Murphy v The Queen

[1990] HCA 14

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson and Toohey JJ.

LESLIE JOSEPH MURPHY v. THE QUEEN

11 April 1990

Decision

MASON C.J., BRENNAN, DEANE, DAWSON AND TOOHEY JJ. This is an application for enlarging an order, since perfected, made by this Court on 30 May 1989 quashing the applicant's conviction for murder and ordering that there be a new trial. The applicant now seeks to have his convictions for the offences of taking with intent to hold for advantage, assault and robbery (immediately after such robbery using corporal violence wounding the victim), and inflicting actual bodily harm with intent to have sexual intercourse, also quashed with the result that there would also be new trials for those offences.

2. The order for a new trial on the charge of murder was made after the Court had reserved its judgment on an application made by the applicant for special leave to appeal from a judgment of the New South Wales Court of Criminal Appeal dismissing appeals from convictions in respect of the four offences already mentioned. When this Court delivered judgment it granted the application for special leave, allowed the appeal in part and quashed the conviction for murder only. Critical to the order then made by the Court, limiting the quashing of the convictions to that of murder, were certain answers given by senior counsel then appearing for the applicant during the course of the hearing of the application for special leave. The answers were given in response to questions put by Deane J. The relevant questions and answers are as follows:
"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 abduction?

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.

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."

3. Counsel for the applicant now submits that the applicant gave no instructions for the abandonment of the appeals against the three residual convictions and that the concessions made by then counsel for the applicant were incorrectly made because the applicant did not, himself, participate in the events which were alleged to give rise to the three offences. In these circumstances, it is submitted that the Court should rectify the order made on 30 May 1989 on the ground of error.

4. Even if we assume that the Court has jurisdiction to vacate or vary part of the order made on 30 May 1989, and that may be thought to be a very large assumption, we are not persuaded that a case has been made out by the applicant.

5. It was not at any time disputed that the applicant was physically present in the car during the events which gave rise to the three charges in question. Indeed, his statement from the dock confirmed his physical presence at that time. Moreover, it is not suggested that the applicant protested at what occurred, or sought to dissociate or distance himself from what occurred, or that his continued presence in the car was other than voluntary. In these circumstances, we are not persuaded that the concessions made by counsel for the applicant led to any miscarriage of justice. The application is therefore dismissed.

Orders

Application dismissed.