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DPP v Tuteru

DPP v Tuteru

Case [2023] VSCA 188 17 August 2023

Interlocutory Orders

Stay of Proceedings

Appeal

Misuse of Court Process

Reasonableness of Judicial Decision

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0030

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
SIMIONA TUTERU	Respondent

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JUDGES:	BEACH, WALKER and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2023
DATE OF JUDGMENT:	17 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 188
JUDGMENT APPEALED FROM:	DPP v Tuteru (Ruling No 3) [2023] VSC 93 (Justice Lasry)

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CRIMINAL LAW – Interlocutory appeal – Five indictments filed – Manslaughter charges discontinued – Respondent ultimately faced charge of fail to comply with duty under the Heavy Vehicle National Law (Victoria) – Application for permanent stay granted – Trial judge held maintenance of manslaughter charges a glaring and oppressive misuse of Court process – Whether opportunity for summary hearing lost – Whether fundamental alterations made to prosecution case – Whether any future trial would be oppressive – Whether trial judge mistook facts, failed to regard relevant considerations and had regard to irrelevant considerations – Whether ruling unreasonable or plainly unjust – Leave to appeal granted – Appeal allowed – Permanent stay order set aside.

Criminal Procedure Act 2009, s 168.

Barton v The Queen (1980) 147 CLR 75; Clark v The Queen (2016) 258 A Crim R 511; House v The King (1936) 55 CLR 499; Jago v District Court of New South Wales (1989) 168 CLR 23; Maxwell v The Queen (1996) 184 CLR 501 and Williams v Spautz (1992) 174 CLR 509; considered.

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Counsel
Applicant:		Mr B M Ihle KC with Ms K Crennan
Respondent:		Mr D Hallowes SC with Ms A Beech
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Holman Webb Lawyers

BEACH JA
WALKER JA
TAYLOR JA:

Introduction

The respondent is charged on indictment (the ‘Indictment’) with a single charge of failing to comply with a duty under s 26C of the Heavy Vehicle National Law (Victoria) (‘HVNL’) pursuant to s 26F of the HVNL.
He was, in April 2020, a supervisor at Connect Logistics Pty Ltd (‘Connect Logistics’), a trucking company. The HVNL imposed upon him a duty to ensure, so far as was reasonably practicable, the safety of his decision making associated with the use of a heavy vehicle on the road. The charge alleges that on 22 April 2020 the respondent knew that Mohinder Singh, one of the truck drivers he supervised, was unfit to drive. Despite that, the respondent allowed Mr Singh to drive a heavy vehicle. In so doing, the applicant alleges that the respondent was reckless as to the risk to individuals posed by Mr Singh operating a heavy vehicle when he was unfit to do so.
The risk eventuated when Mr Singh fell asleep at the wheel while driving the heavy vehicle on the Eastern Freeway at Kew and the vehicle collided with two police cars and a Porsche that had been intercepted by four police officers. Those police officers were killed as a result of the collision.
The respondent was charged in August 2020. The Indictment,…

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 DPP v Tuteru

Details

AGLC: Director of Public Prosecutions v Tuteru [2023] VSCA 188
Case: [2023] VSCA 188
Decision Date: 17 August 2023

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Tuteru, the respondent, Tuteru, faced multiple charges stemming from an incident where he was driving a heavy vehicle. The charges were initially brought as manslaughter, but after a series of legal manoeuvres, the respondent was left with a single charge of failing to comply with a duty under the Heavy Vehicle National Law (Victoria). Tuteru applied for a permanent stay of proceedings, which was granted by the trial judge, who found that maintaining the manslaughter charges would be a glaring and oppressive misuse of the court process. The Director of Public Prosecutions subsequently applied for leave to appeal against the decision to grant a permanent stay, which was allowed by the court.

The primary legal issues that the court had to determine were whether the opportunity for a summary hearing had been lost, whether fundamental alterations had been made to the prosecution case, and whether any future trial would be oppressive. The court also had to consider whether the trial judge had mistaken the facts, failed to regard relevant considerations, and had regard to irrelevant considerations. The court was required to determine if the ruling was unreasonable or plainly unjust.

The court found that the trial judge had not erred in granting the permanent stay. The court noted that the original manslaughter charges were dropped after the respondent's successful application for a bill of indictment, and the prosecution elected to proceed with the charge under the Heavy Vehicle National Law (Victoria). The court held that there had been no fundamental alteration to the prosecution case, and that any future trial would be oppressive due to the significant delay and the impact on the respondent's reputation. The court also found that the trial judge had not mistaken the facts or failed to regard relevant considerations. Instead, the trial judge had carefully considered the relevant principles and applied them correctly to the facts of the case.

The court set aside the permanent stay order, allowing the prosecution to proceed with the charge under the Heavy Vehicle National Law (Victoria). The court held that the appeal was well-founded, and the decision of the trial judge was unreasonable or plainly unjust. The appeal was allowed, and the permanent stay order was set aside, allowing the prosecution to proceed with the charge against the respondent.

Orders