Regina v Robert Joseph DUNN [2000] NSWCCA 171

New South Wales Court of Criminal Appeal

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 Davidson DCJ OFFICER :

COUNSEL : A. M. Blackmore/M. C. Marien - Crown M. Thangaraj - Appellant SOLICITORS : S. E. O'Connor - Crown Kalmath Lawyers - Appellant

Criminal Appeal Act 1912 (NSW) LEGISLATION CITED : 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 to the application; the fact that the application was based upon indemnities granted by the prosecuting authorities; and the general nature of those indemnities. At the inception of the hearing of the appeal this Court made an order continuing the non-publication order as thus made by Davidson DCJ in the Court below. 4 The order made by Davidson DCJ refused the appellant an all-embracing stay of the thirty-seven charges to which reference has been made. His Honour granted, however, a stay in respect of the counts numbered 1 to 11, both inclusive, of the proposed indictment. The appellant contends that his Honour should have granted a similar stay in respect of the counts numbered 12 through 37 of the proposed indictment. In that connection four specific grounds of appeal were notified. They are: "i His Honour erred in finding that the provision to the appellant of the written indemnity and written undertaking did not protect the appellant from prosecution with respect to counts 12 - 37 of the indictment. Alternatively, the term 'associated offences' should not have been limited to counts 1 - 11. ii His Honour erred in failing to find that the appellant justifiably believed that he would not be prosecuted. His Honour erred in failing to find the existence of an agreement and undertaking independent of the indemnity made by the prosecution authorities not to prosecute the appellant. Counts 1 - 37 of the indictment should have been permanently stayed on this basis. iii His Honour failed to hold that in all the circumstances of this case, the appellant is entitled to relief from punishment for counts 12 - 37. iv His Honour erred in failing to have regard to the argument of the appellant that an agreement or understanding existed between the appellant on the one hand and the prosecution authorities on the other, independent of the written indemnities given to the applicant."