Murder Charges

Have you been charged with Murder in NSW or QLD?

You must seek legal advice from an expert Criminal Defence Lawyer as soon as possible.

Contact Michael McMillan on 0409 273 430 for expert legal advice and representation in court.

Defending against murder charges

The first issue that will strike someone charged with this offence is that a Magistrate cannot admit you to bail. Any bail application must be made to the Supreme Court.

And given the potential penalty (in both States is life imprisonment) the incentive to flee is very high.

Accordingly, bail is not easy to obtain.

In fact, the applicant must show why his continued detention in prison is not justified.

So, more than in any other variety of charges, obtaining bail when charged with murder invariably requires demonstrating strong weaknesses in the police case.

A recent example of that in which I was involved was the case of  a Bail Application by [name redacted].

In that case, the client was charged with murder. And there was no doubt that he had killed the deceased.

But, the facts alleged against him revealed that he had available to him a very strong defence; namely, that he killed the deceased while trying to prevent him from setting fire to the house in which he and his partner were residing.

This significantly reduced the strength of the case against him and ultimately greatly assisted him in being admitted to bail.

In Queensland our most recent sentencing information for those charged with murder shows that more than 70% of those charged with murder wind up being convicted.

This figure appears to be increasing as technology plays a greater role in prosecuting this crime. A readily identifiable example of that is the part now played by DNA.

In fact, in an early research paper published in the Australian & New Zealand Journal of Criminology, it was stated that the odds of conviction when a prosecutor produces DNA evidence were 23 times higher than when a prosecutor proceeds without it.

But is such evidence really as compelling as it might have been portrayed to be?

The Prosecutor’s Fallacy

Without the benefit of properly using DNA evidence, it may seem that its existence at a crime scene provides a direct unshakeable link between the person from whom that DNA came and his or her guilt for the offending at the crime scene.

The problem was that juries had been invited to form the view that if it’s 200 million times more likely that the DNA found at a crime scene matched that of the accused, then it was 200 million times more likely that the accused had committed the crime charged.

Of course, this reason was quite wrong.  This became to be known as the “prosecutor’s fallacy.”

A demonstration of it was found in the case of R v Keir [2002] NSWCCA 30.

In that case, Mr Keir was accused of killing and burying his wife.  Her body was not found.

After excavations were carried out under their marital home bones were discovered and expert evidence was given at trial that there was one chance in 660,000 that the DNA found in the bones did not come to match that of Mrs Keir.

The prosecutor, however, mistakenly addressed the jury by confusing the one in 660,000 probability of those bones belonging to Mrs Keir rather than someone else, with suggesting the same probability applied to them being in fact hers.

This mistake was the focus of the appeal.

Although there was other evidence allegedly linking Mr Keir to the alleged crime, the Court of Criminal Appeal thought that:

“..had the jury not been left with an erroneous appreciation of the significance of the DNA statistical evidence, the appellant would not inevitably have been convicted.”

So, the way DNA evidence is presented to a court must be carefully scrutinized to ensure it tells the proper story.

But is that evidence of itself a reliable tool in the police arsenal?  The answer to that question is no.

Primary and Secondary Transfers

A primary transfer of DNA occurs as a result of direct contact between a particular person and an object.

A secondary transfer occurs when DNA is transferred onto an object by an intermediary, for example, a handshake.

In both cases the DNA of an accused is found on a relevant object, the difference is one method of transfer may be far more indicative of guilt than the other.

An example of where a secondary transfer of DNA did not strengthen the case against an accused is the case of Fitzgerald v The Queen – [2014] HCA 28.

In that case, the victim was murdered during a burglary.

Mr Fitzgerald was convicted and the whole of the case against him was that his DNA was found on a didgeridoo at the crime scene.

During his successful appeal, it was confirmed that the evidence showed that there were at least 2 occasions unrelated to the crime on which Mr Fiztgerald’s DNA could have found its way onto that didgeridoo.

This showed the DNA evidence was not capable of supporting the case of murder.

These types of cases commonly involve experts putting forward views that can tend to establish a link between an accused and a deceased person.

But, just like DNA, the opinions offered by experts aren’t always to be accepted as gospel.

Expert Evidence

A good example of the need to treat expert evidence with the same degree of scrutiny as any other occurred in the case of R v Wood [2012] NSWCCA 21.

In that case, the use of an expert witness was essential to proving that the deceased woman was thrown from to her death rather than committing an act of suicide.

The problem was, though, that the expert called to prove that held no qualifications in biomechanics – which was the field in which he was expressing his opinions.

He was found to have set about “proving” the police theory that the deceased was thrown to her death, rather than having voluntarily jumped, and did so using unproven facts and flawed experiments.

Unfortunately, his lack of appropriate qualifications wasn’t challenged at trial and undoubtedly played a part in Mr Wood being convicted.

The appellate properly recognized this fundamental issue with the Crown’s “expert” and upheld the appeal.

Contact an Experienced Criminal Defence Lawyer

This is just a short practical sample of issues that regularly arise in cases where murder is the primary charge.

Given the complexity of them, though, and the consequences to an accused of not identifying and avoiding such issues, it is imperative to seek experienced assistance with them.

As always, I am only too willing to assist.

Charged with Murder?

Contact Michael McMillan on 0409 273 430 for expert legal advice and representation in court.