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Court of Criminal Appeal 19 May 2017

Tootle v R

[2017] NSWCCA 103

Sexual offences
CRIMINAL LAW APPEAL CRIMINAL TRIAL PROCEDURE JURIES MISCARRIAGE OF JUSTICE

Citation: Tootle v R [2017] NSWCCA 103
Court: Court of Criminal Appeal, New South Wales
Date: 19 May 2017
Judge(s): Simpson JA at [1]; McCallum J at [66]; Fagan J at [67]

Background

The appellant stood trial over six days in May 2016 in the District Court at Parramatta, facing 11 counts of sexual offences against a single complainant. The alleged offences occurred across three separate episodes between February 2009 and November 2012, when the complainant was aged between 13 and 17. Both the appellant and the complainant were involved in refereeing soccer at a local level, and the offending was alleged to have occurred in that context.

The jury convicted the appellant on all 11 counts, four by unanimous verdict and seven by majority. On 16 December 2016, the trial judge imposed an aggregate sentence of eight years' imprisonment with a non-parole period of five years.

During the trial, the trial judge directed the jury that they were entitled to formulate questions for witnesses and established a formal process for doing so. Defence counsel objected, and the Crown also expressed hesitation on two occasions. Despite those objections, the process continued throughout the trial, resulting in the jury posing 56 questions to witnesses. The appellant challenged his convictions on appeal, with the first ground targeting this jury-questioning process as a fundamental breach of trial procedure.

  • Whether the trial judge erred in directing the jury that they were entitled to formulate and have questions put to witnesses
  • Whether the process established to facilitate jury questioning altered the fundamental nature of the criminal trial
  • Whether the jury's involvement in questioning witnesses drew them into an investigative or inquisitorial role inconsistent with their proper function as impartial arbiters
  • Whether the irregularity constituted a miscarriage of justice, and whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) applied to preserve the convictions

Decision

Simpson JA, with McCallum J and Fagan J agreeing, held that the role of the jury in a criminal trial is to act as an impartial arbiter of fact. The jury has no investigative or inquisitorial function. The trial judge's directions encouraging the jury to formulate questions, and the structured process established to have those questions put to witnesses, altered that fundamental character of the trial.

The Court found that the trial was not conducted "according to law." The process involved the jury deliberating collectively on questions, submitting them in writing, counsel discussing admissibility, and the Crown prosecutor then putting permitted questions to witnesses. This arrangement risked drawing jurors into an investigative role and undermining the Crown's distinct burden of proof, while also depriving counsel of control over the conduct of their respective cases.

Fagan J identified additional dimensions of the miscarriage. Where a party objected to a particular jury question and the trial judge disallowed it, the jury was exposed to a risk of impermissible speculation, including as to who had objected and why. That speculation could not be cured by a direction. The procedure also impaired the appellant's ability to neutralise any adverse inferences that might arise from answers given to the jury's own questions, and it risked encouraging improper reasoning more broadly.

All three judges agreed that the proviso under s 6(1) of the Criminal Appeal Act 1912 did not apply. The error was not of the kind that calls for a review of the whole evidence to assess whether guilt was proved beyond reasonable doubt. Rather, it constituted a significant denial of procedural fairness and a serious departure from the essential requirements of a criminal trial. That category of error places the case outside the reach of the proviso altogether.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • New trial ordered

Key Takeaways

  • A jury's role in a criminal trial is confined to that of impartial arbiter of fact. It carries no investigative or inquisitorial function, and trial procedures that draw the jury into such a role are inconsistent with the nature of a criminal trial according to law.
  • Directing a jury that they are entitled to formulate questions for witnesses, and establishing a formal mechanism for putting those questions, fundamentally alters the character of the trial and amounts to a miscarriage of justice.
  • Where a party objects to a jury question and it is disallowed, the jury may speculate about the identity and motivation of the objecting party. The Court of Criminal Appeal held that such speculation is not adequately addressed by a judicial direction not to speculate.
  • A miscarriage of justice arising from a significant denial of procedural fairness or a serious departure from essential trial requirements falls outside the scope of the proviso to s 6(1) of the Criminal Appeal Act 1912. In such cases, the appellate court is not required to examine the full trial record to determine whether guilt was proved beyond reasonable doubt.
  • Objections raised by both defence counsel and the Crown during the trial did not prevent the irregularity from continuing, but those objections were ultimately material to the appeal's success.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 306I
- Evidence Act 1995 (NSW), s 41
- Jury Act 1977 (NSW), s 55F

Cases:
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6
- Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43
- Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29
- Lo Presti v The Queen (1994) 68 ALJR 477
- R v Esposito (1998) 45 NSWLR 442
- R v Damic [1982] 2 NSWLR 750
- R v Pathare [1981] 1 NSWLR 124
- Sams v R (1990) 46 A Crim R 468
- State of Minnesota v Gerard J Costello 646 NW 2d 204 (Minn 2002)
- Re Rattan [1974] VR 201
- R v Lo Presti [1992] 1 VR 696
- R v Mawson [1967] VR 205