R v Falzon

[2012] QCA 79

SUPREME COURT OF QUEENSLAND

CITATION:	R v Falzon [2012] QCA 79
PARTIES:	R v FALZON, Michael Paul
(applicant)
FILE NO/S:	CA No 8 of 2012 SC No 889 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED EX
TEMPORE ON:	2 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2012
JUDGES:	Fraser JA and Mullins and Ann Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for extension of time within which to

appeal is dismissed

2.   Application for leave to appeal against conviction is

dismissed

CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant convicted of drug offences after trial before a jury – where applicant had appealed against conviction – where appeal has been dismissed on the merits – where applicant sought an
extension of time within which to file a second appeal against
conviction – whether the court had jurisdiction to hear a
second appeal
Criminal Code 1899 (Qld), s668D
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, followed R v Ali [2008] QCA 39, followed
COUNSEL:	The applicant appeared on his own behalf TA Fuller SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

MULLINS J: The applicant, Mr Falzon, was convicted on 16 March 2009 after trial

before a jury of one count of trafficking in dangerous drugs, one count of production of

methylamphetamine with a circumstance of aggravation and one count of production of

methylamphetamine.

His appeal against conviction was heard by this Court and dismissed on the merits on

18 December 2009: R v Falzon [2009] QCA 393. A summary of the evidence at the trial

is found in those reasons.

On 9 January 2012 the applicant filed an application for extension of time within which to

appeal against conviction and an application for leave to appeal against conviction. The

grounds for seeking the extension are that the applicant seeks to adduce evidence that was

not adduced at the trial, which the applicant claims will challenge the evidence of the two

main prosecution witnesses who were indemnified witnesses.

The applicant also seeks to adduce evidence from an expert accountant who had prepared

a forensic accounting report for the purpose of the trial, but was not called on the

applicant's behalf at the trial.

Although the applicant now asserts that his counsel, who appeared on his appeal against

conviction that was heard in 2009, pursued irrelevant grounds the reasons of the Court of

Appeal make it abundantly clear that the applicant's appeal against conviction was

disposed of on the merits.

The jurisdiction of the Court to deal with an appeal against conviction is statutory. See

section 668D(1) of the Criminal Code 1899. It has long been settled that a second appeal against conviction cannot be entertained after one appeal has been dismissed on the

merits: Grierson v The King (1938) 60 CLR 431.

That is the position even if the proposed ground of appeal alleges a miscarriage of justice

and is based on what is claimed to be new or fresh evidence: R v Ali [2008] QCA 39.

There is no point in giving an extension of time to appeal against conviction when the

Court of Appeal does not have jurisdiction to hear a second appeal against conviction.

The application for extension of time within which to appeal, and the application for leave

to appeal against conviction, should be dismissed.

FRASER JA: I agree.

A LYONS J: I agree.

FRASER JA: The orders proposed by Mullins J are the orders of the Court.