Citation: Murray v R [1999] NSWCCA 402
Court: NSW Court of Criminal Appeal
Date: 17 December 1999
Judge(s): Newman J, Studdert J, Hulme J (Hulme J delivering the principal judgment)
Background
The appellant was convicted in the District Court in September 1995 of armed robbery in company, arising from an incident on 20 December 1991 in which a portable telephone and a motor vehicle were taken from two complainants. He was sentenced to a minimum term of two and a half years imprisonment with an additional term of two and a half years. The jury failed to reach a verdict on a related count of assaulting a police officer in the execution of his duty.
The appellant lodged a notice of appeal in February 1998, well outside the 28-day statutory period. He argued that a notice had in fact been lodged in September 1995, shortly after conviction, and produced a copy bearing a Corrective Services stamp and a gaol note suggesting an appeal had already been registered. The Court accepted those documents as sufficient explanation to grant an extension of time.
The appeal proceeded on two grounds: first, that the trial judge wrongly admitted evidence that the two complainants had identified the appellant from photographs; and second, that the Crown Prosecutor had improperly cross-examined the appellant by asking him whether the Crown witnesses had fabricated their evidence, had motives to lie, or whether their consistent accounts must have been coincidental.
Legal Issues
- Whether the trial judge erred in admitting photographic identification evidence in circumstances where the Evidence Act 1995 identification provisions did not apply
- Whether the Crown Prosecutor's cross-examination of the appellant, which required him to comment on the credibility and motivations of other witnesses, gave rise to a miscarriage of justice
Decision
On the photographic identification ground, Hulme J applied the pre-Evidence Act framework established in Alexander v R (1980) 145 CLR 395. Under that framework, identification from police photographs is admissible, and on appeal the relevant question is not whether the process was conducted with propriety and fairness but whether, considering the whole of the evidence and the conduct of the trial, a miscarriage of justice occurred. Having regard to the circumstances in which the photographs were shown to the complainants, the surrounding police investigation, and the broader evidence at trial, the Court found no error in admitting the identification evidence and no miscarriage arising from it.
On the cross-examination ground, Hulme J accepted that the Crown Prosecutor should not have asked the appellant whether the Crown witnesses were fabricating evidence or lying. Questioning of that kind is objectionable because an accused cannot know the inner workings of another witness's mind, and such questions place the accused in an unfair position.
However, the Court found that no substantial miscarriage of justice resulted. The appellant's answers were firm and coherent throughout. Although one answer could be read as conceding that a witness may have been merely mistaken rather than dishonest, the passage as a whole made clear the appellant was not abandoning a fabrication case. The disputed questions occupied only 11 questions across roughly two and a half pages of a cross-examination spanning 23 pages, set within a trial involving 190-plus pages of summing up. The Court concluded the improper questions were a minor portion of the overall proceeding and caused no real prejudice.
All three judges agreed. Newman and Studdert JJ expressed their agreement with Hulme J's reasons.
Orders Made
- Appeal dismissed
Key Takeaways
- Under the pre-Evidence Act 1995 framework (applicable where Schedule 2 transitional provisions apply), photographic identification evidence is admissible and the appellate question is whether the verdict should stand given the whole of the evidence, not whether the identification procedure was conducted perfectly.
- Asking an accused in cross-examination to comment on whether Crown witnesses fabricated evidence, had motives to lie, or gave coincidentally consistent accounts is improper, because an accused cannot speak to another witness's state of mind.
- In dismissing the appeal, the Court confirmed that improper cross-examination does not automatically warrant appellate intervention: the operative test remains whether a substantial miscarriage of justice occurred.
- Proportionality matters in assessing prejudice: where impugned questioning represented only a small fraction of lengthy cross-examination and a lengthy trial overall, the court found no real risk the jury was misled.
- An extension of time to appeal may be granted where prison records and a contemporaneous document indicate the appellant timeously attempted to exercise appeal rights, even where the original notice did not reach the Court.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act (NSW), s 10
- Evidence Act 1995 (NSW), identification provisions (Schedule 2, Clause 9 of the Evidence (Consequential and Other Provisions) Act 1995)
Cases:
- Alexander v R (1980) 145 CLR 395 (High Court)
- Davies & Cody v The King (1937) 57 CLR 170
- R v Lawrence & Ors (1980) 1 NSWLR 122
- R v Unger (1977) 2 NSWLR 990