R v Shaw
[1992] QCA 255
•17 July 1992
COURT OF APPEAL [1992] QCA 255
FITZGERALD P
DAVIES JA
McPHERSON JA
CA No 177 of 1992
THE QUEEN
v.
BRETT JOHN SHAW (Applicant)
BRISBANE
..DATE 17/07/92
JUDGMENT
170792
THE PRESIDENT: The application for leave to appeal against sentence is refused. The Court proposes to extend the time within which you may appeal, Mr Shaw, and it proposes to give directions for the conduct of that appeal, having regard to the exceptional circumstances of this case. All evidence proposed to be relied upon by you in support of your appeal which can be reduced to affidavit must be placed in affidavit form and filed and served upon the Director of Prosecutions within 28 days from today. Do you understand that?
APPLICANT: I think so, Your Honour.
THE PRESIDENT: You have some affidavit - you have some documents here which are really not proper affidavits, although the Court has received them today, and you have indicated, as I understand it, that you wish to place additional evidence before the Court which hears your appeal. Is that correct?
APPLICANT: Yes, Your Honour.
THE PRESIDENT: So, all affidavits must be filed and served on the Director of Prosecutions within 28 days so that there is by then a full understanding of the evidence which you rely upon in support of your appeal, because this is exceptional, as you are aware, since your conviction is based upon a plea of guilty. It does not follow that your appeal will succeed, or that you will be granted a re-trial. That will be for the Court which hears your appeal to determine. Do you understand?
APPLICANT: Yes, Your Honour.
THE PRESIDENT: All affidavits in response, to be filed and served within a further 14 days after Mr Shaw’s affidavits. Mr Byrne?
MR BYRNE: Yes.
THE PRESIDENT: And within a further 14 days each party is to notify the other of all witnesses whom it is required to have called to give further evidence, or to be cross-examined. Do you understand that, Mr Shaw?
APPLICANT: Yes, Your Honour.
THE PRESIDENT: So that it is quite possible that after your affidavits are placed - are filed and served - that the Director of Prosecutions will file affidavits in opposition and serve them on you, and he may also subsequently notify you that he requires the witnesses who have given affidavits on your behalf to attend to be cross-examined.
APPLICANT: Yes, Your Honour.
THE PRESIDENT: And similarly, if you wish, you may notify the Director of Prosecutions within 14 days after you receive his affidavits that you require some or all of his witnesses to attend to be cross-examined by you, or if you have applied for legal aid and are granted it, by the Legal Aid Office, or by any other legal representative whom you have retained. Do you understand?
APPLICANT: Yes, Your Honour.
THE PRESIDENT: Very well. Then the application for leave to - for an extension of time in which to appeal is extended to the date upon which the Notice of Appeal was filed, and directions are given as I have indicated. Nothing further, Mr Shaw?
APPLICANT: Yes, Your Honour. Two things. For the affidavits, would it be possible for me, through the gaol, to arrange a legal visit, because I’ve been in touch with the Legal Aid Office and they point blankly refuse to represent me because of the conflict of interest between Mr McKenzie and myself. So therefore - and I cannot afford private representation, so I will be doing all this by myself - would it be possible for me to get legal visits through the gaol if you could see your way clear to granting that through the courts?
THE PRESIDENT: And what’s the other matter, Mr Shaw?
APPLICANT: And would it be possible for the courts to order that I get all the court transcripts, police files, etc?
THE PRESIDENT: Mr Shaw, the court does not propose to make orders in those terms, but Mr Byrne, it is obviously in the interests of the Court and the community, as well as Mr Shaw, that material which is available should be provided to him and that this case should be as efficiently conducted as is reasonably possible.
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