R v Murdoch

Case [2017] QCA 239

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murdoch [2017] QCA 239

PARTIES:

R
v
MURDOCH, John George
(appellant/applicant)

FILE NO/S:

CA No 239 of 2016
DC No 13 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Toowoomba – Date of Conviction: 4 August 2016; Date of Sentence: 5 August 2016 (Horneman-Wren SC DCJ)

DELIVERED ON:

17 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2017

JUDGES:

Gotterson and Morrison JJA and Applegarth J

ORDERS:

1.   The appeal is dismissed.

2.   The application to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was charged with five counts of indecent treatment of a child under 16 – where the appellant was convicted of three counts and acquitted of two counts – where the appellant appeals against those convictions on the ground that the verdicts are unreasonable and cannot be supported by the evidence – where the appellant submits that there are a number of inconsistencies and implausible matters in the evidence – where the appellant submits that the acquittal on two counts reveals inconsistencies in the evidence – where the respondent submits that the inconsistencies were matters for the jury to consider and were insufficient to cause doubt – where this Court is required to review the entirety of the evidence – whether a review of the evidence reveals that a verdict of guilty is unreasonable or insupportable – whether it was open to the jury to convict the appellant of three counts of indecent treatment of a child under 16

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant appeals his convictions on the grounds that there were two errors in the trial judge’s summing up – where the first error is an alleged failure to give adequate hearsay directions – where the second error is an alleged failure to give the jury adequate directions about propensity reasoning – where notes produced by the complainant’s school counsellor were admitted and became Exhibit 5 – where the school counsellor had died before the trial – where the trial judge gave directions relating to Exhibit 5: the jury were told the document was hearsay, was untested and untestable and that there was a need for caution when considering the reliability of the document – where the appellant submitted that the jury should have been further directed that the evidence was untested and untestable, not given under oath, and may be unreliable – whether the directions were adequate – where a former student who attended school with the complainant gave evidence that the appellant had engaged in similar conduct with him – where the appellant submitted that this was similar fact evidence and the trial judge only gave a partial warning against impermissible propensity reasoning – where the appellant submitted that to warn against propensity…

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Details
AGLC
R v Murdoch [2017] QCA 239
Case
[2017] QCA 239
Decision Date

CaseChat Overview and Summary

In the case of R v Murdoch, the appellant was convicted of three counts of indecent treatment of a child under 16 and acquitted of two counts. The appellant appealed against the convictions on the grounds that the verdicts were unreasonable and not supported by the evidence. Additionally, the appellant argued that there were errors in the trial judge's summing up, including an alleged failure to give adequate hearsay and propensity directions. The appellant also challenged the admissibility of Exhibit 5, a report by the school counsellor who had died before the trial, arguing it should not have been admitted as it contained second-hand hearsay and was not within the scope of s 93 of the Evidence Act 1977 (Qld).

The court was required to determine whether the verdicts were unreasonable or insupportable in light of the evidence, whether the trial judge's directions on hearsay and propensity were adequate, and whether Exhibit 5 should have been admitted. The court considered the evidence, the inconsistencies in the complainant's testimony, and the trial judge's directions. The court found that the jury was properly directed and that the inconsistencies did not undermine the verdicts. The court also held that Exhibit 5 was properly admitted as it fell within the scope of s 93 of the Evidence Act.

The court concluded that the evidence was sufficient to support the jury's verdicts and that the trial judge's directions were adequate. The court found that the verdicts were not unreasonable and dismissed the appeal. The application to appeal against sentence was also refused.

Orders

Orders of the court

1. The appeal is dismissed.

2. The application to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence was complicated by two matters:(a)the appellant was in a car accident in May 1994, as a consequence of which he sustained serious head and brain injuries, and his tongue was cut and had to be sutured; and(b)documentary evidence was admitted in the form of a report by the school counsellor (J) who died prior to the trial.The complainant’s evidence The complainant was about 35 years old at the trial. He outlined the background to his being a student at the school and becoming a friend of the appellant. He would occasionally go to the appellant’s home after cricket. He said he could recall three separate occasions when something of a sexual nature occurred, though he could not recall the dates. The first was when the appellant showed him a pornographic video while he was at the house on a sleepover. He said it was explicit, male-on-female, pornography. During the video the appellant was seated on a nearby couch. He had taken down his pants and was masturbating. The complainant could see the appellant clearly but was unsure if he ejaculated.[3][3]Appeal Book (AB) 158-159. The second was one night when the appellant, who was “always big into dares”, dared the complainant to run out onto a cricket pitch and urinate or defecate on the pitch. It was between eight and nine o’clock. The complainant said he declined to do so, whereupon the appellant did it himself. He took off his clothes in sight of the complainant, then “walked out to the cricket pitch, then he came back and he told me he did a crap on the pitch”. He was naked when he walked back to the car. The complainant went out to the pitch and saw that the appellant had defecated on the pitch.[4][4]AB 159-160. The third was a night when the complainant accepted a dare from the appellant to run naked around an oval across the road from where the appellant lived. While he was doing that the appellant took photographs of him. The complainant did not know beforehand that the appellant had a camera, but became aware of it when the flash went off. As the complainant came back towards the appellant he was asked to pose with arms up or in muscular poses, and the appellant took more photographs of him. The appellant directed him as to what poses to do.[5][5]AB 160-161. After those occasions the complainant said he had the courage to tell the appellant that “enough’s enough”, and they did not see a great deal of each other except for passing in the school. At that point the appellant threatened him, saying that if the complainant told anyone “I’m going to tell everyone at school that you’re gay and … I’ll say things about your mother”.[6] Because he was young and embarrassed the complainant did not tell anyone what happened.[6]AB 161 lines 21-34. The complainant said that when the appellant was in hospital after the accident he went to see him: “Basically I was forced to go see him. I didn’t want to see him. Mum forced me to come up to the hospital and see him.”[7] He said his recollection was that it was in a Brisbane hospital, and the appellant’s parents and the complainant’s mother were there. He explained what happened:[8]“ … he sustained some significant injuries and he was kind of out of it, you know. Like, he was – like you would if you’re coming out of a coma. He quite loudly said to me that he destroyed the photographs which I sort of looked at mum and the – and his parents and, yeah. I was kind of embarrassed and shocked and didn’t know how to take that, but that’s what happened.”[7]AB 161 line 44.[8]AB 162 lines 8-12.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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