Jang v Regina - [2012] NSWCCA 55

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jang v Regina [2012] NSWCCA 55
Hearing dates: 28 March 2012
Decision date: 05 April 2012
Before: Beazley JA at [1];
Harrison J at [20];
McCallum J at [21]
Decision:
(1) Refuse leave to extend time in which to file a notice of intention to appeal;
(2) Dismiss the notice of intention to appeal.

Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence - application made nearly 12 years out of time - whether Court should exercise discretion to extend time to file notice of intention to appeal, Criminal Appeal Act 1912, s 10(1)(b) - application refused
Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules
Cases Cited: Edwards v R [2009] NSWCCA 199
R v Lawrence (1980) 1 NSWLR 122
Category: Principal judgment
Parties: Soo Duck Jang (Applicant)
Regina (Respondent)
Representation: Counsel:
In person (Applicant)
S Dowling (Respondent)
Solicitors:
In person (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 1998/2762
Decision under appeal

Citation:

Regina v Jang [1999] NSWSC 1153

Date of Decision:

1999-12-03 00:00:00

Before:

Bell J

File Number(s):

070062/98

Judgment

BEAZLEY JA: On 18 October 1999, the applicant pleaded guilty to the murders of In Ja Yoo and Min Kyoung Kang on 8 April 1998. Ms Yoo was the applicant's wife and Ms Kang was her daughter. On 3 December 1999, Bell J imposed a head sentence of 24 years imprisonment with a non-parole period of 18 years in respect of each count of murder. Her Honour ordered that the sentences be served wholly concurrently.

The sentence hearing proceeded on the basis of a statement of agreed facts, together with the tender of witness statements and a number of exhibits, including the knife used in the murder and photographs of the murder scene. On the applicant's behalf, there were a number of references, reports of the psychologist, Dr Christopher Canaris and a report of a clinical social worker. The applicant was represented by counsel both at the time he pleaded guilty and on the sentence hearing.

On 19 October 2011, the applicant filed an application for leave to appeal against the severity of sentence. The application is out of time. A notice of intention to apply for leave to appeal against sentence is required to be filed within 28 days of a sentence being imposed: Criminal Appeal Act 1912, s 10(1)(a). A notice of application for leave to appeal must then be filed within 6 months of the filing of the notice of intention: Criminal Appeal Rules, cls 3A(1)(b) and 3B(1)(a).

The Court has a discretion to extend the time within which a notice of intention to apply for leave to appeal is to be filed: Criminal Appeal Act, s 10(1)(b). The discretion is not circumscribed by the terms of the section, but must be exercised judicially. However, it has been held that where there has been a significant delay, exceptional circumstances will need to be established before an…

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 Jang v Regina

Details

AGLC: Jang v Regina [2012] NSWCCA 55
Case: [2012] NSWCCA 55
Decision Date: 05 April 2012

CaseChat Overview and Summary

The appellant, Jang, sought leave to appeal against the severity of his sentence, which was handed down nearly twelve years prior. The case was heard in the High Court of Australia. Jang contended that the original sentence was manifestly excessive and oppressive, warranting a reduction. The central issue before the court was whether the Court should exercise its discretion to extend the time limit for filing a notice of intention to appeal, as stipulated in section 10(1)(b) of the Criminal Appeal Act 1912. The court needed to determine whether the significant delay in filing the notice of intention to appeal was justified under the circumstances and whether it was in the interests of justice to allow the appeal.

The High Court examined the principles governing the exercise of discretion to extend the time for filing a notice of intention to appeal. The court noted that while the Act does provide for the possibility of extending time, it also emphasised that the discretion must be exercised sparingly. The court considered the substantial delay in filing the notice of intention to appeal and the reasons provided by the appellant for the delay. Ultimately, the court concluded that the delay was unreasonable and that the appellant had failed to demonstrate any exceptional circumstances that would justify extending the time limit. The court held that it was not in the interests of justice to permit the appeal, given the significant passage of time and the lack of justification for the delay.

In light of the above, the High Court dismissed Jang's application for leave to appeal against the severity of his sentence. The court found that the appellant had not provided a sufficient explanation for the nearly twelve-year delay in filing the notice of intention to appeal, and that the interests of justice did not warrant extending the time limit. The court's decision reinforces the importance of adhering to statutory time limits for filing appeals and the need for compelling reasons to justify any extension of those limits. The application for leave to appeal was refused, and no appeal against the sentence was permitted.

Orders