R v Murcott; R v Johnston - [2005] WASC 30

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- MURCOTT; R v JOHNSTON [2005] WASC 30

CORAM: OWEN J

HEARD: 9 NOVEMBER 2004 (AT BROOME) & 28 FEBRUARY 2005 (AT PERTH)

DELIVERED : 28 FEBRUARY 2005

PUBLISHED : 4 MARCH 2005

FILE NO/S: INS 207 of 2003

BETWEEN: THE QUEEN
Applicant
AND
ANNETTE JOY MURCOTT
Respondent

FILE NO/S :INS 209 of 2003

BETWEEN :THE QUEEN
Applicant
AND
ROBERT EDWARD JOHNSTON
Respondent

Catchwords:

Criminal law - Admissions and confessions - Videotaping of interviews - Accused in custody - Signed, written statement challenged - Previous interviews video recorded - Dispute as to whether accused consented to interview not being recorded - State failing to satisfy burden of proof that accused consented and therefore a reasonable excuse not to use video recorder

Legislation:

Criminal Code, s 570D

Result:

Evidence of admissions ruled inadmissible

Category: A

Representation:

INS 207 of 2003

Counsel:

Applicant: Ms C Barbagallo
Respondent: Mr M I Crispe

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Max Crispe

INS 209 of 2003

Counsel:

Applicant: Ms C Barbagallo
Respondent: Mr L M Levy

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: L Levy & Associates

Case(s) referred to in judgment(s):

Kelly v The Queen (2004) 78 ALJR 538
Nicholls and Coates v The Queen [2005] HCA 1
Stapleton v The Queen (2002) 136 A Crim R 65

Case(s) also cited:

Nil

OWEN J: These reasons relate to a voire dire in which the accused man, Robert Edward Johnston, challenged the admissibility of certain confessional statements alleged to have been made by him in the course of an interview with investigating police officers on 30 May 2003.

Background

Johnston and Annette Murcott are jointly charged on indictment that on 2 March 2003 at Port Hedland they wilfully murdered Bevan Anderson. The deceased and Murcott were then in a de facto relationship. The relationship was one in which alcohol and domestic violence seems to have played a large part. Johnston was a friend or acquaintance of Murcott and Anderson. The nature of the relationship between Johnston and Murcott is in dispute but it is not relevant for present purposes.
On the afternoon and evening of 2 March 2003 Murcott and Anderson were at Johnston's home and a large amount of alcohol was consumed. Murcott and Anderson were arguing. Anderson left and it appears that Murcott feared that when she went home he would beat her. What happened as between Murcott and Johnston at Johnston's home is in dispute. The prosecution case is that Murcott asked Johnston to accompany her home and to help her to kill Anderson. Both Johnston and Murcott deny this. In video records of interview (the admissibility of which is not challenged) Johnston says he followed Murcott home and hit Johnston several times with a baseball bat and then stabbed him in the neck with a knife. Johnston says that Murcott was present at the time of the attack. In a video record of…

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 R v Murcott; R v Johnston

Details

AGLC: R v Murcott; R v Johnston [2005] WASC 30
Case: [2005] WASC 30
Decision Date: 4 MARCH 2005

CaseChat Overview and Summary

The matter of R v Murcott; R v Johnston involved two separate appeals against convictions by the accused, Murcott and Johnston. Both accused had their cases consolidated before the court. The dispute centred around the admissibility of statements made by the accused during police interviews. Specifically, the court was asked to determine whether the signed, written statements were admissible in light of the absence of video recording of the interviews. The accused argued that their admissions and confessions were inadmissible because they were not properly recorded as required by law. The case was heard by the court of criminal appeal.

The primary legal issue before the court was whether the state had satisfied its burden of proof that the accused had consented to the police interviews not being recorded. The court needed to determine whether the police had a reasonable excuse for not using a video recorder during the interviews. The accused claimed that without video evidence, their signed statements could not be considered reliable and therefore should be excluded from the trial. The court was tasked with evaluating the circumstances under which the accused made their statements and whether the absence of a video recording violated any legal principles concerning the admissibility of confessions.

The court examined the evidence provided by both parties and concluded that the state had not met its burden of proof. The court found that the evidence did not sufficiently demonstrate that the accused had given their informed consent to the interviews not being recorded. As such, the absence of video recording was deemed to be a breach of legal requirements. Consequently, the court ruled that the signed statements were inadmissible. The court held that the state's failure to provide a reasonable excuse for not using a video recorder meant that the statements could not be relied upon as evidence against the accused. The convictions were quashed, and the cases were remitted for a new trial.

Orders