Court of Appeal (Qld)|2002-10-18|Before: McMurdo P, Jerrard JA and Mackenzie JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made.
McMurdo P, Jerrard JA and Mackenzie JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made.
Catchwords
CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS –
STATEMENTS – VOLUNTARY STATEMENTS – FUNCTIONS
OF JUDGE AND JURY
– DETERMINATION OF ADMISSIBILITY – VOIR DIRE PROCEEDINGS –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS –STATEMENTS – VOLUNTARY STATEMENTS – FUNCTIONSOF JUDGE AND JURY– DETERMINATION OF ADMISSIBILITY – VOIR DIRE PROCEEDINGS –where appellant made full admissionsto injecting the deceased with heroin in apolice interview – where appellant instructed his lawyers that heparticipated inthe interview only because he was affected by drugs and underthreats by police – where appellant’s barrister did notapply tohave interview excluded at pre-trial hearing – where appellant’sbarrister applied at end of the prosecutioncase for the interview to beexcluded – where learned trial judge refused that application –where learned trial judgedid not ask the appellant’s barrister whether hewas requesting a voir dire to examine the voluntariness of the confession– whether learned judge erred in failing to conduct a voir dire in theabsence of an express application by the defence
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
CONDUCT OF LEGAL
PRACTITIONERS – where appellant’s barrister did not expressly apply
to the learned trial judge for a
voir dire to examine the voluntariness of his
client’s confession – where appellant instructed his lawyers that he
gave
the confession only because he was affected by drugs and under threats by
police – where appellant’s barrister had not
previously conducted a
criminal trial involving an application to exclude the admission of a recorded
interview – where appellant’s
barrister may have interpreted the
learned judge’s refusal to exclude the interview as precluding him from
applying for a voir
dire and from allowing his client to give evidence –
whether the failure to apply for a voir dire deprived the appellant of
the
chance of an acquittal – whether conduct of trial by the appellant’s
barrister was flagrantly incompetent
Criminal Code (Qld), s 592A, Criminal Law Amendment Act
1894 (Qld), s 10
Basto v R [1954] HCA 78
(1954) 91 CLR 628, considered MacPherson v
The Queen [1981] HCA 46
(1981) 147 CLR 512, distinguishedR v Birks (1990) 19
NSWLR 677, consideredR v Green [1997] 1 Qd R 584, consideredR
v Lane [1965] QWN 33, consideredR v Miletic [1997] 1 VR 593,
appliedR v Paddon [1998] QCA 248
[1999] 2 Qd R 387, applied R v Walbank
[1995] QCA 149
[1996] 1 Qd R 78, distinguished R v Zerafa [1935] St R Qld
227, consideredRoyall v R [1991] HCA 27
(1991) 172 CLR 378, consideredWilde
v R [1988] HCA 6
(1988) 164 CLR 365, applied
Judgment (12 paragraphs)
[1]
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - FUNCTIONS OF JUDGE AND JURY - DETERMINATION OF ADMISSIBILITY - VOIR DIRE PROCEEDINGS - where appellant made full admissions to injecting the deceased with heroin in a police interview - where appellant instructed his lawyers that he participated in the interview only because he was affected by drugs and under threats by police - where appellant's barrister did not apply to have interview excluded at pre-trial hearing - where appellant's barrister applied at end of the prosecution case for the interview to be excluded - where learned trial judge refused that application - where learned trial judge did not ask the appellant's barrister whether he was requesting a voir dire to examine the voluntariness of the confession - whether learned judge erred in failing to conduct a voir dire in the absence of an express application by the defence CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF LEGAL PRACTITIONERS - where appellant's barrister did not expressly apply to the learned trial judge for a voir dire to examine the voluntariness of his client's confession - where appellant instructed his lawyers that he gave the confession only because he was affected by drugs and under threats by police - where appellant's barrister had not previously conducted a criminal trial involving an application to exclude the admission of a recorded interview - where appellant's barrister may have interpreted the learned judge's refusal to exclude the interview as precluding him from applying for a voir dire and from allowing his client to give evidence - whether the failure to apply for a voir dire deprived the appellant of the chance of an acquittal - whether conduct of trial by the appellant's barrister was flagrantly incompetent Criminal Code (Qld), s 592A,