R v Cox

[2011] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cox [2011] QCA 269

PARTIES:

R
v
COX, Stephen Brian Cox
(applicant)

FILE NO/S:

CA No 221 of 2011
DC No 1080 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

5 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2011

JUDGES:

Chesterman and White JJA, and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal is dismissed.

2.   Application for an extension of time within which to appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL MISCELLANOUS MATTERS – PROCEDURE – where applicant was convicted of 11 counts of misappropriation of money – where the applicant was sentenced to six years’ imprisonment – where applicant sought an extension of time in which to appeal and an application for leave to appeal against conviction or sentence in August 2011 – where the applicant had previously appealed to the Court of Appeal against his convictions and sentence – where that prior appeal had been disposed of on the merits – whether the Court of Appeal had jurisdiction to hear a further appeal against those same convictions

R v Ali [2008] QCA 39, cited
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited
R v MAM [2005] QCA 323, cited
R v Nudd [2007] QCA 40, cited

COUNSEL:

The applicant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

CHESTERMAN JA:  On 30 April 2009, after a 15 day trial, the applicant was convicted of 11 counts of misappropriation of money.  He was sentenced to six years' imprisonment.  He appealed on 1 October 2010.  His appeal against convictions was dismissed and his application for leave to appeal against sentence was refused.

On 8 August 2011, the applicant filed two notices, one for extension of time within which to appeal and one notice of appeal, or application for leave to appeal against conviction or sentence.  Both applications are, of course, well out of time.  The applicant, in the meantime, since the disposal of the last appeal, has been tried in the Supreme Court on a charge against the Commonwealth Crimes Act of a conspiracy to defraud the Commonwealth.

He was sentenced by Justice Fryberg in June of this year to nine years and 11 months' imprisonment.  The applicant complains that in the course of the trial before Justice Fryberg, he, or his lawyers, were delivered large quantities of documents, which he hadn't had access to before, which he says were relevant to the charges he faced under the State Criminal Code for fraud and he says the documents would have assisted him in the presentation of a defence to those charges.

He complains as well that large numbers of documents were seized by either the Australian Federal Police, or officers of the Australian Tax Office, and destroyed and he says that those documents, which he no longer has and could not have for his trial in the District Court, would have assisted with his defence.

Despite those assertions, the applicant has not been able to identify for us any document which might have been relevant to any of the issues which were before the jury in the District Court.  Be that as it may, his applications for extension of time and for leave to appeal or to appeal are incompetent.  Having exercised his right of appeal, as he did, and having had that appeal determined against him, this Court has no jurisdiction to entertain a further appeal.  That is quite clear.  See R v Ali [2008] QCA 39, R v Nudd [2007] QCA 40, Grierson v The King (1938) 60 CLR 431 and R v MAM [2005] QCA 323.

It does not matter that the same strictures might not apply to an application for leave for an extension of time within which to appeal, although for myself I don't see why they wouldn't.  But in any event, there is simply no point in extending time for an appeal which must be struck out because it would be incompetent.

If there is any substance in the applicant's complaints that he was deprived of a fair trial by reason of the withholding of evidence, or the destruction of evidence, there are other avenues open to him to seek an address.  An appeal to this Court though is not open to him for reasons I have mentioned.  So, the applications for leave to appeal and an extension of time within which to appeal are both dismissed.

WHITE JA:  I agree.

McMEEKIN J:  I agree.