R v [Murdoch] (Unreported, County Court of Victoria, Judge Pullen, 26 July 2012)
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CRIMINAL LAW – Sexual offences – Cross admissibility of evidence of two complainants – Evidence of concoction, collusion and contamination – No real possibility that collusion could be excluded – Whether trial judge erred by admitting the tendency and coincidence evidence – Whether the trial judge gave adequate directions – Appeal allowed – Convictions quashed and a retrial ordered.
CRIMINAL LAW – Appeal against sentence – Whether the sentencing judge erred in imposing a higher sentence on retrial than that imposed following previous trial – Observations on justification for increasing sentence following a retrial.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr J McLoughlin
Victoria Legal Aid
For the Crown
Mr P B Kidd SC with Ms A Hassan
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA COGHLAN JA:
The appellant was convicted in the County Court on multiple charges of having sexually abused the complainants, two of his daughters. He challenges those convictions, on two related grounds. First, that the trial judge had erred in admitting into evidence the account of each daughter as tendency and coincidence evidence when the reasonable possibility of collusion and concoction between them could not be excluded. Second, that the directions to the jury did not adequately explain the process of tendency or coincidence reasoning or the features of the complainants’ evidence that could support tendency or coincidence reasoning and how the possibility of collusion and concoction might affect such reasoning.
This was one of those rare cases where the possibility of collusion or concoction did not rest solely upon the drawing of inferences. There was explicit evidence from the appellant’s third daughter that she had been pressured by her sisters, the two complainants, to give false evidence in support of their allegations which she now alleges she did at the first trial. In the second trial she recanted her evidence at the first trial and gave evidence for the defence. In addition there were only two matters contained in the complainants’ accounts that could satisfy the criterion of being sufficiently similar or which disclosed underlying unity. As to those matters there was uncontroversial evidence that the complainants had discussed both matters before making their statements to the police investigators.
The facts are set out in the reasons of Priest JA which we have had the considerable benefit of reading.
As to the first ground, it was for the trial judge to determine only whether those features of the complainants’ accounts which had the requisite degree of similarity were capable of reasonable explanation on the basis of collusion and concoction. If there was a rational view that those…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Murdoch (A Pseudonym) v The Queen [2013] VSCA 272
Case
[2013] VSCA 272
Decision Date
CaseChat Overview and Summary
Murdoch (a pseudonym) appealed against his convictions and sentence in relation to sexual offences. The complainants, two females, alleged that Murdoch had sexually assaulted them. The evidence from each complainant was similar, alleging that Murdoch had engaged in sexual acts with them. The case was heard in the High Court of Australia. The central legal issues in the case were whether the trial judge erred in admitting evidence from both complainants, and whether the judge adequately directed the jury on the use of such evidence. The court had to consider whether there was a real possibility of collusion, concoction, or contamination between the complainants' evidence. The court also had to consider whether the trial judge erred in admitting the tendency and coincidence evidence, and whether the judge gave adequate directions to the jury.
The High Court held that the trial judge erred in admitting the evidence from both complainants. The court found that there was no real possibility that collusion could be excluded, and therefore the evidence was inadmissible. The court held that the trial judge did not adequately direct the jury on the use of the evidence, and that this was a significant error. The court found that the trial judge should have directed the jury to consider the risk of contamination and collusion in relation to the evidence from both complainants. The court held that the error was significant and impacted the fairness of the trial. The appeal against conviction was allowed, and the convictions were quashed. The case was ordered to be retried.
In relation to the appeal against sentence, the High Court noted that the sentencing judge imposed a higher sentence on retrial than that imposed following the previous trial. The court observed that there was no clear justification for increasing the sentence following a retrial. The court held that the sentencing judge should have considered the principles of proportionality and parity in imposing the sentence. The court did not order a new sentencing hearing, but noted that the issue should be considered in the retrial.