Michael Thrift Murray v The Queen - [2018] NZSC 15

NOTE: ORDER PROHIBITING PUBLICATION OF NAMES AND IDENTIFYING DETAILS OF THE APPLICANT'S PARTNER AND THEIR CHILD AND PROHIBITION ON THE PUBLICATION OF INFORMATION THAT MAY LEAD TO THE IDENTIFICATION OF THE LOCATION OF THE APPLICANT OR HIS PARTNER OR THEIR CHILD.

IN THE SUPREME COURT OF NEW ZEALAND

SC 123/2017
[2018] NZSC 15

BETWEEN	MICHAEL THRIFT MURRAY Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young and Glazebrook JJ
Counsel:	R M Lithgow QC and E A Hall for Applicant J C Pike QC for Respondent
Judgment:	23 February 2018

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

In August 2014, the applicant was one of a number of men involved in a street brawl. This was between, on the one hand, the applicant and some of his associates (including his brother) and, on the other, a group of people who were members of, or associated with, a gang known as the Head Hunters. In the course of these events the applicant returned to his house (which was nearby) and equipped himself with a weapon. This was referred to at trial as a sickle but would have been better described as a long-handled billhook. When the applicant returned to the fracas, one of the Head Hunters, Connor Morris, was standing over his brother who had been knocked to the ground. The applicant struck Mr Morris on the back of his head with the billhook and thereby killed him. The applicant was subsequently charged with murder. At his trial, his primary defence was that, in striking the deceased, the applicant was acting in defence of his brother and thus was entitled to an acquittal. There was also an issue as to whether he had acted with murderous intent.
The applicant was found guilty at trial of murder and his later appeal against conviction was dismissed.[1] He now seeks leave to appeal to this Court and, in support of this application, has proposed three grounds of appeal: (a) prejudice to the applicant associated with pre-trial publicity and fears of retribution; (b) whether the Judge should have left excessive defence of another to the jury as a partial defence; and (c) alleged errors in the summing up.
[1]Murray v R [2017] NZCA 467 (Harrison, Brown and Clifford JJ).
The case attracted considerable publicity; in large measure because of the identity of the deceased’s partner who was well-known to the media. As well, members of the Head Hunters were present at the trial. The Judge thus had to be alert to the possibility of prejudice to the applicant associated with: (a) public sympathy for the deceased’s partner and perhaps the deceased; and (b) the possibility of retaliation by the Head Hunters should there be an acquittal. The Judge addressed all of this both when the jury was empanelled and in his summing up and as well, he also dealt with one issue which arose during the trial. Nothing tangible has been pointed to by 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 Michael Thrift Murray v The Queen

Details

AGLC: Michael Thrift Murray v The Queen [2018] NZSC 15
Case: [2018] NZSC 15
Decision Date: 23 February 2018

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to decide if the applicant, Michael Thrift Murray, could appeal against his conviction for murder. Murray had been found guilty of killing Connor Morris, who was a member of the Head Hunters gang, by striking him on the head with a long-handled billhook during a street brawl. Murray argued that he acted in defence of his brother, and that the trial judge should have allowed the jury to consider the defence of excessive force. The Court of Appeal had already dismissed Murray’s appeal, and he sought leave to appeal to the Supreme Court. The court was required to determine whether the application for leave to appeal should be granted, considering issues such as the impact of pre-trial publicity, the judge's instructions to the jury regarding the defence of excessive force, and the summing up of the trial judge.

The Supreme Court considered the applicant’s claims that he was prejudiced by pre-trial publicity and fears of retribution, and that the trial judge should have allowed the jury to consider excessive force as a partial defence. The court found that the trial judge had adequately addressed potential prejudice, and there was no evidence to suggest that the jury was affected. Regarding the defence of excessive force, the court examined the legislative history and relevant New Zealand case law, concluding that excessive force should not be recognised as a partial defence under the Crimes Act 1961. The court also reviewed the complaints about the summing up and found them insufficient to warrant an appeal. Ultimately, the Supreme Court held that Murray’s application for leave to appeal should be dismissed, as there was no appearance of a miscarriage of justice and no question of public or general importance.

The Supreme Court dismissed Murray’s application for leave to appeal. The Court found no basis for the claim that Murray was prejudiced by pre-trial publicity or fears of retribution, and that the trial judge had properly managed the potential for bias. The court also determined that the trial judge did not err in not instructing the jury to consider excessive force as a partial defence, given the legislative context and New Zealand case law. Additionally, the complaints about the summing up were found to be insufficient to warrant an appeal. Consequently, the Supreme Court denied Murray’s application for leave to appeal against his conviction for murder.

Orders