Citation: R v Marsh [2011] NSWSC 1687
Court: Supreme Court of New South Wales
Date: 7 September 2011
Judge(s): Price J
Background
The accused stood trial for the murder of a woman who had been his former Nursing Unit Manager at a Sydney hospital. The Crown alleged he killed her because he believed she was providing negative references that were blocking his job applications, threatening his ability to remain in Australia on a 457 Visa.
To establish motive, the Crown sought to lead evidence of two connected matters. First, that the accused had travelled to the United States in early 2010 with a plan to murder his former wife, motivated by a combination of financial and immigration pressures. Second, that those same pressures formed the backdrop to the alleged murder of the deceased in Sydney.
The accused's counsel objected to both categories of proposed evidence, arguing they were either irrelevant or inadmissible under section 137 of the Evidence Act 1995, which requires a court to exclude prosecution evidence where the danger of unfair prejudice outweighs its probative value.
Legal Issues
- Whether evidence of the accused's alleged plan to murder his former wife in the United States was relevant to his motive to murder the deceased in Sydney
- Whether, if relevant, that evidence should be excluded under section 137 of the Evidence Act 1995 because its prejudicial effect outweighed its probative value
- Whether evidence of the accused's child support arrears and related passport renewal difficulties was admissible on the same motive issue
Decision
Issue 1: Relevance and admissibility of the planned murder evidence
The Crown argued that the same cluster of problems driving the alleged plan to kill the former wife also motivated the murder of the deceased. Price J accepted that this evidence was technically relevant to the fact in issue (motive), but assessed its probative value as modest. Evidence from two witnesses suggested the accused's grievance toward his former wife may have predated his employment troubles, weakening the Crown's theory that the two planned killings shared a common motivating cause.
Against that modest probative value, the court identified a substantial risk of unfair prejudice. There was a real danger that a jury would reason, illegitimately, that because the accused had planned to kill one woman, he must have killed another. Price J concluded that no direction to the jury could eliminate that danger. Applying the section 137 balancing test, the probative value was outweighed by the danger of unfair prejudice, and the evidence was excluded.
Issue 2: Admissibility of the child support and passport evidence
The court reached the opposite conclusion regarding the financial and immigration context. Evidence of the child support arrears, the United States Government's policy preventing passport renewal where more than $2,500 is owed, and the near-exhausted state of the accused's passport all had substantial probative value. Combined with evidence of his lost employment and immigration vulnerability, this material spoke directly and powerfully to motive.
Price J found little or no danger of unfair prejudice from this evidence. Any jury disapproval arising from the failure to pay child support could be addressed by an appropriate direction. The section 137 balancing exercise therefore favoured admission, and this category of evidence was allowed.
Issue 3: Witness evidence taken on the voir dire
A further procedural matter concerned the proposed evidence of one witness. Both parties consented to that evidence being taken on the voir dire, recorded by video and audio, and played during the trial, subject to the witness remaining available for recall. The court made orders accordingly.
Orders Made
- Evidence of the accused's alleged plan to murder his former wife in the United States excluded under section 137 of the Evidence Act 1995
- Evidence of the accused's child support obligations, arrears, United States passport renewal policy, and remaining passport pages admitted
- Orders made in terms of paragraphs 1 to 3 of the Notice of Motion regarding the evidence of James Woodward being taken on the voir dire and recorded
- Leave granted to defence counsel to seek recall of that witness during the trial
Key Takeaways
- Under section 137 of the Evidence Act 1995, a court must exclude prosecution evidence in a criminal proceeding where its probative value is outweighed by the danger of unfair prejudice to the accused, regardless of the evidence's formal relevance.
- Evidence that an accused planned to kill a different person carries a particular risk of unfair prejudice, specifically that a jury will reason propensitively from that conduct to guilt for the charged offence, a form of reasoning the court found could not reliably be corrected by judicial direction.
- Probative value under the Evidence Act is assessed by the extent to which evidence could rationally affect the probability of a fact in issue, and modest probative value can be outweighed even by risks of prejudice that fall short of certainty.
- Financial and immigration pressures bearing directly on an accused's circumstances at the time of an alleged offence can constitute admissible motive evidence with substantial probative value, even where related conduct evidence is excluded.
- Where parties consent to a witness's evidence being pre-recorded and played at trial, the court retains power to ensure the accused's ability to recall that witness if necessary.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Not stated