R v Michael Phillip Martin; R v Candace Martin [2017] NSWSC 1106

Supreme Court New South Wales

Medium Neutral Citation: R v Michael Phillip Martin; R v Candace Martin [2017] NSWSC 1106 Hearing dates: 3, 22 August 2017 Date of orders: 22 August 2017 Decision date: 22 August 2017 Jurisdiction: Common Law Before: Hamill J Decision: 1. The evidence of the letter and the text message in response is not admissible as an admission by Candace Martin. 2. The evidence of Candace Martin's attempt to retrieve the letter and her lies in relation to the letter are admissible to prove a consciousness of guilt. 3. Order that Candace Martin be tried separately to Michael Phillip Martin. Catchwords: CRIMINAL LAW – evidence – admission by silence – tacit admission – husband and wife accused of murdering husband's father – whether failure of wife to rebut inference in husband's letter that she was involved evidence of an admission – where letter long and discursive – circumstances where silence may constitute an admission – where wife attempts to retrieve letter – where wife lies to police about knowledge of letter – evidence not admissible as an admission – admissible in different form to establish consciousness of guilt

CRIMINAL LAW – separate trial application – where evidence of letter excluded as admission – letter to be considered by jury on different bases in case against each accused – where accused jointly charged – where substantial body of evidence admissible against both accused – where large parts of evidence not to be disputed by applicant for separate trial – where other evidence to be admitted against one accused only – where case against co-accused stronger than case against applicant for separate trial – whether accused embarrassed or prejudiced in conduce of defence – interests of justice Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 Guimond v. The Queen (1979) 44 CCC (2d) 481 Mundey v Askin [1982] 2 NSWLR 369 R v Freeman, unreported NSWCCA 18/12/86 R v Grills (1910) 11 CLR 400; [1910] HCA 68 R v Middis and Ors, unreported SC (NSW), 27 March 1991 R v MMJ [2006] VSCA 226 R v Pham [2004] NSWCCA 190 R v Roff [2015] NSWSC 1853 R v Simmons; R v Moore (No 4) [2015] NSWSC 259 Redman v R [2015] NSWCCA 110 Symss v R [2003] NSWCCA 77 Thatcher v Charles (1961) 104 CLR 57 [1961] HCA 5 The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32 Woon v The Queen (1964) 109 CLR 529 [1964] HCA 23 at 541 Category: Principal judgment Parties: Regina M P Martin C Martin Representation: Counsel: Mr B G Campbell (Crown) Mr G D Wendler (M P Martin) Mr S Healy (C Martin)