Luo v The King
[2025] WASCA 36
•14 MARCH 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LUO -v- THE KING [2025] WASCA 36
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 18 JULY 2024
DELIVERED : 14 MARCH 2025
FILE NO/S: CACR 23 of 2024
BETWEEN: JIE LUO
Appellant
AND
THE KING
Respondent
FILE NO/S: CACR 28 of 2024
BETWEEN: KAI CHEONG LAW
Appellant
AND
THE KING
Respondent
ON APPEAL FROM:
For File No: CACR 23 of 2024
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
File Number : INS 62 of 2017
For File No: CACR 28 of 2024
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
File Number : INS 62 of 2017
Catchwords:
Criminal law - Appeal against conviction - Second and subsequent appeals - Appellants convicted of importing a commercial quantity of methamphetamine in 2017 - Appellants' appeals against conviction dismissed in 2020 - Whether leave to appeal should be granted under s 35F of Criminal Appeals Act 2004 (WA) - Whether grounds of appeal allege fresh and compelling or new and compelling evidence within meaning of s 35D of Criminal Appeals Act
Legislation:
Criminal Appeals Act 2004 (WA), pt 3A
Criminal Code (Cth), s 11.2A, s 307.1
Supreme Court (Court of Appeal) Rules 2005 (WA), r 28A
Result:
CACR 23 of 2024
Application to adduce evidence dismissed
Leave to appeal on grounds 1, 2 and 3 refused
Appeal dismissed
CACR 28 of 2024
Application to adduce evidence dismissed
Leave to appeal on grounds 1 and 2 refused
Appeal dismissed
Category: B
Representation:
CACR 23 of 2024
Counsel:
| Appellant | : | In person |
| Respondent | : | L Glenn |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (Cth) |
CACR 28 of 2024
Counsel:
| Appellant | : | In person |
| Respondent | : | L Glenn |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Austic v The State of Western Australia [2020] WASCA 75; (2020) 57 WAR 39
CGF v The State of Western Australia [2023] WASCA 187
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505
Law v The Queen [2020] WASCA 196
Luo v The Queen [2020] WASCA 184
Tang v The Queen [2024] WASCA 110
JUDGMENT OF THE COURT:
On 14 December 2017, the appellants, Jie Luo and Kai Cheong Law, were each convicted of one count of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). On 26 June 2018, Mr Law was sentenced to 26 years' imprisonment with a 16‑year non‑parole period. On 28 June 2018, Mr Luo was sentenced to 23 years' imprisonment with a 15‑year non‑parole period.
The appellants appealed against their conviction. Their appeals were dismissed. See Luo v The Queen[1] (Mr Luo's first appeal) and Law v The Queen[2] (Mr Law's first appeal).
[1] Luo v The Queen [2020] WASCA 184.
[2] Law v The Queen [2020] WASCA 196.
Prior to the commencement of pt 3A of the Criminal Appeals Act 2004 (WA) (CAA) on 1 January 2023, there was but one appeal (with leave) against conviction of an offence on indictment. An offender was not entitled to commence multiple appeals against the same conviction. See Tang v The Queen.[3] Part 3A of the CAA confers, with retrospective effect, a second or subsequent right of appeal against conviction of an offence on indictment, but only in circumstances limited to there being fresh and compelling or new and compelling evidence relating to the offence.[4]
[3] Tang v The Queen [2024] WASCA 110 [15].
[4] CAA, s 35E(1).
On 7 March 2024, Mr Luo filed an appeal notice under pt 3A of the CAA (Mr Luo's second appeal). On 14 March 2024, Mr Law filed an appeal notice under pt 3A (Mr Law's second appeal). The principal issue to be determined in these proceedings is whether leave to appeal should be granted in respect of the grounds advanced in each of the second appeals.
In support of the second appeals, each of the appellants has filed two applications. The first application seeks leave to adduce evidence in the appeals. The additional evidence sought to be adduced by each appellant is identical, being affidavits sworn by the appellants themselves and four of their co‑offenders. Each appellant asserts that this material constitutes fresh and compelling evidence upon which this court should allow their second appeals. The second application is for witness summonses to issue to the deponents of the affidavits.
Throughout the present proceedings, Mr Luo and Mr Law have represented themselves. At the hearing on 18 July 2024, an interpreter was available to assist them. Each appellant chose to make oral submissions in respect of the applications referred to at [4] and [5] above. At the conclusion of the hearing, other than in respect of the applications for the issue of witness summonses, the court reserved its decision. The applications for the issue of witness summonses were dismissed.
On 25 July 2024, the Court of Appeal office received written submissions from the appellants headed, 'Why Appellant's second appeal should be allowed to proceed for hearing'. In fairness to the appellants, the court has had regard to these submissions, along with all of the other material filed in respect of the second appeals. In each appeal, this material includes written submissions filed by each appellant in their appellant's case and also in a document filed on 28 June 2024.
The reasons that follow explain why we would refuse leave to appeal in respect of the grounds of appeal relied upon by each of Mr Luo and Mr Law and dismiss their applications to adduce additional evidence. We will also explain why we joined with the other members of the court to dismiss the applications to issue witness summonses.
Before addressing the applications currently before this court, we will say something about the appellants' trial and their appeals. What follows is drawn predominantly from the judgments in Luo and Law referred to above.
The trial
The Crown's case at trial against Mr Luo and Mr Law may be summarised in this way.
The appellants were part of a crew of eight persons that sailed a fishing vessel, named 'Megaprofit II' (also referred to at the trial and in these proceedings as 'M 65535A') from Hong Kong to waters off the coast of Western Australia, in the vicinity of Port Denison. The vessel carried at least 182.41 kg (145.6 kg pure weight) of methamphetamine. The vessel was equipped with a tender.
The vessel was observed by Australian Border Force (ABF) officers on 27 April 2016, about 380 nautical miles off the coast of Western Australia, moving in a southerly direction towards Geraldton. A tender was observed at the back of the vessel. A significant number of empty polystyrene boxes were stacked on the deck of the vessel as a disguise to make it appear to be fishing. There was, in fact, no fishing equipment on board, and the vessel was not set up for a fishing expedition.
Between 5.00 pm and 7.00 pm on 30 April 2016, crew members on the vessel loaded not less than 182.41 kg of methamphetamine in black bags from the vessel onto the tender. The crew launched the tender using a crane or davit on the vessel, from a location about 100 nautical miles offshore. The tender was crewed by two men. The Crown did not allege that the appellants were on the tender.
In the early hours of 1 May 2016, the tender, transporting the methamphetamine, landed at a location on the Western Australian coast, about 30 km south of Port Denison. Waiting on shore at the location were four persons, Yuen Kuan Chong, Fook Choi Ching, Chee Seng Tang, and Kian Kee Tan.[5]
[5] Mr Tan, who was referred to at the trial as 'Fat Boy', departed Perth before being arrested and was not charged with the offending.
Fifteen black bags containing the methamphetamine were deposited on the beach from the tender. Five bags of cooking salt produced in Australia, which had apparently been purchased in Perth on 26 April 2016, were collected by the tender and were later found on the vessel.
Fourteen of the black bags were loaded into the vehicles brought by the shore crew at some time between 5.30 am and 6.15 am on 1 May 2016. The vehicles proceeded to the Wilbinga rest stop, located about 70 km north of the Perth CBD. There, the men met Kinboon Yong and Teck Kong Wong. Mr Yong drove a vehicle containing the 14 bags of methamphetamine to Perth, while Mr Wong drove back in a Toyota Hilux.
At some point, someone in the group realised that they were missing one of the 15 bags. A vehicle returned to the landing site and retrieved the bag that had been left behind.
At about 12.40 pm on 1 May 2016, ABF officers observed the tender tracking towards the vessel. The tender rendezvoused with the vessel, and was then retrieved, with some difficulty, using the crane or davit.
At about 5.55 pm on 1 May 2016, the vessel was intercepted and boarded by ABF officers and Western Australian police officers. There were eight crew on board, including Mr Luo and Mr Law. The vessel was detained and taken back to Geraldton. All those on board the vessel were arrested.
Between 2 and 6 May 2016, the vessel was thoroughly examined by Australian Federal Police (AFP) officers. The external appearance of it was of a run‑down fishing boat, but the vessel contained quite sophisticated navigation and surveillance equipment which was not entirely consistent with its external appearance. The tender was stowed on board and was assessed to be of a fairly high quality and high value, capable of travelling at relatively high speeds. The vessel was carrying about 60 tonnes of fuel. There were various concealed areas on the vessel, including in the fuel tanks themselves.
During the search of the vessel and tender, law enforcement officers located:
(1)five bags of salt that had been purchased on 26 April 2016 in Perth, of a brand sold exclusively by independent supermarkets in Australia;
(2)five satellite telephones, GPS devices, electronic data storage cards, and navigational equipment relevant to Australia and its waters with stickers bearing the letters 'AU';
(3)a sealing machine with 13 rolls of clear tape and a packet of large plastic;
(4)small quantities of methamphetamine, which were retrieved from within a number of black‑coloured nylon bags of the same type as the bags that were subsequently retrieved from the home of Mr Yong;
(5)an orange‑coloured length of rope of a similar type as that found at Mr Yong's home and parts of which were found at the landing site; and
(6)a piece of paper, on which was written GPS coordinates of the landing site, which was found in the cabin area of the vessel.
It took some time for law enforcement authorities to locate the methamphetamine which had been brought ashore on the tender. Eventually, search warrants were executed at various addresses between 20 and 23 May 2016. On 21 May 2016, about 131 kg of methamphetamine (about 105 kg pure weight) was located at an address in East Cannington that had been leased by Mr Yong. On 23 May 2016, about 51 kg of methamphetamine (about 40 kg pure weight) was located at an address in Embleton occupied by Yokay Chan Chin. The prosecution case was that the methamphetamine found at the addresses was landed at the landing site by the tender from the vessel.
Mr Luo was interviewed on 3 May 2016 by an AFP officer. On 25 May 2016, a second interview was conducted by two other AFP officers. The interviews were conducted with the assistance of Cantonese interpreters, and were recorded by audio‑visual means. In these interviews, Mr Luo said that he lived in Guangdong province in China and had worked as an ocean fisherman. He said that the vessel departed from the coastal Chinese city of Zhuhai, and that he had driven it. He said that he did not know who owned the vessel, or where it was going. He said that no particular duties were assigned to any particular persons on the vessel, and there was no designated captain. He said that he had been engaged to drive the vessel, and was to be paid CN¥6,000 for one month's work when he got back to China. In effect, he denied knowing the purpose of the voyage or its destination. He said that he did not know that there were drugs on board the vessel. Mr Luo also said that he had never seen the tender leave the vessel. He denied, in effect, handling any of the black bags which were alleged to contain the methamphetamine.
Mr Law was also interviewed by law enforcement officers on 3 May 2016 as well as on 24 May 2016. Both interviews were recorded by audio‑visual means and assisted by a Cantonese interpreter. Mr Law told police that he was born in Hong Kong and was 57 years of age. The only job he ever had was as a taxi driver. Mr Law said, in effect, that he was asked by a friend to go on the vessel for 'half a month'. Mr Law said that he did not know where the vessel was going, or why his friend wanted him to go on board. He said that he did not do anything on the vessel other than eat, sleep, and go to the toilet.
Mr Law also said in his interview that he did not know anything about the tender leaving the vessel. He told the officers who interviewed him on 24 May 2016 that he was going to be paid $HK100,000 when he returned. He did not know what he was being paid $HK100,000 for.
The Crown case was that the appellants and others were participants in a well‑organised international venture to import a very large quantity of methamphetamine from China to Australia. The venture was instigated and coordinated offshore by an unknown group of persons, and involved two separate groups. One of which sailed the vessel to Australia and landed the drugs. The other group took delivery of the drugs, and then stored and repackaged them. The groups did not communicate with each other, and each group was directed and resourced by an unknown third party, probably in Malaysia.
The case against Mr Luo, Mr Law, and the other crew of the vessel was that by 1 May 2016, they were fully aware that they were involved in a venture to deliver a large quantity of methamphetamine, in the order of 182 kg, to Australia. It was alleged that each of the crew members (including the appellants) must have known:
(1)there was no fishing gear on the vessel, no fish and no intention to fish;
(2)the tender was loaded with 15 bags containing a substance weighing in the order of 182 kg;
(3)the tender was launched using the crane or davit at the rear of the vessel, and that some of their number piloted that tender, at substantial personal risk, on open seas over several hours;
(4)the tender returned and was retrieved (with some difficulty) using the same crane or davit at the rear of the vessel; and
(5)the 15 bags containing the substance were no longer in the tender when it came back, and that there were five bags of salt which had come from land.
As against Mr Luo, it was alleged he skippered the boat. As against, Mr Law, it was alleged that he supervised or managed the other members of the crew.
In essence, the Crown's case against the appellants (but not the other co‑accused on the vessel) was that they knowingly played leading roles in navigating the vessel, with the methamphetamine on board, on its journey from the People's Republic of China to Australia. The Crown's case against the appellants as to their participation in the importation was circumstantial.
The Crown also alleged that some of the exculpatory statements made by each of the appellants in their interviews were false and were told out of a consciousness of guilt; that is, they were lies to which the principles laid down by the High Court in Edwards v The Queen[6] applied (Edwards lies).
[6] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
As noted, the appellants were charged with an offence under s 307.1(1) of the Criminal Code. The Crown appears, ultimately, to have relied on s 11.2A of the Criminal Code to establish the criminal responsibility of Mr Luo and Mr Law for the importation offence.
The elements of the offence alleged against Mr Luo and Mr Law (as well as the other alleged offenders on the boat) were left to the jury by the trial judge as follows:[7]
[I]n order to find the [appellant] guilty of the offence of importing a commercial quantity of a border controlled drug, you must be satisfied beyond reasonable doubt that -
1. the accused entered into an agreement with at least one other party before boarding the vessel;
2. the agreement was to import a border controlled drug into Australia;
3. one or more of the parties to the agreement did an act or acts that together amounted to importing a border controlled drug into Australia; and
4. the quantity of the border controlled drug imported into Australia was a commercial quantity.
[7] The trial judge's direction elaborated on the above elements. It is unnecessary to summarise that elaboration for the purposes of these appeals: trial ts 3299.
Of the eight persons on the vessel that were charged with an importation offence, only Mr Luo and Mr Law were convicted. The other six accused were acquitted.
Mr Chong, Mr Ching, Mr Tang, Mr Yong and Mr Wong were all convicted of offences in respect of their involvement in the importation. The details of their convictions and the sentences that were imposed upon them are irrelevant for present purposes.
Neither of the appellants gave or adduced evidence at the trial. The defence cases of Mr Luo and Mr Law disputed very little of the evidence adduced by the Crown. For example, it was not seriously disputed that the vessel carried the methamphetamine, the methamphetamine was brought ashore on the tender, and that the methamphetamine located in East Cannington and Embleton was the methamphetamine from the vessel. However, in their closing addresses, counsel for each of the appellants disputed that the Crown had proved its circumstantial case beyond reasonable doubt. It was put to the jury, in effect, that neither of the appellants knew there was methamphetamine on board the vessel, and each was unaware that methamphetamine had been imported into Australia.
Mr Luo's first appeal
In his first appeal, Mr Luo ultimately relied on two grounds.[8] The grounds challenged the admission into evidence at his trial of his police interviews on 3 and 25 May 2016. Ground 1, in effect, contended that the trial judge erred in ruling that Mr Luo's admissions during the recorded interviews were voluntarily given and therefore admissible. Ground 3, in effect, challenged the trial judge's failure to exercise in Mr Luo's favour his discretion to exclude the recorded interviews. This court unanimously refused leave to appeal on both grounds and dismissed the appeal.
[8] A third ground (ground 2) was abandoned at the hearing of the appeal.
Mr Law's first appeal
In his first appeal, Mr Law ultimately relied on two grounds.[9] The two grounds of appeal were grounds 2 and 5. Each of these grounds concerned errors allegedly made by the trial judge in respect of the Edwards lies allegedly told by Mr Law in his interviews with law enforcement officers. At trial, it was alleged by the Crown that exculpatory statements made by Mr Law in these interviews, to the effect that all he did on the vessel was eat, sleep, and go to the toilet; that he had no knowledge that the tender had left the vessel; that the vessel did not stop at any time; and that Mr Law did not see any black bags on the vessel, were all lies told out of a consciousness of guilt. Ground 2 alleged, in effect, that none of Mr Law's alleged lies were consciousness of guilt lies, and that the trial judge erred in giving directions of the kind required by Edwards. Ground 5 alleged that the trial judge did not properly direct the jury as to the standard of proof applicable to the proof of the alleged Edwards lies told by Mr Law, and their character as consciousness of guilt lies. Neither ground was made out, and this court dismissed Mr Law's first appeal.
[9] Originally, Mr Law advanced four grounds of appeal. Grounds 1 and 3 were abandoned prior to the hearing of the appeal. Ground 4, which alleged that the verdict of guilty was unreasonable or unsupported by the evidence was abandoned during the hearing of the appeal. After the initial appeal hearing, Mr Law applied for leave to add ground 5.
Part 3A of the CAA
Having set out the background to the current proceedings, and before dealing with the various applications filed in the appeals, it is necessary to set out the relevant statutory framework in respect of second or subsequent appeals under pt 3A of the CAA.
Second or subsequent appeals are a recent phenomenon in this State. As mentioned at [3] above, prior to the commencement of pt 3A, there was but one appeal (with leave) against conviction of an offence on indictment. An offender was not entitled to commence any further appeal against the same conviction, even where evidence later emerged which could potentially exonerate the offender. Prior to the commencement of pt 3A, the only recourse for an offender in such a circumstance was to lodge a petition for the exercise of the Royal Prerogative of Mercy, or to petition the Attorney General to refer the case to the Court of Appeal under s 140 of the Sentencing Act 1995 (WA).[10]
[10] See Austic v The State of Western Australia [2020] WASCA 75; (2020) 57 WAR 39 [9] ‑ [29]; Jasmin v The Queen [2017] WASCA 122; (2017) 51 WAR 505 [69] ‑ [76].
Part 3A of the CAA comprises s 35B to s 35J.
By s 35B, an offender may bring a second or subsequent appeal under pt 3A even if the offender was convicted of the offence to which the appeal relates before pt 3A commenced operation.
The right of an offender to bring a second or subsequent appeal to the Court of Appeal is contained in s 35E of the CAA, which provides:
35E.Second or subsequent appeal against conviction
(1)Subject to this Part, an offender convicted of an offence on indictment may bring a 2nd or subsequent appeal to the Court of Appeal against conviction if -
(a)there is fresh and compelling evidence relating to the offence; or
(b)there is new and compelling evidence relating to the offence.
(2)Evidence is not precluded from being admissible on an appeal brought under this Part just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction.
The terms 'fresh', 'new' and 'compelling' evidence are defined in s 35D as follows:
35D.Fresh, new and compelling evidence
(1)For the purposes of this Part, evidence relating to an offence of which an offender was convicted is fresh -
(a)if, despite the exercise of reasonable diligence, the evidence was not and could not have been tendered at the trial of the offence or any previous appeal; or
(b)if -
(i)the evidence was not tendered at the trial of the offence or any previous appeal but, with the exercise of reasonable diligence, could have been tendered at the trial of the offence or any previous appeal; and
(ii)the failure to tender the evidence was due to the incompetence or negligence of a lawyer representing the offender.
(2)For the purposes of this Part, evidence relating to an offence of which an offender was convicted is new if the evidence was not tendered at the trial of the offence or any previous appeal but, with the exercise of reasonable diligence, could have been tendered at the trial of the offence or any previous appeal.
(3)Despite subsection (2), evidence is not new evidence if it is fresh evidence under subsection (1)(b).
(4)For the purposes of this Part, evidence relating to an offence of which an offender was convicted is compelling if it is highly probative in the context of the issues in dispute at the trial of the offence.
The statutory requirements for commencing and deciding appeals under pt 3A are set out in s 35F to s 35H of the CAA:
35F.Leave to appeal required in all cases
(1)Leave of the Court of Appeal is required for each ground of appeal in an appeal brought under this Part.
(2)Except as provided in subsection (3), the Court of Appeal must decide whether to give leave to appeal on a ground of the appeal before the hearing of the appeal.
(3)If the Court of Appeal considers it necessary or desirable, it may give leave to appeal at the hearing of, or when giving judgment on, the appeal.
(4)After an appeal has commenced, the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied -
(a)the ground identifies fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal; and
(b)the ground has a reasonable prospect of succeeding.
(5)Unless the Court of Appeal gives leave to appeal on at least 1 ground of appeal, the appeal is taken to have been dismissed.
35G.Commencing appeal
(1)An appeal under this Part must be commenced and conducted in accordance with this Part and rules of court.
(2)An appeal under this Part must be commenced by lodging with the Court of Appeal an application for leave to appeal that sets out the grounds for appeal.
(3)On commencing an appeal, the appellant must serve a copy of the application for leave to appeal on the other party or parties to the proceedings before the trial court.
(4)The Court of Appeal may at any time order the appellant to serve a copy of the application for leave to appeal on any other person that the court thinks fit.
35H.Decision on appeal
(1)Unless, under subsection (2) or (4), the Court of Appeal allows an appeal, it must dismiss the appeal.
(2)The Court of Appeal must allow an appeal based on fresh and compelling evidence if it is satisfied there was a miscarriage of justice.
(3)Despite subsection (2), even if 1 or more grounds might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
(4)The Court of Appeal must allow an appeal based on new and compelling evidence if it is satisfied on the balance of probabilities that, in light of all the evidence, the evidence establishes that the offender is innocent.
(5)If the Court of Appeal allows the appeal, it must set aside the conviction of the offence and must -
(a)order a new trial; or
(b)enter a judgment, and deal with the offender in a manner, referred to in section 30(5)(b) to (e).
(6)If the Court of Appeal orders a new trial under subsection (5)(a), section 34 applies, with any necessary modifications, as if the appeal had been brought under Part 3.
(7)If the Court of Appeal enters a judgment under subsection (5)(b), section 30(6) applies, with any necessary modifications, as if the appeal had been brought under Part 3.
The rules of court referred to in s 35G(1) are defined in s 4 of the CAA to mean rules of court made by the Supreme Court. This definition includes the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules). Rule 28A of the Rules states how an appeal under pt 3A of the CAA is to be commenced and the documents which must be filed to validly commence it. Rule 28A provides:
28A.Commencing appeal under Criminal Appeals Act 2004 Part 3A
(1)To commence an appeal under the Criminal Appeals Act 2004 Part 3A the appellant must file -
(a)a Form 1A; and
(b)an affidavit containing the information set out in subrule (2); and
(c)the 'Appellant's case' in accordance with rule 32.
(2)For the purposes of subrule (1)(b), the information is as follows -
(a)details of all previous appeals against the conviction;
(b)a statement of the issues in dispute at the trial, with reference to that part of the trial transcript which shows those issues to be in dispute;
(c)the alleged evidence relating to the offence the subject of the conviction that is to be relied on in the appeal;
(d)whether the evidence set out in accordance with paragraph (c) is alleged to be fresh and compelling, or new and compelling;
(e)an explanation as to why the alleged evidence that is to be relied on in the appeal was not tendered during the trial or during any previous appeal;
(f)when the appellant, and any legal practitioner representing the appellant, became aware of the alleged evidence that is to be relied on in the appeal;
(g)if the evidence is alleged to be fresh and compelling - details, if any, of alleged negligence or incompetence of the legal practitioner representing the appellant at the trial;
(h)a statement of information or belief as to whether, with the exercise of reasonable diligence, the alleged evidence could have been tendered at the trial.
(3)A Form 1A may be filed together with an application, made in accordance with rule 44, for an interim order.
(4)For the purposes of the Criminal Appeals Act 2004 section 35G(2), a Form 1A filed in accordance with this rule is taken to be an application for leave to appeal.
Relevantly to the issues to be determined in these appeals, we make the following observations about these statutory provisions.
First, the right of an offender to bring a second or subsequent appeal against conviction is not at large. It is a limited right. A second or subsequent appeal may only be brought if there is fresh and compelling or new and compelling evidence (as those terms are defined in s 35D(1), (2) and (4) of the CAA). In the case of fresh and compelling evidence, the appeal must be allowed based on that evidence if the court is satisfied that a miscarriage of justice has occurred. The bar is higher in the case of new and compelling evidence. The court must allow the appeal based on that evidence if the court is satisfied on the balance of probabilities that, in light of all the evidence, the evidence establishes that the offender is innocent. Thus, the focus of any second or subsequent appeal against conviction must be on the fresh and compelling or new and compelling evidence sought to be adduced, and its cogency and effect. By definition, fresh and compelling or new and compelling evidence cannot be evidence adduced at an offender's trial. Thus, a second or subsequent appeal is not to be regarded as another opportunity to merely relitigate, reformulate, reargue or reinterpret evidence led at the trial or an earlier failed appeal.
Secondly, under s 35E(1), a second or subsequent appeal may only be brought if there is fresh and compelling or new and compelling evidence. That is, fresh and compelling or new and compelling evidence must actually exist at the time the appeal is brought. The bringing of a second or subsequent appeal is not a speculative venture. It can only be competently brought if fresh and compelling or new and compelling evidence exists at the time the appeal notice is filed. Put another way, a second or subsequent appeal cannot be competently brought on the basis that the fresh and compelling or new and compelling evidence upon which the appeal is purportedly brought might exist, or will be put before the court later in the course of the appeal. This is not to deny the general power of the court to admit other evidence in the appeal pursuant to s 40(1)(e) of the CAA, but this power does not entitle an appellant to bring a second or subsequent appeal without putting before the court, when the appeal notice is filed, the fresh and compelling, or new and compelling, evidence.
Thirdly, and to underscore the observation we made at [48], under s 35G(1), an appeal under pt 3A must be commenced and conducted in accordance with the provisions in pt 3A and the rules of court. Rule 28A(1) of the Rules provides that to commence an appeal under pt 3A, an appellant must file a Form 1A (a notice of appeal), an affidavit containing the information set out in r 28A(2), and an appellant's case. Among the details that must be included in the affidavit is the alleged evidence that is to be relied upon in the appeal and whether the evidence is said to be fresh and compelling or new and compelling.
Fourthly, under s 35F(2) and s 35F(3), this court must decide whether to give leave to appeal on a ground of appeal before the hearing of the appeal unless it considers it necessary or desirable to give leave to appeal at the hearing of, or when giving judgment on, the appeal. By this process, unmeritorious appeals may be identified and disposed of early in the process.[11]
[11] Western Australia, Parliamentary Debates, Legislative Assembly, 11 August 2021, 2637a ‑ 2638a (Mr J Quigley, Attorney General).
Fifthly, under s 35F(4), leave to appeal on a ground of appeal cannot be given unless the court is satisfied of two separate things in respect of the fresh and compelling, or new and compelling, evidence the subject of the appeal. First, that the ground identifies fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal, and secondly, that the ground has a reasonable prospect of succeeding.
Sixthly, the fresh and compelling or new and compelling evidence, along with the other information required by r 28A(2), is the material upon which this court must decide whether leave to appeal should be granted on any particular ground.
Seventhly, it is not sufficient to prove the existence of fresh or new evidence. The evidence must also be 'compelling' in the sense that it is highly probative in the context of the issues in dispute at the trial of the offence. To be 'highly probative', evidence must have the capacity to have a significant effect upon the resolution of a material issue at the trial.
Mr Luo's second appeal
Mr Luo initiated his second appeal by filing an appeal notice, an affidavit which purported to comply with r 28A of the Rules, and an appellant's case on 7 March 2024.
Mr Luo's grounds of appeal, as expressed by him, are as follows:
Ground 1: The compelling fresh evidence emerges proved beyond reasonable doubt that the Methamphetamine was not imported by the fishing vessel registration 'M65535A' where appellant was one of the three skippers. The said vessel was not the carrier for the importation of subject drug. The vessel was not linked to police investigation into the vicinity of Port Denison Methamphetamine transporting activities of few Malaysian people.
Ground 2: Compelling fresh evidence emerged after the trail [sic] proved beyond reasonable doubt that the investigation was grossly improper and resulting in miscarriage of justice.
There were three (3) skippers, namely Xi Qian Li, Yong Chen and the appellant, three skippers were of equal authority and working on a 3 duty rotation of 8 hours each. Neither one has power over the other two and ever give order/instruction to any one. When the boss gave direction, the person on duty as skipper will carryout and will inform the other skipper takes over his duty when the hour of rotation ends. On the date when the vessel was arrested by police on 1 May 2026, Mr Xi Qian Li was on duty as skipper. However, during the court trail [sic], only appellant and Mr Kai Cheong Law were convicted and appellant was named as skipper. The other six members on board of the vessel were acquitted. If the vessel was involved in transporting illicit then why there were six people on board of the vessel were released without charge.
Ground 3: Evidence proved beyond reasonable doubt that the vessel and its members were not link to the group of Malaysian who was involved in drug.
There was no link between the fishing vessel registration 'M65535A' and the Group of Malaysian People's arrest; the vessel was arrested by the police on 1 May 2016, all members on board of the vessel was detained and the investigation started immediately, the video interview was recorded on 3 May 2016. The Malaysian people were continue their activities and not went into concealing, they were arrested after 23 May 2016. Period between the arrest of vessel and the Malaysian people's arrest was 20 over days proved beyond reasonable doubt the two cases were not linked to each other. (underlining in original)
Grounds 1 and 2 allege the existence of 'compelling fresh evidence'. Ground 1, in effect, alleges that 'compelling fresh evidence' shows that the methamphetamine that was brought to shore near Port Denison and later found at the addresses at East Cannington and Embleton was not transported to Australia in the vessel in which Mr Luo travelled. Ground 2 alleges, in effect, that 'compelling fresh evidence' reveals that the investigation undertaken by law enforcement authorities was 'grossly improper'. The ground does not particularise the alleged 'grossly improper' conduct of the investigators. The complaint in ground 2 seems to be that Mr Luo along with two others were the skippers of the vessel, but, unlike him, the other two men were not convicted after trial. Ground 3 does not allege the existence of any fresh and compelling or new and compelling evidence to support it. The evidence referred to in the ground appears to be a reference to the evidence adduced at trial. The allegation in ground 3 appears to be an allegation that, based on the evidence adduced at trial, there was no link between those persons on the vessel and those persons who were members of, or associated with, the shore party who took delivery of the drugs that were landed near Port Denison and which were later found at the addresses in East Cannington and Embleton.
The affidavit of Mr Luo, which was sworn by him on 24 January 2024 and was purportedly in compliance with r 28A(2) of the Rules, is very brief and does not, in fact, comply with the requirements of r 28A(2). The purported 'compelling fresh evidence' is described in par 3 of the affidavit in these terms:
3.Compelling fresh evidence proved beyond reasonable doubt that the substance, namely methamphetamine was not imported by fishing vessel registration 'M65535A' where the appellant was one of the three skippers;
3.1There was no evidence to prove beyond reasonable doubt that the 'M65535A' vessel was linked to police's investigation of a group of people handling methamphetamine in the vicinity of Port Denison in the State of Western Australia;
3.2There was no Forensic search of chemical compound or DNA taken from the vessel, to substantial that the methamphetamine in Port Denison vicinity was from the 'M65535A' vessel;
3.3Prosecution claimed that the subject vessel was under surveillance since 27 April 2016 but the video footage was not able to prove beyond reasonable doubt that the subject vessel involved in carrying methamphetamine. No surveillance officer(s) giving evidence under Oath in Court;
3.4Subject vessel was optioned away before the completion of investigation and optioned away without the consent or notice to the appellant and/or appellant's lawyer. This vital evidence was annihilated before completion of trail [sic];
3.5Compelling fresh evidence proved beyond reasonable doubt that the investigation was grossly improper and led to miscarriage of justice. Appellant and Mr Kai Cheong Law were being made as 'scapegoat'. There were three (3) skippers on board of the 'wooden hull' vessel; all were having the equal authority and rotated in 3 x 8 hours namely Mr Xi Qian Li, Mr Yong Chen and the appellant. On the date of arrest by police, the skipper on duty was Mr Quian Li. The Prosecution named appellant as skipper without evidence. The other two skippers plus the other four members from the vessel, total six members were acquittal without charge. If there was evidence that the vessel was a carrier of drug, why six members were released without charge. Moreover, Prosecution alleged that there were at least two crew from the vessel carrying 'drug' from the vessel to the 'Land Party' at the vicinity of Port Denison; His Honor had ruled out that Mr Kai Cheong Law was one of them, then releasing the six members without charge without detail investigation was a Miscarriage of Justice. (underlining in original) (footnotes omitted)
On 11 April 2024, Hall JA conducted a directions hearing in respect of both Mr Luo and Mr Law's appeals. His Honour pointed out to the appellants the inadequacy of their affidavits and, in effect, gave each of them a further opportunity to provide the court with material which complied with the Rules. His Honour ordered that the appellants have leave to file fresh affidavits complying with r 28A of the Rules by close of business on 26 April 2024.
In purported compliance with Hall JA's order, Mr Luo filed a further affidavit sworn 17 April 2024. The alleged 'compelling fresh evidence' set out in this affidavit was, in substance, no different from the 'compelling fresh evidence' set out in the earlier affidavit.
Then, on 20 May 2024, Mr Luo filed an application for leave to adduce affidavits sworn by five of his co‑offenders in his appeal. This application was accompanied by an affidavit sworn by Mr Luo in support on 2 April 2024. The five co‑offenders who swore affidavits are:
(a)Kai Cheong Law, sworn 2 April 2024;
(b)Teck Kong Wong, sworn 17 April 2024;
(c)Fook Choi Ching, sworn 17 April 2024;
(d)Chee Seng Tang, sworn 17 April 2024; and
(e)Kinboon Yong, sworn 17 April 2024.
Mr Luo's application to adduce evidence was referred to the hearing of the application for leave to appeal.
We will not summarise in detail the contents of the affidavits sworn by Messrs Wong, Ching, Tang and Yong. The affidavits of these men were largely, although not precisely, identical. There was nothing in the affidavits which could be described as fresh and compelling or new and compelling evidence. In each affidavit, the deponent:
(a)asserts his innocence;
(b)claims that the vessel did not carry methamphetamine;
(c)criticises the police investigation;
(d)asserts that the vessel was not properly examined by law enforcement agencies and was 'optioned' or 'annihilated' before the investigation of the offences was completed and without the knowledge of the accused; and
(e)is critical of lies allegedly told by Mr Chong to the police.
Mr Luo's affidavit sworn 2 April 2024 states that he was one of three skippers on board the vessel. He deposes that the vessel was carrying 'counterfeit valuable goods; including watches, imitation branded clothing, and the value was very high'. These goods were 'handed over' on 30 April 2016 (par 2). He also deposes to alleged incongruities in the evidence adduced at trial (pars 3 and 4); alleges that the prosecution did not keep promises that it made to the defence (pars 4 and 5); and (erroneously) claims that the prosecution's case required the Crown to prove Mr Luo (and, for that matter, Mr Law) entered into an agreement with one other person from the 'land party' (par 6).
Mr Luo also states that since he and Mr Law were sentenced, he and Mr Law have learned that Mr Chong provided untruthful information to the police (pars 7 and 8).
In Mr Law's affidavit sworn 2 April 2024, he deposes that:
(a)The vessel carried counterfeit goods, including valuable watches, imitation branded clothing, and duty free cigarettes and liquors.
(b)Mr Luo was one of three skippers on the vessel.
(c)Recently, he and Mr Luo were transferred to Acacia Prison, where they met the 'group of Malaysian people', being a reference to the shore party, and he is now in a position to put before the court a 'true perspective'.
(d)There was no forensic investigation, chemical test or DNA evidence which linked the vessel to any drug importation. He asserts that the vessel itself was later 'optioned' before any investigation could be completed and without the approval of defence lawyers and those who were on the vessel.
(e)He was not involved in the drug importation.
(f)The salt found by investigators on the vessel had no connection with any person on board.
(g)The vessel was not linked to the delivery of drugs near Port Denison.
(h)His physical health meant that he could not have carried drugs from the vessel to the shore.
Mr Luo's second appeal - submissions
There is little to be gained by setting out in detail Mr Luo's submissions in support of his grounds of appeal. The main points he raises are:
(1)Those on the vessel had no link with the shore party.
(2)Mr Chong gave 'untruthful, unconfirmed and uncorroborated' evidence.
(3)The vessel was 'optioned' and 'annihilated' prior to trial, thus depriving the appellants of evidence that could potentially 'prove or disprove vital alleged evidence'.
(4)The circumstantial case against the appellants was deficient.
(5)The verdicts as between those on board the vessel were inconsistent, and he and Mr Law were 'scapegoats'.
(6)The vessel did not carry methamphetamine, although it did carry counterfeit goods, including 'watches, branded clothing, etc'.
Mr Luo's second appeal - disposition
None of Mr Luo's grounds of appeal have a reasonable prospect of succeeding.
We will deal first with ground 3. Ground 3 is not a valid ground of appeal in the context of a second or subsequent appeal. As pointed out at [56] above, it does not allege the existence of any fresh and compelling or new and compelling evidence to support it. An offender's right to bring a second or subsequent appeal under s 35E(1) of the CAA depends upon the existence of fresh and compelling or new and compelling evidence not adduced at trial. The ground, as framed, concerns only the cogency of the evidence adduced at trial. Leave to appeal must be refused.
Grounds 1 and 2 purport to rely upon 'compelling fresh evidence'. The purported 'compelling fresh evidence' relied upon by Mr Luo is the material referred to at [57], [62] ‑ [65] above. It is obvious that a great deal of this material is not evidence. It is nearly all made up of assertion, argument, criticism of law enforcement agencies and Mr Chong, and speculation in relation to evidence that was adduced at the trial. Contrary to the submissions of Mr Luo, what happened to the vessel after it was impounded by law enforcement authorities was known and was the subject of evidence at the trial. Under cross‑examination by counsel for one of the crew members who was ultimately acquitted, a Crown witness, WA police officer, Matthew Grant, said that the vessel was disposed of by public auction.[12] He accepted that it could not be seen without permission of the current owner. There was no evidence the vessel was destroyed.
[12] ts 386.
Taking things at their highest for Mr Luo, the only material that could conceivably be considered evidence not adduced at trial is:
(a)That Mr Luo was one of three persons on board the vessel that acted as skipper.
(b)That the vessel was not carrying drugs, but counterfeit goods, which were 'handed over', that is, delivered, on 30 April 2016.
None of this evidence could be considered fresh evidence as defined in s 35D(1) of the CAA. If anything, it is new evidence. Whether fresh or new, none of the evidence could be considered compelling, as that term is defined in s 35D(4) of the CAA, because it is not highly probative of a fact in issue at trial for these reasons.
As to the material in par (a), it will be recalled that, when interviewed by law enforcement officers, Mr Luo accepted that he drove the vessel in the course of the voyage from the People's Republic of China to waters off Port Denison. Even if others also did so, this does not materially detract from the Crown's case that he was the skipper of the vessel.
As to the material in par (b), Mr Luo's case in this appeal appears to be that he knew the vessel was carrying valuable watches, etc, and not drugs to Australia. This new case contradicts his defence at trial, which was to the effect that he did not know the purpose or the destination of the voyage. Mr Luo did not testify at his trial, however, on his case before this court, he claims that he knew the vessel carried valuable counterfeit goods at the time he was on the vessel, being a time before his trial. Although he had no obligation to give evidence at trial, it would have been expected that the defence case would have been conducted on this basis. The fact it was not indicates that Mr Luo's case before this court is a recent invention.
As none of the material upon which grounds 1 and 2 are based constitutes compelling evidence, whether fresh or new, grounds 1 and 2 must fail. Leave to appeal on grounds 1 and 2 must be refused.
There is a further reason why leave to appeal should be refused on ground 1. It will be recalled that leave to appeal on a ground must not be given unless the court is satisfied that it is in the interests of justice that the fresh and compelling, or new and compelling, evidence identified by the ground be considered on an appeal. In our opinion, it is not in the interests of justice for an accused person, such as Mr Luo, to exercise his right of silence at trial and then, after conviction (and after exercising his first right of appeal), seek to put before this court the 'true situation' in respect of the alleged offence, and ask the court to act on it. An accused person is, ordinarily, bound by the forensic choices made at trial. An appeal, whether an appeal under pt 3 or pt 3A, is not an opportunity to attempt to re‑run a trial in a manner which, with the benefit of hindsight, the offender wishes he or she had run at first instance.[13]
[13] See CGF v The State of Western Australia [2023] WASCA 187 [114] (Mazza JA; Quinlan CJ & McGrath J agreeing).
Out of completeness, we will deal with a number of the appellants' other submissions. The factual allegations pleaded in ground 1 have no merit. The Crown's circumstantial evidence linking the vessel with the delivery of the methamphetamine near Port Denison was strong, if not overwhelming, and was largely unchallenged at trial. While it is not necessary to set out the case in detail, it showed:
(a)The fishing vessel sailed to a point offshore from Port Denison, a short time before the methamphetamine was landed near that location.
(b)A tender was launched from the vessel about 100 nautical miles off Port Denison on the evening of 30 April 2016, and returned to the vessel in the early afternoon of 1 May 2016.
(c)A very large quantity of methamphetamine was landed near Port Denison on the morning of 1 May 2016.
(d)The vessel was intercepted and seized by ABF officers at about 5.55 pm on 1 May 2016 and was later thoroughly searched, revealing the items referred to at [21] above.
(e)Of the items discovered in the search, the small quantities of methamphetamine, the black bags, the orange‑coloured rope, and the GPS coordinates which matched the landing site near Port Denison were particularly incriminating. So, too, was the presence of the salt packets. The explanation proffered in this appeal by Mr Luo (and Mr Law) for the presence of the salt on the vessel, to the effect that the salt could have been left behind during a previous trip to Australia, is implausible.
(f)Members of the shore party took delivery of the methamphetamine on the morning of 1 May 2016, and a large quantity of the drug was found some three weeks later at addresses directly connected with members of the shore party.
Nothing put before this court by Mr Luo is reasonably capable of demonstrating that the vessel in which Mr Luo travelled did not carry the methamphetamine that was brought ashore in the vicinity of Port Denison.
As to the allegations the subject of the first paragraph of ground 2, there was no evidence adduced at trial or in the present appeal reasonably capable of demonstrating that the investigation undertaken by law enforcement authorities into the alleged importation was improper.
The allegation in the second paragraph in ground 2 is that there is inconsistency between the verdicts of guilty delivered in respect of Mr Luo (and Mr Law) and the verdicts of not guilty in respect of all of the other persons on the vessel. This allegation has nothing to do with any fresh and compelling or new and compelling evidence and is not a proper basis for an appeal under pt 3A of the CAA.
Finally, we will briefly deal with Mr Luo's complaints about the 'evidence' of Mr Chong. Contrary to the impression given in Mr Luo's submissions, Mr Chong, a co‑offender associated with the shore party, did not give any evidence at Mr Luo's trial. Insofar as any out of court statements made by Mr Chong are concerned, their veracity is of no relevance to this appeal.
None of the grounds of appeal have any merit. Leave to appeal should be refused on each ground, with the consequence that Mr Luo's second appeal against conviction must be taken to have been dismissed.[14]
[14] CAA, s 35F(5).
As the material upon which Mr Luo relies is not 'compelling fresh evidence', his application to adduce evidence is pointless and must be dismissed. It follows that the application to issue witness summonses had no utility.
We now turn to Mr Law's second appeal.
Mr Law's second appeal
Mr Law initiated his second appeal by filing an appeal notice, an affidavit which purported to comply with r 28A of the Rules, and an appellant's case on 14 March 2024.
Mr Law's grounds of appeal are as follows:
Ground 1: Compelling fresh evidence emerges after the trail [sic] proved beyond reasonable doubt that the wooden fishing vessel registration number 'M65535A' was the carrier of methamphetamine investigated by police at the vicinity of Port Denison.
Ground 2: Compelling fresh evidence emerges proved beyond reasonable doubt that miscarriage of justice occasioned.
There were three (3) skippers, namely Xi Qian Li, Yong Chen and Mr Jie Luo, three skippers were of equal authority and working on a 3 duty rotation of 8 hours each. On the date when the vessel was arrested by police on 1 May 2016, Mr Xi Qian Li was on duty as skipper. However, during the court trail [sic], only Appellant and Mr Jie Luo was convicted and Mr Jie Luo was named as skipper. The other six members on board of the vessel were acquitted and released without charge. (underlining in original)
Ground 1 should be understood as alleging that 'compelling fresh evidence' has emerged after the trial which shows that the vessel in which Mr Law travelled to Australia did not carry the methamphetamine that was brought to shore near Port Denison. Ground 2 is not easy to understand. It appears to be an assertion of a miscarriage of justice on the basis that there was some inconsistency in the verdicts as between Mr Luo and Mr Law, on the one hand, and the acquittals in respect of the other six persons aboard the vessel.
The affidavit of Mr Law, which was sworn by him on 31 January 2024 purportedly in compliance with r 28A(2) of the Rules, is, like the affidavit of Mr Luo, very brief and does not comply with the requirements of r 28A(2). The purported 'compelling fresh evidence' is described in the same terms as was contained in the affidavit of Mr Luo set out at [57] above. A further affidavit filed by Mr Law in compliance with the order of Hall JA dated 11 April 2025 is, like that of Mr Luo, substantially the same as the earlier affidavit.
On 16 May 2024, Mr Law filed an application for leave to adduce the affidavits sworn by five of his co‑accused in his appeal. This application, and the supporting affidavit and affidavits of the co‑accused, are identical to those filed by Mr Luo described at [60] ‑ [65] above.
Mr Law's second appeal - submissions
The submissions of Mr Law in support of the two grounds of appeal he seeks to advance are not materially different from those made by Mr Luo set out at [66] above. It is unnecessary to repeat them.
Mr Law's second appeal - disposition
Ground 1 of Mr Law's appeal is, in substance, the same as ground 1 of Mr Luo's appeal. For the reasons which we have already given in the context of Mr Luo's appeal, ground 1 of Mr Law's appeal is devoid of merit. Leave to appeal in respect of this ground should be refused.
Ground 2 of Mr Law's appeal, insofar as it is intelligible, appears to be, in substance, the same as ground 2 of Mr Luo's appeal. For the same reasons given in respect of ground 2 of Mr Luo's appeal, ground 2 of Mr Law's appeal is devoid of merit.
Finally, to the extent that Mr Law also makes the same submissions referred to by Mr Luo, as outlined in [66] above, for the reasons we give in respect of those submissions, they have no merit.
As none of the grounds of appeal advanced by Mr Law have any merit, leave to appeal should be refused on each ground, with the consequence that Mr Law's second appeal against conviction is taken to be dismissed pursuant to s 35F(5) of the CAA.
As none of the grounds of appeal have merit, Mr Law's application to adduce evidence is pointless and must also be dismissed. It follows that the application to issue witness summonses had no utility.
Conclusion and orders
Leave to appeal should be refused on all grounds in each appeal. The appeals must be dismissed. The applications to adduce evidence should also be dismissed.
In respect of Mr Luo's second appeal, the orders that we would make are as follows:
1.The application to adduce evidence is dismissed.
2.Leave to appeal on grounds 1, 2 and 3 is refused.
3.The appeal is dismissed.
In respect of Mr Law's second appeal, we would make the following orders:
1.The application to adduce evidence is dismissed.
2.Leave to appeal on grounds 1 and 2 is refused.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
14 MARCH 2025
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