R v Murch; R v Logan

Case [2014] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MURCH;  R v LOGAN

[2014] SASCFC 61

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Parker)

11 June 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL

Appeals against convictions for attempted murder - where the two appellants were jointly tried - where key evidence at trial was that of an accomplice.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - OBJECTIONS

The appellant, Murch, advanced a ground of appeal asserting he was wrongly prevented from cross-examining co-accused, Logan, about suggested collusion between Logan and accomplice - whether the trial judge erred in refusing to allow cross-examination of the co-accused.

Held:  Judge erred in refusing to allow cross-examination of co-accused - proposed questioning was relevant and admissible.

CRIMINAL LAW - EVIDENCE - CORROBORATION - WHAT CONSTITUTES CORROBORATION - GENERALLY

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - ACCOMPLICES - GENERALLY

The appellants each advanced a ground of appeal concerning the directions on corroboration of the accomplice's evidence - whether directions in relation to corroboration were in error - whether trial judge incorrectly classified items of evidence as capable of being corroborative when they were not - whether directions were confusing - whether trial judge failed to identify what evidence was available as corroboration in the case against each accused.

Held:  trial judge described items of evidence as being corroborative where they were not - trial judge failed to deal separately with corroborative evidence as it related to each appellant - the directions had the potential to leave the jury with the misleading impression that the accomplice's evidence so far as it implicated both accused was amply corroborated - defects and errors in the corroboration directions robbed the warning of its force.

EVIDENCE - FACTS EXCLUDED FROM PROOF - ON GROUNDS OF PRIVILEGE - PROFESSIONAL CONFIDENCE - LEGAL PROFESSION - WAIVER OF PRIVILEGE

The appellant, Murch, advanced a ground of appeal raising an issue of disclosure - whether trial judge erred in upholding co-accused's claim of privilege over file notes in the possession of the Director of Public Prosecutions which recorded two conversations with the co-accused's representative.

Held:  ground not made out - the circumstances in which the conversations occurred established that the documents were privileged - the prosecution's duty of disclosure does not extend to documents which are the subject of claim of legal professional privilege - no implied waiver by co-accused in giving evidence which implicated Murch.

Further grounds of appeal were advanced - whether trial judge erred in failing to leave self-defence to the jury - whether trial judge erred in his directions on onus of proof.

Held:  grounds of appeal not made out - there was no evidence on the basis of which a defence of self-defence could be left to the jury - at two points the directions on onus were technically incorrect, but these would not have diverted the jury…

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AGLC
R v Murch; R v Logan [2014] SASCFC 61
Case
[2014] SASCFC 61
Decision Date

CaseChat Overview and Summary

In *R v Murch; R v Logan*, the Court of Appeal of Victoria considered appeals against convictions for attempted murder. The two appellants, Murch and Logan, were jointly tried. The prosecution's case relied heavily on the evidence of an accomplice, Richards. Murch contended that the trial judge erred by refusing to allow him to cross-examine his co-accused, Logan, about alleged collusion between Logan and Richards. Both appellants also argued that the trial judge made errors in his directions to the jury regarding the corroboration of the accomplice's evidence.

The primary legal issues before the Court of Appeal were whether the trial judge wrongly prevented Murch from cross-examining Logan on matters relevant to potential collusion, and whether the directions given to the jury concerning the corroboration of the accomplice Richards' evidence were inadequate and confusing. The Court also considered other grounds of appeal, including issues relating to legal professional privilege and the adequacy of directions on self-defence and the onus of proof, but these were not ultimately determinative of the outcome.

The Court held that the trial judge erred in refusing to allow Murch to cross-examine Logan. The proposed questioning was deemed relevant as it had the potential to elicit material that could undermine the credibility of both Logan and Richards, and consequently weaken the prosecution's case against Murch. The Court found that the judge incorrectly classified certain items of evidence as corroborative when they were not, and that the directions on corroboration were confusing and failed to adequately address the evidence in relation to each appellant separately. This, the Court concluded, robbed the corroboration warning of its intended force.

Consequently, the Court allowed the appeals on the grounds relating to the corroboration directions and Murch's ground concerning the admissibility of cross-examination. Finding no room for the application of the proviso, the Court quashed both convictions and directed a retrial for each appellant.

Orders

Orders of the court

Held (the Court): grounds relating to corroboration directions and Murch's ground relating to admissibility made out - no room for application of the proviso - appeals allowed.

Background

Background to the litigation

For the reasons which follow we are satisfied that both appeals should be allowed, both convictions quashed and that in each case we should direct a retrial. Whether there will be another trial remains for the Director of Public Prosecutions to determine.Background The prosecution case against the appellants was one of joint enterprise. It relied heavily on Richards’ evidence. Richards gave evidence that he himself had been approached by two men asking him to kill the target for a price. Richards said that he was indebted to the two men as they had supplied him with drugs. Their offer was both to pay him and forgive his debt. He was prepared to do as asked. He said he made various preparations to perform the contract, which included going to the target’s house dressed as a Salvation Army officer and knocking on the door, both to familiarise himself with the layout and to confirm the target’s identity. Days later, on 7 February 2010, Richards embarked on the journey back to the house planning to lure the target from within by turning off the power to the house, and to kill him. The plan failed when the target emerged, armed, to confront Richards and fired shots at him. Richards fled. Richards was helped in some of the preparations made for this enterprise by one Powell, whose evidence supported that of Richards in some respects. Powell went with him to Mount Barker on 7 February. Richards said that after this fiasco he abandoned his plan to fulfil the contract, but that he had told his associate, Murch, about it and that Murch expressed ongoing interest in taking it on. Richards gave to Murch a firearm which had been provided by the two men. There was evidence that Richards’ Holden Commodore motor vehicle was used for the journey to Mount Barker on 12 March. It seems that this vehicle was customarily started by use of a screwdriver in the ignition. In February 2012 Richards was found guilty by verdict of a jury of conspiring to murder the target. By that time Richards had already given statements to police concerning his own involvement and that of the appellants in plans to kill the target. Richards was sentenced to nine years imprisonment. The sentencing judge indicated that, but for Richards’ undertaking to give evidence against Murch and Logan, the sentence would have been 16 years. The dates encompassed by that conspiracy charge and the facts found by the sentencing judge indicate that the conspiracy continued until 11 March 2010, that is, the day before the conduct giving rise to the convictions now under appeal. In his summing up the judge directed the jury that Richards was an accomplice. It is convenient to deal first with Murch’s complaint which concerns a ruling made during the trial upon an objection by Logan’s counsel to questions put to Logan by Murch’s counsel.Ground taken by Murch – refusal to allow certain cross-examination of the co-accused, Logan This ground asserts that counsel for Murch at trial, Mr Vadasz, was wrongly prevented from cross-examining the co-accused, Logan, on certain matters and that the judge erred in refusing Mr Vadasz’s application to recall Richards for further cross-examination.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Mead SC, for Logan, objected on the basis that Richards had not been cross-examined by Mr Vadasz about his earlier statements and counsel should not be allowed at this point to “cross-examine that material back in”.The judge’s decision The judge heard quite extensive submissions in support of the line of questioning proposed by Murch, and from Logan’s counsel, resisting it. Curiously, the prosecution offered no assistance on the application of the rules of evidence to the situation. The judge took time to consider his decision and then, giving reasons, upheld the objection. In essence the judge reasoned as follows. He was not persuaded that the proposed questioning was relevant. If the evidence intended to be adduced – which he described as “out of court hearsay allegations by Richards” – had any relevance, then it was outweighed by prejudice to Logan. Even if Richards were to be recalled, the questioning was likely to result in “irretrievable prejudice” to Logan, who had made his decision to give evidence on the basis of the state of the evidence “at the close of the Crown case and at the close of Mr Murch’s case”. The judge observed that “the course was set” when Murch’s counsel chose not to cross-examine Richards on his earlier statements. The judge also refused to allow further cross-examination of Richards. There can be no doubt that the judge faced a difficult decision at a late stage in this lengthy trial. Unfortunately we consider that the judge’s decision was in error. In our view the questioning had the potential to elicit relevant material undermining the credit of both Logan and Richards, and weakening the case against Murch. Whether or not Richards had been cross-examined on his earlier statements was something of a side issue because, until Logan gave evidence, the possibility of collusion was not apparent. However, judging on the transcript of argument and the ruling, it seemed to assume the status of an important factor in the decision making process. On the case theory being advanced by Mr Vadasz the coincidence of parallel changes of story by Richards and Logan allowed Logan to put forward an account which accommodated those aspects of the prosecution case which placed him in Murch’s company. At the same time Logan’s new position substantially strengthened the case against Murch by supporting Richards’ evidence. Without knowledge of Richards’ earlier position Logan’s evidence might have been considered by the jury to be plausible. However, the parallel changes of story, if known, could suggest collusion prior to trial between Richards and Logan and thereby could further call into question Logan’ credibility and also that of Richards, in turn undermining the prosecution case. There is an analogy, although imperfect, between the use Mr Vadasz sought to make of the parallel changes of story and the use made of out of court statements by joint defendants in Mawaz Khan v The Queen [1967] 1 AC 454. There the prosecution sought to use those out of court statements, which set up the same, demonstrably false, alibi, as evidence of a joint attempt to fabricate an exculpatory position. So viewed, the statements could constitute evidence against both defendants.

Ratio Decidendi

Legal Principle Established

We would allow Murch’s appeal on this ground alone.Ground taken by both appellants – adequacy of corroboration warning This ground, although differently framed by each appellant, raises a similar complaint. That is that, in delivering the necessary corroboration warning in respect of Richards’ evidence, the judge erred in classifying items of evidence as potentially corroborative when they were not, and gave directions which were confusing and inadequate. At trial there was no dispute that Richards was an accomplice and that a corroboration warning was called for. In argument upon Logan’s appeal, the Solicitor-General questioned whether this was in fact so. The terms of the charge of which Richards had been found guilty and the basis upon which he was sentenced pointed to his being participis criminis in the 12 March attempt. Richards stood to gain the forgiveness of his drug debt if the crime were completed and the jury might well have disbelieved his claim that he counselled the appellants against committing the crime. His assistance in disposing of incriminating items after the attempt was itself suggestive of earlier encouragement. We do not consider that this was a case where it was either necessary or desirable to leave the question of whether Richards was or was not an accomplice to the jury. It was appropriate to proceed on the basis that he was and that a corroboration warning was required. The judge embarked on such a warning. It was given in respect of both Richards and Powell, but for present purposes it is sufficient to refer mainly to the warning as it related to Richards. The judge explained the policy reasons underpinning such a warning and the reasons why Richards’ evidence needed to be approached with caution. He then defined corroboration as “evidence from a source independent of Mr Richards or Mr Powell which implicates the accused under your consideration in the crime charged by tending to show both the crime was committed and that the accused under your consideration committed it.” This definition is consistent with the classic statements regarding the nature of corroboration. In Doney v The Queen (1990) 171 CLR 207 at 211 the High Court was content to refer to the older English cases as follows:The essence of corroborative evidence is that it "confirms", "supports" or "strengthens" other evidence in the sense that it "renders [that] other evidence more probable": Reg v Kilbourne [1973] AC 729, per Lord Simon of Glaisdale at 758. It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it "shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused": R v Baskerville [1916] 2 KB 658, at 667.Here, there was clear evidence that the target was shot. The corroborative evidence in question was, then, evidence tending to prove that one or both appellants were criminally involved in the shooting.