Citation: Director of Public Prosecutions v Murphy (a pseudonym) [2023] NSWLC 11
Court: Local Court of New South Wales
Date: 9 August 2023
Judge: Nash LCM
Background
The accused (referred to by pseudonym to protect the complainant's identity) was charged with sexually touching a five-year-old child, contrary to section 66DA(a) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 16 years imprisonment. The alleged offending occurred between September and November 2021 at a residential property in Kempsey, while the complainant was staying with her mother and the accused.
The complainant's parents had separated, and a family law dispute meant the complainant moved between households. The accused was in a relationship with the complainant's mother. The prosecution alleged that on one occasion, while the complainant's mother was in the kitchen preparing a meal, the accused touched the complainant's vagina with his hands in the mother's bedroom.
The accused pleaded not guilty and gave evidence denying the allegation. The Crown's case rested substantially on the complainant's recorded police interview, conducted when she was five years old, along with supporting evidence from the complainant's father, stepmother, mother, and maternal grandmother.
Legal Issues
- Whether the court could be satisfied beyond reasonable doubt that the accused sexually touched the complainant, within the meaning of section 66DA(a) and section 66HB of the Crimes Act 1900 (NSW), where the Crown's case relied substantially on the evidence of a single witness (the complainant)
- Whether the complainant's evidence was credible, reliable, and honest to the requisite standard, bearing in mind her age (five years old at interview), the nature of the disclosure, and minor internal inconsistencies
- How to apply the Murray direction (caution when the Crown's case depends substantially on one witness) and the Liberato direction (approach to an accused's sworn denial)
- Whether the accused's criminal history, which included no prior sexual offences, warranted a character direction of any kind
Decision
Issue 1: Murray direction and the complainant's evidence
The court applied the Murray direction, acknowledging that caution was required before convicting on the basis of a single witness (at [22]-[26]). After careful scrutiny, the court found the complainant to be an honest and accurate witness whose account was credible, reliable, and honest beyond reasonable doubt (at [94]-[112]).
The complainant provided consistent and detailed evidence about the location, manner, and circumstances of the touching, including her identification of the vaginal area on a sketch and her description of not wearing underwear beneath her skirt (at [95]-[98]). Her account of her mother entering the room and saying "stop being rude" remained consistent from her first complaint in January 2022 through to cross-examination in May 2023 (at [103]). The complainant was only asked two questions in cross-examination, and her answers reinforced rather than undermined her account (at [104]-[105]).
A minor inconsistency about whether the incident occurred near lunchtime or dinnertime was found to elevate rather than undermine credibility, as it reflected developmentally appropriate confusion for a child of her age and was consistent with the broader narrative that the complainant was unsupervised while her mother prepared a meal (at [107]-[108]). The complainant also did not embellish her account and confined the offending to a single occasion (at [109]).
Issue 2: The evidence of the accused's partner and the maternal grandmother
The court found that the maternal grandmother's evidence was fundamentally unreliable and manufactured to exclude the possibility that the accused had opportunity to commit the offence (at [120]-[122]). Evidence from both the Crown case and the defence case directly contradicted her unequivocal denials, leading the court to disregard her evidence entirely (at [122]).
The court found that the mother's evidence was similarly contrived. While her evidence initially sought to establish that the accused was rarely present and never alone with the complainant, it became internally inconsistent under questioning (at [123]-[128]). She conceded occasions when the complainant was unsupervised in a bedroom, and the photographs in evidence confirmed that the kitchen had no line of sight into the bedrooms (at [127]). Recorded telephone calls tendered in evidence further revealed the mother's persistent and pre-formed disbelief of the allegations and her apparent loyalty to the accused (at [130]-[134]). The court rejected her evidence as manufactured and found that it cast no reasonable doubt on the complainant's account (at [136]).
Issue 3: The Liberato direction and the accused's evidence
The court applied the Liberato direction given the accused's sworn denial (at [28]). The accused gave evidence in absolute terms that he was never alone with the complainant, a claim the court found implausible given the living circumstances described (at [137]-[138]). The accused also stated in cross-examination that he never checked on the children because "that's their mother's job," which was internally inconsistent with his own description of himself as a father figure (at [137]). The court rejected his evidence as manufactured to eliminate opportunity, and found that it raised no reasonable doubt about the Crown's case (at [138]).
Issue 4: Character direction
The accused submitted that his lack of prior sexual offending convictions warranted a character direction. The court declined to apply one. While the accused's record contained no sexual offences, it ran to 38 pages and included multiple terms of imprisonment for serious violent offending, including a conviction for firing a firearm at a dwelling house (at [139]-[141]). The court found the record did not make it unlikely the accused committed the alleged offence, and did not use it to affirmatively bolster the Crown's case (at [141]).
Orders Made
- The court found each element of the offence against section 66DA of the Crimes Act 1900 (NSW) proved beyond reasonable doubt and entered a verdict of guilty.
- The accused was convicted of the offence.
- The proceedings were adjourned for sentencing on a date convenient to the parties.
Key Takeaways
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A Murray direction requires a court sitting without a jury to scrutinise a single witness's evidence with particular caution, but caution does not preclude conviction where the court is satisfied beyond reasonable doubt that the witness is both honest and accurate (at [22]-[26]).
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Developmentally appropriate inconsistencies in a child complainant's account, such as minor confusion about the timing of an event, need not undermine credibility and may, depending on the circumstances, actually reinforce an assessment that the child was giving an authentic account rather than a rehearsed one (at [107]-[108]).
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Where witnesses give evidence designed to eliminate opportunity for the accused to have committed an offence, and that evidence is contradicted by other material before the court, a tribunal of fact may reject such evidence outright as manufactured and find that it casts no reasonable doubt on the complainant's account (at [120]-[122], [136]).
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An absence of prior sexual offending convictions does not automatically entitle an accused to a character direction where the accused's criminal history is otherwise extensive and includes serious offending (at [139]-[141]).
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Recorded telephone calls between parties in a case involving family law proceedings and hostile parental relationships can provide relevant context about a witness's state of mind and the credibility of their evidence in related criminal proceedings (at [129]-[135]).
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
Cases
- Awad v The Queen; Tambakakis v The Queen [2022] HCA 36
- De Silva v The Queen (2019) 268 CLR 57
- Liberato v The Queen (1985) 159 CLR 507
- R v Murray (1987) NSWLR 12