KEANE JA: On 5 March 2003 the applicant was convicted upon the verdict of a jury of one count of rape and one count of torture. On 4 April 2003 he was sentenced to eight years' imprisonment and the offences were declared to be serious, violent offences under section 161B(3) of the Penalties and Sentences Act 1992 (Qld). The applicant appealed to this Court in respect of his conviction and sentence.

On 23 April 2004 this Court dismissed the appeal against conviction but upheld his appeal against sentence to the extent of omitting the declaration that the offences were serious, violent offences. See R v Lumley [2004] QCA 120.

On 9 March 2009 the applicant filed an application for an extension of time within which to appeal against his conviction. The applicant wishes to assert that because he was a police informant the case against him was fabricated by "members of an exceedingly dangerous armed police drug cartel".

The right of appeal to this Court from a conviction following the verdict of a jury is conferred by section 668D of the Criminal Code. It is well established by a series of decisions that where that right has been exercised and a decision on the appeal has been given on the merits the right conferred by section 668D is exhausted and this Court has no jurisdiction to entertain a further appeal. See Grierson v The Queen (1938) 60 CLR 431; Posteleonie v The Queen (1997) 189 CLR 295; R v MAM [2005] QCA 323 at 3-4; R v Nudd [2007] QCA 40; R v Ali [2008] QCA 39 and R v Lumley [2008] QCA 155.

Today Mr Lumley sought to rely upon the provisions of section 58 of the Constitution of Queensland 2001 as conferring a more ample jurisdiction on this Court. The possibility that section 58 confers jurisdiction on this Court additional to that conferred by the specific provisions of section 668D of the Criminal Code was rejected by this Court in R v Ali [2008] QCA 39 at pages 2-3. The High Court of Australia refused special leave to appeal in that case.

Since this court has no jurisdiction to entertain a further appeal by the applicant against his conviction the grant of extension of time within which to appeal would be futile.

Accordingly, I would dismiss the application for an extension of time.

THE CHIEF JUSTICE: I agree.

FRASER JA: I agree.

THE CHIEF JUSTICE: The application is dismissed.

Details

AGLC: R v Lumley [2009] QCA 172
Case: [2009] QCA 172
Decision Date: 17/06/2009

CaseChat Overview and Summary

In the case of R v Lumley, the applicant, Christopher Edmondstone Ferneaux Lumley, sought an extension of time to appeal against his conviction for one count of rape and one count of torture, which had previously been upheld by the Court of Appeal. The application was dismissed by the Court of Appeal, which held that the court had no jurisdiction to entertain a further appeal against the conviction as the right of appeal from a conviction following a jury verdict, as provided by section 668D of the Criminal Code, had been exhausted. The applicant sought to argue that the case against him was fabricated due to his status as a police informant, but the Court held that section 58 of the Constitution of Queensland 2001 did not confer additional jurisdiction on the Court of Appeal.

The legal issue before the Court of Appeal was whether it had jurisdiction to entertain a further appeal by the applicant against his conviction. The applicant relied on section 58 of the Constitution of Queensland 2001 to argue that the Court had additional jurisdiction beyond that provided by section 668D of the Criminal Code. However, the Court held that this argument had been rejected in previous cases and that the High Court of Australia had refused special leave to appeal in one such case. The Court of Appeal held that since it had no jurisdiction to entertain a further appeal by the applicant against his conviction, the grant of an extension of time to appeal would be futile.

The Court of Appeal dismissed the application for an extension of time within which to appeal against the conviction. The Court held that it had no jurisdiction to entertain a further appeal by the applicant against his conviction, as the right of appeal from a conviction following a jury verdict, as provided by section 668D of the Criminal Code, had been exhausted. The Court also held that section 58 of the Constitution of Queensland 2001 did not confer additional jurisdiction on the Court of Appeal. As a result, the application for an extension of time was dismissed.

Orders