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Murrell v The Queen

Murrell v The Queen

Case [2014] VSCA 334 18 December 2014

Appeal

Aggravated & Exemplary Damages

Admissibility of Evidence

Jury Directions Act 2013

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0059

ANOIR KAMAL MURRELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 October 2014
DATE OF JUDGMENT:	18 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 334
JUDGMENT APPEALED FROM:	DPP v Murrell (Unreported, County Court of Victoria, Judge Maidment, Conviction 5 December 2013, Sentence 14 March 2014)

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CRIMINAL LAW – Appeal – Conviction – Aggravated burglary and armed robbery – Possession of firearms and implements said to have been used in crime – Whether evidence of possession of items admissible – Similarity of items to description given by victims – Whether investigators obliged to show items to victims before trial – Whether prosecutor obliged to ask witnesses at trial whether items were similar – Circumstantial evidence rendering it probable that items were used in crime – Whether probative value of evidence outweighed by prejudicial effect – Whether need of direction as to applicant’s participation in incriminating conversation – Whether verdicts unsafe and unsatisfactory – Leave refused.

CRIMINAL LAW – Appeal – Judge’s summing up – Duties of trial judge – Obligation to identify all evidence whether direct or circumstantial relevant to the issues – Jury Directions Act 2013 ss 17, 18.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC	Patrick Dwyer
For the Crown	Mr R A Elston QC with Ms A Hassan	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I agree with Redlich JA.

REDLICH JA:

The trial of the applicant, Anoir Murrell, on a joint indictment with Lloyd Murrell and Kerry Murrell on one charge of aggravated burglary and four charges of armed robbery, commenced in the County Court on 25 November 2013. The charges all arose out of the same incident, in which four members of the Frangos family were the subject of a home invasion and were robbed. A discrete charge of armed robbery was laid in respect of each victim.

Prior to the empanelment of the jury, a fresh indictment was filed and Lloyd Murrell and Kerry Murrell pleaded guilty to one charge of armed robbery. The applicant was arraigned the following day and pleaded not guilty to the charges on the earlier indictment. Following a trial the applicant was convicted and sentenced to six years and six months’ imprisonment. He now seeks leave to appeal against his conviction.

At the outset of the hearing of the application, the applicant abandoned two grounds and sought leave to rely upon an additional ground of appeal. During the course of the oral argument, the applicant sought and was granted leave to reinstate one of the abandoned grounds, being ground 3. Thus the following three grounds were ultimately relied upon:

1.The verdicts of the jury were unsafe and unsatisfactory, as the guilt of the applicant was not the only reasonable inference that could be drawn from the circumstantial evidence against the applicant.
3.The learned trial judge erred in declining…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murrell v The Queen

Details

AGLC: Murrell v The Queen [2014] VSCA 334
Case: [2014] VSCA 334
Decision Date: 18 December 2014

CaseChat Overview and Summary

In the matter of Murrell v The Queen, the appellant appealed against his conviction for aggravated burglary and armed robbery. The appeal was heard by the court, which was required to determine several legal issues pertaining to the admissibility of evidence, the obligation of investigators to show items to victims before trial, the prosecutor's duty to ask witnesses about the similarity of items during trial, and the probative value of circumstantial evidence. Additionally, the court considered whether the trial judge's summing up adequately covered the evidence relevant to the issues, in accordance with the Jury Directions Act 2013 sections 17 and 18.

The court examined the admissibility of evidence relating to the possession of firearms and implements allegedly used in the crime. It assessed the similarity of the items to descriptions provided by victims, and the necessity for investigators to show the items to victims before trial. The court also evaluated whether the prosecutor was required to ask witnesses at trial if the items were similar to those described by victims. Furthermore, the court considered the probative value of circumstantial evidence that rendered it probable that the items were used in the crime, and whether this value was outweighed by any prejudicial effect. The court also addressed the issue of whether a direction was needed concerning the applicant's participation in an incriminating conversation and whether the verdicts were unsafe and unsatisfactory.

The court held that the evidence of possession of the firearms and implements was admissible, as the similarity of the items to descriptions given by victims and the circumstantial evidence rendered it probable that they were used in the crime. The court found that there was no obligation on investigators to show the items to victims before trial or for the prosecutor to ask witnesses about the similarity of items during trial. The probative value of the circumstantial evidence was not outweighed by any prejudicial effect. The court further determined that no direction was needed regarding the applicant's participation in an incriminating conversation and that the verdicts were safe and satisfactory.

The court refused the appellant leave to appeal, upholding the conviction for aggravated burglary and armed robbery.

Orders