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R v Feeney

R v Feeney

Case [2012] ACTSC 153 16 October 2012

Information, Indictment or Presentment

Criminal Law

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THE QUEEN v ROBERT JOHN FEENEY
[2012] ACTSC 153 (16 October 2012)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Adjournment, Stay of Proceedings or Order Restraining Proceedings – accused’s application for a permanent stay of proceedings – abuse of process – applicant came to a plea agreement with the ACT Director of Public Prosecutions (DPP) – DPP later reinstated proceedings on the more serious charge after plea of guilty was accepted in full satisfaction
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pleas – Crown’s application for leave to withdraw acceptance of plea of guilty to lesser charge in full satisfaction
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, Indictment or Presentment – Crown’s application for leave to proceed on ex-officio indictment containing more serious charge

Native Vegetation Conservation Act 1977 (NSW) (repealed)

Australian Crime Commission v Gray & Anor [2003] NSWCA 318
Director General, Department of Environment and Climate Change v Gleeson (2009) 165 LGERA 99
Jago v District Court of NSW (1989) 168 CLR 23
Maxwell v The Queen (1996) 184 CLR 501
Moevao v Department of Labour (1980) 1 NZLR 464
R v Cook[No 2] [2005] ACTSC 124
R v Dunn [2004] NSWCCA 346
R v M [2010] NSWDC 200
R v Remple (unreported, Supreme Court of British Columbia, Oliver J, 14 May 1993)
R v Tilley (1992) 109 FLR 155
R v Ulman-Naruniec (2003) 143 A Crim R 531
Williamson v Trainor [1992] 2 Qd R 572

No. SCC 308 of 2009

Judge: Burns J
Supreme Court of the ACT

Date: 16 October 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 308 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

R

v

ROBERT JOHN FEENEY

ORDER

Judge:  Burns J
Date:  16 October 2012
Place:  Canberra

THE COURT ORDERS THAT:

The application for a stay in proceedings is refused.

The accused is granted leave to withdraw his plea of guilty to the charge of receiving stolen property.

The Crown is granted leave to withdraw its acceptance of the plea of guilty to receiving stolen goods in satisfaction of all offences arising out of the aggravated robbery which occurred on 9 August 2008.

On 13 August 2009 the applicant, Robert John Feeney, appeared before a magistrate in the ACT Magistrates Court charged with an offence of aggravated robbery. On that date the Director of Public Prosecutions (the DPP) proferred a fresh charge of receiving stolen property, to which the applicant entered a plea of guilty. The DPP then offered no evidence on the aggravated robbery charge, which the learned magistrate then dismissed. The applicant did not consent to the jurisdiction of the ACT Magistrates Court, and he was committed for sentence to this Court.

On or about 29 June 2010 the DPP filed an ex-officio indictment against the applicant in this Court charging him with an offence of aggravated robbery. The offence charged in this indictment is in substantially the same form as the charge upon which the DPP offered no evidence in 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 R v Feeney

Details

AGLC: THE QUEEN v ROBERT JOHN FEENEY [2012] ACTSC 153 (16 October 2012)
Case: [2012] ACTSC 153
Decision Date: October 16, 2012

CaseChat Overview and Summary

In the case of R v Feeney, the defendant was facing criminal proceedings in the ACT Magistrates Court. The dispute centred around the defendant's application for a permanent stay of proceedings due to what he perceived as an abuse of process. This arose after the defendant entered into a plea agreement with the ACT Director of Public Prosecutions, whereby he would plead guilty to a lesser charge of receiving stolen property. However, the DPP later reinstated proceedings on a more serious charge after accepting the plea of guilty in full satisfaction. The defendant argued that the DPP's actions constituted an abuse of process, warranting a stay of proceedings.

The court was required to address two primary legal issues. The first was whether the defendant's application for a permanent stay of proceedings was justified on the grounds of an abuse of process. The second issue was whether the Crown should be granted leave to proceed with an ex-officio indictment containing the more serious charge, and whether the Crown should be permitted to withdraw its acceptance of the plea of guilty in full satisfaction.

The court found that there was no abuse of process warranting a stay of proceedings. It held that the DPP's decision to reinstate the more serious charge was within their prosecutorial discretion and did not constitute an abuse of process. The court also found that the Crown was granted leave to proceed with the ex-officio indictment and to withdraw its acceptance of the plea of guilty in full satisfaction. The court emphasised that the decision to reinstate the more serious charge did not undermine the integrity of the judicial process or the rights of the defendant.

In light of the findings, the court made two primary orders. Firstly, the application for a stay in proceedings was refused. Secondly, the defendant was granted leave to withdraw his plea of guilty to the charge of receiving stolen property. Additionally, the Crown was granted leave to withdraw its acceptance of the plea of guilty to receiving stolen goods in satisfaction of all offences arising out of the aggravated robbery. These orders ensured that the case would proceed with the more serious charge, while also addressing the defendant's concerns regarding the plea agreement.

Orders

Orders of the court

1. The application for a stay in proceedings is refused.

2. The accused is granted leave to withdraw his plea of guilty to the charge of receiving stolen property.

3. The Crown is granted leave to withdraw its acceptance of the plea of guilty to receiving stolen goods in satisfaction of all offences arising out of the aggravated robbery which occurred on 9 August 2008.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

THE QUEEN v ROBERT JOHN FEENEY [2012] ACTSC 153 (16 October 2012)

Most Recent Citation

R v McNamara [2017] NSWLC 26

Cases citing this decision · 3 of 3 shown

McNamara v Fenner
[2017] NSWSC 1746 Para 11

…His Honour then referred to the decision of Burns J in R v Feeney [2012] ACTSC 153 at [16] and continued as follows:…
R v McNamara
[2017] NSWLC 26 Para 37

…he remaining submissions, in so far as constituting an abuse of process is concerned, I note that Mr Thomas referred me to the decision of R v Feeney [2012] ACTSC 153 wherein Burns J made reference to the remarks of Lloyd J in Prosecutor General, Department of Environment and Climate Change v Gleeson (2009) 165 LGE…
Robert John Feeney v The Queen
[2014] ACTCA 1 Para 1

…The background to this appeal is described in the judgment appealed from ( The Queen v Robert John Feeney [2012] ACTSC 153) as follows:…

View all 3 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Tilley
[2019] SASCFC 28 Para 1

…68 CLR 23. The accused primarily referred to four cases on the question whether the present proceedings constitute an abuse of process. In R v Tilley (1992) 109 FLR 155, Gallop J granted a permanent stay of proceedings with respect to proceedings consequent upon pleas of guilty by the accused to two charges of sexual…
R v M
[2010] NSWDC 200 Para 1

…The fourth case the applicant referred me to was R v M [2010] NSWDC 200. Berman DCJ was called upon to determine whether criminal proceedings should be stayed as an abuse of process where the Crown proposed to proceed with charges other than those it had previously agreed upon with the accused’s solicitor. In commo…
R v James Howard Cook [No 2]
[2005] ACTSC 124 Para 1

…Such an approach is consistent with that taken by Crispin J in R v Cook [No 2] [2005] ACTSC 124. Whilst that case concerned an application by the Crown to withdraw its acceptance of a plea of guilty to manslaughter in satisfaction of an indictment alleging murder, I see no reason why the principles applicable to th…
R v Dunn
[2004] NSWCCA 346 Para 1

…The decision of Gallop J in Tilley was distinguished by the New South Wales Court of Criminal Appeal in R v Dunn [2004] NSWCCA 346 (Handley JA, James and Howie JJ). In that case the appellant submitted that he had been led to believe by police that he was immune from prosecution for offences committed before a certa…
R v Carroll
[2002] HCA 55

…is discretionary and the categories of cases in which the court may stay its proceedings for abuse of process are various and not closed: R v Carroll (2002) 213 CLR 635 at 650-651; Rogers v The Queen (1994) 181 CLR 251 at 255. 27 However the power to stay is, in essence, a power to refuse jurisdiction and to interfer…
Maxwell v The Queen
[1996] HCA 46 Para 1

…r, I see no reason why the principles applicable to that application should not also apply in the present circumstances: see also Maxwell v The Queen (1996) 184 CLR 501.…
Rogers v The Queen
[1994] HCA 42

…ich the court may stay its proceedings for abuse of process are various and not closed: R v Carroll (2002) 213 CLR 635 at 650-651; Rogers v The Queen (1994) 181 CLR 251 at 255. 27 However the power to stay is, in essence, a power to refuse jurisdiction and to interfere with prosecutorial discretion. It is therefore e…
Walton v Gardiner
[1993] HCA 77

…he legitimate public interest in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice: Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 395-396.…
Jago v District Court (NSW)
[1989] HCA 46

…ce, a power to refuse jurisdiction and to interfere with prosecutorial discretion. It is therefore exercisable only in extreme and exceptional cases: Jago v District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at 34 and Gaurdon J at 76. ...…
[2003] NSWCA 318
[2003] NSWCA 318 Para 1

…The second case to which I was referred was Australian Crime Commission v Gray & Anor [2003] NSWCA 318. The respondent in that matter was a protected witness to whom certain promises of financial assistance had been made by the appellant. A disagreement arose over the extent of those promises, and the respondent co…
(1980) 1 NZLR 464
(1980) 1 NZLR 464 Para 1

…use of process. In Jago , Mason CJ quoted with approval the dicta of Richardson J in the New Zealand Court of Appeal in Moevao v Department of Labour (1980) 1 NZLR 464 at [12]:…
Moevao v Department of Labour
(1980) 1 NZLR 481 Para 1

…s where they amounted to an abuse of process. In Jago , Mason CJ quoted with approval the dicta of Richardson J in the New Zealand Court of Appeal in Moevao v Department of Labour (1980) 1 NZLR 464 at [12]:…

Legislation cited in this decision · 0

No legislation cited in this case.