R v Lam - [2002] NSWCCA 377

Reported Decision:
(2002) 135 A Crim R 302

New South Wales

Court of Criminal Appeal

CITATION: R v LAM [2002] NSWCCA 377

FILE NUMBER(S): CCA 60194 OF 2001

HEARING DATE(S): 9 September 2002

JUDGMENT DATE:
7 November 2002

PARTIES :

REGINA
v
DUNCAN SAK CHEUNG LAM

JUDGMENT OF: Levine J at 1; Hidden J at 89; Howie J at 90

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0711

LOWER COURT JUDICIAL
OFFICER : Holt DCJ

COUNSEL :
P Byrne SC
(Appellant)
P J P Power
(Crown)

SOLICITORS:
G K Walsh
(Appellant)
S E O'Connor
(Crown)

CATCHWORDS: Criminal Law and Procedure - conspiracy to supply large commercial quantity of heroin - conviction appeal only - evidence of "possession" (of set of keys) - admissibility in circumstances - directions as to possession - search warrants - validity - intercepted telephone calls as basis therefor - "expert" evidence on coded language

LEGISLATION CITED: Evidence Act 1995
Search Warrants Act 1985
Telecommunications (Interception) Act 1979 (Cth)

CASES CITED:
Attorney-General for New South Wales v Stewart (1994) 34 NSWLR 677)
Carroll v The Attorney-General for New South Wales (1993) 70 A Crim R 162
Flanagan v Commissioner of the AFP (1996) 60 FCR 149
Love v Attorney-General for NSW (1990) 169 CLR 307
Ousley v R (1997) 148 ALR 510
Regina v Al Kahair (unreported, NSWCCA, 20 June 1994)
Regina v David and Gugea (unreported, NSWCCA, 10 October 1995)
Regina v Huynh (unreported, NSWCCA, 13 May 1996)
Regina v Khair & Or (unreported, NSWCCA, 20 June 1994)
Regina v Markuleski (2001) 52 NSWLR 82
Regina v Van Phanh Huynh (unreported, NSWCCA, 13 May 1996)
Vincent v Randall & Anor [1999] NSWSC 833

DECISION: Appeal dismissed

- 35 -IN THE COURT OF

60194 of 2001

LEVINE J
HIDDEN J
HOWIE J
7 NOVEMBER 2002

REGINA v DUNCAN SAK CHEUNG LAM

Judgment

1 LEVINE J: The appellant was charged for that between 24 January 1999 and 9 February 1999, at Sydney in the State of New South Wales, he did conspire with Ting Fong So (also known as Man Kwong Lam, also known as Peter So), Ting Man Ngai and Kim Loan Nguyen, to supply a prohibited drug, namely heroin, being not less than the commercial quantity applicable to that drug, namely a large commercial quantity.

2 The appellant pleaded not guilty and on 7 March 2001 following a trial before his Honour Judge Holt QC and a jury of twelve was found guilty. This was the second trial of the appellant, the first having terminated upon the jury being unable to agree. Upon conviction the appellant was sentenced to 16 years imprisonment with a non-parole period of 12 years commencing on 8 February 1999. The appellant does not seek leave to appeal against that sentence.

3 The better to understand the import of the grounds of appeal, it is desirable to set out the course of evidence.

THE CROWN CASE

4 The appellant, together with three others, Peter So (hereafter So),…

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 R v Lam

Details

AGLC: R v Lam [2002] NSWCCA 377
Case: [2002] NSWCCA 377
Decision Date: 7 November 2002

CaseChat Overview and Summary

The case of R v Lam involved an appeal against conviction by the defendant, Lam, who was found guilty of conspiracy to supply a large commercial quantity of heroin. The appeal was limited to the conviction, and the matter was heard in the High Court of Australia. The primary issue before the court was the admissibility of evidence related to Lam's possession of a set of keys, which was argued to be relevant to the conspiracy charge. The court also had to determine the validity of search warrants issued on the basis of intercepted telephone calls and the admissibility of expert evidence regarding coded language used in the intercepted communications.

The High Court found that the evidence of the keys was admissible as it was relevant to the offence of conspiracy, as it could potentially link Lam to the premises or activities related to the drug supply. The court examined the search warrants and concluded that they were validly issued as they were based on intercepted telephone calls which, although not independently sufficient to establish probable cause, when combined with other information available to the authorities, provided a reasonable basis for the warrants. Furthermore, the court allowed the expert evidence on the coded language, finding that it assisted in understanding the content of the intercepted communications and was therefore admissible.

In summary, the High Court upheld Lam's conviction, confirming the admissibility of the evidence related to the set of keys, the validity of the search warrants, and the expert evidence on coded language. The appeal against the conviction was dismissed, and the original conviction was affirmed.

Orders