Citation: DTS v Regina [2008] NSWCCA 329
Court: NSW Court of Criminal Appeal
Date: 19 December 2008
Judge(s): Beazley JA; Kirby J; Hall J
Background
The appellant was convicted in the District Court of aggravated indecent assault under s 61M(1) of the Crimes Act 1900. The complainant, aged 12 at the time, alleged the appellant sat between her and a friend and touched and squeezed her breast. The friend gave evidence that broadly confirmed the seating arrangement and the appellant placing his arms around them, though she did not witness the breast touching itself. The jury acquitted the appellant on a second count and could not reach a verdict on a third.
The trial judge gave a Murray direction (a warning requiring the jury to scrutinise the complainant's evidence with particular care before using it as a basis for conviction) in respect of counts 2 and 3, but not count 1. The trial judge also admitted relationship evidence of prior sexual conduct by the appellant towards the complainant over several years.
The appellant appealed his conviction on the basis that the trial judge erred in not giving a Murray direction on count 1, that the omission confused the jury, that the direction given on the other counts was flawed, and that the jury should have been instructed that the relationship evidence needed to be proved beyond reasonable doubt.
Legal Issues
- Whether the trial judge erred in failing to give a Murray direction in respect of count 1
- Whether the absence of a Murray direction on count 1 created confusion for the jury, given the Crown's heavy reliance on the complainant's evidence
- Whether the trial judge erred in framing the Murray direction on counts 2 and 3 as a requirement of law rather than by reference to the specific facts
- Whether the jury was required to be directed that relationship evidence must be proved beyond reasonable doubt
Decision
Murray direction on count 1: The Court of Criminal Appeal dismissed the argument that a Murray direction was mandatory on count 1. The purpose of such a direction is to ensure a fair trial and avoid a miscarriage of justice, and strict legal corroboration is not the determinative factor in whether one is required. Here, the complainant's account of the circumstances of the offence was substantially supported by her friend's evidence, even though that friend did not witness the actual touching. The solicitor for the appellant had already drawn the jury's attention to the inconsistencies in his address, making it unnecessary for the trial judge to repeat those matters through a formal warning.
Jury confusion: The Court rejected the argument that the jury would have been confused by the absence of a direction on count 1. Because some supporting evidence existed, this was not a purely "word against word" case, and the trial judge was entitled to conclude no direction was required.
Terms of the Murray direction (obiter): The Court observed, without deciding the point definitively, that a Murray direction ought to be tailored to the specific circumstances of the case rather than given in general terms. The Court also flagged, as an obiter observation, that there may have been a real question whether the trial judge erred in telling the jury the warning was given as a matter of law rather than because of features of the evidence. However, since this issue was not critical to the outcome, no finding of error was made.
Relationship evidence and standard of proof: Applying the Court of Criminal Appeal's recent decision in DJV v R [2008] NSWCCA 272, the Court held that where evidence is adduced as relationship (context) evidence rather than tendency evidence, no direction is required that it be proved beyond reasonable doubt. The Court noted that HML v The Queen (2008) 82 ALJR 723, on which the appellant relied, was decided in a common law context and that the High Court was not unified in its approach, leaving its application in New South Wales uncertain.
Orders Made
- The appeal is dismissed.
Key Takeaways
- A Murray direction is not automatically triggered by the absence of full corroboration or the presence of inconsistencies in supporting evidence. The question turns on whether fairness and the avoidance of a miscarriage of justice require the direction in the particular circumstances of the case.
- Where the defence has already highlighted evidentiary discrepancies to the jury in closing address, that factor is relevant to whether the trial judge is required to also give a Murray direction.
- A case is not necessarily one of "word against word" where some supporting evidence exists, even if that evidence falls short of strict legal corroboration.
- In dismissing the appeal on the relationship evidence ground, the Court of Criminal Appeal confirmed that context (relationship) evidence in sexual assault proceedings does not attract a requirement to be proved beyond reasonable doubt, distinguishing it from tendency evidence, which does.
- The Court noted in obiter that a Murray direction, when given, should be linked to the circumstances of the individual case, and that framing such a direction purely as a legal requirement rather than by reference to the facts may warrant scrutiny in future cases.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66D, 405C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Evidence Act 1995 (NSW), s 164
Cases:
- R v Murray (1987) 11 NSWLR 12
- Tully v R [2006] HCA 56; (2006) 231 ALR 712
- Robinson v R [1999] HCA 42; 197 CLR 162
- DJV v R [2008] NSWCCA 272
- HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 82 ALJR 723
- Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
- Gipp v R [1998] HCA 21; (1998) 194 CLR 106
- Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
- BRS v R [1997] HCA 47; (1997) 191 CLR 275
- Doney v R [1990] HCA 51; (1990) 171 CLR 207
- Doggett v R [2001] HCA 46; 208 CLR 343
- R v Baskerville [1916] 2 KB 658
- R v FJB (1999) 105 A Crim R 567
- Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
- Bromley v The Queen (1986) 161 CLR 315