The King v Kay [No 2] Applicant

[2024] QCA 85

COURT OF APPEAL

BOND JA
CROW J
CALLAGHAN J

CA No 22 of 2023
DC No 291 of 2019

THE KING

KAY [No 2] Applicant

BRISBANE

THURSDAY, 16 MAY 2024

JUDGMENT OF THE COURT

On 27 May 2019, the applicant was convicted after a jury trial in the District Court of multiple counts of sexual offending against his daughter. He appealed his conviction on the ground that the convictions were unreasonable or could not be supported having regard to the evidence.

At the hearing of his appeal on 29 May 2020, he abandoned that ground and was given leave to pursue two new grounds. He contended that there had been a miscarriage of justice on two bases. First, he contended that evidence had been incorrectly dealt with at trial, and second, he contended that the Judge had misdirected the jury in particular ways. On 29 January 2021, the Court of Appeal dismissed his appeal on the merits: see R v KAY [2021] QCA 5.

On 16 February 2023, the applicant filed an application seeking an extension of time within which to advance an appeal against his conviction and sentence. Insofar as it related to the conviction, the applicant relied on the sole ground that “Inconsistent witness statements not disclosed”.

It is apparent that he wishes to advance a complaint concerning the Crown’s compliance with its disclosure obligation. It may be observed that his application in that regard is not supported by anything other than assertion presently.

On 21 March 2024, he filed documents which clarified that he wished to appeal against his conviction only and that he abandoned any appeal against his sentence. Accordingly, it is necessary only to consider his application for an extension of time within which to advance a second appeal against his conviction.

In his written submissions in support of his application, he has made it clear that he wishes to advance a further ground of appeal, namely the ground which he had previously advanced and abandoned, that the verdicts were unreasonable or cannot be supported having regard to the evidence.

The applicant’s application must be disposed of without addressing whether either ground has any merits. As counsel for the respondent correctly contended, this Court has no jurisdiction to entertain a second appeal against conviction. It is well-established law that where an appeal against conviction has been dismissed on its merits, the right of appeal created by section 668D of the Criminal Code is exhausted. See Grierson v The King (1938) 60 CLR 431 at 435; followed in, for example, R v MAM [2005] QCA 323 and R v KAM (No 2) [2017] QCA 197.

For completeness, I note that the Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Act 2024 has been passed by Parliament but not yet proclaimed. When proclaimed, it will confer jurisdiction on this Court to consider second appeals, in particular statutorily constrained circumstances. Because it has not yet been proclaimed, it is not presently relevant to consider whether the applicant’s proposed appeal would fall within those circumstances.

The application must be dismissed. That disposes of the application. You should consider at some subsequent juncture whether the amendment that I have mentioned gives you any rights, but it does not presently help you.

CaseChat Overview and Summary

The case of The King v Kay [No 2] Applicant involved the applicant, who had previously been convicted of multiple counts of sexual offending against his daughter. He sought an extension of time to appeal against his conviction. The appeal was heard by the Court of Appeal, with Bond J, Acrow J, and Callaghan J presiding. The applicant had previously appealed his conviction, which was dismissed on the merits, and now sought to advance a second appeal against his conviction on the basis of "Inconsistent witness statements not disclosed."

The legal issue before the court was whether it had jurisdiction to entertain a second appeal against the applicant's conviction, given that a previous appeal against the conviction had been dismissed on its merits. The court had to consider the effect of the Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Act 2024, which had been passed by Parliament but had not yet been proclaimed.

The court held that it did not have jurisdiction to entertain a second appeal against the conviction, as it was well-established law that the right of appeal created by section 668D of the Criminal Code was exhausted once an appeal against conviction had been dismissed on its merits. This principle was established in cases such as Grierson v The King and followed in subsequent cases like R v MAM and R v KAM (No 2). The court noted that the new legislation would, when proclaimed, confer jurisdiction on the Court of Appeal to consider second appeals in statutorily constrained circumstances. However, as the legislation had not yet been proclaimed, it was not relevant to the current application. Consequently, the application for an extension of time to appeal was dismissed.

The court's decision was that the application for an extension of time to appeal against the conviction must be dismissed. The court emphasised that the new legislation, which would allow for second appeals in certain circumstances, did not presently affect the outcome of the application. The applicant should consider at a later stage whether the new legislation might confer any rights, but it did not help him in the current appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established