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R v Marsh

R v Marsh

Case [2005] NSWCCA 331 20 September 2005

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CITATION:
R v Marsh [2005] NSWCCA 331

HEARING DATE(S): 14 July 2005

JUDGMENT DATE:

20 September 2005

JUDGMENT OF:
Studdert J at 1; Kirby J at 43; Howie J at 44

DECISION:
Appeal dismissed.

CATCHWORDS:
Criminal law - admissibility of evidence - armed robbery of bank - images of robber captured by bank's security cameras - photo developed published in newspaper - evidence of recognition by appellant's sister - whether admissible.

LEGISLATION CITED:

Evidence Act, ss 76, 79, 137

CASES CITED:
R v Goodall (1982) VR 33
R v Palmer (1981) 1 NSWLR 209
R v Smith (1987) VR 907
R v Smith (1998) 47 NSWLR 419
Reg v Browne & Angus (1951) 99 CCC 141
Reg v Griffith (1995) 79 A Crim R 725
R v Kirby [2000] NSWCCA 330
Reg v Leaney & Rawlinson (1988) 38 CCC (3d) 263
R v Leung (1999) 47 NSWLR 405
Rix v DPP (unreported, NSWCCA, 29 June 1989)
Smith v The Queen (2001) 206 CLR 650

PARTIES:
Regina v Robert William Marsh

FILE NUMBER(S):
CCA 2005/589

COUNSEL:
G. Rowling (Crown)
S. Corish (Appellant)

SOLICITORS:
S. Kavanagh (Crown)
S.E. O'Connor (Appellant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/31/0276

LOWER COURT JUDICIAL OFFICER:
Coolahan DCJ

2005/589

STUDDERT J
KIRBY J
HOWIE J
Tuesday 20 September 2005

REGINA v ROBERT WILLIAM MARSH

Judgment

1 STUDDERT J: The appellant, Robert William Marsh, appeals against his conviction for armed robbery.

2 The appellant stood trial in the District Court at Newcastle charged with armed robbery at a bank in New Lambton on 21 June 2002. The jury found him guilty, and he was sentenced to imprisonment for six years, with a non parole period of four years.

3 There is no application for leave to appeal against sentence and the appeal concerns the decision of the trial judge to admit certain evidence. The two grounds of appeal are these:

“(i) the learned trial judge erred in admitting the evidence of identification by Kerrie-Ann Wood;

4 The critical factual issue for the jury at the trial was the identification of the offender, of whom photographs were taken by the bank’s security cameras whilst he was at the counter in the bank, as he left the counter, and as he was passing through the front doors of the bank when leaving it. Those photos were admitted into evidence, and hence the second ground of appeal. After the photos were developed, a police officer sent one of them to the media, and on 27 June 2002 the Newcastle Herald published that photo with an accompanying article. The appellant’s sister saw the published photo and the article, claimed to recognise the appellant and notified the police.

5 The trial judge, in proceedings on the voir dire, ruled the evidence by the appellant’s sister to be admissible.

6 Four witnesses to the robbery participated in photo identification parades. None of them selected the appellant’s photo as…

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 Marsh

Details

AGLC: R v Marsh [2005] NSWCCA 331
Case: [2005] NSWCCA 331
Decision Date: 20 September 2005

CaseChat Overview and Summary

The case of R v Marsh involved the appellant, who was charged with armed robbery of a bank. The prosecution sought to admit several pieces of evidence, including images of the robber captured by the bank's security cameras, which had been published in a newspaper, and evidence of recognition by the appellant's sister. The case was heard in a higher court in Australia.

The primary legal issue before the court was whether the evidence of recognition by the appellant's sister, who claimed to have recognised her brother in the published photo, was admissible. The appellant argued that this evidence was inadmissible hearsay and could not be used to identify him as the robber. The prosecution contended that the evidence was admissible as it was not being used for the truth of the matter asserted but rather to establish the appellant's identity.

The court considered the admissibility of the sister's evidence under the hearsay rule and exceptions. The court held that the evidence was not admissible as it was hearsay and did not fall within any of the exceptions. The court found that the sister's evidence was not merely a statement of recognition but an assertion of fact that the appellant was the robber, which was inadmissible. The court also found that the published photo in the newspaper was not admissible as it had been obtained and published without the consent of the bank or the appellant. The court concluded that the prosecution had not established a proper foundation for the admission of the photo.

The court quashed the conviction and ordered a retrial, excluding the evidence of the sister's recognition and the published photo. The court held that the remaining evidence was insufficient to convict the appellant beyond reasonable doubt. The case highlights the importance of proper foundation and admissibility of evidence in criminal trials.

Orders