R v The Queen

[2009] QCA 4

COURT OF APPEAL

KEANE JA
HOLMES JA
FRASER JA

CA No 225 of 2008
DC No 366 of 2008

THE QUEEN

R (Applicant)

BRISBANE

DATE 09/02/2009

JUDGMENT

KEANE JA: On the 24th of February 2003 the applicant was convicted on the verdict of a jury of two counts of indecent dealing with a girl under the age of 12 years and two counts of rape. He was sentenced to concurrent terms of 10 years' imprisonment on each of the rape counts and to lesser concurrent terms of imprisonment in respect of the other offences.

The applicant appealed to this Court against his convictions. On 11 July 2003 that appeal was dismissed although his sentence was reduced to eight and a half years' imprisonment; see R v R (2003) 139 A Crim R 371; [2003] QCA 285.

A subsequent application for special leave to appeal to the High Court of Australia was unsuccessful. The applicant now seeks an extension of time within which to bring a further appeal to this Court.

It is well established that this Court's jurisdiction to entertain an appeal against conviction is conferred by s 668(d) of the Criminal Code 1899 (Qld). That jurisdiction is exhausted once that right has been exercised. The line of authorities which establish this proposition was recently referred to in this Court's decision in R v Nudd [2007] QCA 40.

The applicant now wishes to agitate a point not previously taken on his part but that circumstance does not affect the position that this Court's jurisdiction to entertain an appeal against his conviction has been exhausted.

Top put the point shortly, this Court dealt with the applicant's appeal more than five years ago and its function in that regard has been performed. Since this Court has no jurisdiction to entertain a further appeal against the applicant's convictions the grant of an extension of time to enable an appeal to proceed would be futile.

In my opinion, the application for an extension of time should be refused.

HOLMES JA: I agree.

FRASER JA: I agree.

KEANE JA: The order of the Court is application for an extension of time is refused.

CaseChat Overview and Summary

The matter before the Queensland Court of Appeal was an application by the applicant, previously convicted and sentenced for indecent dealing with a girl under the age of 12 years and rape, to extend the time within which to bring a further appeal against his convictions. The applicant had previously appealed to this Court, which dismissed the appeal but reduced his sentence. His subsequent application for special leave to appeal to the High Court of Australia was also unsuccessful. The applicant sought an extension of time to bring a further appeal, arguing that he wished to raise a point not previously taken on his part.

The legal issue before the Court was whether it had the jurisdiction to grant the applicant an extension of time to bring a further appeal against his convictions, given that the Court had already dealt with the applicant's appeal more than five years ago and its function in that regard had been performed. The Court noted that its jurisdiction to entertain an appeal against conviction was conferred by statute and was exhausted once that right had been exercised. The line of authorities establishing this proposition was referred to in a recent Court of Appeal decision. The Court held that since it had no jurisdiction to entertain a further appeal against the applicant's convictions, the grant of an extension of time to enable an appeal to proceed would be futile.

The Court concluded that the application for an extension of time should be refused. The judges Keane, Holmes, and Fraser each agreed with the decision, and the order of the Court was that the application for an extension of time was refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established