R v MARSH [2011] NSWSC 1687

Supreme Court New South Wales

Medium Neutral Citation: R v MARSH [2011] NSWSC 1687 Hearing dates: 6 September 2011 Decision date: 07 September 2011 Before: Price J Decision: Catchwords: EVIDENCE - admissibility - motive- s 137 of the Evidence Act 1995 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 : The accused is charged with the murder of Michelle Beets at Chatswood on 27 April 2010. The Crown seeks to adduce evidence of the planned murder by the accused of Tammy Leyland, his former wife, during a trip he took to the United States between 25 February 2010 and 14 March 2010. It is the Crown case that the accused went to Tammy Leyland's home, secreted himself with the intention of murdering her, but at all times whilst under his observation she was in the presence of her second husband whom the accused believed regularly carried a handgun and that prevented him from carrying out the murder. The Crown case is that the accused's plan to murder his former wife was a first step which he took in order to alleviate a combination of problems that might conveniently be identified as follows: * Tammy Leyland and the accused were married in 1990. They are citizens of the United States of America. * There was one child of the marriage, a daughter XX XX XX, who was born in July 1992. Ms Leyland and the accused were divorced in 1996. The District Court of Travis County, Texas made an order at the time of the Final Decree of Divorce that the accused was to pay $600 a month child support to Ms Leyland. The accused failed to make child support payments in accordance with the court's order and in 2010 was in arrears in the amount of approximately $50,000.00. * The accused obtained a 457 Visa that entitled him to remain in Australia for the duration of his employment in this country, which he commenced with the Royal North Shore Hospital on 9 February 2009. The contract of employment provided for a year-by-year appointment. * In February 2010 the accused was informed that his contract with the Royal North Shore Hospital would not be renewed. It is the Crown case that the accused was at risk of his 457 Visa coming to an end, he then no longer having the right to remain in Australia. * The policy of the United States Government provided that where a United States citizen owes child support in excess of $2,500 he or she could not renew their passport. 2As at February 2010, the accused's United States passport had two unstamped pages remaining in it. It is the Crown case that the accused's passport was about to become unusable, thereby requiring him to obtain a new passport. The Crown alleges that the accused knew his passport would not be renewed because of the outstanding child support debt. He did not wish to go to Vietnam where he had married his current wife, Samantha, due to poor employment prospects and pay rates for a nurse in that country compared to Australia and the United States of America. 3As I have said, the Crown case is that the first step, which the accused took to alleviate this combination of problems, was his trip to the United States to murder Tammy Leyland. It was, the Crown says, his belief that by murdering Ms Leyland he would expunge the child support debt, renew his US passport and have freedom of movement. The Crown argues that the evidence of the accused's trip to the United States is relevant on the issue of the accused's motive to murder Michelle Beets as the same combination of factors that prompted him to go to the United States with the plan to murder his ex wife were the motivating factors in the accused's decision to murder the deceased. 4The Crown case is that when the accused abandoned his plan to murder Tammy Leyland and returned to Sydney on 14 March 2010, he made many applications for employment to various hospitals but was unsuccessful. The accused, the Crown alleges, came to believe that the reason why his job applications were unsuccessful was that the deceased, his former Nursing Unit Manager, was providing bad references about him to people who enquired of her about the accused's job applications. The Crown alleges that the accused then devised a plan to murder the deceased so that she could no longer provide bad references about him, he would obtain employment in Australia, retain his 457 Visa and be able to remain in this country. 5Mr Chapple SC for the accused objected to the proposed evidence being admitted. He argued that it was not relevant to the accused's motive to kill the deceased. Should the court be of the view that the evidence was relevant, Mr Chapple submitted that the court must refuse to admit the evidence under s 137 Evidence Act 1995 as the prejudicial value of it was massive. Mr Chapple identified the high prejudice as being that the accused's plan to kill one woman is being led in a trial where he is charged with the killing of another woman. Mr Chapple further contended that the evidence of the issue of child support should not be admitted even if the evidence of the planned murder of Tammy Leyland was rejected. 6Section 55(1) Evidence Act 1995 is as follows: "The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." 7Section 137 Evidence Act 1995 provides: "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." 8The term 'probative value' of evidence means (Dictionary, Evidence Act 1995): "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 9A fact in issue is whether the accused had a motive to murder the deceased. 10The evidence of the accused's obligation to pay child support, the amount of child support in arrears in 2010, the United States Government policy prohibiting the renewal of a US passport where more than $2,500 in child support is owing and the two pages remaining in the accused's passport could, if accepted, rationally affect the assessment by the jury of the existence of a motive to kill. This evidence, when considered in combination with the accused's loss of employment at the Royal North Shore Hospital, his unsuccessful job applications, his need for employment to retain his 457 Visa and his belief that his employment prospects were being blocked by the deceased, provides a strong motive for the accused to kill the deceased and explains why he could not readily return to the United States and obtain employment in that country. 11The evidence of the plans made and steps taken by the accused to murder his former wife, even when taken at its highest in favour of the Crown, adds little, in my opinion, to the fact in issue, the accused's motive to kill the deceased. The connection between the accused's plan to murder his former wife and motive to murder the deceased is, in any event, diminished by the answers given by Samantha Marsh in the ERISP of 24 May 2010 at Q and A 280, that Tammy Marsh was always in the accused's mind, that "she's always something that he used to vent out" and "would hate the most" and XX XX's answers to questions 284 to 294 in the ERISP of 7 June 2010 from which it is evident that Mr XX was of the opinion that the accused's plan to travel to America to kill his wife, preceded his loss of employment and was not dependent upon it. 12In my view, the extent to which the evidence of the planned murder of Tammy Leyland could rationally affect the assessment of the probability of the existence of a motive to kill the deceased is modest. On the other hand, the evidence of the planned murder carries with it the real risk that the jury will adopt an illegitimate line of reasoning; that if the accused planned to kill his ex wife then he must have killed the deceased. I do not think any direction would eliminate the danger of unfair prejudice to the accused that arises from this evidence. 13Carrying out the weighing exercise required, I conclude that the probative value of the evidence of the planned murder of Tammy Leyland is outweighed by the danger of unfair prejudice to the accused. This evidence is not admitted: s 137 Evidence Act 1995. 14The evidence of the accused's obligation to pay child support, the amount of child support in arrears in 2010, the United States Government policy concerning passport renewals and the pages remaining in the accused's passport has, in my view, substantial probative value. There is little, if any, danger of unfair prejudice to the accused. Any disapproval that might be thought to arise in the minds of the jurors because of the accused's failure to pay child support may be eliminated by an appropriate direction. Carrying out the weighing exercise required, I conclude that the probative value of this evidence is not outweighed by the danger of unfair prejudice to the accused: s 137 Evidence Act 1995. 15I turn now to the Notice of Motion that the evidence of James Woodward be taken on the voir dire in the absence of the jury, be recorded by video and audio, and be played during the course of the trial. Mr Chapple consents to this course being adopted provided Mr Woodward is able to be recalled if the need arises, which the Crown acknowledges. The reasons for the Crown's application are provided in the affidavit of Elizabeth True sworn 29 August 2011 and are unnecessary to detail here. The course proposed and agreed upon by counsel is appropriate in all the circumstances. Should the Crown wish to call James Woodward, I make orders in the terms of paragraphs 1 to 3 of the Notice of Motion. I make a further order that Mr Chapple has leave during the trial to seek that Mr Woodward be recalled.