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Lee v Tasmania

Lee v Tasmania

Case [2006] TASSC 92 8 November 2006

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[2006] TASSC 92

CITATION: Lee v Tasmania [2006] TASSC 92

PARTIES:  LEE, David Wei Meng
  v
  TASMANIA, State of

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 55/2006
DELIVERED ON:  8 November 2006
DELIVERED AT:  Hobart
HEARING DATE:  28 August 2006
JUDGMENT OF:  Slicer, Evans and Blow JJ

CATCHWORDS:

Criminal Law – General matters – Ancillary liability – Complicity – Common purpose – Code provisions – Criminal Code (Tas) – Illegal possession of fish – Crime committed continuously before and after formation of common intention – Whether committed in prosecution of unlawful purpose.

Criminal Code (Tas), s4.
R v Barlow (1997) 188 CLR 1, distinguished.
R v Grant [1975] 2 NZLR 165, referred to.
Aust Dig Criminal Law [78]

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Miscellaneous matters – Fines – Inability to pay – Mandatory fine and discretionary imprisonment.

Sentencing Act1997 (Tas), ss47(2), 49(1), 50.
Aust Dig Criminal Law [896]

REPRESENTATION:

Counsel:
             Appellant:  P W Tree SC and C J Gunson
             Respondent:  D J Coates SC and M S Wilson
Solicitors:
             Appellant:  Zeeman Kable & Page
             Respondent:  Director of Public Prosecutions

Judgment Number: [2006] TASSC 92
Number of paragraphs: 60

Serial No 92/2006
File No CCA 55/2006

DAVID WEI MENG LEE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
EVANS J
BLOW J
8 November 2006

Order of the Court

Appeal dismissed.

Serial No 92/2006
File No CCA 55/2006

DAVID WEI MENG LEE v STATE 0F TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
8 November 2006

The appellant was convicted on five counts of an indictable offence contrary to the Living Marine Resources Management Act 1995 ("the Act"), s264(1). Two other men, Barrett and Ho, had previously been convicted of the crime of conspiracy with respect to the same subject matter and corresponding dealings with abalone which were the subject of the indictment preferred against the appellant.

Between 1997 and April 2002, Peter Barrett was a director of Barrett Developments Pty Ltd which traded under the name of Tasmanian Sealife ("Sealife"). Sealife held a fish processing licence during the same period issued under the Act. That licence permitted Sealife to process fish, including abalone, at 73 Droughty Point, Rokeby and to operate cold storage facilities at the Hobart wharf. Jeffrey Ho also operated a seafood processing company and in March 1999, commenced dealings, some lawful, some not, with Barrett for the supply and sale of abalone. The operation included the provision of either false documentation, or handling and transportation of abalone without documentation. Barrett and Ho were convicted of conspiracy in October 2002 and March 2003, respectively. Their course of criminal conduct encompassed the same period and fish as that for which the appellant was charged.

The appellant and his wife had operated as directors and sole shareholders, a registered company, W K Trading Pty Ltd at Southport in Queensland since October 1995.

In 1998, Sealife…

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 Lee v Tasmania

Details

AGLC: Lee v Tasmania [2006] TASSC 92
Case: [2006] TASSC 92
Decision Date: 8 November 2006

CaseChat Overview and Summary

In the case of Lee v Tasmania, the appellant was convicted of possessing illegal fish in the state of Tasmania. The conviction arose from an incident where the appellant was found in possession of fish that were caught in breach of regulations. The High Court of Australia was tasked with determining whether the appellant's possession of these fish constituted complicity in a common purpose to commit an offence under the Tasmanian Criminal Code.

The central issue before the court was whether the appellant's possession of the illegally caught fish was a part of a common purpose, as defined by the Tasmanian Criminal Code. Specifically, the court needed to determine if the possession was committed in the prosecution of the unlawful purpose of possessing illegal fish. The appellant argued that the offence of possession was not part of the common purpose but rather an independent act. The prosecution contended that the possession was integral to the common purpose.

The court examined the legal principles surrounding complicity and common purpose under the Tasmanian Criminal Code. It considered the nature of the offence, the timing of the acts, and whether the possession was committed in the prosecution of the unlawful purpose. The court concluded that the appellant's possession of the illegal fish was an integral part of the common purpose. The possession was not merely an independent act but a continuation of the unlawful purpose, which began before the common purpose was formed. The court found that the appellant was rightly convicted under the principles of ancillary liability for complicity in a common purpose.

The final orders of the court were to uphold the conviction of the appellant, affirming the decision of the lower courts. The court found that the appellant's actions were in line with the common purpose to possess illegal fish, and therefore, the conviction was rightly upheld.

Orders