Tsang v Francis

Case [2021] WASCA 131


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   TSANG  -v- FRANCIS  [2021] WASCA 131

CORAM:   BUSS P

MAZZA JA

HALL J

HEARD:   14 DECEMBER 2020

DELIVERED          :   27 JULY 2021

FILE NO/S:   CACR 136 of 2019

BETWEEN:   DAVID KENNETH TSANG

Appellant

AND

JARROD RUSSELL FRANCIS

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   HILL J

Citation: TSANG v FRANCIS [2019] WASC 290

File Number            :   SJA 1041 of 2018


Catchwords:

Criminal law - Appellant convicted in the Magistrates Court on his plea of guilty of breaching a family violence restraining order 'by approaching and communicating with the protected person' contrary to s 61(1) of the Restraining Orders Act 1997 (WA) - Appellant's appeal against conviction to the Supreme Court in its General Division dismissed - Appellant sought to adduce additional evidence in his appeal before the primary judge - Whether the primary judge applied the wrong test in relation to the admission of the additional evidence -Whether the primary judge erred in failing to make findings of fact - Whether the primary judge erred in deciding that a statement allegedly made by a police officer to the appellant did not constitute an improper inducement to the appellant to plead guilty - Whether the primary judge erred in deciding that in any event the appellant's plea of guilty was not attributable to or a result of the statement allegedly made by the police officer - Whether the primary judge erred in deciding that the appellant breached the restraining order 'by approaching' the protected person - Whether the primary judge erred in deciding that the appellant breached the restraining order 'by communicating with' the protected person - Whether the primary judge erred in finding that s 62(1)(ca) of the Restraining Orders Act did not provide the appellant with a defence to the charge - Whether a miscarriage of justice occurred in the Magistrates Court which required the appellant's plea of guilty and the judgment of conviction to be set aside - Whether the proviso in s 14(2) of the Criminal Appeals Act 2004 (WA) should be applied

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1), s 14(1), s 14(2), s 16(2), s 18, s 36, s 39(1), s 39(3), s 40(1)(e)
Interpretation Act 1984 (WA), s 18, s 29
Restraining Orders Act 1997 (WA), s 3, s 10A, s 10D, s 10F(1), s 10G, s 61(1), s 62(1)(ca)

Result:

Appellant's applications filed on 11 and 17 August 2020 in the appeal to this court dismissed
Leave to appeal granted
Appealed allowed
The order by the primary judge dismissing the appellant's appeal to the Supreme Court in its General Division, and the order for costs made by the primary judge, set aside
Appellant's appeal to the Supreme Court in its General Division allowed
Appellant's plea of guilty in the Magistrates Court set aside
The judgment of conviction entered and the order for costs made in the Magistrates Court quashed
Matter…

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Tsang v Francis [2021] WASCA 131
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[2021] WASCA 131
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CaseChat Overview and Summary

David Kenneth Tsang appealed against his conviction by the Magistrates Court for breaching a family violence restraining order. The appeal was dismissed by Hill J in the Supreme Court in its General Division. Tsang then appealed to the Court of Appeal against Hill J's decision. The appeal was allowed. Hill J had erred in law by applying the wrong test in relation to the admission of additional evidence in the appeal. Hill J also failed to make findings of fact, having regard to the evidence before her, as to whether a police officer told Tsang that if he pleaded not guilty there would be no bail. If the police officer made the statement, the statement was improper and constituted an improper inducement to plead guilty. Hill J also erred in finding that the family violence restraining order did not entitle Tsang to approach the protected person outside the court hearing room but within the court building. Tsang's plea of guilty was set aside, the judgment of conviction was quashed, and the matter was remitted to the Magistrates Court for a new hearing. If the respondent decided, in the exercise of the prosecutorial discretion, to proceed again in the Magistrates Court, it would be necessary for the respondent to apply to the Magistrate for leave to amend the charge by deleting the allegation that Tsang breached the family violence restraining order by 'approaching' the protected person.

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