Court of Criminal Appeal Supreme Court New South Wales 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 1. 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. 2. 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. 3. 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. 4. 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 of NSW [1989] HCA 46; 168 CLR 23 at 31 per Mason CJ. 5. The applicant seeks to rely upon the matters pressed at first instance. They are:- 1. The proceedings are an abuse of process 2. A fourth trial gives rise to unfairness 3. A fourth trial breaches the principle of finality 4. The conduct of the Respondent in the third trial 5. There are special circumstances that would prevent a fair trial from being conducted, (namely the risk of a jury feeling pressured to convict in the knowledge that there had been three previous trials) 6. The personal circumstances of the Applicant. 1. The applicant has amended those grounds to the extent that he now submits that Bennett SC DCJ failed to give sufficient weight to a relevant consideration, namely that the Crown's conduct in the third trial caused the trial to miscarry, and that the decision to refuse a permanent stay is unreasonable or plainly unjust. 2. The general principles that apply to the grant of a permanent stay on the grounds of an abuse of process were comprehensively summarised by Beazley JA (as she then was) in Calleija v Regina [2012] NSWCCA 37; 223 A Crim R 391 at [28] to [36]:- It is well established that the grant of a permanent stay of criminal proceedings is one that should be ordered only in an extreme case. The central principle governing the granting of a stay was stated by Mason CJ in Jago v District Court of NSW, at 34, in the following terms: "To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'." (citation omitted) Mason CJ considered that underlying the power of the court to grant a permanent stay was the court's inherent jurisdiction to prevent abuses of process. In this regard, his Honour adopted the reasoning of Richardson J in Moevao v Department of Labour (1980) 1 NZLR 464 at 482, where his Honour stated: "It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice." Mason CJ had noted, at 33, that "the touchstone in every case is fairness". His Honour pointed out that the relevant test of fairness involved a balancing process having regard to the interests of the accused, as well as the community's right to expect that persons charged with criminal offences are brought to trial. In this regard, an essential consideration in the balancing exercise is the need to maintain public confidence in the administration of justice: see Walton v Gardiner [1993] HCA 77; 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 395-396. See also Petroulias v R [2007] NSWCCA 154; 176 A Crim R 302 per Ipp JA at [17]. In Moti v The Queen [2011] HCA 50; 283 ALR 393 the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) identified three basic considerations necessary to determine before making a decision as to abuse of process. Their Honours observed, at [57]: "The third basic proposition is that, as pointed out in the joint reasons of four members of this Court in Williams v Spautz, two fundamental policy considerations affect abuse of process in criminal proceedings. First, 'the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike'. Second, 'unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice'. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts' processes in a way that is inconsistent with those fundamental requirements." (citations omitted) In Australia the common law has not recognised the existence of a right to a speedy trial, or even to a trial within a reasonable time based upon any concept of presumptive prejudice. However, there may be circumstances when delay is such that a permanent stay should be granted. When the question of delay is in issue, matters that need to be considered include the length of the delay, the reasons for it, the accused's responsibility for asserting his or her rights and any prejudice suffered by the accused. However, even when those factors are taken into account, "a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will ... be very rare": per Mason CJ in Jago at 34. In Jago, Mason CJ observed at 33: "Because there is no constitutional guarantee of a speedy trial, the remedies are discretionary and necessarily relate to the harm suffered or likely to be suffered if appropriate orders are not made." In Jago Brennan J, at 47, commented upon the obstacles to a fair trial that are often encountered in the administration of criminal justice, such as adverse publicity, witnesses becoming unavailable and the lack of competent representation. His Honour observed, however, that those matters did not give rise to the need for proceedings to be permanently stayed. As his Honour noted, "[u]nfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness". When an obstacle to a fair trial occurs, a trial judge has the responsibility to the parties to avoid the unfairness. However, that responsibility was not discharged by the court refusing to exercise jurisdiction. Rather, it was the trial judge's responsibility to control the procedures of the trial so as to ensure that the trial was ultimately fair. Brennan J also acknowledged, at 47, that "[m]ore radical remedies may be needed to prevent an abuse of process". His Honour then defined an "abuse of process" as occurring when: "... the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process." The category of case in which a stay may be granted is not closed. In Walton v Gardiner at 392-393, Mason CJ, Deane and Dawson JJ, in the context of an application for a stay of civil proceedings, observed that the court has jurisdiction to grant a stay where its processes and procedures are converted into instruments of injustice or unfairness contrary to their intended purpose of administering justice with fairness and impartiality. Their Honours stated that the categories of cases where a stay may be granted included proceedings which were doomed to failure and the employment of the court's processes in a manner which gave rise to unfairness. Their Honours rejected the notion that a permanent stay may only be ordered where an improper purpose was established or there was no possibility of a fair trial: see Williams v Spautz [1992] HCA 34; 174 CLR 509 at 519-520. These principles were confirmed by the High Court in Dupas v The Queen [2010] HCA 20; 241 CLR 237. The Court confirmed, at 250, [35], that there was "no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered": see R v Glennon [1992] HCA 16; 173 CLR 592. Their Honours reconfirmed the need to consider, in the balance, the substantial public interest in having those charged with criminal offences brought to trial. As the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) had stated in Williams v Spautz, the confidence in the proper administration of justice requires that the court protect its ability to function as a court of law by ensuring the processes are used fairly by State and citizen alike. In Dupas, the Court, at 251, [37], characterised a permanent stay as "tantamount to a continuing immunity from prosecution". It followed that fairness to the accused alone was not the only relevant consideration when determining whether a trial should proceed. Rather, the Court pointed out that the decision whether to prosecute requires an evaluation of the particular circumstances of the case weighed in the context of a number of public interest considerations including public confidence in the administration of justice: see Walton v Gardiner at 395-396; Dupas at 251, [37]; Darwiche v R [2011] NSWCCA 62 at [172]. 1. As this summary makes perfectly clear, the question is whether the factors identified by the applicant, either individually or taken together, give rise to an unfairness in the conduct of a fourth trial which the trial judge is powerless to cure. In addressing that question, the interests of the applicant and the public's interest in the due administration of justice must be weighed in the balance. 2. Moreover, the applicant bears a "high burden" in that regard: R v Petroulias [2005] NSWCCA 75; 62 NSWLR 663 Mason P, at [103], 688. 3. The primary submission on the abuse of process ground is that a fourth trial would constitute "harassment or tyranny" against the applicant and that it would "stretch the community's sense of fair play". The latter expression derives from Wilson J's judgment in Keyowski v The Queen 40 CCC (3d) 481 at 483, referred to by Gleeson CJ in R v Francisco and Dorain CCA 24 August 1995 (unreported). The formulation of this submission appears to equate to the use of the court's processes and procedures as instruments of injustice or unfairness. 4. It is not possible or desirable to attempt to identify the number of trials beyond which the continuation of the use of the court's processes may be said to amount to an abuse of process. Each case turns upon its own facts. It may be regrettable that the applicant has faced three trials, but that is not sufficient to necessarily give rise to unfairness in the conduct of a fourth trial. 5. Trial judges are often called upon to explain to juries that previous trials have taken place and that, for reasons which do not concern them, those trials did not proceed to finality. There is no basis upon which this Court should conclude that such an instruction, coupled with a direction not to speculate, would not be followed by a jury. Moreover, there is no reason to assume that mere knowledge of previous trials on the same charges would give rise to the risk of unwarranted guilty verdicts. Ultimately, the jury will be instructed to confine itself to the evidence in the trial in determining whether they are satisfied beyond reasonable doubt of the elements of the charges. 6. The applicant's submission that a fourth trial breaches the principle of finality must be rejected. The first two trials did not result in any outcome and the appeal from the verdicts in the third trial represents an exception to the principle of finality: Lindsay v The Queen [2015] HCA 16 at [48]; 255 CLR 272; 243 A Crim R 429. 7. Judge Bennett SC addressed the conduct of the Crown in the third trial which was canvassed in the applicant's successful appeal. In short, the applicant now contends that the Crown's acquiescence in the quasi-inquisitorial procedure adopted by the trial judge "caused" the miscarriage of justice which this Court identified: Tootle v R at [62], [63] and [78]. This submission differs somewhat from the submission made below, which was that the Crown bore some measure of responsibility for it. 8. It is difficult to sustain the proposition that insufficient weight was given to this factor by Bennett SC DCJ when the height of the applicant's submission to his Honour was that the Crown's conduct did no more than contribute to the mistrial. The applicant expressly disavowed any allegation of misconduct on the part of the Crown. 9. It must be acknowledged that the Crown expressed some misgivings about the invitation to the jury, extended by the trial judge, to ask questions of the witnesses, but was content to allow that to occur provided that counsel was given the opportunity to review the formulation of the questions. The applicant contends that the Crown only withdrew his acquiescence in the procedure in the course of the defence case and that by then it was too late. 10. The applicant takes issue with his Honour's conclusion that it may have been "more desirable" for the Crown to have been "more assertive" in resisting the trial judge's proposal. It is submitted that this finding evinces error. 11. The difficulty with a submission framed in terms of "insufficient weight" being given to a factor in making a discretionary decision is that it comprehends that the judge took a relevant consideration into account. The point of departure is that it was not accorded the weight that ought to have changed the nature of the decision. The attribution of weight was wholly within the bounds of the exercise of discretion: King v R [2015] NSWCCA 99, at [56]. 12. The applicant does not contend that he is unable to fund a fourth trial. No doubt the history of the proceedings have taken a personal toll, but that factor does not outweigh the importance of maintaining the public's confidence in the administration of justice, that is, the fulfilment of the expectation that persons charged with serious criminal offences will be brought to trial. 13. The applicant has not demonstrated that the exercise of Bennett SC DCJ's discretion miscarried, or that the refusal to grant a stay is unreasonable or plainly unjust. Leave should be refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2018