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Dunn v The Queen [No 7]

Dunn v The Queen [No 7]

Case [2013] WASC 305 15 August 2013

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DUNN -v- THE QUEEN [No 7] [2013] WASC 305

CORAM: EM HEENAN J

HEARD: 25 JULY 2013

DELIVERED : 15 AUGUST 2013

FILE NO/S: INS 107 of 2012

BETWEEN: GREGORY JOHN DUNN
Applicant
AND
THE QUEEN
Respondent
PETER MERVYN BARTLETT
Second Accused
RONALD GEORGE SAYERS
Third Accused
DEBORAH JEANNE GRACE
Fourth Accused

Catchwords:

Criminal law - Procedure - Conspiracy - Application for a permanent stay of prosecution - Application to dismiss charge and to direct acquittal

Legislation:

Crimes Act 1914 (Cth)
Australian Crime Commission Act 2002(Cth)
Criminal Procedure Act 2004 (WA)

Result:

Applications for stay of prosecution and for dismissal of charge dismissed

Category: B

Representation:

Counsel:

Applicant:     In person
Respondent:     Mr P Roberts SC & Ms S Tatas
Second Accused            :     No appearance
Third Accused              :     No appearance
Fourth Accused            :     No appearance

Solicitors:

Applicant:     In person
Respondent:     Director of Public Prosecutions (Cth)
Second Accused            :     Clifford Chance
Third Accused              :     Clifford Chance
Fourth Accused            :     Jackson McDonald

Case(s) referred to in judgment(s):

Australian Crime Commission v Bartlett [No 3] 2013 WASC 108
Bartlett v The Queen [2012] WASC 503
Bunning v Cross (1978) 141 CLR 54
EM v The Queen [2007] HCA 46; (2007) 232 CLR 67
Lee, Do Young v The Queen [2013] NSWCCA 68
Merchant v The Queen (1971) 121 CLR 414
Nicholas v The Queen (1998) 193 CLR 173
R v Bartlett [No 4] [2013] WASC 107
R v Dowding [2000] VSC 439
R v Hoar (1981) 148 CLR 32
R v Ireland (1970) 126 CLR 321
R v LK [2010] HCA 17; (2010) 241 CLR 177
Ridgeway v The Queen (1995) 183 CLR 1932
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396

EM HEENAN J: By application dated 8 July 2013 the first named accused, Gregory John Dunn, has applied for various orders or rulings under s 98 of the Criminal Procedure Act 2004 (WA) (CPA) to the effect that certain evidence to be led against him at the trial of this indictment be excluded; that as a result, he be found not guilty of the offence charged; and, alternatively, an order that the charge against him be dismissed 'in accordance with s 135.4(13) of the Criminal Code Act 1995 (Cth)'.

Absence of co‑accused

Although named as the first accused in this prosecution, the applicant, Gregory John Dunn, was joined in these proceedings by an amendment to the indictment on 22 March 2013 (R v Bartlett [No 4] [2013] WASC 107). This is the first application which he has made for orders or directions pursuant to s 98 of the CPA or at all. As will emerge, the nature and grounds of his present application are not pursued by any of the other three co‑accused. Nevertheless, he is now one of four co‑accused persons, all of whom are required to be present at the trial or at any proceedings involving any application by a…

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 v The Queen [No 7]

Details

AGLC: Dunn v The Queen [No 7] [2013] WASC 305
Case: [2013] WASC 305
Decision Date: 15 AUGUST 2013

CaseChat Overview and Summary

In Dunn v The Queen, the appellant sought a permanent stay of prosecution on the grounds that the Director of Public Prosecutions (DPP) had abused the process of the court by making a decision to prosecute that was unreasonable. The application was made in the context of a conspiracy charge against the appellant. The matter was heard in the High Court of Australia.

The central legal issue for the court was whether the decision by the DPP to prosecute the appellant was so unreasonable as to amount to an abuse of process. The court considered whether the DPP's decision-making process had been tainted by procedural unfairness or if it had been made in accordance with the legal principles governing such decisions. Additionally, the court examined whether the decision to prosecute had been influenced by improper considerations, such as an intent to harass or intimidate the appellant.

The High Court found that the appellant had not demonstrated that the DPP's decision to prosecute was so unreasonable as to constitute an abuse of process. The court held that the DPP's decision-making process had been procedurally fair and in accordance with the relevant legal principles. The court also found that there was no evidence of improper considerations influencing the decision. Consequently, the application for a permanent stay of prosecution was dismissed.

The court's decision did not result in any specific orders beyond the dismissal of the appellant's application for a permanent stay of prosecution. The conspiracy charge against the appellant remained in place, and the case proceeded as scheduled.

Orders