Foo v The Queen

[2005] WASCA 256

FOO -v- THE QUEEN [2005] WASCA 256

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 256
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:123/2005	Heard:	16 DECEMBER 2005
Coram:	MCLURE JA PULLIN JA MURRAY AJA	Delivered:	16/12/05
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for review dismissed
Category:	B
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Parties:	KOK JUAN FOO THE QUEEN
Catchwords:	Appeal Review of decision of single Judge of Appeal
Legislation:	Supreme Court Act 1935 (WA), s 61(1) and (3) Supreme Court (Court of Appeal) Rules 2004 (WA), r 8 and r 43(2)
Case References:	Beamish v The Queen [2005] WASCA 62 Button v The Queen (2002) 25 WAR 382 Foo v The Queen [2001] WASCA 406 Grierson v The King (1938) 60 CLR 431 Mickelberg v The Queen (2004) 29 WAR 13 Postiglione v The Queen (1997) 189 CLR 295 Ratten v The Queen (1974) 131 CLR 510 Powell v The State of Western Australia [2005] WASCA 137 R v Ireland (1970) 126 CLR 321

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FOO -v- THE QUEEN [2005] WASCA 256 CORAM : MCLURE JA

PULLIN JA
MURRAY AJA

HEARD : 16 DECEMBER 2005 DELIVERED : 16 DECEMBER 2005 FILE NO/S : CACR 123 of 2005 BETWEEN : KOK JUAN FOO

Applicant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : ROBERTS-SMITH JA

File No : CACR 123 of 2005

Catchwords:

Appeal - Review of decision of single Judge of Appeal

(Page 2)

Legislation:

Supreme Court Act 1935 (WA), s 61(1) and (3)

Supreme Court (Court of Appeal) Rules 2004 (WA), r 8 and r 43(2)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : Mr H G Dembo

Solicitors:

Applicant : In person
Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Beamish v The Queen [2005] WASCA 62
Button v The Queen (2002) 25 WAR 382
Foo v The Queen [2001] WASCA 406
Grierson v The King (1938) 60 CLR 431
Mickelberg v The Queen (2004) 29 WAR 13
Postiglione v The Queen (1997) 189 CLR 295
Ratten v The Queen (1974) 131 CLR 510

Case(s) also cited:

Powell v The State of Western Australia [2005] WASCA 137
R v Ireland (1970) 126 CLR 321


(Page 3)

1 MCLURE JA: I would dismiss the application for the reasons given by Pullin JA.

2 PULLIN JA: This is an application for review of the order of Roberts-Smith JA who dismissed the applicant’s application for leave to appeal against his conviction for possession of a prohibited import. The conviction was recorded on 19 June 2001. The review is sought under s 61(3) of the Supreme Court Act 1935 and r 8 of the Supreme Court (Court of Appeal) Rules 2004 (WA).

3 The background is as follows. The applicant was convicted after trial in the Supreme Court of the offence that on 29 April 1999 he had in his possession in Perth prohibited imports, namely not less than a commercial quantity of heroin reasonably suspected of having been imported into Australia in contravention of the Customs Act (Cth). He was sentenced to 21 years imprisonment. He appealed to the Full Court against his conviction and on 13 December 2001, in Foo v The Queen [2001] WASCA 406, his conviction appeal was dismissed. An appeal against sentence was successful.

4 The applicant then applied for special leave to appeal to the High Court in relation to the dismissal of the conviction appeal and on 24 October 2002 that application was refused. On 18 July 2005 the applicant filed a new notice of appeal in this court. By that notice he sought leave to appeal against his conviction on grounds that fresh evidence has emerged since the hearing of the trial. The further submissions made today indicate that there may be fresh evidence, rather than that there is with certainty fresh evidence.

5 The application for leave to appeal was referred to Roberts-Smith JA. On 5 August this year His Honour, exercising powers conferred by s 61(1) of the Supreme Court Act and r 43(2) of the Supreme Court (Court of Appeal) Rules, struck out the appeal on grounds that it was incompetent. His Honour was clearly of the view that the appeal had no reasonable prospect of succeeding. In my opinion, his Honour’s decision was correct. If a convicted person appeals, and the appeal is heard and determined on the merits, it cannot be made the subject of a second appeal, and nor can the first appeal be reopened. See Grierson v The King (1938) 60 CLR 431 and Postiglione v The Queen (1997) 189 CLR 295 at 300 and 315.

6 The cases which the appellant refers to and relies upon, namely Button v The Queen (2002) 25 WAR 382, Beamish v The Queen [2005]

(Page 4)

WASCA 62, Mickelberg v The Queen (2004) 29 WAR 13 and Ratten v The Queen (1974) 131 CLR 510, are all cases involving petitions of mercy referred to the various appeal courts by the Attorney General dealing with the matter in each case. Those cases do not support this application, and I would dismiss the application for a review.

7 MURRAY AJA: I agree.