Tootle v R – encouraging the jury to ask questions of witnesses

By Sarah Shin

In Tootle the NSWCCA considered whether inviting a jury to ask questions of witnesses amounted to a miscarriage of justice.


The appellant stood trial in relation to 11 counts of sexual offences against a single complainant, alleged to have been committed between February 2009 and November 2012. The appellant was convicted on all counts by a jury.

The trial judge gave a number of directions to the jury, including directions advising the jury that they were entitled to formulate questions to be asked of witnesses, or otherwise encouraging the jury to do so. The trial judge advised the jury of the process, which would be that:

  • the trial judge would not immediately excuse the witnesses at the close of his or her evidence;
  • the jury could deliberate as to any questions they wanted put to the witness;
  • the jury could submit questions in writing to the trial judge;
  • the trial judge would discuss the questions with counsel;
  • the evidence of the witness would be taken on the voir dire;
  • the trial judge would rule as to admissibility; and
  • the questions permitted would then be asked of the witness by the Crown prosecutor.

Following this process, the jury posed 56 questions to the witnesses.

Appeal grounds

The appellant proposed to rely on five grounds of appeal, the first ground of appeal, and subject of this post, asserted error in the direction that the jury were entitled to ask questions of witnesses and the process that followed. The appellant argued that the trial judge’s direction to the jury had drawn the jury into an investigative role.


The NSWCCA allowed the first ground of appeal, quashing the convictions and ordering a retrial. The leading judgment was delivered by Simpson JA (Fagan J and McCallum J agreeing with additional reasons).

The NSWCCA identified that the role of the jury requires that it maintain a position of impartial arbiter and that it has no investigative or inquisitorial role, and found that the directions to the jury encouraging the questioning of witnesses, and the process established to facilitate the questioning, altered the nature of the trial in a fundamental respect so that the trial was not a trial ‘according to law’.

The NSWCCA reiterated the role of the prosecution to determine the witnesses who will be called and the evidence in chief to be adduced from them. A third party, whether judge or jury, may ask an ill-advised question, disrupting a carefully laid strategy, and if a question is not asked which might appear pertinent, there is probably a good and legal reason for that omission. Simpson JA agreed with the suggestion in State of Minnesota v Gerard J Costello,[2] that the mere fact of the jury’s involvement in the eliciting of evidence can and can be seen to compromise their function.

Fagan J identified the judicial discretion to allow jury questions, which is that a judge may ask questions of a witness at the request of the jury.[3] With this in mind, Fagan J found a miscarriage of justice flowed from the following:

  • the encouragement to elicit evidence beyond what the parties had seen fit to lead, as it encouraged speculation;
  • the jury not being present to hear the objections to their questions, leaving them to speculate;
  • the instruction not to speculate about what answers might have been given to disallowed jury questions could not overcome the speculation which would have been excited by the trial judge’s invitation;
  • inviting the jury to withdraw to confer about questions would have encouraged discussion amongst them of how the case was developing, which is the antithesis of the usual expectation that the jury will defer judgment until they have heard all of the evidence; and
  • the appearance of reservation of judgment until the close of evidence and the presentation of final addresses was destroyed by the jury exposing, through their questions, their perception of matters extraneous to the evidence adduced.

Fagan J also found at [92]-[96] that the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW), which provides that the court may dismiss an appeal if satisfied that no substantial miscarriage of justice has actually occurred, notwithstanding that error has been established in favour of the appellant, should not be applied. In this case a miscarriage of justice was occasioned by a denial of procedural fairness rather than a verdict being unreasonable or being unable to be supported by the evidence. It was unnecessary to examine the entire trial record to form an opinion whether the guilt of the appellant was proved beyond reasonable doubt. Her Honour’s encouragement of, and the resultant jury questioning denied the appellant a trial according to law, causing a significant miscarriage of justice.

[2] 646 North Western Reporter, 2d Series 204 (Minn 2002).

[3] Citing R v Pathare (1981) 1 NSWLR 124 at [125]; R v Damic (1982) 2 NSWLR 750 at [763]; Sams v R (1990) 46 A Crim R 468 at [473].


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