Luo v The King - [2025] WASCA 36

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

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 Luo v The King

Details

AGLC: Luo v The King [2025] WASCA 36
Case: [2025] WASCA 36
Decision Date: 14 MARCH 2025

CaseChat Overview and Summary

In Luo v The King, the appellants sought leave to appeal against their conviction for importing a commercial quantity of methamphetamine. The appeal is the second or subsequent appeal against the conviction, which was initially upheld in 2020. The appellants are required to demonstrate that their grounds for appeal identify fresh and compelling evidence or new and compelling evidence, within the meaning of s 35D of the Criminal Appeals Act 2004 (WA). The court was required to decide whether the evidence the appellants wished to present was fresh, new, and compelling, and whether their grounds for appeal had a reasonable prospect of success.

The court examined the evidence to determine whether it was fresh, new, or compelling. The court found that the evidence was not fresh or new, as it was available at the time of the trial and appeals. However, the court found that the evidence was compelling as it was highly probative in the context of the issues in dispute at the trial of the offence. The court also found that the appellants' grounds for appeal had a reasonable prospect of success. The court granted leave to appeal on the grounds that the evidence was fresh and compelling.

The court ordered a new trial and set aside the conviction of the offence. The court found that the evidence was compelling and that there was a reasonable prospect of success on the appeal. The court also found that the evidence established that the appellants were innocent on the balance of probabilities. The court ordered a new trial and set aside the conviction of the offence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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