Marlow v The Queen - [2000] TASSC 103

[2000] TASSC 103

CITATION: Marlow v R [2000] TASSC 103

PARTIES:  MARLOW, Michael John
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 50/1999
DELIVERED ON:  27 July 2000
DELIVERED AT:  Hobart
HEARING DATE:  8 March 2000
JUDGMENT OF:  Cox CJ, Underwood J and Evans J

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Objection and points not raised in court below - Misdirection and non-direction - Particular cases - Absence of direction as to permissible use of evidence of complainant's fear of accused's rumoured violent character.

Donnini v R (1972) 128 CLR 114; BRS v R (1997) 191 CLR 275; Gipp v R (1998) 194 CLR 106, referred to.
Aust Dig Criminal Law [937]

REPRESENTATION:

Counsel:
             Appellant:  D G Grey
             Respondent:  C J Rheinberger
Solicitors:
             Appellant:  Zeeman Kable & Page
             Respondent:  Director of Public Prosecutions

Judgment Number: [2000] TASSC 103
Number of paragraphs: 33

Serial No 103/2000
File No CCA 50/1999

MICHAEL JOHN MARLOW v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ (dissenting)
UNDERWOOD J
EVANS J
27 July 2000

Orders of the Court:

Appeal dismissed.

Serial No 103/2000
File No CCA 50/1999

MICHAEL JOHN MARLOW v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
27 July 2000

The facts upon which this appeal is based are set out in the Reasons for Judgment prepared by Underwood J and I gratefully adopt his statement of them.

Clearly the reference made by the complainant to what she said she had heard about the appellant was relevant to the challenged credibility of the reasons for her decision in December 1998 to withdraw the charges. Counsel for the appellant concedes that this is so and that it was accordingly admissible. His contention is, however, that the slur upon his client's character implicit in the complainant's evidence required a direction from the learned trial judge to ensure that the jury did not make impermissible use of that evidence in determining guilt. Whether it amounted to a statement of rumour or not, the complainant's evidence "I had heard that he was not a very nice person in that sort of area and that he already would have a friend of his to basically come through with a rifle and kill us all basically" (or the possible variations which a study of the audiotape seems to permit) could have left the jury in no doubt that the complainant was asserting that she had heard that the appellant was a violent man who had arranged, or who might well be able to arrange, for a violent associate to murder her and her children should she persist with her claim that he had raped her, and in December 1998, she had sufficient faith in the accuracy of those assertions to attempt to withdraw her complaint. As such, it amounted, in my view, to a clear suggestion that those assertions might…

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 Marlow v The Queen

Details

AGLC: Marlow v The Queen [2000] TASSC 103
Case: [2000] TASSC 103
Decision Date: 27 July 2000

CaseChat Overview and Summary

Michael John Marlow appealed against his conviction on charges of attempted rape, assault, and rape, which occurred on 26 November 1998. The primary dispute was whether the complainant had consented to sexual activity, and if not, whether the appellant had assaulted her. The Court of Criminal Appeal examined whether the trial judge's failure to direct the jury on the limited use of certain evidence deprived the appellant of a fair trial. The complainant testified that she had heard rumors about the appellant's violent tendencies, which she cited as the reason for her fear when she decided to withdraw her complaint. The appellant argued that this evidence suggested a propensity for violence, which should have warranted a specific jury direction to prevent improper use.

The Court considered the legal principle that where evidence of prior bad conduct is admissible for a limited purpose, it is the trial judge's duty to direct the jury on its proper use to avoid miscarriages of justice. This principle was underscored by several High Court cases, including Donnini v R and BRS v R, which emphasized the necessity of such directions to prevent juries from using such evidence to infer a propensity for criminal behavior. However, the Court of Criminal Appeal concluded that in this case, the risk of the jury improperly using the complainant's evidence was minimal. The focus of the trial was on the issue of consent and the complainant's credibility, rather than the appellant's character. The trial judge's summation to the jury indirectly referenced the complainant's fear but did not emphasize it as a basis for assessing the appellant's character. Given the context and the manner in which the trial was conducted, the Court found no substantial likelihood that the jury would have improperly used the contested evidence. Therefore, the appeal was dismissed, and the convictions were upheld.

Orders