R v Shaw Summary | CaseChat AU

COURT OF APPEAL [1992] QCA 255

FITZGERALD P
DAVIES JA
McPHERSON JA

CA No 177 of 1992

THE QUEEN

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.
- - - - - - -

In the case of R v Shaw, the applicant, Brett John Shaw, sought leave to appeal against his sentence and an extension of time to file the notice of appeal. Shaw, who had pleaded guilty to certain charges, was appealing on the basis of exceptional circumstances. The case was heard by the Court of Appeal, which comprised of Fitzgerald P, Davies JA, and McPherson JA. The appeal related to the sentence imposed on Shaw following his conviction and the procedural fairness of the original trial.

The legal issues before the court were whether the exceptional circumstances justified an extension of the time to appeal and whether the court should grant leave to appeal against the sentence. Additionally, Shaw requested the court to order the provision of legal visits and access to court transcripts and police files to assist in his appeal.

The Court of Appeal refused the application for leave to appeal against the sentence but agreed to extend the time within which Shaw could appeal. The court acknowledged the exceptional nature of the case due to Shaw's guilty plea and provided detailed directions to ensure the appeal was efficiently conducted. Shaw was required to file all evidence in affidavit form and serve it on the Director of Prosecutions within 28 days, with responsive affidavits to be filed within a further 14 days. Both parties were to notify each other of witnesses to be called or cross-examined within 14 days of receiving the respective affidavits. Although the court declined Shaw's requests for legal visits and access to court documents, it emphasised the importance of providing available material to Shaw for the efficient conduct of the appeal.

The final orders of the court included the extension of time for filing the notice of appeal and the directions for the conduct of the appeal as outlined.

R v Shaw

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established