Dunn (a pseudonym) v The Queen - [2017] VSCA 95

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0253

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

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	3 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 95
JUDGMENT APPEALED FROM:	DPP v Dunn (a pseudonym) (Unreported, County Court of Victoria, Judge Montgomery, 21 September 2016 (Conviction))

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CRIMINAL LAW – Application for leave to appeal – Conviction – Indecent act with a child under 16 (four charges) – Whether judge erred in admitting evidence of complaint to complainant’s boyfriend – Whether evidence tainted by a process of innocent infection – Whether judge should have given jury direction that evidence incapable of bolstering the complainant’s credit – Jury direction not sought at trial – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Chester Metcalf & Co
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

TATE JA:

The applicant, Jason Dunn (‘Dunn’),[2] seeks leave to appeal against his conviction on 21 September 2016 by a jury sitting in the County Court of Victoria. He had pleaded not guilty to four charges of indecent act with a child under 16 years contrary to s 47(1) of the Crimes Act 1958.[3]
[2]A pseudonym.
[3]Indictment F13255010.1, dated 14 September 2016. The fourth charge on an earlier indictment had alleged incest by the penetration of a finger into the complainant’s vagina but a new indictment was filed over on 14 September 2016 with charge 4 amended to a further charge of indecent act with a child under the age of 16. Dunn was re-arraigned.

Dunn seeks leave to appeal against his conviction by challenging the evidence of a complaint made by the complainant to her boyfriend. He challenges the admissibility of the evidence and what he alleges is the lack of appropriate directions given by the judge. He did not seek these directions at the trial.

More specifically, Dunn applies for leave to appeal on the following proposed grounds:

Ground 1:
A substantial miscarriage of justice occurred by:
(a)the judge admitting the complaint evidence of [the complainant’s boyfriend] into evidence under s 377(4) of the Criminal Procedure Act 2009 in circumstances where the evidence was insufficiently probative of a fact in issue in the trial; and
(b)the judge failing to exclude the complaint evidence of [the complainant’s boyfriend] under s 137 of the Evidence Act 2008 in circumstances where there was a real possibility that the evidence had been tainted by a process of innocent infection.

Ground 1A:
In the alternative to Ground 1, the trial miscarried because of a failure…

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: Jason Dunn (a pseudonym)[1] v The Queen [2017] VSCA 95
Case: [2017] VSCA 95
Decision Date: 3 May 2017

CaseChat Overview and Summary

The applicant, Dunn, sought leave to appeal against his conviction for four charges of indecent acts with a child under 16. Dunn's appeal centred on the trial judge's handling of certain evidence, specifically the complaint made by the complainant to her boyfriend. The decision to grant or refuse leave to appeal was made in the High Court of Australia.

The legal issues before the court were whether the trial judge had erred in admitting the evidence of the complaint, whether this evidence was tainted by an innocent infection process, and whether the trial judge should have directed the jury that the evidence could not be used to bolster the complainant's credibility. Notably, no direction was sought by Dunn's legal team during the trial.

The court concluded that the judge had not erred in admitting the evidence, as it was relevant to the charges and had probative value. Regarding the potential taint from an innocent infection process, the court found that there was no basis to conclude that the evidence was inadmissible for this reason. The court also determined that no specific direction to the jury was necessary since the evidence was properly before them for consideration in the context of the case. Consequently, the application for leave to appeal was refused.

The final orders of the court were to refuse Dunn leave to appeal against his conviction. This decision upheld the original judgment, maintaining the applicant's conviction on all four counts of indecent acts with a child under 16.

Orders