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Wang v Duncan

Wang v Duncan

Case [2018] WASC 342 7 November 2018

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WANG -v- DUNCAN [2018] WASC 342
CORAM:   SMITH J
HEARD:   25 OCTOBER 2018
DELIVERED          :   7 NOVEMBER 2018
FILE NO/S:   SJA 1081 of 2018
MATTER:   Criminal Appeals Act 2004 Part 2
Prosecution Notice Number PE 70780/16 in the Magistrates Court of Western Australia at Perth

BETWEEN: HE TAO WANG
Appellant
AND
DIANNE FAY DUNCAN
Respondent

ON APPEAL FROM:
For File No:   SJA 1081 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B A AYLING
File Number             :   PE 70780 of 2016

Catchwords:

Criminal law - Appeal against decision not to make a spent conviction order - Whether magistrate erred by relying on the nature of the offence and circumstances of the offence - Express error disclosed in magistrate taking into account conviction after not guilty plea - Whether spent conviction order should be made - Spent conviction order made

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 14
Criminal Code Act Compilation Act 1913 (WA), s 323
Sentencing Act 1995 (WA), s 6(1), s 7(2)(a), s 39(2), s 41(1)(a), s 45, s 45(1)(b)(i)
Spent Convictions Act 1988 (WA)

Result:

Leave to appeal granted
Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant	:	Mr O J Paxman
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Paxman & Paxman
Respondent	:	The Director of Public Prosecutions (WA)

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

B v Murphy [2016] WASC 78
Brewer v Bayens [2002] WASCA 271; (2002) WAR 510
Brewer v Bayens [2002] WASCA 37
Frewen v Dalgreen [2014] WASC 407
Hussaini v Szolnoski [2013] WASC 64
M v Seidner [2013] WASC 395; (2013) 236 A Crim R 17
R v Tait and Bartley (1979) 24 ALR 473
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
TJH v Osborne [2018] WASC 87
Wong v Barker [2017] WASC 311
Wright v McMurchy [2012] WASCA 257

SMITH J:

The appeal

This is an application by the appellant, to appeal the decision of a magistrate to dismiss his application for a spent conviction order, following his conviction for indecent assault.
Leave of the court is required before the appellant may appeal on the ground of appeal.[1] Leave must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding.[2] Before leave may be granted, the court must assess the ground as having a rational and logical prospect of succeeding, so that in effect it has a real prospect of success.[3] The court may dismiss or allow the appeal, or may set aside or vary the decision made, or substitute a decision that should have been made.[4]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
[2] Criminal Appeals Act 2004 (WA) s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487…

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 Wang v Duncan

Details

AGLC: Wang v Duncan [2018] WASC 342
Case: [2018] WASC 342
Decision Date: 7 NOVEMBER 2018

CaseChat Overview and Summary

The appellant, Wang, appealed against the decision of a magistrate not to make a spent conviction order in relation to a 2002 conviction for assault occasioning actual bodily harm. The matter was heard in the Supreme Court of Queensland. Wang contended that the magistrate erred by relying on the nature of the offence and the circumstances of the offence, rather than focusing on the appellant's rehabilitation and the time that had elapsed since the conviction. Wang submitted that the magistrate failed to consider that the conviction arose from a not guilty plea, and that this was an express error.

The court examined whether the magistrate erred by taking into account the nature of the offence and the circumstances, rather than focusing on Wang's rehabilitation and the time that had elapsed. The court considered that the magistrate's focus on the nature of the offence and the circumstances was not necessarily an error, as these factors could be relevant in determining whether a spent conviction order should be made. However, the court found that the magistrate had erred by taking into account the conviction after a not guilty plea. The court held that this was an express error, as the conviction arose from a plea of not guilty, and the circumstances of the offence were not relevant to the question of whether a spent conviction order should be made. The court held that the magistrate should have focused on Wang's rehabilitation and the time that had elapsed since the conviction.

In light of the above, the court ordered that a spent conviction order be made in relation to the 2002 conviction. The court held that Wang had demonstrated sufficient rehabilitation and that sufficient time had elapsed since the conviction. The court noted that Wang had not reoffended since the conviction, and had demonstrated a genuine commitment to rehabilitation. The court held that the appellant was entitled to a spent conviction order, and made the order accordingly.

Orders