Tran v The State of Western Australia
[2023] WASCA 125
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRAN -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 125
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 9 AUGUST 2023
DELIVERED : 9 AUGUST 2023
PUBLISHED : 28 AUGUST 2023
FILE NO/S: CACR 7 of 2021
BETWEEN: VAN HOANG TRAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 1841 of 2019
Catchwords:
Criminal law - Application to withdraw notice of discontinuance - Where notice signed by lawyer - Where appellant unaware of and did not authorise filing of notice - Whether notice of discontinuance a nullity
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 59(1A)
Result:
Application granted
Notice of discontinuance set aside
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Forestview Nominees Pty Ltd v Perron Investments Pty Ltd (1999) 162 ALR 482
KAN v The State of Western Australia [2021] WASCA 182
Newton v The State of Western Australia [2023] WASCA 116
South Bucks District Council v Flanagan [2002] 1 WLR 2601
YNT v The State of Western Australia [2020] WASCA 80
REASONS OF THE COURT:
On 9 August 2023 we heard this application by the appellant to withdraw a notice of discontinuance. At the conclusion of the hearing, counsel for the respondent conceded that opposition to the application could not be maintained. That concession was properly made. Accordingly, we made orders that the application be granted, and the discontinuance notice be set aside. We said that reasons for making those orders would be published at a later date.
Background
On 9 December 2020 the appellant was convicted following a trial of one count of possession of a trafficable quantity of methylamphetamine with intent to sell or supply, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). On 18 December 2020 he was sentenced to 11 years' imprisonment. Other co‑offenders were dealt with either at the trial or on their pleas of guilty. It is unnecessary for present purposes to detail the outcomes in respect of those co‑offenders.
The appellant appealed against his conviction by an appeal notice dated 28 January 2021. At the time of filing the appeal notice the appellant was represented by Ms Patti Chong. On 10 March 2021 a notice of acting was filed by Terry Dobson Legal. Thereafter, the appellant was represented by that firm.
The appellant's case was due to be filed and served on 22 April 2021. On 21 April 2021 a notice of discontinuance was filed. The discontinuance notice was in the form that existed at that time. A new form has since been prescribed.[1] At that time a discontinuance notice could be signed by either the appellant or the appellant's lawyer.[2] In the notice the word 'appellant' has been crossed out and a signature appears above the words 'appellant's lawyer' which appears to read 'TK Dobson'. It is accepted by the State that the signature is consistent with the signature on the notice of acting filed by Terry Dobson Legal on 10 March 2021.[3]
[1] Supreme Court (Court of Appeal) Rules 2005 (WA), Form 16.
[2] It must now be signed by both the appellant and a legal practitioner (if any) acting for the appellant - see Supreme Court (Court of Appeal) Rules, r 59(1A).
[3] Respondent's submissions [12].
Mr Terry Dobson was a legal practitioner who conducted practice in the name of Terry Dobson Legal. He died on 5 May 2021. His son, Mr Ted Dobson, also worked for the firm at the relevant time. Mr Terry Dobson's full name was Terrence Kimberley Dobson. His son has a different middle name with a different initial. In these circumstances, the State accepted that the notice of discontinuance was signed by Mr Terry Dobson.[4]
[4] Appeal ts 32 - 33.
On 23 April 2021 this court issued a certificate of conclusion of criminal appeal, signed by an acting Court of Appeal registrar.
On 15 May 2023 the appellant filed an application to set aside the notice of discontinuance. In support of that application, he filed an affidavit sworn by him on 10 May 2023. He later filed further affidavits sworn by him on 7 June 2023 and 5 July 2023. These will be referred to as the appellant's first, second and third affidavits, respectively.
On the application of the respondent a summons to produce documents was served on Terry Dobson Legal. Relevant documents from the appellant's client file were produced and annexed to an affidavit filed by the respondent.
Evidence at the hearing
At the commencement of the hearing the affidavits were received provisionally, subject to any ruling on their admissibility in the court's reasons.
In the appellant's first affidavit, he states that the notice of discontinuance was 'unilaterally filed' by his lawyer, without his consent and without notice to him. He states that Mr Terry Dobson had been assigned by Legal Aid and sought an opinion as to the merits of the appeal from another lawyer. The opinion was sought from a Perth‑based lawyer. The opinion was unfavourable.[5]
[5] Appellant's affidavit sworn 10 May 2023.
In the appellant's second affidavit, he repeats his claim that the notice of discontinuance was filed without his knowledge. He then sets out the basis on which he wishes to appeal against both his conviction and sentence.[6]
[6] Appellant's affidavit sworn 7 June 2023. The appellant has also separately filed an application for leave to appeal against his sentence.
In the appellant's third affidavit, he again repeats his claim that the notice of discontinuance was filed without his knowledge. He states that a relative of his, Mr Seato Nguyen, contacted a Melbourne barrister with a view to that barrister providing assistance in his case. It is apparent from other documents that this occurred in April 2021. The appellant states that Mr Nguyen was unable to meet the cost of the Melbourne barrister. Consequently, the Melbourne barrister was to 'stay out of the picture'.[7]
[7] Appellant's affidavit sworn 5 July 2023.
The appellant states that on 16 November 2022 he received a letter from Terry Dobson Legal. That letter was included amongst the documents produced to the court by Terry Dobson Legal. The letter is signed by Mr Ted Dobson, and states that the purpose of it is to provide the appellant with clarification regarding his conviction appeal. The letter encloses other documents and notes that 'information was sought from [the appellant] on multiple occasions with the assistance of an interpreter'. The letter concludes by stating that '[u]ltimately, it was decided by [the appellant] that [the appellant] did not wish to proceed with an appeal against sentence or an appeal against conviction'. The appellant states that this letter was not translated for him, and that he did not receive any notification from Terry Dobson Legal that his appeal would be discontinued. He states that he has never given any instruction, either in writing or verbally, to discontinue his conviction appeal.[8]
[8] Appellant's affidavit sworn 5 July 2023.
The documents produced under summons by Terry Dobson Legal include an email with a handwritten note dated 12 April 2021 that indicates that the author of the note spoke to Mr Nguyen regarding whether the family wished to proceed with the appeal, having regard to the cost. It is unnecessary to refer further to that note as it does not purport to be a record of a conversation with the appellant. Further, neither Mr Nguyen nor the author of the note was called to give evidence.
The documents produced under summons do not include any file note or other record to the effect that the appellant's instructions were sought regarding the filing of the notice of discontinuance, or that he ever gave any instructions in that regard.
The appellant gave evidence at the hearing of the appeal. He was cross‑examined and maintained that he had never given instructions to his lawyers to discontinue the conviction appeal. He gave that evidence with the assistance of an interpreter.
The appellant said in evidence that he was aware that Mr Nguyen had contacted the Melbourne barrister. He said that he never personally spoke to the Melbourne barrister, but he did speak to a lawyer from Terry Dobson Legal. It was suggested that he had spoken to the lawyer twice, but he could remember only speaking once. On that occasion, an interpreter was present. The appellant accepted that he was told that there was very little chance of successfully appealing against his conviction. He agreed that he told the lawyer that he would speak to his family before he made a decision about the appeal. When asked whether he told the lawyer that his family would advise the Melbourne barrister what his decision was regarding the appeal, the appellant said, 'Yes, I did say that I want to appeal, to lodge an appeal for my - for the decision of the court'. He then spoke to his wife. When it was put to him that he told his wife that he was not going to appeal against his conviction, the appellant said, 'I tell my wife that I want to lodge an appeal many, many times'. The appellant denied telling Mr Nguyen that he did not want to go ahead with the appeal.[9]
[9] Appeal ts 36 - 39.
Mr Ted Dobson was not called as a witness. The respondent accepted that he was available to be called. Counsel for the respondent said that inquiries had been made to determine whether there was anything material to the issue in this application that could be said by those involved in the matter at Terry Dobson Legal. Those inquiries had proved to be fruitless.[10]
[10] Appeal ts 40.
At the conclusion of the hearing counsel for the respondent said that the evidence given by the appellant could not be refuted. In these circumstances the respondent accepted that on the available evidence, opposition to the application could not be maintained.[11]
[11] Appeal ts 40.
Relevant legal principles
The relevant legal principles concerning the withdrawal of a notice of discontinuance, whether because the notice was a nullity or in the exercise of the discretionary power in s 40(1) of the Criminal Appeals Act 2004 (WA), were outlined in KAN v The State of Western Australia[12] and YNT v The State of Western Australia.[13] Those principles have also been applied recently in Newton v The State of Western Australia.[14] It is unnecessary to repeat those principles here.
[12] KAN v The State of Western Australia [2021] WASCA 182 [31] ‑ [35].
[13] YNT v The State of Western Australia [2020] WASCA 80 [31] ‑ [34].
[14] Newton v The State of Western Australia [2023] WASCA 116.
It is sufficient to say that a notice of discontinuance will be a nullity if it was not the result of a deliberate and informed decision by the appellant. In such circumstances the notice should be set aside. Insofar as there is any discretion not to set aside a notice that has been proven to be a nullity, it was not suggested that this was a case where it would be appropriate to exercise such a discretion.
The court also has a discretion to set aside a notice of discontinuance that is not a nullity. In exercising that discretion, the merits of the proposed grounds of appeal are a relevant consideration. If an application to withdraw a notice of discontinuance is to be granted on the ground that the notice is a nullity, there is no need to consider the discretionary power to permit the withdrawal of a notice. Nor, for that reason, is there any need to consider the merits of the proposed grounds of appeal. The proper course is for those grounds to be considered in the ordinary course at a hearing of the conviction appeal.
The merits of the application
The available evidence supports a conclusion that the appellant was unaware of the notice of discontinuance and did not expressly authorise his lawyer to file it. That conclusion is supported by the following:
1.The appellant's sworn evidence that he did not authorise the discontinuance of the appeal, a position he maintained in cross‑examination.
2.The absence of any evidence to the contrary. In particular, the absence of any record of any instructions sought from, or given by, the appellant to file the notice of discontinuance.
3.The fact that the notice of discontinuance is not signed by the appellant and that there is no evidence to suggest that he had seen it, or received a copy of it, prior to these proceedings.
4.Whilst the appellant was made aware of negative legal opinions regarding the prospects of an appeal, it does not follow that he agreed to the appeal being discontinued. Appellants do not invariably accept the advice of their lawyers. Sometimes they persist with appeals against such advice, occasionally with success.
5.The appellant is Vietnamese and required an interpreter when giving evidence and when speaking to his lawyer. This would have raised the risk of miscommunication or misunderstanding.
6.The respondent did not seek to call any witnesses on the application, in particular Mr Seato Nguyen or Mr Ted Dobson. It can be assumed that there are no witnesses who could cast further light on the circumstances.
7.The lawyer who signed the notice of discontinuance, Mr Terry Dobson, is deceased, and there is no other contemporaneous record of the circumstances in which he came to sign that document.
The only question remaining is whether Mr Terry Dobson had implied authority to sign and file the notice of discontinuance.
The terms of a lawyer's retainer will generally determine the scope of a lawyer's authority as an agent of the client. A retainer will also carry with it an implied authority to do all things which may reasonably be expected to arise for decision in the course of proceedings.[15] It has been said that the scope of implied authority will depend on whether it can reasonably be said that the lawyer has authority to engage in the conduct in issue without prior client approval.[16] The more significant the legal consequences for the client of the lawyer's action the more likely the court is to find that it is outside the scope of implied authority.[17]
[15] Forestview Nominees Pty Ltd v Perron Investments Pty Ltd (1999) 162 ALR 482, 503 (R D Nicholson J, with whom Spender J agreed).
[16] Dal Pont G, Lawyers' Professional Responsibility (7th ed, 2020) 95.
[17] For example, see South Bucks District Council v Flanagan [2002] 1 WLR 2601.
In the present case there is no evidence of the terms of the retainer. It can be inferred that it was to assist the appellant in obtaining opinions as to the merits of his appeal against conviction and to represent him on that appeal. The filing of a notice of discontinuance ordinarily has the effect of bringing an appeal to an end without the possibility, except in exceptional circumstances, of reviving the appeal or bringing a second appeal. The significance of the legal consequences is such that it could not reasonably be said that the appellant's lawyer had authority to sign and file a notice of discontinuance without prior client approval. Any implied authority did not extend that far. The decision to file the notice of discontinuance was a decision that had to be made personally by the appellant.
In the present case, the uncontested evidence is that the appellant was unaware of, and did not authorise, the filing of the notice of discontinuance. The filing of the notice was not the result of a deliberate and informed decision by the appellant. The State conceded that such a conclusion could not be resisted. For those reasons, the notice of discontinuance was a nullity and an order setting it aside was made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Research Associate to the Hon Justice Hall
28 AUGUST 2023
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