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Murillo (a pseudonym) v The Queen

Murillo (a pseudonym) v The Queen

Case [2020] VSCA 68 26 March 2020

Appeal

Breach of Duty of Fairness

Admissibility of Evidence

Cross-Examination

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0258

ETHAN MURILLO (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name and the use of initials in place of the names of the complainant and other witnesses.

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JUDGES:	KAYE, T FORREST and OSBORN JJA
WHERE HELD:	MORWELL
DATE OF HEARING:	13 March 2020
DATE OF ORDER:	13 March 2020
DATE OF JUDGMENT:	26 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 68
JUDGMENT APPEALED FROM:	[2018] VCC 1547 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of five charges of indecent assault and three charges of incest – Prosecutor granted leave to lead misconduct evidence as context evidence – Witness cross-examined by prosecutor by leave under s 38 of the Evidence Act 2008 – Whether trial judge erred in admitting misconduct evidence – Whether trial judge erred in granting leave to cross-examine witness under s 38 – Cross-examination under s 38 not confined – Substantial miscarriage of justice – Breach of duty of fairness – Inflammatory language by prosecutor – Leave to appeal granted – Appeal allowed – Browne v Dunn (1893) 6 R 67; R v Hogan [2001] NSWCCA 292; Saddik v The Queen [2018] VSCA 249; Evidence Act 2008 ss 38, 41, 137, 192 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Victoria Legal Aid
For the Respondent	Ms M A Mahady with Mr P J Smallwood	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA:

The applicant was charged on indictment with five counts of indecent assault, and three counts of incest. Following a trial in the County Court, he was convicted by the jury of each of those charges. The offences were alleged to have been committed by the applicant between February 1987 and December 1988 against his stepdaughter, PS, who was 11 or 12 years of age at the time. The applicant was sentenced to a total effective term of five years and eight months’ imprisonment, with a non-parole period of three years. He initially sought leave to appeal his conviction on three grounds, namely:

(1)the trial judge erred in allowing the prosecution to lead, as context evidence, misconduct evidence of the applicant being violent to, and in the presence of, PS;
(2)the trial judge erred in failing to give the jury a direction pursuant to s 32 of the Jury Directions Act 2015 relating to the risk that the evidence of PS may be unreliable on the basis of an honest but erroneous memory by her of the offences.

Subsequently, the applicant was granted leave to rely on two further related grounds, namely:

Ground 3A
The judge erred in granting leave to cross-examine under s 38(1) Evidence Act, in effect, at large.
Ground 3B
A substantial miscarriage of justice was occasioned by the treatment by the prosecutor of the…

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.

Continue reading Murillo (a pseudonym) v The Queen

Details

AGLC: Ethan Murillo (a pseudonym)[1] v The Queen [2020] VSCA 68
Case: [2020] VSCA 68
Decision Date: 26 March 2020

CaseChat Overview and Summary

The case of Murillo v The Queen involved an applicant, referred to as Murillo, who was convicted of five counts of indecent assault and three counts of incest. Murillo sought to appeal against his conviction, challenging the trial judge's decisions to admit misconduct evidence and grant leave for the prosecutor to cross-examine a witness under section 38 of the Evidence Act 2008. The crux of the appeal was whether the trial judge had erred in these decisions, which Murillo argued led to a substantial miscarriage of justice and a breach of the duty of fairness.

The legal issues before the court were whether the trial judge correctly exercised their discretion in admitting the misconduct evidence and granting leave for the prosecutor to cross-examine the witness. Murillo argued that the misconduct evidence was not relevant and its prejudicial effect substantially outweighed any probative value. Additionally, Murillo contended that the cross-examination under section 38 exceeded its intended scope, as the prosecutor used inflammatory language that was not confined to the matters allowed by the section. The court had to determine whether these actions by the trial judge amounted to an error in law that warranted an appeal.

The court found that the trial judge had indeed erred in admitting the misconduct evidence and in granting leave for the cross-examination under section 38. The misconduct evidence was deemed irrelevant and its prejudicial impact significant, thus improperly influencing the jury. Furthermore, the prosecutor's cross-examination went beyond the permissible scope under section 38, employing language that was inflammatory and prejudicial. These errors were considered serious enough to constitute a substantial miscarriage of justice and a breach of the duty of fairness. The appeal was allowed, and the conviction was quashed, reflecting the significant impact of these errors on the trial's fairness.

The final orders of the court involved quashing Murillo's conviction and ordering a retrial. The court's decision highlighted the importance of adhering to statutory provisions and judicial discretion in maintaining a fair trial, particularly in the context of evidence admissibility and witness cross-examination.

Orders