AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 4 June 2001

R v Murrell

[2001] NSWCCA 179

Also reported as (2001) 123 A Crim R 54
Homicide
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION MURDER JOINT CRIMINAL ENTERPRISE WHETHER NEW TRIAL SHOULD BE ORDERED

Citation: R v Murrell [2001] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 4 June 2001
Judge(s): Wood CJ at CL; Kirby J; Mathews AJ

Background

The appellant was convicted of the murder of Ahmed Homsi, who was killed by a shotgun blast through the front door of his home in November 1997. The Crown alleged the appellant and another man, referred to as "Norm", participated in a joint criminal enterprise to shoot up the premises, with Norm firing the fatal shot after the appellant allegedly directed him to fire through the front door.

Central to the Crown's case was a conversation recorded by a listening device installed in the appellant's home in mid-1998. The recording was of poor quality due to significant background noise. A detective had prepared a transcript, and the contents of that transcript were heavily disputed at trial.

The appellant appealed his conviction on several grounds, principally challenging the admissibility and reliability of the tape recording and its transcript, as well as arguing that fresh expert evidence had emerged which cast doubt on the words attributed to him.

  • Whether the admission of the disputed tape and transcript into evidence occasioned a miscarriage of justice
  • Whether the trial judge should have withdrawn the evidence from the jury once significant doubt arose about the tape's contents
  • Whether the trial judge gave adequate warnings about the unreliability of the transcript and the onus of proof regarding its contents
  • Whether the Crown case was sufficiently strong to go to the jury at all
  • Whether fresh expert evidence established that key inculpatory words were not spoken by the appellant
  • Whether the verdict was supported by the evidence
  • If the appeal succeeded, whether the court should enter a verdict of acquittal, order a new trial for murder generally, or limit a new trial to a lesser charge such as manslaughter

Decision

The Crown conceded, in light of fresh expert opinion on the tape's contents, that the words attributed to the appellant were less inculpatory than those it had relied upon at trial. The Court of Criminal Appeal accepted that this concession, combined with the new expert evidence, meant the appellant had lost a real chance of acquittal. This was sufficient to allow the appeal and quash the conviction.

On the question of remedy, the Court considered three options: entering a verdict of acquittal for murder, ordering a new trial confined to a lesser charge, or quashing the conviction and ordering a new trial generally. The Court confirmed that its role in this exercise is to assess what a reasonable jury must have reached, not to substitute its own view of the facts.

Wood CJ at CL concluded that, on the available evidence, a properly instructed jury would have to entertain a reasonable doubt about the appellant's guilt of murder. However, the appellant's words and conduct provided sufficient evidence to support a charge of manslaughter (based on a common enterprise to shoot up the premises) or accessory after the fact to murder.

The Court declined to enter a verdict of acquittal or to confine a new trial to manslaughter alone. Doing so risked creating a general acquittal that could give rise to an autrefois acquit argument (a plea that a person cannot be tried twice for the same matter) if the Crown sought to re-indict for accessory after the fact to murder. The appropriate course was to quash the conviction and order a new trial generally, leaving the Director of Public Prosecutions to determine which charges the available evidence would support.

Orders Made

  • Appeal allowed; conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • A Crown concession, supported by fresh expert opinion, that a defendant lost a real chance of acquittal is sufficient to ground an appeal and quash a conviction for murder.
  • Where a tape recording of critical evidence is poor quality and its transcript is genuinely disputed, the admission of that transcript without proper warnings to the jury can constitute a miscarriage of justice.
  • In determining whether to direct an acquittal or order a new trial, the Court of Criminal Appeal applies the standard of what a reasonable jury must have reached, not the court's own assessment of guilt.
  • A general new trial order, rather than an acquittal or a new trial limited to a lesser charge, may be the appropriate course where the original jury never considered manslaughter and the Crown may legitimately pursue that charge or a related one such as accessory after the fact to murder.
  • Under s 8(1) of the Criminal Appeal Act 1912, the Court of Criminal Appeal holds a wide discretion to order a new trial "in such manner as it thinks fit," including leaving the choice of charges to the Director of Public Prosecutions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18
- Criminal Appeal Act 1912 (NSW), s 8
- Criminal Procedure Act 1986 (NSW), s 125

Cases:
- Gallagher (1986) 160 CLR 392
- Mickelberg (1989) 167 CLR 259
- Pedrana [2001] NSWCCA 66
- Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
- Honeysett (1987) 10 NSWLR 639
- Kelly (1923) 32 CLR 509
- Callaghan (1952) 87 CLR 145
- Wilkes (1948) 77 CLR 511
- Nicholas (1989) 45 A Crim R 299
- Ward (1989) 42 A Crim R 56
- Hanias (1976) 14 SASR 137