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 2024, the appellant lodged another appeal notice (the second appeal notice), purportedly pursuant to s 35E of the Criminal Appeals Act 2004 (WA), in respect of his conviction. The draft grounds of appeal in the second appeal notice alleged that:
(a)'Compelling fresh evidence proved beyond reasonable doubt that there was no evidence that the substance namely methamphetamine was imported';
(b)'Police investigation was grossly [inaccurate] and led to [a] miscarriage of justice'; and
(c)'Investigation used unconfirmed, uncorroborated evidence to [convict] the appellant. Mr Yuen Kuan Chong was one of the co‑offenders, he was the only person [who] helped the investigating authority, he traded with the untruth, uncorroborated evidence to gain favour and enjoyed the benefit of [a] lesser charge. He also pushed his own involvement to [others] in order to show that he was a lesser/lower person in the enterprise'.
When he lodged the second appeal notice the appellant was not legally represented.
On 13 May 2024, the Acting Court of Appeal Registrar sent a registrar's notice to attend a hearing on 21 June 2024 for the purpose of considering whether the second appeal, sought to be commenced by the appellant pursuant to s 35E of the Criminal Appeals Act, was competent.
At the hearing on 21 June 2024, Mr O'Hara of counsel appeared for the appellant and Mr Glenn of counsel appeared for the respondent.
In our opinion, the second appeal notice lodged by the appellant should not be accepted for filing, on the basis that the second appeal is incompetent, because this court's jurisdiction in respect of the initial appeal begun by the appellant, including in respect of the discontinuance notice, has not been exhausted. This court's jurisdiction in respect of the initial appeal will not be exhausted unless and until, relevantly:
(a)the appellant brings an application in the initial appeal for leave to withdraw his discontinuance notice and for an order setting aside the related certificate of conclusion of criminal appeal, and this court refuses to grant leave to withdraw and refuses to make an order setting aside the related certificate of conclusion; or
(b)the appellant is precluded by an order of this court from making an application for leave to withdraw the discontinuance notice and for an order setting aside the related certificate of conclusion of criminal appeal.
See Tang v The Queen.[1]
[1] Tang v The Queen [2024] WASCA 110.
After hearing submissions from counsel for the appellant and counsel for the respondent, this court ordered at the hearing on 21 June 2024 that:
(1)By 4.00 pm on 16 August 2024 the appellant must inform the court and the respondent in writing whether the appellant contends that the discontinuance notice he filed on 28 November 2018 should be set aside on the ground that the discontinuance notice is a nullity, alternatively on the ground that the court in the exercise of its discretion should grant the appellant leave to withdraw the discontinuance notice.
(2)If the appellant does not comply with order (1) or if the appellant complies with order (1) and does not contend that the discontinuance notice should be set aside, alternatively that the appellant should be granted leave to withdraw the discontinuance notice, then the appellant may not subsequently make an application for the discontinuance notice to be set aside or for leave to withdraw the discontinuance notice.
On 19 August 2024, Buss P granted the appellant an extension of time to 4.00 pm on 27 August 2024 to comply with order (1) of the orders made by the court at the hearing on 21 June 2024.
Prior to 4.00 pm on 27 August 2024, the appellant, who is again self‑represented, informed the court, in effect, that he contends that the discontinuance notice he filed on 28 November 2018 should be set aside on the ground that the discontinuance notice is a nullity, alternatively on the ground that the court in the exercise of its discretion should grant the appellant leave to withdraw the discontinuance notice.
On 9 September 2024, Buss P ordered that by 4.00 pm on 18 September 2024 the appellant must file and serve an application in the initial appeal (that is, in CACR 142 of 2018) for the discontinuance notice to be set aside or for leave to withdraw the discontinuance notice.
In the circumstances, it is appropriate that this court now makes an order that the second appeal notice lodged by the appellant on 29 April 2024 not be accepted for filing on the basis that the second appeal, sought to be commenced pursuant to s 35E of the Criminal Appeals Act, is incompetent.
Finally, we note, for completeness, that it is unnecessary, in view of the appellant having filed the application in the initial appeal for leave to withdraw the discontinuance notice and for an order setting aside the certificate of conclusion of criminal appeal, to decide comprehensively how and when the court's jurisdiction in respect of an initial appeal will be exhausted.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
24 SEPTEMBER 2024