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- When is it permissible to give a Murray direction? – Ewen v The Queen  NSWCCA 117
Updated 14 July 2015
When is it permissible to give a Murray direction?
The accused in Ewen faced trial by judge alone for an offence of having sexual intercourse without consent. On appeal, it was submitted that the trial judge should have provided himself with a direction commonly known as a Murray direction. That direction Justice Simpson explained, “tends to be loosely used, and to be undefined. As I understand it, it is most commonly used to refer to a direction that, in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care. It is in that sense that I use the term “Murray direction” in these reasons.”
A failure by the judge sitting alone to take that direction into account, if it was a direction that should have been given to a jury, is an error that would be fatal to a conviction in the case. It is in that context that the Court considered whether a Murray direction was required to be given in a trial when the charge is a prescribed sexual offence.
Justice Simpson examined in detail the history behind the giving of the Murray direction. This area of the law has been subject to a number of legislative interventions. Prior to the enactment of s 405C(2) of the Crimes Act 1900, there was an entrenched rule of practice that, in the case of alleged sexual assault by a male on a female, a direction was given to the jury that it was dangerous to convict on the uncorroborated evidence of the complainant. Section 405C(2) removed any requirement for a judge to provide a warning to the jury to the effect that it is unsafe to convict a person on the uncorroborated evidence of a complainant. It was after this enactment that the decision in R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 was given. In Murray, Justice Lee described the giving of a direction to the effect that a complainant’s evidence, when it is uncorroborated, must be scrutinised with great care before a person can be convicted, as customary in all cases of serious crime. However, Justice Simpson noted that the words of the judgment in Murray did not mandate the giving of such a direction. It was only required in some cases. However, a practice evolved so that the direction was provided in nearly all cases involving a prescribed sexual assault.
Justice Simpson examined the 6 high court decisions that referred to a Murray direction and noted, “there is no case, post s 405C, in which it has been held that the failure to give a warning (to a jury, or notionally to the trial judge) to the effect that the absence of corroboration alone calls for a direction in accordance with Murray“. In summary, what those cases did direct was that a direction was required when there were other factors, in addition to uncorroborated evidence, that may have affected the credibility or reliability of a complainant’s evidence. However, when the basis for giving the direction was only that the evidence of the complainant’s evidence was uncorroborated, Justice Simpson noted that it was “not required by any statute or principle of law”. If it was not required, then it could not be said to be an error not to provide such a direction. That would have been sufficient to reject that ground of appeal. However, as noted, there have been a number of legislative amendments in this area of the law. Section 405C has been repealed and replaced by s 294AA of the Criminal Procedure Act 1986. That section expressly prohibits a warning to the jury of the danger of convicting on the uncorroborated evidence of any complainant. Justice Simpson concluded in relation to a Murray direction that it is, “tantamount to a direction that it would be dangerous to convict on the uncorroborated evidence of the complainant.” Justice Simpson emphasised that this related to the giving of a Murray direction in a case where the complainant’s evidence is stood effectively uncorroborated; not cases where a direction may be required due to other factors relating to or affecting the credibility or reliability of the complainant’s evidence. Her Honour gave an example. In a case where it is suggested that other witnesses were present at the time of the commission of the offence but those persons were not called to give evidence, there will be real merit in drawing the jury’s attention to the fact that there is an absence of corroboration when corroborative witnesses were available to support the complainant.
Her Honour concluded that when the only issue is the uncorroborated evidence of the complainant, a Murray direction is not required to be given and is in fact prohibited by s 294AA(2) in the case of a prescribed sexual offence (see s 290 of the Criminal Procedure Act 1986).
Comment: It appears that the decision in Ewen has not yet been referred to in any other Court of Criminal Appeal case. Justice Simpson gave the lead judgment in the case but it was supported by both of the other members of the Court. For the future then, in a case alleging a prescribed sexual offence, a judge, whether sitting alone or with a jury, should not provide a Murray direction unless there is something more in the evidence affecting the credibility or reliability of the complainant’s evidence than the mere fact that the complainant’s evidence stands alone without corroboration. If the basis for giving a Murray direction is that the evidence of the complainant stands alone in a prescribed sexual offence, such a direction is prohibited by s 294AA and the giving of such a warning might itself amount to an error in the trial.
What of cases other than prescribed sexual offences? In those cases, s 294AA has no application. Arguably, a Murray direction may still be required. Having said that, there does not seem to be any justification for the existence of different classes of witnesses. If a direction is not required in the case of a complainant in a prescribed sexual assault, why should it be required in relation to offences that do not fall into that category? Undoubtedly, each case will have to be assessed on its own facts but if the only basis for a suggested Murray direction is an absence of corroboration of a witness whose evidence is the sole basis for a conviction then it is difficult to see that such a direction is required.
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