‘He Said, She Said’: Murray Directions in Sexual Assault Trials

Defending an allegation of sexual assault is no simple feat in the current social and legal environment.

A myriad of rules now apply to protect complainants in sexual assault cases, including laws which block access to certain types of relevant material, those which prohibit using relevant evidence that is obtained, and rules that restrict the manner by which criminal defence lawyers can question complainants – although no such rules apply to the prosecutor’s questioning of defendants.

There is also the hairy issue of consent – an area of law that has received a major overhaul in recent years. And, of course, there are community attitudes towards those who are accused of sexual assault, especially child sexual assault – and those attitudes are often apparent in the demeanour and mannerisms of jurors at the start of trials.

There are rarely any eye witnesses to alleged sexual assaults – and there is often little to support the complainant’s allegations or, indeed, to refute them. This often means that the prosecution case depends heavily on whether the jury believes the complainant’s version of the events.

‘He Said, She Said’ Cases

Obviously, there are immense risks associated with convicting people of serious criminal offences based solely upon the accusations of complainants.

For that reason, judges in ‘he said, she said’ cases will direct juries to carefully scrutinise the uncorroborated testimony of the complainant before deciding to convict the defendant.

This is known as a Murray direction, after the decision in R v Murray (1987).

The Murray Direction

The Murray direction is usually stated as follows, and is usually given by the judge to the jury at the end of a trial:

‘Where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in.’

After the decision in Murray, courts grew inclined to give the direction in almost every sexual assault case involving the uncorroborated evidence of a single complainant.

However, a recent decision of the New South Wales Court of Criminal Appeal has thrown this practice into question; clarifying the circumstances in which a Murray direction should be given.

The Case of Ewen v R

Simon Ewen was charged with sexual assault after he allegedly engaged in non-consensual intercourse with an acquaintance at a party. His matter proceeded to a judge-alone trial in the District Court, and he was found guilty of the offence.

The judge did not give himself a Murray direction at the conclusion of the trial. As a result, Mr Ewen appealed his conviction on the basis that the judge should have directed himself to exercise great care before returning a finding of guilt.

Should a Direction Have Been Given?

The Court of Criminal Appeal found that Mr Ewen’s appeal could only succeed if a Murray direction was required to be given in a jury trial. It considered various legal provisions which, in the Court’s view, make it clear that no such direction is mandatory.

One such provision is section 164 of the Evidence Act 1995, which states:

1. It is not necessary that evidence on which a party relies be corroborated.
2. Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.
3. Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:

(a) Warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or

(b) Give a direction relating to the absence of corroboration.

The Court additionally considered section 294AA of the Criminal Procedure Act 1986, which makes it clear that juries in criminal trials should not be given a direction purely because the complainant’s evidence is uncorroborated. The section states:

1. A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.
2. Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.

The Court then looked at the question of whether a Murray direction should always be given in sexual assault cases where the case depends on the unsupported evidence of a single complainant.

After considering several recent High Court cases, the Court concluded that a Murray direction is only required if there are extra factors that may have affected the credibility of the complainant’s evidence – in other words, matters that are additional to the fact that the evidence of the complainant is uncorroborated.

The majority found that:

‘Sexual offences typically are committed in private, when only the perpetrator and the victim are present. In that case, a direction concerning the absence of corroboration has little to do except suggest unreliability on the part of the complainant.’

As there were no additional factors in Mr Ewen’s case, his appeal was refused and the conviction was confirmed.