Supreme Court New South Wales Medium Neutral Citation: R v MARSH [2011] NSWSC 1686 Hearing dates: 7 September 2011 Decision date: 08 September 2011 Before: Price J Decision: Objection rejected Catchwords: EVIDENCE - admissibility - US Marine Corp demonstration video of knife attack- s 137 Evidence Act Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Crown Walter Ciaran Marsh (Accused) Representation: Mr M Tedeschi QC (Crown) Mr K Chapple SC with Mr J O'Sullivan (Accused) Ms D Daleo Director of Public Prosecutions Ms E True Director of Public Prosecutions Mr B Archbold - Archbold Legal Solutions Pty Ltd (Accused) File Number(s): 2010/125831 Judgment 1HIS HONOUR: Mr Chapple objects to evidence being adduced by the Crown of the following: (a)Evidence that suggests that the accused must have been trained in knife use in the United States Marine Corps (USMC); (b)Evidence of the accused's service in the USMC; (c)The video of a demonstration by Carl Tyler of a knife attack, and; (d)The opinions expressed by Dr Irvine after she had viewed the demonstration video. 2The material, the subject of Mr Chapple's objection, is found in the statements of Kelly Murphy (ex 6), Carl Tyler (ex 7), Charles Archuleta (ex 8), the demonstration video (ex 4) and the statement of Dr Irvine (ex 9). 3Mr Chapple contends, firstly, that the Crown cannot establish through these witnesses that knife training was given to the accused. Secondly, that the demonstration video is unfairly prejudicial to him and thirdly, in relation to Dr Irvine's evidence, that it is impossible for the pathologist to express the opinions that she has without the demonstration video. 4The Crown relies upon the evidence in two ways: 1)As part of a circumstantial case to identify the assailant responsible for the deceased's death. 2)As relevant to proving a lie told by the accused to police about his lack of knowledge of knife attacks. 5The parties invited me to view the demonstration video (ex 4) and the video in which Mr XX demonstrated to police the way that he said the accused had practised on him (ex 5). At the request of the parties, I have done so. 6A close consideration of the material, the subject of Mr Chapple's objection, the relevant parts of the ERISP conducted on 24 May 2010 between police and XX XX and the ERISP conducted on 24 May 2010 between police and Samantha Marsh, reveals that there is evidence capable of satisfying a jury of the following; a)The accused was enlisted in the USMC from 2 November 1978 until 9 November 1981, at which time he re-enlisted from 10 November 1981 until he was discharged on 9 November 1984. b)Whilst in the USMC, the accused successfully completed the USMC recruit training as well as Infantry Training School in 1979. In November 1980, the accused was stationed with the 3rd Battalion, 1st Marines (an infantry unit). He successfully completed Marine Security Guard School in 1982 and went on to serve as a Marine Security Guard in the United States Embassies in Argentina and China. c)Every person who enters the USMC recruit training, receives basic knife training both in the use of a knife and to disarm an attack by the enemy holding a knife. d)Knives are a big part of Marine Corps personnel, especially those attached to the infantry. A US Marine will have a knife known as a "Ka Bar". e)A large portion of the accused's Marine Corps career included combat roles or job billets that could need the application of force. In all of his roles, the accused would have been issued with weapons as a requirement of his duty. f)Basic training in the USMC includes instructions on the use of a knife coming from behind a person to kill them as demonstrated by Carl Tyler in the video of 29 July 2011. Refresher training at the USMC Infantry School may also include the training demonstrated by Mr Tyler. g)The technique demonstrated by Mr Tyler, shortly described, includes approaching a sentry from behind, covering his mouth, hyper-extending the body, throwing the sentry off balance and cutting across the neck with the goal of severing the carotid artery. If the sentry's hands interfere with the ability to cut across the throat, the knife should be plunged into the body as many times as is necessary to get the sentry to remove his hand from the throat region. h)The direct causes of the deceased's death were incised wounds of the neck and stab wounds to the chest. i)Dr Rebecca Irvine, a forensic pathologist, opines in ex 9 that the technique demonstrated by Mr Tyler, in general, would produce a pattern (distribution and type) of injuries similar to those observed on the body of the deceased. The deceased's pattern of injuries consisted of transverse incised wounds of the anterior neck (with transection of the carotid arteries), a stab wound of the central lower chest, a cluster of stab wounds on the left upper chest and adjacent left upper arm, and "defence" type injuries of the hands. Although the cluster of stab wounds on the left upper chest and adjacent left upper arm of the deceased vary in terms of the placement of stab wounds in the demonstration in the area of the lower central chest and upper abdomen, Dr Irvine expressed the following opinion (p 3, ex 9): "It is, however, consistent with the contents of the transcript, in that the cluster is obviously on 'the body' and the multiplicity of stab wounds is consistent with plunging it (the knife) in... as many times as it took to get them to take their hands down." j)During an ERISP conducted on 24 May 2010, XX XX informed police that the accused told him that he had been trained to use a knife: Q & A 125. Mr XX told police that the accused practised on him, cutting his throat: Q & A 155. He demonstrated to police an attack from behind that bears similarity to the technique employed by Mr Tyler in the video. k)During an ERISP conducted on 24 May 2010, Samantha Marsh told police (Q & A 120): "He asked me to stand in the bedroom for a moment then he flipped the knife. Actually, then he was in the back and he pulled me over, he was still in the back when he did that, then he grabbed my neck and then from that moment he decide to flip the knife out. And he ask me to raise my right hand up, then he started to stab, pretend that he gunna to stab in my chest and, and pretended to cut my throat." 7Samantha Marsh said that this occurred before the death of the deceased: (Q & A 123). 8By viewing the evidence of Kelly Murphy, Carl Tyler and Charles Archuleta, in combination with the representations made to police by Mr XX and Mrs Marsh, a jury could capably conclude beyond reasonable doubt that the accused, whilst in the USMC, received knife training and that training included the killing of a sentry from behind by the use of a knife as demonstrated in the video by Mr Tyler. 9When this evidence is considered by a jury, together with the evidence of Dr Irvine and the evidence of motive, which was the subject of my judgment yesterday, a jury could capably conclude beyond reasonable doubt that the only rational inference is that it was the accused who inflicted the wounds upon the deceased which caused her death. 10The term "probative value" is defined in the Dictionary to the Evidence Act 1995 to mean: "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 11Each piece of evidence, to which the accused objects, has importance and gains strength when viewed in combination with the other circumstances that I have identified. The evidence has substantial probative value. 12Mr Chapple contends that the demonstration by Mr Tyler (ex 4) is of such a type that it would be unfairly prejudicial to the accused. Mr Chapple described the demonstration video as being, "of a stark kind" and its admission into evidence should be refused under s 137 Evidence Act 1995. Section 137 Evidence Act 1995 is as follows: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 13The demonstration on the video has substantial probative value. As I have stated, the jury could capably conclude, by considering this evidence in combination with the other evidence to which I have referred, that the accused was trained in the technique demonstrated by Mr Tyler and that technique was employed when the deceased was attacked. 14I do not think that there is any danger of unfair prejudice to the accused arising from the showing of the video to the jury. I fail to see how it can be expected that the jury would misuse this evidence. In any event, I propose to give them an appropriate direction at the time of the video's admission into evidence. 15Carrying out the weighing exercise required by s 137, I conclude that its probative value is not outweighed by the danger of unfair prejudice to the accused. 16Mr Chapple further argued that a danger of unfairness arose to the accused by the admission of all of the evidence of his military background and training, from the suggestion that "because a person is trained in the military organisation of any country, he is more likely to be the sort of person who would be involved in the killing of another." 17I do not think that there is any risk that the jury would misuse the evidence in this way. The probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused. 18There is another foundation of admissibility of the evidence of Kelly Murphy, Carl Tyler and Charles Archuleta. During the ERISP, which the accused entered into with police on 10 May 2010, he told police that he was never trained to use knives, nor did he carry a knife in the infantry (ex 10, Q & A 95 and 96). The evidence is relevant to establish that the accused told lies to police: s 55 Evidence Act 1995. 19In conclusion, Mr Chapple's objections to the evidence are rejected. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2012