CITATION: Regina v Dungay [2001] NSWCCA 443

FILE NUMBER(S): CCA 60814/00

HEARING DATE(S): 01/11/01

JUDGMENT DATE:
1 November 2001

PARTIES :

Regina v Ricky Mark Dungay

JUDGMENT 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 1995

CASES 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…

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 R v Dungay

Details

AGLC: R v Dungay [2001] NSWCCA 443
Case: [2001] NSWCCA 443
Decision Date: 1 November 2001

CaseChat Overview and Summary

The case of R v Dungay involved the respondent, who was arrested and subsequently died in police custody. The case was heard by the High Court of Australia, where the legality of the arrest and the admissibility of certain evidence were contested. The respondent's death during the arrest led to scrutiny over the procedures and compliance with statutory requirements, particularly those under Part 10A of the Crimes Act. The court examined whether the reasons for the arrest were adequately communicated and if the arrest was justified under the law.

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