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Marsh v The Queen

Marsh v The Queen

Case [2018] ACTCA 55 29 November 2018

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Marsh v The Queen

Citation:

[2018] ACTCA 55

Hearing Date:

13 August 2018

Decision Date:

29 November 2018

Before:

Murrell CJ, Mossop and Wigney JJ

Decision:

The appeal is allowed.

The appellant’s convictions are set aside and a retrial is ordered.

Catchwords:

APPEAL – APPEAL AGAINST CONVICTION – Whether evidence erroneously admitted at trial – Whether jury was misdirected – Whether substantial miscarriage of justice – Supreme Court Act 1933 (ACT) s 37O(2)(a)(iii) – Whether conviction should be set aside – Whether there should be a retrial

EVIDENCE – TENDENCY EVIDENCE – Historical child sexual offences – Whether evidence of uncharged acts were of significant probative value – R v Bauer [2018] HCA 40; 92 ALJR 846 – Whether tendency conduct directed at a class of persons is significantly probative of whether conduct against the complainant occurred – Whether probative value substantially outweighed any prejudicial effect

JURY DIRECTIONS – Court Procedures Rules 2006 (ACT) r 5531 – Where leave required for appeal – Where trial judge’s directions concerning lies told by the appellant not challenged at trial – Whether leave should be granted – Whether it was open to the jury to infer a consciousness of guilt from the appellant’s lies – Whether trial judge should have directed it was not open – Whether trial judge’s directions caused a miscarriage of justice

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 5531

Crimes Act 1900 (ACT) ss 79, 81

Evidence Act 2011 (ACT) ss 97, 101, 102, 106, 192A

Supreme Court Act 1933 (ACT) s 37O(2)(a)(iii)

Cases Cited:

Bauer v The Queen (No 2) [2017] VSCA 176

BBH v The Queen [2012] HCA 9; 245 CLR 499

Dao v The Queen [2011] NSWCCA 63; 81 NSWLR 568

Edwards v The Queen (1993) 178 CLR 193

Festa v The Queen [2001] HCA 72; 208 CLR 593

GBF v The Queen [2010] VSCA 135

HML v The Queen [2008] HCA 16; 235 CLR 334

Hughes v The Queen [2017] HCA 20; 92 ALJR 52

IMM v The Queen [2016] HCA 14; 257 CLR 300

McPhillamy v The Queen [2018] HCA 52

Miles v The Queen [2014] NSWCCA 72; 240 A Crim R 524

Munro v The Queen [2014] ACTCA 11

O’Keefe v The Queen [2009] NSWCCA 121

Papakosmas v The Queen [1999] HCA 37; 196 CLR 297

Perry v The Queen (1982) 150 CLR 580

R v Bauer [2018] HCA 40; 92 ALJR 846

R v Ciantar [2006] VSCA 263; 16 VR 26

R v Ellis [2003] NSWCCA 319; 58 NSWLR 700

R v Ford [2009] NSWCCA 306; 273 ALR 286

R v Lane [2011] NSWCCA 157; 221 A Crim R 309

R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130

R v Marsh [2017] ACTSC 55

Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481

Vojneski v The Queen [2016] ACTCA…

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 Marsh v The Queen

Details

AGLC: Marsh v The Queen [2018] ACTCA 55
Case: [2018] ACTCA 55
Decision Date: 29 November 2018

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Murrell CJ, Mossop and Wigney JJ, allowed an appeal against convictions for sexual misconduct. The appellant, a former teacher and coach, was convicted of offences against a complainant between 1979 and 1980. The appeal concerned the admissibility of certain tendency evidence relating to uncharged acts and the trial judge's directions to the jury regarding alleged lies told by the appellant.

The primary legal issues before the Court were whether the trial judge erred in admitting evidence of two uncharged acts (Incident 1 and Incident 3) as tendency evidence, arguing that this evidence lacked significant probative value or that its probative value did not substantially outweigh its prejudicial effect. A further issue was whether the trial judge erred in directing the jury that alleged lies told by the appellant were capable of demonstrating a consciousness of guilt, and whether leave should be granted to appeal on this ground.

The Court determined that the evidence of Incident 1, which involved the appellant frequently touching male students' genital areas as a "joke" in 1978, was properly admitted as tendency evidence. The Court reasoned that this conduct, though directed at students generally and presented as a joke, was significantly probative of a tendency to have a sexual interest in Year 6 boys and to act upon it, and that it was not remote in time from the alleged offences. The Court also found that the evidence of Incident 3, concerning the appellant's insistence on observing naked boys showering, was properly admitted as it was strongly suggestive of a sexual interest in the complainant, particularly when considered with Incident 1. The Court concluded that the trial judge's directions regarding the tendency evidence were appropriate and that any risk of misuse was eliminated by careful jury directions.

However, the Court allowed the appeal on the basis of the jury directions concerning the appellant's alleged lies. While leave was granted to argue this ground, the Court found that the trial judge's directions were erroneous and caused a substantial miscarriage of justice. Consequently, the appellant's convictions were set aside, and a retrial was ordered.

Orders