R v Marshall

[2000] QCA 420

[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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