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

1. 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.

1. 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.

1. 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 the applicant was acquitted on 2 May 2012, those witnesses collaborated in their evidence and gave some false evidence, new evidence casts doubt on the applicant’s convictions, evidence was overlooked by the jury, the applicant’s lawyers failed to adduce relevant evidence, and the applicant’s decision not to give evidence was effectively made by his lawyers.  In addition, the applicant submits that there were many inconsistencies or errors in the prosecution evidence at his trial.

1. The applicant has also filed an application for leave to adduce new evidence in the appeal or for an order for the production of documents.  Amongst the documents attached to that application is a copy of a letter dated 19 June 2012 to the applicant from the Acting Senior Registrar of the High Court of Australia.  The letter indicates that the applicant wished to have fresh evidence adduced in an appeal to the High Court, and it states that the High Court has no power to receive fresh evidence in the exercise of its appellate jurisdiction and the applicant “…would need to seek advice as to what avenues are open to you in the trial court or the Court of Appeal in Queensland, in relation to your claims of fresh evidence.”  The applicant contends that it was only upon receipt of that letter that he became aware that he could “…appeal again to either the trial or appeal Courts…”. 

1. Contrary to the applicant’s submissions, that letter does not indicate that he may bring a second appeal to the Court of Appeal.  He has no such entitlement.  Numerous decisions have held, applying the High Court’s decision in Grierson v The King (1938) 60 CLR 431 at 435, that the right of appeal to the Court of Appeal against conviction conferred by s 668D of the Criminal Code 1899 (Qld) is exhausted once an appeal has been decided on its merits: see, for example, R v MAM [2005] QCA 323, R v Ali [2008] QCA 39, and R v Falzon [2012] QCA 79.

1. If the applicant considers that there has been a miscarriage of justice he may have a remedy. For example, he may be entitled to apply to the Governor for a pardon under s 672A of the CriminalCode.  But this Court has no jurisdiction to adjudicate upon a second appeal against conviction.  Both applications should be refused because the proposed appeal is futile.

1. WHITE JA: I have read the reasons for judgment of Fraser JA and agree with his Honour’s reasons and the orders he proposes.