R v Murphy - [2004] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 236 of 2001

THE QUEEN
	v.
JASON MARK MURPHY

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JUDGES:	WINNEKE, P., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 December 2003
DATE OF JUDGMENT:	5 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 23

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CRIMINAL LAW – Murder – Evidence – Lies and post-offence conduct – Whether relied on as exhibiting consciousness of guilt – Motive – Inferences – Appropriate directions – Joint trial – Whether use by prosecutor of record of interview of co-accused caused miscarriage – Opening address by prosecutor – Whether discharge of jury was required.

CRIMINAL LAW – Sentence – Murder – Whether burning of body aggravated offence – 20 years for murder – Partial cumulation on other offences – Total effective sentence of 22 years with non-parole period of 16 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Ms J.A. Dixon	M M & R Solicitors

WINNEKE, P.:

I have had the advantage of reading, in draft form, the reasons for judgment of Eames, J.A. I agree, for the reasons which his Honour gives, that the applications for leave to appeal against conviction and sentence should be dismissed.

VINCENT, J.A.:

I agree that the applications for leave to appeal against conviction and sentence should be dismissed. I do so for the reasons advanced by Eames, J.A. in his judgment.

EAMES, J.A.:

On 15 September 2001 a Supreme Court jury returned verdicts of guilty against the applicant on counts of murder, aggravated burglary, false imprisonment, theft of a motor vehicle and kidnapping. The applicant had been tried jointly with Clive Clayton Watson. Watson was also found guilty on four of those counts but was found not guilty of murder and guilty of manslaughter. After orders of cumulation of two years were made the applicant’s total effective sentence was 22 years’ imprisonment with a non-parole period of 16 years. Watson was sentenced to a total effective sentence of 10 years’ imprisonment with a non-parole period of eight years. These are applications for leave to appeal against conviction and sentence.

The circumstances of the offences

The offences were alleged to have occurred on 18 July and 19 July 2000 at which time the applicant was 29 years old and his co-accused, Watson, was 33 years of age.

At the time of his death the deceased man, Christopher Jewell, was living with Ms Malyssa Mackay, who was pregnant with his child. Jewell had moved into a

house rented by Mackay approximately a month prior to his death. Mackay had previously been in a relationship with the applicant which had commenced at about April 1998. Between that time and about September 1999 the relationship had broken down on some occasions but had generally been maintained. In late 1999 Mackay moved to New South Wales but returned occasionally to Melbourne, on which occasions she would reside with the applicant at his parents’…

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 Murphy

Details

AGLC: R v Murphy [2004] VSCA 23
Case: [2004] VSCA 23
Decision Date: 5 March 2004

CaseChat Overview and Summary

The case of R v Murphy dealt with a murder trial where the accused, Murphy, was convicted and sentenced to 20 years for murder, with an additional partial cumulation on other offences resulting in a total effective sentence of 22 years and a non-parole period of 16 years. The case was heard in the higher court of appeal. The main issues involved the admissibility of evidence concerning the accused's lies and post-offence conduct, the relevance of motive, and the appropriateness of the directions given to the jury. Additionally, the court considered whether the prosecutor's use of the record of interview of a co-accused during the trial and certain aspects of the prosecutor's opening address caused a miscarriage of justice. The accused also contested the fairness of the joint trial and the severity of the sentence.

The court addressed several critical legal questions, including whether the evidence of the accused's lies and conduct after the offence could be appropriately relied on to show consciousness of guilt. It also examined the role of motive in the jury's deliberation and whether the directions given to the jury were adequate. The court considered whether the prosecutor's conduct, including the use of the co-accused's interview record, prejudiced the accused's right to a fair trial. Furthermore, the court evaluated the fairness of the joint trial and the proportionality of the sentence imposed, particularly whether the burning of the victim's body was an aggravating factor.

In its reasoning, the court found that the evidence of the accused's lies and post-offence conduct was appropriately considered by the jury as it demonstrated consciousness of guilt. The court held that the directions given to the jury were adequate, and the prosecutor's use of the co-accused's interview record did not prejudice the accused's right to a fair trial. The court also determined that the joint trial was conducted fairly and that the sentence, while severe, was not manifestly excessive given the gravity of the offence and the need for deterrence and retribution.

The appeal was dismissed, and the conviction and sentence were upheld. The court confirmed that the sentence, including the non-parole period, was not manifestly excessive and appropriately reflected the seriousness of the crime. The court found no miscarriage of justice in the trial process or the sentence imposed.

Orders