Lam v The Queen - [2003] HCATrans 484

[2003] HCATrans 484

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S447 of 2002

B e t w e e n -
DUNCAN SAK CHEUNG LAM
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GLEESON CJ
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 NOVEMBER 2003, AT 2.08 PM

MR J.C. PAPAYANNI: If the Court pleases, I appear for the applicant. (instructed by Leary & Company)

MR G.E. SMITH: If the Court pleases, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ: Yes, Mr Papayanni.

MR PAPAYANNI: The question here really is that whether a jury, properly instructed, ought to have had a reasonable doubt about the evidence or, alternatively, whether the applicant lost a real chance of acquittal by reason of the directions and the admission of certain evidence.

Just briefly, his defence was that he gave evidence and raised character and he gave explanations, which we would say are reasonable, in relation to the telephone intercepts. It was shown that Kim, one of the conspirators, was a money lender at the casino and dealt in illegal gold transactions, and that the applicant himself was an owner of race horses and a gambler.

Also, a conversation on 1 February between Kim which supported his explanation in relation to a number of telephone intercepts, that he did not know that it was heroin that was being talked about, and that telephone intercept was that she was speaking – that Kim, one of the conspirators, was speaking to a person, Fatty, whom she had dealings with and whom it was alleged by the applicant that he was dealing in relation to antiques, or rare bowls in fact. That was that she said to him, “Also, yes, there is one thing more. If he ask you anything about my business you will just smile and that will be all right. Don’t say anything.” And Fatty said, “Anything, just smile.” And she said, “Yes, smile and talk about something else.” That supported his explanations that he gave at some length.

In order to understand this matter fully I will just go shortly to the indictment, which is set out on page 1 of the application book, and deals simply with the situation that there was an allegation that between 24 January and 9 February that there was a conspiracy to supply a large commercial quantity of heroin between, So, Kim and the applicant. The amount that was alleged was 15 kilograms. On pages 7 and 8, his Honour set out the three elements of that. They were the agreement, and he set out the agreement, the agreement was unlawful and “That the accused . . . participated in the agreement.”

This was a case where it was admitted that there was a conspiracy between Ngai and So, and the question really was only whether the applicant was a…

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 Lam v The Queen

Details

AGLC: Lam v The Queen [2003] HCATrans 484
Case: [2003] HCATrans 484
Decision Date

CaseChat Overview and Summary

The case of *Lam v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Lam, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court then granted special leave to appeal from the decision of the New South Wales Court of Criminal Appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the question was whether the judge's summing up had sufficiently explained to the jury that they were entitled to find provocation even if the deceased's conduct was not unlawful, and that the jury should consider the cumulative effect of the deceased's actions.

The High Court, comprising Gleeson CJ, Gummow and Heydon JJ, held that the trial judge's directions on provocation were inadequate. Their Honours reasoned that the jury had not been properly instructed on the objective elements of provocation, namely whether the conduct of the deceased was such as to cause an ordinary person to lose self-control, and the subjective element, whether the appellant did in fact lose self-control. The Court emphasised that provocation could arise from a series of acts or words, and that the jury should have been directed to consider the cumulative effect of the deceased's conduct. The legal principle applied was that a misdirection on a crucial element of a defence, such as provocation, could lead to a miscarriage of justice.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders