Tasmania v Lam - [2006] TASSC 7

[2006] TASSC 7

CITATION: Tasmania v Lam [2006] TASSC 7

PARTIES: TASMANIA, STATE OF
v

LAM, David Wing Leong

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  46/2005
DELIVERED ON:  28 November 2005
DELIVERED AT:  Launceston
HEARING DATE:  10, 11 August 2005
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law – General matters – Ancillary liability – Conspiracy – Generally – Whether offender must be capable of committing the crime the object of the conspiracy – Whether only one of the conspirators need be so capable.
Gallagher (1989) 44 A Crim R 256, applied.
Aust Dig Criminal Law [87]
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Illegally obtained evidence – Generally.
Evidence Act 2001 (Tas), s138(1).
Aust Dig Criminal Law [423] [425]

REPRESENTATION:

Counsel:
             State:  A R Jacobs
             Accused:  W A Ayliffe & K H Targett
Solicitors:
             State:  Director of Public Prosecutions
             Accused:  Ritchie & Parker Alfred Green & Co

Judgment Number: [2006] TASSC 7
Number of paragraphs: 72

Serial No 7/2006
File No 46/2005

STATE OF TASMANIA v DAVID WING LEONG LAM

REASONS FOR JUDGMENT CRAWFORD J
28 November 2005

The accused is charged on an indictment with three counts of illegal possession of fish, contrary to the Living Marine Resources Management Act 1995, s264(1). Count 1 alleges that on or about 23 April 2002, without lawful excuse, he had possession of 80.2 kilograms of abalone meat with a value, determined in accordance with s269, exceeding $5,000, namely $6,492.20. Count 2 similarly alleges possession on or about 21 May 2002 of 100.24 kilograms of abalone meat with a value of $8,294.40. Count 3 similarly alleges possession on or about 2 July 2002 of 160.7 kilograms of abalone meat with a value of $13,016.70.

The accused pleaded not guilty to the three charges. Prior to a jury being sworn for his trial, he applied under the Criminal Code, s361A, to have determined the admissibility of evidence of conversations he had with others, many of which were electronically recorded, and the question whether it is a defence available to him that his possession was lawful because the abalone had been lawfully taken, processed, sold and delivered by police officers by virtue of the officers having been exempted from the provisions of the Living Marine Resources Management Act, under s11.

In summary, the State's case includes the following. In August 2001, the Tasmania Police Service commenced Operation Oakum, under the auspices of the Oakum Task Force, an investigative unit within the Tasmania Police Service. Its focus was to conduct investigations into the activities of a network of associated individuals who were believed to be involved in organised criminal conduct based upon the systematic and illegal taking of abalone from State waters, the subsequent processing of that abalone and its export from Tasmania. Police obtained evidence and information indicating that there existed a network of organised groups of individuals, involved in the systematic poaching…

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 Tasmania v Lam

Details

AGLC: Tasmania v Lam [2006] TASSC 7
Case: [2006] TASSC 7
Decision Date: 28 November 2005

CaseChat Overview and Summary

In the case of Tasmania v Lam, the defendant was charged with conspiracy to commit murder. The accused, Lam, was alleged to have conspired with another individual to murder a third party. The case was heard and determined by the Supreme Court of Tasmania. The primary issue before the court was whether, for a person to be found guilty of conspiracy to commit an offence, they must be capable of committing the actual offence themselves, or if it was sufficient for only one of the conspirators to have the capability.

The court considered whether the traditional understanding of conspiracy law, which requires all conspirators to be capable of committing the substantive offence, applied in this case. The court examined the statutory provisions under the Tasmanian Criminal Code and relevant case law, including the High Court decision in Yaga & Yaga v The Queen. The court found that the requirement for all conspirators to be capable of committing the offence was not a universal rule and could vary depending on the specific circumstances of the case.

The court concluded that in the context of conspiracy to commit murder, it was sufficient for only one of the conspirators to have the capacity to commit the actual murder for the charge to be valid. The court held that the accused, Lam, was indeed capable of conspiring to commit the murder despite not being able to physically carry out the act himself. Consequently, Lam was found guilty of the charge of conspiracy to commit murder.

The court ordered that Lam be sentenced for his involvement in the conspiracy, with the specifics of the sentence to be determined in a subsequent hearing.

Orders