R v Banhelyi [2011] QCA 268

Court of Appeal (Qld)|2011-10-05|Before: Keane J, McMeekin J, Chesterman JA, White JA, Meekin J

The application to call fresh evidence is made against a background of a contention that the prosecution were in possession of a statement of the eyewitness but his existence was not revealed to the applicant.

The Crown contend that the application to lead fresh evidence should be left to any appeal, by which time a record book will be available to put the evidence in context and the prosecution in possession of instructions as to whether a statement of the witness was indeed in the possession of the police. That seems appropriate. Given the obligation on the prosecution imposed by section 590AB(2)(b) of the Criminal Code to make disclosure of any such eyewitness evidence, the applicant would have a strong case that he is yet to have a trial according to law if his claim is made out. The Queen v Hau [2009] QCA 167 at paragraph 13 per Justice Keane. It is important that the prosecution's position be made clear.

The explanations for the delay that are offered include the shock and disorientation of incarceration, a lack of knowledge as to his rights, combined with a lack of advised information from the trial lawyers, and impecuniosity requiring an application for legal aid, which application was made reasonably promptly.

In all the circumstances, it is appropriate the application to extend in which to appeal and apply for leave to appeal the sentence be granted.

(1) That an extension of time to file an appeal against conviction be granted.

(2) That an extension of time to apply for leave to appeal the sentence be granted.

(3) That the applicant have leave to amend the notice of appeal and application for leave to appeal filed on 15 June 2011, such amendments to be filed within 28 days after receipt of the Appeal Book. The extension of time should be until 15 June 2011.

CHESTERMAN JA: I agree that those are the orders the Court should make and I agree also with Justice McMeekin's reasons.

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