R v Tan

Case [2002] WASC 42 14 March 2002

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R -v- TAN [2002] WASC 42

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 42
Case No:	INS:70/2001	Heard:	15 FEBRUARY 2002
Coram:	McLURE J	Delivered:	14/03/02
No of pages:	28	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	THE QUEEN KOK CHENG TAN
Catchwords:	Criminal law Acquittal on charge of being knowingly concerned in importation of narcotics No verdict on alternative charge of possession of narcotics Whether retrial on possession charge involves impermissible double jeopardy Whether possible to give a direction which gives full benefit of acquittal Whether retrial an abuse of process Meaning of "foredoomed to fail" in criminal proceedings
Legislation:	Customs Act 1902 (Cth), s 233B(1)(c) and (d)
Case References:	Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464 Collard v R, unreported; CCA SCt of WA; Library No 970425; 13 August 1997 Cox v Journeaux (No 2) (1935) 52 CLR 713 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Doney v R (1990) 171 CLR 207 Garrett v The Queen (1977) 139 CLR 437 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Huck v R (1988) WAR 231 Jago v District Court of New South Wales (1989) 168 CLR 23 Kemp v The King (1951) 83 CLR 341 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Mraz v The Queen (No 2) (1956) 96 CLR 62 Pearce v The Queen (1998) 194 CLR 610 Plomp v The Queen (1963) 110 CLR 234 R v McCaul and Palmer [1983] 2 VR 419 R v Smith [1995] 1 VR 10 R v Storey (1978) 140 CLR 364 Rogers v The Queen (1994) 181 CLR 251 Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458 Walton v Gardiner (1993) 177 CLR 378 Williams v R [1982] WAR 277 R v Quinn (1952) 53 SR (NSW) 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : R -v- TAN [2002] WASC 42 CORAM : McLURE J HEARD : 15 FEBRUARY 2002 DELIVERED : 14 MARCH 2002 FILE NO/S : INS 70 of 2001 BETWEEN : THE QUEEN

Crown

AND

KOK CHENG TAN

Accused

Catchwords:

Criminal law - Acquittal on charge of being knowingly concerned in importation of narcotics - No verdict on alternative charge of possession of narcotics - Whether retrial on possession charge involves impermissible double jeopardy - Whether possible to give a direction which gives full benefit of acquittal - Whether retrial an abuse of process - Meaning of "foredoomed to fail" in criminal proceedings

Legislation:

Customs Act 1902 (Cth), s 233B(1)(c) and (d)

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Crown : Mr D W L Renton

Accused : Mr R Richter QC & Mr L M Levy

Solicitors:

Crown : Commonwealth Director of Public Prosecutions

Accused : Laurie Levy

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

Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464
Collard v…

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 Tan

Details

AGLC: R v Tan [2002] WASC 42
Case: [2002] WASC 42
Decision Date

CaseChat Overview and Summary

The accused in this case, Kok Cheng Tan, applied for a permanent stay of the retrial of a charge of possession of ecstasy under the Customs Act 1901, after being acquitted of a related charge of being knowingly concerned in the importation of narcotics. The court was required to decide whether the retrial of the possession charge was consistent with the principle against double jeopardy and whether it would constitute an abuse of process. The court examined the legal principles surrounding double jeopardy, issue estoppel, and abuse of process, and considered whether the retrial would be foredoomed to fail. The court concluded that the retrial of the possession charge did not involve impermissible double jeopardy or constitute an abuse of process, and that the evidence was capable of sustaining a guilty verdict on the possession charge. The application for a permanent stay was dismissed.

Orders