SUPREME COURT OF QUEENSLAND

KEANE JA:  On the 26th of May 2003 the applicant was convicted on his own plea of a number of offences, the most serious of which was seven counts of rape.  He also pleaded guilty to one count of sexual assault, one count of deprivation of liberty and one count of assault with intent to rape.  These offences were committed in December 2001 when the applicant attacked a female tourist in bushland, detaining her for an afternoon and a night by tying her up and raping her seven times during that time.  The detail of the applicant's crimes is set out in reasons of President McMurdo, with whom Justices Davies and Jerrard agreed in the R v Spoehr [2003] QCA 412.

The applicant was sentenced to an effective term of 14 years imprisonment.  He applied to appeal against this sentence.  The application was refused by this Court on 16 September 2003.  It may be noted that the applicant did not seek to appeal against his conviction, which was not called into question until the present application, which was filed four years after the application for leave to appeal against sentence was refused.

On 29 August 2007 the applicant filed a notice of appeal challenging both his convictions and sentence.  The substantive basis on which the applicant now seeks to appeal is stated by him as follows:

"I have been diagnosed as being psychotic by the Wolston psychiatrist when I committed the offence."

The applicant's explanation for his delay is as follows:

"Until the neurologist at the PA Hospital told me that the seizures [sic] I was [sic] having were most likely associated with psychosis did I feel compeled [sic] to tell the psychiatrist exactly what was going on in my head at the time.  Until then I had no trust or faith in psychiatrists.  This only happend [sic] in the early part of 2006.  I have been found to be psychotic when I commited [sic] the offence."

The immediate difficulty for the applicant is that he offers no explanation for his delay between early 2006 and August 2007.  Compare R v Tait [1999] 2 Qd R 667 at 668.  More importantly, there is no evidence to support his assertion that he was indeed psychotic when he committed the offence, or that his psychosis might arguably have relieved him of criminal responsibility for his actions.  An appeal against conviction does not have sufficient prospects of success to warrant the grant of an extension of time to enable the appeal to be brought.  See Jeffers v R (1993) 112 ALR 85 at 86.

There is the further difficulty that the applicant's assertion, even taken at face value, does not address the circumstance that he was convicted on his own plea of guilty, and that there was no suggestion that he was not competent at that time to make a fully-informed and voluntary plea.

In this regard, reference to the report of Professor Peter Yellowlees, a consultant psychiatrist whose report of 23 April 2003 recorded a number of statements made by the applicant, shows that the applicant was well aware of what he was doing at the time of his offending and that what he was doing was wrong.  Professor Yellowlees recorded the applicant saying to him in relation to the complainant:

"He said he knew something was wrong and realised that what he had done was wrong so he then untied her and said that he apologised to her.  He said that she talked normally and didn't show fear and that he asked her what she was doing in Australia and she said that if he promised not to harm her she would let him have sex with her.  Mr Spoehr told me that he believes now that if she had said to leave her alone he would have left her alone.  But he said that he did have sex with her again and he knew that what he was doing was wrong but 'I didn't have the presence of mind - I told her I expected to do ten years gaol for what I have done - she said I was a bad man a couple of times - she said she wouldn't tell anyone - when I did have sex with her again, it seemed to be with her consent, but I should have left her alone.'

Mr Spoehr said that when he let her go the following morning he expected that she would tell people what had happened to her, and that is why he decided to leave and go down to northern New South Wales where he was eventually arrested."

It was evident from this passage that the applicant was, in truth, fully aware of what he was doing, and that it was wrong, when he raped the complainant.

There is simply no sufficient prospect that the applicant will be able to show that he has suffered any miscarriage of justice if an appeal against his conviction were now to proceed to warrant the grant of an extension of time.

So far as the applicant's sentence is concerned, this Court has no jurisdiction to entertain a further application for leave to appeal against sentence because this Court has already heard and determined such an application finally upon its merits.  See Grierson v The King (1938) 60 CLR 431 at 435; R v Senior [2005] QCA 21; Elliott v The Queen (2007) 239 ALR 651 at 654 paragraph 7.

In any event, however, no reason has been shown to suggest that there is any error in the comprehensive reasons given by this Court for dismissing the application made in September 2003.

For these reasons I would refuse the application for an extension of time.

FRASER JA:  I agree.

ATKINSON J:  I agree.

KEANE JA:  The order of the Court is the application for an extension of time is refused.