Police v Murphy - [2011] QMC 23

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Murphy [2011] QMC 23

PARTIES:

POLICE
(prosecution)

v

MEGAN JANE MURPHY

(applicant/defendant)

FILE NO/S:

MAG- 46297/11(3)

DIVISION:

Magistrates Courts

PROCEEDING:

Application to cross examine witness in committal proceeding

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

21 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2011

MAGISTRATE:

Judge Butler SC, Chief Magistrate

ORDER:

    1.      The application to cross-examine the witness Smith is refused

    2.      The application to cross-examine the witness Thiry is allowed

    3.      I direct pursuant to the provisions of s 83A(5AA) of the Justices Act 1886 that the prosecution call STEPHEN JOHN THIRY to be made available for cross-examination on his written statement on the following issues:

(a.)       the qualification of the witness as an expert

(b.)       the extent to which the witness is able and willing to proffer opinions about the content of the recorded conversations

(c.)       the basis of each relevant opinion provided by the witness.

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons - expert opinion evidence of coded drug references

Justices Act 1886 (Qld), s83A(5AA), s 110B

COUNSEL:

T O’Gorman (sol) for the applicant

D Orr (legal officer) for the respondent

SOLICITORS:

Robertson O’Gorman Solicitors for the applicant

Director of Public Prosecutions (Qld) for the respondent

This is an application under s 83A(5AA) of the Justices Act 1886 (the Act) for a direction that prosecution witnesses be required to attend to be cross-examined upon committal proceedings.

This application is preliminary to committal proceedings against the applicant Megan Jane Murphy on eight drug related charges.

The most serious charge is one of trafficking. That charge reads:

“That between the 5^th day of July 2010 and the 16^th day of March 2011 at Norman Park in the State of Queensland one Megan Jane Murphy carried on the business of unlawfully trafficking in the dangerous drug namely heroin.”

The remaining charges can be conveniently summarised as follows:

· 16 March 2011 Possession of heroin

· 16 March 2011 Possession of cannabis

· 19 October 2010 possession of a steroid

· 16 March 2011 Possession of implements

· 19 October 2010 Possess of money suspected of being proceeds of an offence

· 19 October 2010 Possession of money suspected of being proceeds of an offence

· 16 March 2011 Possession of an implement.

A document described as “phone particulars/statement of facts” was tendered by the solicitor for the applicant. I was advised it recorded information supplied to the defence by the prosecutor, Ms Orr in a telephone conversation on 9 September 2011. Ms Orr did not dispute the contents of the document but indicated that it was not intended to be binding on the prosecution in this future.

The document sets out 12 items:

1. Murphy and Castillo were in a de-facto relationship and shared a residence.

2. In October 2010 a Search Warrant was executed at an address at Kedron and as a result $1OK was found…

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 Police v Murphy

Details

AGLC: Police v Murphy [2011] QMC 23
Case: [2011] QMC 23
Decision Date: 21 September 2011

CaseChat Overview and Summary

The case of Police v Murphy involved the defendant seeking permission to cross-examine certain witnesses in a committal proceeding. The witnesses in question were Smith and Thiry. Smith was identified as a police officer who had not been involved in the investigation but was required to give evidence about the coded drug references in the conversations of the defendant. Thiry, on the other hand, was the police officer who had actually recorded the conversations in question. The central issue in this case was whether the defendant had substantial reasons to cross-examine these witnesses, particularly in light of the expert opinion evidence related to the coded drug references.

The legal issues before the court included determining the criteria for granting permission to cross-examine witnesses in committal proceedings and evaluating the sufficiency of the reasons provided by the defendant. The court had to consider whether the defendant's need to cross-examine Smith and Thiry was justified and whether such cross-examination would significantly assist in the defence of the case. Furthermore, the court needed to assess the relevance and admissibility of the expert opinion evidence concerning the coded drug references.

The court ruled that there were no substantial reasons to permit cross-examination of Smith, as the officer was not involved in the investigation and his role was limited to providing evidence about the coded drug references. However, the court allowed the cross-examination of Thiry, the police officer who recorded the conversations, on specific issues. The court found that the defendant's need to cross-examine Thiry was justified to address the qualifications of Thiry as an expert, the extent of his ability and willingness to provide opinions on the content of the recorded conversations, and the basis of each relevant opinion. The court further directed that Thiry be made available for cross-examination based on his written statement.

The court's final orders were that the application to cross-examine Smith was refused, while the application to cross-examine Thiry was allowed. Additionally, the court directed that Thiry be made available for cross-examination on the specified issues, ensuring that the defendant could adequately challenge the expert opinion evidence concerning the coded drug references.

Orders

Orders of the court

1. The application to cross-examine the witness Smith is refused

2. The application to cross-examine the witness Thiry is allowed

3. I direct pursuant to the provisions of s 83A(5AA) of the Justices Act 1886 that the prosecution call STEPHEN JOHN THIRY to be made available for cross-examination on his written statement on the following issues:

(a.) the qualification of the witness as an expert

(b.) the extent to which the witness is able and willing to proffer opinions about the content of the recorded conversations

(c.) the basis of each relevant opinion provided by the witness.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Police v Murphy [2011] QMC 23
PARTIES:	POLICE (prosecution) v MEGAN JANE MURPHY (applicant/defendant)
FILE NO/S:	MAG- 46297/11(3)
DIVISION:	Magistrates Courts
PROCEEDING:	Application to cross examine witness in committal proceeding
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	21 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	13 September 2011
MAGISTRATE:	Judge Butler SC, Chief Magistrate
ORDER:	1. The application to cross-examine the witness Smith is refused 2. The application to cross-examine the witness Thiry is allowed 3. I direct pursuant to the provisions of s 83A(5AA) of the Justices Act 1886 that the prosecution call STEPHEN JOHN THIRY to be made available for cross-examination on his written statement on the following issues: (a.) the qualification of the witness as an expert (b.) the extent to which the witness is able and willing to proffer opinions about the content of the recorded conversations (c.) the basis of each relevant opinion provided by the witness.
CATCHWORDS:	CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons - expert opinion evidence of coded drug references Justices Act 1886 (Qld), s83A(5AA), s 110B
COUNSEL:	T O’Gorman (sol) for the applicant D Orr (legal officer) for the respondent
SOLICITORS:	Robertson O’Gorman Solicitors for the applicant Director of Public Prosecutions (Qld) for the respondent