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Tsen v The Queen

Tsen v The Queen

Case [2010] WASCA 21 12 February 2010

Criminal Liability

Mens Rea & Intention

Criminal Law

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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…

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 Tsen v The Queen

Details

AGLC: Tsen v The Queen [2010] WASCA 21
Case: [2010] WASCA 21
Decision Date: 12 FEBRUARY 2010

CaseChat Overview and Summary

In the High Court of Australia, Tsen presented an appeal against his conviction for murder. The dispute centred on the interpretation of the doctrine of joint criminal enterprise and the application of the principle of turning on one's own facts in the context of joint criminal activity. The central issue before the court was whether the trial judge correctly applied the principle that if a party in a joint criminal enterprise turned on their co-offenders and provided evidence solely to incriminate themselves, this could not be used to incriminate the co-offenders unless corroborated by independent evidence. The court was tasked with determining the scope and application of this principle in the context of the evidence presented in this case.

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