R v Lumley

[2008] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lumley [2008] QCA 155

PARTIES:

R
v
LUMLEY, Christopher Edmonston Ferneaux
(applicant)

FILE NO/S:

CA No 31 of 2008
CA No 127 of 2003
DC No 324 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Miscellaneous Applications – Criminal

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

13 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2008

JUDGES:

McMurdo P, Keane JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

All applications refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – applicant convicted by jury of rape and torture – Court of Appeal dismissed applicant's appeal against conviction and allowed his appeal against sentence to the extent of removing serious violent offence declarations in R v Lumley [2004] QCA 120 – applicant now seeks further extension of time to appeal against his conviction – Court of Appeal has no jurisdiction to entertain another appeal – extension would be futile because appeal could not proceed

Grierson v The King (1938) 60 CLR 431, applied
Mickelberg v The Queen (1989) 167 CLR 259, applied
R v Ali [2008] QCA 39, considered
R v Lumley [2004] QCA 120, considered

COUNSEL:

The applicant appeared on his own behalf
T A Fuller for the respondent

SOLICITORS:

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

THE PRESIDENT:  The applicant was convicted on 5 March 2003 after a jury trial of the rape and torture of the same complainant, an adult woman, on 24 September 2001.  On 4 April 2003 he was sentenced to eight years imprisonment for rape and five years imprisonment for torture.  Both offences were declared to be serious violent offences.

He lodged a notice of appeal against conviction and sentence on 28 April 2003.  The notice with respect to his appeal against conviction was out of time.  This Court granted an extension of time to allow him to appeal against his conviction on 12 August 2003.  See R v Lumley [2003] QCA 351. The substantive appeals were heard by this Court on 19 March 2004.

The grounds of appeal were that the guilty verdicts were unreasonable; that inadmissible evidence was placed before the jury; that the appellant's legal representatives did not present evidence as he instructed; that fresh evidence which should have been called at the trial should now be received by the Court of Appeal and that the sentence was manifestly excessive.

The appeal against conviction was dismissed.  The application for leave to appeal against sentence was granted in that the declaration that each offence was a serious violent offence was omitted.  See R v Lumley [2004] QCA 120. An application for special leave to appeal to the High Court of Australia was dismissed on 21 March 2005.

The applicant has now applied again to this Court for an extension of time in which to appeal against his conviction.  He has also brought applications to adduce evidence before this Court.  The application for an extension of time to appeal was filed on 12 February 2008.  It's almost five years out of time.  The grounds of that application are: 

"(i) Circumstances beyond my control through no fault of my own, medication for my chronic anxiety and depression was cut off, leaving me suicidal and unable to, properly instruct my lawyer for my defense/appeal. , with the head of Psych Services at wolston Dr Kingswell noting in the medical notes, that he had never seen anyone so debilitated by anxiety in his 40 year career.

...

(ii)Due to "fresh evidence" of a witness, (just located by private investigators and interviewed on 3/12/2007), who witnessed police persuading [the complainant] to in effect, create a false allegation of sexual violation in expectation of substantial financial damages, (the allegation is contrary to medical evidence and was six months after her original statement which made no such allegations and specifically stated, 'I don't remember being anally penetrated').

...

(iii)Lawyers did not follow instructions to lodge appeal. 

I gave instructions at the trial to lodge an appeal on the basis instructions were not followed at the trial, the lawyer (Alan Bennett) did not do this.  Then my medication was cut off and has only recently been substituted,..."

(Errors as in the original)

Mr Lumley has filed a large quantity of material in the applications.  This includes a seven page proposed notice of appeal; a six page and an 18 page outline of submissions; a 10 page and a 28 page affidavit sworn by him dated 23 May 2008 and 29 January 2008 respectively and affidavits from Graham Dixon and Colin Jones.  The applications to adduce further evidence include photocopies of material which was before this Court at the time of his appeal.

The applications presently before this Court are futile.  The applicant has already had an appeal to this Court.  It was dismissed.  This Court no longer has jurisdiction to entertain a further appeal.  See Grierson v The King (1938) 60 CLR 431 and Mickelberg v The Queen (1989) 167 CLR 259 at 287 recently reaffirmed by this Court in R v Ali [2008] QCA 39.

The applicant submits that despite those cases this Court has jurisdiction because the constitution of Queensland confers it.  The constitution of Queensland confers jurisdiction on this Court but it does not confer jurisdiction on this Court once the jurisdiction has been spent as it is in this case.  He has also referred to the case of R v Stafford [1997] QCA 333 as an example where somebody had a second appeal to this Court but in that case, the matter was referred to the Court of Appeal to be treated as an appeal under section 672A Criminal Code 1899 (Qld).

The fact remains that the applicant having had his appeal to this Court there is no point in granting him an extension of time within which to appeal and no point granting any applications to adduce evidence on appeal as there can be no further appeal.  The applications should all be refused.

KEANE JA:  I agree.

FRYBERG J:  I agree.

THE PRESIDENT:  The order is the applications are all refused.