Lee v State of Tasmania

[2007] HCATrans 160

[2007] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H5 of 2006

B e t w e e n -

DAVID WEI MENG LEE

Applicant

and

STATE OF TASMANIA

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 APRIL 2007, AT 12.50 PM

Copyright in the High Court of Australia

MR P.W. TREE, QC:   May it please the Court, I appear together with MR C.J. GUNSON for the applicant.  (instructed by Zeeman Kable & Page)

MR D.G. COATES, SC:   May it please the Court, I appear on behalf of the respondent with my learned friend, MS M.S. WILSON.  (instructed by the Director of Public Prosecutions (Tas))

MR TREE:   Your Honours, although Mr Lee has been convicted of a very esoteric and perhaps unusual offence, the questions of principle which this application gives rise to are of broad and general application.  We wanted to commence by illustrating the breadth of the potential application of the questions of principle that this application gives rise to, not by reference ‑ ‑ ‑

KIRBY J:   Just before you start on telling us what the case is about, there is one thing that has been worrying me and it is not raised in the submissions.  If you look at section 4 of the Criminal Code (Tas), which is on page 93, and it is invoked in this case and is critical to the case, it says, “Where 2 or more persons form a common intention to prosecute an unlawful purpose”, et cetera.  The thing that is worrying me, and there may be some simple answer to it, why is that section not read as “Where 2 or more persons in Tasmania” or “Where 2 or more persons form in Tasmania intention to prosecute”?  Is there some provision in your Interpretation Act or Acts Interpretation Act?

MR TREE:   Yes, my recollection is that it is the Criminal Law (Territorial Application) Act 1995. It is not in the material that is before your Honour, but my recollection is that that requires there only to be – and I am now going very much on memory – either one element of the offence which is perpetrated in the State of Tasmania ‑ ‑ ‑

KIRBY J:   So the fact that the two persons who had the factory in Tasmania were in Tasmania gives a sufficient territorial link under the law of Tasmania to Tasmania for the present applicant who is in Queensland to be tried in Tasmania.  Is that correct?

MR TREE:   That is my recollection of the view that we reached.

KIRBY J:   You accept that and you do not raise any territorial point concerning the extent of the operation of section 4?

MR TREE:   We certainly have not prior to now, your Honour, and that may be a difficulty if we would now seek to agitate that at this level.

HAYNE J:   Legislation of that kind was considered by the Court in Lipohar, I think, was it not?  I have not looked at Lipohar for a time, but my memory is that it was resolved in a way that would present you with some apparent difficulty at least.

MR TREE:   Yes.

KIRBY J:   That is my recollection, too and I had noticed a reference to the statute but I could not find it when I got my puzzlement.  Anyway, we will not take up any more of your time.  You do not run that point?

MR TREE:   No, your Honour.

KIRBY J:   Therefore we can concentrate on the points you run.

MR TREE:   Quite so, your Honour, yes.  What we were about to do, your Honour, was to illustrate it not by reference to the instant facts here, but by reference to what might be a far more common factual scenario where in a nightclub a person approaches someone who they know to be a dealer in drugs and asks for that person to supply them with an illicit drug, perhaps ecstasy.

The majority, I say that advisedly, in the court below, Justices Blow and Evans, would say that at the point that the common unlawful purpose is entered to, if the dealer then has in his possession, perhaps not on his person but in a motor vehicle close by, that tablet of ecstasy, then it would follow by virtue of the operation of section 4 there has been a common unlawful purpose, the unlawful supply of a tablet of ecstasy, that it is reasonably foreseeable or it is a probable consequence that there will be possession by the dealer.  The majority would say that even without any further act on the part of the dealer that the person who wishes to be the purchaser and has entered into the common unlawful purpose is in possession of that ecstasy tablet.

KIRBY J:   You are not putting up an argument to us, are you, about the unfair consequences that can flow from the common purpose ‑ ‑ ‑

MR TREE:   No, your Honour.

KIRBY J:   I mean, the Court has been there three times in recent months and I do not feel like going down that road again.

MR TREE:   Although, of course, an absurd result would inform the construction which the Court might prefer in relation to section 4 if an absurd result were to ensue.  I wanted to, at least at this early stage, merely identify where the three separate arguments would see the difference of opinion on those sets of facts.  Justice Slicer and, indeed, the respondent to this application would not seem to support that view.  Justice Slicer and the respondent to this application seem to require there to be some further conduct on the part of the dealer that of itself would comprise ‑ ‑ ‑

KIRBY J:   Yes, I saw that, but that does not help you, does it, because we do not grant special leave from reasons.  We grant special leave from judgments and orders and, therefore, we just have to look at whether the judgment and order below is attended by doubt, not whether there is some aspect of the reasoning that we would not ‑ ‑ ‑

MR TREE:   I accept that, your Honour, which is why, of course, we come to the third view which is the view articulated by us, namely, that when one looks at section 4, it is entirely prospective in formulation of the language which it uses and, hence, a continued unlawful possession does not sufficiently come within the terms of section 4 of the Tasmanian Code.  That is, of course, a similar provision to section 8 in the Queensland Code which was considered by this Court in Darkan.  So the three views are clearly identified on very simple and very common facts.

The point which we raise is that essentially, when one looks at section 4 and one looks at the reasoning which the Court of Criminal Appeal has applied to this set of facts, that it creates enormous practical and absurd results.  Let me give you an illustration, your Honours.  If instead of the dealer having in his possession simply one tablet of ecstasy were to have in his possession 100 tablets of ecstasy, then there is no reason in principle as to why the approach of Justice Blow and Justice Evans would not see the person who wishes to purchase one tablet of ecstasy, notwithstanding their intention only to supply one tablet, guilty of the possession in the part of the dealer of the balance and, indeed, one would then have difficulty in identifying which of those 100 tablets was the one which was specifically identified as being in the possession of the would‑be purchaser.

So that this application raises a question of very broad application and it is a question which is fundamental to the application of section 4(2), continuing offences or offences of status or of result.  So that it is an application which raises a serious matter of broad application. 

KIRBY J:   The Court has looked at the equivalent to section 4 of the Code in the Barlow matter and the Court of Criminal Appeal of Tasmania approached the matter by reference to what this Court said in Barlow and, therefore, it would seem on the face of things that there is no error of principle in the approach of the court.  Once you cure the problem of exterritoriality that was concerning me and once you look at the factual circumstances of the case, there does not seem to be any question of miscarriage of justice in this matter, looking at it in the broad and applying the principle of section 4 of common purpose liability.

MR TREE:   I hear what your Honour says in relation to the court below adopting the Barlow principle but, with respect, it adopted it to an extent and then said but Barlow does not deal with the situation that is before the court.  That is at page 75 of the application book, paragraph 32 of Justice Blow’s reasons where at about line 43 his Honour said this:

Crimes of a continuing nature involving possession are crimes of a somewhat special class, and not crimes of the type that the High Court was concerned with in Barlow.

KIRBY J:   Barlow was a prison murder, was it not?

MR TREE:   That is so, where there was an intention to effect violence but not death.  That is, if one may say, the sort of offence to which section 4 has easy application.  Offences such as possession, which can be complete but continuing at the time of the entry into the common unlawful purpose, raise quite different considerations, we would respectfully submit.  Indeed, that is identified by the court below.

So that this raises a question that has not risen so far as counsel at the Bar table’s researches have been able to find, squarely either in this Court or elsewhere before, namely, the extent to which section 4 operates to make complicit as a principal a person who enters into a common unlawful purpose with someone who happens to be in continuing but otherwise passive possession of the item that is to be unlawfully supplied.

So that is why we say that this is not a direct application of Barlow.  It is a question of almost fundamental importance to section 4 in its application to a particular class of offences.  It has broad application in a range of jurisdictions and applies to virtually any type of offence where possession and supply of the article are both offences.  So that this is, if one likes, in an area where this Court has not been asked to go before and yet it has potentially vast application within the wider Australian community.

KIRBY J:   Just explain to me the other matter that I raised with you and that is that once one accepts the principle in section 4, one can have various views about that principle as being inconsistent with the general rules of the criminal law and personal liability and for personal intentions, but once one accepts it, it would be an odd result if a person who, say, was the entrepreneur of an enterprise safely up in Queensland could, in the face of section 4, skip liability in a case such as the facts in the present case.

MR TREE:   Yes, we would not, with respect, cavil with the notion that it could have application to those who form common unlawful purposes in more than one jurisdiction, but apart from that I am not sure that I really understand your Honour’s question, with respect.

KIRBY J:   If you accept section 4 and what it says and the liability that it attaches, it does not seem on the face of things that your client has suffered a miscarriage of justice by reason of his conviction in this case in the facts of the case.

MR TREE:   With respect, that presupposes that section 4 has potential application to him.  The submission which we advance is that the prospective language of section 4, and it is only in prospective terms, mandates that there needs to be an offence in fact committed, not merely continuing after the entry into the common unlawful purpose.  That is the whole thrust of the application.

HAYNE J:   The root of the contention is that possession is once for all.  Once you accept that possession is a continuing offence, you say that section 4 cannot have any engagement once the possession began.

MR TREE:   Yes, that is so, unless the possession is quit and resumed.

HAYNE J:   Yes.

MR TREE:   That is the point which ‑ ‑ ‑

HAYNE J:   Yes.

KIRBY J: In the case of the interaction of the Living Marine Resources Act and section 4, that would be to defeat the application of the Living Marine Resources Management Act to many cases and thereby rob it of its bite.

MR TREE:   With respect, no.  The reason why this is an unusual case is because the possession which Mr Lee ultimately came into of these fish in Queensland is an offence in Queensland law, but was never prosecuted in Queensland for whatever reason.  So this is an unusual set of circumstances where the Tasmanian authorities are seeking to, in effect, use another avenue to visit criminal responsibility upon Mr Lee for his possession of the fish, albeit under the guise now of possession by persons in Tasmania.  It is a most unusual situation.

If one goes back to the supply of an ecstasy tablet scenario, one would think it would be fairly unlikely that authorities would ordinarily choose to charge someone with an offence based upon possession by

somebody else of a tablet.  One would simply wait until the person came into possession of it themselves.  Of course, although that occurred here, Mr Lee came into possession of the fish, the authorities in Queensland for whatever reason have not chosen to prosecute him in relation to that offence.

So that it is, if you like, a very long arm of the law which is seeking to reach out from Tasmania into Queensland to attach criminal responsibility and that is why it throws up so squarely the question as to whether a completed but continuing offence falls within section 4.

KIRBY J:   Your client received a custodial sentence, I think.

MR TREE:   He did, your Honour.

KIRBY J:   He appealed against that sentence of the Court of Criminal Appeal and that appeal was dismissed.

MR TREE:   That is so.

KIRBY J:   You have not furthered that objection in this Court.

MR TREE:   No.

KIRBY J:   Has he served the custodial part?

MR TREE:   He has served a part of his sentence and is presently on parole.  My friends tell me that in fact he is now in the part which is suspended under the terms of the original sentence, but of course the fine which has two components to it, of course, the special penalty and the general fine still remains.

KIRBY J:   Yes.  Thank you, Mr Tree.  The Court does not require your assistance, Mr Coates.

This application comes from the Court of Criminal Appeal of Tasmania.  That court rejected an appeal against the applicant’s conviction of offences against the Living Marine Resources Management Act 1995 (Tas) involving the illegal possession of fish. The applicant was sentenced to a custodial term. He was never relevantly in Tasmania. However, the prosecution relied on section 4 of the Criminal Code (Tas) 1924.  That provision relates to crimes committed by two or more persons who form a common intention to prosecute an unlawful purpose in conjunction with one another.  That was the case the prosecution brought against the applicant, namely, that he had a common interest in the unlawful purpose with Messrs Barrett and Ho who, in Tasmania, controlled a seafood processing factory where it is claimed they received restricted abalone from illegal sources. 

Despite the arguments advanced for the applicant, we are not convinced that the orders of the Court of Criminal Appeal are attended by doubt.  An appeal to this Court would not enjoy a reasonable prospect of success.  Nor are we convinced that any miscarriage of justice has occurred in these convictions.  Accordingly, special leave is refused. 

The court will now adjourn until 2 pm when it will proceed with the remaining matters in the list.

AT 1.07 PM THE MATTER WAS CONCLUDED