Murphy v The Queen

[1989] HCA 28

HIGH COURT OF AUSTRALIA

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

MURPHY v. THE QUEEN AND MURDOCH v. THE QUEEN AND MURPHY v. THE QUEEN

(1989) 167 CLR 94

30 May 1989

Evidence—Criminal Procedure (N.S.W.)

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 morning of 17 March the trial judge, Maxwell J., was asked by counsel for Michael Murphy to discharge the jury on the ground that the publication would result in unfair prejudice to his client. The Crown did not oppose the application, which his Honour acceded to, discharging the jury in relation to all accused and directing that the trial be relisted to commence on the following Monday, 23 March. His Honour expressed his reasons for discharging the jury in these terms:
" This is clearly introducing to the minds of
the jury the question of character in relation to this accused person. I am driven to the conclusion that the jury should be discharged. It is with great reluctance that I come to this decision. However, the potential prejudice engendered by this offending publication cannot, in my view, be adequately dissipated by any direction I could give to the jury. Unfortunately for this jury the problem will not go away or be blown away by any directions from the trial judge."

6. There had been extreme media publicity concerning the killing of Mrs. Cobby, the hunt for her killer or killers, the arrest of the accused and the committal proceedings. In its edition of 25 February 1986 The Sun had published on the front page a large photograph of Michael Murphy, who was then being sought for questioning in connection with Mrs. Cobby's death, and on p 3 a detailed recital of Murphy's prison record together with the fact that he had escaped from Silverwater Jail on 27 December 1985 and was still at large.

7. Unhappily, later on the same day the jury was discharged, and on the following day, reference was made in the media, particularly over the radio, to the fact that the jury had been discharged by reason of publication of the description of Michael Murphy as an unemployed prison escapee of no fixed address. For instance, in news broadcasts at 12 noon on 17 March 1987 at least two radio stations referred to the fact that the trial had been aborted because Michael Murphy had been identified as a prison escapee.

8. When the Court reconvened on 23 March, an application was made to Maxwell J. on behalf of each accused to adjourn the trial for a period of six months. The application was based upon the publication in The Sun on 16 March and upon the further publicity of 17 and 18 March. His Honour rejected the application. In the course of giving his reasons for doing so, his Honour said:
" This is an unusual trial attended with great
publicity from the moment of detection through to the present time. It will always be attended with great publicity and no doubt if the trials were to be adjourned part of the history would be regurgitated; that at an earlier stage in March 1987 a trial had been discharged because of some piece of offending journalism in respect of the accused Michael Patrick Murphy. I am fully conscious of the right of an accused person to a fair trial. I am also conscious of the interests of the community in having trials brought on with regularity and expedition. Rightly or wrongly I have come to the conclusion that the present problem can be dealt with by adequate and repeated directions to the jury."

9. The view of the Court of Criminal Appeal was that Maxwell J. had not erred in this decision and had properly weighed the interests of the accused on the one hand and the public interest in the due administration of the criminal law on the other. Street C.J., with whom Yeldham and Finlay JJ. agreed, considered that, having regard to the directions given by Maxwell J. to the jury and the discretion he had as trial judge, there was "no basis for this Court to interfere by overruling the convictions upon the ground that his Honour erred by not granting the adjournment of six months which had been sought".

10. It is fundamental that, for an accused to have a fair trial, the jury should reach its verdict by reference only to the evidence admitted at trial and not by reference to facts or alleged facts gathered from the media or some outside source. However, the might of media publicity in "sensational" cases makes such a pristine approach virtually impossible. Recognizing this, the courts have used various remedies such as adjournment, change of venue, severance of the trial of one co-accused from that of the others, express directions to the jury to exclude from their minds anything they may have heard outside the courtroom and the machinery of challenge for cause.

11. It may be that in a particular case none of these remedies will be fully effective. But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in The Queen v. Hubbert (1975) 29 CCC (2d) 279, at p 291:
" In this era of rapid dissemination of news by
the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence."

12. It is now just over a hundred years since Waite C.J. commented in Reynolds v. United States (1878) 98 US 145, at pp 155-156 (25 Law Ed 244, at p 246):
"In these days of newspaper enterprise and
universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits." Intelligence and literacy are not necessarily synonymous but the message is clear.

13. The importance of a fair trial to an accused must not be underestimated. But it is not the only consideration. It is important that anyone charged with a criminal offence be brought to trial expeditiously. Not only is that in his or her own interest but it is in the interest of witnesses and also, in cases such as the present, in the interest of the family of the victim. It is inimical to the orderly disposition of the work of the courts that trials are adjourned unnecessarily. As Maxwell J. observed when declining to order a further adjournment of the trial of the accused, the trial would continue to attract great publicity whenever it was heard. It is true that future publicity would not necessarily include renewed descriptions of Michael Murphy as a prison escapee but it is likely enough that there would be reference to an aborted trial and some allusion to the reason why it was aborted. However, the correctness of Maxwell J.'s refusal to grant a further adjournment must be judged by reference to the situation then existing.

14. It is important to stress that this ground, as with the second, does not relate to the general mass of publicity. Each is confined to the reference to Michael Murphy. It is true that this gives rise to something of a paradox for specific warnings by Maxwell J. were likely to create the very danger sought to be avoided. His Honour dealt with the matter with some generality, as he was bound to do to avoid that problem. At the same time he did not speak only of matters extraneous to the courtroom; he spoke of media publicity. For instance, he said in his charge to the jury:
" When you sit as jurors in these trials, you
are not just individuals anymore. You represent the community. You represent its sense of justice. The privilege which you have of sitting in judgment upon some of your fellow men is one which has corresponding duties and obligations. It is your duty to act with complete impartiality, complete detachment and without letting matters of sympathy, prejudice, sentiment or emotion play any part. That not only covers all those persons concerned with the trial, who in one way or another have been before you, but those words calling upon an exercise of your duty to act with complete impartiality, detachment and without letting matters of sympathy, prejudice, sentiment or emotion play any part, applies to matters extraneous to this court room and matters to which I have already referred to and from which I will now depart, those matters of publicity which you have read about, seen or heard pervaded per medium of the media and I feel quite confident that you need no further directions in that regard." This sort of direction was given on more than one occasion during the trial.

15. In view of the limited nature of the complaint, it is possible and not inappropriate to dispose of this ground, and indeed the second ground, on the narrow basis that Michael Murphy, to whom the offending description related, is not an applicant before this Court. The argument of the present applicants must be that, notwithstanding the absence of any complaint from Michael Murphy to this Court, there was a miscarriage of justice in each of their cases because the members of the jury were likely to be aware that Michael Murphy was a prison escapee and that this would unduly prejudice them against the other accused. In the circumstances of the case, the complaint can be put no higher than that the other accused might be thought of as persons who associated with a prison escapee and were therefore likely to be of bad character. However, Leslie Murphy and Gary Murphy are brothers of Michael Murphy and the jury would have realized that they would therefore be likely to associate with him, regardless of the fact that he was a prison escapee. They were not linked in the publicity other than by their family association. While of course he was named as one of the accused, Murdoch was not otherwise linked with the Murphy brothers. In these circumstances the applicants cannot rely upon the fact that Michael Murphy may have been prejudiced by the media publicity. However, it is not necessary to rest our decision in relation to either of these grounds on this relatively narrow basis.

16. A decision as to the proper course to take in such circumstances must be one for the trial judge. That is not to suggest that the decision is not reviewable; but it is to accord full weight to the position of the trial judge who, generally, is in the best position to assess what the interests of justice demand and, by appropriate steps, to try to ensure that an accused receives a fair trial. It may be said that there can be no guarantee that directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful. That is true just as it is true that there can be no guarantee that a juror may not have been influenced by other matters of which he or she has heard before the trial. But, putting to one side for a moment the question of challenge for cause, which is the subject of a separate ground, there is no reason why this Court should conclude that Maxwell J. erred in the exercise of his discretion when he declined to adjourn the trial again. The first ground is accordingly not made out.

17. Upon the rejection of the application for an adjournment, counsel for the accused had sought to renew an application which had first been made on 16 March 1987, namely, to challenge each potential juror for cause and to cross-examine him or her in support of that challenge. Maxwell J. refused the renewed application as he had refused the earlier application. On 16 March he concluded:
"... I am not able to come to the conclusion that
any proposed juror in the present proceedings would have a mind which had become so clogged with the matter which (counsel) refers to and relies upon in the application as to prevent that person from trying a case impartially." At the hearing on 23 March this test was criticized by counsel for the accused. The real test, it was said, was whether there was a real possibility of the juror being biased in the relevant sense. Accepting that to be so, his Honour said he was unable to come to such a conclusion.

18. Section 46 of the Jury Act 1977 (NSW) provides: "A challenge for cause shall be tried by the presiding judge at the trial." On the hearing of the first application to challenge for cause, Maxwell J. had identified the causes for challenge as:
"That the proposed juror does not possess the
necessary qualifications or that he has some personal defects which render him incapable of discharging his duty as a juror or that he is not impartial or that he has served on another jury in respect of the same matter or that he has been convicted for an infamous crime." These words appear to have been taken from Watson and Purnell, Criminal Law in New South Wales, 2nd ed (1981), vol 1, p 802. In the circumstances, any challenge for cause would be confined to showing that a juror was "not impartial" because of having read or heard the description of Michael Murphy.

19. The second ground of appeal alleges that Maxwell J. should have permitted counsel to challenge jurors for cause. The Court of Criminal Appeal regarded the decision to permit a challenge for cause as essentially one that was within the discretion of the trial judge. The view taken by the Court is encapsulated in the following passage from the judgment of Street C.J.:
"There must be a sound basis made out on a prima
facie footing to anticipate the probability of prejudice on the part of an individual juror. The fortuitous circumstances that one such juror disclosed a concern on her part in conjunction with the media publicity falls short of carrying the case to the point where it can be said that the judge no longer had any discretion to exercise in this field and that the only proper decision for him to have made would have been that presently contended for by the appellant." The reference to "fortuitous circumstances" was a reference to the fact that one of the potential jurors had asked to be excused, saying: "I can't give these people a fair trial". We were not told whether this incident occurred at the time of the first trial or the second one and whether the juror's concern related to publicity surrounding the trial or to earlier publicity. In rejecting the ground based on Maxwell J.'s refusal to allow a challenge for cause, the Court of Criminal Appeal gave its apparent approval to The Queen v. Kray (1969) 53 Cr App R 412 and to The Queen v. Stuart and Finch (1974) Qd R 297, though the former was distinguished in the latter.

20. In Kray Lawton J. permitted a challenge for cause because of publicity, following conviction of men for murder on 5 March 1969 and before their further trial for murder on 15 April 1969. His Honour distinguished between fair comment on the earlier trial and the situation where newspapers-
"knowing that there is going to be a later trial,
dig up from the past of the convicted who have to meet further charges discreditable allegations which may be either fact or fiction and those allegations are then publicised over a wide area" (at p 415).

21. Having read the newspapers, Lawton J. concluded that there was "such a prima facie case of probability of prejudice" that defence counsel should be allowed to examine jurors who came into the jury box to be sworn. Lawton J. was at pains to stress that the combination of facts which had brought about the situation before him was "wholly exceptional."

22. In Stuart and Finch the Queensland Court of Criminal Appeal upheld a refusal by the trial judge to allow a challenge for cause when there had been extensive publicity surrounding the events which gave rise to the trial and conviction of the appellants. As we read the judgments of the members of the Court (Douglas, W.B. Campbell and Matthews JJ.), they upheld the trial judge's ruling because an insufficient foundation of fact had been laid to justify the examination of prospective jurors. The ruling in Kray was thought to have turned on the "peculiar facts" of that case (Douglas J., at p 304) and on "its own very special facts" (W.B. Campbell J., at p 327). Matthews J. went further, commenting (at p 370) that "the only foundation of fact which had been laid was that matter prejudicial to the accused had been published by newspapers and the translation of this into a finding that each of the prospective jurors was probably not indifferent between the Crown and the accused was a matter of speculation and not in the circumstances justified".

23. A challenge for cause based on partiality runs into an obvious difficulty:
"It seems unlikely that a prejudiced juror would
recognize his own personal prejudice - or, knowing it, would admit it. However, since there are no empirical data to contradict his declaration of detachment, his word is ordinarily the determining factor. What is more, the more prejudiced or bigoted the jurors, the less can they be expected to confess forthrightly and candidly their state of mind in open court." (Friendly and Goldfarb, Crime and Publicity, (1967), pp 103-104, quoted in LaFave and Israel, Criminal Procedure, (1984), vol 2, pp 766-767)

24. It is beyond question that some foundation must be laid before an application to challenge for cause will succeed. Ordinarily this will take the form, at least initially, of an affidavit relating to the disposition of a particular juror or jurors. There may be cases where a reading by the trial judge of offending material, where it has been published in circumstances that justify an inference that members of the jury are likely to have read it and to have been influenced against the accused, will be enough to justify acceding to an application to question potential jurors. But they are exceptional cases. There is still a need to provide a sufficient foundation of fact to justify acceding to the application. And the trial judge must still have regard to the other considerations mentioned earlier in these reasons; a decision to refuse an application will not be lightly interfered with. Notwithstanding that the jury had been discharged on 17March, the media publicity relating to Michael Murphy did not bind Maxwell J. to conclude on 23 March that there was such a prima facie case of probability of prejudice that counsel for the accused should be permitted to question potential jurors. Accordingly, the necessary foundation for a challenge for cause could not be laid and, if his Honour's decision not to permit such questioning is upheld, there can be no complaint that challenges for cause should have been permitted.

25. As in the case of the adjournment sought, Maxwell J. was not faced with an easy decision but it has not been shown that he erred in the decision he made. Indeed, we consider that his decision and the manner in which he implemented it by giving suitable directions to the jury were the appropriate steps to take in all the circumstances. The second ground accordingly fails.

26. The third ground relied on by all applicants is that Maxwell J. erred in refusing to allow counsel for the applicants to investigate the circumstances leading to the grant of a warrant under s.18 of the Listening Devices Act 1984 (NSW) and that the Court of Criminal Appeal erred in upholding that decision. A witness, known only as Miss X, gave evidence of a conversation she had with Michael Murdoch at a time when she was equipped with a listening device. A warrant authorizing the use of such a device had earlier been granted by a judge of the Supreme Court of New South Wales pursuant to s.18 of the Listening Devices Act, upon complaint by telephone. It was not contended that the warrant, on its face, failed to authorize what Miss X had done. Rather, the submission was that counsel should have been permitted to investigate the basis upon which the warrant had been granted and that, in the event that there had been some procedural or substantive error in relation to its issue, the trial judge should have rejected the resulting evidence as not having been obtained pursuant to a valid warrant.

27. Section 5(1) of the Listening Devices Act prohibits the use of a listening device to record or listen to a private conversation. The sub-section is expressed not to apply to the use of a listening device pursuant to a warrant granted under Pt 4 of the Act. Section 13 precludes evidence, in civil or criminal proceedings, of a conversation which has come to the knowledge of a person as a result of the use of a listening device in contravention of s.5. There is, however, a discretion in certain circumstances, including proceedings for an offence punishable by penal servitude for life, to admit the evidence "if the court considers that the evidence should be admissible" (s.13(2)(d)). In determining whether to admit evidence the court shall have regard to the matters set out in s.13(3).

28. The Court of Criminal Appeal agreed with the trial judge that no investigation of the circumstances of the grant of the warrant in relation to Miss X should be permitted in the course of the trial. In the Court's view, the warrant was granted by a judge of the Supreme Court and, being an order of a superior court, its validity was to be presumed "until it be set aside or corrected on appeal or by other due process of law". The question is whether the presumption of validity could be displaced by a collateral attack upon the warrant founded on an alleged insufficiency of the materials placed before the Supreme Court by the applicant for the warrant. There was no challenge to the jurisdiction of the Supreme Court to grant a warrant; counsel sought to challenge the sufficiency of the grounds on which the warrant had been granted. This attack on the warrant was misconceived. The admissibility of the evidence of Miss X depended on the existence of the warrant, not on the sufficiency of the grounds for granting it. In McArthur v. Williams (1936) 55 CLR 324 where the validity of a magistrate's warrant of arrest was in question, Dixon, Evatt and McTiernan JJ., referring to the necessity for a sworn information or complaint to found the issue of a warrant, said (at pp 365-366):
"But it has never been considered that the
validity of the warrant could depend upon the nature or sufficiency of the materials upon which a magistrate granted the warrant if there was an information on oath before him which, however irregular, was not a nullity. ... In general the sufficiency or character of materials which are required for the purpose of exercising a discretion is not a matter upon which the validity of the discretionary act is made to depend (cf. Cooper v. Booth ((1785) 3 Esp 135, at p 144; 170 ER 564, at pp 567, 568))." Where a warrant can be issued by the appropriate authority only upon its being satisfied of prescribed matters to be shown by the applicant for the warrant, the validity of the warrant is not open to collateral attack merely on the ground that the material laid before the authority was insufficient to satisfy it of those matters: see Rubinstein, Jurisdiction and Illegality, (1965), ChIII; Groenvelt v. Burwell (1700) 3 Salk 354 (91 ER 869); and The King v. Watts (1830) 1 B. &Ad. 166, at p 177 (109 ER 749, at p 753). To determine the admissibility of evidence obtained by use of a listening device purportedly under the authority of a warrant, a court must determine merely whether the warrant was regularly granted by the Supreme Court. It does not enquire into the sufficiency of the material which satisfied the Supreme Court of the matters referred to in s.18(2)(b). There was neither need nor occasion for the Court in the present case to investigate the basis on which the warrant had been granted.

29. There was a warrant in existence authorizing the use of a listening device by Miss X at the time she used it. Section 5(2)(a) of the Act was therefore applicable, with the consequence that there was no contravention of s.5 and therefore no exclusion in terms of s.13. It was therefore unnecessary to call in aid the discretion in s.13(2)(d).

30. It may be noted that the evidence obtained by the use of the listening device carried by Miss X was admitted as part of the case against Murdoch, not as part of the case against the other applicants. But, on the view we have taken of the matter, it is unnecessary to consider the implications that this situation may have for the other applicants' argument.

31. The fourth and final ground advanced on behalf of all applicants arises from a remark made by Maxwell J. when charging the jury. His Honour was dealing with an argument put on behalf of the applicants that, in so far as the evidence by police officers was relevant, that evidence was "a complete fake". There was a further argument that the applicants or some of them had been the victims of violence by police officers. His Honour said:
"Of course, it hardly needs me to say that these
allegations constitute grave allegations against the police officers concerned. You are entitled to have regard to the whole of the surrounding relevant evidence of any submission put to you by any counsel. If one were, for example, to include those unidentified detectives, two at a time, three times, who visited Michael Patrick Murphy in the interview room and assaulted him in the absence of the officers taking the record of interview, there would appear to be some twenty-six officers involved in these conspiracies, assaults and fabrications. I am not again intending to be entering the fact-finding arena which is your arena not mine, but not that it proves conclusively one way or the other, but on the probabilities, on what is likely to be the situation, and I am not talking about the onus of proof, what is the likelihood? Is it that you get twenty-six police officers? It is a matter for you. Numbers perhaps do not count, but it is the acceptability or otherwise in relation to these alleged assaults, conspiracies and fabrications that matters. I say once again that the mere fact that a witness is a police officer does not bestow extra credence on his evidence. The worth of what he swears is to be gauged by the same criteria or matters as applied to any other class of witness. The mere fact that he is a police officer does not entitle the Crown to say: you must accept that because he is a police officer. Indeed, you are entitled to look at some of the police evidence with some caution as I will indicate to you in a few minutes."

32. Street C.J. summarized the attack made on this part of his Honour's charge to the jury in the following way:
" The challenge is first that this is not borne
out by the actual allegations made by the individual accused persons, and secondly, that it adopts an impermissible global aggregation of the defence cases thus tending to divert the jury away from its proper task of considering each Crown case and each defence case as a separate entity."

33. It is apparent that no one applicant challenged twenty-six police officers. It is equally apparent that what Maxwell J. was seeking to do was to restore to some balance what had been said by counsel during their final addresses on behalf of the accused. His Honour made it quite clear that the issues involved were for the jury to decide. And, when his Honour's remarks are taken in their entirety, nothing was said to suggest that the issue for the jury was the likelihood or otherwise of police officers having entered into a conspiracy rather than the question whether the Crown had proved the case against the accused beyond reasonable doubt. Cf. Duke v. The Queen (1989) 63 ALJR 139; 83 ALR 650; The Queen v. White (1976) 13 SASR 276. There is no substance in this ground.

34. There remain three grounds of appeal particular to individual applicants. One ground, advanced on behalf of Leslie Murphy, alleges that the trial judge erred in ruling inadmissible certain evidence proposed to be called on behalf of Murphy. The evidence was that of Ricki Sharpe, a consultant psychologist, whose evidence, it was said, would be that Murphy was of limited intellectual capacity and that the confessional material adduced through the police record of interview with him was thereby rendered inadmissible or at any rate dangerously unreliable.

35. Maxwell J. rejected the proposed testimony as not truly qualifying as expert evidence, adding that he did so "with some perturbation". The admissibility of Mr. Sharpe's evidence only became an issue immediately before the case for Leslie Murphy began; that case comprised his unsworn statement and two witnesses whose testimony may fairly be said to have been peripheral to the main issues at the trial. His Honour gave short reasons for excluding the evidence. In effect, he said that Mr. Sharpe's report, which had been made available to his Honour, excluded brain damage and also any mental retardation. In those circumstances, the evidence of Mr. Sharpe related to matters of human nature and behaviour within the limits of normality. It was not, therefore, evidence of an expert in any relevant sense and related to matters which the members of the jury could well assess for themselves.

36. Properly to consider this argument, it is necessary to set out the final summary in Mr. Sharpe's report. It read:
"Leslie Murphy is functioning intellectually at
the level of a ten year old person. He shows adequate adaptive functioning and could not be considered to be mentally retarded. His poor educational performance would seem to be almost entirely due to a disturbed childhood and inadequate educational opportunities and not due to any biological or anatomical reasons. Leslie Murphy shows severe impairment in most of the basic educational skills. The greatest deficits are in his reading and comprehension skills. Spelling, vocabulary, arithmetic, reading and comprehension (silent and auditory) are in the nine to ten year old range. In my opinion, Leslie Murphy would have had great difficulty in reading and fully comprehending the record of interview. It would have taken him five to ten minutes to read each page with 50% comprehension. If the record was read to him at normal speech rate, he would have had approximately 25% comprehension. His auditory comprehension is very much dependent on the speed with which things are read or spoken, whether or not he is able to follow along by reading his own copy and whether he is able to make interruptions so as to mark his own copy to 'jog' his memory at the conclusion of the reading. I strongly doubt that he could fully comprehend the medical authorisations he signed, whether he read them himself or they were read out to him. I believe that the words mentioned in the medical authorisations would not have been within his vocabulary."

37. The Court of Criminal Appeal regarded the matter as "finely balanced". Street C.J. saw the question at issue to be, not so much whether Murphy was capable of understanding the record of interview when it was read back to him, but rather whether he was capable of understanding and answering the questions that were asked of him. His Honour considered that Maxwell J. was not in error in excluding the evidence. Street C.J. had earlier formulated the question of admissibility in these terms:
" He (Murphy) was undoubtedly substantially
illiterate. But the critical question ... was whether Leslie Murphy should be treated as in a special category, apart from the broad range of persons in society in relation to whom the jury could bring to bear their own original judgment, so as to justify putting before the jury this expert opinion for the jury to take into account when considering the extent to which the confessional material should be weighed against him." The Court of Criminal Appeal must be taken to have concluded that Murphy was not within this "special category".

38. The Court went further and held that, even if Maxwell J. had erred, the case was one for the application of the proviso. The matter was put this way by Street C.J.:
"Even allowing for every possible discount in his
favour by reason of the contents of the report of the psychologist, there remained the convincing framework of a course of conduct which could plainly have been accepted by the jury, as it was, as establishing his guilt. There was no doubt regarding his involvement in the whole venture. The precise details as recorded in the record of interview do not depend upon the level of intellect of the person being interrogated. The matters that weighed significantly against him were stated specifically and precisely by him in his answers. They were stated, I repeat, in a vocabulary which does not differ markedly from his own unsworn statement at the trial. This, to a substantial extent, points against the reliability of some of the views expressed in the psychologist's report."

39. The question of the admissibility of Mr. Sharpe's evidence cannot be considered in a vacuum. The Crown case against Leslie Murphy and the other accused had concluded. It is relevant to enquire - had there been anything in the cross-examination of the Crown witnesses to suggest that Murphy's capacity to understand what was asked of him or what was read back to him was in issue?

40. It is evident, from the cross-examination of police officers and to some extent from Murphy's unsworn statement, that he disputed having made the admissions attributed to him. That is a different matter but it cannot be dissociated from the questions now under consideration. It is apparent that Detective Sergeant Raue, who conducted the interview with Murphy, was asked questions aimed at showing that Murphy did not understand what was being put to him and that he was unable to read the record of interview when it was presented to him for signature. Raue denied the first allegation. He conceded the second to the following extent. He said that during his interview with Murphy the latter was shown a copy of a statement that had been made by the applicant Murdoch. Murphy seemed to have difficulty in reading some of the words in the statement so Sergeant Raue had the statement read to him by a police officer. When the interview with Murphy had concluded, Sergeant Raue asked Murphy whether he would prefer to read aloud the record of interview or have someone read it to him. Murphy said he would prefer to have the statement read to him and this was done by Sergeant Markwell. Sergeant Raue then asked some further questions, the answers to which were recorded by Detective Constable Heskett and read to Murphy by Sergeant Markwell. Murphy then signed each page of the record of interview.

41. There was cross-examination of Detective Constable Heskett along similar lines to that of Detective Sergeant Raue but, in addition, that police officer was questioned with a view to showing that Murphy did not use various words and expressions attributed to him, words such as "unconscious", "intercourse", "penis", "vagina" and "incident". Heskett insisted that Murphy did use those words. His evidence corroborated that of Detective Sergeant Raue, namely, that Murphy understood what was asked of him but had difficulty reading Murdoch's statement so that it and his own record of interview were read to him.

42. No doubt counsel for Murphy was in some difficulty running a line of cross-examination aimed at showing that his client had not made the admissions alleged, and at the same time attempting to show that he could not have made the admissions in the terms alleged. But a sufficient foundation was laid to justify the evidence of Mr. Sharpe, had it been otherwise admissible.

43. Was the evidence proposed to be led from Mr. Sharpe admissible? It is unnecessary to spend time on the question whether an expert may give an opinion on the very issue of fact or law which the court has to determine. It is doubtful that there is now an absolute rule precluding an expert witness from expressing a view as to the ultimate issue: see Cross on Evidence, 3rd Aust. ed (1986), p 717. But we do not think that question arises here. The ultimate issue was whether Leslie Murphy gave the answers which are contained in the record of interview. That was a question for the jury and Mr. Sharpe's evidence would not have usurped their function. His evidence, if accepted, would have assisted the jury in answering that question in so far as it bore upon the capacity of Murphy to comprehend what was read to him and further to give the particular answers attributed to him in the record. Mr. Sharpe's report referred to the record of interview and continued:
"I consider there are certain questions put to
Leslie Murphy which may not have been fully understood by him. As well, in framing his answers, I consider he used certain words which would not have been in his vocabulary at the time and also used certain phrases and sentence structures which are uncharacteristic of him." Mr. Sharpe amplified these views by reference to words, phrases and sentence structures in the record of interview. Of course the jury may have rejected this testimony but that is irrelevant to the issue this Court has to determine.

44. The question then is whether the evidence of Mr. Sharpe was admissible expert evidence. In The Queen v. Turner (1975) QB 834 Lawton LJ., at p 841, expressed the basis upon which expert evidence is received in terms about which there can be no quarrel:
"An expert's opinion is admissible to furnish the
court with scientific information which is likely to be outside the experience and knowledge of a judge or jury."

45. Later, on p 841, Lawton L.J. added some remarks which may not be so unquestionable:
"Jurors do not need psychiatrists to tell them how
ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life." There are difficulties with such a statement. To begin with, it assumes that "ordinary" or "normal" has some clearly understood meaning and, as a corollary, that the distinction between normal and abnormal is well recognized. Further, it assumes that the commonsense of jurors is an adequate guide to the conduct of people who are "normal" even though they may suffer from some relevant disability. And it assumes that the expertise of psychiatrists (or, in the present case, psychologists) extends only to those who are "abnormal". None of these assumptions will stand close scrutiny.

46. Nevertheless, before Mr. Sharpe's evidence could be admitted there had to be some identification of the expertise he could bring to bear. In particular the trial judge had to be satisfied that the matters to which he would speak were outside the experience and knowledge of the judge and jury. It was not the case being put forward that Murphy was mentally retarded. His difficulties, it was said, related to "a disturbed childhood and inadequate educational opportunities". By this, we take it, was meant that he had not learned to read properly and that he possessed a very limited vocabulary. No doubt these were matters to which Murphy himself could speak, as could members of his family and friends. As it happens, his unsworn statement speaks only of "a lot of questions that I did not answer". He did continue, "nor did the questions were put to me (sic), I will get to that later", but he did not return to the topic. But it does not follow that, because a lay witness can describe events and behaviour, expert evidence is unavailable to explain those events and that behaviour. Expert opinion will often build upon lay observations.

47. A problem in the present case is to know whether Mr. Sharpe was to be called to give evidence as a psychologist or more truly as someone knowledgeable in the field of literacy. In other words, the question upon which his opinion may have been sought was whether Murphy was in truth "functionally illiterate": see McPherson J. in The Queen v. Barry (1984) 1 Qd R 74, at p 84. But that problem was never explored. The argument of counsel before this Court focused on Murphy's normality or abnormality. With all its inherent difficulties, this distinction may be a useful guide to the admissibility of psychiatric evidence (the cases are discussed by Rosemary Pattenden in "Conflicting Approaches to Psychiatric Evidence in Criminal Trials: England, Canada and Australia", (1986) Criminal Law Review 92). But it tends to obscure the fact that in a particular case evidence may be offered to which the distinction has no relevance. The present case is one such for it was not Murphy's normality or abnormality that was in issue but rather the standard of his vocabulary and literacy and thus of his comprehension.

48. It was not suggested at the trial or in the Court of Criminal Appeal that Mr. Sharpe was not truly qualified to give the evidence sought from him. At the trial, when counsel for the accused sought to tender Mr. Sharpe's report, he handed to the trial judge a statement of Mr. Sharpe's qualifications. The Crown Prosecutor's objection to the reception of the report was not that Mr. Sharpe lacked the qualifications to express the opinions contained in the report but that the opinions were not related to matters susceptible of becoming the subject of expert evidence. For that reason the case is to be distinguished from Clark v. Ryan (1960) 103 CLR 486. Mr. Sharpe had made a report which, prima facie, he was equipped to prepare by reason of his training and which was relevant to the issue whether Leslie Murphy had given the answers attributed to him. In our view his testimony should not have been rejected. On the face of it, he was an expert sought to be called to give evidence on a matter calling for his expertise.

49. Once that is accepted, there is really no room for the operation of the proviso. It is true that Murphy's own statement from the dock placed him at the scene of Mrs. Cobby's abduction, assaults and killing. But evidence of the extent of his involvement, particularly in the killing, depended almost entirely upon his record of interview. Had the record of interview been rejected, it cannot be said that Murphy would inevitably have been convicted; it follows that there was a substantial miscarriage of justice: Wilde v. The Queen (1988) 164 CLR 365, at pp 371-372. Leslie Murphy's conviction for murder should be quashed and there should be a retrial. Murphy's application for special leave to appeal is in respect of all his convictions but in the course of argument his counsel made it clear that, at least so far as this ground is concerned, any appeal was restricted to the murder conviction.

50. Finally, two complaints are made on behalf of the applicant Murdoch only. The first is made by reason of s.410(1)(a) of the Crimes Act 1900 (NSW) which reads:
" (1) No confession, admission or statement

shall be received in evidence against an accused person if it has been induced- (a) by any untrue representation made to him by the prosecutor, or some person in authority; or

..."

Sub-section (2) deems a confession, admission or statement, made after any such representation, to have been induced "unless the contrary be shown". A police officer, Detective Sergeant Kennedy, gave evidence on the voir dire held to deal with a challenge that had been made to the admissibility of the record of interview of Murdoch. The interview in question took place at 12.40 a.m. on Monday, 24 February 1986. Detective Sergeant Kennedy began the interview by identifying himself and an accompanying detective. He mentioned the nature of the enquiries being made and then said: "Since I spoke to you last Friday I have received further information particularly in relation to your involvement in this murder. I am going to ask you some questions about this matter." After administering the usual caution Kennedy asked Murdoch several questions, each of which was prefaced with the words "I have been told" and was followed by a description of what the detective had allegedly been told about various events surrounding the commission of the offences. In the course of cross- examining Detective Sergeant Kennedy on the voir dire, counsel for Murdoch asked a question which lies at the heart of this complaint. It is desirable to set out verbatim part of the relevant transcript.

"Q. Would you have a look at question 4? A. Yes.

Q. You say 'Since I spoke to you on Friday I have been told that yourself, John Travers, Les Murphy, Gary Murphy and Michael Murphy were the five persons responsible for abducting Anita Cobby in Newton Road Blacktown on Sunday 2 February 1986?' and you go on. Were you told that (objected to by Crown Prosecutor: question pressed: question rejected). (Mr. Bleasel applied to argue the objection. Application rejected)."

51. Unfortunately the question objected to was not asked in its entirety so there is an element of speculation as to what it might have been. However, the Court of Criminal Appeal took the following view of the matter: "It seems plain enough, however, that the obvious
and only ground which could have been brought forward by the Crown was that probing the source of information received by Det. Sgt Kennedy would have infringed the anonymity that during the course of the trial had already been accorded to the witness, Miss X. There is nothing to suggest that any other ground could have motivated the objection or the ruling upholding it." Proceeding on that assumption, the Court of Criminal Appeal concluded that it had not been shown that Maxwell J.'s ruling was in error. Street C.J. said: "It may not be positively shown that the ruling was soundly based, but being left, as the Court is, without a clear intimation of the ground for the ruling, I am not persuaded that it was erroneous."

52. The Court of Criminal Appeal found a "strong likelihood" that the learned trial judge refused to allow the question because
"it was protection of the anonymity of the
informant that led to the objection being taken and ... that was recognised at once by the judge without his needing to hear evidence about it as the ground for closing off this particular line of investigation. It would no doubt have been preferable for his Honour to have permitted the matter to be canvassed a little further, so that the reasons, both for the objection and for the ruling, would have been known. At the same time the proposition regarding the preservation of anonymity of the informant was present in the minds of all concerned in this trial." The transcript provides some support for the view that the cross-examination for the purpose of ascertaining the identity of the police informer had already been ruled on. A few pages earlier the cross-examiner had asked this question.

"Q. Prior to conducting the second record of interview with Michael Murdoch, that is the record of interview dated 24 February 1986, I suggest to you that you had been told various things by persons other than Michael Murdoch in relation to the death of Anita Cobby? (Objected to by Crown Prosecutor; question rejected as to form and substance.)"

However, in considering this ground of appeal, there are two related points of complaint. One is that there was an error on the part of the trial judge in refusing to allow the objection to be argued by counsel; the other, that the trial judge's ruling upholding the Crown's objection to the question was erroneous. It was erroneous not to permit argument in support of the propriety of the question in cross-examination unless it was clear that there was no proper basis for allowing it. The earlier ruling by no means precluded further questioning for the legitimate purpose of testing the application of s.410(1)(a) of the Crimes Act. By shutting out argument on the question, the trial judge precluded the Court of Criminal Appeal from being satisfied that the applicant did not seek to rely on s.410(1)(a) at the trial.

53. As the transcript does not show that s.410(1)(a) was not intended to be raised, it was incumbent on the Court of Criminal Appeal to consider the admissibility of the question on the footing that it was intended to found a submission based on that provision. On that footing, what ground did the trial judge have for not allowing the question? It is by no means clear why cross-examination of Detective Sergeant Kennedy directed at ascertaining the information given to him and the identity of the person who had given it would have newly disclosed the identity of Miss X. Miss X had already given evidence and her identity was to that extent known. The Court of Criminal Appeal ought to have held that the question ought to have been allowed.

54. But it does not follow that that is sufficient to justify the setting aside of the conviction. The answer to the question, had it been allowed, may or may not have shown that Detective Sergeant Kennedy induced Murdoch's statement by an untrue representation. Street C.J. observed that the evidence that had been adduced, before Detective Sergeant Kennedy detailed the interview with Murdoch that led to the record of interview in question, was that on Sunday 23February 1986, that is, on the immediately preceding day, an unnamed informant, referred to throughout the trial as Miss X, "had taken part in an investigatory exercise involving the use of a concealed listening device in which she had a conversation with John Travers at the Blacktown Police Station. That having taken place on the Sunday, it would be reasonable to assume that the result of Miss X's venture was promptly made known to Det. Sgt Kennedy and that his interview at 12.40 am followed thereafter". However, the Court of Criminal Appeal was not entitled to make that assumption without pursuing the question which had been improperly disallowed. The Court was in no position to say whether counsel for Murdoch could have made out a case, based on s.410(1)(a), for the rejection of the confessional material. Taking the view it did of the purpose of the question, the Court of Criminal Appeal did not pursue the necessary enquiry. It did not exhaust its function of ascertaining whether Murdoch's statement was inadmissible by reason of s.410(1)(a). That issue having been left undetermined by the trial judge, it had to be determined by the Court of Criminal Appeal. It is therefore necessary for this Court to take the same course as it took in Jones v. The Queen (1989) 63 ALJR 312; 84 ALR 193 where the Court of Criminal Appeal had not fully disposed of the issues before it. In Murdoch's case it is necessary to allow the appeal in part, set aside the order of the Court of Criminal Appeal dismissing the appeal in his case and remit the matter to that Court to complete the hearing and determination of the appeal to that Court. In the meantime, of course, the convictions stand.

55. In reaching this conclusion, we have not overlooked the fact that the Court of Criminal Appeal was of the view that, even if this ground had been made good, it would have applied the proviso. This was on the basis that the Court found it "difficult to conclude" that questions asked by Detective Sergeant Kennedy and prefaced with a statement as to what he had been told of Murdoch's involvement in the offences against Mrs. Cobby were "of significance in inducing the proffering of confessional material which would not have otherwise been forthcoming".

56. But s.410(2) of the Crimes Act, as already noted, deems a confession or admission made after an untrue representation to have been induced "unless the contrary be shown". If there was an untrue representation by Detective Sergeant Kennedy, any confession or admission by Murdoch would have been inadmissible unless the Crown could show that he had not been induced thereby. These matters were not explored because of the trial judge's refusal to allow cross-examination. In those circumstances it is not appropriate to draw conclusions as to whether what Kennedy said induced Murdoch's answers. The proviso is inapplicable.

57. The final complaint also relates to Murdoch alone. As with the previous complaint, there are unsatisfactory features because the facts have not fully emerged. It appears that counsel for Murdoch (Mr. Bleasel) wished to cross-examine a Crown witness, Detective Sergeant Kennedy, by reference to a video tape. The background was that, during the course of the police investigation, Murdoch went with police officers to a number of locations where relevant events were said to have taken place. Still photographs of those locations, featuring Murdoch, were admitted into evidence. Cross-examination was proceeding on the basis that some of the gestures made by Murdoch shown in the photographs, suggesting some initiative on his part, were in fact made at the instigation of police officers. A video tape, it appears (unfortunately, it is necessary to express the matter in this uncertain way), was made at the time Murdoch was being photographed at various locations. The relevant passage in the transcript reads:
"(Mr. Bleasel sought leave for his instructing
solicitor to approach a video machine in the court room and place a video cassette into it for the purpose of showing a film, which course was objected to by the Crown Prosecutor. Mr. Bleasel submitted that the course that he was proposing to adopt would be similar to having a photograph put in front of a witness and that witness asked to indicate various things on the photograph or on a tape recording ...)." Maxwell J. refused to allow this course to be taken, as to which Street C.J. said:

" This ruling as a matter of technicality was fully justified. If cross examining counsel wished to challenge a witness with what was at that stage an unproved video film, it would have been legitimate for him to have shown that to the witness, but not to the jury at that stage. It was not sought to be used for the purpose, that is to say, for the sole purpose of drawing attention of the witness alone to the film. It was sought to show the film to the court, including the jury. There was no undertaking proffered that the film would in due course be proved. It was thus entirely technically correct for his Honour to reject the application at that stage to display to the jury a video cassette as to the provenance and reliability of which there was neither existing evidence nor evidence foreshadowed as likely to be forthcoming."

58. The factual background has been clarified as a result of an affidavit sworn by Peter Snelgrove who was solicitor instructing counsel on behalf of Murdoch. That affidavit, sworn 6 December 1988, was filed following questions asked by members of this Court in an effort to find out just what had happened at the trial. For present purposes, we shall assume that it is appropriate that this Court admit the affidavit into evidence for this purpose, and that it does not amount to "fresh" evidence which was denied to the Court of Criminal Appeal.

59. Mr. Snelgrove has deposed that he had obtained a video machine and television which were positioned in the courtroom in such a way that the screen could be seen by Maxwell J. and by any witness in the witness box but not by the jury. There were no human voices on the tape "although there was some background noise such as birds and motor vehicles".

60. Although the affidavit indicates that it was possible to screen the video tape so that the jury could not view the screen, counsel did not make it clear to the trial judge that this was what he proposed. Nor did counsel give the trial judge any assurance that the playing of the video tape, which incorporated a sound recording, would not result in evidence being placed impermissibly before the jury. Instead the trial judge was given to understand that the witness would be asked to indicate various things on the video tape as it was screened. If counsel intended to use the video tape for a different purpose, namely to confront or challenge the witness in cross-examination, or perhaps to introduce the video tape into evidence, it was incumbent upon counsel to make such a purpose plain to the trial judge. This he did not do. Moreover, counsel failed to make such a purpose clear to the Court of Criminal Appeal, as the passage already quoted from the judgment of Street C.J. reveals. In these circumstances, it would be inappropriate for this Court to deal with the matter on a basis different from that argued in the courts below. Accordingly, the point is not one which calls for the interference of this Court.

61. In the result, we would grant special leave to appeal to each applicant. We would allow the appeal of Leslie Joseph Murphy against his conviction for murder, quash that conviction and order a retrial on that charge. Otherwise his appeal should be dismissed. As to the appeal of Michael James Murdoch, we would set aside the order of the Court of Criminal Appeal dismissing his appeal to that Court and remit the matter to that Court to determine the appeal, in accordance with the reasons of this Court concerning the issue raised by s.410 of the Crimes Act in relation to the cross-examination of Detective Sergeant Kennedy. We would dismiss the appeal of Gary Steven Murphy.

BRENNAN J. I would agree with the reasons for judgment of Mason C.J. and Toohey J. except on one question. It is a question of central importance in the case of the applicant Leslie Joseph Murphy. I do not think that, on the material before him, Maxwell J. erred in rejecting the proposed evidence of the psychologist Mr Sharpe. Maxwell J. gave short reasons for excluding the evidence, noting that Mr Sharpe's report excluded brain damage, biological or anatomical dysfunction and mental retardation. His Honour rejected Mr Sharpe's evidence on the basis that in Australia psychological evidence is excluded in "situations where there is no evidence of abnormality in relation to the accused". He cited an article expressing the view that Australian courts will, to some extent, "block psychiatric evidence unless the person in question is abnormal", leaving the jury to assess the person "on a common-sense basis". His Honour rejected the evidence "with some perturbation". The Court of Criminal Appeal regarded the matter as "finely balanced".

2. The facts which might have supported the admission of Mr Sharpe's evidence and the content of the proposed evidence appear from his report. That report, dated 17 March 1987, shows that Mr Sharpe made an assessment of Mr Leslie Joseph Murphy on 11 March 1987 at Parklea Prison. The report does not reveal the time taken in making the assessment. The report states that Mr Murphy performed very poorly in reading, writing, arithmetic and comprehension, but rules out any biological or anatomical dysfunction as the cause of his poor educational performance. Although he performed poorly on the standard general intelligence test, the report states that he was not suffering from mental retardation. The report concludes:
"Leslie Murphy is functioning intellectually at
the level of a ten year old person. He shows adequate adaptive functioning and could not be considered to be mentally retarded. His poor educational performance would seem to be almost entirely due to a disturbed childhood and inadequate educational opportunities and not due to any biological or anatomical reasons. Leslie Murphy shows severe impairment in most of the basic educational skills. The greatest deficits are in his reading and comprehension skills. Spelling, vocabulary, arithmetic, reading and comprehension (silent and auditory) are in the nine to ten year old range. In my opinion, Leslie Murphy would have had great difficulty in reading and fully comprehending the record of interview. It would have taken him five to ten minutes to read each page with 50% comprehension. If the record was read to him at normal speech rate, he would have had approximately 25% comprehension. His auditory comprehension is very much dependent on the speed with which things are read or spoken, whether or not he is able to follow along by reading his own copy and whether he is able to make interruptions so as to mark his own copy to 'jog' his memory at the conclusion of the reading. I strongly doubt that he could fully comprehend the medical authorisations he signed, whether he read them himself or they were read out to him. I believe that the words mentioned in the medical authorisations would not have been within his vocabulary."

3. Evidence of Leslie Murphy's poor reading and comprehension was not tendered to show the state of mind with which he did the acts charged in the indictment. This was not a case where insanity, absence of intention, involuntariness or diminished responsibility was in issue. Leslie Murphy's case was that he had not done the acts charged in the indictment. Mr Sharpe's opinion was being tendered in order to contradict the police evidence that Leslie Murphy had given the incriminating answers they alleged to the questions they said he had been asked. The relevant part of Mr Sharpe's report commenced with this paragraph:
"I have read the statement of Detective Waters
dated 19 May 1986, the statement of Detective Heskett dated 20 May 1986, and the record of interview between Detective Raue and Leslie Murphy dated 24 February 1986. I consider there are certain questions put to Leslie Murphy which may not have been fully understood by him. As well, in framing his answers, I consider he used certain words which would not have been in his vocabulary at the time and also used certain phrases and sentence structures which are uncharacteristic of him."

4. The admissibility of opinion evidence tendered by an expert depends upon the fact which is sought to be proved by the admission of the evidence. As Wigmore on Evidence (Chadbourn rev. 1979), vol 2, p 750, points out:
"The object is to be sure that the question to the
witness will be answered by a person who is fitted to answer it. His fitness, then, is a fitness to answer on that point. He may be fitted to answer about countless other matters, but that does not justify accepting his views on the matter in hand. ... Since experiential capacity is always relative to the matter in hand, the witness may, from question to question, enter or leave the class of persons fitted to answer, and the distinction depends on the kind of subject primarily, not on the kind of person." There was no doubt about Mr Sharpe's expertise as a psychologist but the question was whether he should be permitted to express an opinion as to Leslie Murphy's ability to understand the particular questions allegedly asked of him by the police and as to the likelihood of his using the words or phrases attributed to him in reply. In his unsworn statement Leslie Murphy, not very coherently, denied making the material statements attributed to him by the police.

5. It does not appear from the report that Mr Sharpe enquired about Leslie Murphy's understanding of the questions which the police alleged they had asked him or about Leslie Murphy's familiarity with the actual words and phrases which Mr Sharpe described as "uncharacteristic" of him. It appears that Mr Sharpe assessed education, intellectual functioning, comprehension and other aspects of the applicant's psychological state and from that assessment concluded that "(t)here (were) certain words and phrases in the statements and the record of interview that Leslie Murphy would have had difficulty understanding and which would have impeded his full comprehension of a particular question." If one poses the question: "Did Mr Sharpe have the expertise which was necessary to the formation of an opinion as to Leslie Murphy's understanding of particular questions or as to his use of particular words or phrases?" Mr Sharpe's report does not reveal any expertise which would lead to an affirmative answer. Mr Sharpe's report was supplemented by a statement of his qualifications which was handed to Maxwell J. but there is nothing in the appeal book or in the argument before us to indicate that the statement of qualifications bore upon Mr Sharpe's possession of the expertise relevant in this case. Unless it were shown that the general expertise of a well-qualified psychologist enables him to say whether a subject understands particular words and phrases or enables him to assert the unlikelihood of the subject's use of particular words and phrases, the opinion evidence which the defence sought to adduce from Mr Sharpe was inadmissible. That link in the chain of admissibility was missing. The onus of establishing that Mr Sharpe possessed the relevant expertise rested on the defence: Wigmore, vol 2, p 756.

6. The present case must be distinguished from Lowery v. The Queen (1974) AC 85 where a psychologist was permitted to give evidence as to the personality of two accused each of whom sought to cast on the other sole responsibility for a murder with which they were jointly charged. The respective personalities of the two accused in that case were relevant to the issue of sole responsibility and a description of their personalities was held to be within the psychologist's field of expertise. Lowery was distinguished in Reg. v. Turner (1975) QB 834 where the Court of Appeal, pointing out that what is relevant and admissible depends on the issues in each case, said (at p 842):
"We adjudge Lowery v. The Queen to have been
decided on its special facts. We do not consider that it is an authority for the proposition that in all cases psychologists and psychiatrists can be called to prove the probability of the accused's veracity. If any such rule was applied in our courts, trial by psychiatrists would be likely to take the place of trial by jury and magistrates. We do not find that prospect attractive and the law does not at present provide for it."

7. It may be that psychologists, after close inquiry of a subject, are equipped to express an expert opinion on the likelihood of the subject's understanding particular questions and using particular words or phrases. If that is the fact, it did not appear in Mr Sharpe's report. A court should not assume the existence of expertise to give an opinion as to the unlikelihood of conversations which have been deposed to by another witness unless the necessary foundation is laid to establish expertise relating precisely to that issue. It may be going too far to say that no psychological evidence could ever be admissible on this topic (cf. Reg. v. Ashcroft (1965) Qd R 81, at p 85; Reg. v. O'Callaghan (1976) VR 441) but the field of relevant expertise must be clearly and closely defined. Here the relevant question was not the general question whether a psychologist's evidence is admissible to prove the state of mind of a "normal" accused but the more particular question whether Mr Sharpe possessed the expertise needed to express an opinion about Leslie Murphy's understanding of particular questions and the likelihood of his using particular words or phrases. Having regard to the contents of the report - there being no other relevant material - I am unable to conclude that the ruling by Maxwell J. was wrong.

8. Taking the approach which he did, Maxwell J. did not direct his attention to Mr Sharpe's qualifications to express an opinion on the particular question which his evidence was to be tendered to prove. Had he decided that Mr Sharpe did not possess the relevant expertise, his decision would not have been readily reviewed: see Clark v. Ryan (1960) 103 CLR 486, at p 503. But Maxwell J. did not identify the particular expertise which was relevant to the admission of Mr Sharpe's opinion evidence. The admissibility of that evidence now falls to be decided on the written report. Since there is no general rule that psychological opinion evidence is admissible in cases where the issue is whether a confessional statement was in fact made and as it does not appear that the foundation to establish the relevant expertise was laid in this case, I would not allow the appeal on the ground of wrongful rejection of evidence.

9. I would add some observations relating to the effect of media publicity on the fairness of a criminal trial. There is a legitimate public interest in knowing of the solving of serious crime as well as a legitimate public interest in having the trial of alleged criminals conducted free from prejudice. There may be a tension between the two interests of the public which has to be resolved: see per Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242, at p 249; Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, esp. at pp 59-60, 76-77, 95-97, 98-99, 133-135, 166-168. This is not the occasion to discuss contempt of court but it should be remembered that one of the purposes of the law of contempt is to prevent the publication of information which tends to prejudice the fair trial of criminal proceedings. Among the categories of publications which may have that tendency, even if they do relate to the solving of serious crime, are publications which vilify an accused by reference to past criminality or association with persons of doubtful repute and publications of evidence which is to be tendered against an accused over and above the "bare facts": see Packer v. Peacock (1912) 13 CLR 577, at p 588.

10. In this case we are not concerned with contempt of court but with a related question: how can a trial judge avoid damage to the fairness of a trial in a sensational case when one of the accused is vilified by publicity alleging that he is a prison escapee. The jury having been discharged on one occasion, can the trial proceed after republication of the information in reports of the discharge? The avoidance of delay in a trial as well as bias for or against an accused are both aspects of a fair trial. Sometimes those aspects are in competition. When they are, the trial judge must form a prudential judgment in determining how fairness can best be achieved. In reaching his decision the trial judge is entitled to consider whether any bias for or against an accused can be mollified if not abated by appropriate directions and whether a procedure of questioning jurors on a challenge for cause is an appropriate safeguard against the empanelling of biased jurors. The latter procedure has more attraction in theory than in practice. In theory, one might think that bias can be detected by questioning jurors and disqualifying those who admit bias. In practice, the efficacy of the procedure in detecting bias is doubtful. If the procedure is adopted, it may lead the jurors to think that the community's confidence in their impartiality and sense of responsibility is heavily qualified. A juror who would not voluntarily seek to be excused because of bias would not readily confess that bias under questioning if he were challenged for cause. Though the procedure is available, the practice of Australian courts has been against its adoption. In the Australian community of today, I think that approach is generally right.

11. The decision of a trial judge as to the best means of securing a fair trial in the face of prejudicial pre-trial publicity will be always difficult and often finely balanced. It is, of course, a judgment subject to review on appeal but the opinion of the trial judge, who can appreciate most acutely the atmosphere of the trial, is entitled to the greatest weight. In this case, one cannot criticize the decision taken by Maxwell J. in difficult circumstances. I would grant special leave to appeal but dismiss the appeals except in the case of Michael James Murdoch. In his case I agree with the order proposed by Mason C.J. and Toohey J.

DEANE J. I agree with the orders proposed by the Chief Justice and Toohey J. Subject to what is said hereunder, I am in general agreement with their Honours' reasons for those orders.

2. The applicants' attack upon the learned trial judge's refusal to adjourn the trial by reason of the likelihood of prejudice caused by the media publication of the information that Michael Patrick Murphy was "a prison escapee" cannot, in my view, be diverted by the riposte that Michael Patrick Murphy is not an applicant for special leave to appeal. The publication of that information in a Sydney afternoon newspaper and on two radio stations took place some days before the jury which convicted the applicants was empanelled. Three of the five accused bore the surname "Murphy"; two of the five accused were called "Michael". It appears to me to be highly unlikely that any member or members of the jury who had read or heard (or been told of) the particular piece of information would, by the time he or she became a juror, remember the precise identity of the particular accused who was said to be a prison escapee. It would be far more likely that such a juror would remember merely that one of the accused or, at the very most, one of the Murphy brothers, was a prison escapee at the time of the alleged offences. That being so, this ground of appeal must be approached on the basis that there was a real likelihood that any prejudicial effect resulting from the media publication of the particular information would have been shared by all accused. Indeed, the unfairness of any such prejudice would, if anything, be greater in the case of the applicants who were not prison escapees than in the case of Michael Patrick Murphy who was. In that regard, it is not suggested that any of the applicants was in a position where he could, as a practical matter, avoid the risk of such prejudice by leading positive evidence to establish good character. Nor, in circumstances where evidence of bad character was inadmissible against Michael Patrick Murphy, could the learned trial judge remove the risk of unfair prejudice to the applicants by expressly informing the jury that none of them was a prison escapee. The practical effect of such a selective clearance would be to ensure direct prejudice to Michael Patrick Murphy and, arguably, a degree of prejudice to the other accused by reason of their obvious relationship or association with him.

3. In these circumstances, the question whether the trial should be adjourned for some further period, which confronted the learned trial judge, was not without difficulty. There were considerations militating for and against such an adjournment. The likely prejudice which would result from knowledge that one of the accused was a prison escapee would obviously be extremely difficult to dispel even by strongly worded directions. Against that were all the ordinary disadvantages of a lengthy adjournment of a criminal trial. Perhaps most important, the brutality and consequent notoriety throughout New South Wales of the abduction, rape and killing of Mrs Cobby meant that it was impossible to be confident that one or more members of any future jury would not have acquired and retained either the information that one of the accused was a prison escapee at the time the crimes were committed or some other comparably prejudicial piece of inadmissible information about one or more of the accused. In all the circumstances, the decision to refuse the adjournment was plainly open to the learned trial judge in the exercise of what was a discretionary judgment. It has not been suggested that the vigorous directions which his Honour gave in a sustained endeavour to overcome the risk of prejudice through extraneous information were other than appropriate to the circumstances.

4. The other question to which I would direct some detailed comment is the admissibility of the evidence of Mr Sharpe. There was no dispute about Mr Sharpe's qualifications as an expert psychologist. The basis upon which his evidence was rejected in its entirety was that the matter to which it would have been directed was not susceptible of expert testimony.

5. The essence of Mr Sharpe's evidence would presumably have been that, after interviewing and testing the applicant Leslie Murphy, he had formed the opinion that Leslie Murphy "is functioning intellectually at the level of a ten year old person" and "shows severe impairment in most of the basic educational skills. ... Spelling, vocabulary, arithmetic, reading and comprehension (silent and auditory) are in the nine to ten year old range." Those were matters which were, in my view, properly the subject of expert evidence of a qualified psychologist if Leslie Murphy's extraordinarily low levels of intellectual function, silent and auditory comprehension and linguistic ability were themselves relevant to a question to be decided by the jury. Indeed, no one but an expert could properly give evidence grading Leslie Murphy's level of intellectual functioning and silent and auditory comprehension by reference to average general levels of other members of the community. Certainly, the ordinary juror would lack the specialised knowledge and experience, the expertise in administering relevant tests and the opportunity of appropriate direct examination, necessary for the making of a reliable comparative (i.e. as against the norm) assessment of Leslie Murphy's levels of intellectual functioning and silent and auditory comprehension.

6. The question of the reliability of Leslie Murphy's allegedly voluntary confessional statements was one of the main issues upon the trial of the charge of murder against him. Mr Sharpe's expert evidence was not only relevant on that question. It may have been of great assistance to the jury in determining it. As Dixon C.J., McTiernan, Taylor, Windeyer and Owen JJ. commented in Jackson v. The Queen (1962) 108 CLR 591, at p 596:
"... where a question arises as to the weight to be
given by the tribunal of fact to a confession of guilt, no authority is needed for the proposition that all the circumstances surrounding the making of it which tend to show either that it can safely be relied upon or that it would be unwise to do so are admissible. It would for example be clearly permissible to show that, at the time a person confessed to the commission of a crime, he was drunk or insane or had made it as the result of fear or under some other form of pressure and to base upon that evidence an argument that the confession had little or no probative value." In short, Mr Sharpe's testimony would have been relevant expert evidence given by a qualified expert upon a subject which was properly susceptible of expert evidence and upon which such expert evidence could well have been of considerable assistance to the jury. To the extent that his evidence would have tended to establish the abnormally low levels of Leslie Murphy's intellectual functioning, linguistic ability and silent and auditory comprehension, it was admissible. Mr Sharpe's conclusions that, on his expert assessment of Leslie Murphy's relevant capacities, it "would have taken him five to ten minutes to read each page (of the written record of interview) with 50% comprehension" and that "(i)f the record was read to him at normal speech rate, he would have had approximately 25% comprehension" were likewise admissible as relevant expert testimony on a subject which was susceptible of expert testimony and on which such testimony might have been of assistance to the jury. In my view, it is simply not to the point to say that references to the intellectual level "of a ten year old" child and to reading and comprehension "in the nine to ten year old range" are unhelpfully imprecise. Plainly enough, Mr Sharpe was referring to the average child of nine or ten. No doubt, he could, if objection had been taken to the form of his evidence, have expressed in more concrete terms exactly what he meant by those references. Nor is it an acceptable answer to assert that expert evidence is not admissible on the very question which a jury is required to decide. Such an assertion is plainly unacceptable as a general rule of the law of evidence. It would, for example, preclude expert opinion that a bullet admittedly fired by an accused was the cause of death in a case where the only defence to a charge of murder was that death had resulted from some other cause. In any event, the relevant question for the jury in the present case was the reliability of Leslie Murphy's allegedly voluntary confessional statements. The critical evidence of Mr Sharpe would, upon analysis, have done no more than establish circumstances which the jury was entitled to take into account in their consideration of that question.

7. In the course of rejecting Mr Sharpe's evidence the learned trial judge expressed the view that such psychological evidence should be rejected in this country in "those situations where there is no evidence of abnormality". While, as His Honour pointed out, there is some support in authority for that proposition, there is none binding this Court and I do not accept it as a general principle of law. It appears to me that expert psychological evidence of identified and significant difficulty in intellectual functioning or in comprehension and expression could well be admissible on the question of the reliability of a confessional statement notwithstanding that the identified difficulty did not take the case out of the lower range of what would be classified as normal. It is, however, unnecessary to pursue the question since I am firmly of the view that, in the context of the present case, relevant evidence that an adult accused is functioning intellectually at the level of a ten year old child, that his comprehension (silent and auditory) and linguistic ability is in the nine to ten year old range and that he could have only twenty-five per cent comprehension of the record of interview read at normal speech rate is evidence of abnormality. In that regard, it appears to me to be irrelevant that those abnormally low levels of intellectual function, comprehension and linguistic ability were the result of environmental factors rather than innate mental defect.

DAWSON J. I, like Brennan J., am unable to agree that the applicant Leslie Joseph Murphy ought to have been allowed to call a psychologist, Mr Sharpe, as an expert witness. Otherwise I agree with the judgment of Mason C.J. and Toohey J. and with their reasons. Thus I would grant special leave to each applicant, but would dismiss the appeals in the cases of LeslieJosephMurphy and Gary Steven Murphy. In the case of MichaelJamesMurdoch I would allow the appeal, set aside the order of the Court of Criminal Appeal and remit the matter to that Court to determine the appeal in accordance with the reasons of this Court upon the issue raised under s.410 of the Crimes Act 1900 (NSW).

2. The nature of the evidence which Mr Sharpe was intended to give is to be gleaned only from a report prepared by him and handed up by counsel for the applicant. No examination of Mr Sharpe took place upon a voir dire for the purpose of assessing the admissibility of his evidence. The report, which is headed "Psychological Assessment of Leslie Joseph Murphy", reveals that Mr Sharpe is a consultant psychologist. No objection was taken to his qualifications as a psychologist. The report goes on to set out a personal history of the applicant, presumably taken from him, and to rule out any "biological or anatomical dysfunction". It relates a low score by the applicant upon a standard intelligence test, which is put down to a poor educational background and an inability to read and comprehend the questions making up the test. Mr Sharpe expresses the view that the applicant suffers no mental retardation and shows no significant impairment in adaptive function. The report goes on to set out the results of certain tests conducted by Mr Sharpe indicating a limited capacity on the part of the applicant to comprehend the spoken and written word and a similar limited capacity in expressing himself. Under a heading "Analysis of Police Statements and Record of Interview" the following statement appears:
"I have read the statement of Detective Waters
dated 19 May 1986, the statement of Detective Heskett dated 20 May 1986, and the record of interview between Detective Raue and Leslie Murphy dated 24 February 1986. I consider there are certain questions put to Leslie Murphy which may not have been fully understood by him. As well, in framing his answers, I consider he used certain words which would not have been in his vocabulary at the time and also used certain phrases and sentence structures which are uncharacteristic of him." At the end of the report appears a summary containing the following passages:

"Leslie Murphy is functioning intellectually at the level of a ten year old person. He shows adequate adaptive functioning and could not be considered to be mentally retarded. His poor educational performance would seem to be almost entirely due to a disturbed childhood and inadequate educational opportunities and not due to any biological or anatomical reasons. Leslie Murphy shows severe impairment in most of the basic educational skills. The greatest deficits are in his reading and comprehension skills. Spelling, vocabulary, arithmetic, reading and comprehension (silent and auditory) are in the nine to ten year old range. In my opinion, Leslie Murphy would have had great difficulty in reading and fully comprehending the record of interview. It would have taken him five to ten minutes to read each page with 50% comprehension. If the record was read to him at normal speech rate, he would have had approximately 25% comprehension."

3. Some of the opinions expressed in the report would appear to extend beyond the expertise of Mr Sharpe. In particular, there is nothing to indicate that his qualifications as a psychologist would equip him to express an expert opinion whether the use in the record of interview of phrases and sentence structures was uncharacteristic of the applicant. Cf. Reg. v. Tilley (1985) VR 505. But it may be assumed that had Mr Sharpe been called as a witness, his evidence would not have been led in the manner in which his views are set out in the report. The essential nature of the evidence which Mr Sharpe was proffering as an expert is clear enough, namely, an opinion that the applicant was a man with a limited capacity to comprehend the oral and written word and a limited capacity to express himself.

4. The purpose for which the applicant sought to tender this opinion was to found an argument that little or no weight should be given to admissions alleged to have been made by him, particularly those contained in the record of interview. Clearly the capacity of the applicant to understand what was asked of him and to express himself in the manner alleged were relevant upon that issue (see Jackson v. The Queen (1962) 108 CLR 591, at p 596), but expert opinion evidence may be inadmissible notwithstanding that it is relevant.

5. Professor Thayer, writing in 1898, made the following observation with characteristic perspicacity:
"... any rule excluding opinion evidence is limited
to cases where, in the judgment of the court, it will not be helpful to the jury. Whether accepted in terms or not, this view largely governs the administration of the rule (that opinion evidence is not generally receivable). It is obvious that such a principle must allow a very great range of permissible difference in judgment; and that conclusions of that character ought not, usually, to be regarded as subject to review by higher courts. Unluckily the matter is often treated by the courts with much too heavy a hand; and the quantity of decisions on the subject is most unreasonably swollen." (A Preliminary Treatise on Evidence at the Common Law, (1898), at p 525)

6. The swell of cases has hardly reduced in the intervening years and the heavy hand of the courts (and, even more, of academic commentators) can be seen in the apparently irresistible tendency to lay down rules and then to criticize them as being inappropriate where there is in truth but a single principle. One such rule is that which says that expert evidence is not admissible to prove the behavioural characteristics of normal people. Normal behaviour, it is said, is within the range of experience of the ordinary human being and hence the ordinary juror. See Chard (1971) 56 Cr App R 268, at p 271; Reg. v. O'Callaghan (1976) VR 441, at p 444.

7. While the difference between normal and abnormal behaviour, where it is apparent, may offer considerable guidance, the true principle does not rest upon the drawing of a line which must often be difficult, if not impossible. The principle is simply that evidence which is put forward to tell the jury something that is within their own knowledge or experience is not helpful and not admissible for that reason. As Lawton LJ. put it in Reg. v. Turner (1975) QB 834, at p 841:
"An expert's opinion is admissible to furnish the
court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. ... Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life."

8. But the distinction between helpful and unhelpful expert evidence cannot of its nature be very precise. In the present case the matter cannot be taken much further than to say that opinion evidence concerning the applicant's behavioural characteristics was not admissible unless the significance of those characteristics could not be understood without the aid of that evidence: see Schultz (1981) 5 A Crim R 234, per Burt C.J. at p.237. Although the modern attitude towards expert evidence is, perhaps, less exclusionary than in the past, it is nevertheless still important to recognize the dangers of wrongly admitting it. The admission of such evidence carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give to it an authority which is not warranted. In addition the calling of unnecessary expert evidence tends to prolong a trial, particularly when it provokes the calling of further expert evidence in reply. Moreover there is then a risk that the focus of the trial will shift from the evidence of the facts in dispute to the conflict between the competing theories of the various expert witnesses.

9. In this case, so far as can be judged from his report, Mr Sharpe could go no further, having regard to his qualifications as a psychologist, than to express in substance the opinion that the applicant was poorly educated and of limited intellectual capacity. Those were relevant matters for the jury when assessing the weight to be given to the admissions which the applicant was alleged to have made and evidence was admissible to prove them. Indeed, the applicant himself in his unsworn statement made reference to his inability to read fast and his lack of understanding, although, curiously enough, he made no attempt to establish the personal history upon which Mr Sharpe based a considerable part of his report. That history would, of course, have been required to be proved had Mr Sharpe been allowed to express his opinion.

10. But expert evidence was not required to prove these matters. Expert evidence would have been admissible to prove some impairment of the applicant's capacity which was not discernible by the jury in the ordinary exercise of their function from facts proved in the normal way. Mr Sharpe's report, however, denied any such impairment. The admission in evidence of the opinion which he was able to express would have suggested to the jury that they were not sufficiently equipped by their ordinary, everyday experience adequately to assess the applicant's capabilities. The learned trial judge was justified in reaching the conclusion that Mr Sharpe's evidence would not have been helpful to the jury and in excluding it for that reason.

Orders

Order in Matter No. S2 of 1988

Application for special leave to appeal granted.

Appeal allowed in part.

Set aside the order of the Court of Criminal Appeal in so far as it dismisses the appeal to that Court against the conviction for murder. In lieu thereof order that the appeal to that Court against the conviction for murder be allowed, that that conviction be quashed and that there be a new trial.

Otherwise dismiss the appeal.
Order in Matter No. S3 of 1988

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal dismissing the appeal to that Court.

Remit the matter to the Court of Criminal Appeal to determine the appeal to that Court in accordance with the judgment of this Court.
Order in Matter No. S7 of 1988

Application for special leave to appeal granted.

Appeal dismissed.