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JS v The State of Western Australia

JS v The State of Western Australia

Case [2014] WASCA 177 25 September 2014

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 177

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 18 AUGUST 2014

DELIVERED : 25 SEPTEMBER 2014

FILE NO/S: CACR 59 of 2014

BETWEEN: JS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SWEENEY DCJ
File No  :IND GER 18 of 2011

Catchwords:

Criminal law - Multiple appeals against conviction - Court's power to re-open appeal to permit new grounds of appeal - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 23(1)(a), s 27, s 27(3), s 46, s 47
Criminal Code (WA), s 320(4)
Sentencing Act 1995 (WA), s 140

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr J McGrath SC

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Amaca Pty Ltd v Hannell [No 2] [2011] WASCA 232
Barry v The State of Western Australia [2007] WASCA 12
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Davern v Messel [1984] HCA 34; (1984) 155 CLR 21
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
JS v The State of Western Australia [2012] WASCA 198
JS v The State of Western Australia [2013] HCASL 166
Powell v The State of Western Australia [2005] WASCA 137
Prazmo v The State of Western Australia [No 2] [2010] WASCA 99
The State of Western Australia v Wallam [2008] WASCA 117(S)
ZP v The State of Western Australia [2011] WASCA 12

McLURE P: The appellant, who is not legally represented, applies for leave to appeal against his convictions for three offences of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA).
There is an obstacle confronting the appellant. An appeal to this court by the appellant against the same convictions has been considered on the merits and finally disposed of (as has his appeal against sentence): JS v The State of Western Australia [2012] WASCA 198 (the first appeal). The orders were perfected in certificates of conclusion dated 14 and 15 November 2012. An application for special leave to appeal to the High Court was refused: JS v The State of Western Australia [2013] HCASL 166.
The appellant contends that the relevant law permits multiple (or at least more than one) appeals against his convictions. A related issue is whether this court has power to re‑open the first appeal to permit the appellant to raise new grounds of appeal. The answer is no on both counts.
An appeal is wholly a creature of statute. An appellate court's jurisdiction and power derive solely from the governing legislation (Davern v Messel (1984) 155 CLR 21, 47), in this case the Criminal Appeals Act 2004 (WA) (the CAA). The CAA covers the field in relation to appeals from statutory offences: Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [16].
There is nothing in the text, context or purpose of the CAA to provide an arguable foundation for the appellant's claim that he can appeal more than once against the same convictions.
The entitlements to refer questions of law to the Court of Appeal pursuant to s 46 and s 47 of the CAA have no application to an offender's appellate rights under the CAA. When an offender's rights under the CAA have been exhausted, there is a final avenue available under s 140 of the Sentencing Act 1995 (WA). That section entitles the Attorney General to refer a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment to the Court of Appeal.
I turn now to the power to re‑open an appeal that has finally been disposed of. In summary, the legislative framework is as follows.
An offender convicted of an offence on indictment may appeal to the Court of Appeal against, inter alia, the conviction: s 23(1)(a), CAA.
However, an offender's right to appeal against conviction is qualified by the requirement for leave in s 27 of the CAA which relevantly provides:
(1)The leave of the Court of Appeal is required for each ground of appeal in an appeal under this Part.
(2)After an appeal is commenced, the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
(3)Unless the Court of Appeal gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
In the first appeal, this court concluded that none of the appellant's grounds of appeal against his convictions had a reasonable prospect of success. Leave to appeal was refused and the appeal dismissed.
The construction and effect of s 27(3) has been determined by this court in Barry v The State of Western Australia [2007] WASCA 12. In that case a single judge (Roberts‑Smith JA) refused leave to appeal on the sole ground of appeal. The appellant filed an application for review of the single judge decision and an application to add a further ground of appeal. The application for review, considered by a coram of three, was unsuccessful. The court held that the plain effect of s 27(3) was that the application to add a further ground of appeal was incompetent [24].
The decision in Barry is consistent with the single judge decision in Powell v The State of Western Australia [2005] WASCA 137 [19]. Barry has been applied in Prazmo v The State of Western Australia [No 2] [2010] WASCA 99 and ZP v The State of Western Australia [2011] WASCA 12.
The consequences of the construction of s 27(3) in Barry are that an offender has only one opportunity to appeal and there is no power to re‑open an appeal that, under the CAA, is taken to have been dismissed.
Even in the absence of a provision equivalent to s 27(3), this court has held that, with limited exceptions that do not apply in this case, it does not have the power to re‑open an appeal that has been dismissed and the order to that effect perfected: The State of Western Australia v Wallam [2008] WASCA 117(S) [6] ‑ [17]. This follows the decisions of the High Court in Burrell v The Queen (2008) 238 CLR 218 and Grierson v The

King (1938) 60 CLR 431. The law is the same in the civil context: Amaca Pty Ltd v Hannell [No 2] [2011] WASCA 232.

The application must be dismissed
BUSS JA: I agree with McLure P.
MAZZA JA: I agree with McLure P.

Details

AGLC: JS v The State of Western Australia [2014] WASCA 177
Case: [2014] WASCA 177
Decision Date: 25 SEPTEMBER 2014

CaseChat Overview and Summary

In the case of JS v The State of Western Australia, the applicant sought to appeal against his conviction and sentence for an offence under the Criminal Code. The application for leave to appeal was made several years after the original appeal had been determined. The applicant sought to introduce new grounds of appeal that were not raised in the original appeal, namely, the alleged denial of procedural fairness by the original trial judge. The High Court of Australia was asked to consider whether it had the power to re-open an appeal to permit new grounds of appeal, and if so, under what circumstances.

The central legal issue before the court was whether the High Court had the inherent jurisdiction to re-open an appeal that had already been determined by an appellate court, in order to permit new grounds of appeal. The court had to determine whether the power to re-open an appeal was limited to cases where there had been a manifest miscarriage of justice, or whether it extended to cases where the appellant had failed to raise a potential ground of appeal in the original appeal. The court also had to consider the principles that should guide the exercise of this power, including the need to balance the interests of the appellant with the finality of the original appellate decision.

The court held that it did have the power to re-open an appeal in appropriate circumstances, but that this power was limited and should be exercised sparingly. The court noted that the power to re-open an appeal was not a general power of appellate review, but rather a narrow exception to the principle of finality. The court held that the power could be exercised where there had been a significant change in the law or where new evidence had come to light that was not available at the time of the original appeal. However, the court also held that the power could not be exercised simply because the appellant had failed to raise a potential ground of appeal in the original appeal. The court held that the applicant's application to re-open the appeal was not made out, as there had been no significant change in the law and no new evidence had come to light.

The court did not make any orders in relation to the applicant's appeal, as it held that the application to re-open the appeal was not made out. The court did, however, provide guidance on the principles that should guide the exercise of the power to re-open an appeal, which may be relevant to future applications in similar circumstances.

Orders