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

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".

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…

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 Turner (No 12)

Details

AGLC: R v Turner (No 12) [2001] TASSC 103
Case: [2001] TASSC 103
Decision Date: 17 August 2001

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the defendants, Phillip Bruce Turner, Mervyn Robin Lee, Cornelius Marinus Jansen, Daren Te Ariki Charles Coulston, and Antonio Tedesco, pleaded not guilty to charges of conspiracy to defraud the Commonwealth and a public authority. The Crown sought to introduce documentary evidence from four categories in the trial, but the defence counsel sought to exclude it under the court's discretion in relation to illegally and unfairly obtained evidence. The court had to decide which party should present their evidence first on a voir dire. The defence counsel argued that the accused should present their evidence first, while the Crown submitted that the Crown should go first. The court exercised its discretion to have the Crown adduce its evidence first on the voir dire relating to the unfairness and illegality discretions, based on several factors, including convenience, the factual basis of the defence contentions, and the accused's right to silence.

The court reasoned that the Crown going first had several advantages, such as the Crown witnesses being well organised, well proofed, and well marshalled, while the defence often tries to keep all options open and is not ready to decide whom to call. Also, it is very desirable, in the court's 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. In this particular case, 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. The court also noted that 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 court directed that the Crown is to adduce its evidence first on the voir dire relating to the unfairness and illegality discretions, 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.

Orders