ADC v The Queen

[2001] HCATrans 442

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S60 of 2001

B e t w e e n -

ADC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 11.27 AM

Copyright in the High Court of Australia

MR C.B. CRAIGIE, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR P.M. WINCH.  (instructed by D.J. Humphreys, Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE, SC:   If the Court pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Craigie.

MR CRAIGIE:   If the Court pleases.  Your Honours, this is a matter raising for consideration a matter of public importance constituted by the need to review those discretionary mechanisms which may be used by a trial judge when meeting the threat to a fair trial imposed by undue and impermissible publicity, either before or during a trial.

Your Honours, we are mindful in this application that it is almost 10 years since Glennon and that would appear to be the last occasion on which the general principles applicable to meet this situation were considered by this Court.

GLEESON CJ:   What is the new and different principle for which you contend?

MR CRAIGIE:   Your Honours, we say that this case, in fact, is a more general case raising the difficulty of what is to be done in the ordinary course, rather than the extreme position that Glennon represented where a fairly extreme remedy in the shape of a stay was sought to meet what was fairly extreme and unusual circumstances.

GLEESON CJ:   But what is the matter of principle that you would want us to enunciate that is not already established?

MR CRAIGIE:   We would ask your Honours to consider that it is an appropriate time for this Court to identify those particular matters which a trial judge should weigh in the balance before exercising any one of a number of discretionary remedies.

GLEESON CJ:   But is there any doubt about what the matters are?

MR CRAIGIE:   Your Honours, we have found no template to guide trial judges as to how to approach the difficulty posed by publicity of this nature.  The closest, perhaps, that an appellate court has come were the remarks by Justice Kirby in Yuill where his Honour made some reference that in a particular case what should be assessed is the “intensity, proximity and nature of the media coverage of the particular accused or the particular circumstances or the particular crime and whether it was such to occasion the risk of unfairness”.

GLEESON CJ:   Does he mention that what also ought to be assessed is the capacity of the jury to administer justice following appropriate directions from the trial judge?

MR CRAIGIE:   Yes, your Honour, I believe he did.  Your Honour, the difficulty in the present case, which throws up the need for restatement and clarification of the principle, was that this was a matter where, effectively, a trial started on a Monday.  On a Tuesday following that Monday some plainly disastrous prejudicial material was published in a local newspaper, so disastrous that the trial judge assessed it, in our view and, with respect, correctly, as incurable by way of direction.

GLEESON CJ:   Incidentally, Mr Craigie, what happened about the other charges against your client?

MR CRAIGIE:   Your Honour, they have gone through the system to a particular stage and they may stand for review in the Court of Criminal Appeal.

GLEESON CJ:   By what, the particular stage being conviction?

MR CRAIGIE:   Yes, your Honour.

GLEESON CJ:   On how many other charges?

MR CRAIGIE:   Five, yes.  Five, your Honour.

GLEESON CJ:   Right.

MR CRAIGIE:   Your Honours, as I was saying, the conundrum in this case, which really points to the need for clarification by this Court, was that having determined that the prejudice was incurable by way of direction on the Tuesday, the learned trial judge then on the Wednesday, empanelled another jury and we would say that neither, at that stage, nor, indeed, in the Court of Criminal Appeal, were the factors that should have been properly weighed in the balance and applied on that Wednesday, properly identified.

Your Honours, we, without seeking to, in any way, indicate to this Court what those factors necessarily should be, would respectfully suggest that this Court may be drawn to the kind of analysis that would produce for the guidance of trial judges indications along the lines that what should be considered should be, and this is going, perhaps, into greater detail than Justice Kirby did in Yuill, the nature of the publicity, whether it is direct or tangental, whether it bears upon the particular charge or whether it is merely an inferential level of prejudice that arises, the proximity to the trial date, the susceptibility of the matter to cure by direction and the likely real effect of the publicity if it was known to the jury.

One should add to that, of course, the balancing concern that dominated the Court’s thoughts in Murphy, in particular, then obviously there will be instances where the public interest in a prompt resolution of the trial will counterbalance those concerns.

Your Honours, a convenient distillation of what we seek is found in the remarks of Justice Brennan in Glennon where his Honour pointed to the reality that no inflexible rule can be set up in assessing these matters, that really what the Court should be doing is, to quote his Honour, “doing the best that he can to obtain a fair trial”.  What we seek in this application is guidelines, effectively, if I could use that, perhaps, unfortunate term.

GLEESON CJ:   I would be careful with that.

MR CRAIGIE:   Your Honour, I have written down three or four times, “Do not say that word”.  It seems to be inescapable.

GLEESON CJ:   You might have had some luck with the constitution of the Bench.

MR CRAIGIE:   Indications, perhaps, I should say, your Honour; indications are sought as to how a court may do the best that it can.  Now, this matter, as an example, posed a situation where the nature of the prejudice was overwhelming and disastrous.  The trial judge identified it as such.  What, in our submission, was to be weighed in the balance was the practicality of a fairly sure remedy, one which was risk free, and that was the adjournment of the matter for, perhaps, as little as a few weeks and I suppose the added matter for consideration was a change of venue.  We do not suggest that these considerations are exhaustive but plainly there seems to be a need to identify marks that a trial judge can effectively look at in applying a litmus test to the situation.

Your Honours, this, of course, is not a situation where there is a struggle between the right to publish and the right to a fair trial.  This was a situation where – and it is a situation far more commonly encountered – there was an unfortunate misadventure in the press, effectively, and that produced a result which plainly was unacceptably dangerous to the trial process.

In our submission, that should have activated a ready resort to an analysis that produced a remedy which, in terms of the inconvenience and delay that it may have brought about, was a more than supportable price in the obtaining of a fair trial and in the maintenance of public confidence in the integrity of the trial system.

Your Honours, if I could just advert very briefly to the facts of this particular matter.  This was a country community in Dubbo.  The newspaper appears to have been a prominent local newspaper.  It was remarked in the court below that 4,000 copies in a city of that size may not represent much of a risk.  In our submission, realistic analysis would show that if one could have a level of penetration of that order, that is, 4,000 in a population of that size, I think in the 30,000s, if one could have a penetration of that level as a radio talkback host, once one takes away the children and the people who are not interested in reading or listening in any event, that represents a very high risk of reaching, at least, some of the jurors.

It would also need to be borne in mind that in this case, of course, the new jury that came in on the Wednesday, was, if anything, more likely to have been exposed to the publicity floating round on the Tuesday than those people who had been sequestered as the first jury, no doubt, also very conscious of their duties and, perhaps, more likely to avoid the impact of the publicity.

Your Honours, unless there is anything further, I think I have come to the nub of the point which we press upon the Court.

GLEESON CJ:   Thank you, Mr Craigie.  We do not need to hear you, Mr Blackmore.

The decision of the Court of Criminal Appeal in this case turned on the application of well‑established principles to a review of a discretionary decision by a trial judge.  There is no reason to doubt the correctness of the decision of the Court of Criminal Appeal and the application is refused.

AT 11.38 AM THE MATTER WAS CONCLUDED