R v Feeney
[2012] ACTSC 153
•October 16, 2012
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Native Vegetation Conservation Act 1977 (NSW) (repealed)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 ACT Magistrates Court in August 2009. It is common ground that each refers to the same incident.
The present application
The applicant seeks an order that the proceedings on the indictment of 29 June 2010 be permanently stayed as an abuse of process. The DPP seeks a grant of leave to proceed on the ex-officio indictment and for leave to be granted for the DPP to withdraw its acceptance of a plea of guilty to the charge of receiving stolen property “in full satisfaction of the charge of aggravated robbery”.
The basis for the applicant’s application is an assertion that he reached an agreement with the DPP in 2009 that he would plead guilty to the charge of receiving stolen property if the DPP withdrew the charge of aggravated robbery. He submits that to allow the DPP to effectively reinstate the charge of aggravated robbery after he has entered a plea of guilty to the receiving charge (albeit that he has not been sentenced with respect to that charge) constitutes an abuse of this Court’s processes.
The DPP submits that the evidence available to it strongly supports, and has always supported, the applicant being charged with aggravated robbery.
Evidence
The materials filed in support of these applications satisfies me of the following:
a) on 9 August 2008 an aggravated robbery occurred;
b)on 13 March 2009 the accused was charged with that offence of aggravated robbery;
c)on 19 March 2009 the accused entered a plea of not guilty to that charge;
d)on 3 July 2009 a meeting occurred between the accused’s solicitor and a senior officer of the DPP in which the accused, by his solicitor, offered to plead guilty to a charge of receiving stolen property, being some of the proceeds of the aggravated robbery, if the DPP agreed to withdraw the aggravated robbery charge. The senior officer of the DPP consulted the AFP, and subsequently agreed to the accused’s proposal;
e)on 13 August 2009 the DPP presented a fresh charge of receiving stolen property in the Magistrates Court, to which the accused entered a plea of guilty. The DPP then withdrew the charge of aggravated robbery;
f)the senior officer of the DPP who accepted the accused’s offer had authority to do so;
g)the DPP has evidence that the accused committed the offence of aggravated robbery with which they propose to charge him; and
h)that evidence was in the possession of the DPP prior to 13 August 2009.
Relevant law
There is no doubt that this Court has the power to stay proceedings where they amount to an abuse of process: Jago v District Court of NSW (1989) 168 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 intercourse with a person between the age of 10 and 16 years. At the time of the alleged offences the complainant was 13 or 14 years old, and the accused was 15 or 16 years old. They had both been adopted by the same couple, but were not related to each other by blood. The offences came to the attention of police not long after the commission of the second offence, but it was decided that proceedings against the accused would not be instituted as the family were attempting to address the situation by counselling rather than by the institution of criminal proceedings. At a much later time, police decided that the accused should be charged and the allegations dealt with by the criminal law system in the ordinary way. The accused was 20 years old by the time he appeared in this Court.
Referring to the decision in Jago, Gallop J confirmed that the Court had the power to stay criminal proceedings 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]:
It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice.
Gallop J went on to consider the Court of Criminal Appeal decision in Williamson v Trainor [1992] 2 Qd R 572. The accused in that case was charged with an offence in the Magistrates Court at Cairns. The accused pleaded not guilty and the matter came on for hearing. On the hearing date the prosecution sought an adjournment as a number of its witnesses were not available. The accused opposed the application for an adjournment as one of his witnesses was about to leave the State. The Court refused the adjournment application. Negotiations then took place between the prosecution and the accused. The accused agreed to sign an indemnity releasing the State from any potential claim arising out of the proceedings on the basis that the prosecution offered no evidence on the charge. The accused signed the indemnity and the Court dismissed the charge upon the prosecution offering no evidence. Later, the prosecution commenced fresh proceedings alleging the same offence against the accused. In ordering a stay of the second proceedings Dowsett J said at p 583:
Nothing is more likely to bring the judicial process into disrepute than to permit either the Crown or the police force to resile from such an agreement. I consider that the subsequent proceedings constituted an abuse of process.
Gallop J considered that no proper reason for the prosecution resiling from its “agreement” was demonstrated in Tilley, and the proceedings should be stayed.
A number of circumstances found in Tilley, relevant to Gallop J’s decision, should be noted. First, the accused was a juvenile at the time the alleged offences occurred, and many years had passed between the police initially deciding not to prosecute and then deciding they would prosecute. Secondly, at the time of the original investigation police advised those concerned, presumably including the accused, that no criminal proceedings would be instituted unless the safety of the complainant (presumably from further sexual interference by the accused) was ensured. His Honour found that there was an “oral agreement” to that effect. The accused had not come to police attention since that agreement was made, effectively keeping his side of the bargain.
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 certain date as a result of statements made to him on his agreeing to give evidence in unrelated proceedings against three police officers. On appeal from his conviction, he alleged that “the decision of Gallop J ... in R v Tilley precluded the conviction of the [appellant].” In rejecting that submission, the Court said at [66]:
As to the third ground of appeal against conviction, the decision of Gallop J in R v Tilley was simply a decision, on the particular facts in that case, that a stay of criminal proceedings should be ordered on the ground that the proceedings were an abuse of process. The decision in R v Tilley does not create any precedent and could not give rise to any ground of appeal against the applicant’s convictions.
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 commenced proceedings to enforce his understanding of the agreement. The respondent was successful at first instance. On appeal Ipp JA (with whom Mason P and Tobias JA agreed) held that the police representations had legal effect by virtue of the principles of equitable estoppel.
This decision does not advance the case raised by the applicant in the current proceedings. Gray is an estoppel case based on representations removed from any criminal proceedings against the respondent. I am unaware of any case where the principles of equitable estoppel have been employed to preclude commencement, or continuation, of criminal proceedings. In my opinion, the applicant’s case rises or falls on the principles governing abuse of process and it is inappropriate to address the issues raised by reference to contractual or equitable principles.
The next case the accused referred to was Director General, Department of Environment and Climate Change v Gleeson (2009) 165 LGERA 99. The defendants in that matter sought a stay of proceedings alleging an offence under the Native Vegetation Conservation Act 1977 (NSW) (repealed) on the grounds that the proceedings constituted an abuse of process. Earlier proceedings in the New South Wales Land and Environment Court concerning an allegation that the defendants unlawfully cleared native vegetation were settled on the basis that the defendants were required to remediate an area of land smaller than that originally the subject of the proceedings, but also upon the defendants entering into a property agreement in relation to a larger area of land. This property agreement restricted the use to which that land could be put by the defendants. The defendants alleged that they had been led to believe that by entering into the settlement of the original proceedings they would not be prosecuted by the plaintiff. Subsequently, the plaintiff commenced prosecution proceedings against them.
Lloyd J was satisfied the court had the power to stay the prosecution as an abuse of process. His Honour noted:
26 The power to stay proceedings for abuse of process 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 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.
...
29 The discretion is determined by a weighing process which involves the subjective balancing of a variety of considerations. These considerations include fairness to the accused, the legitimate public interest in the disposition of charges of serious offences, the 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.
His Honour then quotes with approval Sulan J, sitting on the Court of Criminal Appeal in the Supreme Court of South Australia, in R v Ulman-Naruniec (2003) 143 A Crim R 531:
Although the limits of conduct which may amount to an abuse of process to justify a permanent stay have not been defined, before the power is exercised it is, in my opinion, necessary to establish:
(i) That there is prejudice caused by the abuse of process.
(ii)That the prejudice caused will be perpetuated or aggravated through the conduct of the trial so as to result in the accused not receiving a fair trial.
(iii)That there is no remedy available which will alleviate the prejudice.
(iv)That the unfairness is such that the administration of justice is best served by staying the proceeding, having regard to the overriding interest in the effective prosecution of criminal cases.
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 common with the present case, the accused had agreed to enter pleas of guilty to certain charges on the basis that other serious charges would not be pursued by the Crown. An agreed statement of facts was prepared by the parties before the Crown decided to repudiate the agreement and proceed on the other serious charges. The accused had not entered pleas of guilty to the lesser charges.
Berman DCJ refused the application for a stay on the basis that the accused would suffer no relevant detriment or be placed in a position of disadvantage if the Crown were allowed to withdraw from its agreement. Whilst the accused had agreed upon a statement of facts, his Honour considered it inconceivable that it would be admitted in evidence against the accused on any trial. Further, there was no suggestion that in preparing the statement of facts the accused had revealed any information not already known to the prosecution.
In the course of his decision Berman DCJ referred to the decision of the Supreme Court of British Columbia in R v Remple (unreported, Supreme Court of British Columbia, Oliver J, 14 May 1993):
A plea bargain, due to public policy considerations involved, is not considered a usual undertaking by either lawyer. Either party may withdraw from the bargain prior to performance. However, once the defendant has performed his part of the bargain in whole or in part, or has in reliance on the agreement acted to his detriment or been placed in a position of disadvantage, however slight, it would be improper for the prosecution to fail to fulfil the agreement.
To the extent that Oliver J suggests that part performance of a plea agreement by an accused will be determinative of whether the Crown should be precluded from resiling from the agreement, I do not agree. Nor do I think that the Australian authorities support that proposition. The power to grant a stay is discretionary, and a circumstance relevant to the exercise of that discretion is whether the accused will suffer irremediable prejudice if a stay is not granted. If irremediable prejudice will not be suffered by the accused, it is difficult to see how the administration of justice will be brought into disrepute by allowing the Crown to proceed with the charge of aggravated robbery. Indeed, I consider that the administration of justice is more likely to be brought into disrepute by holding the Crown to the agreement where there is evidence that the accused has committed a more serious offence, and where the accused will suffer no prejudice by allowing the Crown to proceed on that charge.
There is no suggestion that the Crown seeks to bring the charge of aggravated robbery for an improper purpose. The prejudice suffered by the accused by virtue of his plea of guilty to the charge of receiving stolen property can be remedied by granting him leave, if leave is necessary, for him to withdraw his plea.
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 that application should not also apply in the present circumstances: see also Maxwell v The Queen (1996) 184 CLR 501.
I am of the opinion that the interests of justice favour refusing the application for a stay, and granting the accused leave to withdraw his plea of guilty to the charge of receiving stolen goods. I grant leave to the Crown, if such leave be necessary, to withdraw its acceptance of the plea of guilty to the charge of receiving stolen property in satisfaction of the earlier charge of aggravated robbery. The question remains whether I should remit the charge of receiving stolen property to the ACT Magistrates Court so as to allow the prosecution to institute proceedings in that Court with respect to the charge of aggravated robbery, or allow the Crown to proceed with the ex-officio indictment it has filed in this Court. Remittal will ensure that a committal process takes place, but will be longer than the other option. I will hear the parties on this question.
I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 16 October 2012
Counsel for the applicant: Mr R Thomas
Solicitor for the applicant: John O’Keefe
Counsel for the defendant: Mr M Thomas
Solicitor for the defendant: ACT Director of Public Prosecutions
Date of hearing: 10 August 2012
Date of judgment: 16 October 2012
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