Wharton v The Queen [No 2]

[2017] WASCA 164

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Right of appeal
4. › Whether second appeal competent where first appeal dismissed for non-compliance with court rules
5. › Whether right of appeal exhausted
6. › Criminal Appeals Act 2004 (WA), pt 3
1. Criminal Law
2. › Appeal
3. › Springing orders
4. › Extension of time to comply
5. › Principles governing exercise of discretion
6. › Contumelious non-compliance
7. › Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)
1. Criminal Law
2. › Appeal
3. › Power to reopen dismissed appeal
4. › Whether court has inherent power to set aside perfected order dismissing appeal
5. › Whether R v [name withheld] applies in Western Australia
1. Criminal Law
2. › Trial
3. › Indictment
4. › Validity
5. › Whether defects in indictment invalidated trial
6. › Distinction between preconditions to jurisdiction and conditions regulating exercise of power
7. › Criminal Procedure Act 2004 (WA), ss 85, 132, 178, sch 1 div 2

Quick Take

Under the Criminal Appeals Act 2004 (WA), a convicted person has one and only one right of appeal against conviction. That right is exhausted once the appeal is dismissed, regardless of whether the dismissal was on the merits or for procedural non-compliance. A person whose appeal is dismissed for failure to comply with court rules cannot commence a second appeal; the appropriate course (if any) would be to seek to set aside the dismissal of the first appeal, though the existence of such a power in Western Australia remains doubtful.