Edwards v The Queen

[2004] HCATrans 235

[2004] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B42 of 2002

B e t w e e n -

LESLIE ARTHUR EDWARDS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 12.22 PM

Copyright in the High Court of Australia

MR M.C. CHOWDHURY:   If the Court pleases, I appear for the applicant.  (instructed by Legal Aid Queensland)

MR M.J. COPLEY:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Chowdhury.

MR CHOWDHURY:   Two points that I can state very simply.  The first, can I make this point, the granting of a permanent stay of an indictment on the grounds of pre‑trial publicity is an exceptional remedy, as your Honours have already heard this morning.  However, the granting of a change of venue because of pre‑trial publicity is not.  It is one of the weapons, for want of a better word, that the courts can use in order to ensure a trial for an accused on a serious charge is as fair as the court can make it.

In the circumstances of this case, the applicant was charged with a very grave crime and a crime which had excited much interest and discussion in the local community in Townsville.  There had already been one trial in which the applicant had been convicted.  That conviction was set aside on appeal in unusual circumstances due to the action of a juror absenting himself and going off to a nightclub while the jury were supposed to be locked in their hotel while deliberating.  All of that was publicised.

It is submitted that in the interests of a fair trial the learned trial judge should have granted a change of venue to a place other than Townsville where a chance of a fair trial was better and the Court of Appeal erred in holding that there was not a substantial risk that a fair trial did not occur in Townsville in those circumstances.

In respect of the second matter, an application was made for a separate trial for the applicant. The critical issue on the trial for the applicant was whether he was the person who fired the fatal shot, and that was solely the issue. The Crown had nailed its colours to the mast fairly clearly in saying that the applicant Edwards was the person who fired the shot and the two co‑accused, Georgiou and Heferen, were parties to that offence by virtue of section 8 of the Criminal Code.

Admitted in evidence on the joint trial were statements made by Heferen to the police and Georgiou to the police that Edwards was the person who fired the shot.  Now, it is accepted that the learned trial judge gave clear directions to the jury that that was not admissible against Edwards.  However, in the particular circumstances of this case it would have been impossible, in my submission, for the jury to have disregarded

not just one co‑accused but both co‑accused nominating Edwards as the person who fired the shot.

Now, for some inexplicable reason, the Court of Appeal, at paragraph [63] of their judgment, failed to refer to the fact that it was not just Heferen who nominated Edwards as the shooter but also Georgiou.  That was a significant part of the applicant’s argument in the court below, that it was not one but two co‑accused nominating him as the shooter.  In my submission, an error has been established on the face of the court’s judgment in that it has either misunderstood or failed to understand the argument for the applicant.

In those circumstances, and for the other reasons that I have outlined in my outline of argument, special leave should be granted in this case.  Thank you, your Honours.

GLEESON CJ:   Thank you, Mr Chowdhury.  We do not need to hear you, Mr Copley.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this case.  The application is dismissed.

We will adjourn for a short time to reconstitute.

AT 12.26 PM THE MATTER WAS CONCLUDED