R v Giovannone - [2001] NSWCCA 22

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 2001

PARTIES :

Philip Giovannone - Applicant
Crown - Respondent

JUDGMENT 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 - Crown

SOLICITORS: S Moran & Co - Applicant
S E O'Connor - Crown

CATCHWORDS: 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 1999

DECISION: 1. Leave granted on both applications; 2. Appeals dismissed.

IN THE COURT OF

CRIMINAL APPEAL

60848/98

SHELLER JA
GROVE J
KIRBY J

Thursday, 22 February 2001

REGINA v Philip GIOVANNONE

JUDGMENT

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

(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…

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 Giovannone

Details

AGLC: R v Giovannone [2001] NSWCCA 22
Case: [2001] NSWCCA 22
Decision Date: 22 February 2001

CaseChat Overview and Summary

The case of R v Giovannone dealt with the issue of an appeal against an interlocutory ruling made by a lower court. The appellant, Giovannone, sought to challenge the prosecutor's decision to continue with the criminal proceedings against him. The appeal was heard in the Supreme Court of the relevant state. The central question before the court was whether it had the authority to interfere with the prosecutor's discretion regarding the continuation and conduct of the criminal proceedings, and if the court could grant a stay of those proceedings.

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.

Orders