| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2021 0096
| JACKSON FEENEY | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| 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) |
---
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.
---
| 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…
Continue reading Feeney v The Queen
Sign in free to access the full text
- AGLC
- Feeney v The Queen [2022] VSCA 113
- Case
- [2022] VSCA 113
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.