R v Shea - [2010] QCA 339

SUPREME COURT OF QUEENSLAND

CITATION:

R v Shea [2010] QCA 339

PARTIES:

R
v
SHEA, Warren Thomas
(respondent)

FILE NO/S:

CA No 120 of 2010
DC No 2086 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

A-G’s Appeal under s 669A(1A) Criminal Code

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2010

JUDGES:

Holmes, Chesterman and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal is allowed.

2. The stay is set aside.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – ABUSE OF PROCESS – IN GENERAL – where the Crown sought to appeal the permanent stay of an indictment pursuant to s 669A(1A) of the Criminal Code 1899 (Qld) – where 33 days passed between the decision and the filing of the appeal – where there is no prescribed time limit for the bringing of an appeal under s 669A(1A) – whether 33 days amounts to an “undue delay which may work an unfairness”

CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – ABUSE OF PROCESS – IN GENERAL – where respondent convicted of two counts of refusing to answer a question at an examination by the Australian Crime Commission – where respondent received another summons to appear before the Commission whilst serving his sentence for the conviction – where the summons was in relation to the same investigation – where respondent once again refused to answer questions at the subsequent examination – where respondent charged in relation to this second series of refusals – where the learned primary judge ordered a stay of the indictment on the bases that the second prosecution was an abuse of process and was akin to “double jeopardy” – where the factual bases for second set of questions were entirely distinct from those of the first – whether the second prosecution amounted to an abuse of process – whether trial judge erred in the exercise of his discretion in ordering a permanent stay of the indictment

Acts Interpretation Act 1954 (Qld), s 38(4)
Australian Crime Commission Act 2002 (Cth), s 24A, s 25A(6), s 28, s 30(2), s 30(2)(b), s 24A, s 25A(6), s 28, s 30(2)
Criminal Code 1899 (Qld), s 16, s 669A(1), s 669A(1A), s 669A(2), s 669A(2A)

R v B; ex parte A-G (Qld) [2002] 1 Qd R 274; [2001] QCA 59, distinguished
R v Gordon; ex parte Cth DPP[2009] QCA 209, distinguished
R v KU; Ex parte Attorney-General (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, distinguished
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, applied

COUNSEL:

A MacSporran SC for the appellant
C Reid for the respondent

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the appellant
Legal Aid Queensland for the respondent

[1] HOLMES JA

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 Shea

Details

AGLC: R v Shea [2010] QCA 339
Case: [2010] QCA 339
Decision Date: 7 December 2010

CaseChat Overview and Summary

The appeal in R v Shea arose from a decision of the District Court of Queensland, which permanently stayed an indictment against the respondent for two counts of refusing to answer questions at an examination conducted by the Australian Crime Commission. The Crown sought to appeal this decision, arguing that the stay should not have been granted because the second prosecution did not amount to an abuse of process or double jeopardy. The appeal was brought under section 669A(1A) of the Criminal Code 1899 (Qld) and contested the appropriateness of the trial judge's exercise of discretion in ordering a permanent stay of the indictment.

The primary legal issues before the court were whether the second prosecution amounted to an abuse of process and whether the trial judge had erred in exercising his discretion to order a permanent stay of the indictment. The court considered whether the second prosecution constituted an abuse of process, given that the factual bases for the second set of questions were entirely distinct from those of the first set of questions. The court also examined whether the trial judge had correctly applied the principles of double jeopardy and abuse of process in ordering a permanent stay.

The court found that the trial judge had erred in ordering a permanent stay of the indictment. The court held that the second prosecution did not amount to an abuse of process because the factual bases for the second set of questions were distinct from those of the first set. Additionally, the court found that the trial judge had not adequately considered the principles of double jeopardy and abuse of process in ordering the stay. The court concluded that the trial judge had erred in the exercise of his discretion by granting a permanent stay without sufficient justification.

The appeal was allowed, and the stay was set aside. The court ordered that the indictment against the respondent should proceed to trial, and the stay imposed by the trial judge was no longer in effect. The respondent was therefore required to face trial on the charges of refusing to answer questions at the subsequent examination conducted by the Australian Crime Commission.

Orders

Orders of the court

1. The appeal is allowed.

2. The stay is set aside.

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.

CITATION:	R v Shea [2010] QCA 339
PARTIES:	R v SHEA, Warren Thomas (respondent)
FILE NO/S:	CA No 120 of 2010 DC No 2086 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	A-G’s Appeal under s 669A(1A) Criminal Code
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2010
JUDGES:	Holmes, Chesterman and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is allowed. 2. The stay is set aside.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – ABUSE OF PROCESS – IN GENERAL – where the Crown sought to appeal the permanent stay of an indictment pursuant to s 669A(1A) of the Criminal Code 1899 (Qld) – where 33 days passed between the decision and the filing of the appeal – where there is no prescribed time limit for the bringing of an appeal under s 669A(1A) – whether 33 days amounts to an “undue delay which may work an unfairness” CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – ABUSE OF PROCESS – IN GENERAL – where respondent convicted of two counts of refusing to answer a question at an examination by the Australian Crime Commission – where respondent received another summons to appear before the Commission whilst serving his sentence for the conviction – where the summons was in relation to the same investigation – where respondent once again refused to answer questions at the subsequent examination – where respondent charged in relation to this second series of refusals – where the learned primary judge ordered a stay of the indictment on the bases that the second prosecution was an abuse of process and was akin to “double jeopardy” – where the factual bases for second set of questions were entirely distinct from those of the first – whether the second prosecution amounted to an abuse of process – whether trial judge erred in the exercise of his discretion in ordering a permanent stay of the indictment Acts Interpretation Act 1954 (Qld), s 38(4) Australian Crime Commission Act 2002 (Cth), s 24A, s 25A(6), s 28, s 30(2), s 30(2)(b), s 24A, s 25A(6), s 28, s 30(2) Criminal Code 1899 (Qld), s 16, s 669A(1), s 669A(1A), s 669A(2), s 669A(2A) R v B; ex parte A-G (Qld) [2002] 1 Qd R 274; [2001] QCA 59, distinguished R v Gordon; ex parte Cth DPP[2009] QCA 209, distinguished R v KU; Ex parte Attorney-General (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, distinguished Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, applied
COUNSEL:	A MacSporran SC for the appellant C Reid for the respondent
SOLICITORS:	Director of Public Prosecutions (Commonwealth) for the appellant Legal Aid Queensland for the respondent