Court of Appeal (WA)|2002-06-27|Before: Steytler J, Ipp JJ, Dixon J, Wallwork J, Murray J, Wheeler J

Sherkam v Parker [2002] WASCA 179 (27 June 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SHERKAM -v- PARKER [2002] WASCA 179

Appeal - Competency of application - Jurisdiction of Full Court under Justices Act

1 On 25 January 1996 there was an incident at Maylands which resulted in Mr Sherkam being charged with assault occasioning bodily harm. On 5 June 1996, Mr Sherkam was convicted after trial in the Court of Petty Sessions. From that conviction, he appealed to this Court. The appeal was heard by a single Judge, Steytler J, who on 28 October 1996 dismissed the appeal.

2 Mr Sherkam applied to Steytler J for leave to appeal to the Full Court against the decision which Steytler J had made. On 11 December 1996, Steytler J dismissed that application. However, Steytler J advised Mr Sherkam that he may wish to consider renewing his application for leave to appeal before the Full Court, referring to Meiklejhon v Central Norseman Gold Corporation (unreported; FCt SCt of WA; Library No 970463; 19 September 1997). That case is authority for the proposition that where an application for leave to appeal to the Full Court has been refused by the Judge constituting the court appealed from, pursuant to s 206A of the Justices Act 1902, it is competent to the applicant to renew that application before the Full Court. By application filed 13 November 1997, Mr Sherkam renewed his application to the Full Court.

3 The renewed application for leave to appeal was heard on 18 February 1998 by a Full Court consisting of Kennedy, Franklyn and Ipp JJ. It was argued, briefly but apparently fully, by the applicant in person. In reasons delivered 28 April 1998, the Full Court concluded that an appeal to the Full Court would have no prospect of success and therefore refused Mr Sherkam leave to appeal.

4 Mr Sherkam's present application is entitled "Renewed Application for Leave to Appeal to the Full Court" and is dated 27 September 2001. The grounds of appeal contained in the present application have considerable overlap with the grounds rejected by the Full Court earlier. There is certain new material also. The principal distinction between the earlier application and the present one is that the present application is accompanied by an affidavit of a Mr Robert Lyons Pearce, consultant plastic and reconstructive surgeon, who sets out in that affidavit his opinion as to injuries likely to be received in certain circumstances as described by witnesses in the Court of Petty Sessions. Mr Sherkam seeks to argue that that affidavit demonstrates that certain of the evidence before his Worship in the court below should not have been accepted.

5 When the application came before this Court for hearing, the Court raised the question of the competence of the application with Mr Sherkam, and granted him leave to send to the Court a copy of any authority he considered to be relevant (since he did not have with him at the time either a copy of Meiklejhon's case or the reference to it), together with a written submission on the question of competence if he wished. A copy of that case together with a supporting letter has since been received.

6 In our view, the present application is not competent, and this Court has no jurisdiction to deal with it. The jurisdiction of the Full Court in relation to appeals under the Justices Act is statutory. The statute "defines the grounds, prescribes the procedure and states the duty of the court" in relation to appeals: Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 at 435 per Dixon J. The principles stated in Grierson were applied in this Court in the case of Matta v R (unreported; CCA SCt of WA; Library No 95061; 15 November 1995) in relation to the question of whether repeated applications for an extension of time within which to appeal against conviction could be made, in the case of an indictable offence, where there had been an earlier refusal of an extension of time on the basis that the proposed grounds of appeal lacked merit. In that case, as in this, it was said that the grounds upon which it was proposed to appeal were different, in the second application, from those which had been proposed in the first application. The court considered any difference in the proposed grounds of appeal to be irrelevant; what was relevant was that the statute apparently provided for but one appeal, so that where a determination had been made on an application for extension of time that an appeal lacked merit, it was not competent to bring a further application based upon different grounds.

7 In our view, the reasoning in Matta is applicable to this case. Although it was open to Mr Sherkam to renew his application before the Full Court once it had been refused by Steytler J, s 206A of the Justices Act apparently provides for but one application to the Full Court for leave to appeal. That application has been heard and determined on its merits in 1998, and it is not now open to Mr Sherkam to bring a further application, whether that further application relies upon the same or upon different proposed grounds of appeal. For that reason, it is our view that the present application must be dismissed.

Sherkam v Parker [2002] WASCA 179

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Sherkam v Parker [2002] WASCA 179 (27 June 2002)

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