Dawson v The Queen

[2022] HCATrans 54

[2022] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S102 of 2021

B e t w e e n -

CHRISTOPHER DAWSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 8 APRIL 2022, AT 9.35 AM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR P.R. BOULTEN, SC appears with MS S. PALANIAPPAN for the applicant.  (instructed by Greg Walsh & Co Solicitors)

MS S.C. DOWLING, SC appears with MS E.C. BLIZARD for the respondent.  (instructed by Office of the Director of Public Prosecutions (NSW))

GAGELER J:   Before the argument proceeds, it is appropriate that I draw attention to the fact that there is in place an interim non‑publication order under section 77RH of the Judiciary Act 1903.  The terms of that order are that there is to be no publication of the contents of the written or oral submissions of the parties on the application for special leave to appeal.  The terms of the order do not prohibit publication of the fact of the application, the outcome of the application or anything said by the Court when pronouncing that outcome.  The interim order is expressed to remain in place until 4.00 pm today. 

Whatever the outcome of the application for special leave this morning, there will be a need to consider whether an ongoing order should be made under section 77RE of the Judiciary Act.  That is something I will address with the parties immediately at the conclusion of the application this morning and if necessary – but only if necessary – I would propose to relist the matter before me at 3.30 pm to determine the precise form of that order.  Mr Boulten.

MR BOULTEN:   If the Court pleases.  The application involves ‑ ‑ ‑

GAGELER J:   Mr Boulten has frozen and now dropped out.  The Court will adjourn momentarily to re‑establish connection.

AT 9.37 AM SHORT ADJOURNMENT

UPON RESUMING AT 9:39 AM:

GAGELER J:   I understand that Mr Boulten has rejoined by telephone.  Can you hear me, Mr Boulten?

MR BOULTEN:   Yes, I can, your Honour.  Thank you for your patience.

GAGELER J:   Please proceed, Mr Boulten.

MR BOULTEN:   The application involves a podcast which the primary judge, endorsed on appeal, found to be the most egregious example of media interference with a criminal trial process which the court had had to consider.  This is a singular degree of interference with the applicant’s right to a fair trial and, in particular, it involved a campaign to undermine his presumption of innocence.  It was a campaign which was highly successful in the sense that it was published to about a million people in the Sydney region. 

We say that the degree of interference with the applicant’s trial process is exceptional, not just because of the reach of the podcast, but because the content of the podcast is quite different than the type of publicity that was demonstrated in Dupas and Glennon.  In those cases, the publicity was adverse, but it dealt with subsidiary issues such as the applicant’s prior record.  Here, the podcast was demonstrating the applicant’s guilt – or attempted to demonstrate the applicant’s guilt – and was seen to do so.  This is the singular case that, we say, when taken in conjunction with the gross delay, ought to have led to a permanent stay of proceedings.

GAGELER J:   Now, Mr Boulten, the Chief Justice has some very strong words to say precisely on that point in paragraph 9, in the third sentence of paragraph 9 of his judgment.  Is that an accurate, albeit strong, statement of the position from your perspective?

MR BOULTEN:   It is completely accurate, and the whole of the paragraph demonstrates the difficulties with the podcast, including the involvement of the people named in that paragraph, some of whom held judicial office at the time of the podcast.  We rely on those findings, just as we rely on Justice Fullerton’s findings to the same extent.  So the whole bench in the Court of Criminal Appeal accepted those findings, and that is the basis upon which we make the application.

In relation to our first ground, the ground suggests that Justice Fullerton was exercising her powers on a misguided test.  Could I take your Honours to application book page 164 to her Honour’s judgment?  At paragraphs 380, 381 and 382 we say you can see where things went wrong.  At the bottom of paragraph 380 her Honour posed the question for determination as:

whether there is a “real or substantial risk” that, despite the best endeavours of the trial judge and the essential trust that courts are entitled to repose in the jury system, there will be members of the jury who will have prejudged his guilt, perhaps without being aware of it.

So, the pre‑judgment talked of there is the pre‑judgment prior to empanelment.  In addressing that question, her Honour went on in paragraphs 381 and 382 to make some conclusions.  The parties are at odds about what was actually meant in paragraph 381 and, particularly, in paragraph 382.  The Court of Criminal Appeal unanimously decided against our interpretation of what her Honour found and that is still put against us in argument on this appeal – on this application.

Can I take your Honours just briefly to some of the words in paragraph 381?  It is clear that when her Honour came to consider the real issue, her Honour was addressing the question by, what she called, a “subsidiary and practical question” about the practicalities of getting sufficient people on the jury at the time of the commencement of the trial.  Her Honour outlined a process – which I trust your Honours are familiar with – that involved a process where a large panel would be called, that there would then be an invitation, as it were, to the members of the panel to come forward and be excused if they have a fixed view about the case or if they have aligned themselves, partially, in one way or another likely to be in the prosecution’s camp.

We say the significance that the process that her Honour envisaged as being one of the primary safety mechanisms for this case was that people would be empanelled on the assumption that some of them ‑ perhaps, maybe more than one would want – may have listened to the podcast themselves.  That comes, at the first instance, from the words on the second‑last line of paragraph 381.  Her Honour envisaged that there might be people on the jury empanelled:

either because they have not heard of the case or, even if they had, because they considered themselves capable of bringing their own judgment to bear upon the evidence.

In light of the egregious nature of the pretrial publicity, people do get empanelled on the basis that they have heard it, but they consider themselves capable of being impartial, may be underestimating their own partiality and/or underestimating the ability that they have to override and recognise partiality in their own thinking.  Then the problematic paragraph is 382, her Honour could not do more than find, as she did, that:

there is at least some prospect of swearing an impartial jury ‑

It is significant that she passed that as a finding.  This was not a comment; it was a finding that there is at least some prospect of swearing an impartial jury.  That, in our submission, is an inadequate basis upon which to conclude, ultimately, that the trial could safely be had, even in light of the related question which is referred to in paragraph 382, that once sworn, the jurors would be directed under 68C of the Jury Act not to access the podcast again or for the first time, and they not discuss the case with anybody.

GAGELER J:   Mr Boulton, can I ask this.  As I understand the judgment of the Court of Criminal Appeal, you did not take any issue before that Court with her Honour’s statement of the question at the end of paragraph 380?

MR BOULTON:   No, we did not.  We say still it is the correct test.

GAGELER J:   That question has to be addressed, does it not, from the perspective that her Honour found herself in?  So, she is looking forward to a trial, and she is asking whether, now, it inevitably will be the case that there will be a real or substantial risk of that nature. 

MR BOULTON:   Yes, it is a forecast, your Honour. 

GAGELER J:   Yes.

MR BOULTON:   But she did – she was able to forecast only in the sense that there was some prospect of there being an impartial jury empanelled.  And it is put against ‑ ‑ ‑

GAGELER J:   I just wanted to complete that forecast notion.  If after empanelment, or at the time of empanelment, her Honour’s forecast turns out to be wrong, or at least arguably wrong, can not a new application be made at that point?

MR BOULTEN:   Well, the difficulty would be recognising what would have changed.  The real problem here is that the publicity was such a problem in its scope and in its content that there is likely to be an enduring problem, whether someone thinks it is so or not.  And may I give your Honour an example?

If a person who has listened to the podcast or is aware of the basis of the podcast and aware of the reputation of the podcast – and there are probably many more people that are aware of the podcast than actually listening to it – as a juror in that position watches and listens to the evidence unfold, it will be almost impossible for them to be able to forget what was said in the podcast, for instance, by judges – albeit local court judges – that effectively there are problems with the applicant’s case, the applicant is clearly guilty, the applicant’s defence is muddying the waters, it is actually specious and based on dishonest lies.

People who have heard that, especially from people in authority, would find it difficult to understand that that is something they should ignore, or must ignore, in the moments, days and weeks of the trial.  So what is apparent now is likely only ever to be apparent thus during the course of the trial or at any point after the empanelment.  The problem is that human nature suggests that there is going to be a problem now.  That was recognised by her Honour and if there was a better way to drill into the content of the jury, then so be it, but our law does not ‑ ‑ ‑ 

GORDON J:   Mr Boulten, may I ask a question about that?

MR BOULTEN:   Yes.

GORDON J:   It picks up from something Justice Gageler asked you.  If you look at – and I understand you not to challenge the principles in Dupas and also reinforced in Strickland and one looks at it as a forward‑looking exercise, did not her Honour seek to address part of the problem now by granting your client a temporary stay?  In other words, there are a range of measures that were available to her Honour.  One of them was the temporary stay, and, as I understood it, it was a temporary stay until July last year, which has actually continued longer than the temporary stay because of the nature of these proceedings.

That is no criticism, but you have actually had a longer temporary stay – and that might add to your delay argument, but put that to one side for a moment – and then we get to what her Honour identifies as a set of procedures available at the empanelment of the jury, and then her Honour identifies the ability to give directions to the jury during the course of any summing‑up, so it is difficult, is it not, to say now, consistent with Dupas, that there is nothing that the trial judge could do to ensure that your client had a fair trial?  And if that is right, does it mean that your submission is, is that regardless of any of those measures taken, there can never be a fair trial?

MR BOULTEN:   We say that that is so, your Honour, because the empanelment process is likely to be imperfect, and recognisably so.  Once you allow for the real possibility that there will be a biased juror empanelled, then the second step or safeguard that her Honour had in mind in giving directions either under section 68C or generally to the jury are not likely to be effective.  Directions are of course to be presumed to be effective, but the exception to that is where someone is set against the trial judge’s directions because of pre‑judgment. 

There is a real risk here that there will be people that had pre‑judged and those people would not be amenable to directions either at the start of the trial, during the trial or in the summing‑up.  That is where we say her Honour’s finding that there is only just some prospect of swearing in an impartial jury is inadequate.  It leaves well open the real possibility that there will be biased jurors deciding the case.  If they are biased, they might not realise how biased they are and, in any event, they are unlikely to heed directions in those circumstances.  As I have said previously, and I should not repeat, that is in part the problem caused by the intervention of judicial officers in the campaign against the applicant.

Now, as I think the time requires me to leave that argument as it is ‑ your Honours are well alert to the parameters of it – the second ground does actually touch on the way in which the Court of Criminal Appeal and the trial judge dealt with the position of the two judicial officers and the police commissioner and a very senior . . . . . involved in the investigation.

The opinions that were expressed were expressed pointedly and, as the Chief Justice said below, they added to the issues, and by broadcasting them it was designed to add to the issues.  This was a significant and deliberate undermining of the accused’s presumption of innocence.  It was literally a trial by media and it was a trial about the essential aspects of the case.  What is more, the magistrate who was the coroner, the second coroner, characterised any delay in a way which would be unlikely to be ignored by the jury considering the case.

Finally, in relation to the third ground, we say that, even if we are wrong about ground 1, taking all of the relevant matters into account, the delay and the prejudicial publicity feed into each other in ways in which I have been describing in this morning’s submissions.  There are significant problems caused by a 40‑year delay.  They include lost evidence, they include the inability to be able to look at the call charge records, bank card records, and to obtain cogent contemporaneous evidence from people who saw the applicant’s wife at a time when she was, on the Crown’s case, dead.

We say that the delay itself is a significant problem.  That would normally be addressed by directions about the adverse impact on the applicant’s ability to defend himself, but just like other directions, they are likely to be inadequate given the campaign that was run against the applicant in the manner that I have been describing.  The judicial imprimatur that was given to the fact that he is guilty is itself such a significant issue that it marks this podcast as something that should be regarded as so exceptional as to fit into the same category that the Court identified in Tuckiar, not because these are exactly the same facts as Tuckiar, but because the delay coupled with the egregious pretrial publicity

has made it impossible, we say, or likely impossible, for the applicant to receive a fair trial.  If your Honours please.

GAGELER J:   Thank you, Mr Boulten.  Ms Dowling.

MS DOWLING:   Thank you, your Honours.  There is important public interest in the ordinary processes of the criminal law resolving allegations of serious offences and, in this case, the most serious offence of murder.  To this reason, as your Honours are well aware, it is well‑established that a permanent stay is an exceptional remedy, a last resort which should only be ordered when a court is positively satisfied that there is nothing that can be done to relieve unfairness.  When measures are available to alleviate any unfairness, those measures should be permitted to be taken by a trial judge.  I refer your Honours to the judgments of this Court in Dupas, Glennon, Barton and Jago.

The CCA, in this case, correctly found that, at this early stage of the proceedings, it could not be concluded that nothing could be done by the trial judge to relieve any unfairness caused by the publicity arising from the podcast or the delay.  I refer, respectfully, to the steps that your Honour Justice Gordon put to my learned friend.  Notorious trials are well‑known to the criminal law.  As this Court observed in Dupas, at page 250, there is nothing remarkable or singular about extensive pretrial publicity in notorious cases, especially those involving heinous acts.  That a trial is conducted against such a background does not, of itself, render a case extreme ‑ ‑ ‑

GAGELER J:   Ms Dowling, accepting all of that, Mr Boulten puts it that this is an extreme case for the reasons, really, summarised by Chief Justice Bathurst in paragraph 9.  Do you accept that?

MS DOWLING:   I accept the characterisation of the nature of the podcast made by both the trial judge and his Honour Chief Justice Bathurst and Justice Adamson.  However, none of those Judges found that that characterisation then moved this case into the extreme category where it could not be said that the accused could get a fair trial.  I refer your Honour ‑ ‑ ‑

GAGELER J:   It was not for the Court of Criminal Appeal to make the primary assessment.  The Court of Criminal Appeal was concerned with whether there was appealable error in the extensive reasoning of Justice Fullerton.  It is said before us that, if you look at the last sentence of paragraph 381 of Justice Fullerton’s judgment, there you find the manifestation of an error that should have been recognised by the Court of Criminal Appeal.  What do you say about that aspect of the submission put by Mr Boulten?

MS DOWLING:   Your Honours, it is important to read paragraphs 380, 381, 382, in the context of the reasons as a whole, and in the context of those three paragraphs.  At paragraphs 149 and 360 to 362 . . . . . 150 of the judgment, her Honour the trial judge correctly stated the test to be applied and, as Mr Boulton accepted before this Court, correctly stated the test.

As your Honour Justice Adamson found, it would be very surprising if that test was then wrongly applied by her Honour in that paragraph.  It is our submission that her Honour did not make a finding that there was a real prospect of any jury sworn to try the applicant would not be impartial, but rather at this early stage in the proceedings, that it could not be said that it would be – it could not be said that it would be not possible to empanel an unbiased jury.  So, the immediate context of 382 is her Honour’s statement at 381, which is at 165 of the application book.  In particular ‑ ‑ ‑ 

GORDON J:   Ms Dowling, are we to read the first sentence of 382, as I understand your argument, as it is too early to make the call?  And the highest I can get it is to say at least there is some prospect? 

MS DOWLING:   Yes.  Thank you, your Honour; that is the Crown’s submission.  As your Honours have already adverted to this morning, the prospective nature of the task that her Honour was addressing herself to is apparent in the way in which these three paragraphs are phrased.  So, what her Honour, in our submission, found at 381 is that there will be 15 people who will survive challenge and will respond honestly and do not seek to be excused, and that is why her Honour was comfortable in making the finding that her Honour then did at paragraph 382. 

It is important, in our submission, your Honours, to keep in mind that her Honour at this point in time did not have a jury panel before her.  This is prior even to the calling of the panel, and for that reason her Honour could not make any inquiries in advance as to the composition of that panel.  At paragraph 441 of the judgment, which is application book 191, her Honour Justice Adamson returns to – I am sorry – her Honour Justice Fullerton returns to the question, and at the end of that paragraph on 191 her Honour said:

I am not persuaded that, either individually or in combination, those factors outweigh the considerable public interest –

And then the next sentence:

Neither am I persuaded those “defects” cannot be satisfactorily addressed by the trial process, including by a range of measures available to the trial judge –

And those are the measures that your Honour Justice Gordon put to Mr Boulten.  So it is the Crown’s contention – it was in the CCA and remains in this Court – that when these reasons are read as a whole, and bearing in mind the entirely prospective nature of the inquiry, it cannot be said that her Honour misconceived the text, or that she took into account extraneous or wrong considerations.

Turning back to the applicant’s submission about the nature of the type of the jurors that will be likely to be empanelled, it is important to bear in mind that the accused is entitled to a fair trial, which is not the same as a perfect trial.  The applicant contends that the measures proposed by the trial judge and endorsed by the CCA would not be effective because they do not guard against the possibility of there being a rogue juror or a juror who does not understand their own bias.

However, as this Court has consistently observed, a permanent stay should not be granted on the basis of speculation that the panel may contain one or more rogue or biased jurors.  In fact, the criminal justice system proceeds on the basis that jurors can be trusted to honestly follow directions given by the trial judge.  This point was discussed by Chief Justice Mason and Justice Toohey in the decision in Glennon at page 603, where their Honours held that:

The mere possibility that such knowledge –

That is, pretrial publicity, and, in that case, knowledge that the accused was a serial paedophile:

The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice.  Something more must be shown.  The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.

And the Crown does rely on that uncontroversial statement of principle.  There is no basis to ‑ ‑ ‑ 

GORDON J:   The only difficulty that I have got with that kind of analysis is here ‑ and I think the way in which the Court of Criminal Appeal put it, we have this combination which is just, in effect, cumulative, of not only just pretrial publicity, which is what Glennon was dealing with, but what they describe as extreme delay, and misconduct is probably putting it neutrally in relation to a number of people and their participation in the podcast.  Does that affect that analysis you have just given us?

MS DOWLING:   In my respectful submission, it does not, your Honour, because the types of prejudice that may arise from those different aspects of this matter are quite discrete and quite different.  Each one of those had a different type of mitigating factor that the trial judge can do to alleviate against that.  So, for example, the issue of delay is conventionally addressed in criminal trial by virtue of directions under 165B of the Evidence Act and directions to the jury that point out the forensic disadvantage.  The pretrial publicity aspect – the disadvantage that may be caused there – is addressed in the empanelment process and the directions to the jury that they must only decide the case solely on the basis of the evidence before them.

In relation to what has been loosely called “the abuse of process” aspect of this, the trial judge and the CCA each found that there was no impropriety in the prosecution on the part of the DDP or the continuation of the filing of the charges and the bringing of the prosecution.  It is important to note, in my respectful submission, that those statements made by the two magistrates, and the police commissioner, were made on the podcast.  So, the impact of those is the same as the impact of the podcast itself.  They are not made in any other form.

GAGELER J:   Ms Dowling, one of Mr Boulten’s criticisms of the primary judge – perhaps, his main criticism of the primary judge – is that she seemed to contemplate that a fair trial could be held where one or more jurors come forward and say, yes, I downloaded the podcast, I watched it but it has not affected me.  He says that the nature of the content of the podcast – those features to which you have referred – are such that there is, inevitably, a real risk that any person who has seen it will have their judgment affected by it, tainted by it.  What do you say to that?

MS DOWLING:   In my submission, with respect, there is no evidentiary foundation for that.  As the Judges of this Court make it clear, even where members of a jury do have knowledge – have been exposed to broad publicity – they are assumed to follow the directions of the trial judge.  In relation to the processes of empanelment, sections 14A and 38 of the Jury Act, require a trial judge to make an inquiry of the jury panel as to whether they can bring an impartial mind to bear on the issues in the case.  That is a statutory requirement of the empanelment process.

So, the Jury Act – the statutory thing envisages that this process will be undertaken.  It has accommodated this risk in the provisions of the Jury Act and the common law also recognises that this is a risk that is ameliorated by making these inquiries of the jurors who are assumed to act in accordance with their own.

Again, your Honour’s question, in my respectful submission, comes back to the prospective nature of the task that the trial – that your Honour Justice Gordon was undertaking.  Even though the primary judge said that a juror may have listened, that need not be the case; it may be that there is a panel of jurors who have not heard the podcast, and that when that inquiry is made, no one puts their hand up.  So, that is why it can be seen that this process has to play out before this Court could conclude that it is not possible that there is nothing that a trial judge could do to ensure a fair trial.

Turning to ground 2, your Honours, in my submission, the terms of proposed ground 2 make it quite clear that the applicant does not complain of any alleged error of principle, but rather is complaining about the outcome of the primary judges – of the exercise of the primary judge’s discretion and, again, it is important that one bear at the front of one’s mind that the statements made by the police commissioner and the two magistrates are only made . . . . . And so, the steps that are proposed by Justice Gordon to identify and then excuse those jurors who have heard the podcast go a long way, if not all the way, to alleviating any unfairness caused by those persons involvement in the podcast. 

There is much reliance placed by the applicant in his written submissions on the decision of this Court in Tuckiar.  It is our submission that this case is a long way from that of Tuckiar, and that the involvement in the podcast of the magistrate and the police commissioner is of a completely different quality to the conduct of trial counsel in that case.  And nor is this a case such as Strickland, which involved the deliberate, coercive questioning of the applicant by agents of the State.

As your Honours are well aware, with respect, for a permanent stay to be an appropriate remedy, there must be a connection between the impugned conduct said to give rise to an abuse of process and the proper administration of justice, and that connection is not present in this case.  And I just refer your Honours to the findings of the primary judge at paragraph 314, application book 138, that she was:

satisfied, beyond any question –

that the officers of the Director of Public Prosecutions had:

acted at all times with absolute propriety ‑

So, this prosecution is not motivated by any improper purpose arising from the conduct of the magistrates or the commissioner and it is our submission that there is no merit in proposed ground 2. 

Turning to ground 3 and to the question that your Honour Justice Gordon posed, again, it is our submission that proposed ground 3 really is a complaint about the outcome of the exercise of the primary judge’s discretion rather than any allegation of a misapplication of principle.  Her Honour Justice Fullerton considered each of the discrete matters relied upon by the applicant cumulatively when considering whether to grant a permanent stay, and they are set out in detail in the primary judgment at paragraphs 438 to 441, that is application book 189 to 191.  So it cannot be said that her Honour did not address them appropriately.

As I have already adverted to, the potential prejudice arising from delay on one hand and pretrial publicity are not readily accumulated, nor are they compounded, because the curial measures against each of those types of prejudice are meaningfully distinct and are available to the trial judge who may run this matter at trial.  As the primary judge identified, the question is whether:

there is a real and substantial risk of unfairness to the applicant that cannot be remedied by judicial direction –

and as the primary judge and the CCA found, it cannot be said at this point in the proceedings that judicial directions are incapable of remedying such a risk.

May I just, before I finish, remind your Honours that her Honour at paragraph 342 of the judgment stressed that she envisaged an empanelment process that required that anyone who has listened to the podcast identify themselves and ask to be discharged.  If that is followed, and there is no reason at this point in time to assume that it will not be followed by the members of the panel, then people who have heard the podcast will not be on the jury and these concerns will fall away.

So these factors all, in my submission, return back to the issue identified by your Honour Justice Gageler in the questions to my learned friend, which is, given the prospective nature of this inquiry, it really cannot be said at this point in time that it is not possible for the accused to receive a fair trial when steps available to a trial judge are considered and time must be given for them to be implemented before one can draw a conclusion that the trial process would be necessarily unfair.  Those are the Crown’s submissions, thank you.

GAGELER J:   Thank you, Ms Dowling.  Mr Boulten, do you have anything to say in reply?

MR BOULTEN:   Your Honour, in relation to my learned friend’s submission that notorious trials are commonplace, this is the case but not like this trial where there has been a deliberate campaign to undermine a fundamental root of fairness in this trial.  The case here is one involving sensationalist media and where the perception of guilt has been deliberately generated, including by comments from members of the judiciary.

It is clear enough that there is no direction that the trial judge could give the panel or the empanelled jury that would be able to solve any problem caused by the prejudice occasioned by the conduct, or misconduct, of the people that are the subject of ground 2.  Indeed, the primary judge did not suggest that there was such a direction available and Justice Adamson recognised that at paragraph 165 of her judgment, on application book page 263. 

Your Honours, we are asking this Court to intervene to consider whether the empanelment process – utilising section 38 and section 14A of the Jury Act – and the mechanism that was postulated by trial judge – could ever ameliorate the prejudice that has been occasioned by the applicant in the circumstances of a 40‑year delay and the criticisms of his case broadcast to a million people.  If your Honours please.

GAGELER J:   Thank you, Mr Boulten.  We will adjourn for a short time to consider the course we will take.

AT 10:21 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.29 AM:

GAGELER J:   The primary judge refused a permanent stay of the applicant’s trial for murder on the basis that the primary judge was not able, at this stage of the trial process, to conclude that nothing a trial judge could do in the conduct of the trial would remove a real and substantial risk that one or more of the members of the jury will have prejudged the applicant’s guilt.  The approach adopted by the primary judge was in accordance with well‑established principle.

The applicant seeks to establish error in her Honour’s application of that principle.  The applicant seeks also to establish an arguable failure on her Honour’s part to give sufficient weight to the cumulative effects of inordinate delay with other defects to which her Honour made reference.

The Court of Criminal Appeal discerned no appealable error in her Honour’s reasoning or conclusion.  We are not persuaded that there is sufficient reason to doubt the decision of the Court of Criminal Appeal to warrant the grant of special leave.  The application for special leave to appeal is refused.

Mr Boulten and Ms Dowling, I will tell you what I at this point consider would be an appropriate non‑publication order going forward.  If you can give me an immediate reaction to it, I could possibly make an order now.  If you cannot, then I will relist the matter at 3.30.

The orders that I would propose are as follows:

1.Pursuant to section 77RE(1)(a) of the Judiciary Act, on the ground that it is necessary to prevent prejudice to the proper administration of justice, there is to be no publication of the contents of the written or oral submissions of the parties on the application for special leave to appeal until the conclusion of the trial of the applicant for the charge of murder.

2.Either party or any person listed in section 77RG(2) of the Judiciary Act has liberty to apply by written application and supporting affidavit for an order varying order 1.

Mr Boulten?

MR BOULTEN:   I think that would cover it, your Honour.

GAGELER J:   Ms Dowling?

MS DOWLING:   Yes, thank you, your Honour, the Crown consents and supports the making of those orders.

GAGELER J:   Very well, those are the orders that I now make.

The Court will now adjourn to establish a connection for the next matter.

AT 10.33 AM THE MATTER WAS CONCLUDED