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

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Menogue v Turner

Details

AGLC: Menogue v Turner [1999] TASSC 83
Case: [1999] TASSC 83
Decision Date: 12 August 1999

CaseChat Overview and Summary

Paul Barton Menogue, the applicant, was convicted by a magistrate of common assault and trespass and sentenced to five months' imprisonment. Turner, the respondent, appealed the conviction and sentence to the Supreme Court of Tasmania. The appeal hinged on the admissibility of a confession made by the applicant during a police interview, which the applicant claimed was obtained through an inducement by a person in authority. The court was tasked with determining whether the magistrate erred in law by not advising the applicant of his rights and conducting a voir dire to determine the voluntariness of the confession.

The legal issues revolved around the admissibility of the confession and whether the magistrate should have conducted a voir dire to determine if the confession was voluntary. The court needed to consider whether the magistrate should have advised the unrepresented applicant of his rights and conducted a voir dire when there was evidence of a potential inducement by a person in authority. The court referenced previous cases, such as MacPherson v R, which established that once a real issue of voluntariness arises, the trial judge must ensure the confession was voluntary and may need to hold a voir dire.

The court found that the magistrate should have either advised the applicant of his rights or conducted a voir dire to determine the voluntariness of the confession. The court held that the magistrate's failure to do so constituted an error in law, as there was evidence suggesting the confession may have been influenced by an inducement. The court also noted that the applicant, being unrepresented, likely lacked the necessary legal knowledge to object to the admissibility of the confession. Consequently, the appeal was upheld, the convictions and sentence were set aside, and the applicant was directed to be retried by another magistrate.

Orders