R. v. Marks

[2006] VSCA 42

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 344 of 2004

THE QUEEN

v.

MATTHEW JOSEPH MARKS

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 - 21 September 2005
DATE OF JUDGMENT:	21 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 42

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Criminal law – Murder – Application for leave to appeal against conviction – Applicant involved in purported criminal activity with undercover police operatives – “Scenario evidence” – Confessions made to undercover operatives – Whether confessions voluntary – Whether made to persons in authority – Whether properly admitted having regard to discretionary considerations – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Ms S.E. Pullen, S.C. and Dr S.B. McNicol	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C. with Mr L.C. Carter	Victoria Legal Aid

CALLAWAY, J.A.:

1. I agree with Vincent, J.A.

BUCHANAN, J.A.:

1. I also agree with Vincent, J.A.

VINCENT, J.A.:

1. The applicant was found guilty in the Trial Division of this Court of the murder of his great aunt, Margaret Mary O’Toole (born 13 July 1932), on 7 April 2002.[1] 

   [1]On 24 November 2004, the learned sentencing judge imposed a term of imprisonment of 23 years with a non-parole period of 18 years.

1. His application for leave to appeal against conviction is based on the following grounds: 

1.The learned trial judge erred by failing to exclude the confessional statements or admissions made to the covert police operative “G” on 27 November 2002. 

PARTICULARS

The learned trial judge erred by:-

(a)finding that the statements by the applicant were made voluntarily;

(b)finding that the statements by the applicant were not inherently unreliable;

(c)failing to exclude the statements by the applicant on the basis of unfairness and/or public policy;  and

(d)finding that the probative weight of the statements by the applicant outweighed any prejudicial effect.

2.The learned trial judge erred by failing to exclude the conversations between the applicant and the covert police operative “R” on 27 November 2002[2]. 

[2]A further ground (ground 3) was not pursued and need not be addressed.

The Background

1. The deceased lived alone at unit 15/55 Serrell Street, East Malvern, and was regarded as reclusive by her family.  She nevertheless maintained weekly telephone contact with her brother, Paul O’Neill, and they met for lunch about once every three months. The applicant was the only relative who visited her with any frequency and he appeared to have had a close relationship with her.  The deceased also had fortnightly telephone contact with her friend, Phyllis Schumann, usually on a Saturday. 

1. Dean William Vlek was a long standing friend of the applicant.  Throughout their friendship, Vlek was made aware that the deceased was relatively wealthy.   He told Vlek that he, the applicant, was one of the beneficiaries under her will.   

1. John Paraskevas was a partner and the Senior Fund Manager of Faraday and West Pty. Ltd., a mortgage broking firm.  In April 2001, the deceased, who was accompanied by…