R v Shaw

[1992] QCA 373

COURT OF APPEAL [1992] QCA 373

PINCUS JA
MOYNIHAN JA

WHITE J

CA No 157 of 1992

THE QUEEN

v.

BRETT JOHN SHAW	Appellant
BRISBANE ..DATE 29/09/92
JUDGMENT

290992
PINCUS JA: This is an appeal against the conviction of Mr Shaw who pleaded guilty on
29 January 1992 to a number of charges. They were maintaining a sexual relationship with a
child under 16 years with a circumstance of aggravation, as well as 4 counts of indecent dealing
with the child under 12 years and 2 counts of unlawful carnal knowledge, all of which also were
charged with circumstances of aggravation. Lastly, there were 3 counts of sodomy with
circumstances of aggravation. The appeal is out of time but an extension of time was granted by
this Court on 17 July last, on which date the Court also made an order refusing an application for
leave to appeal against sentence.

There is an affidavit by the appellant in which he, as he says, goes through each of the charges separately and states his case of defence. The material is lengthy and difficult to summarise but it is enough to say for present purposes that, with some reservations, the appellant disputes in the affidavit what was alleged against him. This would not, of course, in itself be sufficient to justify setting aside convictions after pleas of guilty. The affidavit also seems to say that Mr Shaw’s legal representatives failed to pursue the matter vigorously enough on his behalf. It says that he did not want the children involved put through the trauma of a court case and he implies that for this reason he decided to plead guilty. The affidavit also suggests that there might have been some difficulty from the appellant’s point of view in remembering whether or not he committed the offence as alleged. In argument today, the appellant, although he did in fact deny committing the offences, equivocated somewhat and still seemed to have difficulty in remembering.

In paragraph 18 of the affidavit, it is said that Kylie Wedlock, with whom the appellant is alleged to have committed offences, confessed to her mother that she had lied to get the appellant into trouble and that Kylie Wedlock had not made an affidavit. This was objected to by Mr Byrne on behalf of the Crown and it appears to us inadmissible. There is no independent evidence that the appellant was wrongly convicted and one has his word for it only, with the reservation that this morning affidavits of Scott Andrew Simpson and Leila Faulkner gave some support, on peripheral matters. On the other hand, there is substantial evidence supporting the view that the convictions were proper. In particular we have transcripts of taped interviews with the appellant which very plainly contradict his present assertions. Examples of the sort of material to be found in them need not be set out at length, but one which I would take the liberty of reading is at page 15. In conversation with a police officer, one Wilkinson, one finds this: "The appellant, ‘I never realised it had gone as far as it had.’ Wilkinson, ‘Well, why, did you realise it had gone as far as it had?’ The appellant, ‘Because I always tried to be very careful so it didn’t penetrate.’ Wilkinson, ‘Why did you try to be very careful to make sure you didn’t penetrate?’ The appellant, ‘Because it’s not what I was trying to, I was just trying to explain to her and show her, it’s something special she’d give to a husband.’ Wilkinson, ‘You were showing her something special that she should give to a husband. Why would you want to show her something special that she would give to a husband?’ The appellant, ‘I’m obligated to do it.’ Wilkinson, ‘Why did you feel obligated?’ ‘I was supposed to be her father, her, her, her guardian, the bloke who gives her all the advice, do the right thing.’"

The point to be noticed about this passage is that one does not have the appellant simply meekly assenting to what the police put to him, but making positive explanations. Similarly at page 27 there is this passage: "Wilkinson, ‘And you’d touch her on the private?’ The appellant, ‘Occasionally, yeah, not very often’" - and there’s an unintelligible part, "’because it used to make Kylie feel uncomfortable.’ Wilkinson, ‘What she’d tell you that?’ The appellant, ‘Yes, not always, sometimes she’d sort of slap me hand and say, don’t, and sometimes she’" - another unintelligible passage - "’say, don’t do that, ah I would stop but it wasn’t so, I, I didn’t go hear her every morning and did that.’".

Further examples are to be found at page 40 and following pages, where the police put to the appellant at length allegations said to have been made in a statement of Kylie Wedlock. The appellant was given full opportunity to respond. His responses were plainly incriminating, although on some occasions he did not entirely agree with the details of what was, according to the police, stated by Kylie Wedlock.

It is an unusual course to allow an appeal against conviction after a plea of guilty. Some of the circumstances in which this may occur were discussed by the Court in The Queen v. Dittmer, decided on 23 April last. They include a lack of appreciation of the nature of the charge, a lack of intention to admit guilt, and an allegation that the plea was induced by fraud and perhaps other circumstances. It is unnecessary in the present case to determine the limits of this jurisdiction and, in particular, to determine whether there are any circumstances other than the three which I have mentioned which enliven it. Here, one simply has in essence a denial of the allegations which were made and admitted before the District Court to be correct. This is plainly not enough in the circumstances of the present case and the appeal against conviction must, in my opinion, be dismissed.

MOYNIHAN J: I agree.

WHITE J: I agree.

PINCUS JA: The order of the Court is: appeal against conviction dismissed.

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