Murray Direction

Lee J

At 13

The appellant appeals against his conviction on six charges of sexual intercourse without consent under the Crimes Act 1900, s 61D, and one charge pursuant to s 89, of taking the girl, the victim, Wendy, by force with intent to have carnal knowledge with her. He was sentenced on each count to seven years penal servitude, the sentence to be served concurrently and a non-parole period of five years was specified.

The trial took place before Loveday DCJ and a jury of twelve in the District Court at Penrith on 12 May 1986. The grounds of appeal allege failure by the learned trial judge to give adequate directions to the jury and a

ground that the verdicts are unsafe and unsatisfactory is also relied upon.

At 18

The next ground of appeal taken relates to the curious situation which has arisen under the Crimes Act in regard to the giving of directions in sex cases in regard to corroboration. Section 405C(2) provides that:

“On the trial of a person for a prescribed sexual offence, the Judge is not required by any rule of law or practice to give, in relation to any offence of which the person is liable to be convicted on the charge for the prescribed sexual offence, a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed.”

The ground of appeal is “that in the circumstances of the case, his Honour erred in confining his direction upon corroboration to the second count in the indictment”. The second count was the count under the Crimes Act, s 89, and at common law that count was one which required a direction that it would be unsafe to convict on the uncorroborated evidence of the complainant. The remaining six counts, however, all fell within the terms of s 405C and accordingly in law required no such direction.

At 19

Section 405C(2) has brought about the result that women are no longer, in the eyes of the law, to be put before juries as persons whose evidence requires corroboration before it is safe to act upon it. That concept which has been in the law for a long time has now gone. That, of course, does not mean that a judge cannot draw attention to the absence of corroborating testimony from witnesses who are shown by the evidence to have been present and able to offer corroboration of the girl's story, if it were true, nor does it preclude the judge from making such observations as he considers ought to be made about the credibility of the complainant's evidence, but always with the proviso, of course, that he must make it clear to the jury that those are his opinions and that the weight to be given to the testimony of the woman is entirely a matter for the jury. The fact that a judge does not comment upon the absence of corroboration of the complainant's evidence cannot, in my view, in the case of those offences to which s 405C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable.

There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case.

Maxwell J

At 20

I agree with the orders proposed by Lee J and I have nothing to add.

Yeldham J

At 20

I too agree and I would add only this in relation to the ground based upon his Honour's direction concerning complaint….

The Court (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ)

1. The principal issue in this appeal concerns the meaning and effect of s 632 of the Criminal Code (Qld), which came into force on 1 July 1997, and which concerns warnings and comments by trial judges to juries.

2. Following a trial before Judge Healy QC and a jury, the appellant was convicted of two offences of unlawful anal intercourse with a child under the age of 12 years. He was sentenced to concurrent terms of imprisonment of six years for each offence.

…

17. Section 632 provides:

"(1) A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.

(2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.

(3) Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses."

18. Sub-section (1) of s 632 does not materially alter the common law, putting to one side the exceptional case of perjury. As Lord Diplock explained in Director of Public Prosecutions v Hester, in common law systems, unlike some other systems, an accused can be convicted on the testimony of a single witness. The sub-section restates the general common law rule, and, to an extent, establishes the context of what is to follow.

…

21. Sub-section (2) negates a requirement, either generally or in relation to particular classes of case, to warn a jury "that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness". That does not mean, however, that in a particular case there may not be matters personal to the uncorroborated witness upon whom the Crown relies, or matters relating to the circumstances, which bring into operation the general requirement considered in Longman. Moreover, the very nature of the prosecution's onus of proof may require a judge to advert to the absence of corroboration. In R v Murray, Lee J, discussing a similar New South Wales provision which was limited to sexual offences, said…

…

24. In the present case there would have been no difficulty in framing a warning which did not transgress the prohibition in sub-section (3).

25. As the dissenting judgment in the Court of Appeal pointed out, there were particular features of the case which demanded a suitable warning. Without seeking to describe these features exhaustively, they included the age of the complainant at the time of the alleged offences, the long period that elapsed before complaint, which in turn meant that it was impossible for a medical examination to verify or falsify the complaint, and the inconsistency in some aspects of the complainant's evidence as to whether penetration occurred. A curious feature of the case was the absence of any conversation of any kind, on the evening in question or later, between the complainant and the appellant, about the appellant's conduct. There was no threat, and no warning to the complainant not to tell anyone. The complainant and the appellant maintained a harmonious relationship. There was no suggestion of any earlier or later misconduct by the appellant towards the complainant. An important aspect of the inconsistency and uncertainty about the matter of penetration was that the complainant said he was asleep when the first act of penetration occurred, and that he woke up while it was going on. Finally, some features of the history of complaint may have indicated a degree of suggestibility on the part of the complainant.

26. Taken together with the absence of corroboration, these matters created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt. That warning should have referred to the circumstances set out above, and should have been expressed in terms which made clear the caution to be exercised in the light of those circumstances.

Grove J

1. Following a ruling by the presiding judge Dodd DCJ concerning intended use of evidence on the basis of tendency or coincidence, the appellant was tried successively before his Honour and juries on two indictments involving female victims.

…

66. Ground 3 contends that the trial judge erred in failing to give a direction to the jury in accordance with R v Murray 1987 11 NSWLR 12 concerning the uncorroborated evidence of the complainant.

…

71. I would not draw any distinction between the words “examine carefully” and “carefully scrutinize”. They convey the same precaution. The submissions on behalf of the appellant overlook that the incantation “scrutinize with great care” was not used at trial in Murray and the appeal in that case was in fact dismissed.

72. There is no mandate to give a Murray direction, as Lee J’s expression that it was customary, shows. Nor is there, if following the custom, an obligation to use any formula of particular words or in particular to use the verb scrutinize.

73. The cautions given by his Honour were entirely adequate to the issues of the trial and ground 3 is not made out.

James J

…

112. I agree that for the reasons given by Grove J in his judgment the orders proposed by his Honour should be made.

Simpson J

…

114. I have read in draft the judgment of Grove J, with which I agree, and the additional remarks of James J, with which I also agree.

Mason P

1. I agree with Howie J

James J

2. I agree with Howie J

Howie J

3. The appellant stood trial before Patten AJ (the Judge) on a charge of murder. The jury convicted him and, as a result, on 26 August 2005 the Judge sentenced him to imprisonment for 18 years with a non-parole period of 13 years and 6 months. That sentence commenced on 18 March 2002 and the appellant is eligible for release to parole on 17 September 2015. The appellant had also previously pleaded guilty to a charge of armed robbery with a dangerous weapon while in company. The Judge sentenced him for that offence on 1 September 2005 to imprisonment for 13 years with a non-parole period of 9 years and 9 months. That sentence was wholly concurrent with the sentence for murder. He appeals against conviction for the offence of murder and makes application for leave to appeal against the sentences for both murder and armed robbery.

…

6. The appellant admitted that he was involved with Wigney in the robbery, as he had pleaded guilty to an offence of armed robbery arising from the incident. However it was his case that Wigney was not telling the truth as to the appellant’s involvement with the pistol and he argued that the jury could not be satisfied beyond reasonable doubt that the appellant had any knowledge that the weapon was loaded. The appellant did not give evidence at the trial nor had he participated in an interview with police. Therefore there was no account given by the appellant of his involvement in the robbery or his knowledge or otherwise of the fact that Wigney was in possession of a loaded firearm.

…

Ground 5

There was a miscarriage of justice because proof of one of the elements of the offence depended upon the uncorroborated evidence of the witness Wigney and the trial judge did not give a “Murray” direction.

69. The evidence of Wigney that the appellant had wiped the gun and the bullet to remove fingerprints was uncorroborated. The argument is that it was essential for the jury to find that the accused knew that the weapon was loaded before he could be found to have in contemplation that it might be discharged. The only evidence that he knew it was loaded came from Wigney. Therefore, so the argument runs, the evidence of Wigney, being essential to the Crown case and uncorroborated, should have been the subject of a Murray direction. I will assume for the purpose of this ground of appeal that the evidence of Wigney was essential to the Crown case.

…

71. It has never to my knowledge been held that the absence of a Murray direction will necessarily result in a miscarriage of justice. The failure of a judge to give such a direction does not result in a fundamental defect in the trial that goes to the root of the proceedings as the appellant contends. The direction merely emphasises what should be clear from the application of the onus and standard of proof: if the Crown case relies upon a single witness then the jury must be satisfied that the witness is reliable beyond reasonable doubt.

…

73. In my view the directions and warnings given by the trial judge to the jury about the evidence of Wigney generally and its potential unreliability were more than adequate to emphasis the necessity for the jury to scrutinize the evidence of Wigney to ensure that they were satisfied of his reliability before convicting upon his evidence. This was no requirement to give a Murray direction especially as defence counsel did not seek one. The ground should be rejected.

Basten J

2. The trial of the applicant was conducted by a judge sitting without a jury. Such a procedure is permitted under the Criminal Procedure Act 1986 (NSW), s 132. Section 133 operates in those circumstances, and provides…

3. The primary focus of the present appeal was on the nature of the “warnings” required to be taken into account pursuant to s 133(3) and the need to record such warnings in compliance with Fleming v The Queen. That issue is dealt with below…

…

21. The kinds of case in which a warning was frequently required under the general law, but “which would not generally attract a warning under s 165” were identified by Howie J. A helpful list (applicable in sexual assault cases) is also to be found in the judgment of Wood CJ at CL in R v BWT. Of particular significance in the present case, is the first matter identified by Wood CJ at CL, namely a Murray direction “to the effect that where there is only one witness asserting the commission of a crime, the evidence of that witness ‘must be scrutinised with great care’ before a conclusion is arrived at that a verdict of guilty should be brought in”.

22. That particular situation is not expressly identified in s 165(1). Nor is it necessarily an element of unreliability: that is, the mere fact that only one person is in a position to give particular evidence does not mean that that person’s evidence is unreliable. Rather, the justification for the Murray direction is better understood as a consequence of the presumption of innocence and the concomitant requirement that the prosecution establish its case beyond reasonable doubt. In this Court, the applicant raised an issue both as to the failure to record a direction as to the presumption of innocence and the failure to identify a warning based on the unreliability of the complainant’s evidence. To the extent that a warning of the general kind identified by Wood CJ at CL is required, it does not fall (or does not entirely fall) within the terms of s 165. There remains, however, a question as to the limitations on warnings imposed by other provisions or the general law.

…

25. Section 294AA(3) expressly recognises that the section will impose constraints on what might otherwise be permitted or required under ss 164 and 165 of the Evidence Act. To determine its effect with respect to a direction reflecting the discussion in R v Murray, it is necessary to identify the terms of the direction approved in Murray. Thus, Lee J said:

“The fact that a judge does not comment upon the absence of corroboration of the complainant’s evidence ... does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.”

26. In its terms this proposition could have wide application and indeed in some cases no application where some warning might be thought desirable because, for example, the prosecution case depends on circumstantial evidence. “One witness” cases may include cases depending on DNA identification, or confessions to a single person, as well as complainants in sex offences. However, Lee J had in mind only sex offences, where “absence of corroboration of the complainant’s evidence” might previously have given rise to a mandatory warning. Indeed, if that is the true scope of a Murray direction, it must now be reformulated to comply with s 294AA.

27. There is no basis in the terms or intendment of s 294AA to qualify the well-established principle as to the burden of proof in relation to criminal prosecutions. However, there is a fine line, which must be approached with some care, between a warning focusing the minds of the jury on the burden of proof borne by the prosecution, and a “suggestion” that complainants as a class are unreliable. Subsection (1) is directed towards reliance on stereotypical assumptions, which should be contradicted by a firm direction to focus on the evidence and the witness. Subsection (2) is not directed to the propriety of drawing the attention of the jury to the lack of supporting evidence, but rather focuses on the importance of not warning the jury of “the danger” of convicting on the uncorroborated evidence of the complainant. As noted by the Victorian Court of Appeal in Greensill v The Queen, referring to a report of the Victorian Law Reform Commission supporting a similar provision in that State, the words “dangerous or unsafe to convict” were “likely to be interpreted by juries as a direction to acquit.”

…

37. Bearing these general considerations in mind, I gratefully adopt the careful analysis of the caselaw undertaken by Simpson J. I agree with her conclusions.

Simpson J

38. On 12 February 2013, in the District Court at Bathurst, the appellant was arraigned on an indictment that charged two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) the appellant (with the agreement of the Crown) elected to be tried by judge alone. The trial proceeded before Bennett DCJ. On 27 February Bennett DCJ found the appellant guilty of both offences and entered convictions accordingly. The appellant entered a plea of guilty to a charge identified on a certificate under s 166(1)(b) of the Criminal Procedure Act of supplying a prohibited drug (amphetamine). At some point he was also charged with (and apparently pleaded guilty to) an offence of breaching a bond.

…

44. During the evening, others came and went. Michael Godfrey, a cousin of the complainant, arrived sometime between 10.00pm and 11.00pm. Amphetamines were produced and consumed. The group sat around a table in the back yard. The complainant continued to drink the bourbon. She had become moderately affected by the alcohol. Sometime after midnight, Ms Burt borrowed the complainant’s telephone. Not long after that, the appellant and another man (Steven Foster) arrived and joined the party. A little later the complainant was preparing to leave. The appellant, who was standing in the doorway of a bathroom, invited her to join him, saying that he had something to show her. He ushered her into the bathroom, shut the door, pushed her head down and forced her to perform fellatio upon him. The complainant lost consciousness for a time. When she recovered, she was lying on the floor, partly undressed. The appellant was behind her, having penile/vaginal intercourse.

…

95. The grounds of the appeal against conviction are pleaded as follows:

“1. The trial judge erred in failing to direct himself on the presumption of innocence;

2. The trial judge erred in failing to give himself a Robinson/Murray type of warning and/or failing to take heed and apply such warning;

              …

…

110. The effect of Murray was to endorse a narrow construction of s 405C, so that it applied to a direction in general terms that there existed a danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class. This interpretation was confirmed by the High Court in Longman at p87. It thus remained open to a trial judge to direct the jury in the circumstances of a particular case that where there was only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care before the accused person could be convicted. Moreover, the statement that such a direction was “customary” “in all cases of serious crime” appears to have been widely interpreted as mandating such a direction. That may have been to read more into the statement than Lee J intended.

…

132. What emerges from this review is that, in every case where it was held by the High Court that the verdict of guilty (whether verdict of a jury or judge alone) was flawed by reason of the failure to give a warning to the effect that the complainant’s evidence must be scrutinised with great care, there were circumstances other than the absence of corroboration of the complainant’s evidence that led to that conclusion. There is no case, post s 405C, in which it has been held that the failure to give a warning (to a jury, or, notionally to the trial judge) to the effect that the absence of corroboration alone calls for a direction in accordance with Murray.

…

137. The question of the possible effect of s 294AA on the statement in Murray was raised by the Court and the parties were given an opportunity to make further submissions. The parties were united in their response. They agreed that s 294AA has no bearing on whether or not a “Murray direction” is called for. I cannot accept that position.

…

140. A “Murray direction”, based only on the absence of corroboration, is, in my opinion, tantamount to a direction that it would be dangerous to convict on the uncorroborated evidence of the complainant.

141. The injunction contained in s 294AA is directed to what is, in substance, the content of the Carr direction. If the direction given suggests that merely - I emphasise merely - because a complainant’s evidence is uncorroborated, it would be, on that account, dangerous to convict, it transgresses s 294AA(2). The critical aspect of s 294AA is the substance of the direction that is prohibited. It cannot be avoided by switching from one linguistic formula (“dangerous to convict”) to another (“scrutinise the evidence with great care”). However formulated, the substance of the direction is the same - that, merely because the evidence is uncorroborated, it would be unsafe for the jury to act upon it.

…

145. But, as has frequently been observed, sexual offences typically are committed in private, when only the perpetrator and the victim are present. In that case, a direction concerning the absence of corroboration has little to do except suggest unreliability on the part of the complainant.

146. Since it was only the absence of corroboration that was said to give rise to the requirement of a “Murray direction”, this ground must fail. Not only was such a direction not required, it was prohibited by s 294AA(2).

Davies J

238. I agree with the orders proposed by Simpson J and her Honour’s reasons for those orders. I also agree with the additional remarks of Basten JA.