R v Marshall [2001] NSWCCA 283

R v Marshall [2001] NSWCCA 283

The jury directions sufficiently conveyed that the appellant had to be party to an agreement to break and enter Ms Gower's premises, and there was ample evidence of such an agreement. However, the judge omitted a necessary direction that the jury had to be satisfied beyond reasonable doubt that the appellant agreed or knew that Paul Marshall would be armed with the axe handle. Because that direction was not given, the aggravated conviction on Count 1 could not stand, but the jury necessarily found the elements of break, enter and steal, so that conviction was substituted. The sentence for Count 1 was reduced for the lesser offence, the parity challenge was rejected, and the armed robbery...

Jurisdiction
Australia
Judgment Date
24 July 2001
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Applications for Leave to Appeal Against Sentence From the District Court
Outcome
Appeal against conviction on Count 1 allowed; conviction for aggravated break, enter and steal quashed and conviction for break, enter and steal substituted. Sentence on Count 1 quashed and replaced with a fixed term of 2 years. Leave to appeal against sentence on Count 2 of the first indictment refused. Leave to...
Legal Topics
['aggravated Break, Enter and Steal' 'break, Enter and Steal' 'armed Robbery' 'joint Criminal Enterprise' 'jury Directions' 'substituted Verdict' 'manifest Excess' 'totality' 'parity']
['criminal Law' 'criminal Procedure' 'sentencing'] ['aggravated Break, Enter and Steal' 'break, Enter and Steal' 'armed Robbery' 'joint Criminal Enterprise' 'jury Directions' 'substituted Verdict' 'manifest Excess' 'totality' 'parity']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Applications for Leave to Appeal Against Sentence From the District Court

Legal Issues

  1. 1 ['Whether the trial judge failed properly to direct the jury on the elements of Count 1, including agreement to break and enter and agreement or knowledge that Paul Marshall would be armed with an offensive instrument.' 'Whether the conviction on Count 1 was unreasonable.' 'Whether a verdict of guilty of break, enter and steal should be substituted for aggravated break, enter and steal.' 'Whether the sentences imposed were manifestly excessive, required adjustment because of the substituted verdict and totality, or infringed parity with Paul Marshall.']

Ratio Decidendi

The jury directions sufficiently conveyed that the appellant had to be party to an agreement to break and enter Ms Gower's premises, and there was ample evidence of such an agreement. However, the judge omitted a necessary direction that the jury had to be satisfied beyond reasonable doubt that the appellant agreed or knew that Paul Marshall would be armed with the axe handle. Because that direction was not given, the aggravated conviction on Count 1 could not stand, but the jury necessarily found the elements of break, enter and steal, so that conviction was substituted. The sentence for Count 1 was reduced for the lesser offence, the parity challenge was rejected, and the armed robbery...

Court Disposition

Appeal against conviction on Count 1 allowed; conviction for aggravated break, enter and steal quashed and conviction for break, enter and steal substituted. Sentence on Count 1 quashed and replaced with a fixed term of 2 years. Leave to appeal against sentence on Count 2 of the first indictment refused. Leave to...

Orders

  • ['Appeal against conviction on Count 1 of the first indictment allowed; the conviction for aggravated break, enter and steal from Ms Gower is quashed and in lieu thereof substitute a conviction for break, enter and steal.' 'Quash the sentence on Count 1. In lieu thereof the appellant is sentenced to a fixed term of...