Citation: Regina v L J Murphy [2000] NSWCCA 297 revised – 23/08/2000
Court: NSW Court of Criminal Appeal
Date: 23 August 2000
Judge(s): Spigelman CJ, Grove J, Kirby J (Kirby J delivering the leading judgment; Spigelman CJ and Grove J agreeing)
Background
The appellant was charged with two counts of sexual intercourse without consent under s 61D of the Crimes Act 1900, relating to alleged offences committed in 1981 to 1982 at Bondi. The complainant was 14 years old at the time and described herself as a "street kid" residing at a Paddington youth refuge. The charges were laid approximately fifteen years after the alleged events.
On advice, the appellant elected to be tried by a judge alone pursuant to s 16(1) of the Criminal Procedure Act 1986. Acting Judge Downs QC convicted the appellant on both counts and sentenced him to six years' penal servitude (with a four-year minimum term), with the sentences to be served concurrently.
The appellant appealed against both convictions and sought leave to appeal against sentence. The central concern on appeal was the adequacy of the trial judge's reasons and his engagement with the evidence, including significant inconsistencies between prosecution witnesses.
Legal Issues
- Whether the trial judge satisfied the obligations imposed by ss 17(2) and 17(3) of the Criminal Procedure Act 1986 to canvas the evidence, address the arguments, and give adequate reasons in a judge-alone criminal trial.
- Whether the trial judge adequately recognised and evaluated the need for caution when assessing the complainant's uncorroborated evidence, particularly given the significant delay between the alleged events and the trial.
- Whether the trial judge gave sufficient consideration to material inconsistencies in the evidence, including the evidence of a key Crown witness that contradicted the complainant's account in several respects.
- Whether the convictions should be quashed and a new trial ordered, or whether the evidence was so deficient that no new trial was warranted.
Decision
The Court of Criminal Appeal, in reasons delivered by Kirby J, identified errors of law under both ss 17(2) and 17(3) of the Criminal Procedure Act 1986. Those provisions require a judge conducting a criminal trial without a jury to canvas the evidence and arguments and to give reasons for the verdict. The Court found that Acting Judge Downs QC had not done so with sufficient rigour.
A central difficulty was the trial judge's treatment of the complainant's evidence. Her account on the two counts (penetration on two occasions) was unsupported in vital respects, yet the judge never posed the question of whether her evidence was reliable. The Court found he was obliged to acknowledge, expressly, that her evidence required scrutiny with great care given the absence of corroboration, consistent with principles drawn from Longman v The Queen (1989) 168 CLR 79.
The trial judge also failed to address the evidence of Ms Karen O'Riordan, who had attended the nightclub with the complainant on the relevant evening. Ms O'Riordan's account was starkly inconsistent with the complainant's version of events at the nightclub in several material respects, yet the judgment made no reference to those differences. Similarly, the Court found the trial judge's reasoning about the appellant's credibility did not adequately account for the relevance of the lengthy delay in the proceedings, which bore directly on whether any unreliability reflected dishonesty or mere fallibility of memory.
Despite finding these errors, the Court was unable to conclude that it was unreasonable for the trial judge to have believed the complainant, or that the evidence was of such a quality that a reasonable doubt ought to have existed. Accordingly, the appropriate remedy was a new trial rather than an acquittal.
Orders Made
- The appeal was allowed.
- The convictions and sentence were quashed.
- A new trial was ordered.
Key Takeaways
- In a judge-alone criminal trial under the Criminal Procedure Act 1986, ss 17(2) and 17(3) impose a positive obligation on the trial judge to canvas the evidence, engage with the arguments, and give reasons for the verdict. Failure to do so constitutes an error of law.
- Where a complainant's evidence is uncorroborated on vital elements, the judge conducting a trial without jury must expressly acknowledge the need for careful scrutiny of that evidence and evaluate it accordingly.
- A conviction may be quashed for inadequate reasoning even where an appellate court cannot conclude that an acquittal was the only possible outcome. The remedy in such cases is ordinarily a new trial.
- Significant inconsistencies between prosecution witnesses on material facts require express engagement in the reasons for verdict. The Court found it was error to deliver judgment without any reference to the ways in which Ms O'Riordan's evidence differed from the complainant's account.
- The substantial passage of time between alleged events and trial is a factor relevant not only to the reliability of evidence generally, but also to the distinct question of whether an accused's inaccuracies reflect dishonesty or the ordinary effect of delay on memory. That distinction required explicit consideration.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61D
- Criminal Procedure Act 1986 (NSW), ss 16(1), 17(2), 17(3)
- Evidence Act 1995 (NSW), ss 128, 132, 165
Cases:
- Fleming v The Queen (1998) 158 ALR 379
- Carlson v The King (1947) 64 WN (NSW) 65
- NSW Medical Defence Union Limited v Crawford [No 2] (NSWCA, 30 June 1994)
- Soulemezis v Dudley (Holdings) Pty Limited (1987) NSWLR 247
- R v Maxwell (CCA, unreported, 23 December 1998)
- R v Johnston (1998) 45 NSWLR 362
- R v Longman (1989) 168 CLR 79
- Bromley v The Queen (1986) 161 CLR 315