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Sean Murphy v The Queen

Sean Murphy v The Queen

Case [2020] VSCA 111 11 May 2020

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2019 0080

SEAN MURPHY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, HARGRAVE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 May 2020
DATE OF JUDGMENT:	11 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 111
JUDGMENT APPEALED FROM:	DPP v Murphy (Unreported, County Court of Victoria, Judge Tinney, 18 December 2018) (Conviction)

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CRIMINAL LAW — Appeal — Conviction — Applicant convicted of riot — Alleged assistance to and encouragement of prisoner rioters at the Metropolitan Remand Centre — Prosecution case based on inferences to be drawn from closed circuit television and photographic evidence — Whether verdict unsafe and unsatisfactory — Whether trial judge erred in directing the jury in relation to the unavailability of defence of duress — Whether verdict ‘compromised’ due to juror’s ‘bullying’ — Leave to appeal refused — Smith v Western Australia (2014) 250 CLR 473 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Keating	Lethbridges
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
HARGRAVE JA
T FORREST JA:

Introduction

Riot was a crime at common law.[1] In Anderson, McHugh JA remarked:[2]

Despite the antiquity of the offence, the precise elements of the offence of riot are not settled. But there is almost unanimous agreement that an essential element is that the rioters must have an intention mutually to assist one another against any person who opposes them.

[1]By virtue of s 195G of the Crimes Act 1958, introduced by s 8 of the Crimes Legislation Amendment (Public Order) Act 2017 (which came into effect on 13 September 2017), the offences at common law of affray, rout and riot were abolished. Riot has been replaced with the statutory offence of violent disorder, under s 195I.

[2]Anderson & Ors v Attorney-General for New South Wales (1987) 10 NSWLR 198, 209 (‘Anderson’).

And in McCormack, the Court observed:[3]

The definition of this common law misdemeanour in Halsbury's Laws of England 4th ed., vol. 11 pp. 506–7, para. 861 is: ‘A riot is a tumultuous disturbance of the peace by three or more persons assembled together with an intent mutually to assist one another by force if necessary against anyone who opposes them in the execution of a common purpose and who execute or begin to execute that purpose in a violent manner so as to alarm at least one person of reasonable firmness and courage...
‘Any person who takes part in a riot commits an indictable offence at common law, punishable by fine and imprisonment at the discretion of the court.’

[3]R v McCormack [1981] VR 104, 107 (Young CJ, Kaye and McGarvie JJ) (‘McCormack’).

On 30 June 2015, there was a large scale riot by prisoners at the Metropolitan Remand Centre (‘MRC’), a maximum security prison located near Deer Park at Ravenhall.

An indictment filed in the County Court charged three prisoners — the applicant,…

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 Sean Murphy v The Queen

Details

AGLC: Sean Murphy v The Queen [2020] VSCA 111
Case: [2020] VSCA 111
Decision Date: 11 May 2020

CaseChat Overview and Summary

Sean Murphy appeals against his conviction for riot, following events at the Metropolitan Remand Centre. The prosecution alleged that Murphy assisted and encouraged prisoner rioters, basing its case on closed-circuit television footage and photographs. Murphy challenges the safety and satisfaction of the verdict, contending that the trial judge erred in directing the jury on the inapplicability of the defence of duress and that the verdict was compromised by juror bullying. The High Court was asked to grant leave to appeal, but the application was refused.

The central issues before the court were whether the verdict was unsafe and unsatisfactory, if the trial judge had erred in directing the jury concerning the defence of duress, and if the verdict was compromised by alleged juror bullying. The court considered whether the evidence was sufficient to support the verdict and whether any errors in the trial process required the verdict to be quashed.

The court examined the evidence and found it sufficient to uphold the conviction, dismissing the argument that the verdict was unsafe and unsatisfactory. The court held that the trial judge correctly directed the jury on the defence of duress, as it was not applicable in the circumstances. Additionally, the court rejected the claim that the verdict was compromised by alleged juror bullying, finding no evidence to support this contention. The High Court's decision in Smith v Western Australia was considered in the context of whether leave to appeal should be granted, but ultimately, the application was refused.

Orders