Tu v McLean - [2022] WASC 176

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   TU -v- MCLEAN [2022] WASC 176
CORAM:   DERRICK J
HEARD:   2 MAY 2022
DELIVERED          :   20 MAY 2022
FILE NO/S:   SJA 1095 of 2021
BETWEEN:   QIU TU
Appellant
AND
ALISTAIR JAMES MCLEAN
Respondent

ON APPEAL FROM:
For File No:   SJA 1095 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S DE MAIO
File Number            :   JO 7581/2018

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted of fishing for abalone without authorisation and not during fishing season - Whether magistrate's verdict was unreasonable or could not be supported by the evidence - Whether magistrate denied the appellant procedural fairness by preventing him from correcting a court engaged interpreter - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Fish Resources Management Regulations 1995 (WA)

Result:

Application for leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr T E Ledger

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor's Office (WA)

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

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MEN v The State of Western Australia [2020] WASCA 118
Montalbano v Morris [2019] WASC 309; (2019) 279 A Crim R 174
PYN v The State of Western Australia [2020] WASCA 116
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Wells v The State of Western Australia [2017] WASCA 27

DERRICK J:

Introduction

On 29 May 2018 the appellant was charged with one offence of fishing for nine Roe's Abalone in Abalone Zone 1 during a prohibited period and while not being a person authorised to take abalone under a managed fisheries licence contrary to reg 38D(2) of the Fish Resources Management Regulations 1995 (WA). The charge alleged the appellant to have committed the offence on 7 April 2018 at Two Rocks Beach.
The appellant pleaded not guilty to the charge.
The appellant's trial took place in the Magistrates Court before Magistrate De Maio on 3 ‑ 4 August 2020 and on 9 ‑ 11 August 2021. On 3 ‑ 4 August 2020 the appellant was self-represented and conducted his defence with the assistance of court provided Mandarin speaking interpreter.[1] On 9 ‑ 11 August 2021 the appellant was represented by counsel but continued to make use of a court provided Mandarin interpreter including when he gave evidence.[2]
[1] At the beginning of the trial the interpreter identified herself: ts 3, 3 August 2020. The magistrate did not at this point require the interpreter to take the interpreter's oath or affirmation. It is not clear if the same interpreter was used to interpret for the accused throughout…

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 Tu v McLean

Details

AGLC: Tu v McLean [2022] WASC 176
Case: [2022] WASC 176
Decision Date

CaseChat Overview and Summary

The appellant was convicted by a magistrate of fishing for abalone without authorisation and not during the fishing season. The appellant appeals against his conviction, contending that the magistrate's verdict was unreasonable or could not be supported by the evidence, and that the magistrate denied him procedural fairness by impermissibly preventing him from correcting interpretation errors made by the interpreter. The court found that the magistrate's verdict was open to her and was not unreasonable. The magistrate had the advantage of seeing and hearing the witnesses give evidence, and it was open to her to find that the evidence given by the prosecution witnesses was honest and reliable, and the evidence given by the appellant and his father-in-law was not honest and reliable. The court also found that the magistrate's actions in preventing the appellant from interfering with the interpretation process were not impermissible and did not deny the appellant procedural fairness. The application for leave to appeal was refused and the appeal dismissed.

Orders