R v Dunn

[2014] QCA 254

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dunn [2014] QCA 254

PARTIES:

R
v
DUNN, Gary
(appellant)

FILE NO/S:

CA No 180 of 2013
DC No 4 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction – Further Order

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

Orders delivered ex tempore on 24 April 2014
Further order and reasons delivered on 10 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2014

JUDGES:

Margaret McMurdo P and Morrison JA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Delivered ex tempore 24 April 2014:

1.     The application to adduce further evidence is granted.

2.     The appeal against conviction is allowed.

3.     The guilty verdict is set aside.

4.     The court will reserve its decision as to whether a retrial is ordered or a verdict of acquittal is entered.

Delivered 10 October 2014:

A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant pleaded not guilty to the charge of menacing use of a carriage service – where the charge alleged that the appellant made a menacing phone call – where the appellant produced and tendered a tape recording at trial which the appellant contended was a recording of the alleged menacing phone call – where there were issues regarding whether the tape recording was genuine – where the jury could not reach a verdict – where the appellant was exonerated in relation to the charge of menacing use of a carriage service – where the trial judge ordered that "the exhibits be returned" – where the tape recording was held in the criminal registry of the Cairns District Court pending its return to the appellant – where the Australian Federal Police (AFP) seized the tape recording at the Cairns District Court registry pursuant to a warrant – where the AFP's seizure occurred prior to the entering of a nolle prosequi – where the tape recording was examined by an expert forensic science examiner – where there was evidence that the tape recording was fabricated – where the appellant contended in a pretrial hearing that the tape recording was inadmissible by virtue of the fact that the AFP's seizure of it from the Cairns District Court was unlawful and a contempt of court – where the trial judge refused the appellant's application to not admit the tape recording – where the appellant was convicted after an eight day trial of intentionally giving false evidence touching a material matter in a judicial proceeding and using fabricated evidence in a judicial proceeding – where the appellant contends that the tape recording was wrongly admitted into evidence – where the appellant contends that the trial judge erred in finding that the AFP's seizure of the tape recording was not a contempt of court – whether the trial judge erred…