The Court of Criminal Appeal has refused Warren Dumbrell’s application to certify legal questions for an appeal to the Supreme Court, finding that the main question did not arise in his case.
The application concerned section 33 of the Criminal Procedure Act 2010 and whether an accused who seeks to introduce another person’s previous convictions loses the protection described in the judgment as a “shield”. Dumbrell sought certification of three questions about when that protection is lost and whether the provision was consistent with an earlier Supreme Court decision.
The application followed the Court of Criminal Appeal’s dismissal, on 4 July 2014, of Dumbrell’s appeal against his conviction. He had argued in that appeal that the trial judge should have allowed him to introduce the deceased’s previous convictions to support a claim that the deceased had a propensity for violence and carrying knives. The trial judge ruled that the convictions did not make it more likely the deceased had been carrying a knife on the occasion in question, and that relevant cross-examination had already taken place.
At trial, Dumbrell had served notice that he proposed to impute the deceased’s character. During cross-examination, his co-appellant, Jeffrey Dumbrell, said a prosecution witness had 106 previous convictions for carrying knives and firearm offences. The prosecution then introduced Jeffrey Dumbrell’s previous convictions into evidence.
The court said no issue had been raised, argued or decided about whether Warren Dumbrell had lost his shield. It said he had not: the only appellant whose shield was dropped was Jeffrey Dumbrell. The court also recorded that Warren Dumbrell had obtained some benefit from evidence of the deceased’s previous convictions.
Because Warren Dumbrell’s proposed first question was hypothetical, the court said it did not meet the requirements for certification under section 29 of the Courts of Justice Act 1924. The other two questions depended on the first and therefore did not arise. The court refused to make the requested certification order. The ruling concerned whether questions could be certified for a further appeal; it did not decide those questions on their merits.