JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2-4, 8-9 JUNE; 25-26, 30-31 AUGUST; 1-3, 6, 9-10 SEPTEMBER 2004
DATE OF RULING:	14 SEPTEMBER 2004
DATE OF REASONS:	24 NOVEMBER 2004
CASE MAY BE CITED AS:	R v MARKS
MEDIUM NEUTRAL CITATION:	[2004] VSC 476	1^st Revision: 15/12/2004

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Criminal Law – Ruling – Murder – Evidence – Admissibility of admissions/confession to an undercover police officer – Basal voluntariness – Inducements – Reliability – Discretionary considerations – Refusal of application to exclude.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Williams	Kay Robertson, Solicitor for Public Prosecutions
For the Accused	Ms C. Randazzo SC with Ms S. Smith	Victoria Legal Aid

HIS HONOUR:

Introduction

The accused, Matthew Marks, was presented on a count of murdering Margaret Mary O'Toole at East Malvern on 7 April 2002.

On 14 September 2004, at the conclusion of a voir dire which occupied 15 sitting days, I ruled that confessional statements or admissions made to an undercover police officer "Gary Butcher" by the accused on 27 November 2002, were admissible in evidence.

I found that the statements made by the accused, which were in effect a confession of murder, were made voluntarily and were not inherently unreliable. I further found that these statements should not be excluded either on the grounds of unfairness or public policy and that their probative value outweighed any prejudicial effect. It was agreed by the parties, in the interests of expediting the trial, that I publish my reasons at a later date. This I now do.

The Factual Background

In order to place the impugned statements in context it is necessary to set out the factual history of this murder prosecution.

On 17 April 2002, the body of Mrs Margaret O'Toole was discovered by her brother Paul O'Neill at her unit in Serrell Street, East Malvern. She was slumped in an armchair in the loungeroom of the premises with a doona covering her head and most of her body. The loungeroom was in darkness but a television tuned to channel 9 was operating.

Although the security door of the unit was closed, the front wooden door was partially open and there was nothing to suggest any forced entry into the premises. The front bedroom of the unit had the appearance of having been ransacked with the mattress pulled off the bed and drawers and various items (including costume jewellery) scattered around the room.

On the basis of the post-mortem changes observed (including some mummification), it was clear that the deceased had been dead for some days. The actual date of death was alleged to be Sunday 7 April. This date was identified because no telephone calls to the unit were answered after 6 April; the mail delivered from Monday 8 April onwards had not been collected from the letterbox; the last newspaper in…

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 R v Marks

Details

AGLC: R v Marks [2004] VSC 476
Case: [2004] VSC 476
Decision Date: 24 November 2004

CaseChat Overview and Summary

In the case of R v Marks, the respondent was charged with murder. The respondent applied to exclude certain admissions made to an undercover police officer, arguing they were not voluntarily made. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the admissions made by the respondent to the undercover officer were voluntary and should therefore be admitted as evidence. The respondent contended that the admissions were not voluntary because they were influenced by inducements offered by the officer and therefore should be excluded under the discretionary power of the court.

The court considered whether the admissions were made voluntarily, examining the concept of 'basal voluntariness'. This requires an assessment of whether the accused's will was overborne at the time the admissions were made. The court also examined the nature and extent of any inducements offered by the officer, and whether these rendered the admissions unreliable. Additionally, the court took into account discretionary considerations such as the fairness of admitting the evidence and the potential impact on the integrity of the trial process. Ultimately, the court found that while the inducements may have played a role, they did not overbear the respondent's will to such an extent that the admissions could be deemed involuntary. The reliability of the admissions was also upheld, and the discretionary considerations did not warrant exclusion of the evidence.

The court ruled that the admissions were voluntary and should be admitted as evidence. The application to exclude the admissions was therefore refused. The respondent's argument that the admissions were not voluntarily made was not substantiated, and the court found no basis to exclude the evidence on the grounds of inducements, reliability, or discretionary considerations.

Orders