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R v Lumley

R v Lumley

Case [2008] QCA 155 13 June 2008

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lumley

Details

AGLC: R v Lumley [2008] QCA 155
Case: [2008] QCA 155
Decision Date: 13 June 2008

CaseChat Overview and Summary

The case of R v Lumley involved the applicant, who had been convicted by a jury of the serious crimes of rape and torture. The Court of Appeal had previously dismissed the applicant's appeal against his conviction but allowed his appeal against the sentence to the extent of removing certain serious violent offence declarations. The applicant subsequently sought a further extension of time to appeal against his conviction. The central legal issue was whether the Court of Appeal had the jurisdiction to entertain another appeal and whether granting an extension of time would be futile.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Lumley [2008] QCA 155

Most Recent Citation

Lumley v The Police Commissioner [2009] QCA 78

Cases citing this decision · 12 of 12 shown

Gould v R
[2023] NSWCCA 103 Para 22

…[2018] NSWCCA 183; R v GAM (No 2) (2004) 9 VR 640; [2004] VSCA 117; R v MAM [2005] QCA 323; R v Nudd [2007] QCA 40; R v Ali [2008] QCA 39; R v Lumley [2008] QCA 155; R v Lumley [2009] QCA 172; Visser v The King [2023] VSCA 10.…
The King v Manning
[2023] QCA 8

…at the Court has no jurisdiction to hear a further appeal against conviction: see eg. R v MAM [2005] QCA 323, R v Nudd [2007] QCA 40 and R v Lumley [2008] QCA 155 and [2009] QCA 172.”…
R v Upson
[2018] QCA 164

…at the Court has no jurisdiction to hear a further appeal against conviction: see eg. R v MAM [2005] QCA 323, R v Nudd [2007] QCA 40 and R v Lumley [2008] QCA 155 and [2009] QCA 172.”…
R v Upson
[2017] QCA 221

…at the Court has no jurisdiction to hear a further appeal against conviction: see eg. R v MAM [2005] QCA 323; R v Nudd [2007] QCA 40 and R v Lumley [2008] QCA 155 and [2009] QCA 172. These and other judgments to the same effect have applied Grierson v The King (1938) 60 CLR 431, which held that where a right of a…
R v KAM (No 2)
[2017] QCA 197

…that the Court has no jurisdiction to hear a further appeal against conviction: see eg. R v MAM [2005] QCA 323; R v Nudd [2007] QCA 40 and R v Lumley [2008] QCA 155 and [2009] QCA 172. These and other judgments to the same effect have applied Grierson v The King (1938) 60 CLR 431, which held that where a right of…
R v O'Hara
[2015] QCA 283 Para 9

…as in s 668D, the statute is to be interpreted as allowing for but one appeal. [3]s 668D(1)(a). [4]s 668D(b). [5][2005] QCA 323. [6][2007] QCA 40. [7][2008] QCA 155 and [2009] QCA 172. [8](1938) 60 CLR 431.…
R v Winchester
[2013] QCA 166 Para 1

…following and applying that case: see, for example, R v MAM [2005] QCA 323 at pp 3‑4; R v Nudd [2007] QCA 40; R v Ali [2008] QCA 39; R v Lumley [2008] QCA 155; and R v Lumley [2009] QCA 172.…
R v Woodman
[2010] QCA 162

…] QCA 117, cited R v Corrigan [2001] QCA 401, cited R v Hedland [2003] QCA 210, cited R v Lowrie [1998] 2 Qd R 579, followed R v Lumley [2008] QCA 155, cited R v Lund [2001] QCA 156, cited R v McGrady [2001] QCA 506, cited R v Reeves [2003] QCA 222, cited R v Regazzoli [2001] QCA 482, cited R v Riley [2010] QCA 9…
High Court Bulletin
[2009] HCAB 5

…Special leave dismissed. Appealed from Qld SC (CA): [2008] QCA 155.…
R v Lumley
[2009] QCA 172

…) 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.…
Lumley v. Crime and Misconduct Commission
[2009] QCA 79 Para 1

…dduce evidence before the Court.[4] [2] R v Lumley [2004] QCA 120. [3] Lumley v The Queen [2005] HCATrans 174 (21 March 2005). [4] R v Lumley [2008] QCA 155. Those applications were dismissed on the ground that the Court’s jurisdiction was exhausted when it dismissed the applicant’s first appeal.…
Lumley v. The Police Commissioner
[2009] QCA 78 Para 1

…ct Commission Queensland [2009] QCA 79. [3] R v Lumley [2004] QCA 120. [4] Lumley v The Queen [2005] HCATrans 174 (21 March 2005). [5] R v Lumley [2008] QCA 155. Those applications were dismissed on the ground that the Court's jurisdiction was exhausted when it dismissed the appellant's first appeal.…

View all 12 citing cases →

Cases cited in this decision · 6 of 6 shown

R v Ali
[2008] QCA 39

…l 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 o…
R v Lumley
[2004] QCA 120

…nst 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…
R v Lumley
[2003] QCA 351

…t 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.…
R v Stafford
[1997] QCA 333

…es 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 a…
Mickelberg v The Queen
[1989] HCA 35

…ension 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:…
Grierson v The King
[1938] HCA 45

…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 ow…

Legislation cited in this decision · 0

No legislation cited in this case.

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