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Court of Criminal Appeal 26 October 2017

Tootle v R

[2017] NSWCCA 328

Public order & justice offences
CRIMINAL LAW S 5F APPEAL ABUSE OF PROCESS PRINCIPLE OF FINALITY FOURTH TRIAL REFUSAL TO GRANT PERMANENT STAY

Citation: Tootle v R [2017] NSWCCA 328
Court: Court of Criminal Appeal, NSW
Date: 26 October 2017
Judges: Latham J, Beech-Jones J, Wilson J

Background

The applicant had faced three prior trials on serious criminal charges. The first two trials, in 2013 and 2014, ended in hung juries. The third trial, in May 2016, resulted in guilty verdicts, but the Court of Criminal Appeal overturned those verdicts in May 2017 on the basis that the trial had miscarried.

The miscarriage in the third trial arose from a procedure adopted by the trial judge, which involved inviting the jury to ask questions of witnesses. The Crown had expressed some reservations about this approach but ultimately acquiesced, provided counsel could review the formulation of questions.

With a fourth trial scheduled for 23 October 2017, the applicant applied to the District Court for a permanent stay of the indictment. Bennett SC DCJ refused that application. The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether the District Court judge erred in the exercise of his discretion in refusing a permanent stay of the indictment
  • Whether proceeding to a fourth trial constituted an abuse of process
  • Whether a fourth trial would be fundamentally unfair, including due to jury pressure arising from knowledge of three prior trials
  • Whether the Crown's acquiescence in the flawed procedure at the third trial was a weighty enough factor to justify a permanent stay
  • Whether the principle of finality, combined with the applicant's personal circumstances, warranted a stay

Decision

The Court of Criminal Appeal refused leave to appeal. The court confirmed that a permanent stay of criminal proceedings is an extreme remedy, available only where there is a fundamental defect going to the root of a trial of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences, as stated by Mason CJ in Jago v District Court of NSW.

On the question of the Crown's conduct in the third trial, the applicant had expressly disavowed any allegation of misconduct. The most the applicant had submitted below was that the Crown's acquiescence had contributed to the mistrial, not caused it. The court found it difficult to conclude that Bennett SC DCJ gave insufficient weight to this factor when the applicant's own submission at first instance had characterised it in those limited terms.

The court also rejected the argument that the refusal to stay was unreasonable or plainly unjust. The applicant's personal circumstances, while acknowledged, did not outweigh the public interest in ensuring that persons charged with serious criminal offences are brought to trial. The principle that attribution of weight to relevant factors in a discretionary decision falls within the bounds of lawful discretion was applied, citing King v R [2015] NSWCCA 99.

The court noted that the earlier Court of Criminal Appeal judgment setting aside the third trial's verdicts had already observed that any decision to prosecute again was a matter for the Director of Public Prosecutions, and that it would be rare for a court to intervene in that administrative decision.

Orders Made

• Leave should be refused.

Key Takeaways

  • A permanent stay of criminal proceedings remains an exceptional remedy, available only where a fundamental defect exists that no conduct of the trial by the judge can remedy.
  • The applicable standard for appellate review of a stay refusal is the House v R test: the applicant must demonstrate that the judge acted on a wrong principle, took account of irrelevant matters, mistook the facts, failed to consider a material matter, or reached a decision that was unreasonable or plainly unjust.
  • Where a discretionary decision already accounts for a relevant factor, the mere contention that insufficient weight was given to that factor does not establish appellate error; the attribution of weight falls within the lawful exercise of discretion.
  • The public interest in maintaining confidence in the administration of justice, including the expectation that persons charged with serious offences are brought to trial, operates as a significant counterweight to an accused's personal circumstances in the balancing exercise for a permanent stay.
  • The Court of Criminal Appeal confirmed that the decision whether to retry an accused after a successful appeal lies with the Director of Public Prosecutions, and courts will rarely intervene in that administrative decision.

Legislation and Cases Referenced

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

Cases
- Calleija v Regina [2012] NSWCCA 37; 223 A Crim R 391
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
- Keyowski v The Queen 40 CCC (3d) 481
- King v R [2015] NSWCCA 99
- Lindsay v The Queen [2015] HCA 16; 255 CLR 272
- R v Francisco and Dorain (CCA, 24 August 1995, unreported)
- R v King [2003] NSWCCA 399; 59 NSWLR 472
- R v Petroulias [2005] NSWCCA 75; 62 NSWLR 663
- Tootle v R [2017] NSWCCA 103