R v Upson[2017] QCA 221

COURT OF APPEAL

GOTTERSON JA

PHILIPPIDES JA

BOND J

CA No 175 of 2017

SC No 457 of 2009

THE QUEEN

v

UPSON, Robert James Applicant

BRISBANE

THURSDAY, 5 OCTOBER 2017

JUDGMENT

GOTTERSON JA:  On 18 January 2010, the applicant, Robert James Upson, was convicted at a trial in the Supreme Court at Brisbane on a single count that between 1 June 1997 and 30 September 2007 at Coominya, he carried on the business of unlawfully trafficking in the dangerous drug cannabis sativa.  He was sentenced that day to eight years’ imprisonment.  He became eligible for parole after serving four years.

Recently, on 8 August 2017, the applicant filed a Form 28 application for extension of time within which to appeal.  At the same time, he filed a Form 26 notice of appeal.  In that latter document, he stated that he desired to appeal against his conviction.  Thus, the application before this Court is now one for an extension of time to appeal against the conviction.

The Form 26 contained a single ground of appeal.  It is as follows:

“I was committed for trial for producing a dangerous drug on 29 May 2008.  A new indictment of trafficking a dangerous drug was presented to the court 18 May 2009.  This was six months outside the time allowed to present a new indictment.”

This application is the third occasion on which the applicant has sought to challenge his conviction in this Court.  The first was in 2011.  He was represented by senior counsel.  His appeal was heard on the merits and it was dismissed: see R v Upson [2011] QCA 196.

Next, in 2013, the applicant applied for an extension of time to appeal against his conviction.  The application was refused on the basis that the applicant had, by his 2011 appeal, exhausted his statutory right of appeal against conviction and that, therefore, this Court had no jurisdiction to entertain a further appeal: see R v Upson [2013] QCA 76.

On that occasion, Daubney J (with whom Holmes JA (as her Honour then was) and Fraser JA agreed) observed:

“The right of appeal for a person convicted on indictment is conferred by s 668D of the Criminal Code.  It is well established that where the right of appeal against conviction has been exercised and a decision on the appeal has been given on the merits, the right of appeal conferred by Section 668D is exhausted, and this Court has no jurisdiction to entertain a further appeal:  see R v Lumley [2009] QCA 172 per Keane JA, as he then was, in which judgment his Honour cited the numerous authorities which established that proposition, including, notably, the judgment of the High Court in Grierson v The King (1938) 60 CLR 431.”

I also agree with these observations.  I would add that more recently in R v KAM (No 2) [2017] QCA 197, McMurdo JA (with whom Sofronoff P and Boddice J agreed) said to similar effect:

“Where an appeal against conviction has been dismissed, it is well established that the Court has no jurisdiction to hear a further appeal against conviction: see eg. R v MAM [2005] QCA 323; R v Nudd [2007] QCA 40 and R v Lumley [2008] QCA 155 and [2009] QCA 172.  These and other judgments to the same effect have applied Grierson v The King (1938) 60 CLR 431, which held that where a right of appeal is provided by a statute in terms such as in s 668D of the Criminal Code (Qld), the statute is to be interpreted as allowing for only one appeal.”

Thus, the position is clear.  The applicant exhausted his right to appeal against his conviction by the appeal on the merits that was determined in 2011.  This Court has no jurisdiction to entertain a further appeal by him against it.  For this reason, I would refuse the application for an extension of time within which to appeal against conviction.

I wish to make two further observations.  Firstly, the applicant’s proposed ground of appeal is meritless.  The six month time limit prescribed by s 590(1) of the Criminal Code (Qld) for presentation of an indictment within six months of committal for trial does not by the very terms of that section apply to an ex officio indictment presented under s 561(1) of the Code.  The applicant was convicted on an ex officio indictment.

The second observation is that the applicant’s short written outline of argument and his oral submissions referred to factual matters which go beyond the stated ground of appeal.  Those matters are to be disregarded on that account and also because they seek to re-argue the merits of an appeal against conviction.

PHILIPPIDES JA:  I also agree.

BOND J:  I agree.

GOTTERSON JA:  The order of the Court is that the application for an extension of time within which to appeal against conviction is refused.