_R v Lumley_

Court of Appeal (Qld)|2008-06-13|Before: McMurdo P, Keane JA and Fryberg JSeparate reasons, for judgment of each member of the Court, each concurring as to the order, made

The applicant has now applied again to this Court for an extension of time in which to appeal against his conviction. He has also brought applications to adduce evidence before this Court. The application for an extension of time to appeal was filed on 12 February 2008. It's almost five years out of time. The grounds of that application are:

"(i) Circumstances beyond my control through no fault of my own, medication for my chronic anxiety and depression was cut off, leaving me suicidal and unable to, properly instruct my lawyer for my defense/appeal. , with the head of Psych Services at wolston Dr Kingswell noting in the medical notes, that he had never seen anyone so debilitated by anxiety in his 40 year career.

(ii) Due to "fresh evidence" of a witness, (just located by private investigators and interviewed on 3/12/2007), who witnessed police persuading [the complainant] to in effect, create a false allegation of sexual violation in expectation of substantial financial damages, (the allegation is contrary to medical evidence and was six months after her original statement which made no such allegations and specifically stated, 'I don't remember being anally penetrated').

(iii) Lawyers did not follow instructions to lodge appeal.

I gave instructions at the trial to lodge an appeal on the basis instructions were not followed at the trial, the lawyer (Alan Bennett) did not do this. Then my medication was cut off and has only recently been substituted,..."

Mr Lumley has filed a large quantity of material in the applications. This includes a seven page proposed notice of appeal; a six page and an 18 page outline of submissions; a 10 page and a 28 page affidavit sworn by him dated 23 May 2008 and 29 January 2008 respectively and affidavits from Graham Dixon and Colin Jones. The applications to adduce further evidence include photocopies of material which was before this Court at the time of his appeal.

The applications presently before this Court are futile. The applicant has already had an appeal to this Court. It was dismissed. This Court no longer has jurisdiction to entertain a further appeal. See Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 and Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 287 recently reaffirmed by this Court in R v Ali [2008] QCA 39.

The applicant submits that despite those cases this Court has jurisdiction because the constitution of Queensland confers it. The constitution of Queensland confers jurisdiction on this Court but it does not confer jurisdiction on this Court once the jurisdiction has been spent as it is in this case. He has also referred to the case of R v Stafford [1997] QCA 333 as an example where somebody had a second appeal to this Court but in that case, the matter was referred to the Court of Appeal to be treated as an appeal under section 672A Criminal Code 1899 (Qld).

The fact remains that the applicant having had his appeal to this Court there is no point in granting him an extension of time within which to appeal and no point granting any applications to adduce evidence on appeal as there can be no further appeal. The applications should all be refused.

THE PRESIDENT: The order is the applications are all refused.

He lodged a notice of appeal against conviction and sentence on 28 April 2003. The notice with respect to his appeal against conviction was out of time. This Court granted an extension of time to allow him to appeal against his conviction on 12 August 2003. See R v Lumley [2003] QCA 351. The substantive appeals were heard by this Court on 19 March 2004.

The appeal against conviction was dismissed. The application for leave to appeal against sentence was granted in that the declaration that each offence was a serious violent offence was omitted. See R v Lumley [2004] QCA 120. An application for special leave to appeal to the High Court of Australia was dismissed on 21 March 2005.

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