R v Lumley Summary | CaseChat AU

SUPREME COURT OF QUEENSLAND

CITATION: R v Lumley [2003] QCA 351
PARTIES: R
v
LUMLEY, Christopher Edmonston Ferneaux
(applicant)
FILE NO/S: CA No 127 of 2003 DC No 324 of 2002
DIVISION: Court of Appeal
PROCEEDING: Application for Extension (Conviction)
ORIGINATING
COURT: District Court at Southport
DELIVERED EX 12 August 2003
TEMPORE ON:
DELIVERED AT: Brisbane
HEARING DATE: 12 August 2003
JUDGES: Williams and Jerrard JJA and Muir J
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 granted
2. Time extended for filing a notice of appeal until 15
July 2003
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where notice of appeal against conviction filed out of time – where applicant had given instructions to legal representatives to appeal – where no fault of applicant that notice was filed out of time – whether the court should review the conviction on its merits
COUNSEL: A J Rafter with A J Donaldson for the applicant
C W Heaton for the respondent
SOLICITORS: Russo Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

WILLIAMS JA: On or about the 4th of March 2003 the applicant was convicted of the offences of rape and torture. He was not sentenced until the 4th of April 2003.

A notice of appeal against conviction and notice of an	10
application for leave to appeal against sentence was filed on
the 28th of April 2003. That notice was within time so far as
sentence was concerned, but was out of time so far as the
appeal against conviction was concerned. An amended notice
was filed on the 15th of July 2003.	20
It appears that at all times the applicant had given
instructions to his then legal representatives to appeal and it was through no fault of his that the notice was initially filed out of time.	30
In the circumstances the Crown accepts the explanation given for the failure and concedes that it is an appropriate case in which the Court should review the conviction on the merits.
40
In the circumstances there will be an order extending the time for filing a notice of appeal until the 15th of July 2003.
JERRARD JA: I agree.
50
MUIR J: I agree.

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2 60

CaseChat Overview and Summary

In the matter of R v Lumley, the defendant sought an extension of time to appeal his conviction, which had been filed out of the statutory period. The case was heard in a court in Queensland, where the applicant contended that he had instructed his legal representatives to appeal his conviction, but due to circumstances beyond his control, the notice of appeal was not filed within the required time frame. The legal issues before the court were whether the applicant's failure to file the notice of appeal within the statutory time limit could be excused and whether the court should review the conviction on its merits despite the procedural error.

The court considered the statutory framework governing appeals and the circumstances that led to the late filing of the notice of appeal. It found that the applicant was not at fault for the delay, as he had given clear instructions to his legal representatives to appeal and had acted promptly in seeking an extension of time once he became aware of the error. The court also took into account the potential miscarriage of justice if the appeal were not heard on its merits. Consequently, the court granted the application for an extension of time, allowing the applicant to file a notice of appeal within the extended period.

Given the findings, the court ruled that the application for an extension of time was granted, and the time for filing a notice of appeal was extended to 15 July 2003. This ruling ensured that the applicant's right to appeal was preserved, and the court could review the conviction on its merits, notwithstanding the procedural misstep.

Orders of the court

1. Application for extension of time within which to

appeal granted

2. Time extended for filing a notice of appeal until 15

July 2003

R v Lumley

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v Lumley [2003] QCA 351
PARTIES:	R v LUMLEY, Christopher Edmonston Ferneaux (applicant)
FILE NO/S:	CA No 127 of 2003 DC No 324 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Southport
DELIVERED EX	12 August 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	12 August 2003
JUDGES:	Williams and Jerrard JJA and Muir J 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 granted 2. Time extended for filing a notice of appeal until 15 July 2003
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where notice of appeal against conviction filed out of time – where applicant had given instructions to legal representatives to appeal – where no fault of applicant that notice was filed out of time – whether the court should review the conviction on its merits
COUNSEL:	A J Rafter with A J Donaldson for the applicant C W Heaton for the respondent
SOLICITORS:	Russo Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent