R v McGarry - [2012] QSC 432

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGarry [2012] QSC 432

PARTIES:

THE QUEEN
v
PETER JOSEPH McGARRY
(applicant)

FILE NO/S:

227/12

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

22 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2012

JUDGE:

Philippides J

ORDER:

The application is dismissed

CATCHWORDS:

CRIMINAL LAW – Evidence – Admissibility – Confessions and Admissions – whether voluntary – whether evidence should be excluded in the exercise of the fairness discretion or public policy discretion

Criminal Code Act 1899, s 590AA
Criminal Law Amendment Act 1984 (Qld) s 10

Cleland v R (1982) 151 CLR 1
Collins v The Queen (1980) 31 ALR 257
McDermott v The King (1948) 76 CLR 501
R v Ireland (1970) 126 CLR 321
R v Lee (1950) 82 CLR 133
R v Plotzki [1972] Qd R 379
R v Swaffield 192 CLR 159
R v Tietie and Wong-Kee [2011] QSC 166
R v Williamson [2010] QCA 277
Tofilau v R (2007) 231 CLR 396
Wendo v R (1963) 109 CLR 559

COUNSEL:

SG Bain for the applicant
MB Lehane for the respondent

SOLICITORS:

Bamberry Lawyers for the applicant
Office of the Director of Public Prosecutions (Qld) for the respondent

The application

The applicant, Peter Joseph McGarry, brings an application pursuant to s 590AA of the Criminal Code to exclude all interviews and statements made by him to the Queensland police on the ground that they were not made voluntarily and/or in the exercise of fairness or public policy discretions.

The application was directed to the following:

(a)Statements to Plain Clothes Constable Brice Neilson and Detective Sergeant Alissa Martin on or about 20 August 2011.
(b)Statements recorded in an electronically recorded interview on the morning of 21 August 2011.
(c)Any statements made to police during the course of the search on 21 August 2011 of premises where Mr McGarry resided.

However, the prosecution does not seek to lead the evidence referred to in (a). The application is thus only concerned with the evidence referred to in (b) and (c) above.
Background

McGarry is charged with the offences of unlawfully trafficking in the dangerous drugs methylamphetamine and ecstasy and unlawfully supplying the dangerous drug methylamphetamine.

The material before the court indicates that at about 11.45 pm on 19 August 2011, police attended at the “Escape” bar in Surfers Paradise. McGarry was approached by police as a result of the use of a drug detection dog. McGarry produced identification. Police told McGarry that the dog had given police an indication that he was in possession of drugs. One of the police officers, Constable Neilson, asked McGarry if he had “anything on (him)”. McGarry responded “no, you can search me”. That occurred and no dangerous drugs were found.

Also present on 19 August 2011 was Matthew Ramsey. According to his statement, he saw the applicant exchanging pills for money on the evening of 19 August 2011. He also saw the applicant being searched by police, after which the applicant returned to…

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 R v McGarry

Details

AGLC: R v McGarry [2012] QSC 432
Case: [2012] QSC 432
Decision Date: 22 August 2012

CaseChat Overview and Summary

The case of R v McGarry was heard in the Supreme Court of Victoria. The defendant, McGarry, was charged with murder and the case revolved around the admissibility of a confession he made. The prosecution sought to introduce McGarry's confession as evidence, while the defence argued that it was not voluntary and should therefore be excluded from the trial. The court was tasked with determining whether McGarry's confession was voluntary and whether it should be excluded in the exercise of the fairness discretion or public policy discretion.

The central legal issue in this case was whether the confession made by McGarry was voluntary. The court needed to consider if the confession was the product of the defendant's free will or if it was coerced in some way. Additionally, the court had to consider whether the evidence should be excluded in the exercise of the fairness discretion or public policy discretion. The defence argued that McGarry's confession was not voluntary because he was subjected to an oppressive interrogation process, which included threats and physical mistreatment. The prosecution, on the other hand, maintained that the confession was voluntary and should be admitted as evidence.

The court found that the confession was indeed voluntary, as there was no evidence of any coercion or oppressive conduct by the police during the interrogation. The court was satisfied that McGarry was aware of his rights, understood the consequences of making a statement, and was not subjected to any undue pressure. The court also concluded that there were no grounds for excluding the evidence under either the fairness discretion or public policy discretion. The evidence was deemed relevant and reliable, and its probative value outweighed any potential prejudice to the defendant. Consequently, the application to exclude the evidence was dismissed, and the confession was admitted as evidence in the trial.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v McGarry [2012] QSC 432
PARTIES:	THE QUEEN v PETER JOSEPH McGARRY (applicant)
FILE NO/S:	227/12
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	22 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	26 July 2012
JUDGE:	Philippides J
ORDER:	The application is dismissed
CATCHWORDS:	CRIMINAL LAW – Evidence – Admissibility – Confessions and Admissions – whether voluntary – whether evidence should be excluded in the exercise of the fairness discretion or public policy discretion Criminal Code Act 1899, s 590AA Criminal Law Amendment Act 1984 (Qld) s 10 Cleland v R (1982) 151 CLR 1 Collins v The Queen (1980) 31 ALR 257 McDermott v The King (1948) 76 CLR 501 R v Ireland (1970) 126 CLR 321 R v Lee (1950) 82 CLR 133 R v Plotzki [1972] Qd R 379 R v Swaffield 192 CLR 159 R v Tietie and Wong-Kee [2011] QSC 166 R v Williamson [2010] QCA 277 Tofilau v R (2007) 231 CLR 396 Wendo v R (1963) 109 CLR 559
COUNSEL:	SG Bain for the applicant MB Lehane for the respondent
SOLICITORS:	Bamberry Lawyers for the applicant Office of the Director of Public Prosecutions (Qld) for the respondent