R v O'Brien

[2008] QCA 339

COURT OF APPEAL

McMURDO P
KEANE JA
McMEEKIN J

CA No 196 of 2008
DC No 420 of 2006

THE QUEEN

O'BRIEN, Alan Terry Applicant

BRISBANE

DATE 30/10/2008

JUDGMENT

KEANE JA: On 31 May 2007, the applicant was convicted on his own plea of one count of burglary, one count of rape, and one count of stealing. He was sentenced to concurrent terms of imprisonment, the longest of which was 14 years for the rape.

The applicant appealed to this Court against these convictions even though he had pleaded guilty, and sought leave to appeal against the severity of his sentence. The appeal and the application were dismissed by this Court on 20 June 2008. See R v O'Brien [2008] QCA 163.

The applicant now seeks an extension of time within which to appeal against his convictions and sentence. It is said that new evidence is available which was "not present during the committal hearing", and that he lacked "proper legal representation".

The right of appeal to this Court is conferred by section 668D of the Criminal Code 1899 (Qld). It is well established that once this Court has decided an appeal on its merits, the right of appeal so conferred is exhausted, and this Court has no jurisdiction to entertain a further appeal. See R v Nudd [2007] QCA 40; R v Mam [2005] QCA 323; and Grierson vThe King (1938) 60 CLR 431 at 435.

The same approach is applicable to applications for leave to appeal against sentence. See R v Senior [2005] QCA 21.

Since this Court has no jurisdiction to entertain any further appeal by the applicant, it would be futile to grant his application for an extension of time within which to appeal.

Accordingly, the application for an extension of time should be refused.

THE PRESIDENT: I agree.

McMEEKIN J: I agree.

THE PRESIDENT: The application for an extension of time is refused.

CaseChat Overview and Summary

The applicant, Alan Terry O'Brien, was convicted in a lower court of burglary, rape, and stealing, and was sentenced to 14 years imprisonment for the rape. O'Brien appealed to the Queensland Court of Appeal against his convictions and the severity of his sentence, but both the appeal and the application for leave to appeal against sentence were dismissed. O'Brien now seeks an extension of time to appeal against his convictions and sentence, citing new evidence and inadequate legal representation at the committal hearing. The Court of Appeal must determine whether it has the jurisdiction to grant the extension of time.

The central legal issue before the Court of Appeal was whether it had the jurisdiction to grant an extension of time for O'Brien to appeal against his convictions and sentence, despite having already dismissed his initial appeal and application for leave to appeal. The Court noted that the right to appeal to the Court of Appeal is conferred by statute, and that once the Court has decided an appeal on its merits, the right of appeal is exhausted. The Court also noted that the same principle applies to applications for leave to appeal against sentence. Therefore, the Court must determine whether it has the jurisdiction to entertain a further appeal by O'Brien, given that it has already dismissed his initial appeal and application for leave to appeal.

The Court of Appeal held that it did not have the jurisdiction to grant an extension of time for O'Brien to appeal against his convictions and sentence, as the right of appeal had been exhausted once the Court had decided the initial appeal on its merits. The Court noted that it would be futile to grant an extension of time, as it had no jurisdiction to entertain a further appeal. The Court also noted that the availability of new evidence or inadequate legal representation at the committal hearing did not alter the fact that the right of appeal had been exhausted. Therefore, the application for an extension of time should be refused.

The Court of Appeal refused the application for an extension of time within which to appeal against O'Brien's convictions and sentence. The Court held that it did not have the jurisdiction to grant an extension of time, as the right of appeal had been exhausted once the Court had decided the initial appeal on its merits. The Court also noted that it would be futile to grant an extension of time, as it had no jurisdiction to entertain a further appeal. The availability of new evidence or inadequate legal representation at the committal hearing did not alter the fact that the right of appeal had been exhausted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established