Marston v The King

Case [2022] VSCA 253


SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0061

CHRISTOPHER MARSTON Applicant
v
THE KING Respondent

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JUDGES: PRIEST, T FORREST and TAYLOR JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 18 November 2022
DATE OF JUDGMENT: 18 November 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 253
JUDGMENT APPEALED FROM: DPP v Marston (Unreported, County Court of Victoria, 27 April 2022, Judge Carlin); DPP v Marston (Ruling) No 1 (Unreported, County Court of Victoria, 16 May 2022, Judge Carlin)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Applicant charged with intimate partner rape and assault offence – Trial judge refused to exclude evidence of admissions made to intimate partner and to child – Trial judge refused to certify that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case – Routine evidentiary ruling –  Trial judge’s refusal to certify and evidentiary ruling correct –  Application to review refused.

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Counsel

Applicant: Mr C Hooper
Respondent: Mr D Porceddu

Solicitors

Applicant: Ann Valos Criminal Law
Respondent: Mr L Winter, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
TAYLOR JA:

Introduction

  1. In a pending trial in the County Court in which the applicant is charged with rape (six charges – charges 1 to 6) and common assault (one charge – charge 7), his counsel sought the exclusion of evidence of four admissions allegedly made by the applicant upon which the prosecution relies.

  2. By a ruling given on 27 April 2022, the trial judge refused to exclude the evidence (‘the interlocutory decision’ or ‘the admissibility ruling’). 

  3. Subsequently, by a ruling dated 16 May 2022, the trial judge refused to certify under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’) that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case (‘the certification ruling’).

  4. By a notice filed 16 May 2022, the applicant seeks review of the certification ruling; and, if that application is granted, seeks leave to appeal against the interlocutory decision.

  5. Since they concern a routine evidentiary ruling, neither application was suitable for determination in this Court.  The application for review of the certification ruling will be refused.

Interlocutory appeals and routine evidentiary rulings

  1. It is an unhappy reality that some appear not to have paid attention to this Court’s repeated pronouncements that interlocutory appeals under the CPA are not designed to challenge routine evidentiary rulings. In the fervent hope that the message will eventually sink in, however, we venture to repeat what was said in Harris:[1]

    [1]Harris (a pseudonym) v The Queen [2017] VSCA 316, [56]–[59] (Maxwell P, Priest and Kyrou JJA). See also DPP v Pace (2015) 45 VR 276, 284 [26] (Priest and Beach JJA); Peterson (a pseudonym) v The Queen (2019) 57 VR 521, 523 [7]–[8] (Maxwell P and Taylor AJA); Cano (a pseudonym) v The Queen [2020] VSCA 308, [50] (Niall , T Forrest and Weinberg JJA).

    [56] It must be said again — and, it is to be hoped, in…

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Marston v The King [2022] VSCA 253
Case
[2022] VSCA 253
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CaseChat Overview and Summary

In the Supreme Court of Victoria, the applicant, Christopher Marston, has appealed against the trial judge's refusal to exclude evidence of admissions he made to his intimate partner and to their child, which the prosecution relies upon. The trial judge also refused to certify that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. The applicant sought review of the certification ruling and, if that application was granted, leave to appeal against the interlocutory decision. The court found that neither application was suitable for determination and refused the application for review. The court found that the trial judge's refusal to certify and the evidentiary ruling were correct, and the application to review was refused. The court emphasised that interlocutory appeals are not designed to challenge routine evidentiary rulings and that the regime for interlocutory appeals was not designed to cater for such appeals. The court found that the impugned admissions were reasonably capable of being viewed as admissions and that the evidence was not unfairly prejudicial. The court held that the exclusion of the evidence would not eliminate or substantially weaken the prosecution case and that the trial judge was correct to refuse to certify. The court found that the trial judge's reasoning was sound and that the applicant's challenge to the admissibility ruling and the certification ruling must fail. The court did not grant leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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