Jamie Leslie Sumner v The Queen

[2013] HCASL 135

JAMIE LESLIE SUMNER

v

THE QUEEN

[2013] HCASL 135
M71/2012

1. The applicant was convicted of murder following a trial in the Supreme Court of Victoria before Nettle JA and a jury.  His application for leave to appeal against conviction was dismissed by the Victorian Court of Appeal (Redlich and Mandie JJA and Bongiorno AJA) on 2 September 2010[1].  On 19 July 2012, the applicant filed an application for special leave to appeal.  Hayne J made consent orders on 17 September and 23 October 2012 extending the time under the Rules for the lodgement of the applicant's written case, draft notice of appeal and other material. 

   [1]Sumner v The Queen [2010] VSCA 221.

2. The body of the deceased has not been found.  The prosecution case was partly circumstantial and partly dependent on admissions said to have been made by the applicant to a man named Lien [CA [6], [28]].  Lien was a drug dealer.  Lien had convictions for dishonesty and he had been sentenced to a suspended sentence for drug related offences in recognition of his undertaking to give evidence for the prosecution at the applicant's trial [CA [15]-[17]].  Nettle JA directed the jury to be slow to rely on Lien's evidence except where it was supported by independent evidence or was "inherently probable" [Ts 1655.22-25].  His Honour directed that four items of evidence were capable of providing independent support for the acceptance of Lien's evidence [Ts 1659.17-25]. 

3. The applicant's challenge in the Court of Appeal was to the capacity of each of the four items to corroborate Lien's evidence.  The Court of Appeal held that each item was capable of corroborating the evidence of Lien.  It characterised the prosecution case as a "compelling one"[2].

   [2]Sumner v The Queen [2010] VSCA 221 at [77].

4. The applicant seeks special leave to appeal on a ground that is confined to the capacity of one of the four items – the presence of DNA consistent with the DNA profile of the deceased on the interior of a white Commodore – to corroborate Lien's evidence.

5. It was Lien's evidence that the applicant had told him that the deceased had raped the applicant's brother and that he intended to find and kill the deceased.  The following day Lien again met the applicant [CA [7]].  On this occasion the applicant was travelling in a white Commodore.  The applicant told Lien that the deceased was lying on the back seat of the Commodore and that his jaw was probably broken [CA [11]].  After the police obtained Lien's account of this meeting, arrangements were made to inspect a white Commodore belonging to the applicant's mother [CA [24]].  The inspection revealed apparent blood specks on the rear door trim [Ts 1612.12].  On examination, these revealed DNA consistent with the DNA profile of the deceased. 

6. The deceased had travelled in Mrs Sumner's Commodore on other occasions.  On one such occasion he may have had "a little scratch" on his leg[3]. 

   [3]Sumner v The Queen [2010] VSCA 221 at [38].

7. The applicant contended that the existence of a possible innocent explanation for the presence of the DNA deprived the evidence of the capacity to corroborate Lien's account [CA [41]].  The submission relied on the statement in Goonan that corroborative evidence must possess "some independent thrust and not be intractably neutral in its effect"[4].  The Court of Appeal rejected this challenge noting the statements in Burns v The Queen[5] respecting the probative value of evidence that a fact disclosed in a disputed confessional statement, unknown to the interrogator at the time, is subsequently proved to be true[6].

   [4](1993) 69 A Crim R 338 at 345-6.

   [5](1975) 132 CLR 258 at 264 per Barwick CJ, Gibbs and Mason JJ; [1975] HCA 21.

   [6]Sumner v The Queen [2010] VSCA 221 at [44]-[49].

8. The applicant seeks special leave submitting that the Court of Appeal was wrong to apply the "Burns principle" in circumstances in which "there is evidence of an innocent and more probable explanation" for the presence of the DNA [AWS Pt I]. 

9. The DNA was located in a position on the trim that was consistent with it having been deposited when the deceased was lying on the back seat of the vehicle [CA [48]].  The premise for the applicant's argument, that the "innocent explanation" is more probable, should not be accepted.  The Court of Appeal, correctly, noted that the jury were not required to view each item of corroboration separately.  The Court concluded that the cumulative effect of some or all of the items of circumstantial evidence permitted the jury to conclude that the DNA evidence supported Lien's account [CA [50]].  If special leave to appeal were granted there are insufficient prospects that that conclusion would be overturned.

10. The application is dismissed.

11. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
14 August 2013 S.J. Gageler