Appn of Robert Joseph DUNN - [2005] NSWSC 857

No judgment structure available for this case.

CITATION:
Appn of Robert Joseph DUNN [2005] NSWSC 857

JUDGMENT DATE :

30 August 2005

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF:
Kirby J

DECISION:
Application for an Inquiry under s474D of Crimes Act 1900 declined.

CATCHWORDS:
Criminal Practice & Procedure - application pursuant to s474D of the Crimes Act 1900 - test to be applied - history of appeals - relevance to issues raised in application - no unease in respect of convictions following pleas of guilty.

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986

CASES CITED:
R v Dunn [2004] NSWCCA 346
Varley v The Attorney General (1987) 8 NSWLR 30
Appl of Benito Esposito (SC, unreported, 14.7.88)
R v Dunn (unreported, 3.9.90)
R v Dunn [2000] NSWCCA 171
R v Birks (1990) 19 NSWLR 677

PARTIES:
Regina
Robert Joseph Dunn

FILE NUMBER(S):
SC 70088/03

SOLICITORS:
W Abadee - Crown Solicitor (Resp)
R J Dunn (Appl)

LOWER COURT JURISDICTION:
District Court

LOWER COURT JUDICIAL OFFICER :
Finnane DCJ

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

Tuesday 30 August 2005

70088/03 - APPLICATION PURSUANT TO s474D OF THE CRIMES ACT 1900 BY ROBERT JOSEPH DUNN
JUDGMENT

1 KIRBY J: On 26 June 2001, Robert Joseph Dunn was arraigned before Finnane DCJ in the District Court on an indictment containing twenty-seven counts. He pleaded guilty to all counts. On 7 December 2001 he was sentenced. The sentences were later adjusted to correct errors. So corrected, Mr Dunn was sentenced to a term of imprisonment of 30 years (commencing on 10 November 1997 and ending on 9 November 2027), with a non parole period of 22-1/2 years (expiring on 9 May 2020).

2 Mr Dunn thereafter appealed to the Court of Criminal Appeal against his conviction. He also sought leave to appeal against sentence. At the same time he made an application to the Supreme Court for an Inquiry under s474D of the Crimes Act 1900, identifying seven grounds said to justify such an Inquiry.

An Inquiry under s474D.

3 The Supreme Court, on application, may direct that an Inquiry be undertaken into the conviction or sentence of a person (s474E(1)(a)) or may refer "the whole case" to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (s474E(1)(b)).

4 The circumstances in which that power may be exercised are identified by s474E(2), which is in these terms:

"s474E(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case."

5 The Court may, however, refuse to consider or otherwise deal with an application. Section 474E(3) makes the following provision:

"s474E(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a) it appears that the matter:

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the repealed provisions, and

(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action."

6 The Court is also given power to defer an application where an appeal against conviction or sentence (including an application for leave to appeal) has not been finally determined (s474E(3A)(b)). Here, the issues Mr Dunn sought to canvass on his appeal were in many cases the same issues which were said to justify an Inquiry. Hence, on 1 December 2003 an order was made deferring Mr Dunn's application for an Inquiry pending the outcome of the appeal.

7 On 21 December 2004, the Court of Criminal Appeal gave judgment ([2004] NSWCCA 346). It dismissed Mr Dunn's appeal against conviction, but gave leave to appeal against sentence. The Court moderated the sentences which had been imposed by Finnane DCJ, reducing the total term to 20 years (expiring on 9 November 2017) with a non parole period of 18 years (expiring on 9 November 2015).

8 The appeal having been determined, it then became appropriate to consider the application for an Inquiry. Submissions had already been lodged by Mr Dunn. The Crown responded to those submissions on 6 June 2005. Mr Dunn was given an opportunity to reply to the Crown's response. He reaffirmed his submissions on 19 July 2005.

9 The power to direct an Inquiry under s474D (or the equivalent section before the introduction of that section), has been considered on a number of occasions. The test is whether, on the material put forward, the Judge considering the application is left with "unease in allowing the conviction to stand" (Varley v The Attorney General (1987) 8 NSWLR 30, per Hope JA at 48) or "a sense of disquiet" (per Kirby P at 35). Speaking of s475 of the Crimes Act (which was the corresponding provision before the present section) Hunt CJ at CL said this, in the Application of Benito Esposito (Supreme Court, unreported, 14.7.88):

Varley v Attorney General

Grounds for application.

10 The Crown, in its submission, conveniently summarised the seven issues raised by Mr Dunn in his application for an Inquiry in these words:

Item 1. Broken Promises.

Item 2. Removal from Honduras.

Item 3. Statute of Limitations in Florida (United States of America).

Item 4. DPP's decision not to prosecute me - and the indemnities.

Item 5. Inadequate legal representation at my stay application.

Item 6. Inducement offered for a guilty plea.

Item 7. Inadmissible evidence.

11 Before considering each ground, it is convenient to describe, in broad terms, the events which culminated in the dismissal by the Court of Criminal Appeal on 21 December 2004 of Mr Dunn's appeal against conviction and the adjustment of his sentence.

The charges.

12 Mr Dunn was born on 30 January 1941. He is aged 64 years. He is a retired school teacher. The charges to which he pleaded guilty before Finnane DCJ were said to have been committed on various dates between 9 March 1985 and 31 January 1995. The charges can be grouped as follows:

· Counts 1 and 7 charged an act of indecency under s61E(2) of the Crimes Act 1900 (since repealed).

· Counts 2 and 11 charged indecent assaults under s61E(1) of the Crimes Act 1900 (since repealed).

· Counts 3, 4, 5, 12, 15, 17, 18, 19, 20, 21 and 22 charged homosexual intercourse with a male person between the age of 10 years and 18 years under s78K of the Crimes Act 1900 (since repealed).

· Counts 6, 26 and 27 were charges of supplying a prohibited drug, cannabis, an offence under s25(1) of the Drug Misuse and Trafficking Act 1985.

· Counts 8, 9 and 10 were charges of homosexual intercourse with a male person under the age of 10 years, an offence under s78H of the Crimes Act 1900 (since repealed).

· Counts 13 and 14 were charges of attempted homosexual intercourse with a male person between the ages of 10 and 18 years, an offence under s78L of the Crimes Act 1900 (since repealed).

· The remaining counts (16, 23, 24 and 25) charged various sexual offences, including inciting others to commit such offences.

Background.

13 On 21 August 1987, three police officers went to Mr Dunn's home in search of a Mr Brian Wain. Mr Wain was a fugitive from Queensland, having absconded whilst on bail. He was an acquaintance of Mr Dunn. He was not, however, at the premises. In the course of the search, the police discovered a number of videos depicting Mr Dunn, as well as Mr Wain, "carrying out sexual activities with boys". The police also seized 20 or 30 photographs. At the time of the search, the police observed a young boy who was living in Mr Dunn's home.

14 Mr Dunn thereafter paid the three police officers $40,000 in return for their undertaking that no charges would be brought against himself or Brian Wain. The young boy who was living at the premises was told to leave, and did so.

15 In March 1989 one of the police officers who had been involved in the search was arrested and charged with supplying a prohibited drug. Mr Dunn became aware of his arrest and decided to leave New South Wales.

16 On 18 October 1989, Mr Dunn was arrested in Victoria. He was charged with having conspired to supply amphetamines. He was extradited to New South Wales. Mr Dunn's arrest coincided with an investigation by the police concerning allegations of corruption against a particular police officer. The police officer was one of the three officers who had been involved in the search of Mr Dunn's home in August 1987 and a recipient of part of the $40,000 paid by Mr Dunn. Whilst at Long Bay Gaol awaiting trial, Mr Dunn was approached by the police. He was asked to assist in the investigation. He was told that he would be indemnified in respect of any evidence that he gave. He was also assured that details of his co-operation would be provided to the judge who was ultimately called upon to sentence him in respect of the charges which he faced.

17 Mr Dunn agreed to provide assistance. On three occasions in January 1990 he participated in records of interview. The three police officers involved in the search of his home in August 1987 were thereafter charged.

18 On 3 April 1990, an indemnity was granted to Mr Dunn by the Attorney General of New South Wales, pursuant to s13 of the Criminal Procedure Act 1986 as then in force. The indemnity recited that Mr Dunn was required as a witness in the proceedings against the three police officers.

19 In the meantime, Mr Dunn pleaded guilty to two offences; that of having supplied in October 1989 a prohibited drug and supplying not less than a commercial quantity of a prohibited drug. On 28 May 1990, Court DCJ sentenced Mr Dunn to concurrent terms of 3 years imprisonment with a minimum term of 2 years and 3 months. In determining that sentence, his Honour took into account the assistance that had been provided by Mr Dunn to the police in respect of the prosecution of the three police officers.

20 In August 1990, the committal proceedings against the three police officers began in the Local Court. Mr Greg Smith, a Crown prosecutor, appeared for the Crown. Mr Dunn was called as a witness. He was given the pseudonym, "Mr Roberts". In the course of his evidence in chief, the following exchange took place between Mr Dunn and the magistrate hearing the committal:

21 The matter was then briefly adjourned so that the terms of the indemnity to Mr Dunn could be examined. The following day, 15 August 1990, the Attorney General gave Mr Dunn a further undertaking, this time under s14 of the Criminal Procedure Act, as then in force. By that undertaking, the Attorney General assured Mr Dunn that any answer he gave or disclosure he made in the proceedings against the police officers would not be used against him. The committal proceedings then continued. The three police officers were committed for trial.

22 On 18 January 1992, Mr Dunn was released from gaol, having served the minimum term of 2 years and 3 months.

23 Between March and June 1994, the three police officers stood trial for extortion in the District Court. One of the accused officers sought and was given a separate trial. The other two were tried together. Mr Dunn gave evidence against each. All were acquitted.

24 Before their acquittal, the Crown had taken no steps to charge Mr Dunn with any further offences. However, the police had, for some time, been investigating alleged homosexual paedophile offences by a number of individuals, including Mr Dunn. On 13 January 1992, Chief Inspector Watson attempted to interview Mr Dunn concerning certain tapes which had been seized following the arrest of a Mr Michael Hill. The tapes depicted both Mr Hill and Mr Dunn engaging in sexual acts with children, that is, persons not yet 18 years old. Mr Dunn declined to answer any questions.

25 There was, at this time, some controversy within the office of the Director of Public Prosecutions as to the scope of the protection provided to Mr Dunn by the indemnity which he had been given (cf R v Dunn [2004] NSWCCA 346, para 28). It was apparent that, were Mr Dunn prosecuted, he would decline to give evidence against the police officers. On 24 February 1992, Mr Greg Smith, Crown prosecutor, provided an advice in which he recommended against the prosecution of Mr Dunn. In the course of his advice, he expressed the view that it would be "grossly unfair" to prosecute in the circumstances. Others expressed a contrary view (cf Davidson DCJ, R v Dunn (unreported, 3/9/90) para 34; R v Dunn [2000] NSWCCA 171, para 57).

26 In late 1994, the Royal Commission into Police Corruption ("The Wood Royal Commission") began. On six occasions between 4 April 1995 and 1 November 1995, Mr Dunn was interviewed by the Commission. On 8 December 1995, he left Australia for Indonesia. On 26 March 1996, Mr Dunn failed to answer a summons that he give evidence before the Royal Commission.

27 In February 1996, the police came into possession of 72 video cassettes depicting Mr Dunn engaging in homosexual activities with two under age boys. These cassettes had been in the possession of Mr David Miller, now deceased. On 10 April 1996, the police seized a further 223 video cassettes from a location in Mildura. These videos formed the evidentiary basis for the charges which were subsequently laid against Mr Dunn. It was acknowledged by his counsel, when making application for special leave to the High Court (to which reference will be made later), that none of the corrupt police officers involved in the August 1987 search were, at the time of that search, aware of the tapes seized in February and April 1996 (High Court, 16 February 2001).

28 Whilst in Indonesia, Mr Dunn was advised that Honduras had no extradition treaty with Australia. According to information which appears in the opinion provided by Mr Richard Killea of counsel (and given to Mr John Nicholson SC, a public defender then appearing for Mr Dunn), Mr Dunn then travelled to Honduras on 12 May 1996. He said that he entered that country via Mexico. On 10 November 1997, he was arrested and questioned concerning the way in which he had entered the country. The interrogating officers from Honduras suggested that he had arrived via Florida. Mr Dunn denied that suggestion. However, he was thereafter taken by aircraft to Miami in the United States of America. On 11 November 1997 he was surrendered by Interpol and the Honduras immigration officials to the FBI. The following day Mr Dunn was brought before a United States Court. On 9 February 1998, the Court ordered that he be committed to custody in the United States until surrendered to the Australian government pursuant to the extradition treaty between Australia and the United States. Mr Dunn was ultimately extradited to Australia on 31 March 1998.

29 Upon his return to Australia, Mr Dunn was charged with a large number of offences. The offences broadly corresponded with those dealt with by Finnane DCJ, with the addition of a further 11 offences involving a complainant referred to as "K".

Application for a Stay.

30 After the Crown presented its indictment, an application was made on behalf of Mr Dunn by Mr Nicholson SC, a public defender, for a stay. It was said that, for a number of reasons, the charges against him were an abuse of process. The matter came before Davidson DCJ. He gave judgment on 3 September 1999. The two principal submissions made on behalf of Mr Dunn were identified by Davidson DCJ as follows:

First, police officers and Crown prosecutors had, by their conduct, "allowed the applicant to give evidence for the state (in the prosecution of the three police officers) on the basis that he believed, after discussions with them, that he was fully immune from prosecution" and "failed to inform the applicant, before he gave evidence at the committal and at the two trials, that there was the risk that he would be charged"; and

Secondly, that on the proper construction of the indemnity, and the undertaking given to Mr Dunn, he was fully indemnified in respect of any offence alleged to have been committed by him before he last gave evidence, or alternatively, before the indemnity or undertaking was signed by the Attorney General.

31 Davidson DCJ, having analysed the evidence, including Mr Dunn's account of his dealings with Crown law officers, as well as the accounts provided by such officers (in many cases supported by contemporaneous notes), determined as follows:

First, that Mr Dunn had failed to establish that he had a belief that he was immune from prosecution. On the contrary, there was "a strong body of evidence that he was well aware that he might be charged with offences arising out of his paedophilic activities before he gave any substantial evidence in any of the proceedings" against the three police officers.

Secondly, that on the proper construction of the indemnity of 3 April 1990, Mr Dunn was protected from prosecution in respect of the offences allegedly committed by him against the complainant "K", but not otherwise.

32 Davidson DCJ therefore stayed the prosecution of 11 charges involving the complainant "K", but not otherwise.

Appeal against refusal of Stay.

33 Mr Dunn lodged an appeal under s5F of the Criminal Appeal Act 1912 against the refusal to grant a stay in respect of 27 of the charges. The Court of Appeal gave judgment on 15 May 2000 ([2000] NSWCCA 171). There were four grounds of appeal. Ground (i) was concerned with the proper construction of the indemnity of 3 April 1990 and of the undertaking of 15 August 1990. Grounds (ii), (iii) and (iv) expressed, in various ways, what Sully J described as the "single proposition, namely: that the learned primary Judge did not consider at all, or did not consider properly" a contention that the Crown, by its officers, quite independently of the Attorney General, had engaged in conduct which made the present prosecutions an abuse of process (para 70).

34 Dealing with Ground (i), the indemnity issue, the indemnity was in the following terms: (R v Dunn [2000] NSWCCA 171, per Sully J, para 71)

" Indemnity

WHEREAS proceedings are pending against ... (X, Y and Z) ... for offences arising out of the receipt of a sum of money or part thereof which was withdrawn from the bank account of ROBERT DUNN on or about 21st August 1987, contrary to the law of New South Wales;

AND WHEREAS one ROBERT JOSEPH DUNN is required as a witness against the said ... (X, Y and Z) ... to adduce all the facts to his knowledge at the hearing of the said proceedings;

AND WHEREAS in order to adduce such facts the said ROBERT JOSEPH DUNN may render himself liable to prosecution for an offence under the law of New South Wales;

AND WHEREAS I, John Robert Arthur DOWD; Her Majesty's Attorney General for the State of New South Wales, am satisfied that for the effective prosecution of the said ... (X, Y and Z) ... and for the due administration of justice, it is necessary to have resort to the evidence of the said ROBERT JOSEPH DUNN and for that purpose the said ROBERT JOSEPH DUNN should be indemnified as hereinafter appears.

NOW THEREFORE I, the said John Robert Arthur DOWD, DO HEREBY UNDERTAKE that no criminal proceedings in the nature of the offences aforesaid or any associated offences shall be had or taken against the said ROBERT JOSEPH DUNN in relation to any part had by him in the commission of the offences by the said ... (X, Y and Z) ... which may render the said ROBERT JOSPH DUNN liable to prosecution and of which he might give evidence in the said proceedings;

PROVIDED that the said ROBERT JOSEPH DUNN gives his active co-operation including the giving of evidence truthfully and frankly and without embellishment and withholding nothing of relevance in the proceedings aforementioned in which he is required to give evidence in relation thereto.

Dated at Sydney, this 3 APR 1990 day of 1990"

35 The power to grant such an indemnity was at that time to be found in s13 of the Criminal Procedure Act 1986, which was as follows:

"s13(1) The Attorney General may, if of the opinion that it is appropriate to do so, grant an indemnity from prosecution (whether on indictment or summarily) -

(a) for a specified offence; or

(b) in respect of specified acts or omissions.

(2) If the Attorney General grants such an indemnity, no proceedings may thereafter be instituted or continued against the person in respect of the offence or the acts or omissions.

(3) Such an indemnity may be granted conditionally or unconditionally."

36 The undertaking given by the Attorney General on 15 August 1990 was in these terms: (Sully J, supra, para 73)

"Indemnity

WHEREAS proceedings are pending against ... (X, Y and Z) ... hereinafter called the defendants, for offences arising out of the receipt of a sum of money or part thereof which was withdrawn from the bank account of ROBERT DUNN on or about 21st August, 1987, contrary to the laws of New South Wales;

AND WHEREAS one ROBERT JOSEPH DUNN is required as a witness against the said defendants, to adduce all the facts to his knowledge at the hearing of the said proceedings;

AND WHEREAS in order to adduce such facts, the said ROBERT JOSEPH DUNN may render himself liable to prosecution for an offence under the laws of New South Wales;

AND WHEREAS I, John Robert Arthur DOWD, Her Majesty's Attorney General for the State of New South Wales, am satisfied that for the effective prosecution of the said defendants and for the due administration of justice, it is necessary to have to resort to the evidence of the said ROBERT JOSEPH DUNN and for that purpose the said ROBERT JOSEPH DUNN should be indemnified as hereinafter appears;

NOW THEREFORE I, the said John Robert Arthur DOWD, DO HEREBY UNDERTAKE that any answer given, or statement or disclosure made, or the fact that the said ROBERT JOSEPH DUNN discloses or produces a document or other thing, in the proceedings first abovementioned against the said defendants will not be used in evidence against the said ROBERT JOSEPH DUNN.

PROVIDED ALSO that the said ROBERT JOSEPH DUNN gives his active co-operation including the giving of evidence truthfully and frankly and without embellishment and withholding nothing of relevance in the proceedings aforementioned in which he is required to give evidence in relation thereto.

DATED at Sydney, this Fifteenth day of August, 1990."

37 The authority of the Attorney General to give such an undertaking was provided (at that time) by s14 of the Criminal Procedure Act 1986. That section was in these terms:

"s14(1) The Attorney General may, if of the opinion that it is appropriate to do so, give to a person an undertaking that -

(a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in specified proceedings; or

(b) the fact that the person discloses or produces a document or other thing in specified proceedings,

being proceedings for an offence against a law of the State (whether an indictable offence or a summary offence), will not be used in evidence against the person.

(2) If the Attorney General gives such an undertaking -

(a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the specified proceedings; or

(b) the fact that the person discloses or produces a document or other thing in the specified proceedings,

is not admissible in evidence against the person in any civil or criminal proceedings, other than proceedings in respect of the falsity of evidence given by the person.

(3) Such an undertaking may be given conditionally or unconditionally."

38 Sully J (Foster AJA and Carruthers AJ agreeing) dealt with the contention put on behalf of Mr Dunn on the appeal in these terms: (para 75)

"75. The learned primary Judge approached the construction of these two documents of the Attorney General by making at the outset a distinction between the indemnity granted pursuant to section 13, and the undertaking given pursuant to section 14. His Honour rejected a submission, which had been put for the appellant, that the combined effect of the two documents conferred the indemnity against prosecution for which the appellant was contending. At p85 of his judgment, his Honour points out, correctly in my respectful opinion: 's14 clearly provides not for an indemnity against prosecution but an undertaking that evidence given during the course of specified proceedings will not be used against the witness subsequently'. The section 14 undertaking might have work to do in connection with the course of conduct on the part of the prosecuting authorities, which is crucial to grounds ii, iii and iv; but the undertaking cannot amount, in my opinion, to an indemnity against prosecution. So far as concerns indemnification against prosecution, in a precise sense, the appellant must rely, so far as the documents are concerned, on the section 13 indemnity."

39 His Honour then quoted the following passage from the judgment of Davidson DCJ: (para 76)

D'Arrigo

Stead

It remains to consider however, the scope of the s13 indemnity. The document does not refer to any 'specified' offence or offences in accordance with paragraph (a) of ss1. Nor does it specify any acts of the applicant as provided in paragraph (b). Nothing of substance in my view however, turns on this. The important part of the document for present purposes appears at the bottom of the first page and reads:

'Now therefore I, the said John Robert Arthur Dowd, do hereby undertake that no criminal proceedings in the nature of the offences aforesaid or any associated offences shall be had or taken against the said Robert Joseph Dunn in relation to any part had by him in the commission of the offences by the said 'X, Y and Z' which may render the said Robert Joseph Dunn liable to prosecution and of which he might give evidence in the said proceedings.'

The substantial matter which arises for consideration under this aspect of ... (counsel's) ... submissions, relates to the scope of the phrase 'any associated offences' it being clear that the Crown does not suggest the applicant is criminally liable for any of his acts relating to the actual payment of the monies to the allegedly corrupt police officers. In this connection the Crown submits that the indemnity in addition, properly and benevolently construed further extends to protect the applicant from any offence relating to the harbouring of Mr Wain or relating to the possession of commercial pornographic videos. The Crown also concedes, at least as a possibility, that the s13 indemnity includes also sexual activity with A as depicted on the 'Sherlock Holmes' video, but not with any of the other complainants B, C, D, E, F, G. H, or I.

In my view the indemnity issued pursuant to s13 of the Criminal Procedure Act encompasses all alleged offences involving complainant A when considered against the background of the Crown's case on committal and in particular the Crown opening on the applicant's sexual activity with A and leading from the applicant evidence in chief of that sexual activity as an essential part of the allegedly corrupt bargain with the police officers, X, Y and Z (...). Accordingly, proceedings on all of the charges numbered 1 - 11 in the proposed indictment are barred by operation of s13(2) of the Criminal Procedure Act." (Judgment: 86, 87, 88)

40 Sully J (Foster AJA and Carruthers AJ agreeing) thereafter dealt with the issues raised on the appeal in these terms: (paras 77-82)

R v Georgiadis

Georgiadis

Georgiadis.

'or any associated offences

associated offences

due administration of justice

82 In my respectful opinion, the reasoning of Davidson DCJ in connection with the section 13 indemnity and the section 14 undertaking was correct. It follows that, in my opinion, ground of appeal (i) has not been established by the appellant."

41 Turning to the remaining grounds, Sully J then dealt with the various criticisms made of the primary Judge's findings. Those findings included the following passage in the judgment of Davidson DCJ: (para 105)

"(d) When questioned by the investigative officers attached to the Royal Commission he stated that Mr Watson had not given him any assurance that he would not be charged (see para 5 hereof). Whilst it may well be that Mr Watson quite properly cultivated a relationship with the applicant which would be conducive to his giving evidence in the proceedings against X, Y and Z, I reject as implausible the applicant's assertion that he maintained his stance before the Royal Commission officers because he wished to protect Watson. I find it inconceivable that he would risk prosecution for serious sexual offences for this reason."

42 Dealing with that paragraph, Sully J said this: (para 107-109)

"107 The submissions now made for the appellant attack as misconceived the finding expressed in the concluding sentence of the paragraph quoted above. It is submitted that the appellant told deliberate lies to the officers of the Royal Commission; that he did so, as he asserts, in order to assist Chief Inspector Watson in the latter's hour of need; and that he gave nothing away by so exculpating Chief Inspector Watson, because he had in hand the indemnity and the undertaking, and believed that they gave him a simple and comprehensive protection from prosecution for his past activities as a paedophile.

implausible

109 Secondly, it is true that the appellant, by telling lies about his dealings with Chief Inspector Watson, did not thereby give away whatever protection against prosecution he had by reason of the indemnity and the undertaking. But he did give away the possibility of running the very argument upon which he now so greatly relies, namely, that, quite independently of the indemnity and the undertaking, he had de facto protection, simply and comprehensively, against prosecution for his sexual activities because he had been led by Chief Inspector Watson, in particular, to believe that such would be the effect of his cooperating with the investigating police in the way that he did."

43 His Honour concluded that the views expressed by Davidson DCJ in respect of other aspects relevant to grounds (ii), (iii) and (iv) were open to him. The Court unanimously dismissed the appeal.

44 On 16 February 2001, Mr Dunn made application to the High Court for special leave to appeal. His application was refused.

45 It was in these circumstances that Mr Dunn was arraigned before Finnane DCJ in respect of the charges which had not been stayed by Davidson DCJ, to which he then pleaded guilty.

The appeal to the Court of Criminal Appeal.

46 Having been sentenced by Finnane DCJ, Mr Dunn lodged an appeal against conviction and sought leave to appeal against sentence. The proceedings before Finnane DCJ had been protracted. The Court of Criminal Appeal described what had occurred in these terms: ([2004] NSWCCA 346, paras 43-44)

"43 The legal representation of the applicant changed during the proceedings on sentence. Up until 7 November 2001 the applicant was represented by Mr McCrudden of counsel. From 7 November 2001 to 16 November 2001 the applicant was represented by Mr Meltzer of counsel and from 16 November 2001 to 7 December 2001 the applicant was represented by Dr Gumbert of counsel.

44 From time to time in the proceedings on sentence counsel who was then appearing for the applicant foreshadowed an application for leave to withdraw the applicant's pleas of guilty or actually made an application to withdraw the please of guilty. Whenever such an application was actually made, Judge Finnane refused the application. A written application for leave to withdraw the pleas of guilty was filed before the hearing on 7 December 2001 but at the beginning of the hearing on 7 December 2001 counsel for the applicant withdrew the application. Subsequently at the hearing on 7 December 2001 counsel for the applicant said that the applicant had maintained pleas of not guilty, only for so long as the matters raised in his application for a stay had remained undetermined, and counsel urged the sentencing judge to take into account the applicant's pleas of guilty in sentencing the applicant."

47 In respect of the appeal against conviction, the Court identified the grounds relied upon by Mr Dunn in these words: (para 54)

"1. The applicant was deceived into making the pleas of guilty.

2. The applicant was induced to plead guilty by the Crown proposing to tender, as evidence in any trial of the applicant, videos which would not have been properly admissible against the applicant.

R v Tilley

4. Judge Finnane was not impartial, because of an association between his Honour and a television channel (Channel 9), and should have disqualified himself.

5. Prejudicial publicity about the applicant before the hearing 'fatally compromised' the Crown case against the applicant.

6. The applicant had been unlawfully brought to New South Wales by being unlawfully expelled from Honduras and then being unlawfully extradited from Florida in the United States of America."

48 Ground 1 on the appeal plainly covered much of the same material as item 6 in the grounds relied upon by Mr Dunn in his application for an Inquiry under s474D. Item 6, it will be remembered, in substance, was as follows:

"Item 6. Inducement offered for a guilty plea.
Mr Dunn alleges that during his trial in June 2001 with respect to the twenty seven (27) offences he was informed by his Counsel that the Director of Public Prosecution had offered him in return for a plea of guilty an undertaking to make an application for an eight (8) year sentence with a minimum non parole period of six (6) years. By reason of the resulting thirty (30) year sentence with a minimum non parole period of twenty two and a half (22-1/2) years indicates that the Crown Prosecutor of Mr Dunn's Counsel was not telling the truth when the suggestion was made for an eight (8) year sentence with a minimum non parole period of six (6) years to be pressed."

49 The Court considered the circumstances in which a plea of guilty may be withdrawn. It also considered the allegations of deception. In the course of its judgment, it made the following observations: (para 59)

"59 As we have already indicated, the applicant's pleas of guilty were entered on 26 June 2001 and remained in effect during a sentence hearing which extended over almost six months and in which the applicant was continuously legally represented, albeit by a succession of counsel. At the hearing on 7 December 2001 counsel for the applicant told the court that an application which had been filed for leave to withdraw the pleas of guilty was itself being withdrawn and counsel urged Judge Finnane to take into account the applicant's pleas of guilty in sentencing the applicant."

50 In respect of ground 1, the Court unanimously reached the following view: (para 64)

"64 In the first ground of appeal against conviction the applicant alleges that he was deceived into making the pleas of guilty. In his written submissions the applicant alleges that counsel then appearing for the applicant told the applicant that counsel had made a plea bargain with the prosecution, that, if the applicant pleaded guilty to all the offences charged, the prosecution would seek sentences much more lenient than those ultimately imposed. If there was any evidence of these allegations, then it might be arguable that the applicant's please of guilty were induced by some impropriety. However, there is no evidence before this Court of the making of any such plea bargain or of any such conversation between the applicant and his counsel. Furthermore, even if there was such evidence, we would not accept that the applicant would not otherwise have pleaded guilty to the charges."

51 Ground 2 was concerned with many of the same issues raised by Item 1 (broken promises), Item 4 (DPP's decision not to prosecute me and the indemnity) and Item 7 (inadmissible evidence) in the application for an Inquiry. The Court reached the following view in respect of ground 2: (para 65)

"65 As regards the second ground of appeal against conviction, the applicant alleges in his written submissions that the Crown agreed, during the pendency of the applicant's application for a stay of the criminal proceedings against him, that the Crown would not use in the prosecution of the applicant any evidence which the police had obtained before 1994 and that the Crown, in breach of the agreement, proposed to use as evidence against the applicant in any trial of the applicant, videos which had been compiled by combining extracts from videos which had been obtained by the police before 1994. There is no evidence before this Court to support the applicant's allegation about the provenance of the videos which the Crown proposed using as evidence in any trial of the applicant. It was the Crown case that police had not obtained the videos the Crown proposed using as evidence until some time in 1996, and the Crown case was supported by evidence from a police officer."

52 Ground 6 on the appeal relied upon the same issues identified by Mr Dunn in his application for an Inquiry, Item 2 (removal from Honduras) and Item 3 (statute of limitations in Florida (United States of America)). The Court found, in respect of the complaint concerning Mr Dunn's allegedly unlawful expulsion from Honduras and extradition first to Florida and then to Australia, that, even were the factual matters established, they "could not amount to valid grounds of appeal against conviction".

53 The appeal against conviction by Mr Dunn on these and the other grounds was therefore dismissed ([2004] NSWCCA 346, paras 69). Leave to appeal against sentence, however, was granted. As mentioned, the Court moderated the sentence imposed by Finnane DCJ.

54 Against this background, I now turn to the seven grounds identified by Mr Dunn as the basis for an Inquiry under s474D.

Items 1, 4 and 7 of the application.

55 There are common issues raised by various grounds. It is convenient to deal with grounds 1, 4 and 7 together. It will remembered that those grounds are as follows (quoting from the summary provided by the Crown):

Item 1. Broken Promises.

Item 4. DPP's decision not to prosecute me - and the indemnities.

Item 7. Inadmissible evidence.

56 In essence Mr Dunn raised the following complaints:

· First, that having agreed to give evidence against the three police officers, he was assured:

(a) that he would receive an indemnity which would provide him with immunity against prosecution;

(b) that his name would be suppressed and that he would receive a new identity and a pseudonym.

· Secondly, that, in breach of that promise, Justice Wood revealed during the course of the Royal Commission into Police Corruption, Mr Dunn's identity and that he had given evidence against the three corrupt police officers. Justice Wood, during the course of a public hearing, showed video footage depicting Mr Dunn committing homosexual paedophile offences, using videos seized by the police before 1994.

· Thirdly, that such conduct on the part of Justice Wood, constituted a contempt of court and rendered all proceedings thereafter "contaminated".

· Fourthly, that Davidson DCJ, on the stay application, was wrong to find that Mr Dunn did not have a belief that he was protected by the indemnity and the undertaking that he had been given. The Court of Criminal Appeal was wrong to uphold the judgment of Davidson DCJ.

· Fifthly, that the video footage which the Crown sought to use in the prosecution of Mr Dunn, showing him engaging in sexual acts with under age boys prior to 1990, was inadmissible. It depicted acts prior to the date of the indemnity and undertaking given to him. Reliance upon that material, according to Mr Dunn's submissions, breached the terms of the indemnity and undertaking. Moreover it breached an assurance given by the Crown at the time of the stay application in 1999.

57 The proper construction of the indemnity provided to Mr Dunn on 3 April 1990 and the undertaking given by the Attorney General on 15 August 1990 have been considered on a number of occasions. It is plain that the broad construction suggested by Mr Dunn cannot be justified. Section 13 of the Criminal Procedure Act 1986 empowered the Attorney General to give an indemnity "for a specified offence" or "in respect of specified acts or omissions". Clearly, as Davidson DCJ found, that cannot cover offences committed after the date of the indemnity. A number of the charges against Mr Dunn alleged offences after 1990. Moreover, the indemnity and undertaking dealt with only the matters particularised in each deed and "associated offences". Davidson DCJ found that the "associated offences" could include sexual activity by Mr Dunn with one of the complainants (complainant "A") as depicted in one of the videos seized by the corrupt police. It did not, and could not, embrace offences by Mr Dunn as described by complainants "B", "C", "D", "E", "F", "G", "H" or "I". As the Crown pointed out in submissions made on this application, "the twenty seven (27) convictions in respect of which pleas of guilty were entered are not related or referred to in either indemnity".

58 Further, Davidson DCJ found, and the Court of Criminal Appeal accepted, that the undertaking given by the Attorney General on 15 August 1990 did not provide an indemnity against prosecution. Rather, it gave an undertaking that evidence given by Mr Dunn during the course of the specified proceedings would not be used against him subsequently.

59 The construction placed upon the indemnity by Davidson DCJ was, as mentioned, unanimously accepted by the Court of Criminal Appeal (R v Dunn [2000] NSWCCA 171). Mr Dunn sought special leave to appeal against the decision of the Court of Criminal Appeal. On 16 February 2001 the High Court refused leave. The Crown, in these circumstances, made the following submission which I accept: (page 21)

"... there is no basis whatsoever for there to be any doubt or unease arising with respect to the convictions based upon the said indemnities having been granted to Mr Dunn."

60 In respect of the alleged "broken promises", the Crown, in its submission, said this: (page 23)

"To the extent that ground 1 ('broken promises') raises issues of promises of a new identity and a pseudonym, it is observed that matter has never been raised by Mr Dunn prior to the lodgement of the application for a review of the convictions. Further it is unsupported by any contemporaneous correspondence or other supporting material. No indication is given as to who on behalf of the Crown is alleged to have made such promises to Mr Dunn. In all events neither the promise of a new identity nor the promise of the offer of pseudonym and that his name would otherwise be suppressed touch upon the issue of raising a doubt or question as to the convictions entered."

61 It may be accepted that the Crown undertook that it would make application to the Local Court (during the committal proceedings) and the District Court (during the trials) that Mr Dunn should give his evidence by the use of a pseudonym. The Crown, indeed, made such applications and, in each case, was successful. Mr Dunn therefore gave his evidence by pseudonym. However, it cannot be supposed that the Crown undertook, or could have undertaken to do more than that. Specifically, the Crown could not guarantee that the Court would, in each case, accede to its application. Nor could it bind a future Royal Commission, enquiring into police corruption, as to the use it may make of such material.

62 Turning to the video evidence relied upon by the Crown in support of the prosecution of Mr Dunn before Finnane DCJ, the precise issue which Mr Dunn seeks to raise in his application for an Inquiry was dealt with by the Court of Criminal Appeal in December 2004. I repeat and adopt what the Court said on that matter, namely: (para 65)

"65 As regards the second ground of appeal against conviction, the applicant alleges in his written submissions that the Crown agreed, during the pendency of the applicant's application for a stay of the criminal proceedings against him, that the Crown would not use in the prosecution of the applicant any evidence which the police had obtained before 1994 and that the Crown, in breach of the agreement, proposed to use as evidence against the applicant in any trial of the applicant, videos which had been compiled by combining extracts from videos which had been obtained by the police before 1994. There is no evidence before this Court to support the applicant's allegation about the provenance of the videos which the Crown proposed using as evidence in any trial of the applicant. It was the Crown case that police had not obtained the videos the Crown proposed using as evidence until some time in 1996, and the Crown case was supported by evidence from a police officer."

63 It can be seen, therefore, that almost all the material relied upon by Mr Dunn has been fully dealt with in proceedings giving rise to his conviction, or in applications which were heard before those proceedings began (cf s474E(3)(a)(i)). They do not, in my view, give rise to a doubt or question as to Mr Dunn's guilt, as to any mitigating circumstances or as to any part of the evidence in his case (s474E(2)).

Items 2 and 3: Extradition.

64 Items 2 and 3 in the application for an Inquiry were summarised by the Crown in these terms:

Item 2. Removal from Honduras.

Item 3. Statute of Limitations in Florida (United States of America).

65 After the Court of Criminal Appeal had dismissed Mr Dunn's appeal against conviction on 21 December 2004, a letter was written to him asking whether he wished to proceed with his application for an Inquiry. He responded on 16 February 2005, saying that he did. He drew attention to a letter of 27 November 2003 which identified the "key issues". Mr Dunn added:

"None of these issues was argued before the Court of Criminal Appeal as I was only represented at the appeal in respect of my appeal against the severity of sentence."

66 Whilst it is true that Mr Dunn was only represented by counsel on the sentence appeal, he nonetheless represented himself on the conviction appeal, indicating that he would rely upon written submissions which were provided to the Court. As mentioned, both the appeal and the application for an Inquiry included, as a ground of complaint, the arrest and extradition of Mr Dunn from Honduras and later from Miami. These issues were also identified as "key issues" justifying an Inquiry in Mr Dunn's letter of 27 November 2003.

67 The legality of the extradition was challenged in Miami. The issue was litigated at some length. Ultimately, an order for extradition was made, pursuant to the treaty between the United States and Australia (see transcript p15, 9 November 2001, proceedings on sentence). Once in Australia, Mr Dunn was duly charged. In the circumstances which have been identified, he pleaded guilty.

68 The issue, relevantly, is whether by reason of the matters raised by Mr Dunn, there is a doubt or question as to Mr Dunn's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case (s474E(2)). In my view they do not. In respect of that issue, I repeat and adopt the finding of the Court of Criminal Appeal, commenting upon the same issues, when they said this (R v Dunn [2004] NSWCCA 346, para 68) (referring also to ground 5 in the appeal by Mr Dunn that he was prejudiced by publicity before the hearing):

"68 The last two grounds of appeal sought to be relied on by the applicant, even if the factual matters on which they are based were established, could not amount to valid grounds of appeal against conviction."

Item 5: Inadequate legal representation at the stay application.

69 Mr Dunn, in his application for an Inquiry, asserted that his counsel, Mr John Nicholson SC, failed him in various ways. He said this:

My legal representation at my application for a permanent stay failed me.

My counsel, John Nicholson SC, omitted important evidence, and failed to cross-examine witnesses in accordance with my instructions. This left my application open to dismissal. My counsel failed to inform me of all my options, in particular my right to call expert witnesses.

I needed an expert to study the indemnity documents and to advise the court as to whether he believed that I would have considered myself fully protected from prosecution by these indemnity documents. Stephen Odgers SC, and Dr Marc Gumbert, barrister, have subsequently advised me that I needed, and had the legal right to, such expert witnesses.

Nicholson SC handed over my case to an inexperienced junior barrister for two crucial days just before the conclusion of the hearing. At my appeal before the CCA, Nicholson SC again handed over my application to the same junior. This, in my opinion, jeopardised my application."

70 A number of observations should be made. First, the allegations against Mr Nicholson are extremely general. Mr Nicholson is said to have omitted important evidence. The evidence is not identified. He is said to have failed to cross examine witnesses in accordance with Mr Dunn's instructions. The witnesses are not identified by name. The instructions are not provided.

71 Mr Dunn is, however, specific in respect of one issue. Mr Nicholson ought to have advised him on his right to call expert witnesses. The particular issue, according to Mr Dunn, where it would have been advantageous to have an expert was also identified, namely:

"... to study the indemnity documents and to advise the Court as to whether he believed that I would have considered myself fully protected from prosecution by these indemnity documents."

72 However, Mr Dunn's belief as to the breadth and coverage of the immunity is not an issue in respect of which expert evidence would have been admissible.

73 Finally, Mr Nicholson is criticised in his conduct of the stay application and of the appeal, in permitting his junior to conduct the case on certain days. Mr Dunn offers the opinion that, in doing so, his stay application and the appeal were jeopardised. Again the suggestion is very general. Nothing in particular said or done by junior counsel is identified and made the subject of adverse comment. It is, of course, not uncommon, especially in complex cases, for there to be a division of labour between senior and junior counsel, so that part of the case is presented by the junior. It is instructive that Mr Nicholson appeared with the same junior both on the application for a stay and on the appeal.

74 The Crown, in the submission responding to Mr Dunn's allegations, noted that these allegations were made for the first time in October 2003 in his application for an Inquiry.

75 Again one must focus upon the precise issue. Is the material provided by Mr Dunn such that it gives rise to unease or disquiet in allowing the conviction to stand? I am not persuaded that it does (cf R v Birks (1990) 19 NSWLR 677, especially per Gleeson CJ at 685).

76 Mr Dunn further alleges that the Crown, in the proceedings on the stay application, sought to introduce into evidence a tape (which itself was incomplete) of an interview by a Channel 9 news reporter with Mr Dunn. The interview took place some two years earlier. The tape, according to Mr Dunn, had not been served. The Crown prosecutor wished to use part of the tape in his cross examination of Mr Dunn on credit. Mr Nicholson SC objected. The tape was, nonetheless, admitted and used. Mr Dunn felt at a disadvantage, since the interview had been given some time ago and he had not had the opportunity to refresh his recollection. Davidson DCJ used this material in his assessment of Mr Dunn's evidence. He found his response to these issues "unconvincing".

77 Mr Dunn complains that cross examination of him, based upon the tape, before his counsel had access to it, was a breach of Rule 66 of the Bar Rules. Rule 66 provides that withholding material from the defence could well constitute a miscarriage of justice and may lead to the setting aside of a decision of the Court.

78 On this occasion the complaint by Mr Dunn appears to be not so much against Mr Nicholson SC, who objected to the material, as against the Crown prosecutor, who used it to his advantage. Perhaps it is also a complaint against the Judge who found the material persuasive. It should, however, be remembered that the issue arose on an application for a stay, not a trial. It is not obvious on such an application that the Crown was obliged to serve the tape in advance of the cross examination. But, even assuming it was, the suggested breach, in the context of this trial, does not to my mind give rise to unease or a sense of disquiet in respect of the convictions.

Item 6: Inducement to plead guilty.

79 Mr Dunn, in his application, elaborated upon this ground in these words:

Having been denied the stay application, I was committed for trial on the charges that are now the subject of this appeal.

I went to trial in June 2001. During the trial, my counsel told me that the DPP had offered to press for an 8 year sentence, with minimum non-parole of 6 years, if I changed my plea to guilty on all the counts in the indictment. I accepted the offer. The resulting sentence of 30 years, with minimum non-parole 22.5 years, indicates that either the Crown prosecutor or my counsel was not telling me the truth when suggesting the 8 year sentence."

80 As mentioned, the assertion made in Item 6 is the same as a ground raised by Mr Dunn in his appeal against conviction before the Court of Criminal Appeal (supra: para 48).

81 Apart from the bare assertion by Mr Dunn that the representation was made, there is no evidence offered in support of that assertion. Mr Dunn entered pleas of guilty to all charges on 26 June 2001. The matter was then adjourned for a psychiatric report (T23). On 7 November 2001 an application to reverse the pleas of guilty was foreshadowed by Mr McCrudden of counsel, then appearing for Mr Dunn. The same issue was raised by Mr Meltzer, who also appeared. On 9 November 2001 Mr Meltzer adverted to the possibility of "a plea to jurisdiction" (T4). In doing so he made reference to the allegedly unlawful extradition of his client. Shortly after Mr Meltzer stated that, regardless of the jurisdiction argument, Mr Dunn would seek to reverse his plea.

82 Mr McCrudden then withdrew from the proceedings on 9 November 2001 (T1). Mr Meltzer withdrew on 16 November 2001 (T1). Dr Marc Gumbert then appeared for Mr Dunn. He also foreshadowed an application to reverse his pleas (T5). Dr Gumbert then informed the Court of the following: (T6)

"He tells me that the Crown would be putting to the Court that eight years was the proper figure that he should be sentenced to ... "

83 The Crown prosecutor rejected any suggestion of such an arrangement (T7 line 46).

84 On 7 December 2001 the application to reverse the plea was withdrawn (T1). Dr Gumbert urged Finnane DCJ to take account of Mr Dunn's pleas of guilty when sentencing his client, which he did.

85 It is hardly surprising, in these circumstances, that the Court of Criminal Appeal, when considering the same allegation, unanimously reached the following view, which I repeat and adopt: (para 64)

"64 In the first ground of appeal against conviction the applicant alleges that he was deceived into making the pleas of guilty. In his written submissions the applicant alleges that counsel then appearing for the applicant told the applicant that counsel had made a plea bargain with the prosecution, that, if the applicant pleaded guilty to all the offences charged, the prosecution would seek sentences much more lenient than those ultimately imposed. If there was any evidence of these allegations, then it might be arguable that the applicant's pleas of guilty were induced by some impropriety. However, there is no evidence before this Court of the making of any such plea bargain or of any such conversation between the applicant and his counsel. Furthermore, even if there was such evidence, we would not accept that the applicant would not otherwise have pleaded guilty to the charges."

Conclusion.

86 I am therefore quite unpersuaded that the material and issues raised by Mr Dunn in his application for an Inquiry under s474D make it appropriate to direct an Inquiry into his convictions.

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Citations

Appn of Robert Joseph Dunn [2005] NSWSC 857

Most Recent Citation

Application of Paul Nardelli under Section 474D Crimes Act 1900 [2006] NSWSC 967

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Cases Cited

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Statutory Material Cited

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R v Dunn [2004] NSWCCA 346

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CITATION:	Appn of Robert Joseph DUNN [2005] NSWSC 857
JUDGMENT DATE :	30 August 2005
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	Application for an Inquiry under s474D of Crimes Act 1900 declined.

CATCHWORDS:	Criminal Practice & Procedure - application pursuant to s474D of the Crimes Act 1900 - test to be applied - history of appeals - relevance to issues raised in application - no unease in respect of convictions following pleas of guilty.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986
CASES CITED:	R v Dunn [2004] NSWCCA 346 Varley v The Attorney General (1987) 8 NSWLR 30 Appl of Benito Esposito (SC, unreported, 14.7.88) R v Dunn (unreported, 3.9.90) R v Dunn [2000] NSWCCA 171 R v Birks (1990) 19 NSWLR 677
PARTIES:	Regina Robert Joseph Dunn
FILE NUMBER(S):	SC 70088/03
SOLICITORS:	W Abadee - Crown Solicitor (Resp) R J Dunn (Appl)

LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER :	Finnane DCJ