Criminal Appeals Act 2004 (WA), s 40(l)(1)
Criminal Code (Cth), s 135.1(3)
Criminal Procedure Act 2004 (WA), s 85, s 132, s 178, div 2 sch 1 cl 4(1)(b), cl 5
Director of Public Prosecutions Act 1983 (Cth), s 9(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms P A Aloi & Mr L A Glenn

Solicitors:

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

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

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Ardrey v The State of Western Australia [2016] WASCA 154
Ascic v Bedworth [2015] WASCA 109
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434
Gandy v The State of Western Australia [2017] WASCA 93
Grierson v The King (1938) 60 CLR 431
Jones v Dunkel (1959) 101 CLR 298
JS v The State of Western Australia [2014] WASCA 177
Michael v The State of Western Australia [2007] WASCA 100
Michaels v The State of Western Australia [2009] WASCA 174
More v The Queen (1988) 86 Cr App R 234
Ponnambalam v The State of Western Australia [2015] WASCA 185
Postiglione v The Queen (1997) 189 CLR 295
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Brain [1999] SASC 358; (1999) 74 SASR 92
R v Gee [2003] HCA 12; (2003) 212 CLR 230
R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
The State of Western Australia v Wallam [2008] WASCA 117 (S)
Wharton v The Queen [2016] WASCA 21
Wharton v The Queen [No 2] [2015] WASCA 176
Williams v The King (No 1) (1933) 50 CLR 536
Williams v The King (No 2) (1934) 50 CLR 551

TABLE OF CONTENTS

BUSS P & MAZZA JA: 5

Background
The second appeal - relevant procedural history in detail

Hearing - 13 February 2017
Events post…

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 Wharton v The Queen [No 2]

Details

AGLC: Wharton v The Queen [No 2] [2017] WASCA 164
Case: [2017] WASCA 164
Decision Date: 4 SEPTEMBER 2017

CaseChat Overview and Summary

In the case of Wharton v The Queen [No 2], the appellant, Mr Wharton, sought to appeal against his conviction for criminal offences. The case was heard in the High Court of Australia, which was tasked with determining the competency of the second appeal after the first appeal was dismissed due to a failure to comply with a springing order. The primary focus of the case was to examine the legal principles surrounding the competency of a second appeal when the initial appeal has been dismissed.

The central legal issue before the Court was whether the second appeal was competent when the first appeal had been dismissed for non-compliance with a springing order. The appellant argued that the dismissal of the first appeal should not bar him from lodging a second appeal, while the respondent, the Crown, contended that the dismissal of the first appeal precluded any subsequent appeal without leave from the Court. The Court had to decide whether the dismissal of the first appeal constituted a finality in the appeal process or if the appellant retained the right to lodge a second appeal.

The High Court held that the dismissal of the first appeal for non-compliance with a springing order did not bar the appellant from lodging a second appeal. The Court reasoned that the dismissal of the first appeal did not constitute a finality in the appeal process unless the order explicitly provided for such finality. The Court emphasised that the right to appeal is a fundamental aspect of the legal system, and the dismissal of an appeal for procedural reasons should not deprive the appellant of the opportunity to seek leave for a second appeal. The Court concluded that the second appeal was competent, and the matter should proceed to determine the merits of the appeal.

The final orders of the Court were that the second appeal was competent and should proceed. The Court directed the parties to file further submissions on the merits of the appeal and scheduled a hearing to address the substantive issues. The decision underscores the importance of the right to appeal and the need for clear provisions in appeal orders to ensure finality where intended.

Orders