R v McGrady

[2001] QCA 506

COURT OF APPEAL

McMURDO P
McPHERSON JA
CHESTERMAN J

CA No 249 of 2001

THE QUEEN

RAYMOND BARRY McGRADY

BRISBANE

..DATE 14/11/2001

JUDGMENT

THE PRESIDENT: Mr McGrady has sent to the Registrar a handwritten document which purports to be a Notice of Appeal against conviction, although it does not seem to be in the proper form.

He was convicted in the District Court at Brisbane on the 5 February 2001 of the offence of grievous bodily harm and was sentenced on 16 February 2001 to six years' imprisonment.

He appealed against his conviction and sentence under Section 668D Criminal Code. That matter came on for hearing before this Court, in part differently constituted, on the 27 July 2001.

A record of the transcript of that hearing and the applicant's submissions before this Court suggest that he originally had legal representation but was given advice that his lawyers would only act for him on his application for leave to appeal against sentence and not on his appeal against conviction.

Mr McGrady was not happy with that advice and dismissed that legal representation. He sought an adjournment on the 27 July 2001 in order to get new legal representation. He claimed to have a solicitor able to represent him and that he was in a position to pay the solicitor's costs, although he gave scant details.

After hearing from Mr McGrady as to his proposed grounds of appeal against conviction, the Court refused the adjournment of the appeal because Mr McGrady had terminated his legal representation by his own choice and could give this Court no clear assurance he would be represented within the foreseeable future in any definite way.

His appeal was adjourned until later in the morning to enable him to prepare his argument. Subsequently the appeal against conviction and the application for leave to appeal against sentence was heard by the Court. Mr McGrady represented himself and argued that the appeal against conviction and the application for leave to appeal against sentence should be upheld.

He appeared to articulate his reasons for this but his contentions were rejected by the Court of Appeal which dismissed the appeal against conviction and the application for leave to appeal against sentence. See R. v. McGrady 2001 QCA 302, CA Nos 44 and 45 of 2001, 27 July 2001.
The orders to that effect were subsequently perfected.

Mr McGrady now wishes to have a second appeal to this Court arguing that he should have been granted an adjournment and that he had insufficient time to prepare his case. He seeks to reargue his case raising matters which he claims were errors on the part of the trial Judge.

Mr McGrady has exhausted his right of appeal to this Court under Section 668D Criminal Code and may not pursue a second appeal to this Court. The orders dismissing the appeal and refusing the application have been perfected. See Grierson v. The King (1938) 60 CLR 431, Postiglione v. The Queen (1996-1997) 189 CLR 295 at 300, 315, 326. R v. Corrigan, 2001 QCA 401, CA No 205 of 2001, 24 September 2001.

This is not an instance to which the principles discussed in Pettigrew [1997] 1 QdR 601 or R v. Allen [1994] 1 QdR 526 have application.

The Court has performed its function hearing the appeal and the application for leave. The orders have been perfected. This Court can do nothing more. Mr McGrady's only remedies are to apply to the High Court for special leave or to apply to the Governor for a pardon under Section 67(2)(A) of the Criminal Code.

...

THE PRESIDENT: I would dismiss the document that purports to be an appeal.

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CaseChat Overview and Summary

In the matter of R v McGrady, the appellant appealed against his conviction and sentence for grievous bodily harm, as well as his application for leave to appeal against the sentence. The matter was heard in the Court of Appeal, which had previously dismissed the appeal and application for leave to appeal. The appellant sought a second appeal, claiming that he should have been granted an adjournment and that he had insufficient time to prepare his case. The court held that the appellant had exhausted his right of appeal to the Court of Appeal under Section 668D Criminal Code and could not pursue a second appeal. The court found that the orders dismissing the appeal and refusing the application had been perfected, and the court could do nothing more. The appellant's only remedies were to apply to the High Court for special leave or to apply to the Governor for a pardon under Section 67(2)(A) of the Criminal Code.

The legal issues in this case were whether the appellant should have been granted an adjournment to obtain new legal representation and whether he had sufficient time to prepare his case. The court held that the appellant had terminated his legal representation by his own choice and could not give the court clear assurance that he would be represented within the foreseeable future in any definite way. The court further held that the appellant's claims that the trial judge had made errors were matters that had already been considered in the earlier appeal and could not be re-litigated in a second appeal. The court found that the appellant had exhausted his right of appeal to the Court of Appeal and could not pursue a second appeal. The court held that the orders dismissing the appeal and refusing the application for leave to appeal had been perfected and could not be challenged in a second appeal.

The court reasoned that the appellant had already had an opportunity to argue his case before the Court of Appeal and that the court had performed its function by hearing the appeal and the application for leave. The court found that the appellant's claims that he should have been granted an adjournment and that he had insufficient time to prepare his case were without merit. The court held that the appellant's only remedies were to apply to the High Court for special leave or to apply to the Governor for a pardon under Section 67(2)(A) of the Criminal Code. The court dismissed the document that purported to be an appeal.

The court made no further orders in relation to the appellant's second appeal. The court held that it could not grant an adjournment or provide additional time for the appellant to prepare his case. The court found that the appellant had exhausted his right of appeal to the Court of Appeal and that the orders dismissing the appeal and refusing the application for leave to appeal had been perfected. The court held that the appellant's only remedies were to apply to the High Court for special leave or to apply to the Governor for a pardon under Section 67(2)(A) of the Criminal Code.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established