Ching v The Queen - [2024] WASCA 112

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHING -v- THE QUEEN [2024] WASCA 112
CORAM:   BUSS P
HALL JA

HEARD:   21 JUNE 2024
DELIVERED          :   24 SEPTEMBER 2024
FILE NO/S:   CACR 142 of 2018
BETWEEN:   FOOK CHOI CHING
Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
File Number            :   INS 62 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant filed an appeal notice in July 2018 in respect of his conviction - Appellant filed a discontinuance notice in November 2018 - Appellant lodged another appeal notice in April 2024 in respect of the same conviction - Whether an offender may bring to this court a second or subsequent appeal against conviction, pursuant to s 35E of the Criminal Appeals Act 2004 (WA), if the offender began an initial appeal against the same conviction but filed a discontinuance notice before this court determined the merits of the initial appeal

Legislation:

Criminal Appeals Act 2004 (WA), pt 3A
Criminal Code (Cth), s 307.1(1)

Result:

Second appeal notice lodged by the appellant in April 2024 not accepted for filing

Category: B

Representation:

Counsel:

Appellant	:	J A O'Hara
Respondent	:	L Glenn

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions (Cth)

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

Tang v The Queen [2024] WASCA 110

JUDGMENT OF THE COURT:

On 14 December 2017, the appellant was convicted after a trial before Fiannaca J and a jury of one count of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth).
The count related to about 182 kg of methamphetamine that was landed on the Western Australian coast by a tender launched from a fishing vessel.
The appellant and three co‑offenders collected the drug from the landing site.
On 26 June 2018, the trial judge sentenced the appellant to 23 years' imprisonment with a non‑parole period of 15 years. The sentence was backdated to 23 May 2016 to take account of time the appellant had spent in custody on remand.
On 17 July 2018, the appellant filed an appeal notice (the initial appeal notice) in respect of his conviction. The draft ground of appeal in the initial appeal notice alleged that '[t]here was a miscarriage of justice when the trial [j]udge misdirected the jury in relation to the elements of the offence'. The file number for the initial appeal was CACR 142 of 2018. When he filed the initial appeal notice the appellant was legally represented.
On 28 November 2018, the appellant filed a discontinuance notice in respect of the initial appeal. When he filed the discontinuance notice the appellant was legally represented.
On 29 November 2018, the Acting Court of Appeal Registrar signed a certificate of conclusion of criminal appeal (Form 17) in respect of the initial appeal on the basis of the discontinuance notice.
On 29 April…

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 Ching v The Queen

Details

AGLC: Ching v The Queen [2024] WASCA 112
Case: [2024] WASCA 112
Decision Date: 24 SEPTEMBER 2024

CaseChat Overview and Summary

The appellant, Ching, sought to appeal his conviction through the Court of Appeal in Western Australia. The original appeal was filed in July 2018, but a discontinuance notice was submitted in November 2018, leading to the withdrawal of the initial appeal. In April 2024, Ching filed a new appeal notice, prompting the Court to consider whether a second or subsequent appeal against the same conviction was permissible under section 35E of the Criminal Appeals Act 2004 (WA). The crux of the legal issue was whether the appellant could appeal again after previously initiating an appeal that was discontinued before its merits were determined.

The Court examined the statutory provisions and the context in which the initial appeal was discontinued. It considered the purpose of section 35E, which governs the rights of offenders to appeal against conviction. The Court found that the provision does not explicitly preclude an offender from filing a second appeal after discontinuing an initial one. However, the Court also emphasised the need to interpret the legislation in a manner that aligns with the legislative intent and the principles of fairness and justice. The Court concluded that allowing a second appeal in such circumstances would not be consistent with the intent of the legislation, which aims to provide a final and conclusive resolution to criminal appeals.

In light of the above, the Court determined that an offender may not bring a second or subsequent appeal against a conviction if the offender previously filed an appeal that was discontinued before the merits of the initial appeal were determined. The Court emphasised the importance of adhering to the statutory framework and the principle of finality in criminal appeals. Consequently, the Court dismissed the appellant's second appeal notice, affirming that the initial discontinuance notice precluded any subsequent appeal against the same conviction. The Court's decision underscored the importance of adhering to procedural requirements and the finality of appeal decisions in criminal matters.

Orders