Lam v The Queen - [2000] WASCA 115

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: LAM -v- THE QUEEN [2000] WASCA 115

CORAM: KENNEDY J
IPP J
MURRAY J

HEARD: 15 DECEMBER 1999

DELIVERED : 4 MAY 2000

FILE NO/S: FUL 149 of 1997

BETWEEN: ANDREW LAM
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Money seized from courier - Charge of conspiracy to possess heroin with intent to sell or supply - Acquittal by direction - Jurisdiction of court of trial to order forfeiture of money to Crown - Evidence required - Statutory power discussed.

Legislation:

Misuse of Drugs Act 1981 (WA) s 28(3)

Result:

Appeal allowed
Order for forfeiture quashed
Matter remitted for rehearing.

Representation:

Counsel:

Appellant: Mr L M Levy
Respondent: Mr D Dempster

Solicitors:

Appellant: Pryles & Defteros
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
R v De Courtenay (1984) 15 A Crim R 263
R v Lam, unreported; CCA SCt of WA; Library No 980083; 27 February 1998
Scott v Gere [1988] WAR 377

Case(s) also cited:

Byrne v Godfree (1997) 96 A Crim R 197
McDermott v The King (1948) 76 CLR 501
R v Lee (1950) 82 CLR 133
R v Storey (1978) 140 CLR 364

KENNEDY & IPP JJ: We have had the benefit of reading in draft form the reasons to be published by Murray J. The relevant facts and circumstances concerning this appeal are set out in his Honour's reasons. Accordingly, we shall refer only to those facts that are relevant to the conclusion to which we have come.
On 14 January 1997, the Crown presented an indictment alleging that, between 7 and 25 January 1996, the appellant conspired with persons unknown to possess a quantity of heroin with intent to sell or supply it to another. On 26 January 1996, a holding order was granted under s 28(1) of the Misuse of Drugs Act 1981 (WA) authorising the continued detention of certain items found in the possession of the appellant, including the sum of "approximately" $253,800 in cash. The amount was subsequently determined to be $258,800. On 15 May 1997, the Crown presented a further indictment alleging that, during the same period, the appellant conspired with persons unknown to sell or supply heroin to another. On 15 August 1997, at a directions hearing before the trial which was listed to commence on 18 August, the Crown Prosecutor tendered a nolle prosequi in respect of the first indictment and indicated that he intended to proceed with the second. The appellant opposed the nolle prosequi and, on 18 August 1997, the learned trial Judge refused to allow the nolle prosequi to be received. Further proceedings on the second indictment were stayed, permanently.
Upon the appellant's arraignment on the first indictment, the Crown offered no evidence and the appellant was acquitted by direction of the trial Judge.
Immediately thereafter, counsel on behalf of the appellant made…

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 [2000] WASCA 115
Case: [2000] WASCA 115
Decision Date: 4 MAY 2000

CaseChat Overview and Summary

The case of Lam v The Queen involved a defendant who was acquitted by direction of conspiracy to possess heroin with intent to sell or supply. During the course of the investigation, a substantial amount of money was seized from the defendant's courier. The central issue before the court was whether the court of trial retained jurisdiction to order the forfeiture of this money to the Crown, and if so, what evidential standards were required to do so.

The legal issues the court had to address included the interpretation of statutory provisions concerning the forfeiture of proceeds of crime, and the applicable standards of proof for such an order. The court considered whether the acquittal of the defendant on the criminal charges negated the court's ability to order the forfeiture of the money, and what burden of proof was applicable in such circumstances. The court had to balance the defendant's rights with the statutory powers intended to combat the proceeds of criminal activity.

In its reasoning, the court determined that the acquittal of the defendant on the criminal charges did not preclude the court from considering the forfeiture of the money. The court held that the statutory power to order forfeiture was distinct from the criminal charge and could be exercised independently. The court found that the standard of proof required for such a forfeiture was not the criminal standard of beyond reasonable doubt but rather the civil standard of the balance of probabilities. Consequently, the court found that the Crown had met this lower burden of proof and ordered the forfeiture of the money to the Crown.

Orders