Shaw v The Queen

The case of *Shaw v The Queen* concerned an appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of Victoria. The appellant, Stanley Henry Shaw, had been convicted of murder in the Supreme Court of Victoria. The central issue on appeal was whether the trial judge had erred in allowing the Crown to reopen its case and adduce further evidence after the defence had closed its case.

The legal issues before the High Court were whether the trial judge had wrongly exercised his discretion in permitting the Crown to recall police witnesses to give further evidence after the close of the defence case, and whether this decision, along with the admission of other potentially inadmissible evidence, had resulted in a substantial miscarriage of justice. The Court was required to consider the principles governing the reopening of a Crown case in criminal trials, particularly in light of the dictum in *R. v. Frost* and the provisions of the Victorian Crimes Act 1928.

The High Court, in a joint judgment, held that the reopening of the Crown case was not justified and that the trial judge had wrongly exercised his discretion. The Court reasoned that while a judge has a discretionary power to allow the Crown to reopen its case, this should only occur in very exceptional circumstances. The principle is that the prosecution must present all its evidence before the defence is called upon. The Court found that the circumstances in this case, where the Crown sought to adduce evidence to counter an unexpected admission by the prisoner regarding the use of the word "throttled," did not meet the threshold of exceptionality required to depart from this principle. The Court also noted the presence of other inadmissible evidence, which, combined with the improper reopening of the Crown case, likely operated unfavourably to the prisoner.

Consequently, the High Court granted special leave to appeal, treated the appeal as instituted and heard instanter, allowed the appeal, set aside the refusal of leave to appeal by the Supreme Court, and in lieu thereof granted leave, set aside the conviction and sentence, and ordered a new trial. Justice Fullagar, in a separate judgment, agreed that special leave should be granted and that the Crown ought not to have been permitted to adduce further evidence after the close of the defence case, finding it highly probable that the trial judge exercised his discretion wrongly.