[Back to Main List] [Back to NTSC 2005 List]

The Queen v Murdoch [2005] NTSC 77

PARTIES: THE QUEEN

MURDOCH, Bradley John (No 3)

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 20215807

DELIVERED: 15 December 2005

HEARING DATES: 7-8 March, 21-22 & 26 April 2005, 18 October – 13 December 2005

JUDGMENT OF: MARTIN (BR) CJ

CATCHWORDS:

Injunction – Police Administration Act (NT) – s 145A – non-intimate procedures – taking of photographs for the purpose of further investigations – application for injunction by accused to prevent photographs being taken – application refused.

Interpretation of legislation – whether “photograph” includes taking of video images.

Police Administration Act 1974 (NT) s 145

R v Carr [1972] NSWLR 609 (p 17), R v McPhail (1988) 36 A Crim R 390 (p 17), Coco v The Queen (1994) 179 CLR 427 (p 20), Derrick v Customs and Excise Commissioners [1972] 2 QB 28 (p 49), applied.
Japaljarri v Cooke (1982) 64 FLR 314 at 318 (p 29), considered.
R v Galvin (1983) 24 NTR 22 at 27 (p 33, 34), referred to.
R v Franklin (1979) 22 SASR 101 at 107 (p 32), distinguished.

REPRESENTATION:

Counsel:
Plaintiff: R Wild QC, A Elliott, A Barnett & J Down
Defendant: I Barker QC, G Algie, M Twiggs & I Read

Solicitors:
Plaintiff: Office of the Director of Public Prosecutions
Defendant: Northern Territory Legal Aid Commission

Judgment category classification: A
Judgment ID Number: Mar0522
Number of pages: 41

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Murdoch [2005] NTSC 77
No. 20215807

BETWEEN:

THE QUEEN
Plaintiff

AND:

MURDOCH, Bradley John (No 3)
Defendant

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 15 December 2005)

Introduction

[1] The accused is charged that on 14 July 2001 near Barrow Creek he murdered Peter Marco Falconio. He is also charged that on the same occasion he deprived Joanne Rachael Lees of her personal liberty and that he unlawfully assaulted Ms Lees in circumstances of aggravation.

[2] The Crown proposed to lead evidence of images taken by a video camera at a Shell truck stop in Alice Springs for the purpose of establishing that the accused was in Alice Springs soon after the offences were committed. Through the Director of Public Prosecutions (“the Director”), police advised the accused of their intention to take a series of photographs of the accused for the purpose of expert analysis and comparison with the person depicted in the truck stop video. The accused did not consent to the taking of those photographs and sought an injunction forbidding the Commissioner of Police or any member of the Northern Territory Police from dealing with the accused by taking photographs or video film of him in the exercise of powers under the Police Administration Act (“the Act”). I refused the application and expressed the opinion that the police possess the necessary powers under the Act to…

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 Murdoch (No 1)

Details

AGLC: R v Murdoch (No 1) [2005] NTSC 077
Case: [2005] NTSC 77
Decision Date: 15 December 2005

CaseChat Overview and Summary

Bradley John Murdoch, the respondent, was charged with the murder of Peter Falconio, deprivation of personal liberty and assault of Joanne Lees. The respondent sought an injunction forbidding the police from taking photographs or video film of him. The Crown proposed to lead evidence of images taken by a video camera at a Shell truck stop in Alice Springs, for the purpose of establishing that the respondent was in Alice Springs soon after the offences were committed. The Supreme Court of the Northern Territory rejected the application for an injunction. The respondent contended that the provisions of the Police Administration Act did not empower the police to take photographs or film of him in the absence of his consent. The respondent argued that the power to take photographs is found in s 146, which empowers a member of the Police Force holding the rank of Sergeant or a higher rank, or for the time being in charge of a police station to carry out or cause to be carried out an identifying non-intimate procedure on a person in lawful custody charged with an offence. The respondent also argued that s 145A had no application because the specific power to take photographs is found in s 146. Alternatively, if s 145A applied, the power may only be exercised while the subject is in police custody and before custody results from an order of the Supreme Court. The respondent submitted that the legislation should be construed strictly against the police. The respondent submitted that the temporal restriction for which he contended should be inferred because Division 7 is concerned generally with police powers at the initial stages of investigation and custody and the period during which the subject is in custody by order of a Justice or Magistrate may properly be viewed as within such initial stages. The respondent submitted that the proposed construction relies entirely upon two inferences said to arise from the context of the relevant provisions. The first is that the powers contained in ss 145 and 145A were intended to be limited to the initial stages of investigation and custody. The second is that those initial stages cease with the laying of an indictment rather than with the passing of a particular period of time. The Court rejected the respondent's contentions and ruled that the powers of the police extended to the taking of photographs and video film without the consent of the respondent.

Orders