Lewis v The Queen

[1993] HCATrans 42

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B48 of 1992

B e t w e e n -

TERENCE MURRAY LEWIS

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 4 MARCH 1993, AT 12.20 AM

Copyright in the High Court of Australia

Lewis 1 4/3/93

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friend, MR S.E. HERBERT, QC, for

the applicant.	(instructed by Hillhouse Burrough &
McKeown)

MR R.A. MULHOLLAND, QC:  May it please the Court, I appear

with my learned friend, MR J.D. CALLANAN, for the

respondent. (instructed by F.J. Clair, Special

Prosecutor, Office of the Special Prosecutor

(Queensland))

DEANE J: Yes, Mr Bennett?

MR BENNETT: If Your Honours please, it is said sometimes

that one of the differences between American and

Australian procedure is that in Australia

proceedings are commenced by a statement of claim

or a writ of summons, whereas in the United States

they are commenced by a statement to the press.

That rather whimsical statement has its unfortunate

analogies in the criminal area where, on anecdotal

evidence, one is familiar with with concept of

district attorneys making statements to the press

about how guilty an accused person is and what

punishment will be imposed on him in the public

interest.

Fortunately, that is something from which

Australia has been free. In this case there was

considerable pre-trial publicity of the type that

one would expect when one has allegations of the

type made in this case. That matter was dealt with

by the trial judge in an application for a stay

which was refused, and was dealt with by the Court

of Appeal which dismissed an appeal.

The error which we submit was made below, both

in the Court of Appeal and at the trial, was to

fail to take into account that totally different

considerations to those arising in the normal

pre-trial publicity cases are involved where there

is pre-trial publicity which is generated by the

prosecution. In this case, as I will show

Your Honours in a moment, there were two very

significant statements made by the prosecution, one

in a press release and one in a statement in court

on an occasion when there was no occasion for the

statement to be made, having the same effect, both

widely reported.

TOOHEY J:  Mr Bennett, that seems to shift the thrust of

your application away from the grounds of appeal as

originally formulated in the draft notice of

appeal.

MR BENNETT:  Yes, Your Honour, it does that.

Lewis 2 4/3/93

TOOHEY J:	And to put it fairly and squarely - I am not suggesting for a moment you are abandoning the other grounds, but to put at the forefront the
conduct of the Crown.
MR BENNETT:	I am abandoning the other grounds, Your Honour.

The ground which I am arguing is the ground which I have enunciated which is that a wrong test was

applied because the court applied the general

Glennon test and Jago test and tests discussed in

other cases involving pre-trial publicity, whereas it should have said that there is a different rule

and a much stricter rule to be applied where

pre-trial publicity is generated by the prosecuting

authorities. That is the principle for which we

contend which we say is a matter of importance.

Your Honours, the only reference we have found

to the problem in Australian jurisprudence appears

in the judgment of Justice Brennan in Reg v

Glennon, which is reported so far only in (1992)

66 ALJR 344, and the passage is at page 352.

Your Honours will no doubt recall this case. It

was a strong pre-trial publicity case. The judges

of this Court placed emphasis on the relationship

between the contempt of court cases and the

pre-trial publicity cases involving applications

for a stay.

There was considerable discussion in the

judgments of the balancing of interests which is

involved. For example, at page 353C, in the first

column, the first full paragraph, His Honour

Justice Brennan says:

Free speech is not the only hallmark of a

free society, and sometimes it must be

restrained by laws designed to protect other

aspects of the public interest.

In the next column, after references to the

integrity of the administration of justice at about

the same level, a bit lower down at E His Honour

says:

From these formulations it appears that

some degree of risk, albeit not a substantial
risk, to the integrity of the administration

of criminal justice is accepted as the price

which has to be paid to allow a degree of

freedom of public expression -

et cetera. Your Honours, those are the sorts of

balancing considerations which were properly

applied in this case to the bulk of the pre-trial

publicity, but those considerations are

Lewis 3 4/3/93

inappropriate, we would submit, to prosecution-

generated pre-trial publicity.

There are a number of reasons why the

situation is quite different in such a case.

First, there is no issue of freedom of speech.	The
issue of the freedom of the press to discuss and report on matters of importance, for example, particularly serious crimes, crimes involving
public duty and so on, are simply not involved.

The prosecution has not got any justification for

making public statements.

The second is, it can be avoided. One cannot,

as the laws of contempt of court have shown over

the years, prevent all journalists making any

statements which may be a contempt of court and

which may impinge upon the trial process. One can,

by the principles which we will ask the Court to

lay down if leave to appeal is granted, prevent prosecuting authorities making such statements.

Thirdly, of course, there is an analogy to the

Bunning v Cross type of reasoning, that where there is a need to discourage conduct by prosecuting

authorities, the best way of doing it is to quash

convictions or refuse to proceed where breaches of

that type of duty have occurred.

TOOHEY J:  Mr Bennett, what is the principle that places the pre-trial statements by prosecutors in a particular category of its own?

MR BENNETT: Two matters, Your Honour. First, the absence

of any countervailing public interest, as exists in
the case of normal pre-trial publicity, and these

cases are concerned with balancing that against the

need to bring accused persons to trial, and

secondly, the fact that statements by the

prosecution are likely to have a greater effect on

the minds of potential jurors than statements by

journalists or other persons.

If I can just show Your Honours what

Justice Brennan said about this problem, although

he did not discuss it in a legal context, it was

discussed in a factual context, at page 352, in the

second column at E in Glennon's case, His Honour

said this:

The grounds advanced by their Honours for

quashing the convictions present starkly the

problem which pre-trial publicity prejudicial

to an accused raises for the administration of

criminal justice. The problem is not new, but

perhaps it has become more acute in recent

times.

Lewis 4 4/3/93

And he then refers to the matter which I am raising

in this case, which did not arise in that case:

One developing phenomenon is the holding of

press conferences or the issuing of press

releases by some law enforcement agencies

after a person has been charged with a

criminal offence, in apparent disregard of the

risk that the fair trial of the person may be

prejudiced unless the matter published is

restricted to what this Court in Packer v

Peacock described as the "bare

facts" ..... extrinsic ascertained facts to

which any eyewitness could bear testimony,

such as the finding of a body and its

condition -

and so on.

the issuing of a press release wears the appearance of corporate advertising of the work of the agency in solving a crime.	Sometimes the holding of a press conference or the impartial performance of the functions of
a law enforcement agency in conducting or
assisting to conduct a criminal prosecution.
Another phenomenon -

and then he goes on to the Hinch-type problem.

Now, Your Honours, His Honour does not discuss in that passage the effect of that type of conduct,

although we would submit that there is an inference

open that it would be regarded with considerably

more concern by the Court than the other type of

event.

Your Honours, that, in my respectful

submission, is an important matter; it is desirable

case be eradicated; it is desirable that a firm that the practice referred to by His Honour in that	statement of principle be made by this Court rather
than what was done below, which was to treat it as
simply another aspect of pre-trial publicity to be
weighed in the balance where one looks at the sort
of considerations which are referred to in the
balance of the judgment in Glennon's case and
Murphy's case.

DAWSON J:  I suppose you could say that in these

circumstances also contempt is not a satisfactory

remedy.

MR BENNETT:  No, Your Honour, it is not, for the same reason

that in cases of the Bunning v Cross type, where

there is illegally obtained evidence, disciplinary

Lewis 4/3/93

action within the police force is an insufficient

remedy. In my respectful submission, in this type

of case, the only remedy is the one which we seek

to invoke.

TOOHEY J: There is a difficulty about this, is there not,

Mr Bennett? There seems to be an element in your

submission of punishing the Crown for what it has

done, and I can see what is involved in that

submission but, in the end, in testing its effect

on the conviction of an accused, is the question

not still one of whether the accused has had a fair

trial?

MR BENNETT:  Yes, Your Honour, but then that takes me to the

second aspect of the question which I answered

which Your Honour asked me a few minutes ago. The

second problem in relation to publicity generated

by Crown authorities is that it has greater weight.

The publicity in this case by the Crown was

restrained, in the sense that it was not an emotive

appeal to the public to come forward and convict,

or anything like that, but it had a far more

serious vice, and that is that it suggested that there was evidence, which in fact was held to be

inadmissible, which would not be brought out at a

trial, and which would result in the accused

possibly being acquitted when there was

inadmissible evidence which demonstrated his guilt.

That is almost the worst thing one can imagine

the Crown saying. It is saying, "Look, there is

material which shows that this man is guilty, we

cannot prove it at the trial, and it would be a

terrible injustice if that were to occur" and that,

in my respectful submission, is a far far more

serious vice than the mere reporting of journalists

or even ..... cornrnissioners and people of that sort

who have made statements which might suggest that

the accused was guilty.	It is very much more
serious. If Your Honours look at the two

statements being made - - -

DAWSON J:  You are going on to this other point now. You

are invited to do so, but you have left the, as it

were, the Bunning v Cross point, have you?

MR BENNETT:  Yes, Your Honour, I was answering

Justice Toohey's question.

DAWSON J: Yes, I realize that.

MR BENNETT:  I really have finished almost all I need to say about Bunning v Cross. The only additional - - -

DAWSON J: Before you leave it, could I just put this to

you, that there are some remarks in the cases that

Lewis 6 4/3/93

a Bunning v Cross point is not an appeal point,

because it is not really an issue between the Crown

and the accused. The court may take the attitude

that, in an exercise of discretion, that conduct is

deserving of punishment in some form or another,

but that is a matter for the court, and once it has

exercised the discretion, it really is not

something to do with the accused at all.

MR BENNETT: In this case, Your Honour, the court did not

exercise that discretion. In this case, what the

court did was simply look upon it as pre-trial

publicity.

DAWSON J:  You are saying, as your first point, that this

evidence ought not to have been admitted so as to

discourage the Crown from doing what it did in this

case.

MR BENNETT:  No, I am sorry, Your Honour. Your Honour

misunderstood my submission and it is my fault

because of the way I put it. When I referred to

Bunning v Cross I was doing so by analogy, not by

way of application. The purpose of referring to

Bunning v Cross is to indicate that the reason for

the rule in Bunning v Cross and the much stricter

poisoned fruit of the poisoned tree rule in the

United States, is that experience has shown that

the entering of acquittals or the allowing of

appeals against convictions in cases of that type

of improper police conduct, has proved more

effective as a means of preventing it occurring

than internal disciplinary action has.	And it was
simply that analogy which I was invoking.	I was

not seeking to suggest that the rule in Bunning v

Cross itself has any application.

DAWSON J:  The same point can be made. You cannot really

hear an accused to say on appeal, "Well, I am

guilty, I may well be guilty, but you should still

have been excluded in order to bring a point home	squash the conviction because the evidence should
to the Crown" .

MR BENNETT:  Your Honour, if a court were to refuse to

consider a Bunning v Cross point at the trial no

doubt it would be possible for that very event to

occur. I do not come here - - -

DAWSON J:  I am just pointing out there are opposing views on that question.

MR BENNETT:  Yes. I do not come here confessing guilt,

Your Honour.

DAWSON J:	No, no, I am not suggesting that.
Lewis	4/3/93
MR BENNETT:	But what we say is that the trial was

prejudiced by the pre-trial publicity, but in

evaluating the pre-trial publicity there was a

failure to take into account that a stronger and

stricter test ought to be applied to this type of

pre-trial publicity. And this case provides an

opportunity, in my respectful submission, for this
Court to lay down a rule in relation to statements of prosecuting authorities which will have a

salutary effect. It is a strong case for it and a

convenient vehicle, if I may so describe it,

because it involves statements about evidence which

in events which happened was not able to be called.

It is the prosecutor saying, "The Crown's case has been truncated by the trial judge's ruling", a ruling which ultimately stood, excluding a large

body of evidence. A potential juror reading that

would say to himself, "There is obviously a lot

more material the Crown has which show that this

man is guilty but for some technical legal reason

it is excluded from being before me". And that, in

a sense, is a far more serious prejudicial

statement than a far more general matter of press

criticism of the type which appears in Glennon's

case or in Murphy's case. In my respectful

submission, those are matters which justify a grant of special leave so the Court can look more closely

at what was said and its effect, and can lay down

the principle of the type to which I have referred.

DEANE J: Mr Bennett, can you refresh my memory? Precisely

what happened here in respect of applications for a

stay of proceedings or an adjournment?

MR BENNETT: There was an application made and it was

refused, Your Honour.

DEANE J:	Made to whom?
MR BENNETT:	The trial judge.
DEANE J: What, for a permanent stay of proceedings?
MR BENNETT:	Yes, Your Honour.
DEANE J:	And was there an appeal against that?

MR BENNETT:  No, Your Honour. There could hardly have been

an appeal against that, in practice, for a number
of procedural reasons. There was an appeal against

it at the end because one of the grounds - - -

DEANE J:  I follow that. But the ordinary course, if a stay

of proceedings is desired on the grounds of

publicity, to make an application at the

appropriate time before the trial, and then if it

is desired one would have thought to try and test

Lewis 4/3/93

that on appeal, rather than to go through the trial
and when a conviction is brought in then seek to
appeal from the original refusal to grant a stay.

I realize the approach adopted in Glennon was

different.

MR BENNETT:  Yes. I think in Glennon the Victorian Full

Court specifically said that the opposite approach

was the preferable one. I appreciate that that

court was reversed on other grounds by

Your Honours.

DEANE J: Except in Glennon, my recollection is hazy, but

had there not been an appeal from the original

refusal to stay?

MR BENNETT:	I am not certain of that, Your Honour.
DEANE J:	I could be quite wrong.

MR BENNETT: There would have been great difficulties with

that course in the present case for two reasons. First, there would be the problem of the accused

appearing to be seeking to delay his trial. It was

obviously a matter to which there was great public

interest. And secondly, of course, this was a case

where the Court of Appeal had already sent it back
when the Crown had referred a question up without
answering the question and had said some strong
things about bringing matters to the court before

the trial commenced.

So there were fairly serious inhibitions

against that course in this case. The application

was made and ultimately it was relied on in an

appeal against conviction.

DEANE J: Yes, except I can see some arguable analogy

between Bunning v Cross and an application for a

stay. I have great difficulty in seeing, after

quashed unless it appears that the convicted person	trial and conviction, that the conviction should be	has been denied a fair trial. It strikes me as
extraordinary that a court should say, "Here there
has been a conviction after a fair trial. There
are no grounds for interfering with it in terms of misdirection or lack of fair trial, but we are
going to quash it because we do not approve of the conduct of the prosecution."

MR BENNETT:  Your Honour, it goes further than that. The

submission is that the pre-trial publicity as a

whole did cause a miscarriage. Now, that was a

discretionary matter which was considered by the

trial judge and considered by the Court of Appeal

and on which we lost. But we say, in considering

that matter, it was dealt with on a wrong test, on

Lewis 9 4/3/93

a test applicable to mere external publicity and
not the test which is applicable to prosecution

generated publicity.

We put that, not only on the basis of the

Bunning v Cross or punishing the prosecution, if I

can put it colloquially that way, but also, and
perhaps more importantly, on the basis that a

statement by the prosecutor made publicly and no

doubt read by potential jurors is a very much more

serious matter, it is likely to have a more serious

effect.

DAWSON J:  Why is that? It is not self-evident to me. Why

would not a reader say, "Look", if he saw it in a

newspaper, "it was a statement of fact. If the
newspaper said so, it must be true." But when he

sees that the prosecutor says it, he would say,

"Well, he would, wouldn't he?	He is the
prosecutor."

MR BENNETT:  Yes, if the statement was merely, "He is guilty

and we are going to get a conviction", that might

be so. But in this case the statement is, in

effect, "There is other evidence which shows us

that he is guilty but we may be precluded from

proving that at the trial". That is, we would

submit with respect, almost the most serious thing

one could imagine, the most damaging thing to the

accused a prosecutor can say.

In all the cases on pre-trial publicity, there

is the statement that there could be a case where

the publicity was so serious there could never be a

fair trial. This must be very close to that.

DAWSON J:  Some judgments expressed that view. I do not

think you will find it in Justice Brennan's

judgment.

MR BENNETT: No, that is so, Your Honour. It is in some of

the judgments and not the others.

DEANE J:  Mr Bennett, if I might just interrupt you.

Justice Dawson has pointed out to me that in

Glennon there was an appeal from the refusal of the stay by way of review, but it was a review by a

supreme court judge of the refusal of the county

court judge.

MR BENNETT:	Yes.
DEANE J:	I do not think it really takes the matter

anywhere.

MR BENNETT:  No. I am told, Your Honour, that there is no

machinery here to enable that to be conveniently

Lewis 10 4/3/93

done. There are, of course, always difficulties in

any form of challenge to an interlocutory decision

in a criminal trial and it is indeed part of the
discussion which was involved in the press reports
in this case concerned the propriety of the Crown

using the sections it did to go to the Court of

Appeal when the defence could not do so. But,

Your Honour, I cannot answer precisely the question

as to whether under the Queensland Act there might not have been some way of doing it. But certainly

the tenor of authority seems to suggest that one

cannot effectively do it that way.

I stress, Your Honour, we do not put this on

the basis solely as being a matter of a Bunning v Cross-type punishment of the prosecution. We put

it on the basis of the additional effect it has

when it relates, as it does here, to evidence in

the possession of the prosecution which may not be

able to be proved. We also put that it is a matter

of public importance that the rules in this area

should be laid down. Mr Justice Brennan has

referred to the growing problem in his judgment in

Glennon, and it is a matter which this Court should

speak on and this case provides a convenient

vehicle for it to do so.

DEANE J: Before you finish - and I might say I am attempting

to be helpful and direct your attention to what is

concerning me and it is this: the starting point
obviously must be the context of the great amount
of uncontaminated - or whatever is the right word -

publicity that surrounded this case. It would seem

clear enough that great though that publicity was,

the majority decision in Glennon would not allow

the intervention of the Court by reference only to

it.

Let us concede in your favour that the

prosecution at one stage of that pre-trial

publicity issuing a statement that implies there

are grounds other than those which would be led

under the judge's ruling which were important in

establishing your client's guilt, and assume that

that moves it into a different area of examination.

I have difficulty in seeing why in that area, and

conceding to the full the comment of

Justice Brennan in Glennon and its significance,

one still is not left with the question, "Is this

case such an extraordinary one that in the context

of the overall publicity, this contaminated

publicity has the result that the accused has

effectively been denied a fair trial?"

Is there anything that you would like to say

in relation to that rather long-winded series of

statements which was meant to be a question?

Lewis	11	4/3/93
MR BENNETT:	Yes, Your Honour.	The first part of the

question Your Honour puts to me involved acceptance

of the proposition that on the basis of the

majority decision in Glennon, this was not a case

where a stay would be ordered.	We would dispute
that proposition.

DEANE J:	Where a permanent stay would be ordered.
MR BENNETT:	Yes, or, for that matter, a temporary one is

the fall-back position. We would submit that if

the trial judge had applied the test which we say

is appropriate to that part of the publicity which

was prosecution-generated, the scales would have

tipped in a different way. So that this is a case,

if one wants to look upon it as an appeal from a

discretionary judgment - - -

DEANE J:  I have put that badly, apparently. What I should

have said was: this is not a case where the

refusal to grant a stay would warrant a quashing of

the conviction.

MR BENNETT:  We would submit, Your Honour, that if I

successfully establish that on an application of a

proper test a stay might have been granted, either permanently or for some reasonable period to allow

the effects of it to die down, then there has been

a miscarriage of justice. It is simply a case

where there is a discretion to be exercised and it

is exercised on wrong principles.

DAWSON J: Really that is putting it in a complicated way.

Is not the question in the end: in the

circumstances, did the accused have a fair trial?

MR BENNETT: Yes, Your Honour, but one must superimpose on

that question the issue and the public policy

considerations to which I have referred.

DAWSON J:	Why?
MR BENNETT:	Your Honour, for the same reasons as the courts

have laid down the principles in Bunning v Cross.

DAWSON J: If that is the ultimate question to be asked, we

are not debating the question of whether a stay
should or should not have been ordered. What we

are debating is: did, in the circumstances, the

accused have a fair trial?

MR BENNETT:  Your Honour, the Court would ultimately, if it

were to accede to my submissions on an appeal, have

a choice, no doubt, between saying, "We will not go

into the merits as a whole; we will remit the

matter to the Court of Appeal to ask itself the

Lewis 12 4/3/93

question about publicity again but applying the

test we lay down to that part of it which was

prosecution-generated", the Court could do that and

then it would be a matter for the Court of Appeal

to see if the scales would have swung the other
way, or this Court could consider the whole of that

question and decide itself whether the scales would

have swung the other way. But certainly our

submission is that applying the proper test, the

scales would have swung the other way.

There were the two factors: the increased

effect on the mind of a potential juror of a
statement by the prosecution about evidence which

is inadmissible, and the other being the public

policy matter to which I have referred and which,

if the law is or should be that a stay should be

granted or prosecution quashed or an appeal allowed

because of such conduct, then my client, like

anyone else, is entitled to take advantage of the

law.

DAWSON J: Why cannot the appeal judge say, "Well, look, I

probably, if I had been sitting as the trial judge,

would have ordered a stay on that evidence, but a

stay was not ordered and a trial was held, we

cannot turn back the clock. The only question now

is whether the trial was a fair trial"?

MR BENNETT: Yes, Your Honour. Well, a fair trial in

accordance with law.

DAWSON J:  I know what you say; you say this was not a fair

trial because the jurors' minds were inevitably

inflamed by what was said.

MR BENNETT:  Yes, and that that was a factor not taken into

account as one giving rise to what we say is a

different principle. One can go back to the

question, "Is it a fair trial?", and simply ask

that question. We say you get the opposite answer.

But in answering that question one inevitably in

the criminal law comes down to a series of

subquestions which are more specific and, in

answering those subquestions, if a wrong test has

been applied there is an error of law and the trial

was not fair.

DAWSON J: That is the question. I really do not see how

you could answer the question, "Was there a fair

trial?", by saying, "No, there was not a fair trial

because it should have been stayed". That is

merging two things together.

MR BENNETT: Well, Your Honour, to take the contrary view

invites an accused person, in any situation where a

stay is refused, to appeal before the trial if he

Lewis 13 4/3/93

wishes to test that decision, and that is something
which, as a matter of policy, is contrary to the

approach which has been taken generally towards

appeals in the criminal law, which has been that

one does not go off to appellate tribunals at

various stages during the process; one lets the

process work its way through to the end; and if the

end is adverse and there has been a significant

procedural error, or an error which vitiates it, so

be it.	And that has been the approach in the
criminal law.	And, indeed, one only has to look at

the numerous decisions of the Federal Court in

relation to challenges to committals and to events

during committals to see how the appellate courts

have discouraged that type of interlocutory appeal.

But even if that is incorrect, and even if it

is regarded in the future as being appropriate that

there should be an interlocutory appeal rather than

a waiting until the end of the trial, where that

has not been laid down clearly in the past it ought
not to be used to prevent special leave being

granted in the case such as the present, where a

decision is made in accordance with existing

practice. For those reasons, it is my submission -

DEANE J:  Mr Bennett, I hate to stop you sitting down yet

again, but can I ask you this:	what did the Court
of Appeal say about prosecution	generated
publicity?

MR BENNETT:  It did not mention it, Your Honour.

DEANE J: I could not recall anything. Well, was any point

made of prosecution generated publicity in a notice

of appeal to the court below? I am only asking

because we have not got a copy of it.

MR BENNETT:  I would just have that checked if I may,

Your Honour. My understanding is that it was

argued, but it may have been put as being a

separate principle that I put it, but - it was not

put in that way. It was certainly part of what was

put to the court but there was no separate ground

of appeal in relation to the prosecution generated

pre-trial publicity, and it was not put in the way

I put it to Your Honours. But, Your Honours, it

was certainly a significant part of the argument

that the part of the publicity was serious because

it was prosecution generated. That was certainly

put and that is not referred to anywhere in the

judgment.

TOOHEY J:  None of that is fastened on to by Justice Pincus

in the various examples he gives of pre-trial

publicity.

Lewis 14 4/3/93

MR BENNETT: No, it is not, Your Honour. But, on the other

hand, the evidence of that publicity is objective
and precise so there is no difficulty in having it

before the Court and enabling the Court to see

precisely what it was, and I have dealt with it in

the summary which Your Honours received yesterday,

and Your Honours will see from that what the

factual matters are on which we rely.

I take it Your Honours do not need me to take

Your Honours through that, it would only be by way

of repetition of what appears in it.

DEANE J:	You can take it we have read it.
MR BENNETT:	Yes, if Your Honours please.

DEANE J:  Thank you, Mr Bennett. The Court will take a

short adjournment to consider what course it will

follow in this case .

. . AT 12.56 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.02 PM:

DEANE J:  Mr Mulholland, the Court would wish to hear you

only on the question of what has been described as

the prosecution generated publicity.

MR MULHOLLAND:	Thank you, Your Honours.
MR BENNETT:	Your Honours, might I have leave, just before

my learned friend begins, to correct something

which I said to Your Honours before I sat down?

DEANE J: Yes, Mr Bennett.
MR BENNETT:	Because there were a number of questions

Your Honours asked me towards the end of my submissions which I answered incorrectly, and I

should correct those matters.

First, in the notice of appeal to the Court of

Appeal, there was this ground which I will read

quickly, it is quite short, and this is in

reference to the statements by the prosecutor in

his address to the jury.

The conduct by counsel for the special

prosecutor occurred with deliberation against

the background of the circumstances in which

Lewis 15 4/3/93

the trial was conducted including massive and

unprecedented adverse pre-trial publicity,

public complaints by the special prosecutor,

widely reported, that prior to the

commencement of this trial, the learned trial

judge had wrongly excluded evidence and had

thereby wrongfully and implicitly unlawfully

truncated the prosecution case.

So, it was referred to in the notice of appeal.

Secondly, I said to Your Honours that it was

not mentioned in Mr Justice Pincus' judgment. That

was incorrect. It is referred to briefly in a

slightly different context at page 82 of the

application book at line 15, where His Honour says:

It may be that if adverse publicity is

deliberately generated by persons for whom the

Crown should properly be held responsible, then justice would require that a permanent

stay be granted.

But, His Honour does not develop that and does not

apply it to the facts of this case.

I apologize to Your Honour that those matters

were not in answer to the question.

DEANE J: Thank you, Mr Bennett. Yes, Mr Mulholland?

MR MULHOLLAND:  Your Honours, just in relation to that last

matter, that is a point which is taken up at

paragraph 16 of our outline, and the submission

that we make in relation to that is that plainly
the suggestion was considered and rejected as a

basis for the grant of a permanent stay.

Clearly, Your Honours, Mr Justice Pincus, who

delivered the only judgment in relation to this

matter, in relation to this ground, was aware of

publicity concerning evidence which the Crown might

otherwise have called, had been excluded in the

district court. That appears at page 70,

lines 6 to 13.

All of the publicity, including the publicity

which was said to have been generated by the Crown,
was before the district court and relied upon at

that point, and also then relied upon again before

the Court of Appeal.

DAWSON J:  You do not seek to justify the so-called

publicity generated by the Crown, do you?

MR MULHOLLAND:  Your Honour, the circumstances in which each

of those items of publicity was made are important.

Lewis 16 4/3/93

In relation to the statements made about the

truncating of the Crown case, what happened in

relation to that was this: that the judge at the

end of one day made a ruling concerning the

exclusion of certain evidence. The Crown asked for

an adjournment to consider its position and the

court resumed the following day. At that point the

Crown indicated that it was seeking a return of the

indictment.

The Crown was conscious of the fact that the

trial judge in this case, in another case which is
now reported, a case of Jell, had refused to accept

the return of the indictment on the ground that it

constituted an abuse of process. What then

transpired before the trial judge was that the

defence - that is the defence in this case - argued

that the return of the indictment would, in the
circumstances of this case, amount to an abuse of

process, and that was the point that was argued on

that day, and then it was the following day that

the judge made his ruling. So those were the

circumstances in which that occurred.

The circumstances in which the statement was made by the special prosecutor were that that

statement was made following a lot of statements

made on talk-back radio on the following morning

and there are a number of these and, as appears

from the statement, the statement was made in order

to clear up the misconceptions that arose.

Basically what it amounted to was an attack upon

the motives of the prosecution. It was suggested

in that publicity that it was the strategy of the

Crown being to get before a judge on another day,

that it was one of the worst forms of legal

extremism, that the accused was facing a monstrous

cost burden, that the defence did not have the same

remedy but in these type of cases would need to

wait five or six months in gaol - - -

DEANE J:  But that was not the question. The question you

were asked was:	do you justify what the
prosecution did and said?	Now, it may be relevant

to talk about all the circumstances which might

explain and possibly mitigate what the prosecution

said and did; the question was, do you justify what

the prosecution said and did in generating this

pre-trial publicity?

MR MULHOLLAND:  Yes, Your Honour. There were only, as we

understand it, those two items.

DEANE J:  I appreciate that, and the second one aimed at

publicity.

Lewis 17 4/3/93

MR MULHOLLAND:  The second one, Your Honour, aimed at

clearing up misconceptions.

DAWSON J:  But surely it is undesirable for a prosecutor to

debate the issue with the press while the

proceedings are still on foot.

MR MULHOLLAND:  Your Honour, in ordinary circumstances we

would quite agree.

DAWSON J: In any circumstances.

MR MULHOLLAND:  In this case, Your Honour, the situation was

that the motives of the Crown were being given a

great deal of public air play and it was simply

really in order to counter that publicity and to

state what the Crown was seeking to do, that is to

say to take a point of law before the Court of

Criminal Appeal.

DAWSON J: 

It may be proper to state that before a court but

not to the press whilst the proceedings are on
foot.

MR MULHOLLAND: 

The only difficulty with that, Your Honour,

was that there was no court that that could have

been stated before at that time.

DEANE J: In that case the prosecution should state to the

press that considerations of fairness to an accused
preclude it from getting involved in a public

controversy with the press. It should never get

engaged in a public controversy with the press

where the guilt or innocence of the accused is

likely to be damaged either directly by talk of

cases being truncated or indirectly by inference.

The sooner the prosecution in Queensland recognizes

that, in my view, the better it will be for the

State of Queensland.

MR MULHOLLAND:  Your Honour, I do not think there is

anything I can add to the circumstances in which

those statements were made, except to perhaps

emphasize again that the reference to the

truncating of the case was made in court.

DEANE J:  And possibly it could have been covered if a

direction had been given that publicity not be

given to it, but that is of course speculating.

MR MULHOLLAND: There was such a direction, Your Honour, in

relation to - this was of course pre-trial

argument, and there was an order in relation to

that, but what appears to have happened was that

once the reference was made to the Court of

Criminal Appeal and the proceedings in the district

court terminated, that the media did not regard

Lewis 18 4/3/93

themselves as bound by that order of the trial

judge, but there was an order of the trial judge in

relation to publicity to be given to the judge's

ruling.

DEANE J:	Have you finished what you wanted to say?
MR MULHOLLAND:	Yes, Your Honour.

DEANE J:  Thank you, Mr Mulholland. Yes, Mr Bennett?

MR BENNETT:  The only matter by way of reply, Your Honour,

is that the matters which were stated at the

hearing one day after the judge's ruling on

evidence was given were matters which were stated

by the Crown at the beginning before counsel for
the accused had raised any opposition to the nolle.

In other words, it is true that counsel for the accused did subsequently raise such matters at that

hearing but only after the statements had been made

by the learned prosecutor, and indeed they were

objected to at the time but permitted to continue.

That is the only matter by way of reply,

Your Honours.

DEANE J: Notwithstanding the matters which have been urged

on the Court by Mr Bennett of Queen's Counsel

today, the Court is not persuaded that an appeal in

this matter would enjoy sufficient prospect of

success to warrant a grant of special leave to

appeal. Accordingly, the application for special

leave to appeal is refused.

The Court will now adjourn until 9.15 Brisbane

time, 10.15 Canberra time, tomorrow.

AT 1.15 PM THE MATTER WAS ADJOURNED SINE DIE

Lewis 19 4/3/93