Marlow v The Queen - [1990] TASSC 7

Serial No 1/1990
List "A"

CITATION: Marlow v The Queen [1990] TASSC 7; (1990) Tas R 1; A1/1990

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 145/1988
DELIVERED ON:  18 January 1990
DELIVERED AT:  Hobart
HEARING DATE:  4 August 1989
JUDGMENT OF:  Green CJ, Underwood and Crawford JJ

Judgment Number: 1/1990
Number of paragraphs: 42

Serial No 1/1990
List "A"
File No CCA145/1988

MARLOW v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:

GREEN CJ

UNDERWOOD J

CRAWFORD J

4 August 1989

18 January 1990

ORDERS OF THE COURT

1.      Insofar as leave to appeal is required the application for leave to appeal is granted.
2.      Appeal allowed.
3.      Conviction and sentence quashed.
4.      That a new trial be had on the indictment.

Serial No 1/1990
List "A"
File No CCA 145/1988

MARLOW v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:

GREEN CJ

18 January 1990

I have read the reasons for judgment of Crawford J and I adopt his Honour's statement of the facts and the issues and his discussion of the authorities.

An essential ingredient of the crime with which the applicant was charged was that he knew or believed that the principal offender was committing or intended to commit the crime and that the applicant knew all the essential facts which made what the principal offender was doing or intended to do a crime. The applicant’s plea of guilty amounted to a formal admission of that ingredient. However statements which were made to the learned trial judge by the applicant through his counsel and in his evidence amounted to a denial that he had the requisite knowledge or belief.

Once that conflict had become apparent it was not open to the learned trial judge to continue the hearing without either indicating that he proposed disregarding those statements or raising the question of whether the plea of guilty should be maintained. As neither course was taken I was satisfied that a miscarriage of justice had occurred and that the Court should make the orders it made on 4 August 1989.

Serial No 1/1990
List "A"
File No CCA 145/1988

MARLOW v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:

UNDERWOOD J

18 January 1990

I have had the advantage of reading the reasons for judgment of Crawford J With respect to grounds 1 and 1A I agree with his Honour's reasons and there is nothing I wish to add. As it is unnecessary to consider ground 2 I do not wish to make any observation with respect to the evidence adduced on the hearing of the appeal.

Serial No: 1/1990
List "A"
File No CCA 1451988

MARLOW v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:

CRAWFORD J

18 January 1990

The applicant has appealed against his conviction based on his plea of guilty to one count of stealing. On 4 August 1489 this court allowed the appeal, set aside and quashed the conviction, and ordered that…

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 [1990] TASSC 7
Case: [1990] TASSC 7
Decision Date: 18 January 1990

CaseChat Overview and Summary

In the case of Marlow v The Queen, the applicant, Marlow, appealed against his conviction based on his plea of guilty to one count of stealing. The Court of Criminal Appeal allowed the appeal, quashed the conviction, and ordered a retrial on the indictment. The Crown alleged that Marlow drove his car containing Tony Tanner to the vicinity of a bank for the purpose of stealing money. Tanner forcibly took money from an employee of a supermarket and then ran to the waiting Marlow, who drove him away from the scene of the crime. It was also alleged that Marlow shared in the proceeds of the theft. Following the plea of guilty, Marlow's counsel stated that the possibility of committing the crime had been discussed by Tanner and Marlow, but they had not agreed to actually commit it. The learned judge proceeded to impose sentence without addressing the conflict between the applicant's plea of guilty and his version of the events. The Court held that the learned judge should have indicated that he proposed disregarding Marlow's statements or raised the question of whether the plea of guilty should be maintained, and because neither course was taken, a miscarriage of justice had occurred. The appeal was allowed, and a retrial was ordered.

Orders