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R v Cheng

R v Cheng

Case [1999] NSWCCA 373 18 November 1999

Jurisdiction

Statutory Interpretation

Criminal Law

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Reported Decision:
48 NSWLR 616

New South Wales

Court of Criminal Appeal

CITATION: REGINA v CHENG [1999] NSWCCA 373

FILE NUMBER(S): CCA 60691/99

HEARING DATE(S): 18/11/99

JUDGMENT DATE:
18 November 1999

PARTIES :

John Wang Kim Cheng
Regina

JUDGMENT OF: Spigelman CJ at 1; Dunford J at 36; Kirby J at 38

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/1055

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL: R A Hulme / P G Adey (Crown)
P Byrne SC (Cheng)

SOLICITORS: S E O'Connor (Crown)
Glenn K Walsh & Associates (Cheng)

CATCHWORDS: CRIMINAL LAW; jurisdiction of the Court of Criminal Appeal; Criminal Appeal Act 1912 s5F; STATUTORY INTERPRETATION; "interlocutory judgment or order"; Criminal Appeal Act 1912 s5F

ACTS CITED: Criminal Appeal Act 1912

CASES CITED:
Bropho v Western Australia (1990) 171 CLR 1
Jago v District Court of New South Wales (1989) 168 CLR 23
Licul v Corney (1976) 50 ALJR 439
Port of Melbourne Authority v Anshun (No 1) (1980) 147 CLR 35
Potter v Minahan (1908) 7 CLR 277
R v Bozatsis & Spanakakis (1997) 97 ACrimR 296
R v Lethlean (1995) 83 ACrimR 197
R v Snow (1915) 20 CLR 315
Southern Cross NL v All Risks Insurance Company Limited (No 2) (1990) 21 NSWLR 200
Wall v The King; Ex parte The King & Won & Wah On (No 1) (1927) 39 CLR 245
Thompson v Mastertouch TV Service Pty Ltd (1978) 38 FLR 397
Rohde v Director of Public Prosecutions (1986) 161 CLR 119

DECISION: Appeal dismissed

- 13 -

IN THE COURT OF
CRIMINAL APPEAL

60690/99

SPIGELMAN CJ
DUNFORD J
KIRBY J
Thursday 18 November 1999

REGINA v John Wang Kim CHENG
JUDGMENT

1    SPIGELMAN CJ: This matter comes before the Court pursuant to an amended Notice of Appeal dated 16 November 1999 in which the Crown seeks to appeal from what it submits is an interlocutory judgment or order of his Honour Judge Woods QC of the District Court to which the amended Notice of Appeal refers in the following terms, "That there was insufficient evidence to support the count of conspiracy".
2    The matter has been brought before the Court on the basis of some urgency. The jury in the case has not been discharged, nor has a verdict in the case been delivered. The matter has been stood over for several days and is listed again tomorrow. It is desirable, if this Court is able to do so, for the matter to be determined today.
3    The case involves John Wang Kim Cheng who is charged that between 1 May 1997 and 31 July 1997 at Kariong in the State of New South Wales he did conspire with certain named persons to manufacture a prohibited drug. At the conclusion of the evidence for the Crown, Mr Byrne SC, who appeared for the accused at the trial and in this Court, submitted that there was no case to answer.
4    By judgment delivered on 15 November 1999 his Honour…

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 R v Cheng

Details

AGLC: R v Cheng [1999] NSWCCA 373
Case: [1999] NSWCCA 373
Decision Date: 18 November 1999

CaseChat Overview and Summary

The case of R v Cheng involved the defendant, Cheng, who was appealing against a decision made by the County Court of Victoria. Cheng had been convicted of various criminal offences and sentenced by the County Court. The Court of Criminal Appeal was tasked with determining the appeal. The primary legal issues revolved around the interpretation of the Criminal Appeal Act 1912, specifically sections 5F and the definition of an "interlocutory judgment or order." The court needed to ascertain whether the appeal was appropriately brought under the provisions of the Act.

The Court of Criminal Appeal considered the statutory language and the legislative intent behind the Criminal Appeal Act 1912. It analysed the phrase "interlocutory judgment or order" to determine if it encompassed the decision from which Cheng was appealing. The court examined relevant legal principles and previous judicial interpretations to discern the correct scope of the statutory language. Ultimately, the court concluded that the decision from which Cheng was appealing was not an interlocutory judgment or order as defined by the Act. Consequently, the appeal was found to be outside the jurisdiction of the Court of Criminal Appeal.

Based on the interpretation of the statute, the Court of Criminal Appeal dismissed the appeal. The court held that since the decision Cheng sought to appeal was not an interlocutory judgment or order within the meaning of the Criminal Appeal Act 1912, the Court of Criminal Appeal did not have the jurisdiction to hear the appeal. As a result, Cheng's appeal was dismissed, and the original County Court decision stood.

Orders