R v O'Brien

[2011] QCA 110

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Brien [2011] QCA 110

PARTIES:

R
v
O’Brien, Allan Terry
(applicant)

FILE NO/S:

CA No 47 of 2011
DC No 420 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Ipswich

DELIVERED EX 
 TEMPORE ON:

2 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring to the orders made

ORDERS:

1.   The application for an extension of time is dismissed;

2.   The Registry not accept any further application from this applicant for an extension of time to appeal against the convictions or the sentence imposed on 31 May 2007 without leave of a Judge of Appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the applicant pleaded guilty to one charge of house breaking with a circumstance of aggravation and one count of rape – where the applicant’s appeal against conviction was dismissed – where the applicant’s subsequent applications for an extension of time to appeal against conviction and applications for leave to appeal against sentence have been refused – where the applicant seeks an extension of time to appeal against sentence on the ground that he wishes to adduce new evidence under s 188 of the Penalties and Sentences Act – whether the application for an extension of time should be granted

Penalties and Sentences Act 1992 (Qld), s 188

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

CHESTERMAN JA:  On 12 February 2007 the applicant pleaded guilty in the District Court to one charge of house breaking with a circumstance of aggravation and one count of rape.

On 31 May 2007, also in the District Court, he pleaded guilty to one count of stealing.  On that date, 31 May 2007, he was sentenced to eight years’ imprisonment for the house breaking, 14 years’ for the rape and two years’ for the stealing.  All sentences were to be served concurrently.

On 3 October 2007, this Court allowed the applicant an extension of time within which to appeal against his convictions and an application to appeal against his sentence.  On 5 June 2008 the appeal against his convictions was dismissed and the application for leave to appeal against sentence was refused. 

On 31 October 2008, the applicant again applied for an extension of time to appeal against the conviction and for leave to appeal against the sentence.  The Court refused that application on the basis that he could not appeal a second time.  He has now applied a third time for an extension of time within which to appeal and for leave to appeal against his sentence.

The ground given in the application to extend time is that the sentence should be reopened pursuant to section 188 of the Penalties and Sentences Act and that he wished to adduce new evidence.  The only ground given in the application for leave to appeal against sentence is that there was new evidence suggesting a miscarriage of justice.  It should be noted that he has not provided any indication at all of what that evidence might be.  It is clear that, as the Court pointed out in the second application for extension of time that there is no jurisdiction to entertain the application.  The matter has been determined on the merits and that is that.

In relation to section 188, I would point out that the section applies where a Court has in or in connection with a criminal proceeding imposed a sentence in circumstances which are set out in the section. This Court, when giving judgment in June of 2008, did not impose a sentence on the applicant. It merely dismissed his appeal and refused his application for leave to appeal against sentence so in that circumstance, section 188 does not apply to this applicant.

In what he said to us this morning, the applicant does no more than repeat the arguments he addressed to the Court on earlier occasions which are fully dealt with in the reasons for judgment of the Court and which led to the appeal and the application being dismissed.  For that reason, I would dismiss the application for extension of time.

In the course of his address to the Court this morning, the applicant said that he would continue filing applications for extension of time until, in his phrase, “he gets justice”.  Any further application would be vexatious and an abuse of process.  I would, therefore, propose an order that the Registry not accept any further application from this applicant for extension of time fulfilling as to convictions or the sentenced imposed on 31 May 2007 without leave of a judge of appeal. 

THE PRESIDENT:  I agree.

FRYBERG J:  I also agree.

THE PRESIDENT:  The orders are as proposed by Justice Chesterman.