Marlow v The Queen

[2002] TASSC 37

[2002] TASSC 37

CITATION:              Marlow v R [2002] TASSC 37

PARTIES:  MARLOW, Michael John
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 115/1999
DELIVERED ON:  7 June 2002
DELIVERED AT:  Hobart
HEARING DATES:  7 June 2002
JUDGMENT OF:  Underwood, Crawford and Evans JJ

[Edited edition of reasons for judgment delivered orally]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  M A Stoddart
Solicitors:
           Appellant:  In person
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2002] TASSC 37
Number of Paragraphs:  6

Serial No 37/2002
File No CCA 115/1999

MICHAEL JOHN MARLOW v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
(DELIVERED ORALLY)  UNDERWOOD J

CRAWFORD J
EVANS J
7 June 2002

Order of the Court

Appeal dismissed.

Serial No 27/2002
File No CCA 115/1999

MICHAEL JOHN MARLOW v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
(DELIVERED ORALLY)  UNDERWOOD J

CRAWFORD J
EVANS J
7 June 2002

1. The appellant was indicted on two counts of aggravated burglary, five counts of assault and seven counts of rape.  All crimes were allegedly committed on the nights of 2 and 3 December 1996 at the complainant's home at Rossarden.  The appellant was tried on 5 and 6 October 1999 and convicted of all counts.  He was sentenced to eight years' imprisonment.  The appellant has now appealed against those convictions. 

1. Ground 1 of the notice of appeal asserts that the learned trial judge erred in law in his summing up to the jury by not warning them of the danger of convicting on hearsay evidence.  The hearsay evidence referred to in ground 1 is more accurately described as evidence of recent complaint.  The direction given the jury by the learned trial judge with respect to the evidence of the complainant that she made the complaint to her friends, Miss Bryan and Miss Stevens, is set out in the appeal book at page 213.  That direction is in accordance with the law, namely that the only use the jury could make of that evidence was on the issue of the complainant's credibility.  No complaint about this direction was made by counsel for the appellant at trial, despite a general invitation to make submissions with respect to the summing up, nor could one have been properly made.  Ground 1 is not made out.

1. Ground 2 alleges that the learned trial judge erred in law by allowing photographic evidence from previous police investigations to be used by the Crown.  This ground concerns five aerial photographs which the evidence showed were taken on 17 December 1996, a little more than a fortnight after the commission of these alleged crimes.  The photographs depicted the township of Rossarden, where it was alleged the crimes were committed.  The appellant's complaint is that the photographs were prejudicial to his defence and caused a miscarriage of justice.  These photographs were not taken in connection with any investigation into these crimes, for no complaint about them was made to the police until two years after the occurrence of the alleged events.  That the taking of the photographs was unconnected with these crimes was made plain to the jury.  With the consent of the appellant's counsel, the jury was told that the photographs were taken with respect to a completely different matter and before any police investigation into the crimes charged by the indictment.  In these circumstances, it is the Court's view that no possible prejudice could have arisen from the admission into evidence of these five photographs.

1. Ground 3 was not pursued by the appellant.

1. Ground 4 alleges that the verdict was tainted and that there was a miscarriage of justice by reason of prejudicial media reports published prior to the trial in Tasmanian newspapers, and on the television and radio.  This ground relates to publicity given to a trial of the appellant on charges of rape of a woman in Longford.  This trial, and the associated publicity, occurred in June 1999, 3½ months before the trial which is the subject of this appeal.  In support of this ground, the appeal book contains photostat copies of newspaper publications of the Longford trial.  There was no evidence of any other publications.  Five of the newspaper publications are from the Examiner newspaper, which circulates in the Launceston area, one is from the Advocate, which circulates in the north-west of the State, and one is from the southern newspaper, the Mercury.  The trial which is the subject of this appeal was moved from Launceston to Hobart in order to avoid the risk of any prejudice which might arise from the extensive publicity given the Longford trial by the Launceston newspaper.  The appellant's counsel at trial did not ask the learned trial judge for any adjournment to avoid prejudice from this material.  Three and a half months elapsed between the publicity in the Mercury newspaper and the trial which has given rise to this appeal.  That publicity did not include any photograph and comprised a short factual summary account of the commission of the crime, the appellant's conviction and the sentence imposed on him.  It was published on page 11 of the Mercury newspaper.  In these circumstances, the appellant has failed to persuade this Court that any newspaper publicity concerning the Longford trial prejudiced his fair trial in Hobart with respect to the Rossarden allegations.

1. Ground 5 alleges recent availability of vital new defence witnesses which makes the possibility of a miscarriage of justice great.  In support of this ground, the appellant read two statutory declarations.  Both statutory declarations refer to events which occurred on 3 November 1996, about a month before the commission of the alleged crimes.  The appellant submitted that the statutory declarations are evidence that the complainant and the appellant were on good terms and that this is inconsistent with the allegations by the complainant of assaults and rapes.  The short answer to this ground is that the material is irrelevant to the events charged by the indictment for they depose to events that occurred a month before the alleged crimes were committed.  The appellant submitted to this Court that the deponents had got the date wrong.  However, there is no material to suggest that that is so.  In the case of both deponents, they originally deposed to these events as having occurred on 3 September 1996, but altered that date to refer to the same events occurring on 3 November 1996.  In these circumstances, it is unnecessary to consider the restrictions that apply to the admission of fresh evidence upon the hearing of an appeal in order to support a miscarriage of justice ground.  The appeal against conviction is dismissed.