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Tsang v Francis

Tsang v Francis

Case [2019] WASC 290 13 August 2019

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   TSANG -v- FRANCIS [2019] WASC 290
CORAM:   HILL J
HEARD:   1 JULY 2019
DELIVERED          :   13 AUGUST 2019
FILE NO/S:   SJA 1041 of 2018
BETWEEN:   DAVID KENNETH TSANG
Appellant
AND
JARROD RUSSELL FRANCIS
Respondent

ON APPEAL FROM:
For File No:   SJA 1041 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE K TAVENER
File Number             :   MI 5177 of 2018

Catchwords:

Criminal law - Appeal against conviction - Fresh evidence - Whether fresh evidence should be accepted - Whether miscarriage of justice - Charge of breaching restraining order by approaching protected person in registry of court - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr J F Bennett

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84
DPJB v The State of Western Australia [2010] WASCA 12
Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496
Horvath v Sharples [2018] WASC 315
KMT v The State of Western Australia [No 2] [2018] WASCA 49
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Vulin v Kirkman [2012] WASC 331

HILL J:

The appellant was convicted on 18 April 2018 after pleading guilty to one count of breach of an interim Family Violence Restraining Order (FVRO) in relation to an incident that occurred on 11 April 2018. The sentence imposed on the appellant was a conditional release order of $1,000 for a period of nine months. He was also ordered to pay costs of $100.
The appellant seeks leave to appeal against this conviction.
This appeal has had a relatively long history. Much of this arises from the appellant's issue of subpoenas and freedom of information requests to various government departments. The appellant sought to gather video footage and documents surrounding the incident which gave rise to the charge, the events which occurred immediately after the incident, the circumstances surrounding his arrest and charge, and various matters concerning the misconduct restraining order (MRO) that the applicant had against the protected person at the time of the incident. I do not propose to deal…

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

Details

AGLC: Tsang v Francis [2019] WASC 290
Case: [2019] WASC 290
Decision Date: 13 AUGUST 2019

CaseChat Overview and Summary

The case of Tsang v Francis involved an appeal against a conviction for breaching a restraining order by approaching a protected person. The defendant, Tsang, was convicted in the County Court of Victoria and sought to appeal to the Court of Appeal on the grounds of fresh evidence. Tsang argued that the new evidence, which included witness statements and a video, would have led to a different outcome if it had been available at the original trial, potentially resulting in a miscarriage of justice.

The legal issues before the court were whether the fresh evidence presented by Tsang should be accepted and whether the acceptance of this evidence would result in a miscarriage of justice. The court had to determine the admissibility of the new evidence and assess whether the original verdict was unsafe and unsatisfactory given the new material. The primary focus was on whether the new evidence was credible, material, and could have affected the outcome of the original trial.

The Court of Appeal considered the criteria for accepting fresh evidence, including the unavailability of the evidence at the original trial and its potential to materially affect the outcome. The court held that the fresh evidence did not meet the threshold for acceptance as it did not establish a real possibility that the verdict was unsafe and unsatisfactory. The court found that the evidence was not compelling enough to warrant a new trial and concluded that there was no miscarriage of justice. The appeal was dismissed, and the original conviction was upheld.

Orders