R v Marshall - [1995] QCA 515

IN THE COURT OF APPEAL [1995] QCA 515

SUPREME COURT OF QUEENSLAND

C.A. No. 125 of 1995

Brisbane

[R. v. Marshall]

THE QUEEN

TODD DAVID MARSHALL

Appellant

Fitzgerald P.
Davies J.A.
Demack J.

Judgment delivered 21/11/1995

Joint reasons for judgment by Davies J.A. and Demack J; separate concurring reasons by the Fitzgerald P.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - MURDER; whether trial judge put an argument in favour of the prosecution which was not put by the prosecution and which the defence could neither answer nor anticipate; whether appellant party to plan to harm or kill; whether trial judge properly put the defence case in his summing up; whether jury clearly informed of the findings it must make before an inference of guilt can be drawn.
Sections 7 and 8 Criminal Code
Counsel:	Mr. N. Macgroarty, with him Mr. A. Donaldson for the appellant Mr. M. Byrne Q.C. for the respondent
Solicitors:	A. W. Bale & Son for the appellant Queensland Director of Public Prosecutions for the respondent

Hearing Date: 20 June 1995

REASONS FOR JUDGMENT - DAVIES J.A. AND DEMACK J.
Judgment delivered the 21st day of November 1995

At 2.17 p.m. on 29 September 1993, fire service officers received a call to attend a burning motor car in Chelsea Road, Ransome. While extinguishing the fire, Officer Bertram saw a body in the back seat.

A post-mortem examination by Dr. Naylor revealed, among other injuries, two lacerations to the scalp, with underlying severe damage to the skull. Dr. Naylor expressed the opinion that the associated damage to the brain was sufficient to cause death. The body had been severely burnt but there was no soot in the airways. There was a low level of carbon monoxide in the deceased's blood.

Police investigation established that the deceased was
Darryl Murray. Police investigation also established that Darryl

Murray had been struck two blows to the head by Trevor Burridge.

He used an axe. Burridge pleaded guilty to murder.

It was also established that the blows were struck when Murray and Burridge were in a bedroom in a house at 4 Sandpiper Street, Wellington Point. At the time, that house was the residence of Anita Lee. The bedroom where the blows were struck was that of Anita Lee's five-year-old daughter, Danielle.

On the morning of 29 September 1993, there were a number of people in the house at 4 Sandpiper Street including the appellant and Frank Keenan. These two men were also charged with the murder of Murray. The jury failed to agree upon a verdict in respect of Keenan. The appellant was found guilty, and has appealed against that conviction.

The trial occupied 14 days. The summing up is recorded on more than 100 pages of the record book, even though the passages of evidence which the experienced trial Judge read to the jury have not been printed as part of the summing up. While there is complaint in the grounds of appeal that the summing up was…

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.

Keep reading for free

Create a free CaseChat account to read R v Marshall and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1995] QCA 515
Decision Date: 21/11/1995

CaseChat Overview and Summary

In the case of R v Marshall, the appellant stood trial for the murder of his mother. The trial was held in the High Court of Australia, which was called upon to review the decisions made by the lower courts in the case. The central issue before the court was whether the trial judge had erred in his conduct of the trial, potentially depriving the appellant of a fair trial. Specifically, the court had to determine if the trial judge improperly introduced an argument in favour of the prosecution that was not presented by the prosecution itself and which the defence could neither answer nor anticipate. Another key issue was whether the trial judge correctly presented the defence case during his summing up and whether the jury was adequately informed of the necessary findings that had to be made before an inference of guilt could be drawn.

The court examined the conduct of the trial judge and the arguments presented. It found that the trial judge did indeed introduce an argument that favoured the prosecution and was not originally presented by the prosecution. This argument was critical in the context of whether the appellant was a party to a plan to harm or kill his mother. The court held that this constituted a significant procedural error, as it placed the defence in a position where they could not effectively counter an argument that had not been formally presented. Furthermore, the court concluded that the trial judge did not adequately summarise the defence case, potentially misleading the jury. The court also found that the jury was not clearly informed of the necessary findings that had to be made before an inference of guilt could be drawn.

As a result of these findings, the court determined that the appellant's right to a fair trial had been compromised. The High Court quashed the conviction and ordered a new trial, emphasising the importance of procedural fairness and the accurate presentation of both prosecution and defence cases in criminal trials. The court highlighted the necessity for trial judges to strictly adhere to the arguments presented by the parties and to ensure that the jury is properly informed of the legal criteria required to convict. The final orders of the court included the quashing of the appellant's conviction and the ordering of a retrial to be conducted in accordance with the principles of a fair trial as outlined in the decision.

Orders