Wong v WA Police - [2025] WASC 23

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   WONG -v- WA POLICE [2025] WASC 23
CORAM:   HOWARD J
HEARD:   24 OCTOBER 2024
DELIVERED          :   31 JANUARY 2025
FILE NO/S:   SJA 1103 of 2023
BETWEEN:   CHUN HUNG WONG
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA AT GERALDTON
Coram:   MAGISTRATE SHACKLETON
File Number            :   AM 188/2021

Catchwords:

Criminal law - Single judge appeal - Appeal against convictions imposed for offences against s 373 of the Criminal Code 1913 (WA) - Indecent assault - Cross-admissibility of evidence - Propensity evidence - Whether convictions unreasonable or unsupported - Leave to appeal refused - Appeal dismissed

Legislation:

Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr T F Percy KC and Mr P G Giudice
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	George Giudice Law Chambers
Respondent	:	Director of Public Prosecutions for Western Australia

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

ADL v State of Western Australia [2022] WASCA 12
Coomer v The State of Western Australia [2024] WASCA 133
Crofts v R (1996) 186 CLR 427
Director of Public Prosecutions (DPP) v Roder [2024] HCA 15; (2024) 98 ALJR 644
DPJB v The State of Western Australia [2010] WASCA 12
FGC v State of Western Australia (2008) 183 A Crim R 313; [2008] WASCA 47
Hayman v Cartwright [2018] WASCA 116; (2018) 53 WAR 137
KNL v The State of Western Australia [2023] WASCA 72
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
NTH v The State of Western Australia [2020] WASCA 22
Pell v R [2020] HCA 12; (2020) 268 CLR 123
Samuels v 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
Walsh v The State of Western Australia [2024] WASCA 78
Wark v The State of Western Australia [2023] WASCA 66
Webb v Tang [2023] WASCA 119
Zeng v R [2023] WASCA 25

HOWARD J:

The appellant's convictions and sentence

By prosecution notices dated 10 August, 14 September and 23 December 2021, the appellant was charged with 10 counts of unlawful and indecent assault against nine adult complainants. The 10 charges were alleged to have occurred between 1 January 2013 and 19 February 2021 at Geraldton.
Each of the charges was against s 323 of the Criminal Code 1913 (WA).
Section 323 of the Criminal Code reads as follows:
323. Indecent assault
A person who unlawfully and indecently assaults another person is guilty of a crime and liable to imprisonment for 5 years.
Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.
The appellant worked as a massage therapist in Geraldton and ran his own massage therapy business. All the complainants were clients of the appellant.
The appellant pleaded not guilty…

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.

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Details

Case: [2025] WASC 23
Decision Date: 31 JANUARY 2025

CaseChat Overview and Summary

The case of Wong v WA Police involved the appellant appealing against his convictions for offences under section 373 of the Criminal Code 1913 (WA), which pertains to indecent assault. The appellant was convicted following a jury trial and sentenced to imprisonment. He sought to appeal on the grounds that his convictions were unreasonable or unsupported, primarily arguing that the trial judge erred in allowing cross-admissible evidence and propensity evidence to be presented to the jury. The appeal was lodged in the Supreme Court of Western Australia.

The court had to determine whether the trial judge's decisions to admit certain evidence were erroneous and, if so, whether such errors were significant enough to render the convictions unreasonable or unsupported. Specifically, the court needed to assess the trial judge's rulings on the admissibility of cross-admissible evidence and propensity evidence, and whether these decisions were within the bounds of acceptable judicial discretion. The court also considered the impact of any potential errors on the overall safety of the appellant's convictions.

The court found that the trial judge did not err in admitting the cross-admissible and propensity evidence, as these were relevant to the issues before the jury and did not unfairly prejudice the appellant. The judge's discretion in this matter was upheld, and the court determined that any potential errors were not so significant as to undermine the safety of the convictions. Consequently, the appeal was dismissed, and leave to appeal was refused. The appellant's convictions and sentences were upheld, with no orders made in relation to the appeal.

Orders