R v Marshall - [2000] NSWCCA 210

Reported Decision: 113 A Crim R 190

New South Wales

Court of Criminal Appeal

CITATION: REGINA v MARSHALL [2000] NSWCCA 210

FILE NUMBER(S): CCA 60474/99

HEARING DATE(S): 15 May 2000

JUDGMENT DATE:
15 May 2000

PARTIES :

Regina v Robert John Marshall

JUDGMENT OF: Spigelman CJ at 1,41,42,55; Heydon JA at 40,53; James J at 39,54

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/41/0267; 96/41/0268

LOWER COURT JUDICIAL
OFFICER : Twigg DCJ

COUNSEL : G P Craddock (Appellant)
L M B Lamprati (Respondent)

SOLICITORS: T A Murphy (Appellant)
S E O'Connorr (Respondent)

CATCHWORDS: EVIDENCE - exclusion of identification evidence when accused seen to be in custody - displacement effect - Evidence Act 1995, s137 - CRIMINAL LAW - sentencing - correct application of totality

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED:
Alexander v The Queen (1979-1980) 145 CLR 395
R v Blick [2000] NSWCCA 61
R v Carusi (1997) 92 A Crim R 52
R v Tugaga (1994) 74 A Crim R 190

DECISION: Appeal against conviction allowed; Verdict of acquittal entered; Leave to appeal against sentence granted, but appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60474/99

SPIGELMAN CJ
HEYDON JA
JAMES J
Monday 15 May 2000

REGINA v Robert John MARSHALL

Appeal against conviction allowed; verdict of acquittal entered. Leave to appeal against sentence granted, but appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60474/99

SPIGELMAN CJ
HEYDON JA
JAMES J
Monday 15 May 2000

REGINA v Robert John MARSHALL
JUDGMENT

1 SPIGELMAN CJ: The Appellant was convicted after a plea of not guilty on a charge of armed robbery with a knife, contrary to s97 (1) of the Crimes Act 1900. The Appellant had elected to be tried by judge alone. Judge Twigg QC DCJ found the Appellant guilty on 11 December 1998.
2    The alleged offence occurred on 2 September 1995 at Bomaderry when the victim, Mr Frederick Robert Sams, the proprietor of a liquor shop at Bomaderry, was robbed of about $1,400 in cash.
3    The events of that evening commenced with a male person entering the shop and looking at various items on the shelf. Mr Sams gave evidence this man was wearing a grey coloured flannelette shirt with a hood which enclosed his head so only the face at the front was visible.
4    After looking around the shop, that male person left, having engaged in a brief conversation with Mr Sams.
5    About an hour later on that same evening, another male entered the shop. This person had a goatee type beard and moustache, which Mr Sams said was similar to the first male. Indeed, Mr Sams said, the two males "could almost be twin brothers". He confirmed in his evidence in the case that "they looked the same".
6    On the second occasion, the man produced a knife from behind his back. Mr Sams said that he could see it was shiny with a clean edge of about 20 cms in length. The handle appeared…

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 Marshall

Details

AGLC: R v Marshall [2000] NSWCCA 210
Case: [2000] NSWCCA 210
Decision Date: 15 May 2000

CaseChat Overview and Summary

The case of R v Marshall involved the defendant, Marshall, who was charged with an offence of theft. The dispute centred on the admissibility of identification evidence provided by a witness, who claimed to have identified Marshall as the perpetrator while he was in custody. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the identification evidence should be excluded under section 137 of the Evidence Act 1995 due to the potential prejudicial effect of seeing the accused in custody. Additionally, the court needed to determine whether the sentencing applied by the trial judge was appropriate, specifically whether the totality principle was correctly applied.

The court held that the identification evidence should indeed be excluded as it had the potential to prejudice the jury against the accused, due to the displacement effect of seeing him in custody. This decision was based on the understanding that the presence of an accused in custody can lead to an unconscious bias towards guilt. The court further examined the sentencing process and concluded that the trial judge had correctly applied the totality principle, taking into account all the circumstances of the case, including the accused's background and the nature of the offence. The totality principle ensures that the sentence reflects the overall culpability and circumstances of the offender.

In conclusion, the court upheld the exclusion of the identification evidence and confirmed the appropriateness of the sentencing. The decision underscores the importance of adhering to the provisions of the Evidence Act in protecting the rights of the accused, while also ensuring that sentencing reflects a fair and comprehensive assessment of the offender's circumstances. The final orders of the court were to confirm the conviction and sentence as originally imposed by the trial judge, subject to the exclusion of the identification evidence from the trial.

Orders