Retrial begins into NZ man's murder

KILLED DURING A NIGHT OUT: Andy Marshall was following his dream of becoming a professional musician in Australia.
KILLED DURING A NIGHT OUT: Andy Marshall was following his dream of becoming a professional musician in Australia.

A rugby league player who pushed a New Zealand musician through the second storey window of a Perth pub insists he didn't mean to kill him.

In 2012 Stefan Pahia Schmidt was convicted and given a life sentence with a minimum jail term of 14 years for murdering Andy Marshall by pushing him through the second storey window of Cottesloe's Ocean Beach Hotel in May 2011.

But three West Australian Court Of Appeal judges unanimously determined in August last year that Schmidt would face a retrial, with Justice Michael Buss saying he could have been found guilty of manslaughter instead of murder.

STEFAN SCHMIDT: Found guilty of murder, granted a retrial.
STEFAN SCHMIDT: Found guilty of murder, granted a retrial.

Marshall, who lived in Feilding before moving to Perth, was the cousin of murdered farmer Scott Guy.

His family said last month that the retrial of his alleged killer would be like going back to the beginning of the three-year saga.

"Nothing changes for us. People probably think, 'It is three years on', but going back through it . . . it will start to feel like day one again," Marshall's father Alan said. 

At the opening of the judge-alone retrial in Western Australia's Supreme Court today, Schmidt offered to plead guilty to the lesser charge, admitting he had pushed Marshall but didn't mean to kill him.

But prosecutors rejected the plea deal.

During the original trial, the rugby league player, former bouncer, trained fighter and associate of the outlaw bikie gang Rock Machine said he only meant to push Marshall out of the way, annoyed that he had made a remark as he was was speaking with two girls who Schmidt knew.

The prosecution originally didn't allege Schmidt wanted to kill Marshall, rather that he intended to cause him bodily injury that was likely to endanger his life.

But at the re-trial, the state argued Schmidt had intended to cause injuries to Marshall that would have reasonably been foreseeable as being life threatening.

"One does not go through a window without suffering serious injury," prosecutor Bruno Fiannaca said.

The state would argue that Schmidt would have known the window was there as he was facing it, and would have known it was on the second storey as he had walked up stairs to reach the bar area where the altercation occurred.

Schmidt also immediately went to the window when it shattered and Marshall fell 5.5 metres to the pavement below.

He was clearly angry, punching another man on the way out of the venue.

And when he walked away from the pub, he glanced over his shoulder at the people scrambling to help Marshall.

"He was at that stage not in a state of shock or disbelief," Fiannaca said.

"If he was concerned, he would have provided some assistance."

Fiannaca also said text messages would show Schmidt was not as distressed as he had claimed and that he intended "the consequences of his actions".

A text to one his male friends read: "F*** you. Never again will you doubt me".

In his reply, the friend said it was "the last time you will ever play the alpha male".

Defence lawyer Colin Lovitt said Schmidt was a powerful man and the force of the push with his rugby "fending off arm" was greater than he intended.

Lovitt also said it was unknown if the window, which met safety standards when it was installed in 1979, had an inherent weakness or a crack.

The re-trial before Justice John McKechnie continues.