A notice of discontinuance of a criminal appeal is not a nullity merely because the appellant mistakenly believed a new appeal could later be instituted; the nullity doctrine requires that the appellant did not understand the legal effect of the notice itself (i.e., that it would conclude the appeal). The distinction between misunderstanding the effect of the notice and misunderstanding independent rights is confirmed. The merits of proposed grounds of appeal remain relevant and often determinative when the court considers exercising its discretion under s 40(1)(l) of the Criminal Appeals Act 2004 (WA) to permit withdrawal of a discontinuance notice.
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