Chen v The Queen - [2017] VSCA 335

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0242

GUANG CHEN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN, WHELAN and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 335
JUDGMENT APPEALED FROM:	DPP v Chen & Anor (Unreported, County Court of Victoria, Judge Ryan, 13 June 2014)

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ELECTION TO HAVE APPLICATION FOR EXTENSION OF TIME DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 313(2) OF THE
CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Leave to Appeal – Conviction – Application for extension of time – Election to renew application – Interests of justice – Delay – Merits of proposed appeal – Application for extension of time refused.

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APPEARANCES:

Counsel

Solicitors

No Oral hearing. By consent the matter was decided having regard to the written materials filed by the parties.

OSBORN JA

WHELAN JA
ASHLEY JA:

On 26 May 2014, Guang Chen (conveniently ‘the applicant’) was found guilty after an eight day trial in the County Court of attempting to traffick in not less than a commercial quantity of pseudoephedrine (charge 1) and of trafficking in not less than a commercial quantity of pseudoephedrine (charge 2). On the same day, Zi Chen, the applicant’s son, was convicted of attempting to possess pseudoephedrine (charge 3). Three days later, Zi Chen pleaded guilty to dealing with money reasonably suspected of being the proceeds of crime, the amount in question being $42,000 (charge 4).

On 13 June 2014, after a plea in mitigation, the trial judge sentenced the applicant to seven years’ imprisonment on charge 1 and to five years’ imprisonment on charge 2. He ordered that two years of the sentence imposed on charge 2 be served cumulatively on the sentence imposed on charge 1. The total effective sentence was thus nine years’ imprisonment. The judge fixed a non-parole period of six and a half years’ imprisonment.

On the same day, the judge sentenced Zi Chen to a community correction order for a three year period with conditions on charge 3, and to a community correction order for a two year period with conditions on charge 4.

The applicant sought leave to appeal against sentence. Priest JA granted leave on 5 November 2014. The appeal was eventually heard on 14 September 2015. By that time, the applicant had engaged and thereafter dispensed with the services of three firms of solicitors. Of this, more later. In the event, his appeal was allowed and a total effective sentence of six years’ imprisonment was imposed, with a non-parole period of four years.

On 16 November 2016 — that is, some two and a half years after the jury had returned its verdict — the applicant filed four documents. Thus —

(a)an application for an extension of time to file notice of application for leave to appeal against conviction, evidently prepared by the applicant himself. It ran to 59 paragraphs, providing a chronology of…

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 Chen v The Queen

Details

AGLC: Chen v The Queen [2017] VSCA 335
Case: [2017] VSCA 335
Decision Date: 17 November 2017

CaseChat Overview and Summary

The case of Chen v The Queen involved an appeal against a conviction, with the appellant seeking leave to appeal and an extension of time for filing the application. The appellant had initially applied for leave to appeal but subsequently sought an extension of time to file the application due to delay. The High Court was tasked with deciding whether to grant the application for an extension of time, considering the interests of justice and the merits of the proposed appeal.

The legal issues before the court were whether the appellant's delay in filing the application for leave to appeal could be justified, and whether granting an extension of time would be in the interests of justice. The court had to weigh the reasons for the delay against the need to maintain the integrity of the legal process and ensure that appeals are not unduly delayed. The merits of the proposed appeal were also considered to determine if the appeal had a reasonable chance of success.

In its reasoning, the court acknowledged the appellant's reasons for the delay but ultimately found that the delay was not sufficiently justified to warrant an extension of time. The court emphasised the importance of timely applications for leave to appeal to maintain the efficiency of the legal system. The court also considered the merits of the appeal and found that the proposed appeal did not have a reasonable chance of success. Consequently, the application for an extension of time was refused, and the appeal against the conviction was dismissed.

No specific final orders were made in the text, but it can be inferred that the appeal against the conviction was dismissed, and the application for an extension of time was refused.

Orders