G.S. Murphy v The Queen; L.J. Murphy v The Queen; Murdoch v The Queen
[1988] HCATrans 307
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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S7 of 1988 B e t w e e n -
GARY STEVEN MURPHY
Applicant
and
THE QUEEN
Resoondent
Office of the Registry
Sydney No S2 of 1988 LESLIE JOSEPH MURPHY Applicant
and
THE QUEEN
Respondent
Office of the Registry
Sydney No S3 of 1988
MICHAEL JAMES MURDOCHApplicant
and
THE QUEEN
Respondent
Murphy Applications for special
leave to appeal
MASON CJ
BRENNAN J
DEANE J
DAWSON JTOOHEY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 7 DECEMBER 1988, at 10.22 AM
Copyright in the High Court of Australia
C2Tl/l/SH l 7/12/88
MR J.W. BLACK, QC: May it please Your Honours, I am here on behalf of all three of these young men. In
respect of Leslie Joseph Murphy and Michael James
Murdoch, I appear together with my learned friend,
MR M. BLEASEL, and in respect of Gary Steven Mur~hy,
I appear with my learned friend, MS PH. GOODE.
(instructed by Johnson Cohen; Mark Solomon & Associates;
Snelgrove Mucsnik & O'Brien)
MR M.F. GRAY, QC: May it please the Court, I appear for the respondent in each of these matters with my learned
friend, MS M. LATHAM. (instructed by the Solicitor
for Public Prosecutions and Clerk of the Peace)
MASON CJ: Yes, Mr Black.
MR BLACK: Your Honours, the three young men £or whom I appear at present are serving a prison sentence for life
and they have had their files marked "never to be
released". The background was, undoubtedly, a serious and grave matter: young women forcibly removed from the streets in Sydney, taken in a
motor car, physically and sexually abused and killed
at the hand of one of them. That one pleaded guiltyat his trial and has never sought to evade the
responsibility for his being the hand that killed
her.
These three young men were also in that car
and, except one, Gary Steven Murphy who denied being
present - sorry, there is one other man who has not
appealed - but they were tried for the murder as well
as for the other offences and, of course, a very gravebackground,but the basic complaint that we bring
before Your Honours is that, in the course of that
trial, a series of things miscarried resulting in
an unsafe conviction.
Now, the first ground which we can take
together, relates to the position about the jury and relates to publicity immediately before the trial and
the situation giving rise to the defence concern to
ensure a fair trial.
(Continued on page 3)
C2Tl/2/SH 7/12/88 Murphy MR BLACK (continuing): Understandably, the facts of the case had attracted a great deal of publicity but,
within a day of the trial commencing, details ofthe criminal record of one of the accused were
published. As soon as that was drawn to the attention of the learned judge he agreed that the
jury had to be discharged. That, of course,
attracted publicity in itself and what happened
in the ensuing days was that the reason for the
jury being discharged was published.
Nevertheless, the trial recommenced the following
week on 23 March. Nobody seeks to criticize the
learned trial judge for his initial discharge of the jury; nobody suggested that that was a wrong thing to do. When the very reason for doing that is repeated with the attendant publicity before
the second jury was sworn in, it is our respectful
submission that a fortiori that reason was a good
reason for either delaying recommencement of the
trial or at the very least for permitting prospective
jurors to be questioned as to their knowledge ofthe situation.
trial judge had said, 11 There is no way in which In discharging the first jury the learned directions can erase from this jury what has
happened. 11 Then how can that not apply within a week when those very reasons have been republished
to a wide and no doubt interested public. We respectfully say, on that ground, that either the
trial should have been delayed so that those matterscould have faded from public memory or we say this
is a case on all fours with the case of KRAY.
The case of KRAY has been referred to in a number of cases in Australia and it has been said
that it relates to its own special facts. It is,
in our submission, on all fours with the situation
here. The case of KRAY was where there had been a much publicised trial for murder and the defendants had been convicted. And then, before the next trial for another murder started the learned trial
judge, Mr Justice Lawton, as he then was, acceded
to a request from defence counsel to question jurors
as to whether they might be biased.
Your Honours, I am sure, appreciate that a
juror has to be challenged when he comes to the
book to be sworn but before he is sworn. And one of the grounds for challenge is bias, in other words, inability to give a fair hearing, and that,
of course is from section 45 of the JURY ACT in
New South Wales. But if I may take Your Honours to KRAY, (1969) 53 Cr App.R 4'12, and the headnote
reads:
C2T3 /1 /ND 3 7 /12/88 Murphy MR BLACK (continuing):
The mere fact that a previous trial
ending in a verdict adverse to the defendant
has been reported at length in the Press,
including fair comments on the evidence, should
not ordinarily provide a case of probable biasor prejudice in jurors on a later trial of the
defendant.
Where, however, newspapers, it being known
that there was to be a later trial, had dug up
from the past of the defendant, after conviction
in the first trial, discreditable allegations,
which might be either of fact or fiction and
which had been publicised over a wide area,
Held, that those facts led to a prima facie
presumption that anyone who had read that kind
of information might find it difficult to reach
a verdict in the second trial in a fair-minded
way, that a prima facie case of probability of
prejudice had been established, and that
defending counsel was entitled further to apply
to be allowed to examine the jurors as they
came into the box to be sworn.
Then they say he gave the ruling before the jurors came into court which is not the normal procedure. So it is the first paragraph of the ruling that is of
importance. And really the headnote very accurately reflects the content of the judgment and I do not see
any need to take you to any particular passage of it. is something we all have to live with in this day and
age. But where improper material has been placed before
the public, as in this case, and of course the relevance
here is that this was a man alleged to be party tothese offences and the brother of two of those, for whom
I appear and a companion of the third, and that having
been accepted is a good reaso~ on the first discharge of the jury, must equally apply here and at the very
least, we would respectfully say, the jurors should
have been invited to say whether they had read
publicity surrounding the matter and whether it had
affected them in any way.
(Continued on page 5)
C2T4/l/SR 4 7/12/88 Murphy MR BLACK (continuing): His Honour was asked to take those courses
and he declined at the trial. He said that he saw no reason to do that. That is the very simple submission
on that point.
DEANE J: Where is the precise information that was published? MR BLACK: There are two folders which, I understand, are in the
custody of the Crown, but some of the material has been
put forward in the appeal book of Michael Murphy.DEANE J: I saw in the judgments that it was stated that he was an escaped prisoner -
:MASON CJ: "Unemployed, a prison escapee df no fixed address." MR BLACK: Yes, "a prison escapee," yes, that is the word. DEANE J: But that was not made of either of your clients.
MR BLACK: No. No, I make the point; he was the brother of two
of them and the companion of the third.
DEANE J: Now, what if, for example, on the trial, he had put his
good character in issue and it had come out in
questioning that he was an unemployed prison escapee?
MR BLACK: Well, if he had, Your Honour, then nobody could have
complained about it but, with respect, it would be
highly improbable that he would have done so.
DEANE J:
The point I am making to you is that you are a little more remote from it than if you had been appearing -
than if he were the appellant.
MR BLACK: I quite accept but it does not avoid the fact that
the sting of it was accepted. When he discharged the first jury the trial judge was not, as I understand him, saying. "It is only in relation to the particular one affected.''
(Continued on page 6)
C2T5/l/VH 5 7/12/88 Murphy
MR BLACK (continuing): He was saying it affects the whole conduct of the trial and, of course, all the accused,
because all the accused made the application.
I fully accept that it is not as if the one
affected is before you. I am not instructed in his case, but the principle, with respect, remains the
same because what would any right-minded person think
of somebody consorting with prison escapees, a matter
which they should not have known about, and that is a
potentially prejudicial matter, and really, with
respect, it would not have caused much inconvenience
for questions to have been sorted out with the trial
judge to prevent any extended interrogation of
witnesses such as happens in other jurisdictions,
but on this special limited area.
It is a fact that at one of the trials - I forget
which - one of the jurors voluntarily discharged
herself. She said, "I can't give these people a fair
trial", and that was of interest, but there would not
have been any extended interrogation of them.
DEANE J: What would it have been directed to? I mean, what would the questions have been?
MR BLACK: As to whether they had read or heard any publicity about the case, I suggest, and secondly, if the answer
to that were, "Yes", had they formed any provisional
view or did they feel in any way that they had
prejudged anything. One would have to formulate the precise questions with the trial judge.
DEANE J: Except that would not have been affected here, would it, in that you get juryman A answering, "Yes,
no", the other 11 answering "No" to the first question,
the first thing that happens when they go out
juryman A says, "Do you know that one of them is a
prison escapee?". You would have to get an undertaking that he did not tell the other 11.
MR BLACK: This is the difficulty of, as it were, looking at the practicalities at this stage instead of at a
trial because one would have said "If juryperson A
says 'Yes, I have', then I've no doubt the next
question will be, 'Well, what have you read?'", and
he or she would be able to say, "Such-and-such a paper and
such-and-such a thing", and the defence may then seem to argue that
the fact of reading it is enough. If the jury say no, then you cannot go behind it and where is the mischief
in that?
C2T6/l/HS 6 7/12/88 Murphy MR BLACK (continuing): It is now procedure in New South Wales
in appropriate cases before the jury is sworn for
the facts of any case that may have attracted
notoriety to be explained in general terms and
if necessary the names of witnesses read out
so that the jury can have the opportunity before
they even are sworn to say, "I know" such and
such, or, "I've heard something about this", or,
"I'm related to" so and so. It ensures, with
respect, better justice and it is not going to
cause undue convenience to the courts because
it is a principle, I readily accept, of
limited application. But we say, on the facts of this case, it is on all fours with
KRAY and it would not have caused prejudice to anybody and it would have avoided the very real
sense of prejudice that the applicants feel
about it.
We cannot ban publicity about these
matters, but we can, with respect, take steps to see that it does not prejudice the fair trial at the hands of jurors who
are to hear it.
Another subsidiary point, to answer
Your Honour's query about juryman A saying
"Yes"and the others saying ''No", is a delay would
have erased the matter from the juryman's mind.
That is why I take these two points together:
either delay, or have a controlled questioning
so that it does not get out of hand, but at the
very least one of them and it is not going to
interrupt the course of justice. That is our
submission on that, and, of course, that applies
to all the applicants and is a very real
grievance in this case.
When one adds that fact that I told
Your Honours about, one juror said, "I can't give
a fair trial" and discharged herself, it shows
that it is not based on no grounds at all.
BRENNAN J: What is the legal test which has to be satisfied before a juror, a prospective juror, is submitted
to questioning?
MR BLACK: Where there is material, with respect, to show the real risk of bias.
(Continued on page 8)
C2T7/l/JM 7 7/12/88 Murphy BRENNAN J: Where does one find that, what is the authority?
MR BLACK: From KRAY. In the passage I read, Your Honours: a prima facie case of probability of prejudice
had been established -
Mr Justice Lawton, at page 415 - three lines down
it starts:
The situation, however, 1s, 1n my
judgment, entirely different when newspapers,
knowing that there is going to be a later
trial, dig up from the past of the convicted
who have to meet further charges discreditable
allegations which may be either fact or fiction
and those allegations are then publicised
over a wide area. This does, in my judgment,
lead to a prima facie presumption that anybody
who may have read that kind of informationmight find it difficult to reach a verdict
in a fair-minded way. It is, however, a matter
of human experience, and certainly a matter
of the experience of those who practice in
the criminal courts, first, that the public's
recollection is short, and, secondly, that
the drama, if I may use that term, of a trial
almost always has the effect of excluding
from recollection that which went before.
A person summoned for this case would not,
in my judgment, disqualify himself merely
because he had read any of the newspapers
containing allegations of the kind I have
referred to; but the position would be different
if, as a result of reading what he had, his
mind had become so clogged with prejudice
that he was unable to try the case impartially.
The expression is, 11 a prima facie case of prejudice",
and that is sufficiently precise without being
too precise to enable courts to understand perfectly
well what is meant, with respect.
DEANE J: That is the problem I was referring you to and is it seems a useless procedure to show that one
is unprejudiced and then send him into the jury
room with all the prejudicial material to spread
among the other 11 unless you can bring them back
and say, "Having heard all about this, are you
still unprejudiced?"
(Continuing on page 9)
C2T8 /1 /ND 8 7 /12/88 Murphy
MR BLACK:
The Court can easily say, "Well, we do not want you telling the jury what hasn't upset you but might
upset them, so perhaps you would be good enough to
stand down,sir". The judge has the control to do that and the risk of it contaminating others, because although we always tell the jury that hypothetical concept, the reasonable person, we all know that they are a cross section and some of them may be more strong minded
than others. But it is not going to cause any serious difficulties to the conduct of a trial and it is not, with respect, going to become a feature of the vast
majority of ordinary trials.MASON CJ: The test is at the foot of the page, really, is it not? MR BLACK: Your Honour may be right, yes. MASON CJ: The last sentence: Having myself read the newspapers which have
been produced in court, I am satisfied that
there has been established such a prima facie
case of probability of prejudice.
MR BLACK: Yes. Well, all I can say is that it was accepted as good enough the first time, the repetition of it makes
it stronger.
MASON CJ: Yes, if you accept that the decision reached the
first time was correct. I mean there may be a question as to that?
MR BLACK: Nobody has suggested it was not. MASON CJ: Yes, I follow that.
DEANE J: But that is not the point, is it. I mean, you have to say the decision the first time was the only one
possible within the limits of a proper exercise of
discretion?
MR BLACK: It was and I do not understand the Crown to have
opposed it at ,all, I think they agreed.
DAWSON J: The material that was before Mr Justice Maxwell is that which appears on page 584 in the Murdoch application
book,is it?
MR BLACK: Yes. DAWSON J: And what material was before him on the first occasion, if any?
MR BLACK: On the first occasion there was a general folder, I
think. They were before the Court of Criminal Appeal, these folders and has since, I think, been in the custody
of the Crown. But all I am developing this particular
C2T9/l/SR 9 7/12/88 Murphy
aspect on is this particular offending passage. And it was to the same effect. I do not say that because of the general publicity this should have been taken
because that does not seem to be open to argument on
the general state of the authorities. But it is this specific transgression.
DAWSON J: On the second occasion, I have not read them very carefully, but it seems from what I have read, that
particular statement was not repeated?
MR BLACK: Yes. DAWSON J: Could you direct us to where it was?
MR BLACK:
I am sorry, Your Honour, I will have to find that in the transcript of the argument.
The appeal book
of Michael James Murdoch, at page 586, there is an exi.11ibit
to an affidavit of a Mr Drake relating to what was
transcribed from what I understand to be a popular
prograrrme in Svdney. You will see at page 586 it was on this date and somebody telephoned about the publication
of something in the newspaper and the question - - -
(Continued on page 11)
C2T9/2/SR 10 7/12/88 Murphy
DAWSON J: But what was in the newspaper is not referred to.
'MR BLACK: I am sorry, I will find that. DAWSON J: Do not let me delay you now, Mr Black,if you just want to look it up.
'MR BLACK: No, Your Honour, I will come back to it but I think it is what is exhibited in - Your Honour,
I will refer to that. Sorry, the easiest place
to find it is in the judgment of the Court of
Criminal Appeal, page 460 in volume II of
Leslie Joseph Murphy's application book and, to
get the context, if we go back to page 459, at
line 16:
This trial was commenced on 16 March 1987.
Iii one of the evening newspapers on that day
there was published a description of
Michael Murphy -
then it gives it.
This was drawn to the attention of
Mr Justice Maxwell on the morning of
17 March 1987 ..... The ground was that
this media publication would result in
unfair prejudice ..... The Crown did not
oppose the application.
His Honour gave his reasons and "acceded to it".
Then, there is a passage:
"This is clearly introducing to the
minds of the jury the question of character ..... I am driven to the conclusion that the
jury should be discharged ..... the potential
prejudice engendered by this offending
publication cannot, in my view, be adequately
dissipated by any direction I could give to the jury. Unfortunately for this jury the
problem will not go away or be blown away II
And then we have this:
Regrettably on that day and on the
following day there was further press publicity
given to His Honour's discharge of the jury
..... to the reason for that discharge and over
the radio, in particular, to the effect that
that reason was the publication of the
description of Michael Murphy as an
unemployed prison escapee.
C2Tl0/l/SH 11 7/12/88 Murphy DAWSON J: It is that passage that I do not find backed up bv
is careful to avoid reference to the actual reason for the discharge of the jury.
the material in ..... but it may be there. to
MR BLACK: Well then, if I can take you to page 599 in
Michael Jarres Murdoch's application book, there wefind it on the radio news, line 16, there is the repetition. DAWSON J:
And is that the only instance? No, there is another one at 604. MR BLACK:
Yes. Now, that is Radio 2CH, it is a different news. The other passages in the appeal book refer to where the offending passage could be found so it would not make it difficult for anybody to say, "Oh, what was that about?" But there are express references there and it was accepted in the Court of Appeal that that
had happened.BRENNAN J: Is it right to say that on the first occasion the
offending publication, if I could so describe it, was
available in the evening newspapers immediatelyoutside the court from which the jury was exiting?
MR BLACK: Yes. (Continued on page 13)
C2Tll/l/VH 12 7/12/88 Murphy BRENNAN J: Is it also right that the application to
discharge the jury was opposed by counsel
for co-accused?
MR BLACK: No, it was supported. BRENNAN J: Supported?
MR BLACK: Yes. Everybody joined in it, yes. We do not know who the male caller was, of course,
on the John Laws' programme, but he says,
"Well, of course, anybody who heard about it
will probably go and read it now", and makes
the other comment that"]: will highlight it
even more for the second jury." Those are very
human comments, but they are precisely the
comments that we seek to make on this point
here.
This was a sensational case and it
needed tremendous care in avoiding the risk
of any potential prejudice to the applicants
and, with respect, the procedures that we suggest
would not cause any undue inconvenience.
So, there is material there, with respect,
to show that the mischief was the same and,
we respectfully say, because of its repetition
highlighted and nobody seeks to challenge the
decision on the first occasion. They would be not fair to seek now to turn round and say "Oh well, he needn't have done that in the
first place." It would be contrary to our
principles of a fair trial.
Your Honours, that is our submission on
that first point which, with respect, is very
brief because it is good. There is no more
I can say about it than that. Repetition will
not improve it. It is a perfectly valid point and it was properly taken at the trial at all
proper occasions and it should have been acceded
to and it should have succeeded in the Court of Criminal Appeal. We are not seeking to establish some great new principle of all-embracing law.
We are seeking to apply a specific principle in
a specific situation and there is no reason
why it should not have been done. ·
May I, with your permission, turn to the
second matter, and may I apply, if that is in order,
to add Gary Steven Murphy under this ground? It is
a ground specifically raised on behalf of two of
the applicants. I came into Gary Steven Murphy's matter comparatively recently but I would ask that
he be allowed to have this argued for him as well.
I doubt it causes any inconvenience to the Crown, as it is specifically raised already.
C2Tl2/l/JM 13 7/12/88 Murphy
MASON CJ: It is hard to imagine how it could. MR BLACK: No, but if I may do that - - - MASON CJ: You have no opposition to this, Mr Gray? MR GRAY:
No opposition, Your Honour. I have difficulty of working out how a ground which is specific to
Michael Murdoch can actually translate into
3rounds - - -
MASON CJ: Yes, but that is another point. MR GRAY: - - - but that is another point. MASON CJ: It is a question as to whether or not Mr Black should be allowed to argue the ground.
MR GRAY: I just wanted to make it clear I was not assenting to the further step.
MASON CJ! Yes. I did not imagine for one minute that you were. MR BLACK: I follow that point. I am much obliged.
MASON CJ: You have leave to argue this on behalf of Gary Murphy.
MR BLACK: Your Honours, this statute, the LISTENING DEVICES ACT 1984, which I hope is available for you - - -
MASON CJ: Yes, it is. We have it. MR BLACK:
- - - is an Act of New South Wales and the section to start from is section 16.
As I understand the
purpose of the Act it is to make sure that people do
not go about using listening devices, except in
lawful circumstances. It is a protection of the privacy of the subject and section 16 sets out the
circumstances in which a warrant for the use of a
whole series of things that have to be done and the listening device can be granted and it sets out a way the Court shall have regard to information put
before it.Now, there is no provision in that section nor, indeed, anywhere in the Act, for any review or
investigation of the grant of a warrant. Now, what happened here was that a warrant was granted in relation to putting such a device on a witness known to certainly all the accused and all the parties in
the case, but described as, I think, Miss X, so that
a conversation which subsequently took place withMichael Murdoch could be recorded.
C2T13/l/HS 14 7/12/88 Murphy MR BLACK (continuing): At the trial, defence counsel wished
The trial judge said, 11 You can't.", and the Court to investigate how that warrant came to be granted.
of Appeal said, 11 You can't 11 The logical effect of that is that if a warrant is obtained by deception - in other words, by the use of false information - and somebody subsequently was able to show that, the effect of the ruling of the trial judge and of the Court of Criminal Appeal is that you can never challenge the validity of a warrant which
is valid on its face. In other words, as long as the formalities as to bits, words and things,
that are said to have been done and so on have
been observed in relation to the warrant, as longas they have been observed, you can never go behind i t . It may be that that is so but, if so, it is
an astonishing loophole in an Act which we would
respectfully say the purpose of which is to protect
the individual not to leave them liable to the
issue of warrants in circumstances they can never
question. It is, again, a short point. There is no direct authority on it. The only authority of any assistance on this topic that we feel is
relevant is the case of HILTON V WELLS. That case has been many places in the course of it but the
particular part of it is at (1986) 15 A Crim R 418,
and it had been up to this Court on various matters.
The particular passage that we would rely
on is at 434. It should be borne in mind, of course,
that those were warrants issued under a federal
Act, as opposed to a State Act.
MASON CJ: Where the power was not conferred upon the court as such?
MR BLACK: No, but exercised by the court. MASON CJ: Not so much exercised by the court, was it, but exercised by a judge, as a personae designatae?
MR BLACK: Yes, well, it was still a judge of the court that exercised the power and the only point of referring
you to 434 is that there a number of submissions
were put to the judge as to considerations andmaterial that should be before the judges issuing
the warrants. And he accepted those and then proceeded to examine the information before the
judge or judges issuing the warrants.
C2Tl4/l/ND 15 7 /12/88 Murphy
MR BLACK (continuing): Now, I quite accept that the Court of Criminal Appeal of New South Wales said, "Well, that
is a federal matter and it is quite different from the situation under this particular statute, 11 and I accept that the wording imposing or creating the
power or the duty to issue such warrant may be
different but, with respect, the underlying principle
should be same, Ifit be the situation that people
can have warrants issued against them upon material
that they can never know now question, nor investigate,
then why have the Act? Because, with the best will in
the world the judge issuing the warrant is not underany obligation as far as the Act is concerned to act
as a judge of trial; to call people before him; to
investigate or to query; he is not to act in an
investigative capacity; he has to assess whatever it
is that is before him.
BRENNAN J: What is the nature of the proceedings in HILTON V WELLS that you have drawn our attention to? MR BLACK: They were CUSTOMS ACT offences, as I remember it. BRENNAN J: Quite, but was this part of the prosecution - - -
MR BLACK: Yes. BRENNAN J: - - - or was it an independent proceeding brought
to challenge the validity of the warrant?
MR BLACK: Well, there were proceedings brought to challenge
the warrants and part of the argument was that the
material should be left out and so on and so forth.
BRENNAN J: I appreciate that. The difficulty I am having at the moment is seeing whether it is appropriate to
think in terms of challenging the warrant as anincident of a criminal trial.
MR BLACK: Well, Your Honour, when else can it be done, with
respect? Because, until the material comes before
a criminal court the object, if I may put it that way the ultimate object of the exercise may not even be
aware of it because, until that material is put inagainst him or her it is difficult to see first of
all that he would be aware of it or, secondly, if
he or she were aware of it, on the law as it stands
as announced by the Court of Criminal Appeal, he
would not have any remedy anyway because the answer
would be, "Well, we had a warrant," full stop. So therefore, you could bring no form of proceedings for invasion of privacy or anything of that nature.
BRENNAN J: Is your proposition this: that here is an order made,
it seems, by the court under this Act, that there shall
be a warrant?
MR BLACK: Yes.
C2Tl5/l/VH 16 7/12/88 Murphy
BRENNAN J: And then you have another judge of the court subsequently saying, what, there never was a warrant?
MR BLACK:
No.
Seeing whether the considerations set out in section 16 have been observed and also - - -
BRENNAN J: And if they have not been? MR BLACK: Well, if they have not been, that would make the
information obtained inadmissible.
BRENNAN J: Why? Unless the warrant was set aside.
MR BLACK: Because it would amount to setting aside the warrant because it had been obtained either improperly or
improperly issued.BRENNAN J: Well, is the proposition that one judge can set aside the order of another judge? MR BLACK: Yes. DEANE J: What if the proceedings are before a magistrate?
MR BLACK: Well, that does make it difficult - in front of a
magistrate.
DEANE J: But, if you be right in principle it must mean the
magistrate could set aside the supreme court's warrant.
MR BLACK: Your Honour is quite right to rai-se that. There is no procedure set out as to how one would go about it but one would, perhaps, be able to go to the supreme court
for some form of declaratory judgment from a
magistrate because, you see, until you have the parties,
both sides, in front of a court, the conflict of
information or interest cannot really be sorted out.It is an ex parte application to the first judge and judges discharge ex -parte injunctions granted by other
judges; that is not a problem. The first judge would had known now what I should have known when I granted
probably say two things: first of all, "Well, if I the one, I would not have granted the warrant." It is not going to cause a problem there. Secondly, with respect, I would not have thought that judges would wish themselves to be unappealable in a matter
such as this. They bear with fortitude a multiplicity of appeals brought against their actions.
(Continued on page 18)
C2Tl5/2/VH 17 7/12/88 Murphy
BRENNAN J: I am sure judicial sensitivity is not in question here.
MR BLACK: Yes.
BRENNAN J: The question is: how does it work. MR BLACK: It works - - -
BRENNAN J: It seems to me that one of the difficulties is,
taking for example, a situation where it is said that there was a piece of information laid before
the judge who issued the warrant that was untrue
but the bulk of it was true.
MR BLACK: Yes. BRENNAN J:
Does one ask the judge who issued the warrant to give evidence as to the effect that the untrue piece
had upon his mind or does one assume that the untrue piece played no part or played a decisive part? How does one deal with a warrant issued under provisions
like this as though it were a piece of liti8ation? The analogy seems to me to be all wrong. MR BLACK: Well, with respect, Your Honour, that is an exercise
that judges carry out, particularly court of appeal
judges. They carry out - on occasions, they substitute their discretion.- I know it is rare - but substitute
their discretion for a trial judge's discretion. If
they are dealing with matters in the administrativefield, there is the situation that if they find that
no reasonable entity could have done what it did at
that time in the light of information put before
them, then they set aside the decision of that entity
that is being challenged.
It is in line with all the law about review of
discretion and it would, obviously, be upon the
applicant to show that there had been a really
substantial error in approaching the matter but the effect of the present ruling is that you cannot
even begin to do that. Now that, with respect, seems a somewhat Draconian result when the Act, if I may
repeat myself, is designed to protect the individual,
not to encourage this to happen and it must be, we
would respectfully say, open to challenge and the
convenient forum is the criminal trial when the
information is available and both parties are
represented and it can be gone into.
I would have to suggest - although regulations
can be made under the Act, of course they have not
been made relating to how you do challenge a warrant
because the Act is silent on the point but regulationscan be made under regulation 31 by the governor for
C2T16/l/SH 18 7/12/88 Murphy
giving effect to the Act. Now, if it is accepted that there is a right to investigate this, no doubt
the governor can address his mind as to what you
do if it happens in front of a magistrate as opposed
to another supreme court judge or, indeed, he may
have think what happens in front of a district
court judge?
MASON CJ: I have not quite followed how you put it in terms
of the operation of the Act. You have the general presumption of validity that attaches to the order of a superior court.
MR BLACK: Yes. MASON CJ: Now, is your submission this: that the Act, properly
construed, displaces that presumption?
MR BLACK: No, I am saying that the Act does not prevent you from challenging validity.
MASON CJ: But if you have the general presumption of validity, that, in itself, prevents one from challenging the
validity of the warrant unless it can be challenged
on appeal and there is no provision for appeal and
there is no provision for it to be set aside.
MR BLACK: That is right.
MASON CJ: Well, is it not then necessary to find a statutory
intention to displace the general presumption of
validity?
MR BLACK: Well, all I can say about that is that it sets out
with some detail in section 16 what the court should
have regard to; that is under (2). Well, it has to
be, first of all, satisfied about a prescribed
offence·. either: - -
Has been, is about to be or is likely to be committed.
That is the first ground; that is under (1). Then (2), it sets out five considerations that: The Court shall have regard to - and then, ( 3) is __ more
procedural and ( 4) is,
again, procedural and technical.
(Continued on page 20)
C2Tl6/2/SH 19 7/12/88 Murphy
MR BLACK (continuing): So it is really (1) and (2) that are
the foundation for the grounds of the warrant. Now in particular, in (2) it says that the Court shall have regard to various matters, including: (b) the extent to which the privacy of
any person is likely to be affected.
Now it must follow, with respect, that if one can
demonstrate to the court it did not have regard to
particular matters, or indeed if one can demonstrate
that the information before the court was false, well
then nobody, with respect, should be wanting to argue
that it was a valid warrant. So where you have particular procedures set out, they must be open to
investigation as to whether they were set out and if
the position was that Parliament meant there would
never be any right to appeal or investigate such a
ground, there is nothing stopping it saying so. But this is taking away some rights or liberties of the subject and it should be strictly construed against
those who seek to do it. So I would not accept that because it is silent about this proposition therefore
that is to be taken against an applicant.
MASON CJ: No, I follow the way you put it, but I would have • thought, myself, that you need to succeed in establishing
that the statute evinces an intention pro tanto to
displace the general presumption of validity ratherthan put it the negative way in which you have been
putting it?
MR BLACK: I respectfully stick to my negative ways. MASON CJ: I am not suggesting you should not. MR BLACK: I follow what Your Honour says. MASON CJ: But I have difficulty in accepting the submission
in, the form in which you have thus far presented it?
MR BLACK: It is because I rely on the general purpose of the Act which is to prevent interference with the privacy
of the individual. It then sets out certain specific
ways in which you can interfere with it, therefore,
with respect, it follows that it is to be used at risk
and the onus is on those who seek to use this procedure
to show they have got it right; nJt to say, "Well, there
it is, we can use it and you cannot query it".
BRENNAN J: Does not section 17 make the Attorney-General a
guardian of the individual interest?
MR BLACK: Section 17(2)(b) gives him an opportunity to be heard but it does not say - - -
BRENNAN J: Not really - - -
C2Tl7/l/SR 20 7/12/88 Murphy
MR BLACK: It does not impose any sort of custodian interest
on him. It says he is not to be notified -well, itis the Attorney-General or a prescribed officer and he can be heard about it. BRENNAN J: And a notice specifying certain things must be served upon him?
MR BLACK: Yes.
BRENNAN J: And he must be heard with respect to it. So that the parties, if one can use that term,before the
court which is asked to grant the warrant are the
persons seeking the warrant and the Attorney-General?
MR BLACK: Yes. BRENNAN J: Does not that rather suggest that the extent, and the only extent,to which the legislature was prepared to protect the privacy of the person against whom the
warrant was sought is to ensure that the Attorney-General
should be there as a check upon the enthusiasm of theperson seeking the warrant?
MR BLACK:
Yes, but with respect, that still does not deal with the situation where it becomes known to people
subsequently that the information was false.
BRENNAN J: No, it does not. The question I am asking you is whether or not the legislature does not precisely
intend that?
MR BLACK:
I would, with respect, say no, the Attorney-General has to be notified but that is all it comes to.
It
does not say that he has got to be very slow to do this or reluctant to approve that. It does not say
one way or the other what he has to do, it gives
him a right of audience about it.
(Continued on page 22)
C2Tl7/2/SR 21 7/12/88 Murphy
MR BLACK (continuing): He may be going along and saying, "Well, look, we do need this for
good reasons". But it still does not get over the mischief that may happen where the
Attorney-General himself has been misled byinformation before him which people may believe at the time to be correct. There must be, with
respect, some procedure, and we would say it
can be done by the Court, where such a thing happens. I am using that as an illustration. I cannot said it either did, or might have
happened in this case because no investigation
was permitted as to what was before the Court
at all. It could not have been gone into.
Again, with respect, this is not going to
cause great proplems to courts of trial because it is
certainly not every case where listening devices
are used. It is only going to effect a rare
number of them and it is highly unlikely that they
are all going to be revoked or declared invalid.
Some of them may be if it can be shown that the
court proceeded on a false basis. But there
must be, we say, consistent with the rights of
the individual, a right to look into it. I appreciate the point about the general presumption
but where you have an act interfering with the
liberty of a subject, I would say that that
presumption goes the other way, rather than the
way the court has suggested. Of course, for the presumption to apply, I am reminded you
would have to be satisfied this was a judicial
order in the first place.
MASON CJ: It is an order of the court, is it not?
MR BLACK: Yes, but the court makes many orders, some of which - most of which are judicial, but
Your Honours would have to say, "Any issue of a warrant is a judicial order" and then you
say the presumption applies unless whatever I have saidpersuades you to the contrary. But I just do say it is a most astonishing result if an Act
designed to protect the individual has the result
that the individual, the object of the warrant, can never look into it, let alone set it aside,
whereas he may have the most meritorious evidence
to do so. It means it is going to be admitted,
fullstop. It would mean evidence to show the
information was wrong would not be admissible.
That is where we get to on that. Your Honours, those are our submissions on that point, which -
C2Tl8/l/JM 22 7/12/88 Murphy
DEANE J: 'Where would that submission get you? MR BLACK: Well, what happened was that as a result of this conversation with Miss X the police officer then
started putting certain questions, as we understand
it, to certainly Michael Murdoch and, we would suggest,
probably the others, based on what he got from
Miss X, because there was conversation - we know not the
precise details of the conversation.
DEANE J: The first point is the evidence of the conversation would not have been inadmissible under the Act,
would it?
MR BLACK: It would have been if the warrant was wrongfully granted.
DEANE J: 'Why? Would this not have been a section 13(2)(d)?
MR BLACK: Well, there is the passage at the end of (d): if the court considers the evidence
should be admissible.
DEANE J: Yes. Well, that is what I was asking you. MR BLACK:
Yes, but that involves, with respect, going into the circumstances in which it was obtained.
DEANE J: But you answered my question by saying it would have been inadmissible.
MR BLACK: It would have been, yes. DEANE J: Section 13(2)(d) seems to indicate that the answer is it might have been not admitted.
MR BLACK: It might have been, but then we come onto this point- DAWSON J: There is a great problem in that because really,
tltlder subsection (1) you cannot say that the evidence, even if you want the warrant set aside and succeed,
was obtained in contravention of section 5.
MR BLACK: If it was not properly obtained, it would not have
been obtained in accordance with section 5.
DAWSON J: At the time it was obtained there was a warrant in existence.
MR BLACK: Yes, but if you can show that the warrant was not a proper warrant, then the conversation would fall
foul.
C2T19/l/HS 23 7/12/88 Murphy DAWSON J: Well that is different, that is saying the warrant
was null and void.
MR BLACK: Yes. DAWSON J: It is one thing to set something aside, it 1s
another thing to say it is a nullity.
MR BLACK: If it is given on totally false information, with
respect, then it should be of no effect.
DAWSON J: That is a large proposition to say that an order
of a superior court is a nullity.
MR BLACK: But if the court has been misled, in any jurisdiction, one can come back before the court and say that
the original decision has been procured by fraud.
DAWSON J: I understand what you are saying. MR BLACK:
And it is the same thing. So (5) is the general prohibition and then, if you get it right under 16
you can use it and so on. So that is the structure of the Act but what we say is that it therefore
taints all that follows. We come back to that
point on another specific ground of Michael Murdoch
when we have to look at the effect of deceptive
remarks made by the person in authority resulting
in alleged confessions. It is the same point there.
It would taint all that happened.
Your Honours, may I next turn to point 3,
the evidence of the psychologist and, really, again,
this is a very short and straightforward point.
The psychologist's evidence is set out in volume 11
of Leslie Joseph Murphy's application book. I need not trouble Your Honours to go through all
of it. At page 440, we see that he was 23 years
old at the relevant time - this is at the timeof the trial. And if I can take you straight to
the summary at 446, just at line 13: Leslie Murphy is functioning intellectually
at the level of a ten year old person. He shows adequate adaptive functioning and could not be considered to be mentally retarded. And then he gives the reasons.
(Continuing on page 25)
C2T20/l/ND 24 7 /12/88 Murphy MR BLACK (continuing):
Leslie Murphy shows severe impairment in most
of the basic education skills. The greatest deficits are in his reading and comprehension
skills.
And then he goes on to give an opinion about the
various bits of material put before him. Now, very simply, what we say is this: that is not a matter that would be obvious without the assistance of expert
evidence to a jury and, as far as expert evidence is
concerned, the origin of the rule about expert
evidence is in FOLKES V CHAD, but perhaps I justneed take you to the RV TURNER.
TOOHEY J: Just before you do that, Mr Black, what was the basis
of the exclusion of this evidence? Was it relevance
or lack of expertise, or what?
MR BLACK: The trial judge said he was not very happy about
having to deal with it without prolonged considerationbut I think he said he did not feel it was relevant.
I will have that turned up. But he was unhappy about it and the C)urt of Appeal, in their judgm:nts, were equally
lmhappy about it. I think they went so far as to say it was a
border-line situation. I will just find the passage in their judgm:mt:; MASON CJ:' "Finely balanced," something like that, I think, is the
expression they used.
MR BLACK: ''Finely balanced." Well, that see:ns to ire to be borderline. If sarething
is of that stage in a criminal trial the balance should
go in the favour of the accused, I respectfully say.
In TURNER, again we have - - -
TOOHEY J: Just a moment, Mr Black. I still do not understand - "finely balanced" in what sense? Periphally relevant or finely baJanced in the sensa that the witness had
expertise that may or may not have borne on these
matters? (Continued on page 25)
C2T21/l/VH 25 7/12/88 Murphy MR BLACK: No, it was not the expertise. If I can take you, Your Honour first of all to the specific judgment
on that by thetrial judge. It is in application book I of Leslie Joseph Murphy, and he discusses the
matter at page 29 - he says at line 30:
I would have preferred to have had the
benefit of a much more prolonged
dissertation of the matter in hand but -
I have not, and then he refers to a number of
authorities and finally, at page 31, he says:
I have come to the conclusion that I
should exclude the evidence and I should
add that I do so with some perturbation.
Then in the Court of Appeal - - -
:MASON CJ: It starts at page 526, I think.
MR BLACK: I am much obliged. Yes, thank you. Then it sets out the history, sets out the report, the relevant
parts of it, and then at page 528:
The Crown case ..... was dependent upon
the record of his interview .....
a series of answers -
and so on - substantially illiterate. Then it says: He was undoubtedly substantially illiterate.
But the critical question in ruling on
the admissibility of the evidence of this
psychologist was whether Leslie Murphy
should be treated as in a special category,
apart from the broad range of persons in
society in relation to whom· the jury could
bring to bear their own original judgment,
so as to justify putting before the jurythis expert opinion for the jury to take into account when considering the extent to which the confessional material should be weighed against him.
Then they quote from JACKSON, and I had, in fact,
brought JACKSON, but that clearly sets out the
proposition for which I contend:
no authority is needed for the
proposition that all the circumstances
surrounding the making of it -
and that is a confession -
which tend to either that it can safely
relied upon or that it would be unwise
to do so are admissible.
C2T22/l/HS 26 7/12/88 Murphy Then they go on to say that:
ordinarily expert evidence is not
admissilb e upon matters as to which
the jury can be expected to be able tobring to bear unaided their knowledge of
people and affairs.
Then it goes on to deal with that, and at line 19:
It is a fine point to determine whether
or not this evidence ought to have been
admitted. If it showed a mental age of five then, plainly enough, one would have
anticipated that it would have been
legitimate for the material to be before
the jury.
If, on the other hand, it showed a
mental age of fifteen then, plainly enough,
it would be virtually impossible to contend
that it should have been before the jury.
The matter is, I repeat, finely
balanced. My own opinion is that the judge was not in error in taking the view
that the deficiency which was sought to be
demonstrated in that report should be
canvassed in expert evidence before the jury.
It is to be observed -
and then so on and so forth, and gives the reasons.
TOOHEY J: Was the record of interview the subject of challenge? MR BLACK: Yes. TOOHEY J: Both by cross-examination and by evidence? MR BLACK: Not by evidence because this situation arose on the
voir dire about the admissibility of the record of interview and the judge ruled that that evidence from the psychologist was not admissible on the voir dire, so no evidence was given about it and no evidence subsequently called before the jury either because his ruling was the psychologist's evidence was inadmissible.
TOOHEY J: Yes, I appreciate that, but Murphy himself made an unsworn statement.
MR BLACK: He made a statement from the dock, yes. TOOHEY J:
Was that aspect touched on, that is the record of interview?
C2T22/2/HS 27 7/12/88 Murphy
MR BLACK: He said it was not true and he also, l think,
s a i d - w h i ch was a subs i d i a r y po i n t w h i ch i s no t pursued here - that he was drinking in a pub.
DEANE J: l think the point Justice Toohey is asking about is covered, to some extent, on the next page, page 530. MR BLACK: lam much obliged. At page 530:
The terms of his unsworn statement ..... he
was not clear as to what was happening.
But the evidence never went into it and his
unsworn statement - l cannot remember the details
of it but l do not think he went into specific
statements about this, that and the other. Indeed,
it would have been rather academic in view of the
judge's ruling because that material was before
the jury. This statement is at 36 of volume 1.
DEANE J: And what was the police evidence about his reading
the record of the interview before he signed itand his answering the five questions? MR BLACK: l anticipated that that was all in order. DEANE J: But, I mean, was the police evidence that he simply
read it and signed it or -
MR BLACK: Yes, to my recollection. DEANE J: We have not got it. MR BLACK: No, because that would be in the transcript of
the trial. But that does not alter the situation, with respect, as to the admissibility of this evidence
because the question simply is, "Would you expect
a jury to be able to realize that a man of 23 had
an intellectual age of'lO?"
DEANE J: But must not, on analysis, the point be this: the evidence does not indicate - that is the psychiatric evidence - that he was incapable of
answering questions, what it indicates is thathe could not read normally? MR BLACK: Or comprehend.
DEANE J: Yes, through reading.
MR BLACK: Or comprehend, not necessarily through reading. He was intellectually stunted, if I may put it
that way.
DEANE J: Then, putting that to one side, the way the evidence wen~,
as l can fathom it from the selection of materials
C2T23/l/ND 28 7 /12/88 Murphy before us, was that he said he did not give the
answers in the record of interview and explained
his signature of the record of interview on the
basis that he did not read the answers and
comprehend them. That being so, would not a critical link in the evidence in so far as the signed records
admissibility is concerned be what the police evidence
said as to what he did before he signed them?
MR BLACK: Yes. DEANE J: Now, that simply is not before us.
MR BLACK: My recollection of the evidence, and if it is wrong I will be corrected, is that they said he read
and signed. It would be highly unlikely that they
did not, otherwise the record of interview wouldnot have got in.
DEANE J: But one would have expected counsel for the accused, with this sort of information up his sleeve, to
have cross-examined the police about apparentcomprehension and how long it took to read and
so on.MR BLACK: On the voir dire, I am sure that did happen.
But what went wrong was, when it came to the defence case on the voir dire the defence said, 11 Well, we apply to call the psychologist.", and the report was brought to the trial judge and he said, 11 Well,
no, you can't, I'm not letting you." The overall principle, with respect, must be as set out in JACKSON .. rt is highly relevant for the jury to know this man had the intellectual capacity of
a 10-year-old because otherwise they would assumehe was a 23-year-old of such background as they were aware of.
(Continuing on page 30)
C2T23/2/ND 29 7/12/88 Murphy DAWSON J: Mr Black, I am a little confused. On the
voir dire, which went just to the question of admissibility, did it not; that was the purpose of the voir dire?
MR BLACK: Yes. DAWSON J:
The evidence was called. Now, how was it called as to admissibility, or sought to be
called as to admissibility?
MR BLACK: To show that he was not capable of either giving the answers, or understanding the questions. I am just told the record of
interview was read to him. So the question of comprehension was highly relevant.
DAWSON J: But that would rather go to weight of the evidence than to··the admissibility,
would it not? ·
MR BLACK: No, because there were specific matters where he was, as it were, said to have said or used
certain phrase~ or constucted sentences in a
certain way which just, according to thisevidence, could not be so. That was the relevance
of it and the purpose of the voir dire would have
been to try and establish to the judge that he
could not be satisfied it was free and voluntaryand, of course, his words, which is highly relevant,
but he excluded that.
TOOHEY J: But Mr Black, before you get to the question of the psychologist's evidence, presumably some
ground work would have had to have been laid
in terms of cross-examination of the police
witnesses -
MR BLACK: Yes. TOOHEY J:
- - - with the view to suggesting that this particular applicant would not, or could not
have used expressions of a somewhat complicated
nature?
MR BLACK: Yes. TOOHEY J:Well, now, was that sort of cross-examination gone
through before any application was made to call
the psychologist?
MR BLACK: We have the transcript and I am sure it was done, but we have the transcript in court of the
trial and that will be checked up. I have confidence - my recollection of the transcript is
that this was gone into but then it ran up against
this hurdle, which it should not have done.
C2T24/l/JM 30 7/12/88 Murphy
TOOHEY J: But I am still not satisfied that I follow completely the course of proceedings. The trial
judge ruled that the statement was voluntary -
(Continued on page 32)
C2T24/2/JM 31 7/12/88 Murphy
MR BLACK: Can I take Your Honour to the beginning? Th.e - - - DAWSON J: Now, just let rne finish. MR BLACK: I am sorry. DAWSON J: The trial judge ruled that the statement was voluntary and, therefore, after the voir dire, it
was admitted in evidence.
MR BLACK: Yes. DAWSON J: Now, theoretically,at least, you would then want to call the psychiatrist's evidence to show that
it was, although voluntary, untrustworthy, would
you not?
MR BLACK: Well, yes, but that was the purpose in the first
place.
DAWSON J: Well, the only purpose of the voir dire was to see
whether the record of interview was voluntary.
MR BLACK: Yes. DAWSON J: Well, trustworthiness and voluntariness are two
different things~And may I finish by asking: was
any application made again after the voir dire
subsequently to call the psychiatrist?
MR BLACK: Yes. I will have that checked out. I think - I have been corrected. Your Honour is quite right to
raise this. I have been saying, I think, that it was raised on the voir dire. It was raised at the beginning of the accused's case, I think that is right.
DAWSON J: I see.
MR BLACK: At page 32, line 32:
(Mr Mulligan -
who then appeared for this applicant -
indicated that he would seek to call a
psychologist in relation to the
comprehension of the accused Leslie Murphy.)
This was resisted and then it sets out what happened.
Now, this is from the transcript and then, at line 20
to but I thought it had been done in the voir dire. I will
on page 34 we then go the judgment which I took
have confirmed what happened on the voir dire.
DEANE J: Well, this goes to two separate points, does it not?
One is admissibility, the other is reliability?
C2T25/l/SH 32 7/12/88 Murphy
11R BLACK: Yes. I am sorry. I rup certainly all right on
reliability. It seems it was not - - -
DEANE J: Well, JACKSON is relevant to reliability. It
does not directly go to admissibility.
(Continued on page 34)
C2T25/2/SH 33 7/12/88 Murphy
MR BLACK: No, but as I understand it now it was not sought to be used for admissibility and I think I am in
difficulties now saying it should have been.
DEANE J: That would depend on the police evidence, would it
not?
MR BLACK: Yes. Perhaps with hindsight one should have sought to use it at the trial, but certainly it is relevant
to reliability and my rhetorical question is the
simple one: would you expect a 23-year-old to have
the mind of a 10 year old, without expert assistance.
And that is the way we put that one. I do not think
I really need take you to TURNER or FOLKES V CHAD.
TOOHEY J: I have difficulty with that, Mr Black, that equation
or lack of equation: would you expect a 23-year-old
to have the mind of a 10-year-old. Is that really the
matter that was sought to be put before the jury?
I mean a 10-year-old might well have had sufficientcomprehension to understand these questions and to
perhaps even to have answered them in the way that theapplicant answered them. Is not the question whether
the understanding and vocabulary of the applicantwas such that no reliability or little reliability could
be placed upon answers which the police said he hadgiven in the form that they were recorded? MR BLACK: Your Honour phrases it much more clearly. TOOHEY.J: It is not just a matter of formulation. It seems to
me to be a matter of some substance?
MR BLACK: Yes. Well that was the effect of it , I bad not taken him through his analysis of all the things he
was said to have said or not to have said,- but the effect of it was that because of his mental age of
development in comprehension and literacy it was
highly improbable. At volume II of Leslie Joseph
Murphy's application book, his record of interview is
exhibited and there is at question 63 - - -
TOOHEY J: What page?
MR BLACK: Page 433, I am sorry. The point that was raised
earlier: did he read it or was it read to him. Question 63:
You appear to be having some difficulty with some of the words, would you like me to have someone read it to you?
That is to demonstrate my answer to the question: did
he read it or was it read to him. It was read to him.
So there is an inherent query as to his comprehension
and intellectual ability. So that was a significiant
issue before the court upon which expert evidenceshould have been allowed. And I do rely, quite
simply on Jackson, Your Honour.
C2T26/l/SR 34 7/12/88 Murphy DEANE J: That was the reading of somebody else's record of
interview to him?
MR BLACK: Sorry, was it?
DEANE J: Of Murdoch's? MR BLACK: Well, if it was Murdochs it is not the answer of
his own. I have the transcript relating to cross-examination about this -
TOOHEY J: You will find some reference to it, Mr Black, at the foot of page 435, going over to the top of
page 436.
MR BLACK: That is his own statement. I am grateful, yes he
would prefer someone to read it to him. And then you have the normal questions and answers about that.
But there it is, he preferred someone to read it to him.
(Continued on page 36)
C2T26/2/SR 35 7/12/88 Murphy
MR BLACK (continuing): Before the trial judge what is said: When he was questioned by Detective Walters, did
he ask Detective Walters to repeat any of the
questions?---No.
He did not ask for any questions to be repeated
at all?---Yes. No, he never asked. He appeared to understand everything that was
said to him?---Yes.
He appeared to understand the warning that was given to him by Walters?---The caution, yes.
And then the question of where that caution was. So that certainly raises the question of comprehension in cross-examination of the relevant officer. So what we say here, the case against this applicant - that
is, Leslie Joseph Murphy - the evidence was based on
his record of interview and what he may or may not
have said to the police.
TOOHEY J: When you put it that way, are you going so far as to
say it was based solely on the record of interview andthat there was no other evidence? MR BLACK: There was no other evidence of participation, no other
admissible evidence. The case against all these
accused was on their records of interview. As I have said, Travers pleaded guilty and took no part in the trial. There was no other evidence from anybody
at the scene. It was based on interviews or confessions
to police officers by each relating to each applicant.None of the applicants gave evidence. DEANE J: Except in the case of this applicant - - -
MR BLACK: Well, he made a statement,.
DEANE J: - - - was it not common ground that he had been in the car; that after the deceased lady had been abducted
he had taken some of the money obtained from her purse
and participated in the purchase of petrol with the
money that the joint enterprise had stolen after her
abudction?
MR BLACK: Yes, I think that is right. We get to his statement - if we go back to that again. Yes, he admits presence
and being part, as Your Honour puts, of the abduction.
DEANE J: Well, that is quite a bit of evidence - - -
MR BLACK: Certainly.
DEANE J: - - - when you also get it that he was admittedly there
when she was assaulted and murdered.
C2T27/l/VH 36 7/12/88 Murphy
MR BLACK: Yes. But there, there is a question as to where, because that was in the open air.
DEANE J: Yes. MR BLACK: And as to - the basic defence case about the murder
was that that was Travers' own act on his own. Oh yes, he did not dispute that he had taken part in the earlier incidents. DEANE J: Is the present appeal restricted to the murder - - -
MR BLACK: Yes. DEANE J: It is, is it?
MR BLACK: Yes, it has to be. BRENNAN J: Mr Black, there are two pieces of evidence, it seems to me, between which a distinction might have to be
drawn here. One is the evidence that the accused made the answers to the questions that were asked of him.
MR BLACK: Yes. BRENNAN J: The second,that he adopted those answers in written form
by his signature to the record of interview. Does the evidence to which you have been drawing our attention
have anything to say to the first of those questions?
MR BLACK: It deals with suggestibility as well, yes. We had
better have a look at the oral report. The title page
is at 439. Now, at page 442, after reciting the various tests, it is interesting to note certain words at the top that he did not know the meaning of: His general knowledge is severely impaired.
And then the doctor says:
I have read the statement of Detective Waters .....
Heskett ...... the record of interview ..... I consider there are certain questions put to Leslie Murphy which
may not have been fully understood by him. As well, in framing his answers, I consider he used
certain words which would not have been in his
vocabulary at the time and also used certain
phrases and sentence structures which are
uncharacteristic of him.
Then it goes on at the foot:
Certain words and phrases ...... Leslie Murphy would
have difficulty in understanding ..... would have
impeded his comprehension.
So already there is an issue as to mether he v;ould have said the
words and as to his cornprehension. NOW', then he details, at page 443, comprehension difficulties , and then ~rds and phrases mich are
uncharacteristic - raises the query as to mether he actually used
those ~rds.
C2T27/2/VH 37 7/12/88 Murphy
MR BLACK (continuing): Then it goes on to make the same
exercise in relation to Heskett and then we get
on to the record of interview at 444: - difficulty understanding the following questions - and then, at 445, it is an analysis setting out in
detail passages in the record of interview described
as uncharacteristic, the implication being not
his words.
So the report would clearly have raised the
question not only as to comprehension but also
as to whether he actually said what was ascribed
to him.
BRENNAN J: If he did say those words, this evidence to that
extent must be inaccurate.
MR BLACK: Certainly, that would be a question -
BRENNAN J: So the question is whether or not he said the words. ls evidence of this kind admissible to
show whether or not words were spoken?
MR BLACK: That would have been the real subject of argument. As to whether words were actually spoken, specifically, -
is a question of fact for the jury and we would
argue it has to be determined against the educational
and comprehensive background as ascertained by
this witness and therefore it would be permissible
to point to specific passages, permissible though
potentially dangerous, I quite accept, but thedoctor would be allowed to explain what he was
meaning and then, also, to demonstrate the comprehension
but it is still a matter for the jury to evaluate
and they should not have been prevented from hearing
this and, in particular, this applicant should
not have been prevented from being able to present
his case about it.
wash 11 ,well, that is a totally different matter How it came out - if I may put it - 11in the but he was not even allowed to put it in and he
should have been allowed to. As we all know, all witnesses are meant to start off equal but where
they end up is a matter for the jury. But that
is no reason for depriving the jury of hearing
it or of preventing him from putting it forward
in his defence.
DAWSON J: Of course, he was able to put forward that he
was slow of understanding and did not understand
when things were read him too fast. He said that, did he not?
C2T28/l/ND 38 7 /12/88 Murphy
MR BLACK: Yes. DAWSON J: It is just a question of whether you are entitled
to back that up by opinion evidence or whether the jury, having that before them, are as well able to make up their own minds as the expert.
MR BLACK: The unsupported statement of an accused. With rPspect, if you have evidence that supports what
you say, well, you could.
DAWSON J: That is not right, of course, is it? Relevance
is not enough to make admissible an expert's evidence.
MR BLACK: It has to show something unusual, I agree, out
of the normal experience.
DAWSON J: No, it has to be about something which the jury
are unable as well to make up their minds without
his assistance.
MR BLACK: Yes, coupled with, I would respectfully say, that general statement in JACKSON which would not, I
would respectfully say, limit the admissibility
of it. It is highly relevant to the weight to
be attached to what he was alleged to have said.
(Continuing on page 40)
C2T28/2/ND 39 7/12/88 Murphy
DAWSON J: As I say, relevance is not the test; not the only test anyway.
MR BLACK: Not the only test, no. But this was certainly relevant and, with respect, shows a state of
affairs outside the normal experience of ajury. That is how I would put it because it is all very well for somebody to say, "Well,
I didn't understand the question". In the absence of some specific reason for that,
people are going to say, "Well, he would say
that, wouldn't he", particularly if it was an
unfortunate question leading to an even more
unfortunate answer, but here he had the materialto demonstrate that he was not just making it
up, and to combat the evidence so far given
that as far as anybody else, and particularly
the police were concerned, he understood clearly
and was not confused to that effect. It was an
issue properly before the jury and there is,
with respect, no basis for excluding his evidence.
DEANE J: But you have to be more precise in answering
Justice Dawson, do you not? I mean, if you go to page 446, what is it that this report is
saying? It is not saying he is mentally deficient, MR BLACK: Not within the normal psychiatric definition. DEANE J: That is right.
MR BLACK: But to say that a 23-year-old is functioning intellectually at the level of a 10-year-old
DAWSON-J: That does not tell me very much: there are some
very bright 10-year-olds who are perfectly able to understand questions and things ~.read back to them.
MR BLACX: Indeed, but, with respect, no doubt had he given evidence, he would be asked to
clarify it.
DEANE J: But you cannot isolate that. You have got to say "functioning intellectually at the level of a 10-year-old but he is not mentally retarded".
MR BLACK: No, "severe impairment in most of the basic educational skills; greatest deficits in his
reading and comprehension skills".
DEANE J: Now, assume that you have an illiterate person:
does that mean that an expert can go into thewitness box and give evidence that the person is illiterate?
C2T29/l/JM 40 7/12/88 Murphy
MR BLACK: That is difficult because that is entirely up to the person saying "I can't read". It is
very difficult to see how an expert could
ascertain the correctness or otherwise of that.
DEANE J: That is right, but, take this case: if it is
not mentally retarded, your client could go
through and say, "They're words I don't use;
they're words I don't understand".
MR BLACK: Yes. DEANE J: Well now, why can a speech therapist then
be called and say he should be believed when
he says he cannot use those words and he cannotunderstand these words?
MR BLACK: Your Honour, all one can say here is that that is a question as to whether the expert has been
deceived in the areas he is talking about and
because of the range of tests and investigation
he carried out - I think he covers it in the
report. Yes, he does, right at the head of the
sunnnary - the doctor had that in mind, on page 446.
His response is:
appeared to be consistent, realistic
and truthful.
He had the question of deceit in mind, as most of
these doctors do.
Now, of course, that can be investigated
with the doctor~ if I am right to call him a
doctor- in evidence. It is a question of the
weight of his evidence.
DEANE J: But it is the starting point and that is, our starting point is that he is not mentally retarded and you go to page 443, what does it mean:
understanding the following words ..... Leslie Murphy would have had difficulty Page 2: "You've been nominated - Well, I suppose anyone would have difficulty with
that one, but the next line -
"obliged".
What does it mean that Leslie Murphy would have
difficulty in understanding "obliged"? Most
10-year-olds would understand "obliged".
C2T29/2/JM 41 7/12/88 Murphy MR BLACK: Well, no doubt had the situation arisen, Dr Sharpe would have been asked what he meant.
I cannot go behind his report.
DEANE J: I am obviously being obscure. What I am trying
to ascertain is, what is the precise field of
expertise which was involved here and which would
qualify this as admissible evidence?
MR BLACK: Comprehension and uttering use of words ascribed to him based on the overall intellectual assessment
~arried out by a skilled person.
Now, it is not as simple as a man saying, "Well,
there is no point in asking me which words I can
read and which words I cannot, I just cannot read".
DEANE J: Well, then, if one tests this, in almost every case
of a record of interview, it would be and, indeed,
it very commonly is, open for the accused to say,
"They are words I do not use". Now, on this submission, could a speech therapist be called to
say, ~aving had four interviews with him, my assessment
is that these are words he would not use" or does this
go beyond that? ·
MR BLACK: I would say this goes beyond it, although I would say, if there is material upon which a speech therapist
can say that, that is contemporary material, then
I do not see, with respect, why that would not be
admissible. The weight of it, of course, is another matter but it is to assist on a field where, with
great respect, the ordinary jury do need assistance.
Now, it may be unlikely that in many cases people
are going to get this assistance from other sources
but when you have what is accepted, even by the
Court of Criminal Appeal, as a finely balanced
situation and they say, "Well, if he had been shown
to be a five-year-old - intellectual ability of a five-year-old., clearly admissible"and then, for some reason, they say, "15,not", I suppose that is
just five years either side of what the evidence
was in this case but to say it is finely balanced
means that is for the jury to make what they will of
it but I respectfully say, this is a properly qualified
person speaking about matters of scientific expertise.
Of course, I cannot say that he would have been bound
to be accepted. Who knows what would have happened. But this applicant should have had the opportunity of
putting that before the jury in support of his case.
TOOHEY J: To say the person's first language was not English but they had some smattering of English, no doubt the
witness could be heard to say that he or she did not
understand particular words, could a linguist be
C2T30/l/SH 42 7/12/88 Murphy called to give evidence that the person had been
interviewed and that, given the level of understanding
of English, the person could not have answered
questions in the way that was indicated by therecord of interview.
MR BLACK: I must, I do say yes because you would also have other evidence there, probably from a teacher or
from the workplace, to such an effect. I had a situation not so long ago where somebody had come
from Asia and I called a teacher from Long Bay Gaol
as to the level of his English, as far as she was
concerned. Now, it was entirely a matter for the jury to decide but, of course, the case against the
accused was he understood perfectly well and was only
pretending not to. It is highly relevant to this issue,
particularly where, asin this case, you have this man
of 23 and the only evidence against him is said to be
his confessions. The weight of them, on JACKSON, this evidence must be admissible.
DEANE J: Except the problem is if you go to 446, it seems to
take that out of the expert evidence. Now, if you go to the rest, his mother would have been a better
witness, that these following 200 phrases are phrases
he never uses.
(Continued on page 44)
C2T30/2/SH 43 7)12/88 Murphy
MR BLACK:
Your Honour, I know not the level of intellectual ability of his mother.
DEANE J: But I am just trying to convey to you the problem I am having in identifying the precise point?
MR BLACK: Yes. Well, the precise point here is that this is
a properly qualified person. He is a-consultant psychologist, qualified to assess what he says he was assessing and when he comes to the conclusion that it
is a level of a 10-year-old, that is, when considering
the weight to be attached to alleged confessions,
highly relevant when the man, himself, is 23. With
respect, it is as simple as that. We are not opening up any great floodgates here and as I say,
when the Court of Criminal Appeal accept that it is
finely balanced, well I am over the hurdle, with respect,because the burden of proof entitles me to have it.
DEANE J: Yes.
MR BLACK: I mean what is normally described as "a battery of tests" is set out and these are cormnonly used. It
starts off with general intelligence tests - the I.Q.
test and then there is visual recognition and so on
and so forth. I anticipate Your Honours will have seen this sort of thing in fields other than criminal, of course, the question of brain damage and that sort
of thing, that doctors are commonly giving evidence
as to the effect of an injury to the brain or a
change in personality or intellectual functioningcapacity after an injury. It is all similar sort of
evidence and - - -
100HEYJ: Mr Black, could you let us have at some stage the transcript references to cross-examination, whether
on the voir dire or during the substantive trial,of
questions directed at police officers regarding thisman's understanding of the interview?
MR BLACK: Yes. We have the transcript and the passage I referred to already was page 396 or 376 and we will
make sure and try and agree with the Crown what they are.
TOOHEY J,i= And could you also make sure that we have the :1 transcript as well as references?
i:
MR BLACK~ We will have it copied certainly. Just finally
j1on this point. On his statement, we have at page 41 I on volume I, it is set out what he said in his
'statement from the dock:
Then I was taken back to the interview room and Det Heskett and Det Raue were just talking and typing. There was a lot of questions
that I did not answer, what my solicitor has
C2T31/l/SR 44 7/12/88 Murphy
read to me. There was a lot of questions that I did not answer nor did the questions were
put to me, I will get to that later.
A short time later a detective came - a
police officer came into the room. He read my record of interview out to me. I just did not understand what he was saying to me, I just did
not know. I then was asked to sign the record of interview -
and he gives the reason::
I wanted to get out.
Now, I do not think he did actually come back to it.
DAWSON J: He says on the preceding ~age that he is not very good at understanding,
MR BLACK: Yes, thank you. Yes, I will have those passages
photostated when they are ascertained. Your Honour, those are my submissions on that third ground relating to
Leslie Joseph Murphy. The fourth ground is very short and straightforward. (Continued on page 46)
C2T31/2/SR 45 7/12/88 Murphy MR BLACK (continuing): The trial judge told the jury, 1n a
general way, that the case involved allegations
of conspiracy, assault and fabrication by 26 police
officers. Well, it did not. In relation to the
various appellants I represent, the figures are
that about 10 of the police officers were cross-
examined and at its highest allegations could be
said to have been made against - allegations of
impropriety, and I have included there saying,
"That wasn't said", against six.
The judge said he was taking an overall view
of the case but that observation totally conflicted
with the duty which he had observed earlier telling
the jury to consider each case separately but tolump on the defendants generally the observation
that 26 police officers, if they were right, had
conspired to fabricate, beat them up and so on
and so forth, was a serious misrepresentation of
the defence case and put a totally unwarranted and unjustified burden upon them.
DAWSON J: Did he give the normal direction that they may
disregard any comments which he made?
MR BLACK: Yes, he had also told them earlier that they
should treat each applicant separately. But his
attention was drawn to this and he refused to do
anything about it and, of course, he told them
to disregard his comments but when it is put like
that, that is a somewhat heavy comment, with respect.
That point is simple, straightforward, it
either appeals or it does not.
TOOHEY J: Would you just give us the page reference to that part of the judge - - -
MR BLACK: I will find that in the notice of appeal - it is in the Court of Appeal. It is at pages 38 to
43 of the transcript which is 493 and 494 and that has the advantage of setting out His Honour's
passage and you will find the specific passage at
line 30. It starts at 25:
If one were, for example, to include those
two unidentified detectives, two at a time,
three times, who visited Michael Patrick
Murphy ..... there would appear to be some
twenty-six officers involved in these
conspiracies, assaults and fabrications.
And then he says, immediately, to answer
Your Honour's question -
C2T32/l/ND 46 7/12/88 Murphy I am not again intending to be entering the
fact-finding arena ..... but on the probabilities,
on what is likely to be the situation .....
what is the likelihood? Is it that you get
twenty-six police officers?
You can, of course, say to the jury, "It is up
to you whether you agree and I'm not saying that
I'm right but", and then he goes on and repeats
it. We just say that was too strong and I do not
feel I need to take Your Honours to the two
particular cases that I quote. It is just a general
principle misrepresenting the case against thedefence and placing an undue high burden upon them.
DEANE J: What was your number? MR BLACK: It was volume 11 - - -
DEANE J: No, what was your number of persons? MR BLACK: I can give you the specific DEANE J: I thought you said six. MR BLACK: Yes, I can give you specific figures in the case of two of the appellants.
DEANE J: But I thought you said a total of all was six because
in the middle of that page His Honour identifies
six unspecified assailants on top of whom would
be -
MR BLACK: No, there are 26 police officers in the case. DEANE J: Involved in questioning?
MR BLACK: There were 26 police officers in the Crown case. DEANE J: I was just really asking you, you said earlier,
on the defence allegations there was a maximum of - I thought you said - six who would have been involved in improprieties.
(Continuing on page 48)
C2T32/2/ND 47 7 /12/88 Murphy MR BLACK: Yes, of the witnesses. The number 26, as we understand it, comes from the number of police
officers in the case.
DEANE~ But obviously, it is more than six His Honour is referring to, because just looking at it, you can see there must be more than six. MR BLACK: No, if I can clarify the point I am making: in the case of Leslie Joseph Murphy, only 14
police officers were cross-examined and at its
highest - and this is my analysis - allegations
of impropriety could only have been said to
be made against six of them. That is where it
is challenged what they said, or they are
accused of doing something wrong. That is the
way I was putting the six. In the case of
Michael James Murdoch, the numbers - - -
DEANE J: Do not trouble about numbers. MR BLACK: Sorry, it is very similar. But it was accepted in the Court of Appeal that nobody was accusing
26 people of conspiring to fabricate or commit
acts of violence against them, but they took
the point that against the overall backgroundof the summing up, it was not serious enough.
MASON CJ: But, Mr Black, His Honour's comments seem to
be directed not so much to the evidence, but
to comments that were made during the course ofthe addresses.
MR BLACK: Yes. MASON CJ: Was the comment made during the course of the addresses that a relevant part of the police
case was a complete fake?
MR BLACK: No, there are quotations. I have to tell
Your Honours I was not at the trial.
MASON CJ: It does seem that His Honour was making these remarks in order to counterbalance some
rather extravagant comments that were made during
the course of address.
MR BLACK: In the Court of Criminal Appeal they preface their quotation about this with some
passages from His Honour's - - -
MASON CJ: Page 492.
MR BLACK: We start at page 492, and that is where there is a selection of what His Honour heard defence
counsel say to the jury. There were strong
allegations about violence and so on, but
the word "conspiracy" seems to be missing from that,
but not indicating defence counsel were doing
C2T33/l/JM 48 7/12/88 Murphy otherwise than dealing with the officers
relating to them, not putting them all
in the same bag.
It was an emotive trial - - -
DEANE J: It seems to indicate though that His Honour
was dealing with a suggestion that those
officers who had acted properly in relation
conspiracy, they being the "nice 11 ones. to at least one accused were part of a
MR BLACK: That is of no relevance, with respect. DEANE J: Pardon?
MR BLACK: That can be of no relevance without other accused not before the court.
DEANE J: No, I was just dealing with the numbers involved with that accused. MR BLACK: Sorry, yes.
DEANE J: Which means in relation to that accused there was an allegation of impropriety against all the police involved in interrogation.
MR BLACK: Such of them as dealt with him, yes, when I gave you the illustration, 14 officers cross-examined on behalf of Murdoch, but
allegations of impropriety only put to six.
DEANE J: But what is said in addresses is that those who were ''nice'and not improper were part of the conspiracy, because that was an overall modus operandi. MR BLACK: I do not think, with respect, that comes out of what was said on page 492.
DEANE J: Yes, in the second paragraph. (Continued on page 50) C2T33/l/JM 49 7/12/88 Murphy
MR BLACK: Yes, right: namely that they are cruel and they are
nice ..... seeking a conviction.
Yes, I do not really follow that. I thought that was an illustration of the one that pretends
to be nice and then the one that is hard comes
in later, but it does not make any differencebetween the two of them, the hard man and the soft man. But there it is. We just say that was far too sweeping a statement and inevitably prejudiced
the accused.
Turning to ground 5 - this is Michael Murdoch's ground (A)(iv) - there were certain remarks made by
the officer giving rise to answers from the accused
and defence counsel tried to find out what the basis
allow him to do so and gave no reasons. Now, this for the remarks was, and the trial judge refused to is dealt with - he was not allowed to argue it at all.
This is dealt with at pase 64 of the judgment,volume II, page 517, and it deals with cross- examination of the sergeant and this relates to
the record of interview. It repeats at page 518, question 1: I have received further information
particularly in relation to your
involvement.
Then question 4:
I have been told -
and then certain facts are put to him, and then
question 7:
I have been told.
Question 8: I have also been told - and then it goes on, and then it comes at page 519
to cross-examination, defence counsel seek to investigate
that and the question is objected to:
~uestion pressed: question rejected).
(Mr Bleasel applied to argue the
objection. Application rejected).
No reason at all was given, and the Court of Appeal,
at page 522 say:
C2T34/l/HS 50 7/12/88 Murphy It would no doubt have been preferable
for his Honour to have permitted the matter
to be canvassed a little further, so that
the reasons, both for the objection andfor the ruling, would have been known. At the foot of that page:
In the view that I hold it is not shown
that this ruling was in error. It may not be positively shown that the ruling was
soundly based, but being left, as the
Court is, without a clear intimation of
the ground for the ruling, I am not
persuaded that it was erroneous.
Then it goes on to say that we object, that he
was not allowing it to be argued. Now, with respect, that is totally reversing what the situation should be. There is a HOUSING COMMISSION case, of which I think we have brought copies, and
I hand that up. That was not on our list. The
industry of those with me found that. It is the HOUSING COMMISSION OF NEW SOUTH WALES V TATMAR,
(1983) 3 NSWLR 378.
(Continued on page 52)
C2T34/2/HS 51 7/12/88 Murphy
MR BLACK (continuing): Now, this was a planning case but the Court of Appeal - it is all to do with
valuation on resumption - held:
(1) The extent to which a court must go in giving reasons is not capable of precise
definition but reasons must be given so as
to establish the basis for the decision in order
not to nullify rights of appeal.
And that is dealt with in the judgmen~. Hutley
does it at page 381F:
The extent to which a court must go in giving
reasons is incapable of precise definition.
A court must not nullify rights of appeal by giving no or nominal reasons, but there is
no duty to expound reasons so as to facilitate
appeals.
Then they go on to say that it did not really cause
a problem in that case. The other judge, Mahoney, deals with this at 385E: However, such a duty does not exist in
respect of every matter, of fact or of law,
which was or might have been raised in the
proceeding. It is not the duty of the judge
to decide every matter -
That is, of course, concentrating on a civil trial where there is conflict between witnesses, no doubt.
TOOHEY J: Well, not only that, it is dealing with the ultimate
decision, is it not, and the reasons or the absence
of reasons for that decision. We are concerned, here, with a ruling - - -
MR BLACK: An interlocutory ruling, as it were.
(Continued on page 53)
C2T35/l/SH 52 7/12/88 Murphy
MR BLACK (continuing): Now, the importance of this is that under the law in New South Wales, a confession is not admissible:
if it has been induced -
(a) by any untrue representation
and that is section 410 of the CRI:MES ACT 1900. We have copies of that should Your Honours need to have
that. But it is as simple as that and the question to be pursued here by defence counsel was whether
the officer in truth had the information he said hehad. It seems to have been decided in the Court of
Appeal - they inferred that it was a question to find
out what some informant may or may not have told the
officer. Well, that is not right. It was to find
out what information he had. Now, if it could be shown that he had made an untrue statement about
knowledge in his possession that would have rendered
the record of interview inadmissible and, as
Your Honours have gathered, in respect of each applicant,
the record of interview was vital for the Crown in each
case. 410(1):No confession, admission, or statement shall be received in evidence against an accused person
if it has been induced -
(a) by any untrue representation made to him by
the prosecutor.
Subsection (2) goes on to deem it:
to have been induced ..... unless the contrary
be shown.
So that was the purpose of this investigation. It was cut off at its inception and no reason for doing so
was given.
(Continued on page 54)
C2T36/l/VH 53 7/12/88 Murphy MR BLACK (continuing): It is an illustration of where the
defence were not allowed to pursue a legitimate
line of questioning upon the most crucial matter,
in the case of Murdoch, in the case, which was his
record of interview and that is the simple situationthere and, on a matter of such importance, it was
obviously necessary for the judge to give his
reasons or, as the Court of Appeal suggested, to
allow it to be canvassed a bit further. He did
not allow it. He did not give his reasons. We know not why he refused it but, by not giving reasons, we say he erred in law and he should
have given reasons and it is not right for the
Court of Appeal to speculate what his reasons
might or might not be. To use the expression
that they did, "it may not be positively shown
that the ruling was soundly based",misplaces the
onus in cases such as this.
There is no clear intimation. court be p_ersuaded it was anything? So we simply
How can the
say that that was a serious miscarriage there on
the heart of the case against Murdoch. Again, it
is a short point and I do not think it bears much
elaboration. Either it makes sense or it does
not. It goes together in a way with the next point about the video tape. Now, again, defence counsel
was seeking to challenge some evidence given by
what had happened at a visit to the scene after
arrest when certain things were said to have been
done and certain things were said to have been
said by various people and a video tape recording,
was available to the defence, of this activity
and counsel wanted to cross-examine the officer
in relation to that video tape and he was not allowed
to.
(Continued on page 55)
C2T37/l/SH 54 7/12/88 Murphy
MR BLACK (continuing): We find this at page 500 in volume II. It was wrongly assumed that counsel was trying to show
the video tape to the whole court. Now precisely
what Mr Bleasel was trying to do we find at the top
of page 501. He submitted: the course that he was proposing to
adopt would be similar to having a photograph
put in front of a witness and that witness
asked to indicate various things on the
photograph or on a tape recording.
This was rejected. And then they go on to say that it was not legitimate for him to have shown it to the
jury. Now on this aspect, in order to clarify the
situation, my instructing solicitor has prepared a
sketch which is attached to an affidavit. We have served this on the Crown. I am not too sure whether Your P.onours are prepared to look at it. It is an affidavit setting out the layout of the court and what was proposed
to happen. It is just to make quite clear what the situation was. It has not been in evidence before but it would assist you following my argument. That is the
way I put it.
MASON CJ: What is the attitude of Mr Gray to this? MR GRAY: I think we would object, Your Honour - I do not mind Your Honours looking at the material, but we would
formally object to that material being put to
Your Honours on this point. As we understand it the Court of Criminal Appeal determined the matter after
a hearing with respect to the parties where, if this
was the point, it ought to have been put to the
court at that stage. They reached a conclusion, it is not explained. I do not know what took place in the course of the appeal below, nor is it necessarily
all that clear as to just what took place at the trial
itself. This seems to be the material which ought to
have been canvassed before the Court of Criminal Appealand the matter isproperly for them,not for Your Honours. (Continued on page 56)
C2T38/l/SR 55 7/12/88 Murphy
MASON CJ: What do you mean by the statement you
do not mind us "looking at the material"?
MR ~RAY: To say that if Your Honours wish to look at it to see what it is that is being put to Your Honours then, by all means. BRENNAN J: Is it material which the Court of Criminal Appeal would have taken judicial notice of
because it has to do with the layout of the
court with which that court is familiar?
MR GRAY: I suppose it is the position of the video. It would be hard to have judicial knowledge of where a particular video machine was placed
in a particular courtroom.DEANE J: Well, it would be more where the screen was,
would it not?
MR GRAY: It would be, Your Honour, yes. But my difficult as to the point that is now taken
is that it seems to be very much a point for
the Court of Criminal Appeal, not for this
Court.
DEANE CJ: But if one apprehends correctly what we are about, is it not tre point that the Court of
Criminal Appeal proceeded on an unwarranted assumption?
MR GRAY: If that is the point, yes. I only saw the affidavit this morning, so I have no instructions
as to exactly what took place in the Court of
Criminal Appeal and I would really need to put
myself in a position to find out how this
particular point was put to the Court so thatI can determine whether or not the assumption that they made was a justified assumption. This
is taking it a step back before that point.
MASON CJ: Mr Black, we will receive the affidavit at this stage for the purpose of informing ourselves
as to what is in it, without ruling on its
admissibility.
(Continued on page 57)
C2T39/l/JM 56 7/12/88 Murphy
MR BLACK: I am much obliged to Your Honours, thank you. MASON CJ:
Mr Black, I think you can proceed on the footing that we will look at this sketch with a view to endeavouring
to understand your argument.
MR BLACK: Yes. Well, the simple point about the sketch is that the video was facing the witness and had its
back to the jury, and also the bench could have seen
it from the bar table, but it was not pointing at the
jury. That is the point. Now, to deal with this, I was in the Court of Appeal on this matter and I
cannot remember as to what precisely I said about it.
What happened in the Court of Appeal: we argued
points in turn and in sequence and they gave little
judgments as we went on through the grounds of appeal.
I think each appellant had about 40 or more grounds
on paper before the Court of Appeal, not all of which
were pursued.
At this passage of time I cannot remember any
specific discussion or question as to who it was going
to be shown to but my learned junior was present in
the Court of Appeal and was also at the trial and Iam quite satisfied, had it been raised before the
little extempore judgment, it would have been dealt
with in the way that is now before you.
DEANE J: But could it not have been raised immediately after the little extempore judgment because no order had
been made?
MR BLACK: You are right, Your Honour. It perhaps should
have been, but the way things were going on we were proceeding from point to point and - you are
right. Somebody should have said, "That's not right".
DEANE J: But it goes beyond that. You have a statement by the Court of Appeal that, on what is now put, said your
point was good.
MR BLACK: Yes, I follow that. DEANE J: I am referring to page 501, line 10.
| T41 | MR BLACK: | Yes. |
DEANE J: I mean, they are not giving a judgment. They are not making orders at that stage.
MR BLACK: No. DEANE J: It is incumbent upon counsel to stand up and say, "You've made a mistake".
MR BLACK:
The fact of what we heard, as I recollect it at the time, was that you could not show the video when it
C2T40/l/HS 57 7/12/88 Murphy
had not been proved. I remember that being the impact of it. Your Honour is absolutely right. We
were there and that would have been the best way to
deal with it, but they were generally saying an
unproved video film - they deal with that at line 10
on page 501:
If cross-examining counsel wished to
challenge a witness with what was at
that stage an unproved video film, it would
have been legitimate for him to have shown
that to the witness, but not to the jury
at that stage,
It was not sought ..... no
undertaking proffered that the film would
in due course be proved.
Now, the error in failing to protest I totally accept
Your Honour's observation about. All I can say is
that I think this was half-way through day two and
while one would not say one was getting beaten down,
we were getting through it and there had been a sort
of consistency with the rulings so far. Perhaps I
should have done more and kept alert. I accept what Your Honour says.
BRENNAN J: But must this not have been canvassed by the Crown at the stage before the ruling was given by the Court
of Criminal Appeal?
MR BLACK: No. The Crown was rarely invited to contribute
in front of the Court of Criminal Appeal. I think it was the second day before they were invited to say
anything about anything, and then that did not take
long. I do not think they were invited to contribute
on this point, but at this passage of time I just could
not be definite. But I do know they did not have a
lot to do in front of the Court of Criminal Appeal.
| T42 | yes, but the court said at the outset, I think, In so far as it matters, no orders were made, | "We will give judgment on the various grounds as we go |
| ||
| totally accept Your Honour's stricture about it, but | ||
| there was not any evidential basis for that finding. | ||
| If it is too late to take it now, then I accept | ||
| that and, after all, we do place greater reliance on | ||
| some of our other points before Your Honours. |
Your Honours, that concludes the points I would
seek to argue before Your Honours. There are, both
collectively and individually, with respect, serious
matters of concern in this case that should give rise
to Your Honours saying, "There were errors here and
the matters should be not allowed to stand, and thatthe application for special leave be granted and
C2T41/l/HS 58 7/12/88 Murphy the verdict set aside", because of all, or at least
some of the grounds we put forward, and those are
our submissions.
11ASON CJ: Yes, thank you, Mr Black. Mr Gray, if we could have the benefit of your outline of submission, we
can read it over the adjournment.
MR GRAY: Yes. If I may, Your Honour, I hand up the copies
of my outline of submission. I have three outlines, one for each of the matters, but there is a lot of
repetition in relation to them.
11ASON CJ: I think we might adjourn now, Mr Gray, and we will resume at 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
C2T42/l/HS 59 7/12/88 Murphy UPON RESUMING AT 2.22 PM: MASON CJ: Yes, Mr Gray? May I say that the Court does not wish to hear you on grounds numbers 2 and 4 as set out in the outline of submission of the applicants' counsel, but we do wish to hear from you on the remaining points that have been raised in favour of the applicants.
MR GRAY: Two is the LISTENING DEVICES ACT matter, Your Honour. MASON CJ: Yes, we do not need to hear you on that and we do not need - - - MR GRAY: And 4 is the conspiracy of the 26 police officers.
MASON CJ: Yes. I think I should say at this stage that we see no substance in those points and that is the reason
why we do not wish to hear from you.
MR GRAY: Yes, Your Honour, thank you. As to the refusal to delay the trial, what the Crown puts with respect to that
is that that was a determination particularly
applicable to the exercise of a trial judge's discretion
having regard to all of the circumstances. Now, His Honour was apprised of all of the circumstances;
the publicity on the occasion of the original discharge
and the fact that that had particular application tothe jury that he was seized of on that occasion
because, as Your Honour Justice Brennan rightly pointed
out, the newspaper was published - was available to the
jurors as they left the court room.
The actual publicity concerning that particular
aspect remained until the 17th of the month. The trial recommenced on the 23rd of the month with no
other publicity. The accused with the most to lose, with respect to that, of course, as it was also
remarked, was Michael Murphy who is not an applicant in this. The publication related to his, Michael Murphy's, ''character" in quotation marks, and there was nothing,
in our submission, that bore, in respect of the other
accused, other than, of course, the general adverse
nature of the press publicity.
(Continued on page 61)
C2T43/l/VH 60 7/12/88 Murphy
MR GRAY (continuing): Whenever this trial was to take place, it would appear from the nature of the publicity, it would achieve its own degree of
publicity which would require, in any event,
clear directions from the trial judge that
they were to consider only the material which
was before the court and that they were to
ignore the pre-trial publicity and this, of
course, is a matter which is an ongoing thing
as far as the trial were concerned, and that
each of the accused were entitled to have the
questions of their guilt considered as an
entirely separate topic.
BRENNAN J: What do you say to the proposition that if there is massive media attention to a case which is
adverse to persons who stand their trial that the
only satisfactory way in the modern milieu in
which the court can be satisfied that the jury is
impartial as between the Crown the accused is
to permit the questioning of potential jurors?
MR GRAY: That is not the way that the matter has been
expressed by courts before. I put it this way: it is again a question of balancing
of a trial judge to determine that; that must
relate to the circumstances of a particular
case on each occasion. It cannot be, we would
say, an invariable rule because the qualityof media coverage - the quantum of media
coverage varies from case to case.
BRENNAN J: And the quality.
MR GRAY: Yes, Your Honour. But it is for the trial judge to be satisfied, we say, on the tests as they
stand at the present time, that there is a
prima facie case of probablity of prejudice
and it is for the trial judge to assess that in
the atmosphere of the occasion when the trial
is taking place. Now, in this case, it is not suggested, I do not think, that it was not
absolutely - that there was not that element of discretion reposed in the trial judge. He exercised his discretion, having regard to all the material
whidlwas put before him and determined that there
was not that prima facie case of probability of
prejudice, therefore, he made the ruling that he
did, not allowing prospective jurors to be
cross-examined in any way with respect to it. It
is his assessment of whether there is a probability
of prejudice as far as the jurors are concerned.
C2T44/l/JM 61 7/12/88 Murphy
MASON CJ: But is not that to use a formula as a means of excluding altogether interrogation of jurors in
circumstances where massive publicity was given to
this crime and to all the dramatic and sordid details
of it in a situation in which one would imagine astrong climate of prejudice had developed in the
corrrrnunity?
MR GRAY: Again I have got to say that that is an assessment for the trial judge. It cannot be an inevitable
result simply because there is a large amount of
publicity.
MASON CJ: But that seems to use the prima facie rule and the non-examinability of a judicial discretion to
produce the result that I have just described?
MR GRAY: I do not know, again, I suppose I have to say that if there was such an overwhelming case made out of
the media publicity and its probability of preiudicing
jurors in those terms that an appeal court could
interfere with it so that - I amnot sheltering totally behind that, I am just saying that where it
is a matter of balancing these things and where it is
open to a trial judge to do so then an appellate
court should not interfere with that if he has
exercised the right test. If it is demonstrated that
he has not done so then it would be appropriate for
an appellate court to interfere.
DEANE J: How much material was before the trial judge in relation to media publicity?
MR GRAY: How much was there, Your Honour? DEANE J: Yes.
TOOHEY J: There was described on page 2 of the volume I of
Leslie Joseph Murphy's book, Mr Gray, His Honour
refers to 30-odd or more newspaper cuttings?
MR GRAY: Yes, thank you, Your Honour. Your Honours would probably have in the Registry whatever material was
before His Honour.
MASON CJ: That may be to make an assumption that is not
entirely justified, Mr Gray, to judge from past
experience, but we can look into that?
(Continued on page 63)
C2T45/l/SR 62 7/12/88 Murphy BRENNAN J: That really does not tell us very much either
about the views that might be formed arising
from the newspaper articles. It is one thing for a newspaper article which might describe the tragic
state of the victim. It is another thing to connect
that tragic state with the persons who are accused
of having perpetrated it and it is not really a
question of whether there was vast newspaper
coverage of the Anita Cobby murder. It is a
question of whether there was something done to
the prejudice of those who were charged with its
commission.
MR GRAY: It could be said that there was specific prejudice as far as Michael Murphy was concerned in relation
to that publicity concerning him.BRENNAN J: That is in relation to his being an escapee.
MR GRAY: Prison escapee.
BRENNAN J: Yes. MR GRAY: What Your Honour says, with respect, I think, is right. In one sense, I think I would also want to
say that the probability of prejudice arises from
the nature of the material which, in fact, links
these persons with the commission of that crime in
some way. This is quite a different case to the
KRAY CASE where, in the KRAY CASE, quite clearly
very damaging material was published as to his
culpability with respect to the crime, not publicity
concernine the crime and the fact that he was the
person charged with the crime but it was, as Iunderstand the nature of that publicity, publicity
which implicated him in relation to that crime and
it seems to me that in such a circumstance you
get to a situation in the prima facie probability
of prejudice.
DEANE J: Mr Gray, if you look at page 4 in the middle of the
page - - -MR GRAY: Of which book, Your Honour, I am sorry? DEANE J: Of book I, it seems apparent that His Honour, putting to one side the prison escapee point, thought that the recent publicity had not been greatly prejudicial in
the sense of directed at guilt or at particularaccused which, no doubt, is why Mr Black focused in on the prison escapee aspect of it.
C2T46/l/SH 63 7/12/88 Murphy
DAWSON J: The application challenge for cause was made when the thing first came on for trial, was it not?
MR GRAY: Yes, it was, Your Honour. DAWSON J: And then, subsequently, there was the passage
in the paper about one of the accused being an
escapee?
MR GRAY: Yes.
DAWSON J: And then that went off for a week. Was the application renewed?
MR GRAY: The application was renewed for these proceedings. DAWSON J: On the 23rd?
MR GRAY: Yes, on the 23rd. The application was renewed, as I understand it, on the same basis as before
but with the addition of this additional publicity.
I do not know that I can add anything more to that
particular aspect.
If I may go to ground 3 of the applicants' outline which is the evidence of the psychologist.
I preface that by handing to Your Honours - and
I cannot say that this is necessarily comprehensive
but it is the questioning on the voir dire of the
three police officers involved with the record of interview and the matters that were in fact
put to them concerning comprehension and ability
to read and if I may just hand those.
As I said, on the short time available, we
have only just been able to pick out those that
have immediately come to mind. There may be othersand if there are we would wish to supplement it
at another stage.
(Continuing on page 65)
C2T4 7 /1 /ND 64 7 /12/88 Murphy
MR GRAY (continuing): The other aspect of that is that it probably is materia~ in one sens~ to consider the
evidence that the applicant, Leslie Murphy, gaveon the voir dire and that is fairly lengthy and has
not been copied. I put this to Your Honours just because it seems that there is - a lot of this
depends upon the way that the defence case was put
concerning the confession. Can I say at the outset also that there are two confessions involved with - yes, sorry, it is Leslie Murphy - there are two
confessions involved with Leslie Murphy. One confession took place when he was being driven by
police officers and his prime challenge, as Iunderstand, to that confession was that he was,
in the vernacular, "verballed." It was a fabricated confession. No question of whether he understood it or not. That confession relates to the matters that
Your Honour Justice Deane referred to concerning the
spending of the money on petrol, and so on.
As I understand it, the voir dire examination and
the questions asked on the voir dire examination in
relation to the other alleged - - confession, the record of interview, is the subject
of the cross-examination that is shown in these pages.
The other general thing that perhaps I should put is
that the case on the voir dire, for the applicant, Leslie Murphy, depended upon a number of alternatives and they seem to be set out at page 930 of the
transcript that Your Honours have before you, at
about point 3 where:
Mr Mulligan stated that it would be his
submission that the record of interview was
not a voluntary one, and that he was asking
question at this stage to what the accused
had actually said. He further submitted that the statements attributed to the accused,
the record of interview, were involuntarily
given, which he submitted was a different
situation to an earlier record of interview
where it was alleged that the accused was verballed.
That is the earlier one that I have referred to.
Mr Mulligan stated that it would be further
alleged that the record of interview was
fabricated, and after discussion Mr Mulligan
stated that he would not press the above question.
So there were, as far as I can ascertain, really the
three grounds as to this. First of all,that this
record of interview was fabricated; secondly, if it
was not fabricated then it was involuntary or,
alternatively, it was a combination of fabrication
and not being voluntary. Now, it becomes no clearer, in my submission, when one actually looks at the
evidence that is given by the applicant himself on
the voir dire.
C2T48/l/VH 65 7/12/88 Murphy
DEANE J: What a lot of court time would have been saved if the answer to the next question had been different,
Mr Gray.
MR GRAY: Yes, Your Honour. DEANE J: Weeks. MR GRAY: Yes. DEANE J: We hear all these complaints about delays in the court. MR GRAY:
Yes, I have to agree entirely. It does not help us,
though, I am afraid. Now, the other aspect of this is that the challenge to the police was not a
challenge which related to the reading ability ofLeslie Murphy; it was a challenge which related to
comprehension. It was conceded by the police officers -
"conceaed" is not the right word - it was stated by
the police officers at a very, very early stage that
they determined that he clearly had difficulties in
reading material and that is why the record of
interview of Michael Murdoch was read to him and
that comes out of this line of questioning.
(Continued on page 67)
C2T48/2/VH 66 7/12/88 Murphy
MR GRAY (continuing): There are the occasional questions
that are asked as to his comprehension in relation
to the questions that were put that became typed as
the record of interview and the police officers were
of the view that he had no difficulty in comprehension.
But they were all put in the specific and as far as
I am able to ascertain there were no specific questions put with respect to particular aspects of
the interview as to whether he could have said it or
did not say it. Now another - - -
TOOHEY J: Just before you leave that, Mr Gray, do you mean
in relation to subject-matter or do you mean in
relation to particular expressions?
MR GRAY: Both,I think, Your Honour, but in particular there
was no cross-examination of the police officers as
to particular - - -
TOOHEY J: But it was not put to any police officer that Murphy did not use that particular expression and
could not because it was beyond his vocabulary?
MR GRAY: As far as we have been able to ascertain, no, that
was never put. I am sorry, I am corrected, there are some other pages. I am told - I stand corrected on that, apparently one of the police officers was
certainly asked about certain words that were put
to him which places me in the situation of not really
being able to comment in relation to that. But I think it is probably desirable that Your Honours
have whatever material we have got thus far and so
I would propose to hand up the various pages.
(Continued on page 68)
C2T49/l/SR 67 7/12/88 Murphy
MR BLACK: Your Honours, we have here pages 1023 to 1035,
Detective Sergeant Raue. We then have pages 1071, 1075, Detective Constable Heskett, who was the
scribe, if I may so call him although he used
a typewriter, and then 1087 to 1090, again of
Heskett.
MR GRAY: What I first gave to Your Honours was the
transcript of the voir dire. The material that Your Honours now have is the transcript of the trial itself. It is almost like going back to a trial.
Just looking at those extracts, it seems that
only Detective Constable Heskett was asked
questions about the particular expressions,
and that appears at page 1072 generally, but
I do not see that Detective Sergeant Raue was.
TOOHEY J: I do not think that is quite right, Mr Gray. Just select a page at random, but if you look
at page 1031, just over half-way down, you will
see a question directed to the use of the word
"prefer".
MR GRAY: I accept that, Your Honour. I am really not in a particularly good position to make generalizations
about all of this because I have only just looked
at it in any event, but it really is in response
to the - and I think properly so, with respect,
that this Court should be apprised of the nature
of the voir dire examination and the nature of
the cross-examination of the prosecution case.
(Continued on page 69)
C2T50/l/JM 68 7/12/88 Murphy
BRENNAN J: Was this problem considered in the STUART case in South Australia?
MR GRAY: I do not know, Your Honour. BRENNAN J: Other than -
MR GRAY: It certainly was an issue.
BRENNAN J: Yes. MR GRAY: It is so long ago that - - -
BRENNAN J: Some memories have faded. MR GRAY: I am sorry, Your Honour? BRENNAN J: That some memories have faded.
MR GRAY: Mine has, Your Honour, I am afraid. It would appear Your Honour's has not.
BRENNAN J: No.
MR GRAY: I cannot even say whether there was an attempt to adduce evidence of Stuart's comprehension and ability - certainly it was a big issue at the trial - nor do I know what the Court of Criminal Appeal said with ,respect to it - - - BRENNAN J: Yes.
MR GRAY: - - - or whether there was that material admitted. In the end result, of course, it is the Crown's submission that this question of his comprehension up their minds unassisted or it is a topic where is not a topic which the jury are unable to make the jury are able to make up their minds without assistance. It falls into the - bear in mind, the question of his reading age is not, in my submission,
an issue, with respect to this because the police accepted that that was, indeed, the case. The question
can only relate to his ability to comprehend thequestions and answers and this is material which, we say, has generally not been allowed by the
courts to be given by experts.TOOHEY J: But how would the jury be able to make up its own nind on that matter, at least without hearing the accused? 'What material would the jury have to enable them to arrive at a conclusion as to a person's ability to comprehend or as to a person's vocabulary. MR GRAY: We would say his own evidence. TOOHEY J: Yes, I said without hearing the accused.
C2T51/l/SH 69 7/12/88 Murphy MR GRAY: Without hearing the accused - - -
TOOHEY J: Say an accused did not give
evidence.
MR GRAY: - - - only by such inferences that arise from the particular circumstances. TOOHEY J: Yes, but take a case in which the accused did not give evidence but there was an issue raised as to
his comprehension and/or his vocabulary.
(Continued on page 71)
C2T51/2/SH 70 7/12/88 Murphy
MR GRAY: Part of that would come, no doubt, from an
examination of the objective circumstances. A
question and a completely irrelevant answer toa question could lead to an inference of his lack of comprehension. This is where it becomes difficult, in our submission, to try and put into the separate compartments the issues that this accused is seeking to raise with respect to his
confession. This does not go, we say, to a question of fabrication. We say this evidence only goes in so far as
it is part of his case that he did not understand
the question that was put to him and we say there
is a danger of spilling this evidence over into
other issues which are really another issuealtogether.
TOOHEY J: If a person had received brain damage, I take
it there would be no difficulty in having a medical
practitioner testify, without the necessity of the
accused giving evidence, that the accused was simplyunable to comprehend the sort of questions that
he had been asked and, indeed, was unable to use
the sort of vocabulary which had been attributed
to him. There would not be much difficulty in that
situation, I imagine? What is it that differentiates
that sort of situation from the present one? I am not suggesting that there is not a differentiation
but why is it important to try to identify what i t i s ?
MR GRAY: There is a subtle difference and it starts to get towards a degree of sophistry, I do confess, but I think the difference is this, that you do not give expert evidence where you are dealing with a person within the range of the normal. Expert
evidence is given in respect of the abnormal and
within normality there are an average of variationswhich leads, we would suggest, to the way the Court of Criminal Appeal approached it in this
way of talking about it being finely balanced. (Continuing on page 72)
C2T52/l/ND 71 MR GRAY, 7 /12/88 Murphy MR GRAY (continuing): It seems also, on my submission, by
looking at the authorities, this seems to be now the
way - there is a drift to approaching this type of
problem in this way and I will cite to Your Honours
some authorities which I say tend to illustrate the
point if they do not make it any clearer. In this
particular case the argument really is that all
that this applicant is is a variation on what wouldconstitute normality. That is an issue for the
jury to permit expert evidence in relation to that
would only really be permitting evidence to be given
with respect to a person's credibility to support
their credibility, it would not be evidence outside
of that area where the jury are able to make up
their own minds as the fact finding tribunal.
To answer Your. Honour's question, the
medical practitioner who gives evidence of an
abnormality can do so as an expert because the lawsays that that is outside of the range of normality.
Your Honours have been referred to TURNER's case and
I think TURNER's case probably embodies the rationale
in respect of expert witnesses and espouses the rule
in FOLKES V CHADD and that rationale is expressed in
(1975) QB 834 at page 84\ at point Don that page:
The foundation of these rules was laid
by Lord Mansfield in FOLKES V CHADD ..... and
was well laid: the opinion of scientific
men upon proven facts may be given by men of
science within their own science. An expert's opinion is admissible to furnish the court
with scientific information which is likely
to be outside the experience and knowledgeof a judge or jury. If on the proven facts
a judge or jury can form their own conclusions
without help, then the opinion of an expert
is unnecessary. In such a case if it is
given dressed up in scientific jargon it
may make judgment more difficult. The fact that an expert witness has impressive
scientific qualifcations does not by that fact alone make his opinion on matters of human nature and behaviour within the limits
of normality any more helpful than that of
the jurors themselves; but there is a dangerthat they may think it does.
I picked out that expression "the limits of normality".
Your Honours were referred to JACKSON's case and in
the context of expert witnesses in relation to
confessional evidence and the application of
JACKSON's case, the Court of Criminal Appeal inQueensland considered that matter in REG V McENDOO
(19 81 ) 5 A Crim R at page 5 2 .
C2T53/l/SR 72 7/12/88 Murphy
MR GRAY (continuing): Your Honours will see from page 54
of that report, in the middle of the page:
The defence called a psychiatrist Dr Milner
and the evidence which it was intended to
elicit from this witness was that on the
assumption that the interrogation took a
certain form, the appellant being weak
willed, vacillating, a poor judge of others,
obsequious, submissive and dependent, the
interrogation was most likely to lead to
his making a false confession in the sense
of agreeing with almost anything put to him.
It is important that the psychiatrist said
in evidence that he suffered from no
specific psychiatric illness, was not
insane in any way and was not mentally
retarded. The highest it could be put was that his personality showed an exaggerated
form of a number of personality traits that
it was said all people possess to some
degree or another. The learned trial judge ruled that the psychiatrist might give an
appraisal of the appellant's mental capacity
and emotional set-up but that he might not
give evidence relative to anything that
happened in the case.
It was then said that that was a correct ruling, and some observations were made on page 55 of the principle
that this Court had espoused in JACKSON's case, and
about a third of the way down Justice Connolly said:
Two observations however are called for.
First the principle stated in JACKSON and
approved in DRISCOLL is limited to the
admissibility of the circumstances. It
offers no support for the proposition that
a witness may swear to the likely effect
of the circumstances upon the mind of the
accused person. As the circumstances relied upon by the defence were fully elaborated by the witness JACKSON thus
affords no support for the argument thatthis category of evidence was wrongly rejected. In refusing to allow the
doctor to express an opinion as to the
likelihood or otherwise of the appellant's
having made a false confession the learned
witnesses cannot be permitted to usurp thejudge was in my opinion plainly right.
jury's function -
citing ASHCROFT and TONKIN AND MONTGOMERY -
C2T54/l/HS 7/12/88 Murphy 73 It does not fall within the category of
cases in which experts are permitted to
express an opinion on the issue referred to by Kneipp Jin TONKIN AND MONTGOMERY,
at p. 18, the leading examples of which
are the existence in fact of states of
insanity and diminished responsibility.
The evidence here rejected and in my opinion rightly rejected was as to the
possibility or otherwise of a person with the
appellant's characteristics having in fact
made a false confession. This in my view was plainly a jury question and not one for
the witness.
He makes a second observation in relation to JACKSON
and corrrrnents:
The decision of the Court of Appeal in TURNER provides strong support for the view that the assessment of the personality of a normal
person is within the capacity and experience
of the jury and is not a subject for expert
testimony at all -
citing ASHCROFT, and goes on to say -
It is unnecessary to express a concluded opinion on this point.
(Continued on page 75)
C2T54/2/HS 74 7/12/88 Murphy MR GRAY (continuing): There are two single judge decisions in
the Supreme Court in Victoria that I would refer
Your Honours to. The first of those is REG V O'CALLAGHAN, (1976) VR 441 and that dealt with the question of a
psychologist's opinion of the accused's personality
as showing whether the accused was likely to have
given answers allegedly recorded in the police
interviews. After discussing the authorities,
Mr Justice Gowans said at page 447, line 19:
In my view the matters that the jury are called upon to determine with regard to
the evidence of the police, and the denials
and suggestions of the accused either that
the evidence is false or that the document
produced is a concoction, are matters well
within the province of the jury without the
help of the psychologist.
There is also a decision of Mr Justice Beach in
(1985) VR at page 505, which I will not go to but
it deals with the evidence of stylistic analysis
which he rejected, again on the basis that these
were matters for the jury to determine.
(Continued on page 76)
C2T55/1/VH 75 7/12/88 Murphy
MR GRAY (continuing): In this context it would seem that
similar statements have been made - again a
case which I will not go to, but just for the sake ofcompleteness - in the New Zealand Court of
Appeal in REG V MOORE, (1982) 1 NZLR 242.
That was the desire to call a psychiatrist to say that an accused was an unusually
suggestable person and that evidence was ruled inadmissible and held to be so by the Court of
Appeal.
The final authority that I would refer
Your Honours to is again the Court of Criminal
Appeal in Queensland in REG V BARRY,
(1984) 1 Qd R 74, which is interesting because
it contains three different approaches to this
question. The court comprized Mr Justice D.M. Campbell, Mr Justice McPherson and Mr Justice Thomas.
Your Honours will see from the headnote that
Mr Justice D.M. Campbell held:
That a psychologist's evidence -
going to the weight of a confession -
was rightly excluded as irrelevant and
pertaining to peripheral matters within
the general competence of a jury.
Mr Justice McPherson said:
That the trial judge was wrong in excluding
the evidence of the psychologist directed
to the truth or reliability of the confessionalstatements; in the circumstances there had been
a substantial miscarriage of justice -
and he indeed would set aside the conviction.
Mr Justice Thomas said:
That the evidence as to the appellant's mental ~apacity and the conclusion that he was a
borderline mental defective should have beenadmitted as being capable of tending to show unreliability in the confession or parts thereof -
but he applied the proviso.
(Continued on page 77)
C2T56/l/JM 76 7/12/88 Murphy MR GRAY (continuing): I do not know that I can usefully take
Your Honours to any passages with respect to that
and I can draw Your Honours' attention to really
the debate that Mr Justice McPherson has and comes to the conclusion that this material ought to have
been put in. It is of some interest that
Mr Justice Thomast in thinking that this evidence
should have come i½ does so with hesitation and
the case as a whole, I think, gives some credence
to a view that I was putting to Your Honours about
the variations of normality, that at some stagea line has to be drawn and the courts seem to draw
a line as to what could be described as a variationon a normal person and what can be described as
abnormality.
In this particular case, it seems that
Mr Justice McPherson and Mr Justice Thomas were
of the view that what was deposed to related to
something that was abnormal, not merely a variation
on normality.
TOOHEY J: It is a bit hard to know how the jury reaches
a conclusion on that matter - or the trial judge
in deciding whether evidence should be admitted or otherwise in the absence of some evidence of
a medical or technical nature.
MR GRAY: I suppose, in this case, the trial judge made his ruling on the basis of the report of this psychologist and presumably could have taken the view that all that the report did was to demonstrate that this accused person was within the bounds
of normality.
(Continuing on page 78)
C2T57 /1/ND 77 MR GRAY, 7 /12/88 Murphy
MR GRAY (continuing): He is not mentally retarded. The
report expressly says that. The report expressly says a number of things that he is not and, having
said that, one could then assess, using the test as to whether or not this is expert testimony of
such a nature that it ought to have been given.
One of the reasons why this
case attracted my attention is a citation in Mr Justice Thomas' decision at the bottom of
page 101, the passage from Wigmore on Evidence,
and Your Honours will see that:
The text shows the traditional approach:
"The fact ..... that a person testifying is
endowed with a less retentive memory than
other persons falls within that range of
average variations which constitutes
normality. Its presence has been left
to the cross-examiner to detect, in
judicial practice hitherto. No doubt the line may be sometimes hard to draw, but
the distinction of principle is clear between that general variation of all
powers which would be found in any givennumber of healthy persons, and that
specific impairment which, when associated
with disease or with other extensive mental
derangement, marks the person as abnormal."
I do not know whether helps much in - as I said
at the outset, I suspect is somewhat an exercise
in sophistry when one is looking at this.
BRENNAN J: Is there any difference between the admissibility
of evidence to affect the credibility of a witness
and the admissibility of evidence to affect a
reliability of a confession?
MR GRAY: The case;would seem to suggest that one cannot
call evidence merely to bolster up credibility. That also becomes a nice question, I would think, because of the essential binding up of an issue of credibility with the safeness or otherwise of
the admission of a confession. I do not know that I can - but, certainly, TURNER's case - there is an expression there, in TURNER's case, which denies that evidence can purely have the effect of bolstering up credibility if that is just what it is called for but I have difficulty, I must confess, in applying
that in a straightforward manner to the question
of the issues on the admissibility or otherwise
of a confession because it may well go to
issues related to the reliability of the confessionitself which, of course, translated, may well go to a credibility issue.
C2T58/l/SH 78 7/12/88 Murphy I think I have really exhausted that topic
as far as the matters that I wanted to put to
Your Honours was concerned. Can I just go back to saying that, in this context, one really does
need, in my submission, to look at the case that
was being mounted by the accused in relation to
this aspect and that, it seems,did not ever really
crystallize until he made his unsworn statement
and his unsworn statement, in particular, at
pages 40 and 41 which have been referred to, puts
what he is trying to say, with respect, to this
and makes, also, a fairly enigmatic statement at
the top of page 41 at about line 4, where he says:
There was a lot of questions that I did not
answer nor did the questions were put to me,
I will get to that later.
And he never gets to it.
(Continued on page 80)
C2T58/2/SH 79 7/12/88 Murphy MR GRAY (continuing): What I do say is, it is important, in
considering this evidence, or the application to
call this evidence, to really try and work out
where it fitted in relation to that accused's case.
I think that leaves, Your Honours, the two
matters related to Michael Murdoch; one being the
rejection of the question on the voir dire to
Detective Sergeant Kennedy and the other being the cross-examination by reference to the videotape
"MFI 31•· which are points 4 and 5 of my outline,
with respect to Michael Murdoch. The Court of Criminal Appeal adopted the approach that the
question that was not permitted to be proceededwith was asked for the purpose of eliciting the
identity of the informant and that appears from
the appeal book, second volume, at page 521 where,
at the bottom of that page, the court said:
It seems plain enough, however, the obvious
and only ground which could have been
brought forward by the Crown was that
probing the source of information received
by Detective Sergeant Kennedy would have
infringed the anonymity that during the
course of the trial had already been accorded
to the witness, Miss X. There is nothing to suggest that any other ground could have
motivated the objection of the rulingupholding it.
The actual question, of course, unfortunately was
never set out in the transcript, other than the
opening words of the question. You were taken to
page 519 where the question is put, at the bottom
of the page:
Q. You say 'since I spoke to you on Friday I have been told that yourself, John Travers,
Les Murphy, Gary Murphy and Michael Murphy
were the five persons responsible for abducting Anita Cobby in Newtown Road Blacktown on Sunday 2 February 1986?' and
you go on. and then we have--
Were you told that -
objected to by Crown Prosecutor: question
pressed: question rejected.
Now, we unfortunately do not know whether there was
any subsequent statement or what indeed it was.
But, as I say, the Court of Criminal Appeal took
the view that this was not going to establish a
ground under section 410 of the CRIMES ACT to
attempt to have the confession made inadmissible but to really find out the name .of the informant,
and I say it was open to them to in fact form that
particular view and they did not err in so doing. The
only other matter that I would refer to in this particular ground
is that - - -
C2T59/l/VH 80 7/12/88 Murphy
DEANE J: I do not understand that, Mr Gray. What is it you are saying, that the Court of Appeal thought that contrary to everything that happened at the trial
the questioner was going to go on and give the name
of Miss X?
MR GRAY: Unfortunately I was not in the Court of Criminal
Appeal and I do not know what was put to them, but
presumably it was put to them that the objection
that was taken was taken on the basis that its
answer would reveal the identity of the informant.
And that is as I understand what they say.
DEANE J: Revealed to whom?
MR GRAY: To the court. DEANE J: But the court knew. MR GRAY: To the general public - there was a suppression order in relation to the informant known as Miss X.
DEANE J: I follow that. But assume that they are right and the question was going to be, were you told that by
Miss X?
MR GRAY: Not if it used her name and that is the assumption that I think the Court of Criminal Appeal make - her
actual name rather than her Miss X identity. It is the only way that I can read what the Court of Criminal Appeal are saying in respect of this ground.
BRENNAN J: Why does it appear that it is Miss X who may be the informant?
MR GRAY: I do not know. TOOHEY J: There is some comment by the court at the top of
page 521, Mr Gray, that seems to bear on that.
MR GRAY: Certainly the supposition is made, as Your Honour
Justice Toohey rightly points out to me on page 520, and they recite the factual situation about the
record of interview and that there was evidence to
the effect that:
on Sunday 23 February 1986 ..... 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.
DEANE J: Well then if you have looked at the evidence - we have
not got it, but if you look at the evidence of Miss X does she say the things that are supposed to have been
discovered over the weekend that are set out at page 518?
C2T60/l/SR 81 7/12/88 Murphy
MR GRAY: I have assumed so because of that recitation but
I have not looked at the evidence of Miss X. The only other thing that I can add to this is that,
looking at the Crown's written submissions in relationto this, that was the assertion that the Crown made
in the course of the appeal. Your Honours do not have those written submissions before you but they
were to this effect, at page 621:
Counsel for this appellant attempted to
cross-examine Detective Sergeant Kennedy
as to the source of certain information he
had received from an informer. It is
submitted that His Honour did not err in
rejecting this line of cross-examination.
The source of information received by
police officers in the course of investigating
crime has been privileged.
So that throw-away line, in effect, would appear to
be the source of the ultimate determination by the
court that that was the purpose of the question. Now I cannot say what transpired in argument as far as that was concerned. Your Honours, we make one other point with
respect to that, and that is that it was never this
applicant's case that the fact that the interviewing
officer alle3ed that the applicant was involved
induced the confession.
(Continued on page 83)
C2T60/2/SR 82 7/12/88 Murphy
MR GRAY (continuing): In other words, section 410 requires two things: it requires a misrepresentation but
it requires that that misrepresentation induce
the confession.
MASON CJ: But there is a presumption of inducement. MR GRAY: I would have thought MASON CJ: Subsection (2).
MR GRAY: Yes, I am sorry, Your Honour, I have to accept that. DAWSON J: Of course, it does not mean that the way he
conducts his case is not of any value in dealing
with the section.
MR GRAY: That the way that he conducts his case is any - - - ? DAWSON J: It may be that the way in which he conducts his
case does show to the contrary.
MR GRAY: That it was not, in fact, induced? DAWSON J: Yes, but that is not relevant, of course, to the
admissibility.- - -
MR GRAY: No, I have to accept that. DAWSON J: That would only go to the miscarriage of justice.
MR GRAY: That would go to the miscarriage of justice aspect
of it.
DEANE J: But no doubt the grounds on which it was submitted that the alleged record should be rejected were
enunciated by counsel for the defence. Did they include section 410 at the trial? MR GRAY:
I cannot say, Your Honour, I do not know. DEANE J: But must not that be critical to this because if His Honour was not informed that section 410 was relied on one can well ask what was the relevance of the question. MR GRAY: With respect, Your Honour, yes, I accept that. DEANE.J: Well, we cannot find out. (Continuing on page 84)
C2T6 l /1 /ND 83 MR GRAY, 7 /12/88 Murphy
MR GRAY: No, I mean, I have no knowledge that it was in fact a submission seeking to rely - that the record of interview should be rejected
seeking to rely upon section 410. I have not seen it in any of the papers. DEANE J: Well, the little we have seen of the transcript
would indicate to me that if what was
involved there was a serious effort to rely
on section 410 - perhaps I should have put this
to Mr Black - that the way counsel approached
their task would not support an inference so
far as I am concerned that with one rebuff they
would then have abandoned the project altogether.
Indeed, it looked a bit like jack-in-the-boxes
when one reads parts of the transcript.
MR GRAY: Yes, Your Honou½ and certainly there is no reluctance to press matters again and again when necessary, but that is true. DEANE J:
I got the language wrong: it should have been "jacks-in-the-box". MR GRAY: I do not know that I can take that any further.
I think -MASON CJ: Mr Gray, to come back to Miss X's evidence, I think you should tell us whether or not she did give evidence that covers the matters on
page 518. Now, if she did give such evidence, then it seems to me this point; to some
extent, disappears and counsel ought to be in
the position of being able to inform the Court
whether or not such evidence was given by her.
Mr Gray, you had better ask your junior,
I think, to turn to the - - -
(Continued on page 85)
C2T62/l/JM 84 7/12/88 Murphy MR GRAY: Yes. We, of course, do not have the evidence
at all. The only other source of what Miss X might have said is in the Crown's written submissions
where they detail and set out the evidence of the
witnesses,and it was that that I was hoping to be
able to turn up quickly.
MASON CJ: Yes, well I do not know whether that would assist us, but if we cannot be assisted maybe we will
just have to take at face value what the Court of
Criminal Appeal says. In other words, there is an assumption made that is not disturbed.
MR GRAY: Which, Your Honour, has led me to this point of referring to the fact that they say the evidence already
adduced at the trial prior to this particular thing
was to a particular effect - - -
MASON CJ: Yes. MR GRAY: - - - and that is really as far as I can take it at
this stage. The video tape, MFI 31, and the ruling in relation to that was dealt with by the Court of
Criminal Appeal at page 500 and page 501 of volume II
of the appeal book. Your Honours have been taken, in particular, to page 501 at about line 9, where the
Court of Criminal Appeal said:
This ruling as a matter of technicality was
fully justified. If cross-examining counsel wished to challenge a witness with what
was at that stage an unproved video film,
it would have been legitimate for him to
have shown that to the witness, but not to
the jury at that stage.
I do not think there is any quarrel with respect to
that. I cannot assist any further really in relation to the matters that are now being put because it
seems that once again I would say what the Court
of Criminal Appeal should be taken at face value
as being what they considered they were dealing with at that particular point in time. If they had got the wrong point, then it was for the applicant to
disabuse them in relation to that. But I really cannot take that matter really any further as far as
this Court is concerned.
MASON CJ: Mr Gray, could I take you back to ground 5 of the applicants' outline for the IIDIIEilt? If t.1-ie Court were to accede to that
submission, what order should the Court make?
MR GRAY: I am really trying to make up my mind, Your Honour, whether still the operation of the proviso should be
investigated and the question of whether it should be
by this Court or by the Court of Criminal Appeal.
C2T63/l/HS 85 7/12/88 Murphy
MASON CJ: Yes. MR GRAY: I would have thought that thepreferable course was for the Court of Criminal Appeal to consider
this ground corrected as to how the Court ofCriminal Appeal ought to have founded on this narrow basis and sent the matter back for an
assessment but there are difficulties, with respectto that indeed because, of course, we cannot now constitute the same Court of Criminal Appeal and I would have - DEANE J: It would not simply be the proviso, would it? You would need to know what the answer to the question would have been in that it would be absurd, for
example, to quash the conviction and order a new
trial so that question could be answered and then
find that the answer was completely satisfactory
and did not show misleading at all.
MR GRAY: I think that is right, Your Honour, with respect.
MASON CJ: Well, if you agree with that, what order should
the Court then make to cater for that situation?
MR GRAY: I think I will be a coward and hope that Your Honours are with me in relation to my argument on the point.
I think the order that the Court probably shouldmake still is to remit the matter to the Court of Criminal Appeal to determine the matter in the
light of Your Honour's view with respect to this
matter. It is difficult to see how Your Honourscan embark upon that inquiry. MASON CJ: What you are suggesting is to determine the issue MR GRAY: To determine the issue. MASON CJ: statement or an untrue statement. Is that what you
- - - whether or not the statement was a misleading are suggesting?
MR GRAY: Not that you determine it. MASON CJ: No, but that the Court of Criminal Appeal should. MR GRAY: Yes, and what I am suggesting is the preferable
course, I think, must be the Court of Criminal
Appeal to determine that particular question. Ithas to be determined, I think, either in this Court, in the Court of Criminal Appeal or by way of trial
and it may well be capable of resolution in theCourt of Criminal Appeal and that would seem to be a preferable course than to ordering a new trial just for this one small issue. MASON CJ: Yes.
C2T64/l/SH 86 7/12/88 Murphy DEANE J: It may be that the correct way of putting it wouldbe
to determine whether the voir dire miscarried by
reason of the wrongful exclusion, or whatever you
have, of the answer to that question.
MASON CJ: Which would involve a determination of that 1ssue.
MR GRAY: Yes, I think that is so, with respect. I do not think there are any other matters. DEANE J: Mr Gray, how much does the record disclose of the
contents of the video tape referred to in ground 6?
MR GRAY: I do not think it is spelt out in the transcript exactly ~bat the video tape shows. DEANE J: Then do you not need to address the question of, "What if point 6 were upheld?" I mean, again, it would be quite absurd for this Court to quash the conviction and send it back for a retrial if the video tape turned out to be a tape of birds
and bees and passing cars which is all I have seen in the material about its actual contents. MR GRAY:
I think it is more than that. I know what the video tape contains. DEANE J: Does it come from the Crown's possession? MR GRAY: It comes from the defence possession. The defence
presumably. have it and I think Your Honours are
approaching this on the basis that it is not
necessarily a birds and bees type tape but it was
described, I think, at some stage as part of the
run around, a video film of portion of the
occasion when the accused were taken to the scene
of the crime.
(Continuing on page 88)
C2T65/l/ND 87 7/12/88 Murphy
DEANE J: In other words, it showed the, to use a neutral word,- surrounding events of the scenes which were the
subjects of the still photos.
MR GRAY: Not of all the still photos. DEANE J: Well, of some of them.
MR GRAY: I think I can assent to some of them, but I cannot say which ones.
DEANE J: Well, can I ask you this: am I correct that an
important issue in the case of Murdoch was that
the Crown said he took the investigating police to the various places and pointed things out to
them; the defence said, "That is not true, he was
taken by the police to the various places and
told to point at something and it was then that
a photograph or the photographs were taken."
Now, is the position that this was a video which
would bear directly on what happened before
and after the taking of those contested photographs?
MR GRAY: I am sorry, Your Honour. Right, was this after he pointed things out or before he pointed things out?
DEANE J: Well, Mr Gray, perhaps I should not ask it that way.
Was the Court of Criminal Appeal informed of that,
or about that matter by properly receivable
material·?
MR GRAY: Well, I assume that it was, Your Honour. I assume
that it was described but I cannot say because I
was not there. My only other source would be to
look at the Crown's written submissions to see
whether or not that information was put in those
submissions for the purposes of informing the
court.
DEANE J: I cannot see how one can intelligently deal with point 6 without knowing precisely what is the
material -about the contents of the tape.and I
am not asking for information, I am asking what
was the material before the Court of Criminal
Appeal.
MR GRAY: Yes. We can say that the tape was not played, therefore, presumably it could have only been
described to the court. The only other clue, I suppose, that I can give Your Honour with respect
to this is the corrnnent by the Court of Criminal
Appeal at page 500 at line 16, and it is an
inference, not a direct statement:
C2T66/1/VH 88 7/12/88 Murphy MR GRAY (continuing):
The officer in charge of the investigation,
so far as Michael Murdoch was concerned, was
being cross examined regarding various
aspects of that journey. It was being put
to him that some of the gestures recorded
in the still photographs on the part of
Michael Murdoch, which might have indicated
a voluntary exercise on his part, in fact
were induced at the request of the investigating
police.
Now, presumably the material had relevance in
relation to that.
The tape, of course, Your Honour, was never tendered in evidence as such, so it remains
outside the parameters of the case.
MASON CJ: Yes, and therefore we are not in a position to know what is in the video film.
MR GRAY: No, quite. The only other reference I can give Your Honours, but I cannot give Your Honours
the reference, is the reference to where
His Honour actually excludes the material in the appeal
book.
DEANE CJ: What is the reference to that? MR GRAY: I was just trying to find that very quickly.
The only reproduction is at page 500. The actual transcript itself of that incident in the course of the trial has not been reproduced. TOOHEY J: The ruling itself must be available somewhere, Mr Gray. A!_l we have got is a paraphrase at
the ~~p of page 501.
MR GRAY:
The ruling is at page 832 of the trial transcript, which has not been reproduced, Your Honour.
We can - it is actually at pages 831 and 832
and is really in the terms of - although there
is that interpolation in the CCA ruling, it
is in basically those terms.
TOOHEY J: It is cast in third-person terms, is it, not in
terms of - at least, indirect speech, not direct
speech?
(Continued on page 90)
C2T67/l/JM 89 7/12/88 Murphy
MR GRAY: There is a question: I suggest to you that at various parts of
of the paddock you said to Michael Murdoch,
"point there for it is police business only"?
A. No, that is not true. (Mr Bleasel ..... sought leave for his
instructing solicitor to approach a video
machine in the court room and place a video
cassette into it for the purpose of showing
a film, which course was objected to by the
Crown Prosecutor.
Mr Bleasel submitted that the course that he
was proposing to adopt would be similar to
having a photograph put in front of a
witness and that witness asked to indicate
various things on the photograph or on atape recording ... ).
His Honour rejected the proposed course of
Mr Bleasel.
And the cassette type entitled "copy/Murdoch 16/4/87
MFI 31. We will give Your Honours copies of that but that is all that - - -
DEANE J: In fairness to the Court of Criminal Appeal, they
understood what was proposed as being what
Mr Bleasel said was proposed and that is, he wanted
to show a film and submitted that the course that
he was proposing would be to have the witness
indicate various things. There is nothing at all
about he wanted to cross-examine the witness on it
keeping it from the jury?
MR GRAY: No, that is so, Your Honour. DEANE J: It is for the purpose of showing a film on which
the witness could indicate things presumably to the jury or to the judge as a matter of reading?
MR GRAY: That is how I have taken it, Your Honour, I sort of do not take it as being anything more than that
and it seemed to me that the court had dealt with it
in a particular manner which it was open to them to
deal with it.
DEANE J: It is partly my fault, Mr Gray, I had not appreciated
the significance of what had been actually said while
Mr Black was making his submissions.
MR GRAY: Right. Yes, I think those are - - -
C2T68/l/SR 90 7/12/88 Murphy
MASON CJ: Anyhow, you will have that copied for us and made available?
MR GRAY: I will, Your Honour, yes.
MASON CJ: Yes, thank you, Mr Gray. Yes, Mr Black. (Continued on page 92)
C2T68/2/SR 91 7/12/88 Murphy
MR BLACK: Your Honour, to deal with the most recent matters, may I assist you by saying that the
evidence of Miss X appears at volume I, page 159,
as recited by the trial judge to the jury. Now, we also have the transcript of her evidence which
we can, of course, copy. If I can just explain
to Your Honours on that point: the situation was
that the contents of the two questions that
Mr Bleasel was going to investigate, Miss X had
not given that evidence. He had also established that the officer had not heard any tape of an
interview with the man, Travers, when he was
questioning Murdoch.
So, therefore, the situation to him on the
papers was there was no supporting evidence to
show where the basis for the officer's questions
came from and that is why it comes round to
arguing the 410 point. Again, although I cannot
point to it anywhere in the transcript, he made
submissions, I am told, to His Honour about the
record of interview and all I can do is tell you
he told me that he had 410 in mind but His Honour's
ruling prevented him investigating it.
MASON CJ: Was His Honour's attention drawn to section 410? MR BLACK: Well, all I can do is tell you what my learned
junior says and he was at the trial. He said, "I have 410 in mind but your ruling" - well,
it is the other way round. "I am prohibited by Your Honour's ruling from addressing you on
section 410". It is the othe:way round. So,
that is what he tells me. He was at the trial, I was not. So, that was the basis there and we can, if
Your Honours would wish, copy the transcript of
Miss X's evidence but you have it there in the
summing up and the situation being investigated was - - -
MASON CJ: Mr Black, I think we should have Miss X's evidence. MR BLACK: Certainly. Well, we will arrange for that to be
photocopied.
DEANE J: And, Mr Black, I have not quite followed. Did counsel say to His Honour, "I had section 410 in
mind but I am precluded from developing because
of the ruling" or what you are saying is that was what was in co·unsel 's mind?
MR BLACK: It is the other way round, I think. He said, "I am precluded by Your Honour's ruling from addressing you
on section 410".
C2T69/l/SH 92 7/12/88 Murphy
DEANE J: And that was said to the trial judge? MR BLACK: My learned junior so instructs me. DEANE J: I see. MASON CJ: Immediately following His Honour's ruling?
MR BLACK: Yes, that was at the end of the voir dire about the record of interview because there was a
voir dire on the basis of threats and so on.
MASON CJ: Now, is that recorded in the transcript? MR BLACK: No, I am told not but we will look for it. That is the factual situation on what I think is ground
5 .
(Continued on page 94)
C2T69/2/SH 93 7/12/88 Murphy
DEANE J: Was section 410 raised in the Court of Criminal Appeal? MR BLACK: Yes. Their judgment makes it clear that that was the purpose of the questioning and I was explaining that to
them. I also explained - although I suppose I am no more entitled to give evidence there than anywhere
else - as to what the video was all about to the Court
of Appeal and who had made it. They knew what the purpose of it was, but I am precluded from giving
evidence obviously here. We have got it, but that is not much help to the Court. It is in MFI 31.
TOOHEY J: Is there no transcript of the argument before the
Court of Appeal?
MR BLACK: Not that I am aware of. TOOHEY J: What is the practice? Is the evidence recorded but
not transcribed? I am sorry - are the submissions recorded but not transcribed, or not recorded?
MR BLACK: I would have to rely on my learned friend whose experience would be -
MR GRAY: To my knowledge they are rarely recorded. The Court of Criminal Appeal requires written submissions from
all parties to be lodged with the court at least by
midday the day prior to the hearing of the matter and
then the oral argument, as I understand it, is not
generally speaking transcribed.
TOOHEY J: But that is the second stage. Is it recorded? It may not be transcribed.
MR GRAY: I am sorry, it is not recorded, and of course, therefore,
not transcribed. It is not recorded. There is a stenographer in the court room who, from time to time, might record certain aspects if the court required her to do so and she does record the extempore decisions
that are given, but a general recording of the
submissions of counsel is not made in the general case.
MASON CJ: As distinct from the Court of Appeal where there is a recording made and a transcript made available.
MR GRAY: As distinct from the Court of Appeal where there is a recording made which may or may not be transcribed,
having regard to the circumstances.
MASON CJ: Yes.
MR BLACK:
Your Honour, I cannot help. in vacuo. That is all I can say.
I doubt if I argued it
I am sure I explained
what it was about, but there we are. That is the video
point. We will, of course, get copies of that part of
the transcript and I will get a copy of that piece of
the officer's evidence where I said it was established
he had not heard the tape of the taped interview with the
man, Travers.
C2T70/l/HS 94 7/12/88 Murphy
MR BLACK (continuing): So that was the only material
available to the defence at that time. So the purpose of it was to find out - I really should
not say that because it was cut off in its prime,
the question, but that might give an explanation.
To suggest that my learned junior was going
to flout a court ruling about identifying somebody
the court had said should not be identified is
unduly harsh, with respect, which seems to be what
the Court of Appeal assumed was going to happen.That would not have been fair or justified.
TOOHEY J: Mr Black, is it common ground that the information
which the investigating officer said you had could
only have come from Miss X or from Travers.
MR BLACK: We do not know. TOOHEY J: I said, "Is it common ground?", if you do not
know I suppose the answer is it is not common
ground.
MR BLACK: We do not know what - I will give into temptation. That is what my learned junior was trying to find
out as to where it had come from because it was
not based on anything available to him either from
the deposition of Miss X or from any other material
available to him.
MASON CJ: Mr Black, if the transcript does not record the statement by Mr Bleasel that His Honour'd ruling precluded the raising of the section 410 matter, then I think we should have a copy of that part
of the transcript containing His Honour's ruling
on the voir dire and an identification from you
of the part in the transcript where Mr Bleasel's
statement should have been reported had it been
recorded.
MR BLACK: Certainly. May it please, Your Honour, we will
do that and obtain copies of that. I think that is all I can usefully say in reply.
MASON CJ: There is an implication that what you have said
is useful.
MR BLACK: That is my fault. MASON CJ: We will accept that.
C2T7 l /1 /ND 95 7 /12/88 Murphy
MR BLACK:
May I just say generally, with respect, if any of these grounds are valid, at the very
least there would have to be a retrial because the Court of Appeal, with respect, cannot conduct an evidential investigation. It should be conducted in front of a jury, because if any of these records of interview were not admissible
that would be the end of the case againstwhichever of these accused it was. BRENNAN J: But the fact on which section 410 would depend is whether there was an untrue representation
made.
MR BLACK: Yes. BRENNAN J:
And that is a question of fact which is not for the jury but for the judge.
MR BLACK: Yes, Your Honour. BRENNAN J: So that it may be that the evidence that went before the jury by way of a confession,
given the validity of all your points, should
have gone before the jury, for all one knows.
MR BLACK: For all one knows, yes. Well, we just do not know and, with respect, if something has wrongly
been prevented or excluded, what this Court
should say is, "Well, go back and get it right.It is not for us to speculate on what might or might not be the answer." Equally - - -
BRENNAN J: But go back where and get it right? MR BLACK: To trial. DEANE J: But if the question is, "Was the trial judge in error on the voir dire?" -that is something that can be investigated by the Court of Criminal
Appeal. MR BLACK: On a pure issue of facts such as that, yes, subject to the further argument as to whether
in all the circumstances the deeming still holds
good, which may or may not involve evidence from
the applicant. That is not a matter that could
only be raised before the judge; it could be
re-raised in front of a jury.
DEANE J: In other words, if there is any attack on the manner in which a trial judge conducted the voir dire, the Court goes through the farce of ordering a new trial even though on investigation it would be shown that the errors on the voir dire did not affect the
result of the trial judge's conclusion on the voir
dire?
C2T72/l/JM 96 7/12/88 Murphy MR BLACK: Yes. But if he has prevented an investigation from taking place and then he reaches - and
say that takes place and the judge on the voir
dire reaches a certain conclusion, that does
not mean that the same issue cannot be
canvassed in front of the jury, because they
have themselves to decide upon the voluntariness
or otherwise of any confessional material.
(Continued on page 98)
C2T72/2/JM 97 7/12/88 Murphy
MR BLACK (continuing): The trial judge's ruling on the voir dire, if in favour of admissibility,· does not take that issue
away from the jury at the end of the day.
BRENNAN J: What issue relevant - - -
MR BLACK: The issue of voluntariness or - BRENNAN J: But that is not the issue that you are relying on
under 4 1 0 (1 ) ( a ) .
MR BLACK: Well, not if I establish a misleading question, no. BRENNAN J: What issue for the jury arises under 410(l)(a)? MR BLACK: Well, we do not know until the officer is asked about
it; that is the point.
BRENNAN J: But surely, none. MR BLACK: Well, one cannot, with respect, speculate as to
what it might be. If the officer can identify - - -
BRENNAN J: The assumption is that the judge on a voir dire has admitted the evidence and has not found that
there was an untrue representation made by a person
in authority inducing the statement.
MR BLACK: Yes. BRENNAN J: Now, the statement, therefore, is properly admissible on this hypothesis before the jury.
MR BLACK: Yes.
BRENNAN J: What question then arises? They are just the ordinary questions, are they not?
MR BLACK: Well, that is if it is as straightforward as that,
if there is a complete absence of it. If it is a
value judgment as to truthfulness or untruthfulness,
then that is a matter again before the jury.
BRENNAN J: Why is the analysis that is relevant to the submission that you have been making not this:· here is a question which is relevant to an issue before the trial judge on
the voir dire, namely, whether or not there was an
untrue representation made.
MR BLACK: Yes. BRENNAN J: The question is wrongly disallowed therefore there
was a blemish in the conduct of the trial.
MR BLACK: Yes.
BRENNAN J: Next question: does this cause any substantial
miscarriage of justice? Answer: depends on whether or not, if the question had been allowed, the evidence
would still have been receivable.
C2T73/l/VH 98 7/12/88 Murphy
MR BLACK: Yes. BRENNAN J: Well, why is not that a matter for the Court
of Criminal Appeal?
MR BLACK: Yes. On that basis, yes- I do not wish to sound evasive, I am just cautious, because one never quite knows what the evidence will produce, but on that logical analysis I quite agree with
Your Honour, yes, on that issue, subject to, perhaps,
the question of then the deeming provision being
set aside; the Crown then attempting to show that he
would have said it anyway, to put it very simply,
which might arguably be a question for a jury as
well. But I agree with the first part of what
Your Honour says.
(Continued on page 100)
C2T73/2/VH 99 7/12/88 Murphy MR BLACK (continuing): Subject to getting those other
documents, Your Honours, unless there is anything
else I can assist on, may we put those before you
tomorrow?
MASON CJ: Very well, Mr Black. If you have concluded your
submissions then the Court will consider its
decision in this matter, taking into account the
materials that counsel are going to provide.
MR BLACK: Would Your Honour wish that put before you tomorrow? MASON CJ: I think it can be done informally through the Registry.
MR BLACK: We will make sure the releqant information is
before you. I do not think there is anything else I can say that I have not already covered.
MASON CJ: Very well. Thank you, Mr Black. The Court will
consider its decision in this matter.
AT 4.13 PM THE MATTER WAS ADJOURNED SINE DIE
C2T74/l/ND 100 7/12/88 Murphy
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