R v. Dunning ; ex parte A-G (Qld) - [2007] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dunning; ex parte A-G (Qld) [2007] QCA 176

PARTIES:

R
v
DUNNING, Ross William
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 28 of 2007
DC No 3158 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 668A Criminal Code

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2007

JUDGES:

McMurdo P, Williams JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Questions answered as follows:
1. Not necessary to answer
2. Not necessary to answer
3. Yes

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – PARTICULAR CASES – where respondent was charged with unlawfully and indecently assaulting APT in 1968 – where respondent made application under s 590AA to exclude evidence of a pretext telephone conversation – where trial judge made pre-trial ruling refusing to exclude the evidence – where jury was unable to reach a verdict and trial was adjourned – where trial judge, on the respondent's application, exercised his discretion to reopen the pre-trial ruling and excluded evidence of the pretext call – where s 590AA(3) requires existence of "special reason" before leave to reopen a pre-trial ruling will be granted – where trial judge found "material change" sufficient to constitute "special reason" within the meaning of the section – where trial judge had benefit of hearing evidence given at both the previous pre-trial hearing and at trial – where trial judge considered issues of voluntariness, reliability and unfairness in exercising his discretion – what constitutes "special reason" for purposes of the provision – whether circumstances gave rise to "special reason" within the meaning of the Act – whether trial judge properly exercised his discretion

Criminal Code Act 1899 (Qld), s 590AA, s 668A
Criminal Law Amendment Act1894 (Qld), s 10

R v Nguyen[2001] QSC 099; [2002] 1 Qd R 426, cited
R v Sheehy[2003] QCA 420; [2005] 1 Qd R 418, considered
R v Steindl[2001] QCA 434; [2002] 2 Qd R 542, applied
R v Swaffield (1997) 192 CLR 159, applied
R v PV; ex parte A-G (Qld)[2004] QCA 494; [2005] 2 Qd R 325, cited
R v SAP; ex parte A-G[2005] QCA 284; [2006] 1 Qd R 367, cited
R v Ford; ex parte A-G[2006] QCA 440; CA No 189 of 2006, 3 November 2006, cited

COUNSEL:

L J Clare SC for the appellant
J A Griffin QC, with R J Clutterbuck, for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Varro Clark & Co for the respondent

MCMURDO P: This is a reference by the Attorney-General under s 668A(1) Criminal Code. What was said to be points of law for this Court's consideration and opinion were framed in the following three questions:

"1.Subsection…

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.

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Details

Case: [2007] QCA 176
Decision Date: 29 May 2007

CaseChat Overview and Summary

In this case, the respondent was charged with an indecent assault on APT that occurred in 1968. The respondent made an application under section 590AA to exclude evidence of a pretext telephone conversation from the trial. The trial judge initially refused to exclude the evidence, but later granted the application to exclude the evidence after the jury was unable to reach a verdict and the trial was adjourned. The court was required to decide whether the trial judge properly exercised his discretion to reopen the pre-trial ruling and exclude the evidence.

The court found that the trial judge properly exercised his discretion to exclude the evidence. The court held that the existence of a "material change" in circumstances was sufficient to constitute a "special reason" for reopening a pre-trial ruling under section 590AA(3). The court also held that the trial judge had the benefit of hearing evidence given at both the previous pre-trial hearing and at trial, and that the trial judge considered the issues of voluntariness, reliability, and unfairness in exercising his discretion. The court found that the trial judge properly exercised his discretion to exclude the evidence.

The court held that the trial judge properly exercised his discretion to exclude the evidence, and that the trial judge considered the relevant issues in doing so. The court held that the existence of a "material change" in circumstances was sufficient to constitute a "special reason" for reopening a pre-trial ruling under section 590AA(3). The court also held that the trial judge had the benefit of hearing evidence given at both the previous pre-trial hearing and at trial, and that the trial judge considered the issues of voluntariness, reliability, and unfairness in exercising his discretion. The court found that the trial judge properly exercised his discretion to exclude the evidence.

Orders

Orders of the court

Questions answered as follows:

1. Not necessary to answer

2. Not necessary to answer

3. Yes

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Dunning; ex parte A-G (Qld) [2007] QCA 176
PARTIES:	R v DUNNING, Ross William (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 28 of 2007 DC No 3158 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Reference under s 668A Criminal Code
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2007
JUDGES:	McMurdo P, Williams JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Questions answered as follows: 1. Not necessary to answer 2. Not necessary to answer 3. Yes
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – PARTICULAR CASES – where respondent was charged with unlawfully and indecently assaulting APT in 1968 – where respondent made application under s 590AA to exclude evidence of a pretext telephone conversation – where trial judge made pre-trial ruling refusing to exclude the evidence – where jury was unable to reach a verdict and trial was adjourned – where trial judge, on the respondent's application, exercised his discretion to reopen the pre-trial ruling and excluded evidence of the pretext call – where s 590AA(3) requires existence of "special reason" before leave to reopen a pre-trial ruling will be granted – where trial judge found "material change" sufficient to constitute "special reason" within the meaning of the section – where trial judge had benefit of hearing evidence given at both the previous pre-trial hearing and at trial – where trial judge considered issues of voluntariness, reliability and unfairness in exercising his discretion – what constitutes "special reason" for purposes of the provision – whether circumstances gave rise to "special reason" within the meaning of the Act – whether trial judge properly exercised his discretion Criminal Code Act 1899 (Qld), s 590AA, s 668A Criminal Law Amendment Act1894 (Qld), s 10 R v Nguyen[2001] QSC 099; [2002] 1 Qd R 426, cited R v Sheehy[2003] QCA 420; [2005] 1 Qd R 418, considered R v Steindl[2001] QCA 434; [2002] 2 Qd R 542, applied R v Swaffield (1997) 192 CLR 159, applied R v PV; ex parte A-G (Qld)[2004] QCA 494; [2005] 2 Qd R 325, cited R v SAP; ex parte A-G[2005] QCA 284; [2006] 1 Qd R 367, cited R v Ford; ex parte A-G[2006] QCA 440; CA No 189 of 2006, 3 November 2006, cited
COUNSEL:	L J Clare SC for the appellant J A Griffin QC, with R J Clutterbuck, for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Varro Clark & Co for the respondent