Foo v The Queen

[2005] WASCA 256

Western Australia Court of Appeal

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Where a convicted person has appealed against conviction and the appeal has been heard and determined on the merits, the conviction cannot be made the subject of a second appeal, nor can the first appeal be reopened, even on a claim of fresh evidence (Grierson v The King (1938) 60 CLR 431; Postiglione v The Queen (1997) 189 CLR 295).
A purported second appeal against conviction after an earlier appeal was dismissed on the merits is incompetent and may be struck out by a single Judge of Appeal under s 61(1) of the Supreme Court Act 1935 (WA) and r 43(2) of the Supreme Court (Court of Appeal) Rules 2004 (WA).
Cases such as [name withheld] v The Queen, [name withheld] v The Queen, [name withheld] v The Queen and [name withheld] v The Queen, which involved petitions for mercy referred to appellate courts by the Attorney General, do not support a convicted person bringing a second appeal directly. Their availability depends on a referral by the executive.