R v Murphy and Watson

[2001] VSC 523

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1428 of 2001
No. 1429 of 2001

THE QUEEN	Plaintiff
v
JASON MARK MURPHY	Defendants
and
CLIVE CLAYTON WATSON

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JUDGE:	Flatman J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2001
DATE OF RULING:	3 September 2001
CASE MAY BE CITED AS:	R v Murphy and Watson (Ruling No. 3)
MEDIUM NEUTRAL CITATION:	[2001] VSC 523

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CRIMINAL LAW RULING – Reckless Murder

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S. Cooper with Mr P. Southey	Kay Robertson for the Office of Public Prosecutions
For the Accused Murphy	Mr D. Brustman	VLA
For the Accused Watson	Mr J. Montgomery	Slades and Parsons

HIS HONOUR:

1. Having reviewed the evidence, I believe that reckless murder is technically open, but I am more concerned about the second issue and that is whether to leave it would be likely to mislead the jury or render their task more difficult.

1. The difficulty I have had is that the fundamental issue in this case, it seems to me, is whether the accused men intended to kill the deceased, and the basis for the defences in the record of interview is that their intention was to scare the deceased into leaving his fiancee so that the accused man, Murphy, could re-establish his relationship with her.

1. The Crown relies heavily on the objective facts to establish the intention to kill.  Such things are: Motive, request for someone to kill the deceased, the removal of the deceased into such a remote spot, the failure to take any steps to facilitate his escape, the failure to notify anyone of his whereabouts, the removal of the number plates, the burning of the car.  All these matters represent surrounding objective facts from which intention to kill can be inferred.  And there is, of course, a fundamental issue that, although the accused claim the plan was to scare the deceased into leaving his fiancee, at no stage do either of the accused claim to warn the deceased this is being done for that purpose.  Indeed, the evidence would seem to suggest that they were at pains to conceal their identities.

1. It seems to me that, if the jury are unable to accept the intention to kill in the light of the evidence on that issue, it is most unlikely that they would find the accused did the acts knowing that it would probably result in death or really serious injury.  Lowe was a case where there was a credible version that Lowe was intent on satisfying sexual urges, and that he was indifferent to the welfare of the victim.  The essential case here is that the accused deliberately killed this man to clear the way for Murphy to resume his relationship with her.  If the defence that they only intended to scare him into leaving his fiancee is credible, the subjective belief on reckless murder, it seems to me, is equally credible.  I think to leave the secondary argument of reckless murder given that the factual issues relied on so overlap would be asking the jury to get their minds round unnecessary concepts and creative reasoning.  This is a simple case with simple issues and, in the end, I think it is in the interests of justice that the Crown does not rely on reckless murder.

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