AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 30 August 2005

Appn of Robert Joseph DUNN

[2005] NSWSC 857

Sexual offences
CRIMINAL PRACTICE & PROCEDURE TEST TO BE APPLIED HISTORY OF APPEALS

Citation: Appn of Robert Joseph DUNN [2005] NSWSC 857
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 30 August 2005
Judge(s): Kirby J

Background

The applicant, a retired school teacher, pleaded guilty to all 27 counts on an indictment before the District Court in June 2001. The charges related to sexual offences against children committed between 1985 and 1995. He was sentenced to 30 years imprisonment with a non-parole period of 22.5 years, later adjusted to 20 years with a non-parole period of 18 years following a successful sentence appeal to the Court of Criminal Appeal.

The applicant had previously appealed against both his conviction and sentence. The Court of Criminal Appeal dismissed the conviction appeal and allowed the sentence appeal in December 2004.

Following the determination of those appeals, the applicant's earlier application for an inquiry under s 474D of the Crimes Act 1900 came before the Supreme Court for consideration. That application had been deferred pending the outcome of the appeals.

  • Whether the material put forward by the applicant was sufficient to justify directing an inquiry into his convictions or sentence under s 474D of the Crimes Act 1900
  • Whether the court was left with "unease" or a "sense of disquiet" about the convictions, being the established test for granting such an inquiry
  • Whether any of the seven grounds advanced by the applicant (including alleged broken promises, unlawful extradition, breach of indemnities, inadequate legal representation, alleged inducement to plead guilty, and inadmissible evidence) raised a genuine doubt or question about guilt, mitigating circumstances, or evidence

Decision

Kirby J identified the governing test as whether, on the material presented, the judge is left with "unease in allowing the conviction to stand" or "a sense of disquiet," drawing on the established formulations from Varley v The Attorney General and Application of Benito Esposito. The section does not provide a further avenue of appeal once all usual avenues have been exhausted; there must be material that, as a matter of practical reality, causes genuine unease.

On the allegation that the applicant was induced to plead guilty by a promise of a much lighter sentence, Kirby J adopted the reasoning of the Court of Criminal Appeal, which had unanimously found no evidence of any such plea bargain or improper inducement. The applicant's own conduct at sentencing, including withdrawing an application to reverse his pleas and urging the sentencing judge to give credit for those pleas, was inconsistent with that allegation.

The remaining six grounds, including claims of unlawful extradition, a breach of indemnities, inadequate representation, and the use of allegedly inadmissible video evidence, had either been fully canvassed in the earlier appeals or otherwise failed to generate any unease about the safety of the convictions. The court noted that s 474E(3) expressly permits refusal where a matter has been fully dealt with in prior proceedings and no special facts or circumstances justify further action.

Kirby J was "quite unpersuaded" that any of the material raised made it appropriate to direct an inquiry into the convictions. The application was declined.

Orders Made

  • Application for an inquiry under s 474D of the Crimes Act 1900 declined.

Key Takeaways

  • The test for directing an inquiry under s 474D of the Crimes Act 1900 is whether the available material leaves the court with "unease" or "a sense of disquiet" about allowing the conviction to stand; the section does not create an additional avenue of appeal once ordinary avenues are exhausted.
  • Where a matter has already been fully dealt with in prior appeal proceedings, the Supreme Court may refuse to consider a s 474D application unless the applicant can point to special facts or special circumstances justifying further action.
  • Allegations of an inducement to plead guilty will not succeed without evidentiary support, and conduct at sentencing that is inconsistent with the allegation will weigh against it.
  • Convictions entered following pleas of guilty attract particular scrutiny under this provision; in this case, the guilty pleas, the applicant's conduct during sentencing proceedings, and the Court of Criminal Appeal's earlier findings collectively meant no unease arose.
  • Appn of Robert Joseph DUNN confirms that a lengthy history of prior appeals is directly relevant to a s 474D application and may itself be a reason to decline to direct a further inquiry.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 474D, 474E
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- R v Dunn [2004] NSWCCA 346
- Varley v The Attorney General (1987) 8 NSWLR 30
- Application of Benito Esposito (SC, unreported, 14 July 1988)
- R v Dunn (unreported, 3 September 1990)
- R v Dunn [2000] NSWCCA 171
- R v Birks (1990) 19 NSWLR 677