Tang v The Queen - [2024] WASCA 110

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…

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 Tang v The Queen

Details

AGLC: Tang v The Queen [2024] WASCA 110
Case: [2024] WASCA 110
Decision Date: 24 SEPTEMBER 2024

CaseChat Overview and Summary

In Tang v The Queen, the appellant contested his conviction before the Court of Appeal of the Supreme Court of Western Australia. The case arose from the appellant's initial appeal against his conviction in July 2018, which was subsequently discontinued in September 2018. In April 2024, the appellant lodged another appeal against the same conviction. The central issue before the court was whether the appellant was permitted to bring a second appeal against the conviction under section 35E of the Criminal Appeals Act 2004 (WA), given that he had previously initiated an appeal that was discontinued before a determination on the merits.

The court examined the statutory provisions and relevant case law to determine whether a second appeal was permissible under the circumstances. It was necessary to interpret the scope of section 35E and understand the effect of the discontinuance notice on the appellant's right to appeal. The court also considered the principle of finality in criminal proceedings and the potential implications of allowing multiple appeals against the same conviction.

The Court of Appeal held that the appellant was not entitled to bring a second appeal against his conviction. The court reasoned that the discontinuance of the initial appeal constituted a final determination of that appeal, and thus the appellant could not subsequently bring another appeal against the same conviction. The court emphasised the importance of finality in criminal proceedings and noted that allowing multiple appeals could undermine the integrity of the judicial process. Consequently, the appeal was dismissed.

No further orders were made by the court.

Orders