Reported Decision:
(2001) 119 A Crim R 519
New South Wales
Court of Criminal Appeal
CITATION: R v Giovannone [2001] NSWCCA 22 FILE NUMBER(S): CCA 60728/00 HEARING DATE(S): 6 February 2001 JUDGMENT DATE:
22 February 2001PARTIES :
Philip Giovannone - Applicant
Crown - RespondentJUDGMENT OF: Sheller JA at 1; Grove J at 44; Kirby J at 45
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 98/11/0863 LOWER COURT JUDICIAL
OFFICER :Flannery DCJ
COUNSEL : R A Bonnici - Applicant
P Hock - CrownSOLICITORS: S Moran & Co - Applicant
S E O'Connor - CrownCATCHWORDS: Criminal law and procedure - appeals against interlocutory rulings - When court will interfere with discretion of prosecutor as to continuation and conduct of proceedings - When court will grant a stay of proceedings - Criminal Appeal Act 1912, s5F LEGISLATION CITED: Criminal Appeal Act 1912
Evidence Act 1995 (Cth)CASES CITED: BWM (1997) 91 A CrimR 260
House v The King (1936) 55 CLR 499
R v Tolmie (unreported) NSWCCA, 7 December 1994
Maxwell v The Queen (1996) 184 CLR 501
Barton v The Queen (1980) 147 CLR 75
R v Brown (1989) 17 NSWLR 472
R v Van Phu Ho (unreported) NSWCCA 18 July 1994
R v Pirrottina (unreported) NSWCCA 27 September 1996
Jago v District Court (1989) 168 CLR 23
Butera v DPP for the State of Victoria (1987) 164 CLR 180
R v Menzies [1982] 1 NZLR 40
DPP v Hardas (unreported) District Court 2 September 1999DECISION: 1. Leave granted on both applications; 2. Appeals dismissed.
IN THE COURT OF
CRIMINAL APPEAL
SHELLER JA
GROVE J
KIRBY J
Thursday, 22 February 2001
1 SHELLER JA: Pursuant to s5F of the Criminal Appeal Act 1912, Philip Giovannone seeks leave to appeal against two interlocutory judgments and orders of Acting Judge Flannery, one given on 7 November 2000 and the other on 8 and 9 November 2000.
2 The applicant stood trial in the District Court in May 2000 on an indictment containing three counts that on 16 November 1994 at Sydney he:
(a) “did an act, namely did ask Trevor Haken to speak with a person at the Australian Federal Police with a view to removing Giovannone’s name from an Australian Federal Police brief with an intent thereby to pervert the course of justice” (referred to as the ‘Rubber Count’);
(b) did an act, namely did ask Trevor Haken to provide protection from arrest for a drug dealer named ‘Rocky’ with intent to pervert the course of justice (referred to as the ‘Rocky Count’); and
These charges have been referred to as the “bribery type charges”.(c) did corruptly give Trevor Haken, an agent of the Crown, a benefit namely, $200 as an inducement on account of Trevor Haken showing favour to Giovannone in relations (sic) to the affairs of the Crown (referred to as the ‘Corrupt Reward Count’).”
3 The jury were unable to agree on a…
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- R v Giovannone [2001] NSWCCA 22
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- [2001] NSWCCA 22
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CaseChat Overview and Summary
The legal issue that the court had to determine was whether the appeal was valid under the Criminal Appeal Act 1912, specifically section 5F. This section of the Act provides that an appeal can be made against an interlocutory ruling if it is one "of a class specified by rules of court as an appealable interlocutory ruling." The court had to consider whether the prosecutor's decision to continue with the proceedings qualified as an appealable interlocutory ruling. Furthermore, the court had to evaluate the circumstances under which it would be appropriate to grant a stay of the proceedings.
The court examined the nature of the prosecutor's discretion and the principles that guide the exercise of that discretion. The court held that while the prosecutor generally enjoys broad discretion in deciding whether to continue with criminal proceedings, this discretion is not unfettered. The court must intervene if the prosecutor's decision is shown to be plainly wrong or if it amounts to an abuse of the court's process. The court further clarified that a stay of proceedings may be granted if the appellant can demonstrate that the continuation of the proceedings would result in a substantial miscarriage of justice or would be an abuse of the court's process. In this instance, the court found that the appellant had not demonstrated that the prosecutor's decision was plainly wrong or an abuse of process, and therefore dismissed the appeal and denied the application for a stay of proceedings. The court's decision was grounded in a careful analysis of the relevant statutory provisions and case law.
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