R v Dunn

Court of Appeal (Margaret McMurdo P, Morrison JA and Peter Lyons J)

10 October 2014

This is an interesting decision considering both the lawfulness of searches of judicial premises and a defendant’s fitness to stand trial.  The matter arose from the conviction of the appellant for (1) intentionally giving false testimony touching a material matter in a judicial proceeding, and (2) using fabricated evidence in a judicial proceeding.  Both of these were crimes under the Commonwealth Crimes Act 1914.  Two separate issues were raised on appeal.  The first that the principal piece of evidence had been unlawfully obtained in circumstances amounting to contempt of court; and second that there had been a miscarriage of justice as the appellant was not fit to stand trial.  [2]. The circumstances giving rise to this appeal are as follows.  Prior to the instant matter, the appellant, whilst on trial for making menacing telephone calls, produced and tendered a tape recording allegedly of the menacing phone calls.  If genuine this tape would have exonerated the appellant. The jury was subsequently unable to reach a verdict and the matter was adjourned with the court ordering that all “exhibits to be returned”. [4].  Pending its return to the appellant, the tape was held in the criminal registry of the Cairns District Court.  However, before it could be returned the Australian Federal Police (“AFP”), pursuant to a warrant, seized that tape.  The appellant was subsequently charged and tried on the basis that the tape was a fabrication.  In this second trial the tape was the key piece of evidence.  The appellant was convicted and it is this conviction which is the subject of the present appeal.

Admissibility of the Tape Recording

The appellant argued that the seizure of the tape from the Cairns Registry amounted to a contempt of court and that this should have resulted in its exclusion from the trial.  In considering this argument, the Court first addressed whether a warrant could be lawfully issued to search premises of the judicial arm of a State government.  Section 3E(1) of the Crimes Act 1914 (Cth) (“Section 3E(1)”) authorises the issuing of a warrant to search “premises” where there are “reasonable grounds for suspecting that there is . . . evidential material at the premises relevant to a Commonwealth offence”.  Crimes Act 1914 (Cth), s 3E(1), see also [17].   The High Court, considering a comparable provision, held that a search warrant could be issued for the search of a State government department.  [18].  Nothing in the terms of Section 3E(1) or the decision of the High Court would suggest that this conclusion ought be different in respect of warrants to search the judicial arms of State government, [19], and in light of this, the Court held that such a search warrant could be lawfully issued.  [20].  Given that a warrant could be lawfully issued, the Court then turned to the question of whether, in the specific circumstances, the AFP’s conduct amounted to a contempt of court – an “act or omission that [has] a tendency to [unreasonably] interfere with or undermine the authority, performance or dignity of the courts of justice.”  [21].  In relation to this it was concluded that the AFP’s seizure did not amount to any unreasonable interference even though the trial had not concluded.  The AFP had obtained a (lawful) warrant the AFP and in seizing the tape the AFP was not acting in defiance of the court’s order.  [23].  Further, rather than interfering with the administration of justice, the evidence suggested that the tape had instead been seized in an effort to assist in its administration.  Id.  Given this evidence the Court declared that the tape’s seizure was lawful and that it had been properly admitted into evidence.  [26]. 

Fitness to Stand Trial

Pursuant to s 668E(1) Criminal Code the Court of Appeals is “bound to allow [an] appeal and set aside the conviction [where] there has been a miscarriage of justice”.  [63].  A miscarriage of justice arises, inter alia, where “there is a real and substantial question to be considered about an accused’s fitness to plead,” and only where the court is satisfied that “no tribunal, acting reasonably, could conclude that the accused was not fit, may that court determine that no miscarriage of justice has occurred”.  Id.    In this matter, however, this strict standard was countered by the fact that the physicians’ reports relied upon were made in the months following the relevant trial, given that “[i]t [is] very rare . . . for a later reconstruction, even by distinguished psychiatrists  . . .  to persuade the court that notwithstanding the earlier trial process and the safeguards built into it that the appellant was unfit to plead.”  [57], see also [68].  In determining whether the appellant was fit to be tried the Court considered “whether he had the ability to understand the nature of the charge; to plead to it and exercise a right of challenge; to understand the nature of the proceedings . . . to follow the course of the proceedings; to understand the substantial effect of any evidence . . . and to make a defence or answer . . . the charge.”  [56]; R v Presser [1958] VR 45, 48.  On the totality of the evidence adduced, the Court concluded that there was a “real and substantial question about the appellant’s fitness to stand trial.”  [69].  The appellant had severe memory difficulties and this, combined with a psychotic disorder meant that his ‘memories’ were a mixture of fact and delusion, which the Court considered prevented him understanding the trial and contributing to his defence.  [65].  Further, unlike in other similar cases, the issue regarding the appellant’s fitness to stand trial arose within a matter of months of the trial, [66], and an examination of the original trial transcript revealed that, at the time, there were concerns raised about his fitness, [67].  Thus, in the absence of evidence persuading it that reasonable court could find the appellant fit, the Court allowed the appeal against conviction and set aside the original guilty verdict.  [70].