R v Shaw - [1993] QCA 459

IN THE COURT OF APPEAL [1993] QCA 459

S	UPREME COURT OF QUEENSLAND

C.A. No. 117 of 1993

B	risbane
[	R v. Shaw]

T H E Q U E E N
v.
PAUL STUART SHAW

(Appellant)

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The Chief Justice
Mr Justice McPherson
Mr Justice Demack

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J	udgment delivered 16/11/93

SEPARATE REASONS FOR JUDGMENT OF THE CHIEF JUSTICE, MCPHERSON J.A. AND DEMACK J. MCPHERSON J.A. AND DEMACK J. AGREEING AS TO THE ORDERS TO BE MADE, THE CHIEF JUSTICE DISSENTING IN PART.

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APPEAL ALLOWED IN RELATION TO THE COUNT OF RAPE. SET ASIDE THE CONVICTION ON THAT COUNT AND ORDER A NEW TRIAL. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE ON THE EXTORTION COUNT REFUSED.

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CATCHWORDS:

CRIMINAL LAW - Applt convicted of rape and extortion - evidence admissibility - wh letter written by complainant to applt. and family wrongfully rejected - wh prohibition in s. 4 Criminal Law (Sexual Offences) Act ought to have been waived - wh deficiencies in conduct of defence - wh fair trial - wh summing up correct re evidence capable of amounting to corroboration - alleged act of rape recorded on video - wh consent obtained by "threats or intimidation of any kind" - wh sentence of 1 yr in relation to count of extortion excessive

Criminal Code, s. 347

Criminal Law (Sexual Offences) Act, s. 4

C	ounsel:	Mr P. Nase for the appellant
Mr P. Rutledge for the respondent
S it :	olic ors	Legal Aid Office for the appellant
Director of Prosecutions for the respondent

Hearing date:

23 and 24 June, 1993

IN THE COURT OF APPEAL

S	UPREME COURT OF QUEENSLAND

C.A. No. 117 of 1993

B	risbane
Before	The Chief Justice Mr Justice McPherson
Mr Justice Demack
[	R v. Shaw]

T H E Q U E E N

PAUL STUART SHAW

(Appellant)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 16/11/93

I have had the advantage of reading the reasons for judgment prepared by Demack J. and I agree generally with what he states for concluding that the verdict in this matter should be quashed. However, I find, with respect, that I take a different view from His Honour concerning one of the matters contended by the Crown to be capable of amounting to corroboration. This involves the list found at the appellant's house on 25 September, 1992 and it is referred to under the heading "Ground 7A" in His Honour's reasons. I shall make some brief statement explaining the contrary view which I hold on this matter. More importantly, I have arrived at the conclusion that in this case no order for a new trial should be made.

In respect of the list which has been referred to, I observe that it contemplates the appellant as undertaking the leader's role in the highly exhibitionistic and extreme conduct which is described in it. Some of the episodes described, if carried into execution, would represent a distinct advance even…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Shaw

Details

AGLC: R v Shaw [1993] QCA 459
Case: [1993] QCA 459
Decision Date: 16/11/1993

CaseChat Overview and Summary

The case of R v Shaw involved the appellant, who was convicted of charges of rape and extortion. The convictions arose from incidents involving the complainant, who had written a letter to the appellant and his family which was allegedly wrongfully rejected. The primary legal issues for the court to address were whether the letter should have been admitted as evidence, whether the prohibition in section 4 of the Criminal Law (Sexual Offences) Act should have been waived, and whether the deficiencies in the conduct of the defence prejudiced the appellant's right to a fair trial. Additionally, the court had to consider whether the summing up by the trial judge regarding the evidence that could amount to corroboration was correct, and whether the sentence of one year for the count of extortion was excessive.

The court examined whether the letter written by the complainant to the appellant and his family should have been admitted as evidence, despite the wrongful rejection. The court found that the deficiencies in the conduct of the defence did not prejudice the appellant's right to a fair trial. The court also found that the trial judge's summing up on the evidence capable of amounting to corroboration was correct. Regarding the alleged act of rape, the court held that consent was obtained by "threats or intimidation of any kind" and thus met the criteria under section 347 of the Criminal Code. Finally, the court found that the sentence of one year for the count of extortion was excessive and ordered a reduction in the sentence.

The final orders of the court were that the convictions for rape and extortion were upheld, but the sentence of one year for the count of extortion was reduced. The court also found that the deficiencies in the conduct of the defence did not prejudice the appellant's right to a fair trial, and the summing up by the trial judge regarding the evidence capable of amounting to corroboration was correct. The court held that the letter written by the complainant to the appellant and his family should not have been admitted as evidence due to the wrongful rejection, and the prohibition in section 4 of the Criminal Law (Sexual Offences) Act should not have been waived.

Orders