-up on the question of whether he had lied when he denied that it was his unit and said that he did not really know who owned or leased it. His Honour referred to the evidence capable of showing that he was one of the two lessees, that he was sleeping there, that he had his personal papers there, his birth certificate, clothes and many other items consistent with occupation. On the footing that the two men had leased the unit, his Honour referred to the control had by lessees and directed, "There might have been a joint control: one had the same right as the other as a matter of law". His Honour continued, "For the accused it is said, well, whatever the legal position might be, you could not have control if you were not there and it is clear from some of the material that the accused was not there all the time." His Honour directed that the fact that they leased was only one circumstance on the issue of control.

21. On the question of occupation Mr Kimmins referred to Thow v Campbell^[1] and R v Smythe.^[2]  The evidence in the present case is capable of satisfying the requirement that the appellant was in a position to exercise some control of the relevant unit at material times.  None of his Honour's directions are inconsistent with the views expressed in those cases.   Mr Kimmins' submission however was that although there is no positive error in his Honour's directions on this point, they did not go far enough.  In the absence of any request by defence counsel that further directions be given, this point is not promising.  The only additional direction which Mr Kimmins now suggests should have been given is that the jury should have been told that the mere fact that his items were found on the premises was not enough by itself to prove occupation; and similarly that the mere signing of the lease was not by itself enough to prove occupation.  These are argumentative extrapolations which a trial judge is not obliged to give unless of course the peculiar circumstances of a case reveal a risk that the jury might act on such a premise.  The directions actually given were implicitly inconsistent with such a premise, and in the absence of a request by defence counsel accompanied by good reasons why such directions should be given, there was no error in his Honour failing to make such statements to the jury.

22. The next point taken by Mr Kimmins concerns the summing-up on the element of "permitting". In addition to the directions earlier set out his Honour directed -

"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."

23. We have some difficulty in comprehending the precise criticism that is made of his Honour's directions on these matters. Reference was made to a number of cases in which the word "permit" has been judicially discussed, including Adelaide Corporation v Australasian Performing Right Association Ltd,^[3] Broad v Parish,^[4] R v Sanewski,^[5] Shell Harbour Golf Club v Wheeler^[6] and R v Lonie and Groom.^[7]  We can find nothing in those decisions which renders inappropriate any of the above directions. 

24. Once again Mr Kimmins' complaint is not of positive error but of failure by the learned trial judge to go further than he did. On this occasion defence counsel below did request a re-direction to the effect that, "Mere 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. It is a question of fact in which degree and circumstance may affect the conclusion. This is confirmed by the following passage in the judgment of Gavan Duffy and Starke JJ in Adelaide Corporation v Australasian Performing Right Association Ltd:^[8]

"Mere inactivity or failure to take some steps to prevent the performance of the work does not necessarily establish permission.  Inactivity or 'indifference, exhibited by acts of commission or omission, may reach a degree from which an authorisation or permission may be inferred.  It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorised the performance or permitted the use of a place of entertainment for the performance complained of' "^[9]

To similar effect is the statement of Knox CJ in the same case:

"… 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."^[10]

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.

26. Particular reference was made to Lonie and Groom and to observations that are pertinent when a co-occupier is not in an effective position to prevent the other occupier from storing a prohibited substance within the premises.  Mr Kimmins submitted that the present case is "identical" with Lonie and Groom and that his Honour's directions were erroneous in not replicating the observations that were made in that case.  This submission should be rejected.  The charge in that case was that Ms Groom suffered or permitted her co-accused to have a drug in the house for the purpose of supply.  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 methyamphetmine production was in the fridge.

27. We can find no error in the summing up.

Whether verdict unreasonable

28. Further, we consider that the Crown presented an adequate circumstantial case. Mr Kimmins' principal submissions were that the evidence failed to prove adequate opportunity for the appellant to have been present in the unit at material times and that the evidence was inadequate to justify the inference that he knew what was going on. However the available evidence, uncontradicted by any evidence from the defence included the appellant's capacity as joint lessee, adequate evidence of occupation at a relevant time, the finding of a significant quantity of drugs, evidence of extensive activity associated with methyamphetamine, manufacture of which no occupant could reasonably be unaware, the "Hi Matt" note, other incriminating material in the appellant's handwriting, and other materials at least capable of suggesting knowledge and involvement and interest in the methylamphetamine manufacturing enterprise.

29. There is no substance in the complaint that the verdict of the jury is against the weight of the evidence or unreasonable.

30. The appeal should be dismissed.