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Tootle v The Queen

Tootle v The Queen

Case [2017] NSWCCA 103 19 May 2017

Appeal

Jurisdiction

Miscarriage of Justice

Criminal Law

No judgment structure available for this case.

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Tootle v R [2017] NSWCCA 103
Hearing dates: 20 April 2017
Date of orders: 20 April 2017
Decision date: 19 May 2017
Before: Simpson JA at [1]; McCallum J at [66]; Fagan J at [67]
Decision:
(1)  Appeal allowed;

(2)  Convictions quashed;
(3)  There be a new trial.
Catchwords:
CRIMINAL LAW – appeal – criminal trial - procedure – juries – jury invited to formulate questions for witnesses – jury given opportunity to formulate questions at the completion of evidence of each witness – questions permitted put to witnesses by Crown prosecutor – encouragement of jury to participate in inquisitorial process – trial process altered in a fundamental respect – miscarriage of justice – observations on criminal trial process – whether miscarriage of justice – appeal allowed

CRIMINAL LAW – appeal – directions – juries – whether direction by trial judge encouraging questions of witnesses from a jury changed the nature of the role of the jury – whether miscarriage of justice resulted – appeal allowed
CRIMINAL LAW – appeal – procedure – juries – whether establishing a process by which a jury can deliberate on questions to witnesses and then have them put changes the nature of the role of the jury – whether miscarriage of justice results – appeal allowed
Legislation Cited: Crimes (Sentencing Procedure Act) 1999 (NSW), s 53A
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Procedure Act 1986 (NSW), s 306I
Evidence Act 1995 (NSW), s 41
Jury Act 1977 (NSW), s 55F
Cases Cited: Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
Lo Presti v The Queen (1994) 68 ALJR 477
Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29
R v Damic [1982] 2 NSWLR 750
R v Esposito (1998) 45 NSWLR 442
R v Lo Presti [1992] 1 VR 696
R v Mawson [1967] VR 205
R v Pathare [1981] 1 NSWLR 124
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
Re Rattan [1974] VR 201
Sams v R (1990) 46 A Crim R 468
State of Minnesota v Gerard J Costello 646 North Western Reporter, 2d Series 204 (Minn 2002)
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6
Category: Principal judgment
Parties: Mark Tootle (Appellant)
Regina (Respondent)
Representation:
Counsel:
N Angelov (Appellant)
S Hughes (Respondent)
Solicitors:
Frontier Law Group (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2012/372707
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainants (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

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 103
Case: [2017] NSWCCA 103
Decision Date: 19 May 2017

CaseChat Overview and Summary

The appellant, Tootle, was convicted of multiple serious criminal offences and appealed against his conviction to the High Court of Australia. The central issue in this appeal was whether the trial judge's direction to the jury to formulate questions for witnesses, in conjunction with allowing the Crown prosecutor to put questions to witnesses, fundamentally altered the nature of the jury's role, leading to a miscarriage of justice. This direction was implemented at the completion of evidence from each witness, allowing the jury to deliberate on questions before they were put to the witness. The appellant argued that this process changed the traditional role of the jury from passive listeners to active participants in the trial, thereby altering the trial process in a fundamental respect.

The court examined whether this procedural change resulted in a miscarriage of justice. It was established that the traditional role of a jury is to receive and consider evidence presented to them without actively participating in the questioning of witnesses. The court found that by encouraging the jury to participate in the inquisitorial process, the trial judge had fundamentally altered the role of the jury, which had not been approved by Parliament. The court held that this alteration had the potential to influence the way the jury assessed the evidence, potentially leading to an unfair trial. Consequently, the court determined that this change in procedure constituted a miscarriage of justice.

The High Court allowed the appeal, quashed the convictions, and ordered a retrial. The court emphasised that while encouraging jury participation can enhance the fairness of a trial, any process that alters the fundamental role of the jury must be strictly regulated and approved by Parliament. The court highlighted the importance of maintaining the integrity of the trial process to ensure a fair and impartial outcome. The detailed reasoning provided by the court serves as a reminder of the critical role that the jury plays in the criminal justice system and the need for procedural integrity to uphold the principles of justice.

Orders