R v Tsay - [2006] QCA 423

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tsay [2006] QCA 423

PARTIES:

R
v
TSAY, Chien Sheng
(applicant)

FILE NO/S:

CA No 36 of 2006
CA No 130 of 2006
SC No 115 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application
Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2006

JUDGES:

Jerrard, Keane and Holmes JJA
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDER:

Application for leave to appeal against sentence and application for extension of time within which to appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – PENALTIES – TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING – GENERAL PRINCIPLES – where applicant convicted of importation of trafficable quantity of drugs – where applicant given different sentence to co-offenders – place in hierarchy of drug operation – difference in co-operation – plea of guilty – whether sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where applicant pleaded guilty to importing trafficable quantity of drugs – where Mandarin his first language – where applicant claims he did not understand meaning of plea of guilty – level of proficiency in English – level of knowledge of drug importation – inference of knowledge – whether applicant understood nature of charge – whether there was a miscarriage of justice

Crimes Act 1914 (Cth), s 16G
Criminal Code 1995 (Cth), s 5.4

He Kaw Teh v The Queen (1985) 157 CLR 523, cited
Kural v The Queen (1987) 162 CLR 502, cited
Meissner v The Queen (1995) 184 CLR 132 at 141, considered
Pereira v Director of Public Prosecutions (1988) 82 ALR 217, cited
R vFerreira [2002] QCA 12; CA No 381 of 2001, 4 February 2002, cited
R vFilho [2003] QCA 223; CA No 9 of 2003, 2 June 2003, cited
R v Jackson [2003] QCA 31; CA No 270 of 2002, 14 February 2003, cited
R v Pugh (2005) 158 A Crim R 302; [2005] SASC 427, cited
R vSalles [1997] QCA 129; CA No 92 of 1997, 20 May 1997, cited

COUNSEL:

The applicant appeared on his own behalf
G R Rice for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Commonwealth Director of Public Prosecutions for the respondent

JERRARD JA: I respectfully agree with the reasons of Holmes JA and with the orders proposed by her Honour.

KEANE JA: I agree with the reasons of Holmes JA and with the orders proposed by her Honour.

HOLMES JA: The applicant seeks leave to appeal against sentence and an extension of time in which to appeal against conviction, notwithstanding that he was sentenced on a plea of guilty. His argument on the latter…

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 Tsay

Details

AGLC: R v Tsay [2006] QCA 423
Case: [2006] QCA 423
Decision Date: 27 October 2006

CaseChat Overview and Summary

The case of R v Tsay involved the applicant, who had been convicted of importing a trafficable quantity of drugs. The applicant was sentenced to a term of imprisonment, which differed from the sentences given to his co-offenders. The applicant contested the sentence on the basis that it was manifestly excessive and also appealed against the conviction on the ground that there was a miscarriage of justice. The applicant argued that he did not fully understand the meaning of his plea of guilty due to his limited proficiency in English, which was not his first language.

The legal issues before the court were twofold. Firstly, whether the applicant's sentence was manifestly excessive given the differing sentences of his co-offenders, his place in the hierarchy of the drug operation, and the extent of his cooperation with authorities. Secondly, whether there was a miscarriage of justice in the applicant's conviction due to his misunderstanding of the plea of guilty, his level of English proficiency, and his knowledge of drug importation. The court needed to determine whether the applicant's limited understanding of the language in which the proceedings were conducted resulted in a fundamental error in the proceedings.

The court dismissed the application for leave to appeal against the sentence and the application for an extension of time to appeal against the conviction. In considering the sentence, the court found that while the applicant's role in the drug importation was significant, it was not at the highest level of the operation, and his level of cooperation with authorities was acknowledged. The court also noted that the applicant's plea of guilty and the disparity in sentences among co-offenders were considered in the sentencing process. Regarding the appeal against the conviction, the court held that there was no miscarriage of justice as the applicant's level of English proficiency and understanding of the charge were not so deficient as to render the plea of guilty or the conviction itself fundamentally flawed. The court concluded that the applicant's claims did not meet the threshold for a miscarriage of justice.

Orders

Orders of the court

Application for leave to appeal against sentence and application for extension of time within which to appeal against conviction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Tsay [2006] QCA 423
PARTIES:	R v TSAY, Chien Sheng (applicant)
FILE NO/S:	CA No 36 of 2006 CA No 130 of 2006 SC No 115 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	7 September 2006
JUDGES:	Jerrard, Keane and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal against sentence and application for extension of time within which to appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – PENALTIES – TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING – GENERAL PRINCIPLES – where applicant convicted of importation of trafficable quantity of drugs – where applicant given different sentence to co-offenders – place in hierarchy of drug operation – difference in co-operation – plea of guilty – whether sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where applicant pleaded guilty to importing trafficable quantity of drugs – where Mandarin his first language – where applicant claims he did not understand meaning of plea of guilty – level of proficiency in English – level of knowledge of drug importation – inference of knowledge – whether applicant understood nature of charge – whether there was a miscarriage of justice Crimes Act 1914 (Cth), s 16G Criminal Code 1995 (Cth), s 5.4 He Kaw Teh v The Queen (1985) 157 CLR 523, cited Kural v The Queen (1987) 162 CLR 502, cited Meissner v The Queen (1995) 184 CLR 132 at 141, considered Pereira v Director of Public Prosecutions (1988) 82 ALR 217, cited R vFerreira [2002] QCA 12; CA No 381 of 2001, 4 February 2002, cited R vFilho [2003] QCA 223; CA No 9 of 2003, 2 June 2003, cited R v Jackson [2003] QCA 31; CA No 270 of 2002, 14 February 2003, cited R v Pugh (2005) 158 A Crim R 302; [2005] SASC 427, cited R vSalles [1997] QCA 129; CA No 92 of 1997, 20 May 1997, cited
COUNSEL:	The applicant appeared on his own behalf G R Rice for the respondent
SOLICITORS:	The applicant appeared on his own behalf Commonwealth Director of Public Prosecutions for the respondent