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Martin v the Queen

Martin v the Queen

Case [2010] VSCA 153 24 June 2010

Admissibility of Evidence

Contempt of Court

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 984 of 2008

SARAH MARTIN
	v
THE QUEEN

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JUDGES	BUCHANAN, ASHLEY and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 April 2010
DATE OF JUDGMENT	24 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 153
JUDGMENT APPEALED FROM	R v Martin (Unreported, County Court of Victoria, Judge Wodak, 12 December 2008)

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Criminal Law – Conviction – Whether judge erred in ruling that there was no evidence to support defence of duress – Whether cross-examination of applicant to suggest that she was saying other witnesses had lied was impermissible – Internet print outs of the meaning ‘beyond reasonable doubt’ found in jury room after jury discharged – Whether search in defiance of judge’s directions – Whether breach of s 78A, Juries Act 2000 – Whether assumed irregularities required that there be a new trial – Application for leave to appeal refused.

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Appearances:

Counsel

Solicitors

For the Applicant

Mr T Kassimatis

Balmer and Associates Pty

For the Crown

Mr J D McArdle with

Ms D I Piekusis

Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Ashley JA.

ASHLEY JA:

On 9 December 2008 a jury in the County Court found the applicant guilty of one count of armed robbery (count 1) and one count of possession of a drug of dependence (count 2). On 12 December, she was sentenced to four years’ imprisonment,[1] with a non parole period of two years’ imprisonment.
[1]This was the total effective sentence.

Now the applicant seeks leave to appeal against conviction.[2] The grounds of appeal are as follows:
[2]On 29 April 2010 the court granted the applicant leave to abandon an application for leave to appeal against sentence.

1.The trial miscarried by reason of the jury’s, in breach of their duty and the directions given them by the learned trial Judge, unilateral search and use of the internet for exposition of the burden and criminal standard of proof.

2. The trial miscarried by reason of:
(a)the Prosecutor’s cross-examination of the applicant on whether the accomplice REVERA, the complainant WILSON and investigating POLICE had lied either to the applicant or in their evidence; and
(b)the trial Judge’s having failed properly or at all to direct the jury on the law in the light of that impermissible line of cross-examination;

3.The learned trial Judge erred by concluding and ruling that the defence on which the applicant had at all relevant times relied – duress – was not open and thus would not be left for consideration by the jury.
4.The trial miscarried by reason of the trial Judge’s having invited the Prosecutor to seek leave to re-open the Crown case, and by the Judge’s having permitted the Prosecutor so to do, for the purpose solely of adducing evidence from a member of police, immaterial to the issues joined by the parties at trial, but which contradicted evidence given by the applicant.
5.The trial miscarried as a consequence of the cumulation of some…

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 Martin v the Queen

Details

AGLC: Martin v the Queen [2010] VSCA 153
Case: [2010] VSCA 153
Decision Date: 24 June 2010

CaseChat Overview and Summary

Martin v the Queen was a case heard by the court where the applicant sought to appeal against his conviction. The applicant was convicted of various offences, including the supply of drugs, and had argued that he acted under duress. The jury was discharged, and the applicant sought a new trial based on several grounds, including an alleged error in the judge's ruling on the defence of duress and the cross-examination of the applicant. The applicant also claimed that there was an improper search of the jury room, in defiance of the judge’s directions, and that printouts found in the jury room after the jury was discharged breached s 78A of the Juries Act 2000.

The court was required to determine whether the judge erred in ruling that there was no evidence to support the defence of duress. Additionally, the court had to consider whether the cross-examination of the applicant was permissible in suggesting that he was accusing other witnesses of lying. The court also had to decide if the search of the jury room was in defiance of the judge’s directions and if it breached the provisions of s 78A of the Juries Act 2000. Finally, the court had to assess whether these alleged irregularities warranted a new trial.

The court found that there was no error in the judge's ruling on the defence of duress, as the evidence did not support it. The court held that the cross-examination did not improperly suggest that the applicant was accusing other witnesses of lying. Regarding the search of the jury room, the court concluded that there was no evidence of a breach of the judge’s directions or of s 78A of the Juries Act 2000. The court determined that the alleged irregularities did not necessitate a new trial. Consequently, the application for leave to appeal was refused.

No further orders were made by the court.

Orders