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Dun (a pseudonym) v The Queen

Dun (a pseudonym) v The Queen

Case [2021] VSCA 286 15 October 2021

Natural Justice & Procedural Fairness

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0106

JAXON DUN (a Pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym and initials in place of the names of the complainants.

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JUDGES:	MAXWELL P, KAYE and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 October 2021
DATE OF JUDGMENT:	15 October 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 286
JUDGMENT APPEALED FROM:	DPP v [Dun] (Unreported, County Court of Victoria, Judge O’Connell, 20 July 2021)

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CRIMINAL LAW – Interlocutory appeal – Incest, indecent act with child under 16 – Two complainants – Charges joined on indictment – Whether judge erred in refusing to sever charges – Whether applicant able to receive fair trial if charges tried together – Where degree of similarity in offending – Where Crown does not rely on tendency evidence – Where risk of jury engaging in tendency reasoning – Whether appropriate directions would ameliorate any unfairness – Whether nature of offending such that risk of prejudice unacceptable – Refusal to sever reasonably open – Appeal dismissed – R v TJB [1998] 4 VR 621; R v KRA [1998] 2 VR 708; GBF v The Queen [2010] VSCA 135; Hughes v The Queen (2017) 263 CLR 338, considered – Criminal Procedure Act2009 ss 193, 194.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Edney	David Luscombe & Associates
For the Respondent	Mr N Hutton with Ms C J Duckett	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Walker JA. I agree that the proposed orders should be made, for the reasons which her Honour gives.

KAYE JA:

I have had the advantage of reading the draft reasons of Walker JA. For the reasons given by her Honour, I agree that the applicant should be granted leave to appeal, but that the appeal should be dismissed.

WALKER JA:

The applicant is standing trial for four sexual offences: three charges of incest and one charge of indecent act with a child under the age of 16. One offence is alleged to have involved his granddaughter, SD. That charge alleges digital penetration of SD by the applicant. The other three offences are alleged to have involved his granddaughter JD. Two of those charges allege digital penetration of JD by the applicant. There is thus a degree of similarity in the offending. Nonetheless, the prosecution does not rely on the evidence of alleged offending against one granddaughter as tendency evidence in relation to the alleged offending against the other granddaughter.

The four offences are included in a single indictment. Thus, by reason of s 170(1) of the Criminal Procedure Act 2009 (‘CPA’) the charges are to be heard together unless an order is made under ss 193 or 195 of 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 Dun (a pseudonym) v The Queen

Details

AGLC: Dun (a Pseudonym) v The Queen [2021] VSCA 286
Case: [2021] VSCA 286
Decision Date: 15 October 2021

CaseChat Overview and Summary

Dun appeals against the decision of a magistrate to refuse a severance of charges under s 193 of the Criminal Procedure Act 2009. Dun is charged with one count of incest and one count of indecent act with a child under 16. The two complainants in these matters are his two daughters. The appeal was heard in the County Court of Victoria. Dun contends that the charges should have been severed, as he would not receive a fair trial if they were heard together. He argues that the similarity of the charges is so great that there is an unacceptable risk of prejudice, notwithstanding that the Crown does not rely on tendency evidence.

The court identified the legal issue as whether the refusal to sever the charges was reasonably open, given the similarity of the charges and the risk of prejudice. The court considered the relevant authorities and noted that the degree of similarity and the risk of prejudice must be significant for a severance to be ordered. The court also considered whether appropriate directions would ameliorate any unfairness. In this case, the court found that the nature of the offending was such that the risk of prejudice was not unacceptable. The court found that the refusal to sever was reasonably open and dismissed the appeal. The court noted that the authorities supported the view that a severance is not automatically required where charges are similar, and that appropriate directions can usually address any risk of prejudice. The court was not persuaded that the risk of prejudice in this case was so great as to require a severance.

No orders were made in relation to the appeal. The appeal was dismissed, and the matter will proceed to trial with the charges joined.

Orders