R v Turner (No 12)

[2001] TASSC 103

[2001] TASSC 103

CITATION:           R v Turner (No 12) [2001] TASSC 103

PARTIES:  R
  v
  TURNER, Phillip Bruce

LEE, Mervyn Robin
JANSEN, Cornelius Marinus
COULSTON, Daren Te Ariki Charles
TEDESCO, Antonio

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  320/2000
DELIVERED ON:  17 August 2001
DELIVERED AT:  Hobart
HEARING DATES:  23 July - 23 August 2001
JUDGMENT OF:  Blow J
CATCHWORDS:

Edited edition of ruling delivered orally

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Generally - Voir dire - Discretion as to who begins.

R v Williams (1976) 14 SASR 1; R v Bradshaw (1978) 18 SASR 83; Furnell v Betts (1978) 20 SASR 300; R v Bennett (1986) 44 SASR 164; Fry v Jennings (1983) 25 NTR 19; R v Butler (No 1) (1991) 102 FLR 349, referred to.
Aust Dig Criminal Law [420]

REPRESENTATION:  

Counsel:
     Crown:  M Rozenes QC, K E Read, J Read & I M Arendt
     First Accused:  M L Abbott QC, W P Boucaut
     Second Accused:  A G Melick SC & B R McTaggart
     Third Accused:  P A Dunn QC & J D Edwardson
     Fourth Accused:  B J Powell QC & I C Robertson
     Fifth Accused:  C J Kourakis QC & J M Fuller

Solicitors:
     Crown:  Commonwealth Director of Public Prosecutions
     First Accused:     Jennings Elliott as agents for:          Iles Selley
     Second Accused:  Jennings Elliott
     Third Accused:    Jennings Elliott as agents for:          John Lister
     Fourth Accused: Jennings Elliott as agents for:          Coates PL
     Fifth Accused:     Jennings Elliott as agents for:          Lynch & Meyer

Judgment Number:  [2001] TASSC 103
Number of Paragraphs:  16

Serial No 103/2001
File No 320/2000

R v PHILLIP BRUCE TURNER,
MERVYN ROBIN LEE, CORNELIUS MARINUS JANSEN,
DAREN TE ARIKI CHARLES COULSTON
and ANTONIO TEDESCO (No 12)

RULING DURING TRIAL  BLOW J

(DELIVERED ORALLY)  17 August 2001

1. The accused have pleaded not guilty to a charge of conspiring to defraud the Commonwealth and a public authority under the Commonwealth.  A jury has yet to be empanelled.  Defence counsel seek to have documentary evidence in four categories excluded pursuant to the Court's discretions in relation to illegally and unfairly obtained evidence.  The four categories are as follows:

(i)All SEF1 and SEF2 forms submitted to the Australian Fisheries Management Authority ("AFMA").

(ii)All documents seized pursuant to eight invalid search warrants executed in purported pursuance of the Fisheries Act 1952 (Cth).

(iii)All documents seized pursuant to valid search warrants issued pursuant to the Fisheries Management Act 1991 and the Mutual Assistance in Criminal Matters Act 1992 (NZ).

(iv)All documents seized without warrants from certain boats which I understand to be the "Lorna Dorn", the "Monika", the "Roza-S" and the "Belinda".

1. I have decided to receive evidence on the voir dire as to the contention that such evidence should be excluded.  The Crown submit that the accused should submit their evidence on the voir dire first.  Counsel for the accused submit that the Crown should go first.  It is clear that I have a discretion as to who should go first.  I say that on the basis of a number of South Australian and Northern Territory cases that have been reported.  R v Williams (1976) 14 SASR 1 at 3; R v Bradshaw (1978) 18 SASR 83 per King J (as he then was) at 102; Furnell v Betts (1978) 20 SASR 300 at 302; R v Bennett (1986) 44 SASR 164 at 166; Fry v Jennings (1983) 25 NTR 19 at 26; R v Butler (No 1) (1991) 102 FLR 349. Although these authorities comprise five single judge decisions and a dictum of one judge in a full court, there is no authority to the contrary.

1. The practice in Tasmania has been that the Crown goes first on a voir dire, whatever the nature of the objection.  As far as I know, the accused has never been required to go first.  The practice ordinarily has been first that the evidence objected to is identified; then that the basis of objection is stated.  It is important to do that in order to distinguish an involuntariness objection from an illegality or unfairness objection.  And if the accused bears the onus, but the Crown is required to present its evidence first, fairness requires that the basis of the objection be fully stated.  After the identification of the evidence objected to, and the statement of the basis of the objection, the Crown ordinarily, or as far as I know always, presents its evidence first.

1. Traditionally an objection was taken when, for the first time, a Crown witness was about to give the evidence that was to be objected to.  The witness would remain in the box, be sworn on the voir dire, and, in the absence of the jury, give the evidence to which objection was taken.  If the evidence of more than one witness was the subject of the same objection, then all such witnesses would give their evidence and be cross-examined in turn, one after another.  If the voir dire was conducted before the Crown's opening, then the same pattern would be followed.  My experience in Tasmania is that proofs of evidence are relied upon by the Crown on such a voir dire only with the consent of counsel for the accused, and that at times taking such a course has been discouraged by the trial judge.  The Crown might be asked by defence counsel to call one or more particular witnesses on the voir dire and, of course, has an obligation to act fairly in deciding whom to call and whom not to call.  I accept that, when it is contended that evidence was unfairly or illegally obtained, the accused bears the burden of proving the unfairness or illegality, and of adducing sufficient evidence to warrant the trial judge excluding the evidence on a discretionary basis.  The existence of that onus of proof is common ground in this case.  There is a certain amount of case law as to how the discretion as to who should go first should be exercised when evidence is objected to on discretionary grounds. 

1. In R v Williams (supra) at 3, Wells J said this:

"What is done must depend on the circumstances.  In my opinion, though without purporting to be exhaustive, if nothing appears in the depositions that reasonably suggests, and a scintilla would suffice ¾ that an enquiry is called for into the voluntariness of the alleged confession or admission, or into the question whether the confession or the admission should be excluded as a matter of discretion, a trial judge cannot be expected to direct a voir dire hearing unless defence counsel gives him his formal assurance that testimony relative to one or other of those inquiries would be tendered by or on behalf of the accused.

If no such material is to be gathered from the depositions, but the trial judge decides to act upon the assurance of counsel, it would only be in the exceptional case that the Crown, and not the accused, would be called on to begin.  But if the trial judge is referred to material in the depositions that suggests the need for one or other of the inquiries, or both, the course that naturally suggests itself is that the Crown should call its evidence first." 

His Honour adhered to that view in Fennell v Betts (supra) at 302.

1. In Fry v Canning (supra) Muirhead J made it clear that there was a practice in the Northern Territory of not requiring Aboriginal defendants to go first on a voir dire.  And it would appear from his Honour's comments (at 26 - 27) that it was by no means the case an accused person bearing the onus of proof was routinely required to go first. 

1. In R v Butler (supra) at 349, Kearney J said:

"Though in general Crown witnesses testify first on the voir dire, this has nothing to do with onus; it is within the Court's discretion as to who begins, based upon convenience ...".

On the other hand, there are authorities suggesting a somewhat greater readiness to require the accused to go first: R v Hart (1977) 17 SASR 100 at 103; R v Bennett (supra) at 166.

1. Mr Rozenes QC referred me to Stephens, Voir Dire Law at 444 - 446.  There is a paragraph in that work at 446 headed "Discretionary Nature of Decision Where Evidence Ought to be Excluded in Exercise of Discretion".  In my view the learned author, Superintendent Stephens, paints a picture in that paragraph that rather overstates the readiness with which trial judges might require the accused to present their evidence first on such a voir dire.  He makes a comment in relation to R v Bradshaw (supra) that Bray CJ was of the opinion that the defence should begin when a judge is being requested to exclude evidence in the exercise of his or her judicial discretion.  However, the judgment relied upon is not authority for that proposition at all.  It is true that Bray CJ approved in general terms what Wells J said in Williams.  But his Honour was speaking not about the discretion as to who should go first, but as to the discretion whether or not to hold a voir dire. 

1. Later in the paragraph, Superintendent Stephens says:

"On the other hand, in R v Hart (1977) 17 SASR 100, 103 and R v Clark (1986) 23 A Crim R 303, 305 (SASC) it was accepted that the defence should commence where a judge is being requested to exclude admissible evidence in the exercise of discretion."

1. Neither of those cases supports that proposition.  The only accepting that was done in either of them was by counsel, who accepted that their clients should go first, rather than seeking a ruling to the contrary.  They seem to have volunteered that their clients should go first.  In R v Hart (supra) at 103, it appears that the two accused each gave evidence of involuntariness, and that there was some criticism about counsel accepting that their clients should go first when the objection was really an involuntariness objection. The case that Superintendent Stephens refers to as R v Clark is the same case as R v Bennett (supra).  What happened there was that defence counsel was willing for his client to go first on an involuntariness objection, but the trial judge did not permit that course to be taken. 

1. In footnote 415, the learned superintendent comments:

"The approach is consistent with s391B of the Crimes Act 1958 (Vic) which specifically allows the trial judge, who is considering whether to exclude admissible evidence in the exercise of discretion to hear evidence from the accused prior to hearing evidence from the Crown."

That is what that section says, but it only permits a trial judge to take such a course, and by no means suggests that that should be the course routinely taken.

1. There are certain advantages to the Crown going first, some of which are sometimes applicable and some of which are perhaps always applicable.  A disadvantaged accused should in my view not be required to go first, at least not in an ordinary case, because of the difficulties that such a person has with the trial process.  The classic example of it is that of tribal Aborigines as referred to by Muirhead J in Fry v Jennings. 

1. Also, as Kearney J pointed out, convenience is a factor.  The Crown is likely to have its witnesses well organised, well proofed, and well marshalled, whereas the defence often tries to keep all options open and is not ready to decide whom to call. 

1. Also it is very desirable, in my view, not to adopt a practice that would tend to erode an accused person's right to silence, or to devalue an accused person's right to silence, by tending to encourage him or her to give evidence. 

1. Also, in some cases, the factual basis of the defence contentions will be within the knowledge of the Crown witnesses more than it is within the knowledge of the accused or their witnesses.  From what I know so far as to the matters likely to be raised in relation to the unfairness and illegality discretions in this case, this particular factor seems to be a very compelling one in the present circumstances.

1. In my view the factors weighing in favour of the Crown witnesses giving evidence on this voir dire first warrant departing from the principle that the party bearing the onus of proof should go first, provided that the contentions of fact and law to be advanced on behalf of the accused are stated clearly and in detail at the outset.  I have directed that that be done, and I think the result should be that there will be no unfairness to the Crown.  For these reasons, I direct that the Crown is to adduce its evidence first on the voir dire relating to the unfairness and illegality discretions.