Regina v Robert Joseph Dunn - [2000] NSWCCA 171

CITATION: Regina v Robert Joseph DUNN [2000] NSWCCA 171

FILE NUMBER(S): CCA 60533/99

HEARING DATE(S): 17/3/00

JUDGMENT DATE:
15 May 2000

PARTIES :

Regina
Robert Joseph DUNN

JUDGMENT OF: Sully J at 1; Foster AJA at 117; Carruthers AJ at 118

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0478

LOWER COURT JUDICIAL
OFFICER : Davidson DCJ

COUNSEL : A. M. Blackmore/M. C. Marien - Crown
M. Thangaraj - Appellant

SOLICITORS: S. E. O'Connor - Crown
Kalmath Lawyers - Appellant

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)

CASES CITED:
House v The King (1936) 55 CLR 449
R v Georgiadis [1984] VR 1030

DECISION: Appeal dismissed; Order of learned primary Judge affirmed

IN THE COURT OF
CRIMINAL APPEAL
60533/99

SULLY J
FOSTER AJA
CARRUTHERS AJ

Monday 15 May 2000

REGINA v Robert Joseph DUNN
JUDGMENT

SULLY J:
Introduction

1 This is an appeal brought pursuant to section 5F of the Criminal Appeal Act 1912 (NSW) by Mr. Robert Joseph Dunn, [“the appellant”]. The appeal challenges an interlocutory judgment delivered on 3 September 1999 by his Honour Judge Davidson QC sitting in the criminal jurisdiction of the District Court at Sydney. The appeal is brought as of right, the learned primary Judge having certified the appeal as appropriate to be brought. The interlocutory judgment refuses an application by the appellant for a permanent stay of the trial of the appellant in the District Court upon an indictment which it is proposed to present against him in that Court. The proposed indictment contains thirty-nine counts. The first thirty-seven of those counts are charged as having been committed at various times within the overall time frame of 16 August 1979 to 19 August 1992. The remaining two counts are charged as having been committed between 1 and 31 January 1995. The stay for which the appellant applied in the District Court was limited to the first thirty-seven counts in the proposed indictment. 2 Of those thirty-seven counts in the proposed indictment, two, namely counts 17 and 37, allege the supply of a prohibited drug, namely, cannabis. The remaining thirty-five counts are all counts charging various “prescribed sexual offences” as defined by section 578A of the Crimes Act 1900 (NSW). The effect of section 578A is to prohibit the publication of the name of the complainant who is the subject of any of the counts charging “prescribed sexual offences”. 3 Davidson DCJ had regard to the fact that there might well be in the future a trial of the appellant in respect of all or any of the counts in the proposed indictment, including any or all of the counts charging “prescribed sexual offences”. His Honour made, thereupon and pursuant to section 578 of the Crimes Act, a non-publication order, but excluding from the ambit of such non-publication order: the fact of the making of the application to the District Court; the fact of the opposition of the Crown…

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: [2000] NSWCCA 171
Decision Date: 15 May 2000

CaseChat Overview and Summary

The Court of Criminal Appeal dismissed an appeal by Robert Joseph Dunn against an interlocutory judgment of the District Court refusing an application for a permanent stay of the trial of Dunn on an indictment which it was proposed to present against him in that Court. The proposed indictment contained thirty-nine counts, thirty-five of which were counts charging various “prescribed sexual offences” as defined by section 578A of the Crimes Act 1900 (NSW). Dunn contended that the relevant Crown authorities had engaged in a course of conduct which constituted the present prosecutions an abuse of process. Dunn submitted that he had been led to believe that he would be immune from prosecution for any offences that he might disclose, and that it would be an abuse of process to allow the proposed prosecutions to proceed to trial. The Court found that the appeal was not established as Dunn had not demonstrated on the probabilities that he had in fact held at the material times the belief that he was then “fully immune from prosecution”.

Orders