Murphy v Police - [2015] SASC 193

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MURPHY v POLICE
[2015] SASC 193
Judgment of The Honourable Justice Vanstone
11 December 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - EFFECT OF FAILURE TO WARN
EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY - SIMILAR FACT EVIDENCE - GENERALLY
Appeal against conviction - appellant convicted for two counts of uttering a forged prescription with a view to obtaining a prescription drug, contrary to s 30(1) of the Controlled Substances Act 1984 (SA) - whether magistrate erred in failing to direct herself in relation to the dangers of acting on evidence in the nature of identification evidence - whether magistrate erred in failing to exclude reasonable hypotheses consistent with innocence - whether magistrate erred by restricting the use of evidence in the nature of discreditable conduct evidence where neither party objected to its admission - whether the late production of certain evidence denied the appellant a fair trial and caused a miscarriage of justice.
Held: appeal dismissed. The grounds of appeal are not made out. The case did not call for an identification warning. The prosecution case was not principally a circumstantial one. The task for the magistrate was to evaluate the critical direct evidence and consider it in light of all the prosecution and defence evidence. It was necessary and appropriate for the magistrate to consider the admissibility of apparently "discreditable conduct" evidence given its potentially prejudicial effect on the appellant. The late production of certain evidence did not adversely affect the fairness of the appellant's trial and no miscarriage of justice occurred.
Controlled Substances Act 1984 (SA) s 30(1); Evidence Act 1929 (SA) Part 3 Division 3, referred to.
Dhanhoa v The Queen (2003) 217 CLR 1, applied.
Domican v The Queen (1992) 173 CLR 555, distinguished.

MURPHY v POLICE
[2015] SASC 193
Magistrates Appeal
Criminal

VANSTONE J: After a trial in the Magistrates Court, Graeme John Murphy, a legally qualified medical practitioner, was found guilty of two counts of uttering a forged prescription with a view to obtaining a prescription drug, contrary to s 30(1) of the Controlled Substances Act 1984 (SA). He now appeals against his convictions on a number of grounds. These fall into three categories. First he complains that the magistrate failed to direct herself sufficiently in relation to the dangers of acting on evidence in the nature of identification evidence linking him to the forged prescriptions; next, that there was no sufficient proof that the man named in the prescriptions – John Brookes – did not present them himself; and then, that there were several specific errors in the reasoning of the magistrate.
The respondent took no issue with the amendments to the grounds of appeal.
Background
To provide a context in which the various complaints can be considered it is necessary to say something about the case presented by the prosecution and…

Details

AGLC: Murphy v Police [2015] SASC 193
Case: [2015] SASC 193
Decision Date: 11 December 2015

CaseChat Overview and Summary

The case of Murphy v Police involved the appellant appealing against his conviction for two counts of uttering forged prescriptions with intent to obtain prescription drugs. The conviction was handed down by the Magistrates Court of South Australia. The appellant raised several grounds for appeal, including the magistrate's failure to adequately address the dangers of identification evidence, the exclusion of hypotheses consistent with innocence, the magistrate's handling of discreditable conduct evidence, and the late production of certain evidence which he argued denied him a fair trial.

The legal issues before the court were whether the magistrate erred in her handling of identification evidence and her failure to exclude hypotheses consistent with the appellant's innocence. The court also had to consider if the magistrate erred in restricting the use of discreditable conduct evidence and whether the late production of evidence caused a miscarriage of justice. The court examined whether the magistrate's omissions were significant enough to warrant a new trial or an acquittal.

The court found that the prosecution had not breached its disclosure obligations and that there was no miscarriage of justice arising from the late production of evidence. The court concluded that the prosecution case was strong and the magistrate's reasons for decision were cogent. The court held that none of the appellant's arguments had substance and dismissed the appeal. The court made orders amending the notice of appeal and dismissing the appeal.

In summary, the appeal was dismissed, and the conviction of the appellant was upheld. The court found that the magistrate's handling of the evidence, including identification evidence and the late production of certain documents, did not result in a miscarriage of justice or deny the appellant a fair trial. The court found no fault with the magistrate's decision or the conduct of the trial.

Orders

Orders of the court

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Background

Background to the litigation

The respondent took no issue with the amendments to the grounds of appeal.Background To provide a context in which the various complaints can be considered it is necessary to say something about the case presented by the prosecution and the appellant’s answer to it. The prosecution called evidence to prove that on 13 February 2013 at about 10 o’clock in the morning a man went to the premises of “Chemist King” at Frewville and presented for filling two prescriptions in the name of John Brookes of 16 John Street, Salisbury. One prescription (Exhibit P2) was for Tramadol Hydrochloride, apparently prescribed by Dr Humphrey Adzanku, and the other (Exhibit P3) for Zolpidem Tartrate, apparently prescribed by the appellant. The two prescriptions were handed to Ms Mariam Welson, who at that time was working at the pharmacy as an intern. She had been a qualified pharmacist in Egypt and upon moving to Australia had undertaken examinations to enable her registration in Australia. She became qualified in late 2013. Ms Welson said that the man who handed her the prescriptions told her “I don’t mind generics” and then walked away. Looking further at the prescriptions she noted some irregularities. Significantly, details of the surgery where the prescriptions were apparently issued, such as the telephone number and the fax number, were missing. She drew these matters to the attention of the pharmacist, Mr Don Le, who was working a couple of metres from her. He, too, saw the man who presented the prescriptions. He noted that the alignment of the address with the name was different from the usual format and neither of the prescriptions had the contact address for the prescribing doctor. Mr Le observed that the medications the subject of each prescription were susceptible of abuse within the community and, if taken together, could have significant side effects. He said it was not common to see them prescribed together. There were other unusual features of the formatting and content of the prescriptions. Mr Le identified Exhibits P2 and P3 as the relevant prescriptions. Mr Le said he then telephoned Dr Adzanku, having obtained his contact number from the internet. Dr Adzanku asked him to fax a copy of the prescription, P2, to him and Mr Le did so. The doctor then telephoned him back and told him that he had not seen the patient and did not write the prescription. At that point the person presenting the prescriptions was in the pharmacy and Mr Le approached him. Ms Welson said that the man Mr Le approached was “exactly the same person” as had presented the scripts P2 and P3 to her. Mr Le asked him whether he saw Dr Adzanku for this medication. Receiving no response, Mr Le told the man that Dr Adzanku had denied writing the prescription. The man said something to the effect of “That’s okay. I will go back and see the doctor” and hurriedly left the pharmacy. The police were then called. Mr Le then put the prescriptions into a drawer for safekeeping and went on with his work pending the arrival of the police. He said there were no other prescriptions in that drawer. When the police arrived about 15 to 20 minutes later he explained the sequence of events to them and handed them the two prescriptions. He also showed police closed circuit television footage (CCTV) covering the incident. It ran continuously in the pharmacy. It comprised sequences from several cameras. Mr Le also provided a computer generated dispensing history covering the last twelve years at that pharmacy of the patient mentioned in the two prescriptions, John Brookes of 16 John Street, Salisbury North. That document was tendered as Exhibit P7 without objection. Five of the prescriptions referred to in P7 listed the appellant as the prescribing doctor, each one prescribing Tramadol. The other named Dr Adzanku as the prescribing doctor and it too was for Tramadol. Mr Le identified the CCTV which he gave to police. It became Exhibit P1.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As I said, I do not consider this to be a case of the prosecution breaching its disclosure obligations. Nor do I think that any criticism can be levelled at the prosecution witnesses, Mr Le and Ms Welson, for the script not being produced earlier. Having read the transcript of evidence given at the trial, I am of the view that there was no miscarriage of justice arising from this chain of events.Conclusion I have carefully considered the arguments mounted by Mrs Shaw in support of this appeal. In my view none has substance. This was a trial containing some complexities. It was conducted in the Magistrates Court and a police prosecutor, rather than counsel from the Office of the Director of Public Prosecutions, appeared. However, the prosecution case was a strong one. The two main witnesses were impressive. The magistrate’s reasons for decision were cogent. I have no misgivings about the magistrate’s decision. The orders I make are:1.the notice of appeal is amended in accordance with the second notice filed 4 September 2015;2.the appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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