R v Lam
[2016] WASC 345
•27 OCTOBER 2016
R -v- LAM [2016] WASC 345
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 345 | |
| Case No: | INS:46/2016 | 26 OCTOBER 2016 | |
| Coram: | ALLANSON J | 27/10/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN DAM TA LAM |
Catchwords: | Criminal law Evidence Propensity evidence Evidence Act 1906 (WA) s 31A Turns on own facts |
Legislation: | Criminal Code (Cth), s 11.1(3), s 302.1, s 302.2 Evidence Act 1906 (WA), s 31A |
Case References: | Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 Onekawa v The State of Western Australia [2012] WASCA 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
DAM TA LAM
Respondent
Catchwords:
Criminal law - Evidence - Propensity evidence - Evidence Act 1906 (WA) s 31A - Turns on own facts
Legislation:
Criminal Code (Cth), s 11.1(3), s 302.1, s 302.2
Evidence Act 1906 (WA), s 31A
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Mr A E Eyers
Respondent : Mr S M Brennan
Solicitors:
Applicant : Director of Public Prosecutions (Cth)
Respondent : Brennan & Co
Case(s) referred to in judgment(s):
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Onekawa v The State of Western Australia [2012] WASCA 105
- ALLANSON J:
The application
1 Dam Ta Lam is charged with one offence of attempting to traffic in a commercial quantity of a border controlled drug. In 2015, he was convicted of two offences under the Misuse of Drugs Act 1981 (WA) for selling and offering to sell the same drug. The prosecution applies for an order that it be permitted to lead, as propensity evidence, evidence of the accused's conduct giving rise to the two convictions.
2 This application was heard on 26 October 2016. The trial is due to start on 7 November 2016. I gave my decision allowing the application immediately, and said I would provide reasons as soon as possible, but suppress publication until after the trial. These are my reasons for allowing the application.
The charge
3 The prosecution alleges that on 13 January 2015 at Perth and elsewhere, Mr Lam attempted to traffic in a commercial quantity of methylamphetamine.
4 Section 302.1 of the Criminal Code (Cth) defines when a person traffics in a substance. Relevantly, a person traffics when the person possesses the substance with the intention of selling any of it: s 302.1(1)(e).
5 The offence of trafficking in commercial quantities of controlled drugs is found in s 302.2:
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug; and
(c) the quantity trafficked is a commercial quantity.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
6 Mr Lam is charged with an attempt. By s 11.1(3), intention and knowledge are fault elements in relation to each physical element of the offence attempted.
The prosecution case
7 Until recently Mr Lam was charged with the present offence and also conspiracy with four others to import the drug. The case has been significantly simplified by the amendment of the indictment to allege the single charge of attempt, committed on 13 January 2015.
8 For the purposes of this application, it is possible to summarise the case in this way. In essence, the prosecution alleges that methylamphetamine was to be imported into Australia from Taiwan. The drug did not enter Australia. It had earlier been seized by the Taiwan National Police in Taiwan. The package intended to contain the drug was delivered to Australia. Australian Federal Police officers inserted a wooden barrel to replicate the container in which the drug had been concealed, and substituted another substance for the methylamphetamine.
9 On 13 January 2015, at 10.37 am, the package was delivered to a house in the suburb of Butler. At 12.14 pm, Mr Lam went to a hardware store in Butler and bought digital scales and a pick hammer and returned to the house. At about 1.30 pm, police executed a search warrant at the house. Mr Lam and two other men were in the laundry, near the wooden barrel in which the 'substitute' had been delivered. One packet of the substitute had been opened. Police seized digital scales, clip seal bags, approximately $1,000 cash, and three mobile phones.
The proposed evidence
10 In June 2015, Mr Lam was convicted of selling methylamphetamine to another, and offering to sell methylamphetamine to another. The offences were committed in Carnarvon.
11 The first offence was committed on 20 October 2013, when Mr Lam sold a gram of methylamphetamine to an undercover police officer for $1,000. He pleaded guilty.
12 The second offence was between 20 October and 23 October 2013, when Mr Lam and a co-offender offered to sell 30.5 g of methamphetamine to undercover police for $12,500. He pleaded not guilty and was convicted by the verdict of a jury. The second offence was described by the sentencing judge as a joint business enterprise between Mr Lam and his then partner, Ms Tran. From the sentencing transcript, Ms Tran was the one who dealt with the undercover police officer in discussions involving the supply of the drug.
13 The prosecution seeks to lead evidence of Mr Lam's prior conduct, by evidence of the date of each conviction, the subject of the conviction, and the drug and quantity of drug involved. The prosecution submits that the prior convictions have significant probative value. Specifically, counsel referred to the relevance of the prior conduct to displace any innocent explanation for Mr Lam's presence at the house in Butler when the delivery was made and later when the warrant was executed, and to the fault element of intention in the offence.
The principles
14 Section 31A(2) of the Evidence Act 1906 (WA) relevantly provides:
Propensity evidence is admissible in proceedings for an offence if the court considers -
(a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
15 The definition of 'propensity evidence' in s 31A(1) is wide. It is not confined to similar fact evidence but extends to evidence of the character or reputation of the accused or of a tendency that he has, as well as other evidence of the conduct of the accused person.
16 The principles governing the application of s 31A are well settled: see, for example, Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 and Onekawa v The State of Western Australia [2012] WASCA 105.
17 Both of the tests in s 31A(2) must be satisfied in order for the evidence to be admissible.
18 The first question is whether the evidence would have significant probative value. This depends on the facts of the particular case including other evidence to be adduced. Before evidence can have significant probative value it must be such as could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent. Significant probative value is probative value which is important or of consequence. More is required than mere relevance, but something less than a substantial degree of relevance.
19 If the court finds the evidence is of significant probative value it must then assess the degree of risk of unfairness at trial that would be occasioned by its admission. The legislation recognises that there is a risk of unfairness in admitting evidence of this kind, including a risk of the evidence being used in a manner which perhaps goes strictly beyond its probative value. But the court weighs that risk against the probative value of the evidence if used properly. In doing so, the court must have regard to the manner in which a trial judge would properly direct a jury as to the use of the evidence.
20 I am satisfied that evidence of Mr Lam's previous sale of methylamphetamine and offer to sell methylamphetamine would, in the context of the other evidence, including his purchase of the pick hammer and scales, be relevant in excluding any innocent explanation for his presence at the house. The recent previous sale and offer to sell methylamphetamine would also be relevant to whether he intended to sell the drug that would have been delivered but for the intervention of the police. The probative value of the evidence is, in my opinion, important. That is, it has significant probative value.
21 Counsel for Mr Lam referred to the differences between the conduct that constituted the two offences against the Misuse of Drugs Act and the conduct now alleged against Mr Lam. There clearly are differences. But they do not, in my opinion, detract from the probative value of the evidence to the particular facts. Similarity is not the touchstone for the operation of s 31A.
22 The evidence proposed to be led would not, in my opinion, lead to an unfair trial. A properly instructed jury would be able to use the evidence only for its intended purpose and any risk of unfairness would be minimised. A fair-minded person, comparing the risk of unfairness and the probative value of the evidence, would think that the interests of justice required the admission of the evidence.
23 For those reasons I allowed the application.
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