Tang v The Queen
[2024] WASCA 110
•24 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TANG -v- THE QUEEN [2024] WASCA 110
CORAM: BUSS P
HALL JA
HEARD: 29 APRIL 2024
DELIVERED : 24 SEPTEMBER 2024
FILE NO/S: CACR 139 of 2018
BETWEEN: CHEE SENG TANG
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
File Number : INS 62 of 2017
Catchwords:
Criminal law - Appeal against conviction - Appellant filed an appeal notice in July 2018 in respect of his conviction - Appellant filed a discontinuance notice in September 2018 - Appellant lodged another appeal notice in April 2024 in respect of the same conviction - Whether an offender may bring to this court a second or subsequent appeal against conviction, pursuant to s 35E of the Criminal Appeals Act 2004 (WA), if the offender began an initial appeal against the same conviction but filed a discontinuance notice before this court determined the merits of the initial appeal
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(l), pt 3A
Criminal Appeals Amendment Act 2022 (WA)
Criminal Code (Cth), s 307.1(1)
Interpretation Act 1984 (WA), s 19
Supreme Court (Court of Appeal) Rules 2005 (WA), r 59, r 62, Form 16, Form 17
Result:
Second appeal notice lodged by the appellant in April 2024 not accepted for filing
Category: A
Representation:
Counsel:
| Appellant | : | A Pieniazek |
| Respondent | : | D W L Renton SC |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
Boag v The State of Western Australia [2023] WASCA 74
JS v The State of Western Australia [2014] WASCA 177
KAN v The State of Western Australia [2021] WASCA 182
Ponnambalam v The State of Western Australia [2015] WASCA 185
JUDGMENT OF THE COURT:
A question has arisen as to whether an offender may bring to this court a second or subsequent appeal against conviction, pursuant to s 35E of the Criminal Appeals Act 2004 (WA), if the offender began an initial appeal against the same conviction but filed a discontinuance notice before this court determined the merits of the initial appeal.
The answer to the question is that an offender may not bring to this court a second or subsequent appeal against the same conviction unless this court's jurisdiction in respect of the initial appeal, including in respect of the discontinuance notice, has been exhausted.
The context in which the question has arisen and the reasons for our answer to the question are as follows.
The appellant's initial appeal notice
On 14 December 2017, the appellant was convicted after a trial before Fiannaca J and a jury 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).
The count related to about 182 kg of methamphetamine that was landed on the Western Australian coast by a tender launched from a fishing vessel.
The appellant and three co‑offenders collected the drug from the landing site.
On 26 June 2018, the trial judge sentenced the appellant to 23 years' imprisonment with a non‑parole period of 15 years. The sentence was backdated to 23 May 2016 to take account of time the appellant had spent in custody on remand.
On 17 July 2018, the appellant filed an appeal notice (the initial appeal notice) in respect of his conviction. The draft ground of appeal in the initial appeal notice alleged that '[t]he conviction was unreasonable and not supported by the evidence'. The file number for the initial appeal was CACR 139 of 2018. When he filed the initial appeal notice the appellant was not legally represented.
On 5 September 2018, the appellant filed a discontinuance notice in respect of the initial appeal. When he filed the discontinuance notice the appellant was not legally represented.
On 6 September 2018, the Acting Court of Appeal Registrar signed a certificate of conclusion of criminal appeal (Form 17) in respect of the initial appeal on the basis of the discontinuance notice.
The Supreme Court (Court of Appeal) Rules 2005 (WA) in relation to discontinuance notices filed before 3 June 2022
At all material times, r 59(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules) has provided that the appellant may discontinue an appeal by filing and serving a Form 16 (that is, a discontinuance notice).
The Court of Appeal Rules, as in force before 3 June 2022, did not include a provision to the effect that the appeal was deemed to be dismissed on the filing of a Form 16. A provision to that effect was included (subject to an exception that is not relevant for present purposes) by an amendment to r 59 of the Court of Appeal Rules that came into operation on 3 June 2022.
At all material times, r 62(2) of the Court of Appeal Rules has provided that, when a criminal appeal is concluded, a registrar must issue a certificate of conclusion of criminal appeal (Form 17). By r 62(3), the Form 17 is the formal record of the Court of Appeal and forms part of the Supreme Court's record.
The withdrawal of a discontinuance notice and the setting aside of a certificate of conclusion of criminal appeal
This court is empowered to grant leave to withdraw a discontinuance notice that has been filed in a criminal appeal and to make an order setting aside the related certificate of conclusion of criminal appeal:
(a)on the ground that the discontinuance notice was a nullity; or
(b)alternatively, in the exercise of the court's discretion under s 40(1)(l) of the Criminal Appeals Act, even if the discontinuance notice was not a nullity.
See KAN v The State of Western Australia;[1] Boag v The State of Western Australia.[2]
Prior to pt 3A of the Criminal Appeals Act coming into operation on 1 January 2023 there was but one appeal (with leave) against a conviction of an offence on indictment
[1] KAN v The State of Western Australia [2021] WASCA 182 [31] ‑ [37] (Buss P, Mazza & Mitchell JJA).
[2] Boag v The State of Western Australia [2023] WASCA 74 [7] (Buss P, Vaughan JA & Morrison AJA).
Prior to pt 3A of the Criminal Appeals Act coming into operation on 1 January 2023 there was but one appeal (with leave) against a conviction of an offence on indictment. An appellant was not entitled to commence multiple appeals against the same conviction. See JS v The State of Western Australia;[3] Ponnambalam v The State of Western Australia.[4]
[3] JS v The State of Western Australia [2014] WASCA 177 [4] ‑ [5] (McLure P; Buss & Mazza JJA agreeing).
[4] Ponnambalam v The State of Western Australia [2015] WASCA 185 [17] ‑ [19] (McLure P, Newnes & Mazza JJA).
The appellant's second appeal notice
In the present case, on 8 April 2024 the appellant lodged another appeal notice (the second appeal notice), purportedly pursuant to s 35E of the Criminal Appeals Act, in respect of his conviction. The draft grounds of appeal in the second appeal notice alleged that:
(a)'Compelling fresh evidence proved beyond reasonable doubt that there was no evidence that the substance namely methamphetamine was imported';
(b)'Police investigation was grossly [inaccurate] and led to [a] miscarriage of justice'; and
(c)'Investigation used unconfirmed, uncorroborated evidence to [convict] the appellant. Mr Yuen Kuan Chong was one of the co‑offenders, he was the only person [who] helped the investigating authority, he traded with the untruth, uncorroborated evidence to gain favour and enjoyed the benefit of [a] lesser charge. He also pushed his own involvement to [others] in order to show that he was a lesser/lower person in the enterprise'.
When he lodged the second appeal notice the appellant was not legally represented.
The registrar's notice to attend a hearing in relation to the competency of the appellant's second appeal
On 11 April 2024, the Acting Court of Appeal Registrar sent a registrar's notice to attend a hearing on 29 April 2024 for the purpose of considering whether the second appeal, sought to be commenced by the appellant pursuant to s 35E of the Criminal Appeals Act, was competent.
The submissions of counsel at the hearing on 29 April 2024
At the hearing on 29 April 2024, Ms Pieniazek of counsel appeared for the appellant and Mr Renton SC appeared for the respondent.
Both counsel for the appellant and counsel for the respondent submitted, in essence, that if an offender begins an initial appeal against conviction, but files a discontinuance notice before this court has determined the merits of the initial appeal, the offender may not bring to this court a second or subsequent appeal against the same conviction unless this court's jurisdiction in respect of the initial appeal, including in respect of the discontinuance notice, has been exhausted.
The competency of the appellant's second appeal notice
Part 3A of the Criminal Appeals Act is headed, 'Further appeals against conviction' and comprises s 35B to s 35J.
Part 3A was inserted into the Criminal Appeals Act by the Criminal Appeals Amendment Act 2022 (WA). The amending Act came into operation on 1 January 2023.
Section 35B provides that pt 3A applies to 'an offender' whether the offender was convicted of the offence to which an appeal under pt 3A relates before or after the Criminal Appeals Amendment Act 2022 came into operation.
By s 35C read with s 22, the term 'offender' in pt 3A means 'a person who has been convicted of an offence'.
Section 35E(1) confers a second or subsequent right of appeal against conviction as follows:
(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.
Section 34D explains the meaning, for the purposes of pt 3A, of the terms 'fresh', 'new' and 'compelling'.
Section 35F(1) provides that the leave of this court is required for each ground of appeal in an appeal brought under pt 3A.
In the present case, whether the appellant's second appeal is competent depends upon whether an offender may bring a second or subsequent appeal to this court against conviction, pursuant to s 35E of the Criminal Appeals Act, if the offender began an initial appeal against the same conviction but filed a discontinuance notice before this court determined the merits of the initial appeal.
The competency of the appellant's second appeal must be determined having regard to the legal effect of a discontinuance notice under r 59 of the Court of Appeal Rules as in force when the appellant filed his discontinuance notice on 5 September 2018. As I have mentioned, r 59 was amended in 2022. See [12] above.
Under r 59 of the Court of Appeal Rules (as in force in 2018) an appellant was permitted to discontinue an appeal by filing and serving a Form 16 (that is, a discontinuance notice). Rule 62 (as in force in 2018) provided that, when a criminal appeal was concluded, a registrar must issue a certificate of conclusion of criminal appeal (Form 17), which was the formal record of the Court of Appeal and formed part of the record of the Supreme Court. In contrast to the previous legislative regime and the current legislative regime, there was no express provision as at 2018 in the Court of Appeal Rules (or the Criminal Appeals Act) which provided that the filing of a discontinuance notice was a deemed dismissal of the appeal.
It was well established as at 2018 that this court has power to grant leave to withdraw a discontinuance notice in a criminal appeal and to make an order setting aside the related certificate of conclusion of criminal appeal if satisfied that the notice was a nullity because the discontinuance notice was not the result of a deliberate and informed decision of the appellant. See [14] above.
It was also well established as at 2018 that this court has the discretionary power to grant leave to withdraw a discontinuance notice in a criminal appeal and to make an order setting aside the related certificate of conclusion of criminal appeal even if the discontinuance notice was not a nullity. See [14] above.
It follows from the existence of this court's power to grant leave to withdraw a discontinuance notice in a criminal appeal, and to make an order setting aside the related certificate of conclusion of criminal appeal, that this court's jurisdiction in relation to an initial appeal that has been discontinued (before this court has determined its merits) is not exhausted unless and until, relevantly to the present case:
(a)the appellant applies for leave to withdraw the discontinuance notice and for an order setting aside the related certificate of conclusion of criminal appeal, and this court refuses to grant leave to withdraw and refuses to make an order setting aside the related certificate of conclusion; or
(b)the appellant is precluded by an order of this court from making an application for leave to withdraw the discontinuance notice and for an order setting aside the related certificate of conclusion of criminal appeal.
In our opinion, s 35E of the Criminal Appeals Act and the other provisions of pt 3A are premised on an offender having exhausted this court's jurisdiction in respect of an initial appeal against the same conviction, including in respect of any discontinuance notice. In particular, that is apparent from the text of s 35E(1), which relevantly confers on an offender a right to 'bring a 2nd or subsequent appeal' to this court against conviction. The reference to the bringing of 'a 2nd or subsequent appeal' necessarily presupposes that there was an initial appeal to this court against the same conviction and that this court's jurisdiction in relation to that initial appeal has been exhausted.
The premise to which we have referred is confirmed by statements of the Attorney‑General in his second reading speech on the Criminal Appeals Amendment Bill 2021 (which upon enactment became the Criminal Appeals Amendment Act 2022). The Attorney said that:
(a)'A pillar of our justice system is the principle of finality, which dictates that once a court has handed down a decision, that decision is final'.
(b)'[T]here are limited circumstances in which the principle of finality must be put aside for the purpose of allowing justice to be served, however belatedly' and '[t]his bill seeks to provide that avenue'.
(c)'As it stands, a convicted person who has exhausted all of their appeals has no further right to appeal …'.
See Western Australia, Parliamentary Debates, Legislative Assembly, 11 August 2021, p 2637a ‑ 2638a. See also s 19 of the Interpretation Act 1984 (WA).
So, an offender is not entitled to bring a second appeal against conviction to this court under pt 3A of the Criminal Appeals Act unless the offender has brought an initial appeal against the same conviction under pt 3 of the Criminal Appeals Act, and this court's jurisdiction in respect of the initial appeal, including in respect of any discontinuance notice, has been exhausted.
Accordingly, the second appeal notice lodged by the appellant should not be accepted for filing, on the basis that the second appeal is incompetent, because this court's jurisdiction in respect of the initial appeal begun by the appellant, including in respect of the discontinuance notice, has not been exhausted. This court's jurisdiction in respect of the initial appeal will not be exhausted unless and until, relevantly:
(a)the appellant brings an application in the initial appeal for leave to withdraw his discontinuance notice and for an order setting aside the related certificate of conclusion of criminal appeal, and this court refuses to grant leave to withdraw and refuses to make an order setting aside the related certificate of conclusion; or
(b)the appellant is precluded by an order of this court from making an application for leave to withdraw the discontinuance notice and for an order setting aside the related certificate of conclusion of criminal appeal.
The orders made by this court at the hearing on 29 April 2024
After hearing submissions from counsel for the appellant and counsel for the respondent, this court ordered at the hearing on 29 April 2024 that:
(1)By 4.00 pm on 20 June 2024 the appellant must inform the court and the respondent in writing whether the appellant contends that the discontinuance notice he filed on 5 September 2018 should be set aside on the ground that the discontinuance notice is a nullity, alternatively on the ground that the court in the exercise of its discretion should grant the appellant leave to withdraw the discontinuance notice.
(2)If the appellant does not comply with order (1) or if the appellant complies with order (1) and does not contend that the discontinuance notice should be set aside, alternatively that the appellant should be granted leave to withdraw the discontinuance notice, then the appellant may not subsequently make an application for the discontinuance notice to be set aside or for leave to withdraw the discontinuance notice.
The appellant's response to the orders made by this court on 29 April 2024
Pursuant to order (1) of the orders made by this court on 29 April 2024, the appellant informed the court and the respondent in writing that the appellant contended that the discontinuance notice he filed on 5 September 2018 should be set aside on the ground that the discontinuance notice is a nullity, alternatively on the ground that the court in the exercise of its discretion should grant the appellant leave to withdraw the discontinuance notice.
On 14 May 2024, the appellant filed an application in the initial appeal (that is, in CACR 139 of 2018) for leave to withdraw the discontinuance notice and for an order setting aside the certificate of conclusion of criminal appeal.
In the circumstances, it is appropriate that this court now makes an order that the second appeal notice lodged by the appellant on 8 April 2024 not be accepted for filing on the basis that the second appeal, sought to be commenced pursuant to s 35E of the Criminal Appeals Act, is incompetent.
Finally, we note, for completeness, that it is unnecessary, in view of the appellant having filed the application in the initial appeal for leave to withdraw the discontinuance notice and for an order setting aside the certificate of conclusion of criminal appeal, to decide comprehensively how and when the court's jurisdiction in respect of an initial appeal will be exhausted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
24 SEPTEMBER 2024
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