R v Murphy - [2000] NSWCCA 297

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v L J Murphy [2000] NSWCCA 297 revised - 23/08/2000

FILE NUMBER(S):
60765/99

HEARING DATE(S): 10/08/00

JUDGMENT DATE: 23/08/2000

PARTIES:
Regina
Leslie Joseph Murphy

JUDGMENT OF: Spigelman CJ Grove J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0247

LOWER COURT JUDICIAL OFFICER: Acting Judge Downs QC

COUNSEL:
R A Hulme (Crown)
D A Wetmore (App)

SOLICITORS:
S E O'Connor (Crown)
Mark Solomon & Assocs (App)

CATCHWORDS:
CRIMINAL PRACTICE & PROCEDURE
Appeal against conviction and sentence
Criminal trial without jury
Need for judge to canvas evidence, arguments, giving reasons
Errors of law s17(2) and s17(3) of Criminal Procedure Act, 1986

LEGISLATION CITED:
Crimes Act, 1900 - s61D
Criminal Procedure Act, 1986 - S16(1); s17
Evidence Act, 1995 - s128; s132; s165

DECISION:
Ref para 96

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60765/99

SPIGELMAN CJ
GROVE J
KIRBY J

Wednesday 23 August 2000
REGINA v Leslie Joseph MURPHY
JUDGMENT

SPIGELMAN CJ: I agree with Kirby J.
GROVE J: I agree with Kirby J.
KIRBY J: In 1997 Leslie Joseph Murphy was charged with two offences under s61D Crimes Act, 1900. Each charge was in the same terms:
“For that he, between 31 December 1981 and 1 April 1982, at Bondi in the State of New South Wales, did have sexual intercourse with Nicola Margaret McKay without her consent, knowing that she was not consenting, she being under the age of 16 years, namely 14 years.”
Mr Murphy, on advice, consented to being tried by a Judge alone (s16(1) Criminal Procedure Act, 1986). The trial proceeded before Acting Judge Downs QC. His Honour gave judgment on 3 September 1999. Mr Murphy was convicted on each count.
Mr Murphy was sentenced to six years penal servitude in respect of each offence, such sentences to be served concurrently. A minimum term of four years was fixed, with an additional term of two years.
Mr Murphy appeals against both convictions. He also seeks leave to appeal against sentence.
Background
Ms Nicola McKay (the complainant) was born on 30 May 1967. At an early age she ran away from home. She described herself as a “street kid”. By the time she was aged 14, she had been declared “an uncontrollable child” by the Children’s Court. An order was made committing her to the care of The Paddington Refuge. The refuge was located in Oxford Street, Paddington, in what was known as The Caretaker’s Cottage.
Ms McKay occupied much of her time at the Hoyts Cinema complex in George Street, as did many other “street kids”. Over a six month period she said that she came to know the appellant, Mr Murphy. She did not meet him. However, she became aware of his reputation, and that of several of his brothers. They were “The Murphys”. She knew their names, Daniel, Leslie and Dean. She said this: (T.11)
“Q. Yes, how did you come to know these people by name?
A. Because everybody knew them, and they were pointed out to you, to be aware of.”
Ms McKay said that she saw the appellant every day. She gave the police a description of him. Her description included the fact that he had tattoos, including a tattoo in the shape of “a teardrop under his left eye” (T.13).
The complainant could not call to mind the date of the incident. She said, however, that it occurred when she was 14. She went with a friend, Ms Karen O’Riordan, to a nightclub, The Palms. She had not visited that nightclub before, nor since. Whilst at the nightclub, she and Ms O’Riordan were approached by Mr Les Murphy (the appellant), and Dean Murphy (also known as “Dean Crockett”). Ms McKay said that she was wary of them because of their reputation. An invitation was extended to have “a smoke”, a reference to marijuana, which she understood. She therefore left the club with the appellant, Dean Murphy, and Ms O’Riordan. She thought it would be safe to do so because Ms O’Riordan knew the Murphys well.
Ms McKay said that she had not consumed alcohol, and was not affected by drugs.
Having left the club, she went with the group to a flat in Bondi. She said that the incident which gives rise to the charges occurred in that flat. She had no recollection of how she got from the nightclub to the flat. She said this: (T. 16)
“As I started to climb the stairs up the top, I turned around and noticed that Karen wasn’t there.”
Before going to the incident, I should briefly refer to the evidence of Ms Karen O’Riordan. In 1982, she also was a resident at The Caretaker’s Cottage. She was a year or two older than Ms McKay. She recalled attending The Palms nightclub with Ms McKay. They were together at the club on only one occasion. However, her account of that evening was quite different from that provided by the complainant. First, she did not know the Murphy brothers, either personally or by reputation. She did, however, meet them some time later. Secondly, Ms O’Riordan’s evidence did not suggest that she and Ms McKay were approached by the Murphy brothers that evening, and asked to go outside for “a smoke”. Thirdly, she did not leave the club with Ms McKay, or the Murphy brothers. She left with a person named Mork. Fourthly, it was her recollection of the complainant on that evening that she was “vague” and “out of it”. She explained what she meant in these words: (T.75)
“Had something to drink, or like a smoke of marijuana or something.”
Whilst dealing with Ms O’Riordan’s evidence, it is convenient to refer to another aspect. I will shortly deal with the evidence given by the complainant concerning her complaints after the incident. She asserted that one of the persons to whom she complained was Ms O’Riordan. Ms O’Riordan, indeed, recalled a complaint concerning rape. However, the incident described to her bore no relation to the incident giving rise to the charges against the appellant. Ms McKay, on Ms O’Riordan’s recollection, alleged that she had been raped by ten or twelve men at the Rocks. She did not know who the men were.
The Incident
Returning to the complainant’s evidence, she said that she entered the flat at Bondi with the appellant and Dean Murphy. There were three people inside the flat. There was Danny Murphy, whom she recognised as one of the “Murphy brothers”. There was also a man named Steve, and a woman, Bonnie, who later became Danny Murphy’s wife.
The flat was small, and sparsely furnished. Within two minutes of her arrival, Danny Murphy produced a gun. He ordered her to “to strip”. At the same time, his brother Les Murphy (the appellant) produced a knife. Ms McKay described the knife in these words: (T.20)
“It’s like a Rambo style knife that Sylvester Stallone uses …”
It had a serrated edge. She said that she was terrified. She therefore removed her clothes. She was then ordered to lie on the floor. She did so, curling up into a foetal position. The appellant pushed her legs apart, and then penetrated her vagina. They had sexual intercourse. She pleaded with him not to do so.
Being a small flat, essentially one room, the actions of the appellant took place in the presence of the others. Ms Bonnie Murphy, on the complainant’s account, encouraged the appellant, saying these words: (T.23)
“C’mon, c’mon. I can’t wait. It will be my turn soon.”
This was the evidence relied upon by the Crown in support of the first count.
A second incident then occurred. One gathers it took place shortly after. Dean Murphy lay on the floor. Daniel Murphy and the appellant then held the complainant’s arms and legs. She was placed on top of Dean. Dean thereafter engaged in anal intercourse. At the same time the appellant had vaginal intercourse. Ms McKay described Bonnie Murphy as, “just egging everyone on” (T.25).
This was the evidence relied upon by the Crown in respect to the second count.
Ms McKay then described a further act of intercourse, on this occasion with Danny Murphy. The remaining male in the flat, Steve, simulated intercourse, but did not penetrate.
After these events, the complainant at some point lost consciousness. In the early hours of the morning she woke up. She gathered her clothing, and left the flat. She made her way back to The Caretaker’s Cottage.
Complaints by Ms McKay
Ms McKay gave evidence, without objection, concerning complaints made after the incident. She did not complain straight away. She said this: (T.28)
“I was scared. I was a street kid. I didn’t think anybody would believe me.”
However, she later spoke to a number of people, including young women at the refuge. One was Ms O’Riordan, whose evidence I have already referred to. She also spoke to Ms Cathy Perish. She thought the conversation took place within two days, or two weeks of the incident. Ms Perish gave evidence that she remembered having been told by the complainant, in early 1982, that “she had been raped by the Murphys”. Ms Perish passed the information to a youth worker, Deborah Coulter.
Ms Coulter gave evidence. She recalled Ms McKay. She could not recall, however, having received a complaint of rape. She, nonetheless, remembered that there were such complaints from young women housed at the refuge. They were recorded in a log book. Evidence was given by a police officer who searched for the log book. It could not be found.
Ms McKay said that, as a consequence of Ms Coulter’s intervention, arrangements were made for her to speak to two detectives. She provided her account of the incident to these police officers but never heard from them again. Enquiries were made in 1997 in an attempt to identify the officers. They could not be identified.
Ms McKay also made a complaint to Sergeant Eager. She had dealt with Sergeant Eager in August 1991. At that time he escorted her back to The Caretaker’s Cottage. After the incident at the Bondi flat, she spoke to him again. She could not recall when, in relation to the time of the incident, that conversation took place.
Sergeant Eager remembered having spoken to the complainant on the telephone. He did not make a note of that conversation. However, he recalled Ms McKay having said that she had been raped by “the Murphy brothers” at a flat in Bondi. In her account, she referred to a gun. He made arrangements for her to come to the police station the next day. However, she failed to attend.
Sergeant Eager had an entry in his duty book for 17 March 1982. It related to Mr Leslie Murphy (the appellant). It concerned an altogether different complaint. However, Sergeant Eager was able to say, by reference to that note, that his conversation with Ms McKay took place before 17 March 1982. This, no doubt, was the basis upon which the Crown selected the dates in the indictment.
A number of witnesses gave evidence which was at odds with that of the complainant. I have referred to the evidence of Ms O’Riordan, who recalled a quite different complaint. Ms McKay said that she also told her parents six or twelve months after the incident. They simply laughed. Ms McKay ran from their presence, and has remained estranged from them.
Mr and Mrs McKay, the parents of the complainant, gave evidence. They each said that their daughter had never complained of having been raped.
The Evidence of Ms Bonnie Murphy
The complainant went to the police in March 1997. She was seen by Det Snr Const Alt. He, thereafter, became the case officer for the investigation. He located Ms Veronica Murphy, the person known to the complainant as Bonnie. She had since married Danny Murphy, and was living in Townsville.
Detective Alt went to Townsville to interview Mr and Mrs Murphy. Mr Murphy gave an interview. However, Ms Bonnie Murphy, having been cautioned, refused to do so. Mr Danny Murphy was charged with an offence arising out of the incident in the Bondi flat. He was also charged with another offence, and was taken into custody. The police later spoke to Mr Danny Murphy whilst in custody. They then sought, and were given permission by the DPP, to take what was referred to as an “induced statement” (T.99). Ms Bonnie Murphy was then reinterviewed. No caution was administered. In these circumstances she made a statement which the police understood could not be used against her (T.100).
Against this background, Ms Bonnie Murphy was called by the Crown. Ms McKay had asserted, in her evidence, that Ms Bonnie Murphy was present during the commission of the offences, and had given encouragement. There was plainly an obligation on the Court under s132 of the Evidence Act, 1995, to apprise Ms Murphy of her right to object, or make application under s128 of the Act. No reference was made by the Crown to either s132 or s128. Ms Murphy was not warned. This aspect may have some relevance to the obligations of the trial Judge when dealing with the evidence given by Ms Murphy. I will return to that issue later.
Ms Bonnie Murphy said that at one stage she lived in an upstairs flat at Bondi with her then boyfriend, Danny Murphy. She recalled the complainant. She identified her from a photograph. She remembered an occasion when Les Murphy (the appellant), Dean Murphy and another male came to the flat with the complainant. Dean and Les Murphy were in good spirits. She remembered the appellant saying the following words to the complainant: (T.120)
“And Les said to this girl that if she doesn’t sleep with Dean, his mate, Dean was going to belt him.”
She recalled that at some point the complainant was naked. She could tell from her facial expression that she was upset. Ms Bonnie Murphy’s boyfriend, Daniel, then came home. He wanted to know what was going on. The complainant was still undressed and upset.
Ms Murphy then went to bed with Daniel. The bed was in the corner of the single room flat. The light remained on. She then noticed the complainant was on the floor. The third male (whose identity she did not know) was lying on top of Ms McKay , and they were engaging in sexual intercourse. Les Murphy and Dean Murphy were nowhere to be seen. Whilst intercourse was taking place, Ms Bonnie Murphy described the complainant in these words: (T.125)
“She was still upset. She was, I think she was crying and I think she said to that guy that she wanted to go.”
In cross examination, Ms Murphy said that neither her husband, Les Murphy (the appellant), nor Dean Murphy, had sexual intercourse with the complainant. No gun was produced, nor a knife. At no stage did she encourage anyone to have sexual intercourse with the complainant.
The Case for the Accused
Mr Leslie Murphy gave evidence. He did not recognise the complainant. He denied having had intercourse with her. He said he had not been to The Palms nightclub. He never went to Daniel’s flat at Bondi with Dean Murphy. He acknowledged, however, that he did frequent the Hoyts Cinema Complex.
Mr Murphy had tattoos on his arms, legs and back. There was no reference to his having a tattoo in the shape of a tear beneath either eye.
The Notice of Appeal
The grounds of appeal were remarkably general. They were stated in these terms:
1.        The trial Judge failed to direct himself on principles of law.
2.        He failed to include in his judgment the principles of law that he applied.
3.        He failed to set out in his judgment the findings of fact except some upon which he relied to convict.
4.        He failed to include in his judgment the warnings he should have given to a jury were there a jury.
5.        He failed to consider in his judgment or at all the attacks on the evidence made in cross-examination of any of the Crown witnesses.
6.        The verdicts are unreasonable.
Written submissions were prepared by counsel for Mr Murphy. They did not identify in any precise way the errors of law about which complaint is made. However, using these submissions, and the arguments put on behalf of the appellant, it is my understanding that the appellant’s complaints against the judgment of Acting Judge Downs QC were as follows:

First, that his Honour’s judgement was inadequate, in that he was obliged to canvass the evidence, and had failed to do so.
Second, that his Honour drew inferences from the evidence of Ms Bonnie Murphy which were not open.
Third, that his Honour failed to recognise that, in certain vital respects, the complainant’s evidence was unsupported. His Honour was, accordingly, obliged to evaluate the complainant’s credibility. He failed to do so.
Fourth, that in the context of his evaluation of the evidence, his Honour was obliged to acknowledge and apply warnings relevant to his task, as required by s165 Evidence Act, 1995.
The Obligation of the Trial Judge to Give Reasons

The obligations of a Judge sitting alone in a criminal trial are defined by s17 of the Criminal Procedure Act, 1986. That section is in these terms:
“17 (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”
The predecessor of that section (which was in identical terms) was considered by the High Court (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) in Fleming v The Queen (1998) 158 ALR 379: (p 386 para 22)
“Further, in the present case, the obligation to give reasons is specified in the statute itself, namely in the mandatory terms of s33 (now s17). Such a provision is an expression of legislative concern not only for the effective exercise by the Court of Criminal Appeal of its jurisdiction conferred by ss5 and 6 of the Criminal Appeal Act. More fundamentally, s33 (now s17) evinces a concern that, in the operation of the new regime established by Pt 9 of the Criminal Procedure Act whereby trial by jury is replaced in certain circumstances by trial by judge sitting alone, justice must not only be done but also be seen to be done.” (parenthesis added)
There is, of course, a general obligation on the Court at first instance to provide reasons. The obligation was expressed by Jordan CJ in Carlson v The King (1947) 64 WN(NSW) 65 in these terms: (at 66)
“It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.”
That obligation, in the context of s17(2) of the Criminal Procedure Act, was described by the High Court in Fleming v The Queen (supra) in these terms: (p 388 para 28)
“… whilst s33(2) (now s17(2)), when specifying that which a ‘judgment’ must include, does not use the expression ‘reasons for judgment’, it should not be taken as intending that the requirements of s33(2) (now s17(2)) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.” (parenthesis added)
The Court continued: (p 388 para 30)
“The obligation imposed by s33(2) (now 17(2)) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.”
I will deal separately, below, with the statutory requirements in respect of warnings (s17(3)).

To what extent is a Judge, in satisfying these obligations, obliged to canvass the evidence? In New South Wales Medical Defence Union Limited v Crawford [No 2] (NSWCA, 30 June 1994), in the context of a civil trial, Mahoney JA said this:
“It is not necessary that a judge, in his judgment, refer to every aspect of the case or every step in the reasoning to his conclusion … nor should it be readily inferred that, because evidence is not referred to, it has been overlooked. … Such an inference is warranted only where a reference to the evidence is to be expected. Where the purpose of the judgment is to articulate conclusions rather than to detail reasoning or where, as here, the facts are complex and the judgment is necessarily long, such an inference will not ordinarily be drawn.”
In determining whether you would expect a Judge to refer to the evidence, or to an argument advanced by a party, insight is provided by an understanding of the purposes which a judgment is designed to serve. McHugh JA in Soulemezis v Dudley (Holdings) Pty Limited(1987) NSWLR 247 identified three purposes: (at 279)
“The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. … Secondly, the giving of reasons furthers judicial accountability. … Thirdly, under the common law system of adjudication, courts not only resolve disputes - they formulate rules for application in future cases. … Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.”
The High Court in Fleming v The Queen (supra) referred with approval to that analysis (para 22). In R v Maxwell (CCA, unreported, 23.12.98), the Court (Spigelman CJ, Sperling and Hidden JJ) said this: (at 46)
“The appellant had a right to expect that the arguments put on his behalf would be dealt with in such a way that he could be satisfied that they had been understood and, either accepted, or, if rejected, that the rejection was based on a clear and rational process of reasoning.”
A number of issues, therefore, arise:

First, was there an important issue, or a body of evidence, to which the trial Judge did not refer?
Secondly, if so, was the significance of that issue, or that evidence, such that you would have expected the trial Judge to have dealt with it?
Thirdly, did the trial Judge deal in substance, if not in terms, with the arguments put on behalf of the appellant?
The Judgement in Respect of Ms Bonnie Murphy

The trial lasted one week. The evidence occupied three days. Counsel addressed on the fourth day. His Honour reserved his decision, which was given on the fifth day. The judgement was brief. It ran to nine pages. It included the following statement: (at 6/7)
“Although a number of witnesses gave evidence in the Crown case and I will refer to them later, it was mainly Veronica Murphy, Danny Murphy’s wife, who satisfied me beyond reasonable doubt that the accused had had sexual intercourse twice with Nicole McKay without her consent knowing that she was not consenting.”
His Honour then set out aspects of the evidence of Ms Bonnie Murphy. He made the following comments upon her motivation: (at 7)
“In an endeavour to assist her husband and the accused she even went so far as to allege that her husband did not arrive at the premises until some considerable time after the others and so far as the accused is concerned that he left the room for some unspecified time when she said he went to the toilet.”
His Honour’s conclusion concerning Ms Murphy’s evidence was in these terms: (at 8)
“In coming to the conclusion that I should not accept parts of her evidence I have borne in mind the fact that she is and continues to be Danny’s wife and also if her evidence was to be accepted she was a person who did not mind or object to, firstly four adults coming into her bedroom at night when her husband was out, secondly, she did not comment or object to four adults remaining in her bedroom at night, thirdly, she did not object or comment upon the fact that a female stranger took off all her clothes and left them off. She did not comment or object when in her presence and in the presence of others sexual intercourse took place on the floor of her bedroom between two strangers. And I should add, after all this, while the four others remained in the room her husband joined her in bed and they went to sleep with the light on. In these circumstances it is far more likely that she condoned what went on in the room or as Miss McKay said she encouraged it.”
The evidence of Ms Murphy (if accepted) was capable of supporting the complainant’s evidence in a number of respects. First, she affirmed that she had lived with Mr Danny Murphy in an upstairs flat at Bondi. Secondly, she affirmed that the appellant and Dean Murphy came to the flat with the complainant and another man. Thirdly, Ms Murphy confirmed that the complainant was naked, and had sexual intercourse whilst at the flat. Finally, Ms Murphy corroborated the complainant’s assertion that she was distressed about being naked, and about having sexual intercourse.
However, it was not possible to transform Ms Bonnie Murphy’s evidence that the appellant did not have intercourse with the complainant, into satisfaction, based upon her evidence, that he did. Nor did her evidence provide a basis upon which the learned trial Judge could have been satisfied that the appellant had intercourse with the complainant twice, without her consent.
Before his Honour could make a finding on the question of the guilt of the accused (s17(1) Criminal Procedure Act), he had to accept the complainant’s evidence. It was the complainant who gave a description of the circumstances in which the offences took place. She alone identified the appellant, and established the two acts of penetration, to which she did not consent.
His Honour did not say, in terms, that he accepted the account of the complainant. Indeed, he made the following comment which rather suggested that he believed himself relieved of the need to determine that issue by reason of Ms Murphy’s evidence: (p 9)
“In trials of this nature more often than not because of the very nature of the offence that is alleged the Court has to weigh up the evidence of one person, the alleged victim, against that of an accused. This was not the case in this trial because as I have already indicated there were other people with the victim and the accused both before and at the time the offences were committed. This simplified my task in deciding that the accused was guilty.”
His Honour was, in my view, obliged to consider whether the account given by the complainant, implicating the appellant in the two acts of intercourse, was truthful, and reliable.
Moreover, in determining that issue, the trial Judge was obliged to state, and keep in mind, warnings which were relevant to an acceptance (or rejection) of the complainant’s evidence.
Warnings Under s165 Evidence Act
There is, as already indicated, a specific obligation imposed upon a Judge sitting alone in a criminal trial, in respect of warnings. The obligation arises from s17(3) of the Criminal Procedure Act, 1986, which I repeat:
“17(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”
In Fleming v The Queen (supra) the Court made the following comment (upon a provision in the same terms as s17(3)): (p 389 para 31)
“Section 33(3) (now s17(3)) is framed in a fashion which differs from that of s33(2) (now s17(2)) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings.” (parentheses added)
The Court added: (p 389 para 32)
“The obligation imposed by s33(3) (now s17(3)) ‘ to take the warning into account’ is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s33(2) (now s17(2)), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice.” (parenthesis added)
The obligations must not be dealt with in a perfunctory manner. The Court said this: (p 389 para 33)
“The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s33(3) (now s17(3)) that the warning be taken into account.” (parenthesis added)
Elsewhere, the Court said this: (p 390 para 37)
“No doubt consciousness of the importance of such a warning will be of second nature to many judges. However, as we have said, an animating principle which lies behind the requirements of s33 (now s17) is that criminal justice not only be done but also be seen to be done. The judgment must show expressly or by necessary implication that the warning was taken into account. If the judgment does not do so, a breach of s33(3) (now s17(3)) has occurred. It is no answer that the trial judge is an experienced judge who was well aware of the requirement of a warning and that he or she must have taken the warning into account." (parentheses added)
Were Warnings Required?
Before dealing with the complainant’s evidence, and whether warnings were appropriate in the context of that evidence, it is convenient to deal with the evidence of Ms Bonnie Murphy. Section 165(1)(d) is in these terms:
“165 (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
….
(d)evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
On the complainant’s evidence, Ms Bonnie Murphy was a principal in the second degree. She was present, and encouraged the commission of the crime. His Honour made the following observation, to which reference has already been made: (p 8)
“… it is far more likely that she condoned what went on in the room or as Miss McKay said she encouraged it.”
Ms Bonnie Murphy, therefore, was a witness whose evidence may be unreliable. I would have expected the trial Judge to have adverted to that issue, and to have considered the effect, if any, upon her evidence.
The Crown, in its submissions, made the following comment upon this aspect:
“Contrary to the usual situation with an accomplice, Ms Murphy was doing her best (albeit ineptly) not to inculpate the appellant.”
Whilst there is force in that submission, it really is the sort of observation which the Judge may have included, had he addressed that issue, as I believe he was obliged to do.
Turning to the complainant’s evidence, a number of aspects suggested the need for a warning:

First, there was an issue of identification (s165(1)(b)).
Secondly, there was an issue concerning whether the complainant was affected by drugs, or alcohol (s165(1)(c)).
Thirdly, there was an issue of delay (R v Johnston (1998) 45 NSWLR 362).
Fourthly, in respect of vital issues (non consensual intercourse with the appellant on two occasions), the prosecution case depended entirely upon the evidence of the complainant (R v Longman (1989) 168 CLR 79).

In my view, the judgment by his Honour needed to advert to each warning, and identify “reasons why, notwithstanding such warning, or as a consequence of it, a particular verdict is reached” (Fleming (supra) (para 33)). There was no express reference to any such warnings. His Honour made some references to delay, in the context of complaints, but not otherwise.
The Crown suggested, however, that his Honour’s judgment demonstrated, by necessary implication, that the appropriate principles were applied. On the Crown’s submission, the case was not one which fell within the following precept identified by Brennan J in Bromley v The Queen (1986) 161 CLR 315: (at 325)
“When the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence … are such that the jury may not have fully perceived or the jury’s attention may have been diverted from the danger, a warning should be given.”
That sort of concept may be thought to underpin the categories of evidence that may be unreliable in s165(1). The Crown asserted that this case, rather, should be characterised as falling within the concluding words of the following passage from the judgment of Brennan J in the same case: (at 325)
“If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given.”
However, the terms of his Honour’s judgment do not necessarily imply, to my mind, that his Honour took account of each of these warnings in reaching his verdict. I believe, therefore, that there was a failure to satisfy the requirements of s17(3).
Moreover, in the context of each issue, in respect of which a warning would have been appropriate, his Honour did not refer to the evidence relevant to that issue. I would have expected him to have done so, had he taken such evidence into account.
Dealing with the issue of identification, the evidence raised a number of issues. First, the appellant produced a photograph of himself with long hair. He said the photograph depicted his hair as it was in 1982. At the time of the trial he had short hair. The complainant gave a description of him, as he was in 1982, which included a reference to short hair.
Secondly, the complainant said that he had a tear-shaped tattoo under his left eye. When pressed, she said that it may have been a mole or a freckle. The appellant gave evidence that he had a number of tattoos. They were on various limbs, and his back. He made no reference to a tattoo as described by the complainant.
Thirdly, the complainant said that he was 22 years old (she being then 14), and was one of many Murphy brothers (only some of whom she knew). He, in fact, was 18 years old.
On the other hand, the complainant gave evidence that she knew the appellant well. She had seen him almost daily for a period of six months. It was open to his Honour to accept her account. However, I believe his Honour was required to acknowledge the potential for unreliability of the complainant’s account, and provide reasons why, notwithstanding that potential, he was persuaded. I would have expected his Honour, in such reasons, to have adverted to aspects of the evidence which suggested her account may be false or mistaken.
Let me then turn to the suggestion that the complainant may have been affected by drugs. There was evidence which, if accepted, may have suggested the complainant was affected by alcohol or drugs, and that her account, therefore, may be unreliable. First, although only 14 years, she had been to licensed premises on a number of occasions. Immediately before the incident, she said that she was in the bar at The Palms nightclub, when she was approached by the appellant and Dean Murphy.
Secondly, the approach by the appellant and his brother, according to the complainant, included an invitation to smoke marijuana. The complainant (and Ms O’Riordan) accepted that invitation and left the club.
Thirdly, Ms O’Riordan, who remembered being with the complainant at The Palms nightclub, gave evidence that the complainant was “vague”, and “out of it”. She assumed that she had taken alcohol or drugs, although she had not seen her do so.
Fourthly, there were odd aspects of the complainant’s account which may have been explicable on the basis of drugs or alcohol. She had no recollection of the journey from the nightclub to the flat at Bondi. One minute she was with Ms Karen O’Riordan at the foot of the stairs at Bondi, and then Ms O’Riordan was gone.
Finally, the complainant, according to Ms O’Riordan, later acknowledged to her that she was taking heroin.
The complainant, on the other hand, gave evidence that she had no alcohol and no drugs that evening. His Honour made no reference to the potential for unreliability under s165(1)(c), nor to any of the evidence on this issue. I would have expected him to have done so.
Passing to the next issue, that of delay, the Crown said this:
“Throughout the trial it must have been apparent to all concerned that both Crown and defence were labouring under the difficulties of adducing and testing evidence of events of some antiquity. If there had have been a jury it would have been patently obvious to the jurors as well. Once again to paraphrase from the judgment of Brennan J in Bromley, supra - if there was a danger, it was one that was ‘so obvious that (a) jury (would have been) fully alive to it without a warning (and so) no warning need(ed to) be given.’”
However, I do not believe it was obvious. His Honour’s assessment of the appellant’s evidence, for instance, included these observations: (at 8/9)
“The accused alleged that he had never been to the Palms nightclub yet Karen O’Riordan said she had seen him there. Furthermore, the accused told the police that he did not know Miss McKay. That is difficult to believe because Veronica Murphy said that her husband Danny appeared to know her and as the brothers kept such a close association I would have expected the accused to have known her by sight particularly when Cathy Perrish who lived at the refuge with her and was a friend of hers used to play pinball with the accused and Dean Crockett. Consequently, as I have said I do not accept the accused as a witness of truth.”
Leaving aside the logic of these observations, an issue arose as to whether, on these issues, the accused simply forgot, and therefore was unreliable, rather than untruthful. Delay was relevant in determining that issue. It is not obvious to me that his Honour recognised that this was so. There are other examples.
However, I will pass to the final aspect. His Honour needed to state, in terms, that in respect of the complainant’s evidence in certain vital respects (penetration on two occasions), her evidence was unsupported. Was it reliable? That question was never posed. His Honour never acknowledged that the complainant’s evidence may be unreliable, and needed to be scrutinised with great care (Longman v The Queen (1989) 168 CLR 79, per McHugh J at 107). He should have done so. He should, with respect, have evaluated her evidence, bearing in mind the warnings to which I have made reference.
In the course of such evaluation, I would have expected his Honour to have referred to the evidence of Ms Karen O’Riordan. In a number of respects, which have been described (supra para 13), the evidence of Ms O’Riordan was starkly at odds with that of the complainant, in relation to the events at The Palms nightclub. No reference was made to these differences.
Conclusion
I believe that there were errors of law in terms of s17(2) and s17(3) of the Criminal Procedure Act, 1986.
I, therefore, believe the appeal should be allowed. However, I do not believe that, on the whole of the evidence, I can say that it was unreasonable to believe the complainant, or that the nature and quality of the evidence at trial was such that the trial Judge ought to have had a reasonable doubt as to the guilt of the appellant.
Orders

I therefore propose the following orders:
1. The appeal should be allowed.
2.The convictions and sentence of the appellant should be quashed.
3. There should be a new trial.
**********

LAST UPDATED: 01/09/2000