SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Marshall v The King
Citation:
[2023] ACTCA 11
Hearing Date:
10 November 2022
DecisionDate:
24 February 2023
Before:
Mossop, Loukas-Karlsson, and Abraham JJ
Decision:
(1) The appeal is dismissed.
Catchwords:
APPEAL – CRIMINAL LAW – Appeal against conviction – whether verdict unreasonable – whether trial judge erred in admitting identification evidence – whether trial judge erred in admitting photograph of person known to police – whether trial judge erred in admitting evidence of consciousness of guilt – whether miscarriage of justice resulted from calling three particular witnesses – appeal dismissed
[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.
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Marshall v The King [2023] ACTCA 11
Case
[2023] ACTCA 11
Decision Date
CaseChat Overview and Summary
The appellant, Jackson Nathanial Jai Marshall, appealed his conviction for aggravated robbery, which was returned by a jury in the Supreme Court of the Australian Capital Territory. The Crown case alleged that the appellant, along with at least one other person, approached the victim, threatened him with a knife, and stole his belongings, including a vehicle. The central issue at trial was the identification of the appellant as the assailant, as there was no dispute that a robbery had occurred.
The appellant raised five grounds of appeal. These included claims that the jury's verdict was unreasonable, that the trial judge erred in admitting identification evidence derived from a Facebook photograph, that the judge wrongly admitted a photograph of an individual known as "Sugi" for comparison, that evidence of consciousness of guilt from the deletion of online messages was improperly admitted, and that a miscarriage of justice occurred due to the calling of three specific witnesses. The appeal court noted that there was no challenge to the correctness or adequacy of the jury directions.
The Court of Appeal dismissed the appeal. It reasoned that the Crown's case was circumstantial, relying on multiple strands of evidence. These included the appellant's presence in the vicinity of the robbery, descriptions of the offender consistent with the appellant's appearance, the victim's identification of the appellant's Facebook photograph, witness sightings of the stolen vehicle, forensic evidence linking the appellant to the vehicle, and evidence of association with other individuals linked to the vehicles. The court found that the trial judge had not erred in admitting the challenged evidence and that the cumulative effect of the evidence was sufficient to support the jury's verdict, thus no miscarriage of justice had occurred.