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

Copyright in the High Court of Australia

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 participant.  In that case it was essential, in my submission, that it was made clear to the jury that these conversations were in relation to heroin, and that was beyond reasonable doubt, and also that his knowledge of heroin in relation to his participation in the agreement.  Now, on page 9 the amount that was set out there was the amount of 15 kilos of heroin and on page 10 his Honour talked about participation in relation to that.  Then, on page 13, his Honour there referred to the fact that in relation to the existence of the agreement and the matters that are relied upon in relation to that.  Then, on page 14 – I will not deal with all of the matters:

(3)  The Crown next relies on the possession by the accused Ngai and So of keys –

and in this case, of course, the question of possession of the keys by the accused was one of the important factors, but the important factor also was in (5) on the same page.  He said:

(5)  The Crown refers to the possession by Ngai and So together with the accused of the heroin located in the motor car SYX-642 on 8 February 1999.

This was at a place at North Strathfield.  There was no direction at all by the judge in relation to the question of possession by the accused, joint possession or otherwise, in relation to this 14 kilos that were in the car in the garage at North Strathfield.

HEYDON J:   This is not complained of in your summary of argument.

MR PAPAYANNI:   No, a lot of these matters were not complained of, but what I am ‑ ‑ ‑

HEYDON J:   Not complained of by you, in this Court, in your summary of argument.

MR PAPAYANNI:   No.

HEYDON J:   You complain about directions in relation to the possession of keys, not the possession of heroin in a motor car.

MR PAPAYANNI:   No, but that is in connection with the fact of the keys.  You see the argument in relation to keys is substantially that his Honour gave a direction, which we say is not sufficient in any case, and in which there are a number of alternate explanations in relation to keys that were found in a shoebox on a shelf near the bed in the Mount Street flat which had been rented for him in relation to his liaison with Kim and that she had been seen on a number of occasions.

Now, one of the matters that he dealt with in relation to this is that his Honour directed, to some extent in relation to possession – not adequately, in my submission ‑ but there was nothing – even if they had possession of the keys, his Honour directed at no time that there was knowledge in relation to the keys, that they were the keys of the place at Tenterfield Street, North Strathfield, and knowledge that there was heroin there.  The only matter that was of any concern and any directions in relation to this matter was in relation to the keys at the Mount Street address.  His Honour went on in relation to participation on page 15 and his Honour there referred to association and so on, and then:

The fourth matter the Crown raises is Lam’s possession of keys that gave him access, together with Ngai and So, to the drugs stored in the car registered number NSZ-972 situated at 2 Tenterfield Street, North Strathfield, and that is denied by the accused.

This was only in relation to participation and this was the vital matter in this case.  In that respect, his Honour then went on to say that there had been agreement on one hand, participation, et cetera, and so on, and then on page 16 he referred to the question of the matters that are in relation to the participation by the accused, but no mention of heroin.  His Honour there also refers to the telephone conversations and so on. 

On page 29 his Honour then went on to the question of possession in relation to the keys and also the $30,000.  One of those keys was to So’s car and the other eight keys were to the car at North Strathfield as well as different doors in relation to North Strathfield and so on, but one of them was to the key by So.  Also, in relation to the shoebox, there was found a piece of paper with So’s fingerprint on it.  His Honour’s direction in relation to that – his Honour directed that it had to be in the exclusive possession of the accused as a matter that went to his participation.  Of course, this was something that had been found in a search after the conspiracy had terminated by the arrest of the applicant and So and Ngai.  In my submission, that had to be by way of only evidence in respect of the keys against the applicant and not anyone else.

His Honour also directed in relation to possession, on page 30, as to joint possession.  Joint possession, there was no evidence put forward by his Honour in relation to joint possession and, of course, it is a matter of law that joint possession cannot be presumed and there must be evidence to support it.  Now, it was suggested by the Crown that this was not an important matter and that the conspiracy could have been found otherwise and it was not essential as to whether the keys were in his possession or not.  But what was suggested by the keys being in his possession was that he had access to the 14 kilos of heroin at North Strathfield and that he knew of that, even though there was no direction to that effect.

Here, of course, it was put by the judge that it had to be proved beyond reasonable doubt.  One of the primary matters in any circumstantial case, of course, is something that has to be proved beyond reasonable doubt.  To suggest that it was unimportant was, in my submission, quite an understatement.  We have the situation here that what his Honour said in relation to that – his Honour said on page 30, line 14:

The essence of the concept of possession in law is that, at the relevant time, you intentionally have control over the object in question.  You may have this control alone or jointly with some other person or persons.  You and those persons, if any, must have the right to exclude other persons from it.

In relation to the keys, his Honour then went on later in the page to say there was exclusive possession by the accused and no one else.  His Honour said:

If these conditions are fulfilled, then you may be said to have possession of that object, whether it is your own sole possession or whether it is in joint possession with someone else.

That could have applied to the heroin which was at North Strathfield, the same situation in relation to that, and yet there was no evidence of any knowledge or nothing put to the jury in relation to the heroin.  His Honour went on to say:

You can possess something jointly with one or more other persons.

Then his Honour went on to say it had to be:

proved beyond reasonable doubt that the accused and only the accused was in possession –

of it.  Then his Honour, on page 31, said that:

The Crown submits you would find beyond reasonable doubt that the accused did have possession of the thirty thousand dollars in the washing machine –

and the same argument I am putting applies to the $30,000 as it does to the eight keys.  What was relied upon there is, in the first place, that:

he was in charge of the premises and was the principal occupier.  He submitted Kim was the accused’s guest and he said she stopped coming because she was too pregnant –

that was on 24 January –

if one can express it that way.  He said Peter So went to the premises, but apparently not continuously, to meet a woman Sandy was it, Candy, Sandy I think her name was.  As to Mr Cheung, the Crown says he was not there very much.  He submitted in those circumstances you would find the accused had possession of those items.

On that, how could anyone find that he had possession of those items on that alone?  There was no evidence of any knowledge.  Certainly, he was the occupier of the premises, but one of the matters that his Honour did not put was that it was essential in this case, being the occupier, and even though other persons had been there, that they put the question that it had to be proved beyond reasonable doubt there was an intention to have possession.  That was the same as Moors v Burke.  In that case it was accepted that that had to be put.  Then he put the argument by the defence as to a fact of knowledge and:

that Kim had visited the flat up to 27 January 1999 and there was lady’s clothing in the flat –

and so on.  He also referred to the access by So and, of course, if anything, the evidence supported the fact that So had possession of these keys and without knowledge, of which there was nothing to show that the accused had any knowledge – in fact from 24 January to 2 February he had been in Melbourne.  His Honour then went on to say:

Whether you find the accused was in possession of these items or not, and the use to which you can make of it, of course, is for you to decide in accordance with the directions that I have given you.

His Honour made no directions at all really in relation to that.  The situation was, in my submission, that the jury had to find beyond reasonable doubt, not only knowledge of the keys, but an intention to possess in accordance with that, and also that those keys related to the premises at North Strathfield, of which there was no evidence, and that in the premises at North Strathfield there was 14 kilos of heroin. 

Now, there are many explanations whereby a person may even have knowledge that something is in his house.  A simple instance is, of course, where you have two sets of keys to a car and you may leave one at home and then you drive it away yourself.  You are in possession of the car, but

you can hardly say that anybody else in the house at that time was also in possession of the car.

So you have a situation here where there are many explanations in relation to it and it was obvious that Kim, who had no – there was no evidence that Kim had any keys.  There was some evidence that Ngai was found with keys to the North Strathfield place and it was said also that So had keys, but there was no evidence to show that Kim had any keys and she was a regular visitor at the flat.  It could have been – and it was beside the bed – it could have been either Kim or Sandy.

In relation to the 30,000, there was evidence that that was found in some clothing in the laundry, in the washing machine.  Of course, the applicant was cross‑examined as to the fact that he had on 14 December, a long time before, helped Kim put out some washing.  Obviously, there was no further evidence in relation to that and there was no evidence as to whether the clothing in the washing machine under which 30,000 was hidden was in fact that of a female or not and there was no evidence in relation to the shoebox as to whether that was owned by the accused or not or whether it had been brought by Kim or Sandy or someone else to the place.  Being beside the bed, it could be suggested that it had been put there possibly by Kim in relation to it.

The situation in relation to that of course was that the Court of Criminal Appeal held that there could have been joint possession in relation to it.  They dealt with that position in relation to it at page 71, at page 67, and they put it on the basis that it was too favourable to the accused, the fact that the evidence was given in relation to and could have been – it was more favourable to the appellant by reason of the fact that he had to have exclusive possession of it.

GLEESON CJ:   Thank you, Mr Papayanni.  We do not need to hear you, Mr Smith.

In this matter the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is refused.

AT 2.29 PM THE MATTER WAS CONCLUDED