28.20 The Murray warning is named after the NSW Court of Criminal Appeal case in which it was discussed. Thewarning, which may be given by a trial judge pursuant to common law powers, cautions about the danger of convicting on the uncorroborated evidence of a sexual assault complainant—including a child complainant. It is frequently given in sexual assault trials, if requested by the defence, and is generally to the effect that:
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.
28.21 Legislation that prohibits a judge from stating or suggesting to a jury that complainants in sexual offence proceedings are unreliable witnesses as a class may have been enacted with the parliamentary intention of relieving a trial judge from giving a Murray warning. However, because those provisions are directed at warnings that refer to complainants of sexual offences as an unreliable class of witness and not whether the evidence of one witness must be scrutinised with great care, they are unlikely to prevent a trial judge from giving the Murray warning.
28.22 Criticisms of the Murray warning include that it:
is ‘superfluous where the complainant’s unreliability [is] obvious or useless where the complainant [is] a skilled and convincing liar’;
is ‘patently obvious’;
is supported by a rationale that is inconsistent with the psychological literature;
potentially undermines a complainant’s evidence and perpetuates myths about women; and
may be interpreted by jurors as an invitation to acquit.
28.23 It is open to question whether the standard directions regarding the burden and standard of proof adequately address the situation where the only evidence comes from the complainant. Some commentators argue the warning is unnecessary given the judge will direct the jury not to convict unless they are satisfied of the guilt of the accused beyond reasonable doubt. Other sources suggest the Murray warning is a useful reinforcement of the direction on the standard of proof. Another view questions what the Murray warning actually means and suggests that it is likely to confuse jurors as to whether there is a difference between being ‘satisfied beyond reasonable doubt’ and ‘scrutinising the evidence with great care’.
28.24 In the Consultation Paper, the Commissions proposed that federal, state and territory legislation should prohibit a judge in any sexual assault proceedings from:
warning a jury, or making any suggestion to a jury, that complainants as a class are unreliable witnesses; and
warning a jury of the danger of convicting on the uncorroborated evidence of any complainant.
Submissions and consultations
28.25 There was significant support among stakeholders for the Consultation Paper proposal.
28.26 National Legal Aid agreed with the proposal except to the extent that it provided that a trial judge be prohibited from warning a jury of the danger of convicting on the uncorroborated evidence of any complainant, on the basis that a corroboration warning may be required in a particular case.
28.27 Dr Anne Cossins supported the proposal but considered that it did not go far enough in restricting the ability of trial judges to give the Murray warning, particularly in the case of child complainants. Cossins noted that the proposal—by extending the basic terms of s 165A of the uniform Evidence Acts to all complainants—preserves the trial judge’s power to give common law warnings, including the Murray warning. Cossins considered that, although s 165A(1)(b) appears to address the problems associated with the Murray warning, it does not abolish the use of the words ‘scrutinised with great care’ and its effect is merely that a warning or suggestion must not be given to a jury that a child’s evidence requires greater scrutiny than an adult’s evidence.
28.28 Cossins acknowledged that, in some circumstances, the evidence of a child will be considered to be unreliable for particular reasons but that those reasons should be grounded on up-to-date research rather than suppositions about age, memory or reliability or outdated prejudice and assumptions.
28.29 Ultimately, Cossins submitted that the power of trial judges to give common law warnings in relation to the reliability of a child witness’ evidence should be abolished, and that a warning concerning a child’s evidence should only be given in exceptional and particular circumstances prescribed by legislation.
28.30 It is now generally accepted that judges should be prohibited from warning or suggesting to the jury that children as a class are unreliable witnesses. In the Commissions’ view, similar provisions should prohibit warnings about complainants in sexual assault cases generally.
28.31 The Commissions also consider that legislation should prohibit a judge from giving general warnings to a jury about the danger of convicting on the uncorroborated evidence of any complainant or witness who is a child. As the NSW Taskforce observed:
this would prevent a general warning being given about scrutinising the evidence of the complainant with great care, simply because he or she is alleging sexual assault. However, where there is specific evidence, which suggests that aspects of a complainant’s evidence may be unreliable, a comment may still be made about needing to treat such evidence with care.
28.32 Legislation of the kind proposed by the Commissions would preserve a trial judge’s power to give a Murray warning in an appropriate case. The Commissions consider that judicial education should be undertaken and judicial bench books updated to assist judges to identify, with reference to recent literature on the matter, the circumstances in which it is in the interests of justice to give a warning about the danger of convicting on the uncorroborated evidence of a particular complainant or child witness.
Recommendation 28–1 Federal, state and territory legislation should prohibit a judge in any sexual assault proceedings from:
(a) warning a jury, or making any suggestion to a jury, that complainants as a class are unreliable witnesses; and
(b) giving a general warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant or witness who is a child.
Recommendation 28–2 Australian courts and judicial education bodies should provide judicial education and training, and prepare material for incorporation in bench books, to assist judges to identify the circumstances in which a warning about the danger of convicting on the uncorroborated evidence of a particular complainant or child witness is in the interests of justice.
 R v Murray (1987) 11 NSWLR 12.
 Victorian Law Reform Commission, Sexual Offences: Final Report (2004), 373–374; J Bargen, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault, Gender Bias and the Law Project (1996); J Cashmore, ‘The Prosecution of Child Sexual Assault: A Survey of NSW DPP Solicitors’ (1995) 28 Australian and New Zealand Journal of Criminology 32, 43.
 R v Murray (1987) 11 NSWLR 12, 19.
 Criminal Procedure Act 1986 (NSW) s 294AA; Crimes Act 1958 (Vic) s 61; Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 69; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(5).
 See, eg, Criminal Procedure Act 1986 (NSW) s 294AA; New South Wales, Parliamentary Debates, Legislative Assembly, 18 October 2006, 2958 (G McBride—Minister for Gaming and Racing and Minister for the Central Coast).
 New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008), [7.39]; Judicial Commission of New South Wales, Sexual Assault Handbook (2009) <www.judcom.nsw
.gov.au/publications/benchbks/sexual_assault/index.html> at 14 April 2010 24 March 2010.
 D Boniface, ‘The Common Sense of Jurors vs The Wisdom of the Law: Judicial Directions and Warning in Sexual Assault Trials’ (2005) 11 University of New South Wales Law Journal 5, 265.
 Ibid, 267.
 A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 107–109.
 NSW Adult Sexual Assault Interagency Committee, A Fair Chance: Proposals for Sexual Assault Law Reform in NSW (2004).
 Queensland Law Reform Commission, A Review of Jury Directions: Discussion Paper, WP 67 (2009), [7.82].
 New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008), [7.35].
 Judicial Commission of New South Wales, Sexual Assault Handbook (2009) <www.judcom.nsw.gov.au/publications/benchbks/sexual_assault/index.html> at 14 April 2010.
 J Wood, ‘Sexual Assault and the Admission of Evidence’ (Paper presented at Practice and Prevention: Contemporary Issues in Adult Sexual Assault in New South Wales, Sydney, 12 February 2003),
 Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Proposal 18–11.
 Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Canberra Rape Crisis Centre, Submission FV 172, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Confidential, Submission FV 130, 21 June 2010; A Cossins, Submission FV 112, 9 June 2010.
 National Legal Aid, Submission FV 232, 15 July 2010.
 A Cossins, Submission FV 112, 9 June 2010.
 Criminal Justice Sexual Offences Taskforce (Attorney General’s Department (NSW)), Responding to Sexual Assault: The Way Forward (2005), 104.
 Although the Australasian Institute for Judicial Administration’s bench book for children giving evidence in Australian courts does not specifically address the Murray warning, the bench book is illustrative of how legal and psychological material may be collated in a text which is intended for use by judicial officers in court: Australasian Institute of Judicial Administration, Bench Book for Children Giving Evidence in Australian Courts (2009).