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Appn of Robert Joseph DUNN

Appn of Robert Joseph DUNN

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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

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…

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.

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Details

Case: [2005] NSWSC 857
Decision Date: 30 August 2005

CaseChat Overview and Summary

The applicant, Robert Joseph Dunn, made an application under section 474D of the Crimes Act 1900 to review his convictions. The application was heard in the Supreme Court of New South Wales. Dunn sought to have his convictions quashed or set aside, arguing that the convictions were not just and should not be allowed to stand. The legal issues that arose in the case were whether the applicant had satisfied the criteria set out in section 474D(2) of the Act, and whether the court should consider the history of appeals and pleas of guilty in making its decision.

The court examined the statutory provisions and case law to determine the appropriate test to apply in this context. It noted that the test was whether the applicant had shown that the convictions were not just or should not be allowed to stand. The court also considered the relevance of the history of appeals and pleas of guilty in assessing the applicant's submissions. The court found that Dunn had not satisfied the test, and that there was no unease in respect of the convictions following his pleas of guilty. The court held that the application should be dismissed.

The Supreme Court dismissed the application and ordered that Dunn's convictions remain in place. The court noted that Dunn had entered pleas of guilty and that there was no evidence to suggest that the convictions were not just. The court found that Dunn had not made out a case for the relief sought under section 474D of the Act.

Orders