Citation: Regina v Robert Joseph DUNN [2000] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 15 May 2000
Judge(s): Sully J; Foster AJA; Carruthers AJ
Background
The appellant faced a proposed indictment in the District Court containing 39 counts. The first 37 counts related to alleged offending between 1979 and 1992, comprising 35 counts of prescribed sexual offences and two counts of supplying cannabis. The remaining two counts alleged conduct in January 1995. The sexual offence counts involved the appellant's conduct with young males aged broadly between 13 and 18 years.
The appellant had previously cooperated with police investigating serious corruption allegations against several officers. Those officers had allegedly extorted $40,000 from an associate of the appellant after a 1987 raid uncovered videos and photographs of the appellant engaged in sexual activity with boys. In exchange for his cooperation with that internal investigation, the appellant received written indemnities from prosecuting authorities.
The appellant applied to the District Court for a permanent stay of counts 1 to 37, arguing those indemnities (and alleged oral assurances) protected him from prosecution for all those offences. Davidson DCJ stayed counts 1 to 11 but refused a stay for counts 12 to 37. The appellant appealed that refusal to the Court of Criminal Appeal.
Legal Issues
- Whether the written indemnity and undertaking extended to protect the appellant from prosecution on counts 12 to 37, or whether the phrase "associated offences" within those documents was limited to counts 1 to 11.
- Whether the appellant held a justified belief, arising from dealings with investigating police independently of the written indemnities, that he would not be prosecuted for counts 12 to 37.
- Whether an agreement or understanding existed between the appellant and prosecuting authorities, independent of the written indemnities, that barred prosecution on those counts.
- Whether, in all the circumstances, the appellant was entitled to relief from punishment for counts 12 to 37.
Decision
The Court of Criminal Appeal unanimously dismissed the appeal. Sully J (with Foster AJA and Carruthers AJ agreeing) found that none of the four grounds of appeal had been sustained. The Court held that the primary judge's reasoning and conclusions were reasonably open on the evidence and disclosed no error warranting appellate intervention.
A central issue was whether the appellant had demonstrated, on the balance of probabilities, a justified belief that the written indemnities or independent oral assurances from investigating police protected him from prosecution on counts 12 to 37. The Court found that the primary judge was entitled to conclude the appellant had not established that belief. The appellant's credit was significantly undermined by statements he had made to the Royal Commission and to a journalist on the "60 Minutes" programme, in which he had acknowledged he always thought he might be charged with sexual offence-related matters. The Court treated that acknowledgement as a clear admission against interest on the very question central to his application.
The Court also rejected the submission that the primary judge had mischaracterised or overlooked evidence of an independent agreement or understanding with investigating police. The findings of the primary judge on the appellant's credibility were found to be soundly based, and the Court declined to disturb them. Because the essential factual finding against the appellant on the question of justified belief was reasonably open, the primary judge was correct to refuse the stay without needing to resolve further questions.
Orders Made
- The appeal was dismissed.
- The order of Davidson DCJ was affirmed, meaning the stay of proceedings remained limited to counts 1 to 11 of the proposed indictment, and the refusal of a stay for counts 12 to 37 stood.
Key Takeaways
- A prosecution indemnity will be construed according to its terms; where the language limits protection to particular offences or "associated offences," a court is entitled to interpret that limitation narrowly and decline to extend it to further counts.
- Where an accused seeks a permanent stay based on an alleged independent agreement with prosecuting authorities, the accused bears the onus of establishing on the probabilities both the existence of that agreement and a justified belief arising from it.
- Credibility findings by a primary judge carry significant weight on appeal; the Court of Criminal Appeal confirmed it would not interfere with such findings where they were reasonably open on the evidence.
- Admissions made to a Royal Commission and to journalists can constitute admissions against interest capable of materially damaging an applicant's case on a stay application.
- In dismissing the appeal, the Court confirmed that a finding against the applicant on the threshold question of justified belief is sufficient to dispose of a stay application without requiring consideration of all remaining issues.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), ss 578, 578A
- Criminal Procedure Act 1986 (NSW)
Cases:
- House v The King (1936) 55 CLR 449
- R v Georgiadis [1984] VR 1030