R v KAY [No 2]
[2024] QCA 85
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- Unreported Judgment
- Appeal Determined (QCA)
- R v KAY [No 2][2024] QCA 85
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R v KAY [No 2][2024] QCA 85
R v KAY [No 2][2024] QCA 85
[2024] QCA 85
COURT OF APPEAL
BOND JA
CROW J
CALLAGHAN J
CA No 22 of 2023
DC No 291 of 2019
THE KING
v
KAY [No 2]Applicant
BRISBANE
THURSDAY, 16 MAY 2024
JUDGMENT OF THE COURT
On 27 May 2019, the applicant was convicted after a jury trial in the District Court of multiple counts of sexual offending against his daughter. He appealed his conviction on the ground that the convictions were unreasonable or could not be supported having regard to the evidence.
At the hearing of his appeal on 29 May 2020, he abandoned that ground and was given leave to pursue two new grounds. He contended that there had been a miscarriage of justice on two bases. First, he contended that evidence had been incorrectly dealt with at trial, and second, he contended that the Judge had misdirected the jury in particular ways. On 29 January 2021, the Court of Appeal dismissed his appeal on the merits: see R v KAY [2021] QCA 5.
On 16 February 2023, the applicant filed an application seeking an extension of time within which to advance an appeal against his conviction and sentence. Insofar as it related to the conviction, the applicant relied on the sole ground that “Inconsistent witness statements not disclosed”.
It is apparent that he wishes to advance a complaint concerning the Crown’s compliance with its disclosure obligation. It may be observed that his application in that regard is not supported by anything other than assertion presently.
On 21 March 2024, he filed documents which clarified that he wished to appeal against his conviction only and that he abandoned any appeal against his sentence. Accordingly, it is necessary only to consider his application for an extension of time within which to advance a second appeal against his conviction.
In his written submissions in support of his application, he has made it clear that he wishes to advance a further ground of appeal, namely the ground which he had previously advanced and abandoned, that the verdicts were unreasonable or cannot be supported having regard to the evidence.
The applicant’s application must be disposed of without addressing whether either ground has any merits. As counsel for the respondent correctly contended, this Court has no jurisdiction to entertain a second appeal against conviction. It is well-established law that where an appeal against conviction has been dismissed on its merits, the right of appeal created by section 668D of the Criminal Code is exhausted. See Grierson v The King (1938) 60 CLR 431 at 435; followed in, for example, R v MAM [2005] QCA 323 and R v KAM (No 2) [2017] QCA 197.
For completeness, I note that the Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Act 2024 has been passed by Parliament but not yet proclaimed. When proclaimed, it will confer jurisdiction on this Court to consider second appeals, in particular statutorily constrained circumstances. Because it has not yet been proclaimed, it is not presently relevant to consider whether the applicant’s proposed appeal would fall within those circumstances.
The application must be dismissed. That disposes of the application. You should consider at some subsequent juncture whether the amendment that I have mentioned gives you any rights, but it does not presently help you.