REGINA v MARSHALL [2000] NSWCCA 210

REGINA v MARSHALL [2000] NSWCCA 210

Because the victim's identification was made in circumstances where it was obvious the appellant was in custody, and after the victim had earlier been shown photographs including photographs of the appellant, there was both unfairly prejudicial custodial identification and a real possibility of displacement effect. With no other evidence connecting the appellant to the armed robbery and equivocal knife evidence, the identification evidence had limited probative value and a high order of prejudice; a conviction was not reasonably open and the trier of fact ought to have entertained a reasonable doubt. The sentence appeal was dismissed because the sentencing judge had considered totality...

Jurisdiction
Australia
Judgment Date
15 May 2000
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Judgment
Outcome
Appeal against conviction allowed; verdict of acquittal entered; leave to appeal against sentence granted, but appeal dismissed.
Legal Topics
['identification Evidence' 'exclusion of Prosecution Evidence' 'unfair Prejudice' 'displacement Effect' 'totality in Sentencing']
['criminal Law' 'evidence' 'sentencing'] ['identification Evidence' 'exclusion of Prosecution Evidence' 'unfair Prejudice' 'displacement Effect' 'totality in Sentencing']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Judgment

Legal Issues

  1. 1 ['Whether identification evidence should have been excluded under s137 of the Evidence Act 1995 because its probative value was outweighed by the danger of unfair prejudice to the accused.' 'Whether the circumstances of the identification, including that the appellant appeared to be in custody and had earlier been shown in photographs, created a miscarriage of justice.' 'Whether the sentencing judge correctly applied totality to the sentences for the other offences.']

Ratio Decidendi

Because the victim's identification was made in circumstances where it was obvious the appellant was in custody, and after the victim had earlier been shown photographs including photographs of the appellant, there was both unfairly prejudicial custodial identification and a real possibility of displacement effect. With no other evidence connecting the appellant to the armed robbery and equivocal knife evidence, the identification evidence had limited probative value and a high order of prejudice; a conviction was not reasonably open and the trier of fact ought to have entertained a reasonable doubt. The sentence appeal was dismissed because the sentencing judge had considered totality...

Court Disposition

Appeal against conviction allowed; verdict of acquittal entered; leave to appeal against sentence granted, but appeal dismissed.

Orders

  • ['Appeal against conviction with respect to the armed robbery is allowed.' 'A verdict of acquittal is entered.' 'Leave to appeal against sentence is granted.' 'The appeal against sentence is dismissed.']