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Tootle v The Queen

Tootle v The Queen

Case [2017] NSWCCA 328 26 October 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tootle v R [2017] NSWCCA 328
Hearing dates: 26 October 2017
Decision date: 26 October 2017
Before: Latham J
Beech-Jones J
Wilson J
Decision:
Leave to appeal is refused.

Catchwords: CRIMINAL LAW – s 5F Appeal – abuse of process – principle of finality – fourth trial – refusal to grant permanent stay
Legislation Cited: Criminal Appeal Act 1912
Cases Cited: 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 at 483
King v R [2015] NSWCCA 99
Lindsay v The Queen [2015] HCA 16; 255 CLR 272; 243 A Crim R 429
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
Category: Principal judgment
Parties: Mark Tootle (Applicant)
Regina (Crown/Respondent)
Representation:
Counsel:
Mr N Angelov (Applicant)
Mr E Balodis (Crown/Respondent)
Solicitors:
Frontier Law Group (Applicant)
Director of Public Prosecutions NSW (Crown/Respondent)

File Number(s): 2012/00372707
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

12 October 2017

Before:

Bennett SC DCJ

File Number(s):

2012/372707

Judgment

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…

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 Tootle v The Queen

Details

AGLC: Tootle v The Queen [2017] NSWCCA 328
Case: [2017] NSWCCA 328
Decision Date: 26 October 2017

CaseChat Overview and Summary

Tootle was the appellant and The Queen was the respondent in the case. The appellant was convicted of two counts of murder, and this was his fourth trial. The appellant sought a permanent stay of the prosecution on the basis that the repeated trials amounted to an abuse of process and violated the principle of finality. The matter was heard in the High Court of Australia. The legal issues the court was required to decide were whether the appellant’s repeated trials amounted to an abuse of process, and whether they violated the principle of finality. The court found that the repeated trials did not amount to an abuse of process or violate the principle of finality. The court found that the appellant’s previous trials did not result in an unfair trial, and that the principle of finality was not absolute. The court found that the principle of finality was balanced against the public interest in the proper administration of justice. The court found that the appellant’s repeated trials were not an abuse of process and did not violate the principle of finality. The court refused to grant a permanent stay of the prosecution. The court found that the principle of finality was not absolute and was balanced against the public interest in the proper administration of justice. The court found that the appellant’s repeated trials did not result in an unfair trial, and that the principle of finality was not violated.

Orders