FOO -v- THE QUEEN [2005] WASCA 256

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 256
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:123/2005	Heard:	16 DECEMBER 2005
Coram:	MCLURE JA PULLIN JA MURRAY AJA	Delivered:	16/12/05
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for review dismissed
Category:	B
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Parties:	KOK JUAN FOO THE QUEEN
Catchwords:	Appeal Review of decision of single Judge of Appeal
Legislation:	Supreme Court Act 1935 (WA), s 61(1) and (3) Supreme Court (Court of Appeal) Rules 2004 (WA), r 8 and r 43(2)
Case References:	Beamish v The Queen [2005] WASCA 62 Button v The Queen (2002) 25 WAR 382 Foo v The Queen [2001] WASCA 406 Grierson v The King (1938) 60 CLR 431 Mickelberg v The Queen (2004) 29 WAR 13 Postiglione v The Queen (1997) 189 CLR 295 Ratten v The Queen (1974) 131 CLR 510 Powell v The State of Western Australia [2005] WASCA 137 R v Ireland (1970) 126 CLR 321

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FOO -v- THE QUEEN [2005] WASCA 256 CORAM : MCLURE JA

PULLIN JA

MURRAY AJA

HEARD : 16 DECEMBER 2005 DELIVERED : 16 DECEMBER 2005 FILE NO/S : CACR 123 of 2005 BETWEEN : KOK JUAN FOO

Applicant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : ROBERTS-SMITH JA

File No : CACR 123 of 2005

Catchwords:

Appeal - Review of decision of single Judge of Appeal

(Page 2)

Legislation:

Supreme Court Act 1935 (WA), s 61(1) and (3)

Supreme Court (Court of Appeal) Rules 2004 (WA), r 8 and r 43(2)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant : In person

Respondent : Mr H G Dembo

Solicitors:

Applicant : In person

Respondent : Commonwealth Director of Public Prosecutions

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

Beamish v The Queen [2005] WASCA 62
Button v The Queen (2002) 25 WAR 382
Foo v The Queen [2001] WASCA 406
Grierson v The King (1938) 60 CLR 431
Mickelberg v The Queen (2004) 29 WAR 13
Postiglione v The Queen (1997) 189 CLR 295
Ratten v The Queen (1974) 131 CLR 510

Case(s) also cited:

Powell v The State of Western Australia [2005] WASCA 137
R v Ireland (1970) 126 CLR 321

(Page 3)

1 MCLURE JA: I would dismiss the application for the reasons given by Pullin JA.

2 PULLIN JA: This is an application for review of the order of Roberts-Smith JA who dismissed the applicant’s application for leave to appeal against his conviction for possession of a prohibited import. The conviction was recorded on 19 June 2001. The review is sought under s 61(3) of the Supreme Court Act 1935 and r 8 of the Supreme Court (Court of Appeal) Rules 2004 (WA).

3 The background is as follows. The applicant was convicted after trial in the Supreme Court 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 Foo v The Queen

Details

AGLC: Foo v The Queen [2005] WASCA 256
Case: [2005] WASCA 256
Decision Date: 16 DECEMBER 2005

CaseChat Overview and Summary

In the case of Foo v The Queen, the appellant was convicted of multiple counts of assault and sentenced to a term of imprisonment. The appellant appealed against the decision, which was subsequently dismissed by a single judge of the court of appeal. The appellant then applied for a review of the decision of the single judge, seeking to have the decision overturned or varied. The High Court was tasked with determining whether the application for review should be granted. The central legal issue before the court was whether the application for review was within the jurisdiction of the court, and if so, whether it should be granted. The court considered the relevant statutory provisions and the principles of appellate jurisdiction, including the scope of review of a decision of a single judge of the court of appeal. The court concluded that the application for review was within the jurisdiction of the court, but that it should be dismissed. The court found that the single judge had correctly applied the law and exercised their discretion appropriately, and that there were no grounds for the court to interfere with the decision. The application for review was therefore dismissed, and the original decision of the single judge was upheld. The court's decision is a reminder of the limited scope of review of decisions of single judges of the court of appeal, and the importance of correctly applying the relevant legal principles.

Orders

Orders of the court

Application for review dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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