R v Upson [2013] QCA 76

SUPREME COURT OF QUEENSLAND

CITATION: R v Upson [2013] QCA 76

PARTIES: R v UPSON, Robert James (applicant)

FILE NO/S: CA No 9 of 2013 SC No 457 of 2009

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Sentence & Conviction)

ORIGINATING COURT: Supreme Court

DELIVERED EX TEMPORE ON: 9 April 2013

DELIVERED AT: Brisbane

HEARING DATE: 9 April 2013

JUDGE: Holmes and Fraser JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **1.****The application for an extension of time to appeal against conviction is refused.****2.**The court will reserve its decision on the application for an extension of time to seek leave to appeal against sentence.

CATCHWORDS: APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the applicant was found guilty of carrying on the business of unlawfully trafficking in a dangerous drug – where the applicant applies for an extension of time to appeal against conviction – where the applicant applies for an extension of time for leave to appeal against sentence – where the applicant had previously appealed against conviction, sought leave to adduce new evidence and applied for leave to appeal against sentence – where the applicant did not file material in support of application – where the applicant did not provide any reason for delay in bringing application – where the applicant’s submissions omitted the fact of previous unsuccessful appeal – whether the applications for extension of time should be allowed / Criminal Code 1899 (Qld), s 668D / Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited R v Lumley [2009] QCA 172, cited R v Nudd [2007] QCA 40, cited R v Upson [2011] QCA 196, cited

COUNSEL: The applicant appeared on his own behalf V A Loury for the respondent

SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I'll ask Justice Daubney to deal with the way in which the Court will proceed in these matters first.

DAUBNEY J: On the 19th of January 2010, the applicant was found guilty after a five day trial of the offence of carrying on the business of unlawfully trafficking in the dangerous drug cannabis sativa on dates unknown between the 1st of June 2007 and the 30th of September 2007. He was sentenced to eight years' imprisonment.

The applicant appealed to this Court against his conviction, sought leave to adduce new evidence and applied for leave to appeal against sentence. On 16 August 2011, this Court ordered that:

1.The appeal be dismissed;

2.The applications for leave to adduce new evidence in the appeal and in the application for leave to appeal against sentence and to amend the application for leave to appeal against sentence be refused; and

3.The application for leave to appeal against sentence be refused.

The Court's reasons for making those orders are found in R v Upson [2011] QCA 196.

The applicant has now applied for an extension of time within which to appeal against that same conviction, and an extension of time for leave to appeal against sentence.

He has filed a draft notice of appeal by which he states his desire to appeal to this Court against his conviction and sentence and also filed submissions in which he sets out the matters which he would seek to rely on, or which he could seek to argue on appeal against conviction and the matters on which he would rely to seek a reduction of his sentence.

The applicant has not filed any material at all in support of his application for an extension of time within which to appeal and seek leave to appeal against sentence and has not provided any reason for the delay in bringing the present application Nor did the applicant in his outline of submissions mention the fact that he had previously unsuccessfully appealed against conviction and unsuccessfully sought leave to appeal against sentence.

The right of appeal for a person convicted on indictment is conferred by s 668D of the Criminal Code. It is well established that where that right of appeal against conviction has been exercised and a decision on the appeal has been given on the merits, the right of appeal conferred by Section 668D is exhausted, and this Court has no jurisdiction to entertain a further appeal. See R v Lumley [2009] QCA 172, per Keane JA, as he then was, in which judgment his Honour cited the numerous authorities which established that proposition, including, notably, the judgment of the High Court in Grierson v The King [1938] 60 CLR 431.

It is clear from his outline of submissions that the applicant would seek to argue grounds of appeal against conviction different to those which were argued in his 2011 appeal. The fact that he now desires to raise new grounds of appeal does not, however, confer on him a further right of appeal under s 668D. As Keane JA said in R v Nudd [2007] QCA 40, "That the applicant wishes now to agitate grounds different to those previously argued on his behalf does not give rise to a jurisdiction in this Court to entertain a further appeal against his conviction."

The applicant exercised his right of appeal against conviction under s 668D in 2011. That right of appeal is now exhausted. There is therefore no utility in granting the applicant an extension of time within which to appeal against conviction.

Accordingly, the application for an extension of time to appeal against conviction should be refused.

I would reserve judgment on the application for extension of time to seek leave to appeal against sentence.

HOLMES JA: I agree.

FRASER JA: I agree.

HOLMES JA: The orders are:

The application for an extension of time to appeal against conviction is refused.

The Court will reserve its decision on the application for an extension of time to seek leave to appeal against sentence.