CITATION: REGINA v MARSH [2000] NSWCCA 370 FILE NUMBER(S): CCA 60092/99 HEARING DATE(S): 5 June 2000 JUDGMENT DATE:
15 September 2000PARTIES :
Regina
Russell Alexander MarshJUDGMENT OF: Spigelman CJ at 1; Newman J at 2; Adams J at 3
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 97/21/0284; 97/21/0162 LOWER COURT JUDICIAL
OFFICER :Holt DCJ
COUNSEL : L Flannery (Appellant)
D C Frearson (Crown)SOLICITORS: Taylor & Scott (Appellant)
S E O'Connor (Crown)CATCHWORDS: EVIDENCE - criminal trial - physical and sexual assault - "relationship evidence" - evidence should not have been admitted - EVIDENCE - criminal trial - physical and sexual assault - exclusion of evidence - Evidence Act 1995, s108(3)(b) - CRIMINAL LAW - trial - role of counsel LEGISLATION CITED: Criminal Appeal Rules
Evidence Act 1995CASES CITED: B v The Queen (1992) 175 CLR 599
BRS v The Queen (1997) 191 CLR 275
Gipp v The Queen (1998) 194 CLR 106
R v Abusafiah (1991) 24 NSWLR 531
R v Beserick (1993) 30 NSWLR 510
R v Clarke (1995) 78 A Crim R 226
R v Fordham (1997) 98 A Crim R 359
R v Harvey (Supreme Court of NSW, Court of Criminal Appeal, 11 December 1996, unreported)
R v Meier (Supreme Court of NSW, Court of Criminal Appeal, 21 May 1996, unreported)
R v MM [2000] NSWCCA 78
R v Tripodina (1988) 35 A Crim R 183DECISION: Leave to appeal granted; appeal allowed; convictions quashed; new trial ordered.
IN THE COURT OF
CRIMINAL APPEAL
60092/99
SPIGELMAN CJ
Friday 15 September 2000
NEWMAN J
ADAMS JREGINA v Russell Alexander MARSHFacts
The Appellant was convicted of 6 out of 8 counts which alleged sexual and physical abuse of a woman with whom he was having a relationship. The Appellant raised 9 grounds of appeal against the convictions. Among these were that the trial judge, Holt DCJ, erred in admitting evidence of assaults (both physical and sexual) that were not the subject of a count on the indictment, that his Honour did not give adequate directions concerning the use the jury could make of that evidence, that his Honour erred in admitting other evidence including two exhibits, R and S and that the trial miscarried by reason of the failure of trial counsel to object to evidence said to be inadmissible and by the failure of trial counsel to seek a discharge of the jury when that evidence was given.Held
(per Adams J, Spigelman CJ and Newman J agreeing)
1 Each count on the indictment occurred in its own factual setting which provided an adequate context in which to evaluate and understand the allegation charged. His Honour erred in admitting, as “context” evidence, evidence of assaults that were not the subject of any count on the indictment. The evidence was highly prejudicial and not probative of the allegations in any of the counts. R v Beserick (1993) 30 NSWLR 510, R v Fordham (1997) 98 A Crim R…
Continue reading R v Marsh
Sign in free to access the full text
- AGLC
- R v Marsh [2000] NSWCCA 370
- Case
- [2000] NSWCCA 370
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the admission of this "relationship evidence" was in accordance with the provisions of the Evidence Act 1995, particularly section 108(3)(b). This section allows for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice to a party. The court also needed to consider the role of counsel in the trial and whether any procedural errors had occurred that might have affected the outcome.
The court found that the trial judge had erred in admitting the contested evidence, as it did not meet the criteria set out in the Evidence Act. The probative value of the evidence was deemed to be low, while the risk of unfair prejudice was high. The court further noted that the role of counsel in the trial was appropriate, and there were no procedural errors that would have affected the outcome. Consequently, the court allowed the appeal, quashed the conviction, and ordered a new trial.
The final orders of the court were that the conviction of the appellant be quashed, and the matter be remitted to the lower court for a new trial. The court emphasised the importance of adhering to the principles of evidence law, particularly in cases involving domestic violence, to ensure a fair trial for both parties.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.