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Court of Criminal Appeal 22 February 2001

R v Giovannone

[2001] NSWCCA 22

Also reported as (2001) 119 A Crim R 519
Public order & justice offences
CRIMINAL LAW AND PROCEDURE APPEALS AGAINST INTERLOCUTORY RULINGS CRIMINAL APPEAL ACT 1912, S5F

Citation: Giovannone v R [2001] NSWCCA 22
Court: Court of Criminal Appeal, New South Wales
Date: 22 February 2001
Judge(s): Sheller JA, Grove J, Kirby J

Background

The applicant faced two separate indictments arising from alleged conduct in 1994 and 1995. The first indictment contained three "bribery type" charges, alleging that on 16 November 1994 he had asked a former detective to help remove his name from a federal police brief, asked the same detective to provide protection for a drug dealer, and paid that detective $200 as a corrupt reward. The second indictment alleged that in July 1995, while giving evidence before the Royal Commission into the NSW Police Service, he gave false testimony by denying he had ever given money to a police officer.

An earlier trial on the three bribery charges ended in a hung jury, and the Crown directed a retrial. The parties had proceeded on the shared understanding that the bribery trial would come first, with the false testimony trial to follow depending in part on its outcome.

The Crown then changed course in August 2000, indicating it intended to reverse the order and run the false testimony trial first. The applicant responded by bringing two applications in the District Court: one to restore the original trial order, and one for a permanent stay of all proceedings on abuse of process grounds. Acting Judge Flannery dismissed both applications, and the applicant sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether the trial court had erred in refusing to order that the bribery charges be tried before the false testimony charge, given the Crown's reversal of a previously agreed trial sequence.
  • Whether the proceedings should be permanently stayed on abuse of process grounds, including on the basis that continuing the prosecution was an affront to the public conscience.
  • When an appellate court will interfere with a trial judge's exercise of discretion concerning the order of trials and decisions about stays of criminal proceedings.

Decision

The Court of Criminal Appeal granted leave to appeal on both applications but dismissed both appeals.

On the question of trial order, the Court found no error in Acting Judge Flannery's refusal to intervene. The prosecution retains a discretion as to how and in what order it conducts criminal proceedings, and courts are slow to override that discretion. Nothing in the material presented demonstrated that the Crown's decision to reverse the trial sequence was improper or that it materially prejudiced the applicant in a way that justified judicial interference.

On the stay application, the Court affirmed that a permanent stay is available only in the most exceptional circumstances, drawing on the test established in Jago v District Court (1989) 168 CLR 23. Sheller JA found that Acting Judge Flannery had properly directed himself to that test and had carefully considered all the material put before him. No error in the exercise of that discretion was established.

The applicant also argued that continuing the prosecution was an affront to the public conscience, pointing to the extensive criminal history of the Crown's key witness, Trevor Haken, who had been granted immunity from prosecution. The Court rejected this submission. Even if concerns about the grant of immunity were valid, that consideration did not translate into a basis for finding the prosecution of the applicant to be an affront to the public conscience.

Orders Made

  • Leave granted on both applications.
  • Appeals dismissed.

Key Takeaways

  • A prosecutor's discretion over the continuation and order of criminal proceedings is not readily displaced by a court; something more than unfairness in sequencing is required before a court will intervene.
  • Under the Jago test, a permanent stay of criminal proceedings is reserved for the most exceptional circumstances, and a trial judge who properly directs themselves to that standard will not be disturbed on appeal absent demonstrated error.
  • No error was established in the trial judge's exercise of discretion on either the trial order or stay applications, notwithstanding the Crown's departure from a previously understood arrangement.
  • The fact that the Crown's principal witness had been granted immunity from prosecution, and had an extensive record of corrupt conduct, did not of itself render the prosecution of the accused an affront to the public conscience.
  • In dismissing the appeals, the Court reaffirmed that questions about the admissibility and weight of evidence, including taped recordings, are matters for the trial judge and jury, not an appellate court hearing an interlocutory challenge.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (Cth)

Cases
- Jago v District Court (1989) 168 CLR 23
- Barton v The Queen (1980) 147 CLR 75
- Maxwell v The Queen (1996) 184 CLR 501
- House v The King (1936) 55 CLR 499
- Butera v DPP for the State of Victoria (1987) 164 CLR 180
- BWM (1997) 91 A Crim R 260
- R v Tolmie (unreported, NSWCCA, 7 December 1994)
- 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)
- R v Menzies [1982] 1 NZLR 40
- DPP v Hardas (unreported, District Court, 2 September 1999)