HOU -v- THE QUEEN [2003] WASCA 241

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 241
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:203/2000	Heard:	2 OCTOBER 2003
Coram:	MALCOLM CJ STEYTLER J PARKER J	Delivered:	2/10/03
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for leave to appeal against conviction dismissed for want of prosecution
Category:	C
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Parties:	WEI GUO HOU THE QUEEN
Catchwords:	Crown application for an order that the applicant's application for leave to appeal against conviction be dismissed for want of prosecution Applicant given numerous adjournments by the Court Applicant's attempt to explain his absence was deficient
Legislation:	Criminal Code (WA), s 378(7), s 697 Rules of the Supreme Court 1971, O 63 r 7
Case References:	Nicholson v The Queen, unreported; CCA SCt of WA; Library 980698; 7 December 1998 R v Mickelberg (1996) 90 A Crim R 126 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HOU -v- THE QUEEN [2003] WASCA 241 CORAM : MALCOLM CJ

STEYTLER J

PARKER J

HEARD : 2 OCTOBER 2003 DELIVERED : 2 OCTOBER 2003 FILE NO/S : CCA 203 of 2000 BETWEEN : WEI GUO HOU

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Crown application for an order that the applicant's application for leave to appeal against conviction be dismissed for want of prosecution - Applicant given numerous adjournments by the Court - Applicant's attempt to explain his absence was deficient

Legislation:

Criminal Code (WA), s 378(7), s 697

Rules of the Supreme Court 1971, O 63 r 7

(Page 2)

Result:

Application for leave to appeal against conviction dismissed for want of prosecution

Category: C

Representation:

Counsel:

Applicant : In person

Respondent : Mr B Fiannaca

Solicitors:

Applicant : In person

Respondent : State Director of Public Prosecutions

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

Nicholson v The Queen, unreported; CCA SCt of WA; Library 980698; 7 December 1998
R v Mickelberg (1996) 90 A Crim R 126

Case(s) also cited:

Nil

(Page 3)

1 JUDGMENT OF THE COURT: This is an application for an order that the applicant's application for leave to appeal against conviction be dismissed for want of prosecution. On 1 September 2000, the applicant was convicted after trial of one count of stealing as a servant contrary to s 378(7) of the Criminal Code.

2 On the same day he was sentenced to an intensive supervision order for 2 years with a requirement to perform 240 hours of community service work. The learned sentencing Judge also made a compensation order against the applicant in favour of CATIC Western Australia Pty Ltd, for the sum of $24,000.

3 The applicant applied for leave to appeal against the conviction by notice of appeal dated 18 September 2000. The facts relevant to the manner in which the appeal has proceeded is set out in an affidavit of Seamus Francis Rafferty sworn on 22 January 2003 and the…

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 Hou v The Queen

Details

AGLC: Hou v The Queen [2003] WASCA 241
Case: [2003] WASCA 241
Decision Date: 2 OCTOBER 2003

CaseChat Overview and Summary

The Crown applied to the Court for an order dismissing the defendant's application for leave to appeal against his conviction for want of prosecution. The defendant, who had been convicted, was attempting to appeal the decision. The application was heard in the High Court of Australia. The defendant had been granted multiple adjournments by the Court, and the Crown argued that the defendant's application was not being prosecuted with due diligence.

The legal issues before the Court were whether the defendant's application for leave to appeal against conviction should be dismissed for want of prosecution, and if so, whether the numerous adjournments granted by the Court constituted sufficient justification for the defendant's failure to prosecute the application. The Court also had to consider the defendant's attempt to explain his absence and whether it was sufficient to justify his failure to prosecute the application.

The Court found that the defendant's application for leave to appeal against conviction was indeed being prosecuted with insufficient diligence, and that the numerous adjournments granted by the Court did not constitute sufficient justification for the defendant's failure to prosecute the application. The Court also found that the defendant's attempt to explain his absence was deficient, and that it did not provide a satisfactory explanation for his failure to prosecute the application. The Court therefore dismissed the defendant's application for leave to appeal against conviction for want of prosecution.

The Court ordered that the defendant's application for leave to appeal against conviction be dismissed for want of prosecution. The defendant was given the opportunity to seek leave to appeal the decision, but the Court found that the defendant had not provided a sufficient explanation for his failure to prosecute the application. The Court therefore dismissed the defendant's application and upheld the original conviction.

Orders

Orders of the court

Application for leave to appeal against conviction dismissed for want of

prosecution

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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