Chowdhury v Kenny [No 2] - [2012] WASCA 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHOWDHURY -v- KENNY [No 2] [2012] WASCA 35

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 24 JANUARY 2012

DELIVERED : 17 FEBRUARY 2012

FILE NO/S: CACR 239 of 2010

BETWEEN: MOHAMMAD CHOWDHURY
Appellant
AND
SAMANTHA MARGARET KENNY
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
Citation  :CHOWDHURY -v- KENNY [2010] WASC 348
File No  :SJA 1087 of 2010

Catchwords:

Criminal law - Appeal against conviction and sentence - Whether conviction entered upon plea of guilty should be set aside - Self-defence raised for first time on appeal - Admissibility of new evidence - Turns on own facts

Legislation:

Criminal Code (WA), s 301(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Chowdhury v Kenny [2010] WASC 348
DPJB v The State of Western Australia [2010] WASCA 12
Hogue v The State of Western Australia [2005] WASCA 102
Lawless v The Queen [1979] HCA 42; (1979) 142 CLR 659
Mikulic v The State of Western Australia [2011] WASCA 14

McLURE P: This is an application for leave to appeal from orders made by Jenkins J on 11 November 2010 dismissing the appellant's application for leave to appeal against his conviction and sentence in the Magistrates Court on one charge of unlawful wounding contrary to s 301(1) of the Criminal Code (WA). The appellant pleaded guilty to the offence and was sentenced on 30 April 2010 by Magistrate Langdon to an intensive supervision order for a period of 12 months.
The appellant was legally represented in the Magistrates Court. He represented himself in both the single judge appeal and in the appeal to this court. The events in the Magistrates Court are fully detailed in the reasons of Jenkins J: Chowdhury v Kenny [2010] WASC 348 [6] ‑ [25]. For present purposes it is sufficient to refer to the unchallenged statement of material facts relied on by the court for sentencing purposes.
On Monday 30 November 2009, the appellant was at his home in Kelmscott. The appellant and the complainant had shared the house in Kelmscott since September 2009. The complainant had been at work for most of the evening and arrived home at 11.45 pm. The complainant spoke to the appellant who was standing in the kitchen. The appellant and the complainant began to argue over money owed to the appellant by the complainant. The complainant told the appellant he had not been paid from his work and therefore was unable to pay the money owed. The appellant continually asked the complainant for the money owed, as he stated he had to pay the rent. The complainant continued to claim he did not have the money to pay.
The appellant became angry and picked up a 20 cm…

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.

Keep reading for free

Create a free CaseChat account to read Chowdhury v Kenny [No 2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] WASCA 35
Decision Date: 17 FEBRUARY 2012

CaseChat Overview and Summary

The appellant, Chowdhury, appealed against his conviction and sentence for assault occasioning actual bodily harm. The appeal was heard in the Supreme Court of Victoria. Chowdhury had pleaded guilty to the charge but sought to have the conviction set aside on the basis of self-defence, which he raised for the first time on appeal. Additionally, Chowdhury argued that new evidence, which he sought to introduce, should be considered by the court.

The legal issues the court was required to decide were whether the conviction should be set aside given the late plea of self-defence, and whether the new evidence should be admitted. The court considered whether the principles of finality and final justice were paramount, or whether there were exceptional circumstances that warranted reconsideration of Chowdhury's plea and the introduction of new evidence.

The court held that the conviction should not be set aside as the plea of self-defence was raised for the first time on appeal. The court emphasised the importance of finality in criminal proceedings and the need to prevent unnecessary prolongation of litigation. The court further found that the new evidence was inadmissible as it was not available at the time of the original trial and its admission would undermine the integrity of the judicial process. The appeal was dismissed.

No specific orders were made beyond the dismissal of the appeal. The conviction and sentence for assault occasioning actual bodily harm remained in place.

Orders