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
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…
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 Tsang v Francis
Sign in free to access the full text
Details
AGLC
Tsang v Francis [2021] WASCA 131
Case
[2021] WASCA 131
Decision Date
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.