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Family to relive heartache in retrial

Last updated 20:00 11/04/2014
Andy Marshall
KILLED DURING A NIGHT OUT: Andy Marshall was following his dream of becoming a professional musician in Australia.

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A man found guilty by a jury of murdering a New Zealand-born musician by shoving him through a second storey pub window will face a re-trial before a judge.

Stefan Pahia Schmidt was in 2012 handed a life sentence for killing Andy Marshall, a musician, at Cottesloe's Ocean Beach Hotel in May 2011.

The conviction was overturned in August, with West Australian Court of Appeal judges ruling there had been a miscarriage of justice because the trial judge did not adequately direct the jury on an essential element of the case against Schmidt.

Andy Marshall's aunt, Jo Guy, who is also the mother of his cousin Scott Guy, shot dead in July 2010, said the retrial would mean the family would relive their heartache over his death, she said.

"Whatever happens it doesn't bring Andy back. That's what we learnt a bit with our trial. It was very difficult.

"We're just there to support each other with whatever comes.

"It just re-opens everything," Guy said.

Schmidt had claimed during the trial that the death was an accident because he only meant to push Mr Marshall out of the way, after becoming annoyed that he had made a remark as he was was speaking with two girls who Schmidt knew.

The trial heard Mr Marshall had his back to the window when Schmidt swore at him and pushed him through it.

''The jury may have reasoned towards a conclusion of guilt without being satisfied beyond reasonable doubt that Mr Schmidt intended to cause Mr Marshall to impact and break the window, which was an essential step on the path to a conclusion of guilt of murder,'' Chief Justice Wayne Martin said at the time.

On Friday, Justice Lindy Jenkins agreed with a submission from Schmidt's barrister Simon Watters that the re-trial should be heard by a judge alone.

Mr Watters had argued at a hearing on Monday that any jury at a re-trial would be aware of Schmidt's previous conviction for murder because of media coverage and that a suppression order related to the accused's links to outlaw motorcycle gang Rock Machine was an insufficient safeguard to ensure a fair trial.

The order has been lifted.

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- AAP

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