Court of Appeal (Qld)|2001-09-24|Before: Williams JA, Jones J, Douglas J

R v Alexanderson & Ors [2001] QCA 400 (24 September 2001)

WILLIAMS JA: The Court has, before it, four applications for extension of time within which to appeal against conviction. The four applicants are Alexanderson, MacQueen, Farr and Barlow. Although there are some minor points of distinction so far as Barlow is concerned the essential issues are the same in each of the cases.

It is necessary, in order to understand the present application, to say something of the relevant history. On 24 March 1993 a prisoner by the name of Vosmaer was killed in the Sir David Longland's Correction Centre. Two fellow prisoners, Nixon and Garrett, pleaded guilty to murder on arraignment. The four applicants, also fellow prisoners, pleaded not guilty to murder and went to trial.

There was evidence before the jury that Alexanderson, MacQueen and Farr, to varying degrees, participated in the savage beating of Vosmaer. The case against Barlow was different to the extent that it was conceded that he was not an actual assailant. The Crown relied on section 8 of the Criminal Code and the evidence against him was substantially to the effect that he was responsible for setting the scene in which the killing occurred.

At the trial the jury returned verdicts of guilty of murder against Alexanderson, MacQueen and Farr and a verdict of guilty of manslaughter against Barlow. In the summing-up it was put to the jury that with respect to Alexanderson, MacQueen and Farr the case was essentially one of murder or nothing; that appears to be the way defence counsel conducted the case. Each of the four then appealed to the Court of Appeal.

For present purposes it is sufficient to say that each of Alexanderson, MacQueen and Farr primarily relied on that appeal on the ground that the evidence against each was so unsatisfactory that the verdict of the jury had to be regarded as unsafe and unsatisfactory; that was the substantive matter then argued. That submission was based on the reasoning of the High Court in the then recent decision of M v. The Queen [1994] HCA 63; (1994) 181 CLR 487.

The appeals by Alexanderson, MacQueen and Farr were dismissed by the Court of Appeal on 8 March 1996. However, that Court, on that date, allowed the appeal by Barlow and quashed his conviction for manslaughter. That conclusion was primarily based on the proposition that a verdict of manslaughter was not open under section 8 given the fact that all of the others had been convicted of murder.

Alexanderson, MacQueen and Farr then applied for special leave to appeal to the High Court and that application was refused on 20 June 1996. However, on that date leave to appeal was granted to the Crown with respect to Barlow. The hearing resulted in the High Court overruling the decision of the Court of Appeal and restoring the conviction of manslaughter. That judgment was delivered on 3 June 1997.

In March 2000 the High Court delivered its reasons for judgment in the matter of Gilbert v. The Queen (2000) 74 Australian Law Journal Reports 676. That was a case in which an accused person had been convicted of murder where, in the summing-up, the issue had been left to the jury as one of murder or nothing. The appellant, Gilbert, had driven the other participants to the scene of the crime but had left before the killing. He made a statement to the police which indicated he had limited knowledge of the intent of the other participants in the crime. The High Court, in those circumstances, considered that there was a misdirection in that manslaughter should have been left to the jury as an alternative verdict.

In consequence of that decision, each of the four applicants petitioned the Governor pursuant to section 672A of the Criminal Code. Those petitions were considered by the Governor and were ultimately refused. The Governor, acting on advice, did not take the course which was open to him of referring some issue to this Court. Consequent upon the failure of the petitions, the applicants have applied for an extension of time within which to appeal with a view to, on the hearing of such an appeal, raising what I will refer to as the Gilbert point. In other words, they seek a second hearing on the merits.

It is the contention of the Crown that pursuant to section 668 of the Criminal Code a convicted person has a right of appeal against conviction but once that has been unsuccessful then any right of appeal is exhausted and a convicted person may not pursue a second appeal on the merits.

So much appears to have been decided by the Court of Criminal Appeal in The Queen v. Smith (1968) Queensland Weekly Notes 50 and The Queen v. Smith (Number 2) (1969) Queensland Weekly Notes 10. The Court in those cases followed the decision of the High Court on New South Wales legislation in King v. Grierson (1938) 60 Commonwealth Law Reports 431.

It is clear from passages in the later High Court case of The Queen v. Postiglione (1966) 189 Commonwealth Law Reports 295, especially at 300, 315 and 326, that that is still the basic principle. It is also a principle which has been recognised in other jurisdictions.

It is sufficient to refer to two Western Australian cases, Matta v. The Queen (1995) 126 Federal Law Reports 127 and The Queen v. Vella (1991) 52 Australian Criminal Reports 298 and one recent South Australian authority, The Queen v. Brain (1999) 74 South Australian State Reports 92.

Counsel for the applicant sought to distinguish that line of authority by relying in particular on section 8 of the Supreme Court of Queensland Act 1991. That provides that the Court has all jurisdiction that is necessary for the administration of justice in Queensland.

In The Queen v. Lowrie [1997] QCA 434; (1998) 2 Queensland Reports 579 the majority of this Court, Justices Pincus and Davies, concluded that section 8 did not confer criminal appellate jurisdiction on this Court which was not conferred by chapter 67 of the Criminal Code.

That reasoning was recently followed by this Court in re Robert Paul Long (2001) QCA 318. In my view, without otherwise defining the scope of operation of section 8 of the 1991 Act, it is sufficient to say that it does not confer additional criminal appellate jurisdiction on this Court.

Counsel for the applicants also referred to The Queen v. Pettigrew [1996] QCA 235; (1997) 1 Queensland Reports 601 and The Queen v. Allen (1994) 1 Queensland Reports 526 in support of the proposition that either section 8 or the inherent power of this Court would give it jurisdiction to entertain a further criminal appeal on the merits.

In my view, Pettigrew and Allen can be distinguished on the basis that each essentially involved an application of the slip rule. Given a matter within the jurisdiction of the Court, the Court acted in error and then acted to correct that error.

Those decisions, in my view, are not helpful to the applicants in the present case. In my view it is not sufficient for the applicants to contend that this Court has some overriding jurisdiction to ensure that justice is done or that there is no miscarriage of justice.

The Court's appellate jurisdiction is determined by the various statutes which confer such jurisdiction on it. Section 668 of the Code confers on a convicted person a right of appeal and once that appeal is exhausted then, except where section 672A may apply, this Court has no jurisdiction to further entertain the matter.

It was argued by Mr Hampson that this case was novel because the petition had been refused and, therefore, any miscarriage of justice could not be cured by that process. The fact that the petition has been refused cannot operate so as to confer a power on this Court which it would not otherwise have.

I have come to the conclusion that this Court does not have the jurisdiction to entertain a further appeal and, therefore, it is not necessary to embark upon a consideration of other issues which would arise on an application to extend time to appeal seven years after a conviction was recorded. In all the circumstances I would dismiss each application.

JONES J: Yes, I agree with what has been said by the learned presiding Judge and I too dismiss the applications.

WILLIAMS JA: Well, that is the order. In each case, the applications are dismissed.

Court of Queensland Act 1991

R v Alexanderson & Ors [2001] QCA 400

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R v Alexanderson & Ors [2001] QCA 400 (24 September 2001)

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