Chowdhury v Kenny [No 2]
[2012] WASCA 35
•17 FEBRUARY 2012
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 knife from the kitchen bench and pointed it towards the complainant. The appellant used the knife to stab the complainant once in the face near his right eye and once in his right shoulder. The knife caused a small laceration to the shoulder and a puncture wound to the complainant's face next to his eye. The complainant locked himself in the pantry to prevent the appellant attacking him further.
The complainant asked the appellant to take him to hospital but the appellant said he could not drive as his vehicle was at the mechanics and he was unable to drive the complainant's vehicle as it was a manual. The complainant came out of the pantry and fled the house. He drove his vehicle to the Kelmscott train station where transit officers called an ambulance. The complainant went to Armadale‑Kelmscott Memorial Hospital and was later transferred to Royal Perth Hospital for surgery.
The appellant left the house on foot at the same time as the complainant but headed in the opposite direction. Upon his return to the Kelmscott address, the appellant was taken by police to the Armadale police station where he made full admissions.
Relying on documentation filed by the appellant in the single judge appeal, the primary judge identified the ground of appeal against conviction as being the appellant's claim that he had a good defence to the charge, being self‑defence. The facts on which the appellant relied in the single judge appeal in support of self‑defence had not been disclosed by the appellant to police or to the Magistrates Court or to the authors of the pre‑sentence and psychological reports. A document filed by the appellant in the single judge appeal recorded:
At the time of accident with me, [the victim] was laughing and was ready to hit me physically. I am sure if he would hit me, I would be seriously injured because he knows ninjutsu. So to protect myself from him, I had done the shameful work and I am seriously regretted and paid very high cost. I have done this shameful act to save myself from his attack [4].
The primary judge correctly identified the principles that apply where an appellant seeks to set aside a conviction based on a plea of guilty. See Hogue v The State of Western Australia [2005] WASCA 102 [22]; Mikulic v The State of Western Australia [2011] WASCA 14 [23]. The primary judge was also correct in her assessment that there was no proper foundation on which to conclude that the appellant did not understand the nature of the charge or did not intend to admit guilt or that, on the admitted facts, the appellant could not in law have been guilty of the offence. The reference in the authorities to the admitted facts is to the unchallenged facts at the sentencing hearing. The primary judge continued:
The material attached to the notice of appeal does not indicate that the appellant could not in law have been guilty of the offence. It indicates that he may have been able to raise the defence of self defence. However, the material is by no means sufficient to satisfy me that he could not be guilty of the offence. To stab someone twice with a knife because someone was laughing at you and was 'ready to hit' you is material which falls substantially short of satisfaction that the offender could not be guilty of the offence [29].
The primary judge treated the material attached to the notice of appeal as admissible evidence. In the appeal to this court, the appellant relied on an affidavit in which he swears to the correctness of the new material placed before the primary judge. He explains his very late
disclosure of the material on his lack of knowledge of the law and omissions by his legal representative in the Magistrates Court. However, there is no suggestion the appellant had informed his lawyer of the material.
The evidence relied on for the defence is new not fresh. An appellate court will not allow an appeal unless the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied the appellant should not have been convicted: Lawless v The Queen (1979) 142 CLR 659, 675‑ 676; DPJB v The State of Western Australia [2010] WASCA 12 [66]. The new evidence falls well short of establishing either. Moreover, in considering whether the new evidence is capable of giving rise to a miscarriage of justice, the court must be satisfied that the new evidence has cogency and plausibility: Lawless v The Queen (676 ‑ 677). It fails that test. The appellant had multiple opportunities in which it was reasonable to expect him to have volunteered the information which he relied on for the first time in the single judge appeal.
The appellant has failed to demonstrate any arguable miscarriage of justice that would entitle him to set aside his conviction which was entered upon his plea of guilty to the offence.
Further, I agree with the primary judge for the reasons she gives that there is no arguable claim that the magistrate erred in imposing an intensive supervision order and rejecting the appellant's request for a spent conviction order.
Leave to appeal to this court should be refused and the appeal dismissed.
BUSS JA: I agree with McLure P.
MAZZA JA: I agree with McLure P.
9
5
1