Jamie Leslie Sumner v The Queen - [2013] HCASL 135

JAMIE LESLIE SUMNER
v
THE QUEEN
[2013] HCASL 135
M71/2012

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.
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].
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].
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.
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.
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

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 Jamie Leslie Sumner v The Queen

Details

AGLC: JAMIE LESLIE SUMNER v THE QUEEN [2013] HCASL 135 M71/2012
Case: [2013] HCASL 135
Decision Date

CaseChat Overview and Summary

In the matter of Jamie Leslie Sumner versus The Queen, the applicant, Sumner, was convicted of murder following a trial in the Supreme Court of Victoria. Sumner subsequently sought leave to appeal against his conviction, which was dismissed by the Victorian Court of Appeal. The High Court was then approached for special leave to appeal. The primary issue for the High Court was whether the Court of Appeal erred in applying the "Burns principle" in circumstances where there was evidence of an innocent explanation for the presence of DNA consistent with the deceased on the interior of a white Commodore. The principle from Burns v The Queen holds that evidence that a fact disclosed in a disputed confessional statement, unknown to the interrogator at the time, is subsequently proved to be true, has probative value.

The High Court considered the Court of Appeal's conclusion that the cumulative effect of the circumstantial evidence, including the DNA evidence, supported Lien's account of the events leading to the deceased's death. The Court held that the jury were not required to view each item of corroboration separately and that the DNA evidence, along with other evidence, was sufficient to corroborate Lien's account. The Court found that the applicant's argument that the innocent explanation for the DNA was more probable was not persuasive, and that there were insufficient prospects that the Court of Appeal's conclusion would be overturned if special leave to appeal were granted. The application for special leave to appeal was dismissed.

The final orders of the Court were that the Registrar was directed to draw up, sign, and seal an order dismissing the application for special leave to appeal. The Court did not find it necessary to make any further orders in the matter.

Orders