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Feeney v The Queen

Feeney v The Queen

Case [2022] VSCA 113 16 June 2022

Appeal

Murder

Joint Trial

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0096

JACKSON FEENEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2022
DATE OF JUDGMENT:	16 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 113
JUDGMENT APPEALED FROM:	DPP v JF (Unreported, Supreme Court of Victoria, Hollingworth J, 11 March 2020) (Conviction)

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CRIMINAL LAW – Appeal – Murder – Joint trial of co-accused – Record of interview of co-accused implicating the applicant – Separate trial refused – Whether substantial miscarriage of justice resulting from joint trial – Leave to appeal refused.

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Counsel
Applicant:		Mr R Nathwani
Respondent:		Mr C Boyce QC
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
WALKER JA:

Introduction

An indictment filed in the Supreme Court charged the applicant, Jackson Feeney, and Jye Kenden (‘Kenden’), with the murder of John Bourke.
The applicant sought, but was denied, a separate trial. As a result, throughout February and March 2020 he and Kenden were jointly tried.
Upon arraignment, the applicant pleaded not guilty to murder, but guilty to manslaughter. His case was that he was involved in an assault on Mr Bourke, but did not intend to cause him really serious injury.
In the morning of 11 March 2020, after a trial occupying several weeks, the jury convicted the applicant of murder.[1] The jury concurrently acquitted Kenden of murder, but were unable to agree on the alternative of manslaughter. Significantly, the jury had that morning sent a note to the trial judge indicating that they had reached the verdict with respect to the applicant on the first day of deliberations. The note was in the following terms:
We believe we’ve reached a point where a decision on [Kenden] will not be possible. Our decision on [the applicant] was reached on the first day but we’ve spent nearly a week on [Kenden] and nothing has changed.
[1]On 15 June 2021, the trial judge sentenced the applicant to 14 years’ imprisonment, with a non-parole period of nine years.
Plainly, in finding the applicant guilty of murder, the jury must have rejected his claim that he did not intend to cause Mr Bourke really serious injury.
The applicant now seeks leave to appeal against his conviction on a single ground that contends that a substantial miscarriage of justice occurred because the trial judge rejected his application for a separate trial.
For the reasons that follow, we would refuse leave to appeal.

The circumstances of the killing

It is necessary to provide a brief overview of the circumstances of Mr Bourke’s killing as revealed by the evidence.
Mr Bourke suffered from brittle bone disease, osteogenesis imperfecta. As a result, he was more prone to broken bones and tissue damage than another without that condition. He used crutches and a mobility scooter to be mobile. Neither the applicant nor Kenden knew him.
On the night of Saturday, 14 July 2018, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Feeney v The Queen

Details

AGLC: Feeney v The Queen [2022] VSCA 113
Case: [2022] VSCA 113
Decision Date: 16 June 2022

CaseChat Overview and Summary

Feeney has appealed against his conviction for murder, arguing that the joint trial with his co-accused resulted in a substantial miscarriage of justice. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the applicant's right to a fair trial was prejudiced by the joint trial, given that a record of an interview with the co-accused, which implicated the applicant, was admitted into evidence.

The court found that the joint trial did not inherently result in a substantial miscarriage of justice, as the evidence from the co-accused's interview was properly admitted under the rules of evidence. The court held that the trial judge had adequately managed the risks associated with a joint trial, including giving separate instructions to the jury regarding the consideration of each defendant's case independently. The court also noted that the applicant had not demonstrated how the joint trial caused any specific prejudice to his defence, as he had failed to identify any particular aspect of the trial process that was unfairly influenced by the presence of the co-accused.

As the court determined that there was no substantial miscarriage of justice and that the trial process was fair, the appeal was dismissed. The High Court refused the applicant leave to appeal, upholding the conviction and sentence imposed by the lower court.

Orders