R v Murphy

[2024] NSWDC 404

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Murphy [2024] NSWDC 404

Hearing dates:

16, 19, 20, 21, 22, 23, 26, 27 August 2024

Date of orders:

06 September 2024

Decision date:

06 September 2024

Jurisdiction:

Criminal

Before:

Anderson SC DCJ

Decision:

Mr Murphy is guilty of the offence of having sexual intercourse with the complainant without her consent pursuant to s 61I of the Crimes Act 1900

Catchwords:

CRIMINAL LAW – judge alone trial – DNA evidence – circumstantial case – reasonable hypothesis consistent with innocence – expert evidence

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

Cases Cited:

Liberato v The Queen (1985) 159 CLR 507

Shepherd v The Queen [1990] 170 CLR 573

Category:

Principal judgment

Parties:

Director of Public Prosecution (NSW) (Crown)
Shannon Adrian Murphy (Accused)

Representation:

Counsel:
Mr I Todd (Crown)
Ms E Scoufis (Defendant)

Solicitors:
Director of Public Prosecution (NSW) (Crown)
Hamilton Janke (Defendant)

File Number(s):

2022/00302845

JUDGMENT

1. Sometime between 3.41am and 3.57am on 2 May 2012 the complainant in these proceedings was sexually assaulted in Civic Park, Newcastle.  The question before the Court is whether the accused is responsible for that assault. 

2. There is no doubt in my mind that the complainant in this matter was sexually assaulted. While there are aspects of her evidence which are contradicted by the evidence of other witnesses or objective evidence, I found her evidence to be highly credible when it came to the description of the attack notwithstanding that it occurred over 12 years ago.  The complainant gave her evidence in Court, not in a remote witness room, and she gave her evidence without embellishment but rather with a sense of embarrassment and shame, two feelings she should not have.

3. To maintain the privacy of the complainants in sexual assault trials, they are referred to as either complainants or, if their evidence is accepted, as victims.  By convention the accused is simply referred to as the accused.  To further protect the anonymity of the complainant and her family, I will refer to other lay witness in this matter by their initials.

Key issue

4. Unusually for a sexual assault trial, the central issue in this case is not whether a sexual assault occurred, or how it occurred, but rather whether the Crown is prosecuting the correct accused. 

5. By virtue of an application brought by the accused, opposed by the Crown, orders were made under s 132(2) of the Criminal Procedure Act1986 (NSW) (“CPA”) on 16 August 2024 for the trial to proceed as a judge alone trial. Accordingly, I am both the tribunal of fact and the tribunal of law. Section 133 of the CPA requires a judge conducting a judge alone trial to include in a judgment the principles of law to be applied and the findings of fact upon which the judge relies.

6. Section 133(2) of the CPA is not satisfied merely…