R v Marshall

[2000] QCA 420

COURT OF APPEAL
McMURDO P
PINCUS JA
MACKENZIE J
CA No 192 of 2000
THE QUEEN
v.
TODD DAVID MARSHALL Applicant
BRISBANE
..DATE 06/10/2000
JUDGMENT

THE PRESIDENT: This is an extension of time within which to appeal. The applicant was convicted of murder in the Supreme Court of Queensland and lodged an appeal against conviction which was dismissed by this Court on 21 November 1995.
On 23 March 1995 the applicant, without understanding the implications, elected to be treated as a remand prisoner pending appeal. Those implications were that the 243 days spent on remand pending appeal were not taken into account as time served under the sentence. See section 76(3)(b) Corrective Services Act 1988 and section 671 to Criminal Code.
This has the effect that the applicant will not get credit for time spent awaiting appeal without a special direction by the Court of Appeal. This situation was apparently not explained to the Court of Appeal at the time of the hearing of the appeal. The Court has in prior cases recognised its power to correct this situation. See Harrington (1996)
86 A.Crim.R. 550, R v. Jones 63 of 1996 and R v. Pilkington 364 of 1999 delivered 16 March 2000.
In Pilkington, this Court recommended that this position be remedied by legislative intervention and I would repeat that recommendation here. The interests of justice plainly warrant the direction sought in this case and undoubtedly the Court of Appeal on the hearing of the original appeal, had it been informed of this situation, would have made the direction sought.
I would grant leave to extend time to appeal and allow the appeal to the limited extent of adding to the sentence imposed the direction that a period of 243 days between
23 March 1995 and 21 November 1995 be counted as time served under the sentence.

PINCUS JA:I agree.
MACKENZIE J: I agree.
THE PRESIDENT: The order is as I have directed.
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CaseChat Overview and Summary

The case of R v Marshall was heard by the Queensland Court of Appeal, presided over by McMurdo P, Pincus JA, and MacKenzie J. The applicant, Todd David Marshall, sought an extension of time within which to appeal his conviction for murder. Marshall was initially convicted in the Supreme Court of Queensland and had his appeal against conviction dismissed by the Court of Appeal on 21 November 1995. The matter before the Court was whether to grant an extension of time for the appeal, considering that Marshall, without understanding the implications, elected to be treated as a remand prisoner pending appeal. This decision meant that the 243 days spent on remand were not taken into account as time served under the sentence. The Court had to determine if it had the power to rectify this situation and if the interests of justice warranted such action.

The legal issues in this case centred on whether the Court of Appeal had the authority to direct that the time spent on remand pending appeal should be counted as time served under the sentence, and if the applicant's lack of understanding of the implications of his election warranted a different outcome. The Court referenced previous cases such as Harrington, R v. Jones, and R v. Pilkington to establish its precedent in addressing similar situations. The Court recognised its power to correct such situations and considered the recommendation from the Pilkington case that legislative intervention would be the most appropriate remedy. However, in the interests of justice and considering that the Court of Appeal, had it been informed of the situation, would have made the same direction, the Court decided to grant the extension of time and allow the appeal to the limited extent of adding the direction for the 243 days to be counted as time served.

The Court of Appeal granted leave to extend time to appeal and allowed the appeal to the limited extent of adding to the sentence imposed the direction that a period of 243 days between 23 March 1995 and 21 November 1995 be counted as time served under the sentence. All judges concurred with the decision, and the order was as directed by the President.

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