R v Ali[2008] QCA 39

SUPREME COURT OF QUEENSLAND

FRASER JA:  The applicant applies for an extension of time within which to appeal against his conviction for murder and against convictions for improperly interfering with a corpse and concealing the birth of a child on 2 November 2000. 

The applicant had earlier appealed against his conviction on grounds that the verdict was unsafe and unsatisfactory and that there had been a miscarriage of justice through erroneous directions by the trial Judge in relation to lies and matters that were said to indicate the applicant's consciousness of guilt.  That appeal was dismissed by this Court on 17 August 2001.(See R v Ali [2001] QCA 331).

The applicant appealed from that decision to the High Court contending that there had been a miscarriage of justice in that he was not tried fairly because of the alleged incompetence of trial counsel.  That appeal was dismissed by the High Court on 8 March 2005.  (Ali v R [2005] HCA 8).

Before the applicant's appeal to the High Court was determined, the applicant sought to appeal again from his convictions.  On 18 March 2003 this Court dismissed the applicant's application for an extension of time within which to bring that proposed appeal.  (R v Ali [2003] QCA 117).  The Court held that the proposed appeal was incompetent because once an appeal against conviction had been unsuccessful the right of appeal was exhausted.  The Court followed earlier decisions of this Court to the same effect which applied the High Court's decision in Grierson v The King (1938) 60 CLR 431.

The same view has been adopted in more recent decisions.  For example in R v Nudd [2007] QCA 40, Keane JA, the Chief Justice and Mullins J agreeing, said:

"The right of appeal to this Court is created by section 668D of the Criminal Code 1899 Queensland.  Once this Court has decided an appeal to it on its merits, the right of appeal conferred by section 668D of the Code is exhausted and this Court has no jurisdiction to entertain a further appeal.  That this is so is well established in a long line of authorities (See Grierson v The King (1938) 60 CLR 431, R v Smith [1968] QWN 50, Mickelberg v The Queen (1989) 167 CLR 259, especially at 287, and R v MAM [2005] QCA 323."

These decisions apply to the proposed appeal regardless of the fact that the applicant would seek to establish a miscarriage of justice by relying upon what he characterises as fresh or new evidence.  That is not a basis for distinguishing the earlier decisions.  In Grierson itself the basis of the appeal which the High Court held to be incompetent was the discovery of what was claimed to be fresh evidence.  That was also the case in R v MAM [2005] QCA 323 for example.

The applicant argues that jurisdiction to hear his proposed appeal is given by section 8 of the Supreme Court of Queensland Act 1991.  On 6 June 2002 section 8 was omitted from the Supreme Court of Queensland Act 1991 by the Constitution of Queensland 2001.  It was replaced by a provision in identical terms, section 58 of the Constitution of Queensland.  That provision provides:

"1.The Supreme Court has all jurisdiction necessary for the administration of justice in Queensland. 

 2.Without limiting subsection (1) the Court -

(a)is the superior Court of record in Queensland and for the State and;

(b)has, subject to the Commonwealth Constitution, unlimited jurisdiction at law in equity and otherwise."

R v Pettigrew [1997] 1 Qd R 601, upon which the applicant relies, does not support the proposition that the former section 8 of the Supreme Court of Queensland Act 1991 confers jurisdiction upon this Court to hear his proposed appeal against his conviction.  That decision is authority only for the proposition that where this Court disposes of a matter on the basis of a mistake about the contents of an earlier order it has jurisdiction in an appropriate case to correct that mistake.  That was made clear by Fitzgerald P at 615, Pincus JA at 619 and Mackenzie J at 621.  Other cases concerning the application of the slip rule or the Court's analogous inherent jurisdiction are also similarly irrelevant.

Since R v Pettigrew was decided this Court has rejected the argument based on section 8 of the 1991 Act which the applicant seeks to agitate.  In R v Alexanderson [2001] QCA 400 Williams JA, Jones and Douglas JJ agreeing, held that section 8 does not confer additional criminal appellate jurisdiction on this Court.  His Honour added:

"In my view it is not sufficient for the applicant 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 an appeal and once that appeal is exhausted then, except where section 672A may apply, this Court has no jurisdiction to further entertain the matter."

That applies equally to the applicant's proposed appeal.  Section 672A, which confers jurisdiction to hear and determine cases referred to this Court by the Crown Law Officer on consideration of a petition for a pardon, has no application here.

The applicant's written submissions also referred to R. v Allen [1994] 1 Qd R 526.  The Court there made an order that an appeal against conviction be dismissed and indicated that it would later deliver the reasons for that order.  Subsequently the majority of the Court allowed an amendment to the notice of appeal to raise a ground made viable by a recent decision of the High Court and allowed the appeal.  That decision is not relevant here.  It involved an application to amend a notice of appeal and as Justice Dowsett pointed out the Court was not functus officio because it had yet to give reasons for dismissing the appeal.  Here the applicant seeks to bring a new appeal many years after its first appeal was dismissed.

The applicant also relies on R v A [2003] QCA 445.  That case concerned an application for an extension of time within which to appeal in circumstances where a previous application for an extension of time had been dismissed.  Justice Davies and the President considered an argument that the Court had no jurisdiction to hear the second application but each of their Honours found it unnecessary to decide the point.  The case has no application here where there had been an earlier appeal heard by the Court.

It follows that the Court has no jurisdiction to hear the proposed appeal.  It would be futile to grant the applicant an extension of time in which to institute an appeal because this Court has no such jurisdiction.  I would therefore refuse the application.

ATKINSON J:  I agree.

MULLINS J:  I agree.

FRASER JA:  The order of the Court is that the application is refused.