R v MBO (No 2) - [2012] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBO (No 2) [2012] QCA 289

PARTIES:

R
v
MBO
(applicant)

FILE NO/S:

CA No 215 of 2012
DC No 9 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

26 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2012

JUDGES:

Margaret McMurdo P, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for an extension of time to appeal against conviction refused.

2. Application for leave to adduce further evidence refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – SCOPE AND EFFECT OF APPEAL – where applicant convicted after jury trial of five counts of indecent dealing offences and one count of common assault and sentenced to three years imprisonment – where applicant had earlier appeal against convictions dismissed on its merits – where applicant applies for an extension of time in which to bring a second appeal against convictions – where applicant argued evidence of principal witnesses at trial was shown to be unreliable at a subsequent trial of different offences of which applicant was acquitted – whether applicant can bring a second appeal – whether the application for an extension of time should be granted

Criminal Code 1899 (Qld), s 668D, s 672A

Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, followed
R v Ali[2008] QCA 39, cited
R v Falzon[2012] QCA 79, cited
R v MAM[2005] QCA 323, cited
R v MBO[2011] QCA 280, related

COUNSEL:

The applicant appeared on his own behalf
D R Kinsella for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with Fraser JA's reasons for refusing the application for an extension of time to appeal against conviction and the application for leave to adduce further evidence.

FRASER JA: On 3 September 2010, after a four day trial in the District Court, the applicant was found guilty by a jury of five counts of indecent dealing offences and one count of common assault. He was convicted of those offences and given an effective head sentence of three years imprisonment, with a parole eligibility date fixed at 3 September 2011. On 11 October 2011, the applicant’s appeal against those convictions was dismissed on its merits: R v MBO [2011] QCA 280.

On 24 August 2012, the applicant filed an application for an extension of time within which to bring a second appeal against his convictions. It appears from the applications and the applicant’s extensive written submissions that the main grounds of the proposed second appeal are that the evidence of the principal witnesses at his trial was shown to be unreliable at a subsequent trial of different offences of which…

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 MBO (No 2)

Details

AGLC: R v MBO (No 2) [2012] QCA 289
Case: [2012] QCA 289
Decision Date: 26 October 2012

CaseChat Overview and Summary

The applicant was convicted by a jury of five counts of indecent dealing and one count of common assault, and was sentenced to three years imprisonment. After his appeal against the convictions was dismissed on its merits, the applicant seeks an extension of time to bring a second appeal against the convictions. The applicant argues that the evidence of the principal witnesses at the trial was shown to be unreliable at a subsequent trial of different offences, of which the applicant was acquitted. The central legal issue before the court was whether the applicant could bring a second appeal against the convictions and, if so, whether the application for an extension of time should be granted.

The court considered the nature of the right of appeal and its scope and effect. The court noted that the right of appeal is a statutory right, and the statute governing appeals in criminal cases does not provide for a second appeal against conviction. The court also noted that the general principle is that an appeal is a final determination of the matter between the parties, and that a second appeal would be an abuse of process. The court held that the applicant could not bring a second appeal against the convictions. The court also held that the application for an extension of time should be refused, as the applicant had not demonstrated any sufficient reason for the delay in bringing the appeal.

The court's reasoning and outcome were based on the statutory framework governing appeals in criminal cases and the general principles of appellate jurisdiction. The court held that the applicant could not bring a second appeal against the convictions, as the statute did not provide for such an appeal and it would be an abuse of process. The court also held that the application for an extension of time should be refused, as the applicant had not demonstrated any sufficient reason for the delay in bringing the appeal. The court did not grant the application for leave to adduce further evidence, as it found that the applicant had not established any new evidence that was material to the appeal.

Orders

Orders of the court

1. Application for an extension of time to appeal against conviction refused.

2. Application for leave to adduce further evidence 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.

CITATION:	R v MBO (No 2) [2012] QCA 289
PARTIES:	R v MBO (applicant)
FILE NO/S:	CA No 215 of 2012 DC No 9 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Bundaberg
DELIVERED ON:	26 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2012
JUDGES:	Margaret McMurdo P, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for an extension of time to appeal against conviction refused. 2. Application for leave to adduce further evidence refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – SCOPE AND EFFECT OF APPEAL – where applicant convicted after jury trial of five counts of indecent dealing offences and one count of common assault and sentenced to three years imprisonment – where applicant had earlier appeal against convictions dismissed on its merits – where applicant applies for an extension of time in which to bring a second appeal against convictions – where applicant argued evidence of principal witnesses at trial was shown to be unreliable at a subsequent trial of different offences of which applicant was acquitted – whether applicant can bring a second appeal – whether the application for an extension of time should be granted Criminal Code 1899 (Qld), s 668D, s 672A Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, followed R v Ali[2008] QCA 39, cited R v Falzon[2012] QCA 79, cited R v MAM[2005] QCA 323, cited R v MBO[2011] QCA 280, related
COUNSEL:	The applicant appeared on his own behalf D R Kinsella for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent