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Court of Criminal Appeal 15 September 2000

REGINA v MARSH

[2000] NSWCCA 370

Sexual offencesAssault & violence
EVIDENCE CRIMINAL TRIAL PHYSICAL AND SEXUAL ASSAULT "RELATIONSHIP EVIDENCE" EVIDENCE SHOULD NOT HAVE BEEN ADMITTED EVIDENCE

Citation: Regina v Marsh [2000] NSWCCA 370
Court: NSW Court of Criminal Appeal
Date: 15 September 2000
Judge(s): Spigelman CJ, Newman J, Adams J

Background

The appellant was convicted in the District Court of six counts of sexual and physical assault against a woman with whom he had been in a relationship. The trial before Holt DCJ ran for approximately five weeks and involved highly contested factual questions about consent and the nature of the relationship.

During the trial, the Crown led evidence of additional alleged assaults, both sexual and physical, that were not the subject of any count on the indictment. This evidence was admitted as "context" or "relationship evidence" to assist the jury in understanding the dynamic between the parties. Defence counsel did not object to all of that material, and no application was made to discharge the jury when certain evidence came in.

The appellant raised nine grounds of appeal. The grounds centred on the improper admission of uncharged conduct evidence, the absence of adequate jury directions about how that evidence could be used, the improper admission of two exhibits (R and S), and the failure of trial counsel to object to, or seek a discharge over, prejudicial inadmissible material.

  • Whether the trial judge erred in admitting evidence of uncharged sexual and physical assaults as "context" or "relationship evidence"
  • Whether the trial judge erred in failing to direct the jury that it could not use that context evidence as tendency or propensity evidence
  • Whether exhibits R and S were wrongly admitted
  • Whether the trial miscarried because defence counsel failed to object to inadmissible and prejudicial evidence and did not seek a discharge of the jury when that evidence was given

Decision

On the first issue, Adams J (with whom Spigelman CJ and Newman J agreed) held that the trial judge erred in admitting the uncharged assault evidence as context. Each count on the indictment arose in its own distinct factual setting, which provided sufficient context for the jury to evaluate the allegation. The uncharged conduct was highly prejudicial and added nothing probative to any of the charges actually before the jury.

On the second issue, the Court found that the trial judge further erred by failing to direct the jury that it could not use the context evidence as tendency or propensity evidence against the appellant. This failure compounded the damage from the erroneous admission of the evidence in the first place.

The Court also found error in the admission of exhibits R and S, and in the admission of other material from the complainant's evidence, despite the defence failing to object to some of it. The Court observed that prosecuting counsel bears a duty to control witnesses and to ensure that only admissible evidence is placed before the jury, a responsibility that does not evaporate simply because the defence does not object.

Applying the principle that an accused is entitled to a fair trial according to law, the Court held that these errors, taken together, amounted to a miscarriage of justice. The Court noted the Crown case, while not necessarily weak, was far from overwhelming, and the cumulative effect of the errors warranted quashing the convictions and ordering a retrial.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Convictions quashed
  • New trial ordered on all counts

Key Takeaways

  • Uncharged conduct evidence admitted as "context" or "relationship evidence" will be improperly admitted where each charge on the indictment arises in its own distinct factual setting that already provides sufficient context for the jury.
  • Where uncharged conduct evidence is admitted, a direction that the jury cannot use it as tendency or propensity evidence is required; failure to give that direction constitutes independent error.
  • Prosecuting counsel carries an obligation to control witnesses and to ensure only admissible evidence reaches the jury; that duty does not depend on whether the defence raises an objection.
  • The Court of Criminal Appeal confirmed that the right to a fair trial according to law can require a conviction to be set aside even where defence counsel made deliberate choices at trial, including choices not to object to particular evidence.
  • Under section 108(3)(b) of the Evidence Act 1995, the admission of certain rehabilitative evidence was also in issue, illustrating the range of evidentiary controls that apply in trials involving relationship or context evidence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), including s 108(3)(b)
- Criminal Appeal Rules

Cases
- 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 (NSWCCA, 11 December 1996, unreported)
- R v Meier (NSWCCA, 21 May 1996, unreported)
- R v MM [2000] NSWCCA 78
- R v Tripodina (1988) 35 A Crim R 183