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…
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- AGLC
- Terrence Tognolini v The Queen [2015] VSCA 222
- Case
- [2015] VSCA 222
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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