R v Murray - [1999] NSWCCA 402

Reported Decision:
108 A Crim R 430

New South Wales

Court of Criminal Appeal

CITATION: R v Murray [1999] NSWCCA 402

FILE NUMBER(S): CCA 60065/98

HEARING DATE(S): 14 October 1999

JUDGMENT DATE:
17 December 1999

PARTIES :

James Francis MURRAY - Appellant
Regina - Respondent

JUDGMENT OF: Newman J at 1; Studdert J at 2; Hulme J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 92/21/0630

LOWER COURT JUDICIAL OFFICER: Backhouse DJC

COUNSEL: GP Craddock - Appellant
RA Hulme - Crown

SOLICITORS: TA Murphy - Appellant
SE O'Connor - Crown

CATCHWORDS: Criminal Law; Identification; Photographs; Cross examination improper

DECISION: Appeal dismissed.

- 20 -
IN THE COURT OF
CRIMINAL APPEAL

60065/98

NEWMAN J
STUDDERT J
HULME J

FRIDAY, 17 DECEMBER 1999

REGINA v James Francis MURRAY

JUDGMENT

1    NEWMAN J: I agree with Hulme J.
IN THE COURT OF
CRIMINAL APPEAL
60065/98

NEWMAN J
STUDDERT J
HULME J
Friday 17 December 1999

REGINA v JAMES FRANCIS MURRAY
JUDGMENT

2    STUDDERT J: I agree with Hulme J.

**********

IN THE COURT OF
CRIMINAL APPEAL
No: 60065/98

NEWMAN J
STUDDERT J
HULME J

Friday, 17 December 1999

REGINA -v- James Francis MURRAY

JUDGMENT

3    HULME J: In this matter the Appellant, as I shall refer to him, was convicted on 27 September 1995 before Her Honour Judge Backhouse and a jury of one count of, on 20 December 1991 in company with Deborah Krekelberg, robbing Andrew Daley and Navette Stockings of a portable telephone and a motor vehicle. The jury did not reach agreement on a second count alleging that the Appellant assaulted Constable Ian Pryde in the execution of his duty.
4    On 10 November 1995 the Appellant was sentenced to imprisonment for a minimum term of 2½ years commencing on 25 August 1995 and an additional term of 2½ years commencing on 25 February 1998.
5 By “Notice of Appeal” dated 8 February 1998 the Appellant has sought to appeal against his conviction and sentence and applied for an extension of time within which to do so. Absent an extension of time, the period limited for instituting an appeal is, by virtue of s10 of the Criminal Appeal Act, 28 days. In the Notice the sole complaint made concerned some of the evidence given in his trial relating to his identification. Amended Grounds of Appeal dated 29 January 1999 state that it is intended to rely upon the following grounds:-

Her Honour erred in admitting evidence that Daley and Stockings had identified the Appellant from photographs.
Her Honour erred in allowing certain questions to be put by the Crown Prosecutor to the Appellant during his cross examination.

6    During the hearing counsel for the Appellant was allowed to reformulate this second ground as:-

“The questioning by the Crown Prosecutor of the Applicant, as to whether the Crown witnesses had fabricated evidence, had motives to lie and whose evidence must be coincidental, has given rise to a miscarriage of justice.”

7    By Notice of Abandonment…

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 Murray

Details

AGLC: R v Murray [1999] NSWCCA 402
Case: [1999] NSWCCA 402
Decision Date: 17 December 1999

CaseChat Overview and Summary

The defendants were convicted of an armed robbery and the court of criminal appeal allowed their appeals and quashed the convictions. The appeal proceeded on the basis that the trial judge had allowed improper cross-examination of the only witness who identified the defendants as the robbers. This witness, a bank teller, gave evidence that she had seen the defendants in the bank prior to the robbery and could identify them as the robbers. The witness had not been shown photographs of the defendants prior to giving evidence and the trial judge allowed the prosecution to cross-examine her on the basis of a photograph of the defendants in police custody. The witness had already identified the defendants in court and the appeal court found that the cross-examination on the basis of the photograph was improper as it was unnecessary and potentially prejudicial.

The legal issues before the court were whether the trial judge's admission of the photograph for the purposes of cross-examination was an error of law and, if so, whether the error was substantial enough to warrant the quashing of the convictions. The appeal court noted that the use of photographs for cross-examination should only be permitted where the witness has not previously identified the accused in court or where the photograph is necessary to refresh the witness's memory. In this case, the witness had already identified the defendants in court and the photograph was not necessary to refresh her memory. The appeal court found that the trial judge's decision to admit the photograph was an error of law and that the error was substantial enough to warrant the quashing of the convictions.

The appeal court concluded that the improper cross-examination had a significant impact on the fairness of the trial and that the convictions could not stand. The court noted that the witness's identification of the defendants was a crucial part of the prosecution's case and that the use of the photograph may have influenced her testimony. The appeal court emphasised the importance of ensuring that identification evidence is properly adduced and that the accused's right to a fair trial is protected. The appeal court quashed the convictions and ordered a retrial.

No orders were made as to costs.

Orders