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2
Court of Criminal Appeal 7 November 2002

R v LAM

[2002] NSWCCA 377

Also reported as (2002) 135 A Crim R 302
DrugsPublic order & justice offences
CRIMINAL LAW AND PROCEDURE CONVICTION APPEAL ONLY ADMISSIBILITY IN CIRCUMSTANCES DIRECTIONS AS TO POSSESSION SEARCH WARRANTS VALIDITY

Citation: R v LAM [2002] NSWCCA 377
Court: NSW Court of Criminal Appeal
Date: 7 November 2002
Judge(s): Levine J (primary judgment), Hidden J and Howie J (agreeing)

Background

The appellant was convicted after a jury trial in the District Court of conspiring to supply a large commercial quantity of heroin between 24 January and 9 February 1999 in Sydney. He was sentenced to 16 years imprisonment with a non-parole period of 12 years. This was his second trial, the first having ended with a hung jury.

The Crown alleged the appellant was the principal in a four-person syndicate. His role was to direct supply arrangements via coded mobile phone calls, with co-conspirators physically delivering heroin to buyers. Heroin was stored in a vehicle garaged at a North Strathfield address. Police built their case from telephone intercepts, listening device recordings, surveillance observations, photographs, and physical evidence recovered under search warrants.

The appellant brought a conviction appeal only, raising four grounds relating to the admissibility and sufficiency of evidence and the adequacy of the trial judge's directions.

  • Whether a set of keys found at the appellant's North Sydney unit was admissible as evidence of his possession of, and connection to, the Tenterfield Street safe house and the vehicle garaged there
  • Whether the trial judge's directions to the jury on the concept of "possession" were adequate
  • Whether the search warrant used to search the appellant's premises was valid, given it was based on intercepted telephone calls
  • Whether a retired detective's evidence interpreting coded language in the intercepted calls was properly admitted as expert evidence

Decision

Keys evidence and directions on possession: The Court found the keys evidence was properly admitted. The trial judge's directions on possession were also adequate. The evidence connecting the appellant to the Tenterfield Street premises and the garaged vehicle was, when considered alongside the totality of the Crown case, sufficient for the jury to be satisfied of guilt beyond reasonable doubt.

Search warrant validity: The Court examined whether warrants grounded on intercepted telephone calls were lawfully issued. It held the warrants were valid. No error was identified in the process by which the warrants were obtained or executed.

Expert evidence on coded language: The retired Detective Inspector gave evidence identifying coded terms used in the intercepted calls, such as "sow the rice" and "the black kind," as language used by drug syndicates to conceal the nature of their dealings. The Court held this evidence was properly admitted. The witness's experience and expertise provided a sufficient foundation for that evidence to go before the jury.

Sufficiency of evidence overall: The appellant argued the evidence linking him to the safe house was "tenuous" and that the case ultimately rested on the keys. The Court rejected this submission. Applying the principles in Regina v Markuleski (2001) 52 NSWLR 82, it held the jury was entitled, on the whole of the evidence, to be satisfied of the appellant's guilt to the required standard. All four grounds of appeal failed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that keys found at an accused's premises can constitute admissible evidence of possession of and connection to other premises or vehicles, provided the directions to the jury on possession are adequate.
  • A search warrant based on intercepted telephone calls is not rendered invalid merely by that foundation, provided the relevant statutory requirements under the Search Warrants Act 1985 and Telecommunications (Interception) Act 1979 (Cth) are satisfied.
  • Experienced former police officers may give evidence interpreting coded language in intercepted communications as expert or opinion evidence, where their background provides a sufficient basis for that opinion.
  • Where a conviction appeal challenges the sufficiency of evidence, the Court applies the Markuleski standard: the question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt on the whole of the evidence, not whether any single piece of evidence was strong in isolation.
  • No error was established in the trial judge's conduct of the trial, including the summation to the jury on both fact and law, across any of the four grounds raised.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)
- Search Warrants Act 1985 (NSW)
- Telecommunications (Interception) Act 1979 (Cth)

Cases:
- Regina v Markuleski (2001) 52 NSWLR 82
- Love v Attorney-General for NSW (1990) 169 CLR 307
- Ousley v R (1997) 148 ALR 510
- 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
- Vincent v Randall & Anor [1999] NSWSC 833
- Regina v Al Kahair (unreported, NSWCCA, 20 June 1994)
- Regina v David and Gugea (unreported, NSWCCA, 10 October 1995)
- Regina v Van Phanh Huynh (unreported, NSWCCA, 13 May 1996)
- Regina v Khair & Or (unreported, NSWCCA, 20 June 1994)