Tootle v R

THE COURT: The applicant seeks leave to appeal the decision of Bennett SC DCJ on 12 October 2017 refusing him a permanent stay of the indictment which was to be presented at the applicant’s fourth trial on 23 October 2017.

The first two trials of the applicant in 2013 and 2014 resulted in a hung jury. The third trial in May 2016 resulted in verdicts of guilty. However, they were overturned by this Court in May 2017: Tootle v R [2017] NSWCCA 103.

In the course of Simpson JA’s judgment (Fagan and McCallum JJ agreeing), her Honour commented at [64] that the decision to prosecute the applicant again was one for the Director of Public Prosecutions “and may involve considerations other than those that are before this Court”. Her Honour further observed that it would be rare for this Court to intervene in that administrative decision.

The application is within the terms of s 5F of the Criminal Appeal Act 1912: R v King [2003] NSWCCA 399; 59 NSWLR 472 at 477 [22] per Spigelman CJ. The decision to refuse or grant a stay is discretionary. Thus, the applicant must demonstrate that the judge erred in the exercise of his discretion, in that his Honour acted upon a wrong principle, or took account of extraneous or irrelevant matters, or mistook the facts, or did not take account of a material consideration, or, in the absence of patent error, the decision is unreasonable or plainly unjust: House v R [1936] HCA 40; (1936) 55 CLR 499; Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 at 31 per Mason CJ.

The applicant seeks to rely upon the matters pressed at first instance. They are:-

The applicant has amended those grounds to the extent that he now submits that Bennett SC DCJ failed to give sufficient weight to a relevant consideration, namely that the Crown’s conduct in the third trial caused the trial to miscarry, and that the decision to refuse a permanent stay is unreasonable or plainly unjust.

The general principles that apply to the grant of a permanent stay on the grounds of an abuse of process were comprehensively summarised by Beazley JA (as she then was) in Calleija v Regina [2012] NSWCCA 37; 223 A Crim R 391 at [28] to [36]:-

As this summary makes perfectly clear, the question is whether the factors identified by the applicant, either individually or taken together, give rise to an unfairness in the conduct of a fourth trial which the trial judge is powerless to cure. In addressing that question, the interests of the applicant and the public’s interest in the due administration of justice must be weighed in the balance.

Moreover, the applicant bears a “high burden” in that regard: R v Petroulias [2005] NSWCCA 75; 62 NSWLR 663 Mason P, at [103], 688.

The primary submission on the abuse of process ground is that a fourth trial would constitute “harassment or tyranny” against the applicant and that it would “stretch the community’s sense of fair play”. The latter expression derives from Wilson J’s judgment in Keyowski v The Queen 40 CCC (3d) 481 at 483, referred to by Gleeson CJ in R v Francisco and Dorain CCA 24 August 1995 (unreported). The formulation of this submission appears to equate to the use of the court’s processes and procedures as instruments of injustice or unfairness.

It is not possible or desirable to attempt to identify the number of trials beyond which the continuation of the use of the court’s processes may be said to amount to an abuse of process. Each case turns upon its own facts. It may be regrettable that the applicant has faced three trials, but that is not sufficient to necessarily give rise to unfairness in the conduct of a fourth trial.

Trial judges are often called upon to explain to juries that previous trials have taken place and that, for reasons which do not concern them, those trials did not proceed to finality. There is no basis upon which this Court should conclude that such an instruction, coupled with a direction not to speculate, would not be followed by a jury. Moreover, there is no reason to assume that mere knowledge of previous trials on the same charges would give rise to the risk of unwarranted guilty verdicts. Ultimately, the jury will be instructed to confine itself to the evidence in the trial in determining whether they are satisfied beyond reasonable doubt of the elements of the charges.

The applicant’s submission that a fourth trial breaches the principle of finality must be rejected. The first two trials did not result in any outcome and the appeal from the verdicts in the third trial represents an exception to the principle of finality: Lindsay v The Queen [2015] HCA 16 at [48]; 255 CLR 272; 243 A Crim R 429.

Judge Bennett SC addressed the conduct of the Crown in the third trial which was canvassed in the applicant’s successful appeal. In short, the applicant now contends that the Crown’s acquiescence in the quasi-inquisitorial procedure adopted by the trial judge “caused” the miscarriage of justice which this Court identified: Tootle v R at [62], [63] and [78]. This submission differs somewhat from the submission made below, which was that the Crown bore some measure of responsibility for it.

It is difficult to sustain the proposition that insufficient weight was given to this factor by Bennett SC DCJ when the height of the applicant’s submission to his Honour was that the Crown’s conduct did no more than contribute to the mistrial. The applicant expressly disavowed any allegation of misconduct on the part of the Crown.

It must be acknowledged that the Crown expressed some misgivings about the invitation to the jury, extended by the trial judge, to ask questions of the witnesses, but was content to allow that to occur provided that counsel was given the opportunity to review the formulation of the questions. The applicant contends that the Crown only withdrew his acquiescence in the procedure in the course of the defence case and that by then it was too late.

The applicant takes issue with his Honour’s conclusion that it may have been “more desirable” for the Crown to have been “more assertive” in resisting the trial judge’s proposal. It is submitted that this finding evinces error.

The difficulty with a submission framed in terms of “insufficient weight” being given to a factor in making a discretionary decision is that it comprehends that the judge took a relevant consideration into account. The point of departure is that it was not accorded the weight that ought to have changed the nature of the decision. The attribution of weight was wholly within the bounds of the exercise of discretion: King v R [2015] NSWCCA 99, at [56].

The applicant does not contend that he is unable to fund a fourth trial. No doubt the history of the proceedings have taken a personal toll, but that factor does not outweigh the importance of maintaining the public’s confidence in the administration of justice, that is, the fulfilment of the expectation that persons charged with serious criminal offences will be brought to trial.

The applicant has not demonstrated that the exercise of Bennett SC DCJ’s discretion miscarried, or that the refusal to grant a stay is unreasonable or plainly unjust. Leave should be refused.