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 2002DIVISION:
Court of Appeal
PROCEEDING:
Application for Extension (Conviction)
Miscellaneous Applications – CriminalORIGINATING 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 madeORDER:
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, consideredCOUNSEL:
The applicant appeared on his own behalf
T A Fuller for the respondentSOLICITORS:
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…
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- R v Lumley [2008] QCA 155
- Case
- [2008] QCA 155
- Decision Date
CaseChat Overview and Summary
The Court of Appeal found that it did not have the jurisdiction to entertain another appeal against the applicant's conviction. It held that such an appeal would be futile because the applicant had already been convicted by a jury, and the Court of Appeal could not re-evaluate the evidence or the conviction itself. The court further reasoned that granting an extension of time in such a circumstance would not serve any meaningful purpose, as the appeal could not proceed in any event. Therefore, the Court concluded that the application for an extension of time should be refused.
In light of the Court of Appeal's findings, all applications made by the applicant were refused. The court emphasized that the applicant's previous avenues for appeal had been exhausted and that any further attempts to challenge the conviction would be without merit. The decision underscores the importance of adhering to the established timelines and procedures for appeals in criminal matters, particularly in cases involving serious offences such as rape and torture.
Orders
Orders of the court
All applications refused
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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