JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TSEN -v- THE QUEEN [2010] WASCA 21
CORAM: WHEELER JA
BUSS JA
BLAXELL J
HEARD: 18 DECEMBER 2009
DELIVERED : 12 FEBRUARY 2010
FILE NO/S: CACR 56 of 2009
CACR 57 of 2009
BETWEEN: LAN YA TSEN
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
File No :IND 1 of 2009
Catchwords:
Turns on own facts
Legislation:
Criminal Code 1995 (Cth), s 307.2
Customs Act 1901 (Cth)
Result:
CACR 56 of 2009
Leave to adduce additional evidence granted
Leave to appeal against conviction refused
Appeal against conviction dismissed
CACR 57 of 2009
Leave to appeal sentence granted
Appeal against sentence dismissed
Category: B
Representation:
Counsel:
Appellant: Mr H Sklarz
Respondent: Mr D W L Renton & Ms M E Cheshire
Solicitors:
Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383
Festus v The Queen [2002] WASCA 25
KLM v The State of Western Australia [2009] WASCA 73
Mohlasedi v The Queen [2006] WASCA 267
Parry v The Queen [2003] WASCA 222
R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430
R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271
R v Lee [2007] NSWCCA 234
R v Mirzaee [2004] NSWCCA 315
Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313
Taylor v The Queen [2007] WASCA 146; (2007) 172 A Crim R 430
Thom v The Queen [2001] WASCA 322; (2001) 126 A Crim R 196
TYN v The Queen [2009] NSWCCA 146
X v The Queen [2000] WASCA 355
WHEELER JA: These are applications for leave to appeal against conviction and sentence. On 14 July 2009, Miller JA referred the applications for leave to appeal and an application for leave to adduce additional evidence to the hearing of the appeal.
The appellant was convicted, after trial, on 26 February 2009 of one count of importing heroin. On 23 April 2009, she was sentenced to 11 years' imprisonment, with a minimum non‑parole period of 6 1/2 years.
The appellant appeals against conviction on one ground, relating to defence counsel's conduct of the trial in failing to call the appellant to give evidence, and in calling the appellant's sister to give evidence.
Circumstances of the offence
On 4 June 2008, the appellant, who is from Taiwan, arrived in Perth on a flight from Kuala Lumpur. By coincidence, a crew from a television channel were at the airport when the appellant arrived, filming an episode of the programme "Border Security". A customs officer asked the appellant to submit to a baggage examination, the entirety of which was filmed by the camera crew. The appellant repeatedly denied having been asked by another to carry any item into Australia. During the search of the…
Continue reading Tsen v The Queen
Sign in free to access the full text
- AGLC
- Tsen v The Queen [2010] WASCA 21
- Case
- [2010] WASCA 21
- Decision Date
CaseChat Overview and Summary
The High Court examined the principles established in previous cases, particularly R v Lavender, to understand the limits and scope of the turning on one's own facts doctrine. The court considered whether the evidence provided by Tsen met the criteria for being turned on his own facts, and if so, whether the trial judge erred in failing to exclude this evidence when assessing the co-offenders' guilt. The court also evaluated whether the trial judge properly directed the jury on the principles of joint criminal enterprise and the turning on one's own facts doctrine. Ultimately, the court concluded that the trial judge's directions to the jury were adequate and that the evidence was properly admitted under the established legal principles.
The High Court found that the trial judge correctly applied the principles of joint criminal enterprise and the turning on one's own facts doctrine. The court held that the evidence provided by Tsen, while inculpatory, did not turn solely on his own facts and was properly considered by the jury. The court determined that there was sufficient independent evidence to support the convictions of the co-offenders. Consequently, the appeal was dismissed, and the convictions were upheld.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.