Marsh v The Queen

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.