Reported Decision:
126 A Crim R 216
New South Wales
Court of Criminal Appeal
CITATION: Regina v Dungay [2001] NSWCCA 443 FILE NUMBER(S): CCA 60814/00 HEARING DATE(S): 01/11/01 JUDGMENT DATE:
1 November 2001PARTIES :
Regina v Ricky Mark DungayJUDGMENT OF: Ipp AJA at 1; Studdert J at 53; Greg James J at 54
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 99/31/0097 LOWER COURT JUDICIAL
OFFICER :Viney DCJ
COUNSEL : P J D Hamill (Appellant)
D M L Woodburne (Crown)SOLICITORS: K Byrnes (Appellant)
S E O'Connor (Crown)CATCHWORDS: CRIMINAL LAW - arrest, illegality of - reasons for arrest to be given - arrest solely for investigative purposes - no intention to bring arrested person before a judicial officer - arrest illegal despite Pt 10A of the Crimes Act. - CRIMINAL LAW - confession - interview at police station - false statement by police officer - failure by police officer to disclose complainant's exculpatory statement - admissibility of evidence - test for unfairness - s 138(1) of the Evidence Act. LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995CASES CITED: Christie v Leachinsky (1947) AC 573
Adams v Kennedy [2000] 49 NSWLR 78
Williams v R (1986) 161 CLR 278
R v Foster (1993) 67 ALJR 550
R v Ainsworth (1991) 57 A Crim R 174
R v Kane [2001] NSW CCA 150
R v Lee (1950) 82 CLR 133
R v Jeffries (1946) 47 SR (NSW) 284
DECISION: (1) Appeal upheld (2) Verdict of the jury set aside (3) Verdict of acquittal be entered.
60814/00
IPP AJA
STUDDERT J
GREG JAMES J
Thursday 1 November 2001
REGINA v RICKY MARK DUNGAY
Judgment
1 IPP AJA: On 14 December 2000, after a trial by jury in the District Court sitting at Port Macquarie, the appellant was convicted of sexual intercourse without consent. He was sentenced to four years imprisonment with a non-parole period of eighteen months to date from 13 December 2000 and to expire on 12 June 2002. He appeals against both the conviction and the sentence.
2 The complainant alleged that she had been sexually assaulted by a number of men on New Year’s Day in 1999 at two locations near Crescent Head, New South Wales. The assaults took place after the complainant had accepted a lift in a car driven by one Bobbie Jarrett and in which five other men, including the appellant, were sitting. She knew all of the men concerned. In consequence of her allegations, the appellant and four of the men were arraigned in relation to various sexual offences that they were alleged to have committed.
3 The complainant described various sexual acts committed upon her by a number of the accused persons. She asserted that she had not consented to any of these acts. Significantly, she gave evidence exculpating the appellant. Indeed, she said that during her ordeal the appellant showed her “respect”.
4 The sole evidence inculpating the appellant in the offence charged was a lengthy electronically…
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- R v Dungay [2001] NSWCCA 443
- Case
- [2001] NSWCCA 443
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed in this case were the validity of the arrest under Part 10A of the Crimes Act and the admissibility of the respondent's statements obtained during an interview at a police station. The court had to determine if the arrest was lawful given that the police did not intend to bring the respondent before a judicial officer immediately. Additionally, the court considered whether a statement made by a police officer during the interview, which was false, and the failure to disclose an exculpatory statement from a complainant, rendered the evidence obtained during the interview inadmissible under section 138(1) of the Evidence Act.
The High Court ruled that the arrest was illegal because the police did not intend to bring the respondent before a judicial officer, thus not complying with the requirements of Part 10A of the Crimes Act. The court found that the arrest was solely for investigative purposes without a clear intention to charge the respondent, making it unlawful. Regarding the admissibility of the evidence, the court held that the false statement made by the police officer and the non-disclosure of the complainant's exculpatory statement constituted unfairness under section 138(1) of the Evidence Act, rendering the evidence inadmissible. The court emphasised the necessity for police to adhere to procedural fairness when obtaining evidence from suspects in custody.
The final orders of the court were to quash the conviction on the grounds of the illegality of the arrest and the inadmissibility of the evidence obtained during the interview. The court's decision underscored the importance of adhering to statutory requirements for lawful arrests and the need for police to ensure procedural fairness in obtaining evidence from suspects.
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
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