Nguyen v The State of Western Australia [No 2] - [2019] WASCA 5

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NGUYEN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2019] WASCA 5
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   18 MAY 2018
DELIVERED          :   15 JANUARY 2019
FILE NO/S:   CACR 16 of 2017
BETWEEN:   THI NGA NGUYEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   McCANN DCJ
File Number             :   IND 478 of 2016

Catchwords:

Criminal law - Application to reopen the appeal - No inherent power to reopen the appeal - No statutory power under the Criminal Appeals Act 2004 (WA) s 27(3) to reopen the appeal

Legislation:

Criminal Appeals Act 2004 (WA), s 23(1)(b), s 27(3)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr G M Rodgers
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	Gary Rodgers Barrister & Solicitor
Respondent	:	Director of Public Prosecutions (WA)

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

Barry v The State of Western Australia [2007] WASCA 12
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
JS v The State of Western Australia [2014] WASCA 177
Nguyen v The State of Western Australia [2017] WASCA 195
Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
Prazmo v The State of Western Australia [No 2] [2010] WASCA 99
The State of Western Australia v Wallam [2008] WASCA 117 (S)
ZP v The State of Western Australia [2011] WASCA 12

JUDGMENT OF THE COURT:

This is an application to 'reopen' an appeal against sentence filed on 6 December 2017. Judgment was delivered and final orders were pronounced by this court dismissing the appeal on 24 October 2017: Nguyen v The State of Western Australia [2017] WASCA 195 (Nguyen). For the reasons that follow, we would dismiss the application.

Background

The appellant was convicted after trial in the District Court of seven offences, which included two offences of cultivating cannabis with intent to sell or supply to another. McCann DCJ imposed a total effective sentence of 6 years and 6 months' imprisonment with eligibility for parole backdated to commence on 21 November 2016.[1] In doing so, his Honour found that the appellant was a 60% partner in a cannabis growing and distribution enterprise in which cannabis was grown in two houses. She was described as a 'high end criminal' whose risk of reoffending was 'very real'.[2]
[1] Nguyen [3] - [5].
[2] Nguyen [7], [17].
An application for leave to appeal was filed on 21 January 2017. The appellant sought leave to appeal on two grounds. As they appeared in the appellant's case, ground 1 alleged that all of the individual sentences imposed were manifestly excessive, while ground 2 alleged that the total effective sentence infringed the first limb of the totality principle.
The application for leave to appeal on these grounds was heard on 3 August 2017 by Mazza and Beech JJA. At this hearing, counsel for the appellant applied to adjourn the proceedings for 21 days. He explained that one of the appellant's co‑offenders, Duy Linh My, who had absconded after his arrest and who was at large when the appellant was sentenced, had been apprehended and was to be sentenced for his role in the offending on 24 August 2017. Counsel further explained that the co‑offender had written to him 'outlining [the co‑offender's] role' in the offending and that, based on this information, the appellant's criminality 'was a lot lower' than had been assessed by McCann DCJ.[3] The court was not provided with the letter.
[3] Appeal ts 2 - 4.
Upon being advised of these matters, the hearing on 3 August 2017 proceeded on the basis that counsel made submissions on grounds 1 and 2 in full. In the course of arguing ground 1, the appellant was granted leave to amend that ground to restrict the allegation of manifest excess to the three individual sentences imposed on counts 3 and 6.[4] At the end of the hearing, orders were made in these terms:
1.The appellant shall have leave to file and serve no later than 4.00 pm on 7 September 2017:
(a)any amended appellant's case; and
(b)any application to adduce additional evidence.
2.Judgment is reserved.
[4] Appeal ts 7 - 8.
The appellant did not comply with the orders made on 3 August 2017. Neither an amended appellant's case nor an application to adduce additional evidence were ever filed prior to judgment.
On 19 October 2017, the associate to Beech JA emailed the appellant's solicitor, advising him that judgment would be delivered on 24 October 2017. On 20 October 2017, the appellant's solicitor acknowledged receipt of that email.
On 24 October 2017, judgment was delivered. Despite being advised of judgment delivery, counsel for the appellant did not appear. Leave to appeal was refused on both grounds of appeal and the appeal was dismissed. A sealed certificate of conclusion of criminal appeal was issued under the hand of Acting Court of Appeal Registrar Gilich on 25 October 2017.

Subsequent events

On 9 November 2017, the solicitor for the appellant wrote to Acting Court of Appeal Registrar Gilich. In the letter, the solicitor said that, on 30 October 2017, he was informed that the appeal had been dismissed. Further, once the solicitor had read the reasons of the court, he realised that 'the Court of Appeal did not receive the amended [appellant's case]'. The solicitor then stated:
To the best of our recollection the amended [appellant's] case was filed and served to the Court of Appeal and the State via facsimile on or about the 23 September 2017. For reasons unknown, neither the Court of Appeal nor the State received the facsimile. It was our intention to have the amended appeal book [sic] and the [appellant's] case filed as ordered by the Court
I contacted the Court of Appeal and they confirmed that the amended [appellant's case] was not received.
The appellant's solicitor concluded the letter with a request that the matter be listed for directions 'to seek further orders and to request that judgment delivered be recalled due to a technical error'.
On 15 November 2017, the court wrote to the solicitor for the appellant, informing him, inter alia, that any application to reopen the appeal must be made by way of a formal application supported by an affidavit and submissions.
On 6 December 2017, the application to 'reopen' the appeal was filed. The application was supported by an affidavit sworn by the appellant's solicitor, Gary Martin Rodgers, on 4 December 2017 who, inter alia, said:[5]
1.On or about 23 September 2017, his firm received from counsel, Mr Simon Watters, a 'completed amended appellant's case'. A copy of this document was annexed to the affidavit.
2.He instructed a junior solicitor employed by his firm (the junior solicitor) to scan and upload the amended appellant's case to his firm's electronic records and then fax it to both the Court of Appeal and the Director of Public Prosecutions.
3.'For reasons unknown', neither the Court of Appeal nor the Director of Public Prosecutions received the amended appellant's case that had been transmitted to them by facsimile.
4.If the appellant was not allowed to reopen her appeal, she would be deprived of the opportunity 'to have her appeal considered by the court'.
[5] Affidavit sworn by Mr Rodgers on 4 December 2017 in support of an application to reopen the appeal, filed 6 December 2017, pars 4 - 6, 9, 12.
The amended appellant's case prepared by Mr Watters did not include a ground of appeal alleging that any of the individual sentences were manifestly excessive. The document included four grounds of appeal. Ground 1 alleged an infringement of the parity principle on the basis of the sentences received by the co‑offender, Duy Linh My. Ground 2 alleged an infringement of the first limb of the totality principle. Grounds 3 and 4 alleged, in effect, that the sentencing judge erred in his Honour's assessment of the appellant's culpability, including that the appellant was a 60% partner in the cannabis enterprise.
On 28 December 2017, Mazza JA ordered that, by no later than 4.00 pm on 16 January 2018, affidavits be sworn by Mr Rodgers and the junior solicitor and be filed and served. These affidavits were to provide answers to a number of questions, including as to:
1.The appellant's failure to comply with the court's orders made on 3 August 2017.
2.The circumstances in which the proposed amended appellant's case was sent to the court and the DPP and why, when the solicitor for the appellant was notified by the court of its intention to deliver judgment on 24 October 2017, no inquiry was made by the solicitor as to whether the amended appellant's case had been received and filed.
3.Why the appellant's counsel did not appear to take judgment on 24 October 2017.
On 17 January 2018, a further affidavit sworn by Mr Rodgers on 15 January 2018 was filed. On the same day, an affidavit sworn by the junior solicitor on 16 January 2018 was filed.
The affidavit of Mr Rodgers did not specifically address most of the matters required by the court's order on 28 December 2017. Mr Rodgers stated that, on or about 25 September 2017, he (not the junior solicitor) sent by facsimile the amended appellant's case to both the Court of Appeal and the Director of Public Prosecutions. He stated that he had checked his records and that the document had been transmitted to the facsimile numbers of the Court of Appeal and the Director of Public Prosecutions at 7.16 am on 25 September 2017. Mr Rodgers also claimed that, in relation to the delivery of judgment on 24 October 2017, he did not, as far as he had ascertained, receive from the Court of Appeal any notification of judgment delivery. Consequently, he did not check with the court as to whether the amended appellant's case had been filed.[6]
[6] Affidavit sworn by Mr Rodgers on 15 January 2018, filed on 17 January 2018, pars 7 ‑ 8.
On 17 January 2018, Mazza JA ordered that, by 4.00 pm on 24 January 2018, Mr Rodgers file and serve a further affidavit (his third affidavit) in which he answered directly each question posed to him in the orders made on 28 December 2017. Orders were also made requiring the parties to file submissions in respect of the application to reopen the appeal.
On 24 January 2018, Mr Rodgers filed an affidavit sworn 24 January 2018. In this affidavit, Mr Rodgers stated that:[7]
1.As a result of an 'oversight', the orders of 3 August 2017 were not complied with and that he should have filed, but did not, an application for an extension of time to comply with the orders.
2.The respondent did, in fact, receive, on 25 September 2017, a facsimile transmission of the amended appellant's case. However, 'for some reason', the facsimile transmission addressed to the Court of Appeal 'did not go through'.
3.Contrary to the statement made in his letter to the court on 9 November 2017 and his affidavit sworn 15 January 2018, on further searching his email account, he did in fact receive the notice informing him of judgment delivery and that he had confirmed receipt of that notice on 20 October 2017.
4.He overlooked diarising the judgment delivery date and failed to appear or to brief counsel to appear at judgment delivery.
[7] Affidavit sworn by Mr Rodgers on 24 January 2018, filed on 24 January 2018, pars 6, 10 - 12.
With respect to [18.2] above, Mr Rodgers annexed to his affidavit a document marked GMR3, which is a copy of an email sent to Mr Rodgers by a 'UTBox' faxing facility he uses to transmit his firm's facsimiles. That email reveals that the amended appellant's case was not transmitted to the Court of Appeal because the account used by Mr Rodgers to pay for the 'UTBox' facility had insufficient funds.
It is unnecessary to refer to the affidavit of the junior solicitor, save that on 10 October 2017, she emailed the Court of Appeal seeking a copy of the orders made on 3 August 2017 and advice as to whether leave to appeal had been granted or the question of leave had been referred to the hearing of the appeal. In that email, no reference was made to the amended appellant's case purportedly filed on 25 September 2017.[8]
[8] Affidavit sworn by the junior solicitor on 16 January 2018, filed on 17 January 2018, par 11 and annexure 3.

The appellant's submissions in support of the application to reopen

It was accepted on behalf of the appellant that an appellant only has one opportunity to appeal and that ordinarily there is no power to reopen an appeal once it has been dismissed. It was submitted on behalf of the appellant that the failure to file an amended appellant's case was entirely her lawyer's fault and that she should not be visited with the consequences of that failure.[9] In oral argument, counsel for the respondent claimed that she had not been 'allowed procedural fairness'.[10]
[9] Appellant's written submissions filed on 20 February 2018 in support of the application to reopen the appeal. The pages of this document are not numbered, but if they were, these concessions and arguments would appear at page 3.
[10] Appeal ts 22 - 23.

Respondent's submission opposing the reopening of the appeal

On behalf of the respondent, it was submitted (correctly in our view) that the contents of Mr Rogers' affidavits 'reflect a cavalier approach to accurately recounting relevant events'.[11] It is accepted by the respondent that the appellant's failure to file the amended appellant's case by facsimile is solely attributable to the conduct of the appellant's solicitors.[12]
[11] Respondent's submissions filed on 9 March 2018 in opposition to the appellant's application to reopen the appeal, par 2.
[12] Respondent's submissions filed on 9 March 2018 in opposition to the appellant's application to reopen the appeal, par 26.
The respondent submitted that the application to reopen the appeal was incompetent because this court lacks the jurisdiction to do so once an appeal, taken under the Criminal Appeals Act 2004 (WA) (the CAA), has been dismissed.[13] Even if there was some discretionary power to reopen, the grounds of appeal contained in the amended appellant's case, which were not dealt with by this court, have no merit or are outside the scope of the orders made on 3 August 2017 allowing amendments to be made to the grounds of appeal.[14]
[13] JS v The State of Western Australia [2014] WASCA 177.
[14] Respondent's submissions filed on 9 March 2018 in opposition to the appellant's application to reopen the appeal, pars 27 - 29, 43 - 48.

Disposition

The appellant's application to reopen her appeal is incompetent, having regard to the decision of this court in JS v The State of Western Australia, based on which the following propositions are accepted.
The relevant legislative framework is as follows. An appellate court's jurisdiction and power derive solely from the governing legislation, in this case the CAA. The CAA covers the field in relation to appeals from statutory offences.[15]
[15] JS v The State of Western Australia [4].
The CAA provides that an offender convicted of an offence on indictment may appeal to the Court of Appeal against, inter alia, the sentence imposed on the offender: s 23(1)(b) CAA. However, an offender's right to appeal against sentence is qualified by the requirement for leave in s 27 of the CAA, which, relevantly, is as follows:
27. Leave to appeal required in all cases
(1)The leave of the Court of Appeal is required for each ground of appeal in an appeal under this Part.
(2)After an appeal is commenced, the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
(3)Unless the Court of Appeal gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
In Nguyen, this court concluded that none of the appellant's grounds of appeal against sentence had a reasonable prospect of success. Leave to appeal was refused and the appeal dismissed.[16]
[16] Nguyen [28], [33] - [34].
In Barry v The State of Western Australia[17] (which has been applied in Prazmo v The State of Western Australia [No 2][18] and ZP v The State of Western Australia[19]), the court held that the plain effect of s 27(3) of the CAA was that, where leave to appeal had been refused on a ground of appeal and the appeal dismissed, an application to add a further ground of appeal was incompetent.[20] An offender has only one opportunity to appeal against sentence and there is no power to reopen an appeal that, under s 27(3), is taken to have been dismissed.
[17] Barry v The State of Western Australia [2007] WASCA 12.
[18] Prazmo v The State of Western Australia [No 2] [2010] WASCA 99 [8].
[19] ZP v The State of Western Australia [2011] WASCA 12 [2].
[20] Barry [24].
Even in the absence of a provision equivalent to s 27(3) of the CAA, save for certain limited exceptions, this court does not have the power to reopen an appeal where the appeal has been dismissed and the order to that effect has been perfected. This proposition is supported by The State of Western Australia v Wallam (S),[21] which followed the decisions of the High Court in Burrell v The Queen[22] and Grierson v The King.[23] It is clear from the decision in The State of Western Australia v Wallam (S) that there is no general power, express or implied, given to the Court of Appeal in the Supreme Court Act 1935 (WA), the CAA, the Rules of the Court or any other statute to reopen and reconsider perfected orders, civil or criminal.[24]
[21] The State of Western Australia v Wallam [2008] WASCA 117 (S) [6] ‑ [17].
[22] Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218.
[23] Grierson v The King [1938] HCA 45; (1938) 60 CLR 431.
[24] The State of Western Australia v Wallam (S) [17].
In Pantorno v The Queen,[25] Deane, Toohey and Gaudron JJ, in obiter remarks, referred to a possibility that the rule that a court of criminal appeal has no jurisdiction to reopen an appeal which it had heard on the merits and finally determined, may be subject to a qualification where the appellant had been inadvertently denied procedural fairness at the hearing of the appeal. It is this possible exception that counsel for the appellant relied upon in his submissions to this court.
[25] Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466, 484.
The submission cannot be accepted. First, no such exception was held to exist by their Honours in Pantorno v The Queen or in the subsequent case of Burrell v The Queen.[26] In any event, any such exception would not apply to the appellant. As the appellant's counsel conceded in oral argument before this court,[27] the appellant was allowed procedural fairness in the proceedings before Mazza and Beech JJA. She was given a period of time in which to raise additional grounds which was not taken up. The fact that the opportunity was not taken up as a result of her solicitor's conduct does not affect the conclusion that she was accorded procedural fairness.[28]
[26] See Burrell v The Queen [25] ‑ [26].
[27] Appeal ts 23.
[28] Appeal ts 23.
This is sufficient to dispose of the appellant's application. However, even if this court had the power to reopen the appellant's case, it would not exercise it in favour of the appellant. Based on the material provided to this court, there is no merit in any of the grounds not dealt with by Mazza and Beech JJA. The differences in the sentences imposed on the appellant and Mr My were explicable by:
(1)Mr My's pleas of guilty to the offences of which he was convicted (the appellant was convicted after trial); and
(2)Mr My's lack of prior convictions (the appellant had a criminal record which included a conviction of aiding a large heroin importation).
There was no arguable infringement of the parity principle as alleged by proposed new ground 1. Proposed new ground 3 is inconsistent with this court's reasons for dismissing the appeal on 24 October 2017. Proposed new ground 4, which challenges the finding that the appellant and Mr My were 60/40 partners, is not supported by the additional evidence which was anticipated at the original appeal hearing. The submissions in support of the ground accept that the appellant received a 60% share of the profits of the partnership.[29] Even if leave to reopen the appeal were granted, none of the proposed new grounds have any reasonable prospects of success.
[29] Affidavit sworn by Mr Rodgers on 4 December 2017 in support of an application to reopen the appeal, filed 6 December 2017, GMRI par 138, 142.

For the above reasons, the appellant's application must be dismissed.

Orders

The appellant's application to reopen the appeal, filed 6 December 2017 is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FN
Associate
15 JANUARY 2019