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R v Dunmall

R v Dunmall

Case [2008] VSCA 22 22 February 2008

Criminal Liability

Consciousness of Guilt

Attempting to Pervert Course of Justice

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 309 of 2006

THE QUEEN
	v
KEVIN DUNMALL

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JUDGES:	ASHLEY and KELLAM JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 and 8 February 2008
DATE OF JUDGMENT:	22 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 22

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Criminal law – Conviction – Offences of armed robbery and attempting to pervert course of justice – Applicant owner of business providing cash escorts – Circumstantial evidence case – Applicant allegedly ‘inside man’, not victim - Whether verdict unsafe or unsatisfactory – Whether trial judge erred in directing the jury that it was open to conclude that weapon later found at applicant’s apartment the same weapon as that used in armed robbery – Consciousness of guilt – Whether open to jury to conclude that lie told in police interview was deliberate – Attempting to pervert course of justice – Whether judge’s directions as to applicant’s intent erroneous – Leave to appeal refused.

R v Theos (1996) 89 A Crim R 486 considered
Thompson and Wran v The Queen (1968) 117 CLR 313 considered

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R A Elston SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Robert Stary & Associates

ASHLEY JA:

The applicant, Kevin Dunmall, was presented in the County Court at Melbourne of the following counts –

·     Armed robbery – count 1.[1]
·     Attempting to pervert the course of justice – count 2.[2]
·     Possessing cannabis – count 3.[3]
·     Making a false document – count 4.[4]

He pleaded not guilty to counts 1 and 2 and guilty to counts 3 and 4.

[1]Crimes Act 1958 (Vic), s 75A, maximum penalty 25 years’ imprisonment.

[2]Common law offence, maximum penalty 25 years’ imprisonment.

[3]Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 73(1)(b), maximum penalty one year’s imprisonment.

[4]Crimes Act 1958 (Vic), s 83A(1), maximum penalty 10 years’ imprisonment.

On 22 September 2006, after something more than three hours’ deliberation, a jury found the applicant guilty on counts 1 and 2.

On 25 September 2006, the applicant, pursuant to s 359AA of the Crimes Act, pleaded guilty to five summary offences against the Firearms Act 1996 –

·Possessing ammunition without a licence and storing ammunition in an insecure manner.[5]
·Failing to safely store a firearm.[6]
·Possessing a firearm with an altered or defaced serial number.[7]
·Possessing an unregistered handgun.[8]

[5]Charges 5 and 8, Firearms Act 1996 (Vic), s 129A, maximum penalty 4 years’ imprisonment.

[6]Charge 6. Firearms Act, s 121(1)(a), maximum penalty 12 months’ imprisonment.

[7]Charge 7. Firearms Act, s 134C, maximum penalty 4 years’ imprisonment.

[8]Charge 10. Firearms Act, s 7B(1), maximum penalty 7 years’ imprisonment.

On 27 September 2006, after a plea had earlier been presented, the learned County Court judge sentenced the applicant as follows –

· Count 1 – 7 years’ imprisonment.

· Count 2 – 9 months’ imprisonment.

· Count 3…

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 Dunmall

Details

AGLC: R v Dunmall [2008] VSCA 22
Case: [2008] VSCA 22
Decision Date: 22 February 2008

CaseChat Overview and Summary

The case of R v Dunmall involved the applicant, Dunmall, who was convicted of armed robbery and attempting to pervert the course of justice. Dunmall owned a business that provided cash escorts and was accused of being an ‘inside man’ rather than a victim in a series of armed robberies. Dunmall appealed against his conviction, arguing that the verdict was unsafe or unsatisfactory, and that the trial judge had erred in his directions to the jury.

The legal issues in the appeal centred on the sufficiency of the evidence against Dunmall, the trial judge’s directions to the jury, and the elements of the offences of armed robbery and attempting to pervert the course of justice. Specifically, Dunmall argued that there was no evidence that the weapon found at his apartment was the one used in the robberies, and that the trial judge should not have directed the jury that it was open to conclude that it was the same weapon. He also contended that the trial judge had erred in directing the jury that it was open to conclude that a lie told in a police interview was deliberate, and that the judge’s directions as to his intent in attempting to pervert the course of justice were erroneous.

The court considered the appeal and concluded that the trial judge’s directions to the jury were appropriate, and that the verdict was safe and satisfactory. The court found that the evidence was sufficient to support the verdict, and that it was open to the jury to conclude that the weapon found at Dunmall’s apartment was the one used in the robberies. The court also found that it was open to the jury to conclude that Dunmall’s lie in the police interview was deliberate, and that the trial judge’s directions as to his intent in attempting to pervert the course of justice were not erroneous. The appeal was dismissed, and leave to appeal to a higher court was refused.

The court’s decision in this case is significant in that it affirms the trial judge’s directions to the jury and the sufficiency of the evidence in circumstantial evidence cases. It also provides guidance on the elements of the offences of armed robbery and attempting to pervert the course of justice, and the importance of consciousness of guilt in such cases.

Orders