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R v Lumley[2009] QCA 172

 

 

COURT OF APPEAL

 

de JERSEY CJ

KEANE JA 

FRASER JA

 

 

CA No 44 of 2009

DC No 324 of 2002

 

THE QUEEN

 

v

 

CHRISTOPHER EDMONSTONE FERNEAUX LUMLEYApplicant

 

DATE 17/06/2009

 

JUDGMENT

 

KEANE JA:  On 5 March 2003 the applicant was convicted upon the verdict of a jury of one count of rape and one count of torture.  On 4 April 2003 he was sentenced to eight years' imprisonment and the offences were declared to be serious, violent offences under section 161B(3) of the Penalties and Sentences Act 1992 (Qld).  The applicant appealed to this Court in respect of his conviction and sentence.

On 23 April 2004 this Court dismissed the appeal against conviction but upheld his appeal against sentence to the extent of omitting the declaration that the offences were serious, violent offences.  See R v Lumley [2004] QCA 120.

On 9 March 2009 the applicant filed an application for an extension of time within which to appeal against his conviction.  The applicant wishes to assert that because he was a police informant the case against him was fabricated by "members of an exceedingly dangerous armed police drug cartel". 

The right of appeal to this Court from a conviction following the verdict of a jury is conferred by section 668D of the Criminal Code.  It is well established by a series of decisions that where that right has been exercised and a decision on the appeal has been given on the merits the right conferred by section 668D is exhausted and this Court has no jurisdiction to entertain a further appeal.  See Grierson v The Queen (1938) 60 CLR 431; Posteleonie v The Queen (1997) 189 CLR 295; R v MAM [2005] QCA 323 at 3-4; R v Nudd [2007] QCA 40; R v Ali [2008] QCA 39 and R v Lumley [2008] QCA 155.

Today Mr Lumley sought to rely upon the provisions of section 58 of the Constitution of Queensland 2001 as conferring a more ample jurisdiction on this Court.  The possibility that section 58 confers jurisdiction on this Court additional to that conferred by the specific provisions of section 668D of the Criminal Code was rejected by this Court in R v Ali [2008] QCA 39 at pages 2-3.  The High Court of Australia refused special leave to appeal in that case.

Since this court has no jurisdiction to entertain a further appeal by the applicant against his conviction the grant of extension of time within which to appeal would be futile.

Accordingly, I would dismiss the application for an extension of time.

THE CHIEF JUSTICE:  I agree.

FRASER JA:  I agree.

THE CHIEF JUSTICE:  The application is dismissed.

Close

Editorial Notes

  • Published Case Name:

    R v Lumley

  • Shortened Case Name:

    R v Lumley

  • MNC:

    [2009] QCA 172

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, Keane JA, Fraser JA

  • Date:

    17 Jun 2009

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC324/02 (No Citation)05 Mar 2003Convicted after trial of rape and torture.
Primary JudgmentDC324/02 (No Citation)04 Apr 2003Sentenced to eight years imprisonment for rape and five years imprisonment for torture; both offences were declared to be serious violent offences.
QCA Interlocutory Judgment[2003] QCA 35112 Aug 2003Application to extend time to bring conviction appeal; sentence application filed within time; no fault of applicant; extension of time granted: Williams and Jerrard JJA and Muir J.
Appeal Determined (QCA)[2004] QCA 12023 Apr 2004Conviction appeal dismissed, but sentence application granted by setting aside SVO declaration; verdicts open to the jury; there was an objectively reasonable explanation for solicitor advice not to give evidence; SVO imposition was manifestly excessive: McMurdo P, Williams JA and Mullins J.
Appeal Determined (QCA)[2008] QCA 15513 Jun 2008Application to extend time to bring further conviction appeal and applications to adduce evidence refused; appeal against conviction already dismissed; Court no longer has jurisdiction to entertain a further appeal: McMurdo P, Keane JA and Fryberg J.
Appeal Determined (QCA)[2009] QCA 17217 Jun 2009Further extension of time to appeal against conviction refused: de Jersey CJ, Keane and Fraser JJA.
Special Leave Refused (HCA)[2005] HCATrans 17421 Mar 2005Special leave to appeal conviction following [2004] QCA 120: McHugh and Heydon JJ.
Special Leave Refused (HCA)[2009] HCASL 13317 Jun 2009Special leave against [2008] QCA 155 refused: Gummow and Kiefel JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Grierson v R (1938) 60 CLR 431
1 citation
Postiglione v The Queen (1997) 189 CLR 295
1 citation
R v Ali [2008] QCA 39
2 citations
R v Lumley [2004] QCA 120
1 citation
R v Lumley [2008] QCA 155
1 citation
R v MAM [2005] QCA 323
1 citation
R v Nudd [2007] QCA 40
1 citation

Cases Citing

Case NameFull CitationFrequency
R v KAM (No 2) [2017] QCA 1971 citation
R v Manning [2023] QCA 8 1 citation
R v Mathews [2013] QCA 2032 citations
R v McGrane [2012] QCA 221 1 citation
R v O'Hara [2015] QCA 2832 citations
R v Stanley[2015] 1 Qd R 118; [2014] QCA 1168 citations
R v Upson [2018] QCA 1641 citation
R v Upson [2013] QCA 762 citations
R v Upson [2017] QCA 2212 citations
R v Upson (No 2) [2013] QCA 149 2 citations
R v Winchester [2013] QCA 1661 citation
1

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