Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Determined (QCA)

R v O'Brien[2008] QCA 339

 

COURT OF APPEAL

 

McMURDO P

KEANE JA

McMEEKIN J

 

CA No 196 of 2008

DC No 420 of 2006

 

THE QUEEN

 v

 

O'BRIEN, Alan TerryApplicant

 

BRISBANE 

 

DATE 30/10/2008

 

JUDGMENT 

 

KEANE JA:  On 31 May 2007, the applicant was convicted on his own plea of one count of burglary, one count of rape, and one count of stealing.  He was sentenced to concurrent terms of imprisonment, the longest of which was 14 years for the rape.

The applicant appealed to this Court against these convictions even though he had pleaded guilty, and sought leave to appeal against the severity of his sentence.  The appeal and the application were dismissed by this Court on 20 June 2008.  See R v O'Brien [2008] QCA 163.

The applicant now seeks an extension of time within which to appeal against his convictions and sentence.  It is said that new evidence is available which was "not present during the committal hearing", and that he lacked "proper legal representation".

The right of appeal to this Court is conferred by section 668D of the Criminal Code 1899 (Qld).  It is well established that once this Court has decided an appeal on its merits, the right of appeal so conferred is exhausted, and this Court has no jurisdiction to entertain a further appeal.  See  R v Nudd [2007] QCA 40; R v Mam [2005] QCA 323; and Grierson v The King (1938) 60 CLR 431 at 435.

The same approach is applicable to applications for leave to appeal against sentence.  See R v Senior [2005] QCA 21.

Since this Court has no jurisdiction to entertain any further appeal by the applicant, it would be futile to grant his application for an extension of time within which to appeal.

Accordingly, the application for an extension of time should be refused.

THE PRESIDENT:  I agree.

McMEEKIN J:  I agree.

THE PRESIDENT:  The application for an extension of time is refused.

Close

Editorial Notes

  • Published Case Name:

    R v O'Brien

  • Shortened Case Name:

    R v O'Brien

  • MNC:

    [2008] QCA 339

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Keane JA, McMeekin J

  • Date:

    30 Oct 2008

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC No 420 of 2006 (no citation)31 May 2007Defendant pleaded guilty to one count each of burglary, rape and stealing; sentenced to 14 years imprisonment on rape count to be served concurrently with sentences for burglary and stealing
QCA Interlocutory Judgment[2007] QCA 32103 Oct 2007Ex tempore order granting an application for extension of time; court urging applicant to apply for legal aid for appeal: Jerrard and Keane JJA and Jones J
QCA Interlocutory Judgment[2007] QCA 41523 Nov 2007Reasons for ex tempore orders made on 3 October 2007 granting applicant an extension of time to appeal against conviction; pleaded guilty to one count of burglary with circumstances of aggravation and one count of rape; extension of time, to clarify the information before the court, and to allow the parties to obtain affidavits from relevant people: Jerrard and Keane JJA and Jones J
Appeal Determined (QCA)[2008] QCA 16320 Jun 2008Conviction appeal dismissed and sentence application dismissed; pleaded guilty to one count each of burglary, rape and stealing; guilty pleas of appellant were freely entered despite allegation lawyer had misled him; sentence of 14 years imprisonment on rape count to be served concurrently with sentences for burglary and stealing not manifestly excessive: Holmes and Fraser JJA and Daubney J
Appeal Determined (QCA)[2008] QCA 33930 Oct 2008Application for extension of time to appeal conviction and apply for leave to appeal sentence; right of appeal already exercised in [2008] QCA 163; application refused: McMurdo P, Keane JA and McMeekin J
Appeal Determined (QCA)[2011] QCA 11002 Jun 2011Defendant applied for extension of time to appeal against sentence and to adduce new evidence; applications dismissed and ordered that Registry not accept any further applications regarding conviction or sentence: M McMurdo P, Chesterman JA and Fryberg J

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Grierson v R (1938) 60 CLR 431
1 citation
R v MAM [2005] QCA 323
1 citation
R v Nudd [2007] QCA 40
1 citation
R v O'Brien [2008] QCA 163
1 citation
R v Senior [2005] QCA 21
1 citation

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.