Murphy v The Queen

Murphy v The Queen - [1989] HCA 28 - HCA 1986 case summary — Zoe

[88]

But it does not follow that that is sufficient to justify the setting aside of the conviction. The answer to the question, had it been allowed, may or may not have shown that Detective Sergeant Kennedy induced Murdoch's statement by an untrue representation. Street C.J. observed that the evidence that had been adduced, before Detective Sergeant Kennedy detailed the interview with Murdoch that led to the record of interview in question, was that on Sunday, 23 February 1986, that is, on the immediately preceding day, an unnamed informant, referred to throughout the trial as Miss X, "had taken part in an investigatory exercise involving the use of a concealed listening device in which she had a conversation with John Travers at the Blacktown Police Station. That having taken place on the Sunday, it would be reasonable to assume that the result of Miss X's venture was promptly made known to Det. Sgt Kennedy and that his interview at 12.40 am followed thereafter". However, the Court of Criminal Appeal was not entitled to make that assumption without pursuing the question which had been improperly disallowed. The Court was in no position to say whether counsel for Murdoch could have made out a case, based on s. 410(1)(a), for the rejection of the confessional material. Taking the view it did of the purpose of the question, the Court of Criminal Appeal did not pursue the necessary inquiry. It did not exhaust its function of ascertaining whether Murdoch's statement was inadmissible by reason of s. 410(1)(a). That issue having been left undetermined by the trial judge, it had to be determined by the Court of Criminal Appeal. It is therefore necessary for this Court to take the same course as it took in Jones v. The Queen [21] where the Court of Criminal Appeal had not fully disposed of the issues before it. In Murdoch's case it is necessary to allow the appeal in part, set aside the order of the Court of Criminal Appeal dismissing the appeal in his case and remit the matter to that Court to complete the hearing and determination of the appeal to that Court. In the meantime, of course, the convictions stand.

[120]

The applicants' attack upon the learned trial judge's refusal to adjourn the trial by reason of the likelihood of prejudice caused by the media publication of the information that Michael Patrick Murphy was "a prison escapee" cannot, in my view, be diverted by the riposte that Michael Patrick Murphy is not an applicant for special leave to appeal. The publication of that information in a Sydney afternoon newspaper and on two radio stations took place some days before the jury which convicted the applicants was empanelled. Three of the five accused bore the surname "Murphy"; two of the five accused were called "Michael". It appears to me to be highly unlikely that any member or members of the jury who had read or heard (or been told of) the particular piece of information would, by the time he or she became a juror, remember the precise identity of the particular accused who was said to be a prison escapee. It would be far more likely that such a juror would remember merely that one of the accused or, at the very most, one of the Murphy brothers, was a prison escapee at the time of the alleged offences. That being so, this ground of appeal must be approached on the basis that there was a real likelihood that any prejudicial effect resulting from the media publication of the particular information would have been shared by all accused. Indeed, the unfairness of any such prejudice would, if anything, be greater in the case of the applicants who were not prison escapees than in the case of Michael Patrick Murphy who was. In that regard, it is not suggested that any of the applicants was in a position where he could, as a practical matter, avoid the risk of such prejudice by leading positive evidence to establish good character. Nor, in circumstances where evidence of bad character was inadmissible against Michael Patrick Murphy, could the learned trial judge remove the risk of unfair prejudice to the applicants by expressly informing the jury that none of them was a prison escapee. The practical effect of such a selective clearance would be to ensure direct prejudice to Michael Patrick Murphy and, arguably, a degree of prejudice to the other accused by reason of their obvious relationship or association with him.

[125]

where a question arises as to the weight to be given by the tribunal of fact to a confession of guilt, no authority is needed for the proposition that all the circumstances surrounding the making of it which tend to show either that it can safely be relied upon or that it would be unwise to do so are admissible. It would for example be clearly permissible to show that, at the time a person confessed to the commission of a crime, he was drunk or insane or had made it as the result of fear or under some other form of pressure and to base upon that evidence an argument that the confession had little or no probative value. In short, Mr. Sharpe's testimony would have been relevant expert evidence given by a qualified expert upon a subject which was properly susceptible of expert evidence and upon which such expert evidence could well have been of considerable assistance to the jury. To the extent that his evidence would have tended to establish the abnormally low levels of Leslie Murphy's intellectual functioning, linguistic ability and silent and auditory comprehension, it was admissible. Mr. Sharpe's conclusions that, on his expert assessment of Leslie Murphy's relevant capacities, it "would have taken him five to ten minutes to read each page [of the written record of interview] with 50 per cent comprehension" and that "[i]f the record was read to him at normal speech rate, he would have had approximately 25 per cent comprehension" were likewise admissible as relevant expert testimony on a subject which was susceptible of expert testimony and on which such testimony might have been of assistance to the jury. In my view, it is simply not to the point to say that references to the intellectual level "of a ten year old" child and to reading and comprehension "in the nine to ten year old range" are unhelpfully imprecise. Plainly enough, Mr. Sharpe was referring to the average child of nine or ten. No doubt, he could, if objection had been taken to the form of his evidence, have expressed in more concrete terms exactly what he meant by those references. Nor is it an acceptable answer to assert that expert evidence is not admissible on the very question which a jury is required to decide. Such an assertion is plainly unacceptable as a general rule of the law of evidence. It would, for example, preclude expert opinion that a bullet admittedly fired by an accused was the cause of death in a case where the only defence to a charge of murder was that death had resulted from some other cause. In any event, the relevant question for the jury in the present case was the reliability of Leslie Murphy's allegedly voluntary confessional statements. The critical evidence of Mr. Sharpe would, upon analysis, have done no more than establish circumstances which the jury was entitled to take into account in their consideration of that question. 1. (1962) 108 C.L.R. 591, at p. 596.

At a glance

Court

Decision date

Before

Source

Judgment (143 paragraphs)

Parties