Menogue v Turner

[1999] TASSC 83

[1999] TASSC 83

CITATION:           Menogue v Turner [1999] TASSC 83

PARTIES:  MENOGUE, Paul Barton
  v
  TURNER, Paul John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 9/1999
DELIVERED ON:  12 August 1999
DELIVERED AT:  Launceston
HEARING DATE/S:  6 August 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Criminal Law - Evidence - Confessions and admissions - Statements - Voluntary statements - Inducement - Function of judge and jury - Determination of admissibility - Voir dire proceedings - Unrepresented accused - Whether magistrate should advise of rights and/or conduct voir dire.

DPP v Ping Lin [1976] AC 574, referred to.

MacPherson v R (1981) 147 CLR 512, applied.

Aust Dig Criminal Law [479]

REPRESENTATION:

Counsel:
           Appellant:  C Gibson
           Respondent:  J Ransom
Solicitors:
           Appellant:  Trezise Partners
           Respondent:  Director of Public Prosecutions

Judgment ID Number:  [1999] TASSC 83
Number of paragraphs:  11

Serial No 83/1999

File No LCA 9/1999

PAUL BARTON MENOGUE v PAUL JOHN TURNER

REASONS FOR JUDGMENT  COX CJ
  12 August 1999

1. The applicant was tried before a magistrate on one count of common assault and one of trespass, was convicted and sentenced to imprisonment for five months.  The complainant and his wife both gave evidence that the applicant had come to the complainant's home at about 9.30am, had abused him for allegedly "dobbing in" some of the applicant's mates for a recently committed burglary and had then assaulted him, carrying the fight into the complainant's home.

1. At about 2.45pm on the same day, police conducted a video taped interview with the applicant at the St Helens police station.  One of the officers gave evidence that on that day, after receiving the complaint, police had spoken to the applicant, and that he had agreed to accompany them to the police station for the purposes of an interview.  The officer identified the tape and it was tendered as an exhibit, a transcript of it being handed up at the same time.  The tape was then played to the court without objection by the applicant who was unrepresented at the trial.  Grounds 4 and 5 of the Notice to Review, complain that the learned magistrate erred in law in failing to advise the applicant that he may have been entitled to have the confessional evidence excluded and in failing to determine whether the confessional evidence had been obtained by an inducement held out by a person in authority.

1. The record of interview, which lasted for 50 minutes, commenced with introductions and an outline by the interviewing officer of the allegations of assault.  The applicant, having acknowledged that he understood those allegations, was then given a standard warning which he also acknowledged that he understood.  He was then asked, "do you agree that you came down here on [sic] your own free accord with us today to take part in this interview?" to which he replied "yes", and the officer continued "and that was to have your side of the story heard", to which he also replied "yes".  He was then invited to give details of his movements that day prior to coming in contact with the complainant.  The interview continued:

"A     Right well, I was coming back from the shops at St Marys and stopped at Ron Gillies' house and um just went in to see him and um which was … quite normal we were … um … normally good friends and um … um an incident happened a couple of days ago which we discussed and um then he grabbed a piece of wood and um … proceeded to go about trying to strike me with it and … in return I punched him a couple of times and then I left.

Q    All right … is that all that happened?

A    Yes."

After a brief reference to how and for how long he had known the complainant and how he had arrived at his premises, the interviewed continued:

"Q     Right and can you tell us in depth what actually happened, obviously you know it's in your best interest to tell us … as much as you can about this because he's alleged that … that you have struck him all right, so we want to find out.

A    Well –

Q    … what actually happened so when you got into the car what did you do?"

1. The applicant then proceeded to answer questions about the incident.  He did not, in substance, depart from the basic proposition which he repeated on trial, that the only blows struck by him were struck in lawful self-defence, but there were some inconsistencies in the details of what had occurred which the learned magistrate referred to in his reasons for decision as representing grounds for not finding the applicant's account credible and for preferring the evidence of the complainant and his wife.

1. It is axiomatic that "no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either from fear of prejudice or hope of advantage exercised or held out by a person in authority". (Ibrahim v R [1914] AC 599 per Lord Sumner (at 609)). It is submitted that the statement of the investigating officer that it was in the applicant's best interests to tell the police as much as he could about what had happened was, if not in the circumstances an improper inducement by a person in authority, at least capable of amounting to such an inducement and, if so, that the learned magistrate ought to have explored the matter further, advising the unrepresented applicant of the relevant law and the means of testing voluntariness.

1. Clearly, the statement was capable of amounting to such an inducement.  Cross on Evidence, Aust ed 1996, at par33640 states:  "It appears that the use of the words 'It would be better for you …' always amount to an inducement".  The editors cite (inter alia) R v Beere [1965] Qd R 370, where Gibbs J (as he then was) said at 372: "It has long been held that statements to an accused person that it would be better for him to tell the truth, or that a statement made would be for his benefit, are inducements having the effect of rendering a subsequent confession involuntary."

1. In DPP v Ping Lin [1976] AC 574, the House of Lords emphasised that the question was whether the inducement, on the facts of the particular case, caused the confession. Lord Morris of Borth-y-Gest at 594, speaking of the task of a trial judge when voluntariness is put in issue, said:

"His decision will generally be one of fact.  He may perhaps in some cases before giving his decision derive help from a consideration or perusal of reported decisions but he will always remember that most of these reported decisions merely record what the ruling of another judge has been in another case and in the particular circumstances of that case and on the basis of its own particular facts.  He will always remember also that considerations of space may often make it difficult to record in a report all the relevant circumstances and facts.  A judge will often have to rule at times and in places which do not readily make it possible to consult copious authorities.  This will be no disadvantage.  What is a clear and straightforward rule need not be obscured by subtleties and complications.  The rule is one which in a fair-minded way can readily be applied by a judge once he has clearly ascertained the facts."

Brennan J (as he then was) in Collins v R (1980) 31 ALR 257 at 308 commented on Lord Morris's speech saying that his Lordship was "concerned to ensure that a court does not tease out some fanciful meaning from or attribute some extravagant effect to what is said by a person in authority. … What his Lordship emphasises is the importance of ascertaining all the facts which may bear upon the confessionalist's state of mind and the importance of a practical commonsense assessment of the effect of those facts upon his mind".

1. It follows, therefore, that had any objection been taken to the voluntariness of the statements made by the accused, it would have been incumbent upon the learned magistrate to have conducted the appropriate inquiry into their voluntariness, rather than simply ruling the statement inadmissible because of the uttering by the police officer of a formula which, on many previous occasions in the circumstances of other cases, has led to an absence of satisfaction that the statement was voluntary.  In this case no such objection was taken.  The applicant was unrepresented and it is clear from the transcript that his forensic skills were sadly lacking.  His present counsel submits that in the circumstances, the learned magistrate ought to have advised him of his rights or alternatively, embarked upon an inquiry as to whether the police officer's words did constitute an inducement.

1. In MacPherson v R (1981) 147 CLR 512, the High Court held that once it appeared that a real issue of voluntariness had arisen in respect of confessional material, the trial judge ought to have advised the unrepresented accused of his right to seek a voir dire.  In their joint judgment, Gibbs CJ and Wilson J said at 523:

"The judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law.  He must accordingly exclude evidence tendered against the accused which is not shown to be admissible.  Particularly if the accused is unrepresented, once it appears that there is a real question as to the voluntariness of a confession tendered by the Crown, the judge must satisfy himself that the confession was voluntary, and if, as will usually be the case, this can only be done by holding a voir dire, he must proceed to hold a voir dire even if none is asked for:  cf  Reg v Deathe [1962] VR 650 at 652; and Reg v Little (1976) 14 SASR 556 at 570-571. We are not to be taken as suggesting that the trial judge must hold a voir dire on every occasion when a confession is tendered, or that he is bound to accede to an applicant made for a voir dire when there is nothing to suggest that a real question of voluntariness, unfairness or impropriety arises, for it does not advance the cause of justice to allow a voir dire which is used merely as a fishing expedition, or a means of testing in advance the evidence of the Crown witnesses. And the trial judge has a discretion to keep the examination and cross-examination of witnesses on a voir dire within reasonable bounds. Nevertheless, the duty of the judge is to ensure that the confession is not admitted until the fact that it was voluntary has been established."

1. In the present case, there was evidence of a statement by a person in authority which had the hallmarks of being an inducement.  Admittedly, the applicant had already made some admission of having used force on the complainant, although he had claimed he had acted in lawful self-defence.  His later statements did not really resile from that exculpatory, as opposed to confessional, position, but he was not under an obligation to give the police any more circumstantial account of what had occurred than he had already chosen to give them before the statement was made.  If that statement did induce further admissions (whether in themselves criminating or not), and if as the result, his credit was adversely affected, as seems to have been the case, then not only should it not have been admitted but it could not be said that this was a proper case for the application of the proviso.

1. MacPherson (supra) is a more obvious case for intervention by the trial judge or presiding magistrate because the appellant there had clearly asserted facts in cross-examination which were relevant at least to the issue of the discretion to exclude evidence on the grounds of unfairness or impropriety, whereas in this case, no claim of involuntariness was made to the learned magistrate.  Nevertheless, I am satisfied sufficient emerged to put him on inquiry.  It may be that on proper inquiry, the court could be satisfied by the prosecutor that the alleged words of inducement had no causative effect at all but I am not in a position to conclude that this will be so.  Consequently, I am of the view that both grounds have been made out.  It is unnecessary to address the other ground of appeal against conviction as it could not, in the circumstances, lead to any different order.  The appeal is upheld and the convictions and sentence set aside.  I direct that the appellant be retried by another magistrate.