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

Criminal Appeals Act 2004 (WA), s 23(1)(a), s 27, s 27(3), s 46, s 47

Sentencing Act 1995 (WA), s 140

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

1 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).

2 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.

3 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.

4 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] HCA 34; (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].

5 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.

6 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.

7 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.

8 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.

9 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.

10 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.

11 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].

12 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.

13 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.

14 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] HCA 34; (2008) 238 CLR 218 and Grierson v The

King [1938] HCA 45; (1938) 60 CLR 431. The law is the same in the civil context: Amaca Pty Ltd v Hannell [No 2] [2011] WASCA 232.