Wong v The Queen - [2024] WASCA 111

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WONG -v- THE QUEEN [2024] WASCA 111
CORAM:   BUSS P
HALL JA

HEARD:   21 JUNE 2024
DELIVERED          :   24 SEPTEMBER 2024
FILE NO/S:   CACR 119 of 2019
BETWEEN:   TECK KONG WONG
Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
File Number            :   INS 62 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant filed an appeal notice in August 2019 in respect of his conviction - Appellant filed a discontinuance notice in December 2019 - Appellant lodged another appeal notice in April 2024 in respect of the same conviction - Whether an offender may bring to this court a second or subsequent appeal against conviction, pursuant to s 35E of the Criminal Appeals Act 2004 (WA), if the offender began an initial appeal against the same conviction but filed a discontinuance notice before this court determined the merits of the initial appeal

Legislation:

Criminal Appeals Act 2004 (WA), pt 3A
Criminal Code (Cth), s 11.2(1), s 307.1(1)

Result:

Second appeal notice lodged by the appellant in April 2024 not accepted for filing

Category: B

Representation:

Counsel:

Appellant	:	J A O'Hara
Respondent	:	L Glenn

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions (Cth)

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

Tang v The Queen [2024] WASCA 110

JUDGMENT OF THE COURT:

On 14 December 2017, the appellant was convicted after a trial before Fiannaca J and a jury of one count of aiding and abetting the importation of a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 11.2(1) read with s 307.1(1) of the Criminal Code (Cth).
The count related to about 182 kg of methamphetamine that was landed on the Western Australian coast by a tender launched from a fishing vessel.
Four co‑offenders collected the drug from the landing site.
The appellant had a supervisory role in relation to the importation of the methamphetamine. He also assisted in transporting the drug to Perth.
On 26 June 2018, the trial judge sentenced the appellant to 26 years' imprisonment with a non‑parole period of 17 years. The sentence was backdated to 24 May 2016 to take account of time the appellant had spent in custody on remand.
On 19 August 2019, the appellant filed an appeal notice (the initial appeal notice) in respect of his conviction. The draft ground of appeal in the initial appeal notice alleged that '[t]he Crown cannot provide 100 per cent or strong evidence to prove that I was involved, the conversation [sic] and the witness submitted by [the] Crown could be challenged. There was a miscarriage of justice and prejudicial [sic] to me'. The file number for the initial appeal was CACR 119 of 2019. When he filed the initial appeal notice the appellant was not legally represented.
On 23 December 2019, the appellant filed a discontinuance notice in respect…

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 Wong v The Queen

Details

AGLC: Wong v The Queen [2024] WASCA 111
Case: [2024] WASCA 111
Decision Date: 24 SEPTEMBER 2024

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the appellant, Mr. Wong, brought an appeal against his conviction. The nature of the dispute involved the interpretation and application of section 35E of the Criminal Appeals Act 2004 (WA). Initially, Mr. Wong filed an appeal notice in August 2019, but subsequently filed a discontinuance notice in December 2019. After some time, Mr. Wong lodged another appeal notice in April 2024, concerning the same conviction. The central legal issue for the court was whether an offender can bring a second appeal against a conviction to this court under section 35E of the Act, given that the offender had previously filed an appeal but discontinued it before the court determined the merits of the initial appeal.

The court considered the language of section 35E, which states that an offender may bring an appeal to the court against their conviction, and the circumstances under which such an appeal may be brought. The court examined whether the act of filing a discontinuance notice constituted a finality of the initial appeal, thereby permitting a subsequent appeal. The court found that the discontinuance of an appeal does not equate to a determination on the merits of the appeal itself, and as such, the appellant was not precluded from bringing a second appeal against the same conviction. The court concluded that the appellant's second appeal notice was validly lodged, and the appeal could proceed.

The final outcome of the case was that the court allowed Mr. Wong's appeal against his conviction to proceed. The court held that the filing of a discontinuance notice does not prevent an offender from lodging a subsequent appeal against the same conviction, provided the appeal is filed within the prescribed time limits. This interpretation ensures that the provisions of section 35E are not circumvented by the strategic filing of a discontinuance notice. The court's decision affirms the right of an offender to challenge a conviction through successive appeals, subject to compliance with the statutory requirements.

Orders