R v Marshall

[2010] QCA 132

SUPREME COURT OF QUEENSLAND

CITATION:

R v Marshall [2010] QCA 132

PARTIES:

R
v
MARSHALL, Peter John
(applicant)

FILE NO/S:

CA No 93 of 2010
DC No 606 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

3 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2010

JUDGES:

Holmes and Fraser JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for extension of time refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – GENERALLY – where applicant convicted of two counts of unlawful carnal knowledge, five counts of indecent treatment and one count of maintaining a sexual relationship with a child under 16 – where applicant had previously appealed to this court – where previous appeal had been heard and determined on the merits – where previous appeal was dismissed – where applicant sought an extension of time within which to lodge a second appeal – whether the Court had jurisdiction to hear a second appeal

Criminal Code 1899 (Qld), s 668D

R v Nudd[2007] QCA 40, applied

COUNSEL:

The applicant appeared on his own behalf
G P Cash for the respondent

SOLICITORS:

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

HOLMES JA:  The applicant seeks an extension of time within which to appeal against his conviction, on 18th of March 2009, of two counts of unlawful carnal knowledge, five counts of indecent treatment and one count of maintaining a sexual relationship with a child under the age of 16 years.  This Court has, however, previously considered his appeal against those convictions on the merits: see R v Marshall [2010] QCA 43. That appeal was argued on a number of grounds, relating to alleged wrongful admission of evidence, a refusal to permit further examination of the complainant and failure to give a Longman direction.  It was dismissed, all members of the Court being in agreement.  The applicant complains that senior counsel appearing for him on that appeal did not follow his instructions and did not argue certain points which he now wishes to raise. 

This Court has consistently held that once it has heard and determined an appeal under section 668D of the Criminal Code 1899 (Qld) on the merits, the right of appeal conferred by that section is exhausted: see R v Nudd [2007] QCA 40 and the line of authorities referred to therein. That exhaustion of the right of appeal is not dependent on whether the points to be raised are new or were recognised by the appellant at the time of the previous appeal, nor on whether the representation at the previous appeal was satisfactory or unsatisfactory.

The application for an extension of time in which to lodge a further appeal against the applicant’s conviction should be refused, since this Court lacks any jurisdiction to hear such an appeal.

FRASER JA:  I agree.

MULLINS J:  I agree.

HOLMES JA:  The application for an extension of time is refused.