Hong Yen Le v DPP – In any way involved
On 3 May 2007, the Court of Appeal (Maxwell P, Eames and Nettle JJA) handed down its decision in Hong Yen Le v DPP [2007] VSCA 72.
The Court of Appeal for the first time examined the expression “in any way involved in the commission of” the relevant offence, as that expression is used within the various exclusion tests throughout the Confiscation Act.
The facts of the case were as follows. Mr and Mrs Le lived in a residential property in suburban Melbourne. Two of the three bedrooms of the property had been converted to cultivate cannabis.
Mr Le was charged with and convicted of trafficking a commercial quantity of cannabis. Mrs Le was not charged with any offences despite the fact that she lived in the property and the Court below, in the confiscation proceedings, found that she had knowledge of the cultivation of cannabis at the property.
Mrs Le made an application for exclusion under s.20 of the Confiscation Act. Because the property was clearly “tainted property”, she was obliged to satisfy the Court on the balance of probabilities that, amongst other things, she was not, in any way, involved in the commission of trafficking a commercial quantity of cannabis (see s.22(b)(i)(A) of the Confiscation Act).
The Court below found, relying upon a decision of the Court of Appeal of New Zealand, that Mrs Le’s knowledge of the cultivation, in conjunction with her failure to take any preventative steps to cause her husband to cease cultivating cannabis at the property, resulted in her being “involved” in the offence for the purposes of the Confiscation Act.
Mrs Le appealed, relying upon the principles in DPP Reference No. 1 of 2004, R v Nguyen (2005) 12 VR 299, arguing that she was not “involved” in the commission of trafficking a commercial quantity of cannabis because she had no knowledge of at least one element of the offence of trafficking in a commercial quantity of cannabis, namely knowledge that the cannabis was of a commercial quantity.
Nettle JA, with whom Maxwell P and Eames JA agreed, stated, at [22]:
“…I accept the Applicant’s contention that, in a case like the present, an applicant could not be said to have been involved in an offence of trafficking in a commercial quantity of cannabis if he or she did not know or believe that the offender was cultivating the cannabis for sale or did not know or believe that there was a real or significant chance that the quantity of cannabis was not less than a commercial quantity.…
… knowledge includes willful blindness and “willful blindness” includes the actions of a person who deliberately refrains from making enquiries because he or she prefers not to have the result, or who otherwise willfully shuts his or her eyes for fear that they may learn the truth.”
However, because the whole of Mrs Le’s evidence had been rejected by the Judge below as being unreliable and the Court below found that she had knowledge of the cannabis in the two bedrooms, she was unable to satisfy the Court that she had a belief that the quantity of cannabis cultivated was less than a commercial quantity. Consequently, leave to appeal was refused.
