Marlow and Kelly v The Queen - [2001] TASSC 146

[2001] TASSC 146

CITATION: Marlow and Kelly v R [2001] TASSC 146

PARTIES:  MARLOW, Michael John
  KELLY, Shane Leslie
  v

R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 30/2001

CCA 32/2001

DELIVERED ON:  19 December 2001
DELIVERED AT:  Hobart
HEARING DATES:  29 - 31 October, 1 November 2001
JUDGMENT OF:  Underwood, Slicer and Evans JJ

CATCHWORDS:

Criminal Law - Evidence - Relevance - Generally - Whether evidence of accused's out of court statement constituted an admission.

Pollitt v R (1992) 174 CLR 558, applied.
Aust Dig Criminal Law [418]

Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Joinder - Joint or separate trial - Effect of embarrassment or prejudice - Evidence inadmissible against only one of two accused.

R v Harbach (1973) 6 SASR 427; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; Leaman v R 9/1987; R v Demirok [1976] VR 244, followed.
R v Webb (1994) 122 ALR 41, applied.
Aust Dig Criminal Law [726]

Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Corroboration - Warning required or advisable - Other cases - Meaning of "prison informer".

Pollitt v R (1992) 174 CLR 558, applied.
Aust Dig Criminal Law [585]

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Objections and points not raised in court below - Improper admission or rejection of evidence - General principles - Counsel made tactical decision at trial not to seek exclusion on basis of discretion - Ordinarily accused is bound by decisions of counsel in conduct of trial.

R v Birks (1990) 19 NSWLR 677; R v Ignjatic (1993) 68 A Crim R 333, followed.
Crampton v R (2000) 176 ALR 369, applied.
Listening Devices Act1991 (Tas), ss3(1), 5, 14(1).
Aust Dig Criminal Law [938]
Statutes - Acts of Parliament - Rules of construction - Words to be given literal and grammatical meaning.
Criminal Law (Detention and Interrogation) Act1995 (Tas), s8(2).
Aust Dig Statutes [17]

REPRESENTATION:

Counsel:
             Appellant Marlow:  W M Hodgman QC
             Appellant Kelly:  K B Procter SC
             Crown:  D G Coates and K J Rheinberger
Solicitors:
             Appellant Marlow:  Piggott Wood & Baker
             Appellant Kelly:  Wallace Wilkinson & Webster
             Crown:  Director of Public Prosecutions

Judgment Number: [2001] TASSC 146
Number of Paragraphs: 166

Serial No 146/2001
File Nos CCA 30/2001
32/2001

MICHAEL JOHN MARLOW and SHANE LESLIE KELLY v THE QUEEN

REASONS FOR JUDGMENT UNDERWOOD J

SLICER J
EVANS J
19 December 2001

Order of the Court

Appeal dismissed.

Serial No 146/2001
File Nos CCA 30/2001
32/2001

MICHAEL JOHN MARLOW and SHANE LESLIE KELLY v THE QUEEN

REASONS FOR JUDGMENT UNDERWOOD J

19 December 2001

Introduction

By an indictment dated 19 December 2000, the appellants Marlow and Kelly, and one Gary Williams, were jointly indicted for the murder of Tony Tanner on 23 November 1990. The trial commenced on 19 February 2001…

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.

Keep reading for free

Create a free CaseChat account to read Marlow and Kelly v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] TASSC 146
Decision Date: 19 December 2001

CaseChat Overview and Summary

Michael John Marlow and Shane Leslie Kelly appealed against their convictions and sentences for the murder of Tony Tanner. The Court of Criminal Appeal dismissed the appeals. The appellants challenged the admissibility of various pieces of evidence, including an overheard conversation, a conversation between one of the appellants and his wife, and statements made by one of the appellants after a video-recorded interview. The Court found that the evidence was properly admitted and relevant to the charges. The appellants also argued that the trial judge should have directed the jury that they could be discharged if they were unable to reach a unanimous verdict. The Court held that the trial judge had sufficiently directed the jury and that there was no miscarriage of justice. The Court further found that the trial judge had not erred in declining to give a "prison informer direction" regarding a witness's evidence. The Court concluded that the appeals should be dismissed.

Orders