NPK v The State of Western Australia

[2021] WASCA 113

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   NPK -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 113

CORAM:   BUSS P

MITCHELL JA

VAUGHAN JA

HEARD:   15 JUNE 2021

DELIVERED          :   30 JUNE 2021

FILE NO/S:   CACR 161 of 2020

BETWEEN:   NPK

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEVENSON DCJ

File Number            :   IND 2141 OF 2017

Catchwords:

Criminal law - Appeal and new trial - Practice and procedure - Whether appeal notice should be struck out on the ground that the appeal is incompetent - Whether appellant can institute a second appeal against the same convictions

Legislation:

Criminal Appeals Act 2004 (WA), s 23, s 28
Supreme Court (Court of Appeal) Rules 2005 (WA), r 28, r 32(4)(a), r 62

Result:

Appeal dismissed as incompetent

Category:    B

Representation:

Counsel:

Appellant	:	S B Watters
Respondent	:	R G Wilson

Solicitors:

Appellant	:	Robertson Hayles Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

Morgan v The Queen (No 2) [2013] NSWCCA 80; (2013) 228 A Crim R 483

Napier v The State of Western Australia [2008] WASCA 106

Nguyen v The State of Western Australia (No 2) [2019] WASCA 5

NPK v The State of Western Australia [2020] WASCA 50

Ponnambalam v The State of Western Australia [2015] WASCA 185

Santos v The State of Western Australia [2016] WASCA 107

JUDGMENT OF THE COURT:

1. On 3 May 2019, the appellant was convicted of 7 counts on District Court indictment 2141 of 2017 (Indictment). Count 7 charged an offence of dangerous driving occasioning grievous bodily harm, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA). Counts 1 - 6 charged the appellant with offences of a different character, which it is unnecessary to detail in these reasons. The appellant was sentenced to a total effective sentence of 9 years 6 months' imprisonment, comprised of:

   (1)a head sentence of 5 years' imprisonment on count 5;

   (2)a cumulative sentence of 18 months' imprisonment on count 4; and

   (3)a cumulative sentence of 3 years' imprisonment on count 7.

2. Under s 23(1)(a) of the Criminal Appeals Act 2004 (WA) (CA Act), an offender convicted of an offence on indictment may appeal to this court against the conviction. Section 28(1) of the CA Act provides that such an appeal must be commenced and conducted in accordance with Part 3 of the CA Act and the rules of court.

3. Rule 28(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) relevantly provides for the commencement of a criminal appeal by the filing and service of a Form 1. Form 1, as set out in the schedule to the Rules, requires that the appeal notice set out draft grounds of appeal in numbered paragraphs.

4. On 28 May 2019, the appellant filed an appeal notice in CACR 75 of 2019 (first appeal).  The appeal notice indicated that the appellant was appealing against his convictions on all counts on the Indictment.  The draft ground of appeal in the appeal notice was that the 'conviction was unreasonable and not supported by the evidence'.  On its face, this draft ground related to all of the convictions in the Indictment.  The appellant's counsel in the current appeal accepted that, by filing and serving the appeal notice in the first appeal, the appellant commenced an appeal against his convictions of all counts in the Indictment.  In the circumstances, it is unnecessary to consider whether the appellant could have appealed against his convictions of only some of the counts in the Indictment, so as to preserve a capacity (subject to the grant of an extension of time) to subsequently commence a separate appeal against his convictions of other counts in the same Indictment.[1] 

   [1] Cf Morgan v The Queen (No 2) [2013] NSWCCA 80; (2013) 228 A Crim R 483 [38] - [78] and cases there cited.

5. Rule 32(4)(a) of the Rules requires an appellant to file an appellant's case in a criminal appeal which must contain all of the grounds of appeal on which the appellant intends to rely at the hearing of the appeal. Rule 28(5) provides that:

   In a criminal appeal the appellant, when preparing the grounds of appeal for the appellant's case under rule 32, may amend or omit any of the draft grounds of appeal in the appellant's Form 1, and may include additional grounds of appeal.

6. On 10 September 2019, the appellant filed his appellant's case in the first appeal. The sole ground of appeal was that the appellant's conviction on count 7 of the Indictment constituted a miscarriage of justice as the trial judge misdirected the jury with respect to the defence of emergency pursuant to s 25 of the Criminal Code (WA). By filing his appellant's case in the first appeal, the appellant exercised the right conferred by r 28(5) by omitting the draft ground of appeal in his appeal notice and including an additional ground of appeal. The additional ground of appeal sought only to impugn the appellant's conviction on count 7.

7. On 9 April 2020, this court granted leave to appeal on the sole ground of appeal, allowed the appeal, set aside the conviction on count 7 on the Indictment and ordered a retrial on that count.[2]  There was no variation to any of the sentences imposed in respect of the other counts on the Indictment.

   [2] See NPK v The State of Western Australia [2020] WASCA 50.

8. Rule 62 of the Rules requires that, once a criminal appeal is concluded, a registrar must issue a Form 17 (certificate of conclusion of a criminal appeal). Rule 3(1) defines 'concluded' in relation to a CA matter, to mean 'decided, dismissed or discontinued'.[3]

   [3] Rule 3(1) defines CA matter to mean 'any cause or matter, however described, that, under the Act section 58(1) or any other written law, the Court of Appeal has jurisdiction to hear and determine'.

9. On 15 April 2020, the acting Court of Appeal registrar issued a certificate of conclusion of criminal appeal in the first appeal, perfecting the orders at [7] above (Certificate).  Generally speaking, the perfection of the court's orders by the issue of a Form 17 certificate brings to an end the court's power to reopen and reconsider those orders.[4]

   [4] See Nguyen v The State of Western Australia (No 2) [2019] WASCA 5 [29] - [30] and cases there cited.

10. On 23 October 2020, the appellant filed an appeal notice in the current appeal, against his convictions of counts 1 - 6 on the Indictment.

11. By application in an appeal filed on 4 May 2021, the State has applied to strike out the appeal notice in the current appeal on the ground that the appeal is incompetent.  By application in an appeal filed on 13 May 2021, the appellant has applied to dismiss the State's application.

12. The State's application must be allowed, and the appellant's application dismissed. Section 23(1)(a) of the CA Act provides that an offender convicted of an offence on indictment may appeal to this court against the conviction. The appellant exercised that right of appeal in relation to all counts on the Indictment when he filed his appeal notice in the first appeal on 28 May 2019. The fact that the appellant did not ultimately pursue any grounds of appeal challenging his convictions of counts 1 - 6 on the Indictment does not alter the fact that, by filing the appeal notice in the first appeal, he exercised his right of appeal in relation to all counts on the Indictment.

13. Provisions giving a right of appeal to this court in indictable criminal cases have been construed as conferring a right to institute a single appeal against a conviction or sentence.[5]  By filing the appeal notice in the first appeal, the appellant exhausted his single right to appeal against the convictions on counts 1 - 7 on the Indictment.  He cannot now institute a second appeal against some or all of those same convictions.  The current appeal must therefore be dismissed as incompetent. 

    [5] Ponnambalam v The State of Western Australia [2015] WASCA 185 [30]; Santos v The State of Western Australia [2016] WASCA 107 [10]; Napier v The State of Western Australia [2008] WASCA 106; (2008) 36 WAR 543 [11] - [13], [23] - [24].

14. In written and oral submissions in the current appeal, counsel for the appellant anticipated the possibility that the appellant might still file an application in an appeal in the first appeal, seeking leave to withdraw his 'abandonment' of the appeal against his convictions of counts 1 - 6 in the Indictment and setting aside or varying the Certificate.  Any such application will be dealt with on its merits if and when it is made and the issue is properly before the court.  It is unnecessary at this stage to say anything about whether or not it is now possible for the appellant to reopen the first appeal, despite the Certificate having been issued on 15 April 2020. 

15. Therefore, the following orders should be made in the current appeal:

    (1)The respondent's application in an appeal filed on 4 May 2021 is granted.

    (2)The appellant's application in an appeal filed on 13 May 2021 is dismissed.

    (3)The appeal is dismissed as incompetent.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JB

Associate to the Honourable Justice Mitchell

30 JUNE 2021