R v Martin
[2015] QCA 2
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- R v Martin[2015] QCA 2
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R v Martin[2015] QCA 2
R v Martin[2015] QCA 2
CITATION: | R v Martin [2015] QCA 2 |
PARTIES: | R |
FILE NO/S: | CA No 243 of 2014 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension (Conviction) |
ORIGINATING COURT: | Supreme Court at Mackay |
DELIVERED EX TEMPORE ON: | 4 February 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 February 2015 |
JUDGES: | Margaret McMurdo P and Morrison JA and Jackson J |
ORDER: | The applications are dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where the applicant was found guilty of murder – where the applicant was sentenced to life imprisonment – where the applicant brought a second appeal under s 668D Criminal Code 1899 (Qld) – where the applicant argued his conviction was procured by impropriety or fraud – whether the Grierson principle is displaced by fraud in the applicant’s case – whether ss 58, 59 Constitution of Queensland Act 2001 (Qld) overrides the Criminal Code and Grierson principle Constitution of Queensland Act 2001 (Qld), s 58, s 59 Criminal Appeal Act 1912 (NSW) Criminal Code (Qld), s 668D Police Powers and Responsibilities Act 2000 (Qld) Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, considered R v Martin [2011] QCA 342, cited R v Stanley [2014] QCA 116, considered |
COUNSEL: | The applicant appeared on his own behalf B J Power for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
[1] JACKSON J: The applicant applies for extension of time within which to appeal his conviction and for leave to adduce documentary evidence in support of the proposed grounds of appeal.
[2] On 2 August 2010 the applicant was found guilty and convicted of the murder of his de facto partner after a four day jury trial. He was sentenced to life imprisonment. On 29 November 2011 the Court of Appeal dismissed an appeal against his conviction.[1] The applicant did not make an application for special leave to appeal to the High Court.
[3] The appeal the applicant now wishes to bring would be, therefore, a second appeal. Such an appeal must be brought under s 668D of the Criminal Code Act 1899 (Qld) (“Criminal Code”). In Grierson v The King,[2] the High Court held that the jurisdiction of the Court of Criminal Appeal of New South Wales, under the Criminal Appeal Act 1912 (NSW), was limited and that the Court had no jurisdiction to reopen an appeal which it had heard on the merits and finally determined.[3]
[4] In R v Stanley,[4] this Court confirmed numerous decisions in this jurisdiction, applying Grierson to the effect that:
“[W]here an appeal against conviction has been decided on its merits, the right of appeal created by section 668D of the Criminal Code is exhausted and this Court has no jurisdiction to entertain a further appeal.”[5]
[5] Perhaps in an effort to avoid Grierson, the applicant contends that his conviction was obtained by some impropriety or fraud. Presumably the contention would be that a conviction obtained my fraud is capable of being set aside, notwithstanding Grierson.
[6] In R v Stanley, Justice Morrison expressed a view that fraud does not operate as an exception to the principle in Grierson.[6] The other two members of the Court expressed no opinion on the point, thus Justice Morrison’s view was not part of the ratio of the decision. However, the only possible basis for an allegation of fraud made by the applicant appears to arise from his contention that there was a breach of s 403(2) of the Police Powers and Responsibilities Act 2000 (Qld) (‘Act’) because he was detained under Part 2 of Chapter 15 of that Act for more than eight hours without the detention being extended under Division 3 of Part 2.
[7] The basis for the allegation that the detention was not extended is that the applicant has ascertained through his former legal representatives that an application for extension of detention does not appear to have been made, at least from the contents of his file and brief held by those lawyers. That is to say, those researches do not appear to disclose that an application was made to a magistrate or justice of the peace under s 405(1) of the Act.
[8] In further support of his application as to alleged fraud, the applicant exhibits letters written to him by the Queensland Police Service and the Crime and Misconduct Commission commencing in July 2012. He submits that a letter written on 31 July 2012 stating that actions of officers were considered to be lawful and reasonable is wrong, but in my view, that does not matter. That correspondence was written well after the applicant’s conviction and does not itself evidence any fraud in obtaining the conviction.
[9] As to the applicant’s second proposed ground of appeal, it was that police did not take him before a magistrate for 33 hours after his arrest, even though there was a magistrate available during that time. However, he does not submit any evidence of any misconduct in the trial of the proceeding or in the interlocutory steps before the trial in relation to that proposed ground of appeal.
[10] Whether or not fraud operates as an exception to the Grierson principle does not need to be decided in this case. There is no suggestion in the evidence the applicant has produced that there was any fraud attending his conviction. By itself, whether or not there was a failure to comply with s 403 does not amount to fraud or arguably so, in my view.
[11] The applicant also raised an argument as to the operation of ss 58 and 59 of the Constitution of Queensland Act 2001 (Qld). In my view, notwithstanding the width of the expression of the sections he relied upon, they do not arguably override the effect of the principle in Grierson as applied to s 668D of the Criminal Code and any appeal that may be brought before this Court under that section.
[12] For those reasons, in my view the applications must be dismissed and I would so order.
[13] MARGARET McMURDO P: I agree.
[14] MORRISON JA: I also agree.
[15] MARGARET McMURDO P: The order is the applications are dismissed.