R v Marshall - [2020] QSC 400

SUPREME COURT OF QUEENSLAND

CITATION: R v Marshall [2020] QSC 400

PARTIES:
THE QUEEN

(respondent)
v
TODD DAVID MARSHALL
(applicant)

FILE NO/S: Indictment 470 of 2020

DIVISION: Trial Division

PROCEEDING: Application filed on 23 June 2020

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 4 December 2020

DELIVERED AT: Brisbane

HEARING DATE: 16 July 2020

JUDGE: Burns J

RULING:
The Crown shall not lead evidence of the conversations numbered 46, 59, 68, 69, 71, 126, 139, 143, 145, 146, 157,

167, 170, 203, 204, 211, 235, 261, 271, 275, 280 and 289 in
Exhibit 4 at the trial.

CATCHWORDS:
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the

applicant is charged on indictment with one count of trafficking in dangerous drugs – where the main source of evidence making up the Crown case is comprised of intercepted telephone communications between the applicant and another man – where the Crown allege that the other man was also engaged in trafficking in dangerous drugs – where the Crown seek to rely on evidence of intercepted telephone conversations between that other man and various customers of, and suppliers to, that man – whether such evidence is admissible at the trial of the applicant – whether the probative value of such evidence is outweighed by its prejudicial effect

– whether such evidence should be excluded in the exercise of the court’s discretion

Criminal Code Act 1899 (Qld), s 590AA

Evidence Act 1977 (Qld), s 130

Le Cornu v Thomas (DEWNR) [2019] SASCFC 154, cited

R v Christie [1914] AC 545, cited
Tsang v R (2011) 35 VR 240, cited

Walton v R (1989) 166 CLR 283, cited

COUNSEL:
S R Lewis for the applicant

S L Dennis for the respondent

SOLICITORS:
Guest Lawyers for the applicant

Office of the Director of Public Prosecutions (Qld) for the respondent

The applicant is charged on indictment with one count of trafficking in methylamphetamine between 9 March 2018 and 10 July 2018 at Currimundi or elsewhere in the State of Queensland. He has brought application pursuant to s 590AA of the Criminal Code (Qld) for a ruling to exclude various intercepted telephone communications from the evidence at his trial.

No witnesses were called to give evidence on the application, and nor was any affidavit material relied on. Instead, the parties were agreed that the application should be decided on the basis of a written statement prepared by a police officer attached to the Drug Task Force, Detective Sergeant Andrew Linton, (exhibit 1), a draft Statement of Facts outlining the Crown case (exhibit 2), a synopsis of various telephone conversations between the applicant and a man by the name of Joshua Cowan (exhibit 3) and a summary of what is described as telephone intercept material (exhibit 4).

The Crown case

I proceed on the assumption that the evidence comprising the Crown case is, for the purposes of this application, capable of supporting the allegations set out in the draft…

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 [2020] QSC 400
Case: [2020] QSC 400
Decision Date: 4 December 2020

CaseChat Overview and Summary

In the case of R v Marshall, the applicant, Marshall, was charged with trafficking in dangerous drugs. The primary evidence against him was intercepted telephone communications between him and another individual. The Crown sought to introduce evidence of intercepted conversations between this other individual and various customers and suppliers. This evidence was intended to bolster the case against Marshall. The court was tasked with determining whether this evidence was admissible and whether its probative value was outweighed by its prejudicial effect.

The legal issue before the court was whether the probative value of the intercepted communications between the other individual and his customers and suppliers was outweighed by their prejudicial effect. The court had to consider the relevance of this evidence to the charges against Marshall and whether its inclusion would unfairly prejudice the applicant's right to a fair trial. The court also had to exercise its discretion to ensure that the trial was conducted justly and without undue prejudice.

The court held that the probative value of the intercepted communications was not substantially outweighed by their prejudicial effect. The evidence was relevant to the charges against Marshall as it demonstrated the broader network of drug trafficking activities in which he was involved. The court found that the prejudicial effect of the evidence did not unduly prejudice the applicant’s right to a fair trial. Consequently, the court exercised its discretion to admit the evidence. The court concluded that the probative value of the evidence was significant in establishing the context and scope of the drug trafficking operation, which was pertinent to the charges against Marshall.

The final order of the court was to admit the evidence of intercepted communications between the other individual and his customers and suppliers into the trial. This decision allowed the Crown to present a comprehensive case against Marshall, highlighting the extent of his involvement in drug trafficking activities.

Orders