de Jersey CJ, Keane JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
The application for extension of time within which to appeal is dismissed
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 applicant's previous appeal against conviction dismissed - where applicant's appeal to High Court dismissed - where applicant seeks extension of time in which to appeal on different grounds - whether court has jurisdiction to entertain a further appeal
Criminal Code 1899 (Qld), s 668D Supreme Court Act1991 (Qld), s 8(1)
R v Pettigrew [1997] 1 QdR 601; [1996] QCA 235, distinguished R v Smith [1968] QWN 50, cited
COUNSEL:
A J Kimmins for the applicant G R Rice for the respondent
SOLICITORS:
N R Barbi for the applicant DPP (Commonwealth) for the respondent
THE CHIEF JUSTICE: I invite Justice Keane to deliver the first judgment.
KEANE JA: On 22 July 2003, the applicant was convicted upon the verdict of a jury of being knowingly concerned in bringing into Australia a quantity of cocaine in contravention of section 223B of the Customs Act 1901 (Cth). He was subsequently sentenced to a term of imprisonment.
The applicant appealed against his conviction to this Court, and upon that appeal being dismissed on 14 May 2004, to the High Court of Australia; that appeal was dismissed on 9 March 2006.
The applicant asserts that he was subsequently advised that his conviction might be challenged on the ground that the requirements of Ch III of the Constitution of the Commonwealth of Australia were not observed at his trial. In this regard, early in the trial, one juror was excused and the trial proceeded before the remaining jurors. The applicant seeks an extension of time within which to appeal again to this Court.
Initially, the applicant based his application for an extension of time to appeal his conviction on a proposed new ground that the circumstances attending his conviction did not conform to the requirements of CH III of the Constitution in that he an inalienable right to trial by jury of 12 persons.
In an argument presented to the Court by Mr Kimmins of Counsel on the applicant's…
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.
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AGLC
R v Nudd [2007] QCA 40
Case
[2007] QCA 40
Decision Date
CaseChat Overview and Summary
In the matter of R v Nudd, the appellant sought an extension of time to appeal his conviction and sentence for certain criminal offences. The case originated in the Queensland Supreme Court, where the appellant was initially convicted, and subsequently appealed to the Court of Appeal and then to the High Court, both of which dismissed his appeals. The appellant now seeks an extension of time to appeal on different grounds, arguing that he was unaware of the grounds until after the relevant time periods had expired. The court was required to determine whether it had the jurisdiction to entertain a further appeal, given that the appellant's previous appeals had been dismissed. The court considered the relevant statutory provisions and case law in determining whether an extension of time was appropriate in the circumstances of this case.
The court found that the statutory provisions governing the extension of time for appeals did not provide for extensions in circumstances such as those presented by the appellant. The court held that the statutory provisions were clear and unambiguous, and that the appellant's argument that he was unaware of the grounds for appeal until after the relevant time periods had expired did not constitute a sufficient ground for an extension of time. The court also noted that the appellant had had ample opportunity to investigate the grounds for appeal during the previous appeals, and that he had failed to do so. The court held that the appellant's previous appeals had been dismissed on the basis of substantive legal arguments, and that there was no basis for a further appeal on different grounds.
In light of the above, the court dismissed the appellant's application for an extension of time within which to appeal. The court held that it did not have the jurisdiction to entertain a further appeal, given that the appellant's previous appeals had been dismissed and there was no basis for a further appeal on different grounds. The court noted that the statutory provisions governing appeals were clear and unambiguous, and that the appellant's arguments did not constitute sufficient grounds for an extension of time. The court held that the appellant's previous appeals had been dismissed on the basis of substantive legal arguments, and that there was no basis for a further appeal on different grounds. The court dismissed the application for an extension of time within which to appeal.
Orders
Orders of the court
The application for extension of time within which to appeal is dismissed