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Dunn (a pseudonym) v The Queen

Dunn (a pseudonym) v The Queen

Case [2017] VSCA 371 13 December 2017

Appeal

Admissibility of Evidence

Possessing Precursor Chemical

Trafficking in Drug of Dependence

Sentencing

Parity

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2017 0017

HOWARD DUNN (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]This judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicants and of certain other persons to protect the fair trial of another proceeding.

S APCR 2017 0023

ALLAN WATTS (a pseudonym)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BEACH and McLEISH JJA
WHERE HELD:	GEELONG
DATE OF HEARING:	1 August 2017
DATE OF JUDGMENT:	13 December 2017 (MELBOURNE)
MEDIUM NEUTRAL CITATION:	[2017] VSCA 371
JUDGMENT APPEALED FROM:	DPP v [Dunn] (Unreported, County Court of Victoria, Judge Hampel, 16 December 2016)

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CRIMINAL LAW – Appeal – Conviction – Evidence – Admissibility – Other misconduct evidence – Possessing substances, materials and equipment for trafficking – Trafficking in commercial quantity of drug of dependence – Evidence of earlier discovery of similar equipment and materials – Evidence used to rebut defence of innocent association – Whether probative value outweighed danger of unfair prejudice – Jury warned against misusing evidence – Evidence correctly admitted – Appeal dismissed – Harriman v The Queen (1989) 167 CLR 590 applied – Drugs, Poisons and Controlled Substances Act 1981 ss 71AA, 71A, 73; Evidence Act 2008 s 137.

CRIMINAL LAW – Appeal – Conviction – Possessing precursor chemical – Joint criminal enterprise – Integrated directions – Discussion between trial judge and defence counsel – Text of jury questions agreed with counsel – No exception to judge’s charge – Whether judge obliged to give further directions – Whether ‘substantial and compelling reasons’ – No further direction necessary – Appeal dismissed – Jury Directions Act 2015 ss 1, 5, 11, 12, 14, 15, 16, 65, 67.

CRIMINAL LAW – Appeal – Sentence – Possessing precursor chemical – Trafficking in drug of dependence – Total effective sentence 4 years and 3 months’ imprisonment, non-parole period 2 years and 3 months – Parity – Same criminal enterprise – Co-accused received lower sentences for more serious offences – Whether disparity of sentences justified – Crown concession of sentencing error – Appeal allowed – Resentenced – Total effective sentence 2 years and 9 months’ imprisonment, non-parole period 18 months – Drugs, Poisons and Controlled Substances Act 1981 ss 71AC, 71D.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (Dunn)	Mr D A Dann QC	Haines & Polites
For the Applicant (Watts)	Mr C T Carr with Ms K Farrell	Valos Black & Associates
For the Respondent	Ms S Flynn	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA
McLEISH JA:

Summary

These appeals arise out of convictions for drug offences — trafficking; possessing substances, materials and equipment for trafficking; possessing a precursor chemical; and possession. The two applicants were tried together before a County Court jury, and their applications for leave to appeal were heard together.

The first application concerns the admissibility of what is now referred to in the Jury Directions Act 2015 (‘JDA 2015’) as ‘other misconduct evidence’.[2] In the prosecution…

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 Dunn (a pseudonym) v The Queen

Details

AGLC: Dunn (a pseudonym) v The Queen [2017] VSCA 371
Case: [2017] VSCA 371
Decision Date: 13 December 2017 (MELBOURNE)

CaseChat Overview and Summary

Dunn, a pseudonymous appellant, has brought an appeal against his conviction and sentence for possessing substances, materials, and equipment for trafficking, as well as trafficking in a commercial quantity of a drug of dependence. The appeal was heard in the High Court of Australia. The appellant's primary contentions revolve around the admissibility of evidence of earlier discovered similar equipment and materials, the adequacy of jury directions, and the fairness of his sentence in comparison to co-accused.

The central legal issues addressed by the court were whether the evidence of the earlier discovery was admissible under the balancing test of section 137 of the Evidence Act 2008, whether the trial judge was required to provide further jury directions, and whether the disparity in sentences between the appellant and his co-accused warranted reconsideration. The court held that the evidence of the earlier discovery was correctly admitted as its probative value was not outweighed by the danger of unfair prejudice. Additionally, the court found that the judge had sufficiently directed the jury, and no further directions were necessary as there were no substantial and compelling reasons to do so. Finally, regarding the sentence, the court accepted the Crown's concession that there had been a sentencing error due to the disparity with co-accused sentences and allowed the appeal on that ground.

The appeal was dismissed in relation to the admissibility of evidence and jury directions, as the court found no error in the trial judge's handling of these matters. However, the appeal was allowed concerning the sentence, which was deemed disproportionate compared to the sentences of co-accused who had received lesser penalties for more serious offences. Consequently, the appellant's total effective sentence was reduced from 4 years and 3 months' imprisonment to 2 years and 9 months' imprisonment, with the non-parole period reduced from 2 years and 3 months to 18 months.

Orders