Terrence Tognolini v The Queen - [2015] VSCA 222

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0124

TERRENCE TOGNOLINI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 July 2015
DATE OF JUDGMENT:	24 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 222
JUDGMENT APPEALED FROM:	R v Tognolini (Unreported, County Court of Victoria, Judge Pilgrim, 19 January 2010)

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CRIMINAL LAW – Conviction – Petition for mercy – Petition for mercy submitted on the basis of fresh evidence – Fresh evidence – Appeal against conviction – Appellant previously convicted of multiple counts of arson and blackmail – Offence for which appellant convicted subsequently confessed to by another – Credibility of fresh evidence – Fresh evidence not credible – Appeal dismissed – Criminal Procedure Act 2009 s 327.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M H Thomas	Grigor Lawyers
For the Crown	Ms D I Piekusis with Mr T Bourbon	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
BEACH JA:

Introduction

On 6 October 2009, following a jury trial in the County Court, the appellant was convicted of nine counts of blackmail, three counts of arson, one count of threatening to damage property and one count of indecent assault. On 14 September 2009, prior to trial, the appellant had pleaded guilty to one count of assault. On 19 January 2010, the trial judge sentenced the appellant to a total effective sentence of 12 years’ imprisonment, and fixed a non-parole period of 8 years.[1]
[1]DPP v Tognolini (Unreported, County Court of Victoria, Judge Pilgrim, 19 January 2010).

Following sentencing, the appellant sought leave to appeal against conviction. On 30 November 2011, this Court refused the application for leave to appeal.[2]
[2]Tognolini v The Queen [2011] VSCA 394 (‘Tognolini’) (Nettle and Neave JJA and Judd AJA).

On 19 December 2014, the appellant submitted a petition for mercy to the Attorney-General pursuant to s 327 of the Criminal Procedure Act 2009. In the petition, the appellant alleged that there was fresh evidence which was not reasonably available to him at the time of his trial and subsequent application for leave to appeal.

The fresh evidence was said to be that, in 2013, one Rodney Charles Collins pleaded guilty to one of the counts of arson for which the appellant had been convicted at his trial. It was contended that the emergence of this fresh evidence gave rise to a miscarriage of justice in relation to all, or at least some, of his convictions — and specifically in relation to his conviction for the arson of which Collins had now also been convicted.

On 24 June 2015, pursuant to s 327(1)(a) of the Criminal Procedure Act 2009, the Attorney-General referred the appellant’s ‘whole case’ to this Court. In accordance with s 327(2), the Court was required to hear and determine the case ‘as if it were an appeal’ by the appellant.

The appellant’s trial

The appellant’s trial related…

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 Terrence Tognolini v The Queen

Details

AGLC: Terrence Tognolini v The Queen [2015] VSCA 222
Case: [2015] VSCA 222
Decision Date: 24 August 2015

CaseChat Overview and Summary

In the matter of Terrence Tognolini v The Queen, the High Court was called upon to review the appellant's appeal against his conviction for multiple counts of arson and blackmail. The appellant had previously been convicted of these offences and subsequently sought to appeal on the basis of fresh evidence, specifically a confession by another individual who admitted to the crime. The central issue before the Court was the evaluation of the credibility and admissibility of this fresh evidence, which was crucial in determining the outcome of the appeal.

The Court meticulously examined the nature and reliability of the fresh evidence presented by the appellant. It was noted that the confession by the other individual was not corroborated by any additional evidence and was considered unreliable and self-serving. The appellant's submission that this confession should nullify his conviction was rejected due to the lack of corroboration and the inherent unreliability of the confession itself. The Court held that the fresh evidence did not meet the stringent standards required for its acceptance in a legal proceeding.

Consequently, the Court dismissed the appeal, affirming the conviction. The decision underscored the principle that fresh evidence must be credible and reliable to warrant a reconsideration of a conviction. Given the findings, the Court concluded that the appellant's petition for mercy based on the fresh evidence was without merit. The appeal was thus dismissed, and the original conviction remained intact.

No further orders were made by the Court, and the conviction stood as originally determined by the lower court.

Orders