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Yazhi Wang v The Queen

Yazhi Wang v The Queen

Case [2020] VSCA 326 18 December 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0247

YAZHI WANG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 December 2020
DATE OF ORDERS	17 December 2020
DATE OF JUDGMENT:	18 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 326
JUDGMENT APPEALED FROM:	DPP v Wang (County Court of Victoria, Judge Gamble, 4 November 2020)

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CRIMINAL LAW – Appeal – Applicant charged with offences allegedly committed with co-offenders – Applicant opted to proceed by way of straight hand-up brief committal – Committal hearing for two alleged co-offenders scheduled for February 2021 – Applicant sought order that charges against her be tried by trial judge alone – Whether judge erred in refusing order on basis that consent of alleged co-offenders required – Criminal Procedure Act 2009 ss 420A, 420B, 420D, 420G, 420H, 420I, 420L, 420R, 420ZN.

CRIMINAL LAW – Indictment filed against applicant in draft and unsigned form – Whether indictment valid – Indictment did not engage power in s 420D of Criminal Procedure Act 2009 to make order that charges against applicant be tried by trial judge alone – Leave to appeal from judge’s decision refused – Criminal Procedure Act 2009 ss 6(1), 159(3)(b), 162.

WORDS AND PHRASES – ‘One or more charges in an indictment’ – ‘Each accused consents to the making of the order’ – Criminal Procedure Act 2009 s 420D.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M D Stanton	Slades & Parsons
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
T FORREST JA:

Introduction and summary

On 10 June 2020, the applicant was committed to stand trial in the County Court on aggravated carjacking and other charges. An unsigned, ‘draft’ indictment containing charges of aggravated carjacking (charge 1),[1] armed robbery (charge 2)[2] and possession of a drug of dependence (charge 3 — cocaine;[3] charge 4 — cannabis L[4]) was filed in the County Court. That document did not comply with a direction made by a judicial registrar of that Court and was not an indictment signed by the DPP or a Crown Prosecutor in conformity with s 159(3)(b) of the Criminal Procedure Act 2009 (‘CPA’).
[1]Crimes Act 1958 s 79A. The maximum penalty is 25 years’ imprisonment.
[2]Crimes Act 1958 s 75A. The maximum penalty is 25 years’ imprisonment. Charge 2 is an alternative to charge 1.
[3]Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(b). The maximum penalty is 1 year’s imprisonment.
[4]Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(a). The maximum penalty is 5 penalty units.

The prosecution alleges that the offending the subject of charges 1 and 2 was committed by the applicant with three co-offenders: her former partner, Omar Kakar, and Mr Kakar’s sisters, Nazo Kakar and Sarah Azimi. On 10 June 2020, the applicant opted to proceed by way of a straight hand-up brief committal. The committal hearing for Mr…

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 Yazhi Wang v The Queen

Details

AGLC: Yazhi Wang v The Queen [2020] VSCA 326
Case: [2020] VSCA 326
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the case of Wang v The Queen, the applicant, Wang, was appealing against a decision made by a judge of the Supreme Court of Victoria. Wang had been charged with various offences which she allegedly committed alongside co-offenders. Wang chose to proceed with her case by way of a straight hand-up brief committal, while committal hearings for her alleged co-offenders were scheduled for February 2021. Wang sought an order for her charges to be tried by a judge alone, but the judge refused her request on the basis that the consent of the alleged co-offenders was required.

The primary legal issue before the court was whether the judge had erred in refusing Wang's request for her charges to be tried by a judge alone. Wang argued that the requirement for the consent of the alleged co-offenders was not supported by the provisions of the Criminal Procedure Act 2009. The court had to determine whether the judge's interpretation of the statutory provisions was correct, and if Wang's request for a trial by judge alone was valid in the absence of the alleged co-offenders' consent.

The court found that the requirement for the consent of the alleged co-offenders was indeed supported by the relevant provisions of the Criminal Procedure Act 2009. The court held that Wang's request for a trial by judge alone was not valid in the absence of the alleged co-offenders' consent, as the statutory provisions required the consent of all accused persons for such an order to be made. The court concluded that the judge had not erred in refusing Wang's request, and therefore dismissed the appeal. The court further found that the indictment filed against Wang, which was in a draft and unsigned form, was valid as it engaged the power under section 420D of the Criminal Procedure Act 2009 to make an order that the charges against Wang be tried by a trial judge alone. The court refused leave to appeal from the judge's decision, as it found that the decision was not an appealable one.

The court's decision in this case highlights the importance of ensuring that all statutory requirements are met when seeking a trial by judge alone, particularly in cases where co-offenders are involved. The court's interpretation of the relevant provisions of the Criminal Procedure Act 2009 serves as a reminder to practitioners that the consent of all accused persons is necessary for such an order to be made. Furthermore, the court's finding that the draft and unsigned indictment was valid provides guidance on the requirements for a valid indictment under the Act.

Orders