JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DUNN -v- THE QUEEN [2015] WASCA 126
CORAM: BUSS JA
NEWNES JA
MAZZA JA
HEARD: 14 NOVEMBER 2014
DELIVERED : 19 JUNE 2015
FILE NO/S: CACR 45 of 2014
BETWEEN: GREGORY JOHN DUNN
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
File No :INS 107 of 2012
Catchwords:
Criminal law - Appeal against conviction - Conspiracy with the intention of dishonestly causing a loss to a Commonwealth entity - Alleged coconspirator pleaded guilty to the conspiracy charge and was sentenced prior to the appellant's trial - Alleged coconspirator a Crown witness at the appellant's trial - Whether the trial judge failed adequately to direct the jury in relation to the alleged coconspirator's evidence - Whether the trial judge failed adequately to direct the jury in relation to the alleged coconspirator's plea of guilty to the conspiracy charge - Whether a substantial miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (Cth), s 135.4(3)
Evidence Act 1906 (WA), s 50
Result:
Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr P Roberts SC & Mr A L Troy
Solicitors:
Appellant: Lewis Blyth & Hooper
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Baker v The Queen [2012] HCA 27; (2012) 245 CLR 632
Bou‑Elias v The Queen (No 1) [2012] VSCA 61
Burnett v The Queen (1994) 76 A Crim R 148
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344
Connell v The Queen (No 6) (1994) 12 WAR 133
Cowell v The Queen (1985) 24 A Crim R 47
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Director of Public Prosecutions v Faure [1993] 2 VR 497
Evans v The State of Western Australia [2012] WASCA 13
Ferris v The State of Western Australia [2007] WASCA 69
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Moloney v The State of Western Australia [2006] WASCA 193
Napier v The State of Western Australia [2007] WASCA 248
O'Connell v The State of Western Australia [2012] WASCA 96
Power v The Queen [2014] VSCA 146
R v Fountain [2001] VSCA 200; (2001) 124 A Crim R 100
R v Fowler (1985) 39 SASR 440
R v Gallagher [1986] VR 219
R…
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- AGLC
- Dunn v The Queen [2015] WASCA 126
- Case
- [2015] WASCA 126
- Decision Date
CaseChat Overview and Summary
The court considered the relevance of Section 50 of the Evidence Act 1906 (WA) in relation to the trial judge's direction to the jury. The court noted that Section 50 requires the judge to comment upon the evidence of a witness if there is a particular danger in acting upon that evidence which a jury might not otherwise appreciate. However, the court held that the trial judge was not required to give a corroboration warning to the jury unless it was satisfied that such a warning was justified in the circumstances. The court further held that the trial judge was required to make it clear to the jury that it was for them alone to evaluate the evidence of the witness in the light of common experience.
The court found that the trial judge adequately directed the jury on the evidence of the alleged co-conspirator. The court held that the trial judge made it clear to the jury that it was for them alone to evaluate the evidence of the alleged co-conspirator in the light of common experience. The court further held that there was no substantial miscarriage of justice and dismissed the appeal.
The court dismissed Dunn's appeal and affirmed the conviction.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 50 of the Evidence Act 1906 (WA) provides:(1)In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.(2)On the trial of a person on indictment for an offence -(a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and(b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances. Section 50 was inserted by the Criminal Law Amendment Act 1988 (WA) and subsequently amended by the Acts Amendment (Evidence of Children and Others) Act 1992 (WA). Section 50 superseded s 36BE(1) of the Evidence Act. In White v The Queen [2006] WASCA 62, Wheeler JA (with whom McLure & Pullin JJA agreed in relation to the ground of appeal which is relevant for present purposes) said:[Section 50] is in almost identical terms to the former s 36BE(1), save that it now extends to encompass all of those witnesses in respect of whom there was formerly a rule of law or practice which required the giving of a 'corroboration warning'. In relation to any such witness, the trial judge is now positively forbidden to give to the jury a warning to the effect that it is dangerous to convict on the evidence of a category of witness because the witness falls into some suspect 'category'. The judge may comment upon the evidence of a witness, provided that the judge makes it clear that it is for the jury alone to evaluate the evidence of that witness, in the light of common experience. Where, however, there is a particular danger in acting upon the evidence of a witness which a jury might not otherwise appreciate, a warning should be given. It may be that the need to warn is not confined to 'hidden' dangers, but that is the most usual case in which a need to warn is said to arise: Bromley v The Queen (1986) 161 CLR 315 at 319, 325 and see R v Johnson [2004] SASC 241 at [44] - [47], where some examples are discussed [70].… Authority in this Court has not been as clear as it might have been in relation to the relevance of s 50 in the past. There has perhaps in some cases been a tendency to analyse a direction to see if it was 'good enough' in traditional terms, with s 50 regarded almost as a provision which excuses a failure to give 'full' direction in traditional terms in some cases. For example, in Lambley v The Queen [[2001] WASCA 38] at [17], the Court appears to have suggested that a warning will be both justified and required whenever the circumstances show some intrinsic lack of reliability in the witness. However, in the particular circumstances of that case, it may well have been common ground that the witness was in a category 'similar to' a prison informer, so that a jury would not, unassisted, appreciate what the dangers of the witness's evidence might be. A case which is often cited in this Court is Foo v The Queen [2001] WASCA 406 at [30] in which Parker J, with whom Steytler J and Olsson AUJ agreed, said:'Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well be different inter alia by virtue of those matters.' (emphasis supplied)I quoted that passage myself in Hoy v The Queen [2002] WASCA 275 at [18], and at [19] expressed the view that such a warning may also be appropriate even where the dangers are apparently obvious. However, having regard to the authority which I have discussed, it now seems to me that only if the words which I have emphasised in Foo, relating to 'hidden' dangers, are given their full effect, should that passage be regarded as accurate. The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the 'superior experience' of the Courts in relation to particular types of evidence which are apparently safe to act upon (Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 604 per Brennan J), it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given [77] - [78].See also Moloney v The State of Western Australia [2006] WASCA 193 [9] ‑ [14] (Wheeler JA, McLure JA agreeing), [22] ‑ [30] (Robert‑Smith JA, McLure JA agreeing); Evans v The State of Western Australia [2012] WASCA 13 [41] ‑ [51] (Mazza JA, McLure P & Buss JA agreeing); Santos v The State of Western Australia [No 2] [2013] WASCA 39 [46] ‑ [48] (McLure P, Buss & Mazza JJA agreeing).