Anthony John Murphy v R No. SCCRM 94/168 Judgment No. 4674 Number of Pages 9 Criminal Law and Procedure Evidence (1994) 62 Sasr 121 - [1994] SASC 4674

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), PRIOR(2) AND PERRY(3) JJ

CWDS
Criminal law and procedure - evidence - Admissibility of selection by witness of photograph of accused as person similar to participant in the crime (a) where witness confirms the selection in Court and (b) where the witness does not so confirm. Alexander v R (1980) 145 CLR 395 discussed - dictum of Mason J at pp.432-3 applied; R v Barbaro and Ors (1993) 67 A Crim R 456 and R v Sutton (1990) 159 LSJS 96, applied. R v Birkby (1994) 2 NZLR 38, not followed. Admissibility of possession by accused of sum of money a few days after robbery.

Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up - False claim by accused to police that his car which was at scene of crime, had been stolen from him - requirement for direction as to lies - omission of such direction - no substantial miscarriage of justice - provisio to s.353(l) Criminal Law Consolidation Act applied.

Evidence - admissibility and relevancy - Admissibility of selection by witness of photograph of accused as person similar to participant in the crime (a) where witness confirms the selection of Court and (b) where the witness does not so confirm. Alexander v R (1980) 145 CLR 395 discussed - dictum of Mason J a pp.432-3 applied; R v Barbaro and Ors (1993) 67 A Crim R 456 and R v Sutton (1990) 159 LSJS 96, applied. R v Birkby (1994) 2 NZLR 38, not followed.

HRNG ADELAIDE, 24 June 1994 #DATE 22:7:1994

Counsel for appellant: Ms C M O'Connor

Solicitors for appellant: P R Dixon and Associates

Counsel for respondent: Mr B J Jennings QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a conviction by verdict of a jury in the District Court of the crime of robbery in company.

2. In the early afternoon of Friday 17th February 1989 two employees of a company called Bramalco which carried on business at Pooraka, namely Stella Sparrow and Jim Lindner, went to the ANZ Bank branch on the corner of Main North Road and Baker Street Enfield. Ms Sparrow was the payroll clerk and she withdrew the sum of $7,476 for the purpose of the weekly pay. She placed the money in a calico bag and the two employees began to walk back to the car which was parked in Baker Street. Lindner's ten year old daughter Christine was in the car. As they walked along the side street towards the car, two men seized them. There was a struggle between Lindner and the two men. The two men seized the calico bag and entered a silver Holden Gemini motorcar. The registered number was SBC873. Lindner entered his car and followed the Gemini for a short distance. He then stopped and alerted police.

3. Ms Sparrow, Jim and Christine Lindner…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Anthony John Murphy v R No. SCCRM 94/168 Judgment No. 4674 Number of Pages 9 Criminal Law and Procedure Evidence (1994) 62 Sasr 121 [1994] SASC 4674
Case: [1994] SASC 4674
Decision Date: 22 July 1994

CaseChat Overview and Summary

The appeal against the conviction for robbery was heard by the Full Court of the Supreme Court of South Australia, comprising King CJ, Prior, and Perry JJ. The appellant, Anthony John Murphy, was found guilty of robbery in company by a jury in the District Court. The appeal contested the admissibility of certain evidence, the adequacy of the judge's directions to the jury, and the safety of the verdict. The key issues before the court were whether the selection of the appellant's photograph by witnesses, the appellant's possession of cash shortly after the robbery, and the judge's summing-up to the jury were properly handled. The court held that the evidence of the witnesses selecting the photograph was admissible as it had some probative value, supporting the circumstantial evidence. The cash possession was also deemed admissible for its probative value, despite its lower reliability. The court found that the judge's summing-up did not contain a substantial misdirection, except for the omission to direct the jury on the significance of the appellant's false claim about his car being stolen. However, the omission did not result in a substantial miscarriage of justice. The appeal was ultimately dismissed, with the judges agreeing that the verdict was safe and satisfactory given the strong circumstantial evidence against the appellant.

Orders