R v Manning[2023] QCA 8

[2023] QCA 8

COURT OF APPEAL

MORRISON JA

McMURDO JA

BROWN J

CA No 119 of 2018

DC No 305 of 2014

THE KING

v

MANNING, Gregory Thomas Applicant

BRISBANE

THURSDAY, 9 FEBRUARY 2023

JUDGMENT

MORRISON JA:  The Court has reached a concluded view about the determination of this application and I am going to ask Justice Brown to read the reasons of the Court.

BROWN J:  Mr Manning seeks an extension of time pursuant to s 671 of the Criminal Code to appeal against conviction and sentence, and special leave to re-open an appeal under s 44 of the Supreme Court of Queensland Act 1991 and also pursuant to s 666E of the Criminal Code.  The application is made well outside the time limit that is prescribed.

Mr Manning was originally tried and convicted in the District Court in 2013.  He successfully appealed in 2014 and was re-tried.  Mr Manning was again convicted in 2016.  He again successfully appealed that conviction in 2017.  In 2018 he was re-tried and convicted.  He appealed both the conviction and the sentence on the basis that each verdict was unreasonable or could not be supported having regard to the whole of the evidence and that the sentence was manifestly excessive.  That appeal was dismissed and leave to appeal against the sentence was refused on 7 February 2020.^[1]

In his appeal from the 2018 conviction and sentence, he was represented by Mr Copley QC.  The grounds of appeal ultimately pursued at the hearing were that the applicant’s conviction on counts 4 to 9, 12, 18 and 20 were unreasonable.  While the ground for appeal against sentence was that the sentence was manifestly excessive, it was conceded at the hearing that it would only be successful if the grounds of appeal against conviction were successful in part or in whole.  The appeal was the subject of a full hearing before this Court.

Mr Manning sought leave for an extension of time to apply for special leave to appeal to the High Court.  Special leave to the High Court was refused on 16 March 2022 on the basis that the decision did not raise any question with sufficient prospects of success to warrant the grant of special leave to appeal and that it would “be futile to grant an extension of time”.^[2]

In the grounds supporting his current application, Mr Manning states that:

“The appellant had appealed against all of the convictions on the ground that the verdicts of guilty are unreasonable.  As will become plain from the outline of this application, the complaint is agitated primarily in relation to the verdicts return on sodomy counts (counts 8, 12, 18 and 20) and in relation to whether it was open to the jury to be satisfied beyond reasonable doubt that the complainant was under the age of 12 when counts 4 - 9 were alleged to have occurred.”^[3]

Mr Manning does, however, raise further grounds of appeal in his application including that this Court erred in not setting aside his conviction and erred in its function in various respects.  He also variously contends that the Court of Appeal erred including on the basis of a misapprehension of the content of Court orders; that the Court failed to see the medical evidence was inconsistent with the complainant; that the exculpatory evidence was not disclosed; and that the trial judge misled the jury as to the date of the complainant’s birthday.

As to the sentence imposed, Mr Manning contends that the term of imprisonment of 10 years and six months should have been reduced because of the extended delay and the effect on the appellant of that delay, where the delay was due to Mr Manning exercising his rights of appeal and errors by the Crown.

The right to appeal against conviction and with leave, against sentence, is provided for in s 666D of the Criminal Code.  As to that Justice Keane, with whom the remainder of the Court agreed in R v MAM [2005] QCA 323 stated that:

“The High Court in Grierson v The King (1938) 60 CLR 431 at 435, confirmed that this Court’s jurisdiction to hear criminal appeals ‘is statutory, and the court has no further authority to set aside a conviction upon indictment than the statute confers’.

It is clear that the right of appeal conferred by section 668D of the Criminal Code 1899 (Qld) (“the Criminal Code”) is exhausted once an appellant has been afforded one opportunity to have his or her appeal considered on its merits.”

The Court has no jurisdiction to hear a further appeal once an appeal has been determined on its merits.  That is the case here.  As was stated by Justice McMurdo, with whom the remainder of the Court agreed, in R v KAM (No 2) [2017] QCA 197:

“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 andR v Lumley [2008] QCA 155 and [2009] QCA 172.”

The fact that Mr Manning may wish to raise additional grounds of appeal from those previously articulated before this Court in the appeal from his 2018 conviction and determined by this Court in 2020, does not vest this Court with such jurisdiction.^[4]

Neither s 666E nor s 671 of the Criminal Code provide an additional right of appeal to s 666D of the Criminal Code.  Nor does s 44 of the Supreme Court of Queensland Act 1991 provide an additional right to appeal where there has been a determination of an appeal on its merits.

The case of Kentwell v The Queen (2014) 252 CLR 601, upon which the applicant placed reliance, is not relevant given that, unlike the present case, there had not been a previous application for leave to appeal against sentence when the extension of time for leave to appeal against sentence was sought.

The exceptions to the principle referred to in R v KAM (No 2) above are very limited and none of them arise in the present case.

The fact that Mr Manning considers the Court must have misapprehended the content of its orders, or the orders of the Court below, or as to its function in not overturning his conviction and upholding his appeal is a misconception and does not establish a basis for the Court re-opening the appeal on the basis of misapprehension.  Nor does Mr Manning raise any matter calling for reconsideration of orders as was the case in R v Pettigrew [1997] 1 Qd R 601, which also did not involve a dismissal of the appeal on its merits.  Contrary to Mr Manning’s contention, there are no circumstances which could constitute a denial of procedural fairness as discussed by the High Court in R v Pantorno (1989) 166 CLR 466.  It is clear from a review of Mr Manning’s application and his response to the Crown’s submissions that he seeks to reagitate the merits of his appeal.

Mr Manning has exhausted his right to appeal against his conviction by the appeal on the merits determined in 2020.  The grant of leave for an extension of time in which to appeal would be futile as the new appeal would be incompetent.  Accordingly, his application for an extension of time within which to appeal against conviction should be refused.

As to the application for an extension of time for leave to appeal against sentence, the better view, having regard to the analysis of Justice Fraser in R v Upson (No 2) [2013] QCA 149 at [25], is that the Court, having refused leave previously albeit via an order of an interlocutory nature, is similarly precluded by the principles contained in Grierson v The King (1938) 60 CLR 431 from hearing a further application given the Court considered the question of leave having regard to the merits of the appeal.  That question, however, has not been resolved definitively in the authorities.

It is not necessary for this Court to resolve the question of jurisdiction in this case, as even if there is no jurisdictional bar, the second application for leave to appeal against a sentence is an abuse of process being an impermissible attempt to relitigate a case which the Court conclusively determined on its merits: see R v Williams.^[5]

Submissions were made on behalf of the appellant at his appeal from the 2018 conviction, raising grounds of appeal in relation to the sentence, albeit that it was conceded to only arise if the Court upheld any of the grounds against conviction.^[6]  No good reason has been provided for the lengthy delay in now seeking leave to appeal against sentence, raising a further ground or which can explain why it was not raised when leave to appeal against sentence was previously sought and determined in 2020.

It appears the delay is due to Mr Manning’s lack of success in his application for special leave to the High Court.  In any event, Mr Manning has no prospects of succeeding on a renewed application for leave to appeal against sentence on the ground of delay as set out in his grounds of appeal.  The sentencing judge took into account the stress suffered by Mr Manning as a result of the lengthy litigation that included three trials and appeals.^[7]

In the circumstances, leave for an extension of time within which to appeal against sentence must also be refused.  The orders of the Court are:

1. The application for an extension of time to appeal against conviction is refused.
2. The application for an extension of time to seek leave to appeal against sentence is refused.

MORRISON JA:  Thank you.  The orders are as pronounced on behalf of the Court by Justice Brown.  Adjourn the Court.