Evidence—Criminal—Expert evidence—Confession—Opinion of psychologist that accused of limited intellectual ability—Admissibility—Listening device—Warrant to use—Regularity—Sufficiency of material before court on application for warrant—Whether relevant to admissibility of evidence—Listening Devices Act 1984 (N.S.W.), ss. 5, 13, 18(2). Criminal Procedure (N.S.W.)—Jury—Challenge for cause—Jury Act 1977 (N.S.W.), s. 46.
Decisions
MASON C.J. AND TOOHEY J. These three applications for special leave to appeal were heard together. The three applicants - Leslie Joseph Murphy, Michael James Murdoch and Gary Steven Murphy - together with Michael Patrick Murphy and John Raymond Travers were convicted of murder and of a number of other offences.
2. The convictions arose from the killing of a young woman, Anita Lorraine Cobby, in brutal circumstances. She was seized whilst walking along a suburban street in Blacktown just before 10 p.m. on the evening of 2 February 1986 and was dragged into a car containing five men. She was sexually assaulted in the car and was later the subject of a series of sexual assaults after she had been dragged from the car, through a barbed wire fence, and into a paddock. Her throat was cut.
3. The applicants, Michael Murphy and John Travers were each convicted of murder (for which the sentence was penal servitude for life), of taking with intent to hold for advantage (for which the sentence was sixteen years imprisonment), of assault and robbery, immediately after such robbery using corporal violence wounding the victim (for which the sentence was seventeen years imprisonment), of inflicting actual bodily harm with intent to have sexual intercourse (for which the sentence was twelve years imprisonment) and of stealing a car (for which the sentence was five years imprisonment, save for Leslie Murphy, who was sentenced to three years imprisonment). The trial judge declined to specify non-parole periods and directed that the file of each man be marked "Never to be released".
4. The present applicants and Michael Murphy appealed to the Court of Criminal Appeal of New South Wales against their convictions and sentences; in each case the appeal was dismissed.
5. Four grounds of appeal are common to all applicants. The first ground arises from media publicity at the time of their trial. The trial began in Sydney on 16 March 1987, following pleas of guilty by Travers. That evening The Sun, a Sydney newspaper, published on its front page a photograph of Travers alongside the headline in bold type: "ANITA MURDER MAN GUILTY". There followed on the front page and on p 2 an account of Travers' pleas and the opening of the trial which named the accused and identified Michael Murphy in the following terms: "Michael Patrick Murphy 34, unemployed, a prison escapee of no fixed address". The newspaper was on sale at the time the jury left the court. On 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.
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Details
AGLC
Murphy v The Queen [1989] HCA 28
Case
[1989] HCA 28
Decision Date
CaseChat Overview and Summary
The case of *Murphy v The Queen* concerned an appeal by the applicant, Murphy, against his conviction for murder. The appeal was heard by the High Court of Australia.
The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the court had to consider whether the evidence presented at trial was capable of supporting a finding of provocation, and if so, whether the jury had been properly instructed on the elements of this defence.
The High Court reasoned that the defence of provocation requires evidence that the act of the accused was a response to a sudden or temporary loss of self-control caused by something done or said by the deceased. The court examined the evidence presented at trial, including the deceased's conduct towards the applicant, and determined that there was sufficient evidence to raise the issue of provocation. Consequently, the court found that the trial judge's directions to the jury on this defence were inadequate, as they did not sufficiently explain the legal requirements for a finding of provocation.
The High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.