Long v The Queen
[2004] HCATrans 232
[2004] HCATrans 232
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B17 of 2003
B e t w e e n -
ROBERT PAUL LONG
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 11.23 AM
Copyright in the High Court of Australia
MR A.J. GLYNN, SC: May it please the Court, I appear with my learned friend, MR M.C. CHOWDHURY, for the applicant. (instructed by Legal Aid Queensland)
MR D.L. MEREDITH: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))
GLEESON CJ: Yes Mr Glynn.
MR GLYNN: Your Honours, the remedy of a permanent stay of a trial because of prejudicial publicity is accepted as being an exceptional one, but it is submitted that it is not elusory. Here, the nature of the pre-trial and effectively pre-arrest publicity was so extensive, so prejudicial and so striking in its description of a penchant for violence and arson on the part of the applicant that it could never be put aside by the best‑intentioned, most well‑instructed jury so as to enable the applicant to have had a fair trial.
The ability of jurors to be unaffected by prejudice in a case of such an horrific kind, which remained in the public eye from the occasion of the fire until the end of the trial, simply is, in our submission, non-existent. This has been recognised by the courts and this Court, in particular, in Gilbert gave some recognition to that proposition. In Gilbert v The Queen (2000) 74 ALJR 676, in the judgment of your Honour the Chief Justice and Justice Gummow at paragraphs [13] through to [16], in my submission, is a recognition by the Court that juries do not necessarily follow instructions given by trial judges.
GLEESON CJ: When you are in the area of prejudicial, pre-trial publicity, if your argument is taken to its logical conclusion, you can get the result that if an offence is sufficiently terrible and sufficiently widely known, the publicity that surrounds the committing of the offence and the search for the offender can produce the result that society cannot put the offender on trial.
MR GLYNN: That is not the submission that I am seeking to make, your Honour, rather it relates to the nature of the prejudicial publicity. Firstly, it is accepted that not all publicity about the offence and the investigation is prejudicial and, secondly, there are degrees and degrees of publicity. Your Honours would have seen in the judgment, particularly of Justice Jerrard, that the explicit nature of the publicity, which was really directed towards a propensity for violence, including the causing of harm to others by arson, on the part of the applicant.
Now, given the nature of the allegations here, namely, that he set fire to a building and that the principal Crown argument was that he did so with the intention of killing or at least causing grievous bodily harm, publicity of that sort is particularly striking, particularly prejudicial and particularly unlikely to be forgotten by a jury even 18 months after the event or 20 months after the event when they are called upon to deal with the particular case.
GLEESON CJ: But what do you say is the consequence, that he could never be brought to trial?
MR GLYNN: Yes. Your Honour, I realise that is a major step, but the alternative is that he can never be brought to trial and have a fair trial.
GLEESON CJ: No. The alternative is that he can get a fair trial by the giving of appropriate warnings and directions to juries and by juries doing that which they are repeatedly instructed to do, that is, attending to the evidence and deciding the case according to the evidence.
MR GLYNN: That assumes, your Honour, that the jurors can put out of their minds – even with the best will in the world it is submitted that they cannot – information of this sort that was published in what was described by Justice Jerrard as a frenzy of defamation that took place before the arrest of the applicant but directed to him. Your Honours, there are remedies open to the Parliament and to the Attorney-General to prevent this sort of thing occurring but which never appear to be exercised and which has the result that it is the person accused of the crime who is forced to go to trial suffering the consequences of these prejudicial publications, quite unfairly.
GLEESON CJ: What was the defence case at the trial?
MR GLYNN: Well, firstly, he did not give evidence, but the defence case was, firstly, to question the issue of whether or not it was arson and, secondly, very much to question that if it was arson, whether or not it was the applicant who committed the offence, who lit the fire.
GLEESON CJ: Now, on that first issue, whether or not it was arson, what else might it have been?
MR GLYNN: It was suggested that it may have been the product of a spark from an earlier fire which was caused by the discarding of something such as a cigarette butt in a bin which contained quite an amount of paper.
GLEESON CJ: And on the second issue, was there evidence of threats by your client?
MR GLYNN: There was evidence – I suppose it would extend to threats in respect of a particular backpacker, but ‑ ‑ ‑
GLEESON CJ: Was that denied?
MR GLYNN: Challenged, as I recall.
GLEESON CJ: Challenged in cross‑examination?
MR GLYNN: Challenged in cross‑examination. Yes, that is a reasonable summary. Now, the difficulty is that this particular publicity was directed to, as your Honours will have seen from the judgment of the Court of Appeal, firstly, that this was a man who, in fact, it was alleged had attempted to burn down a caravan which contained his de facto wife and three children, that he had attempted to strangle his de facto wife, that he had attempted to strangle the six‑year‑old child. There were general allegations of his propensity for violence and, as I say, particularly against the background of the use of fire. That, in my submission, was particularly prejudicial publicity in the circumstances of this case.
Now, your Honour, I accept the problem that is created is, as your Honour says, does that mean he does not go to trial? Well, the answer is, if he cannot get a fair trial, he should not go to trial and the remedy ‑ ‑ ‑
GLEESON CJ: It means you should stop long and hard before you reach a conclusion that he could not get a fair trial.
MR GLYNN: Accepted, your Honour, but that is a matter which, in my submission, is inescapable in the circumstances of this case because of the nature of the publicity that was generated. Each of the members of the Court of Appeal recognised the very serious nature of the prejudice potentially engendered by the publicity that existed. They effectively ruled that the passage of time and the careful directions by the trial judge ‑ ‑ ‑
GLEESON CJ: And, I think, the whole structure of a criminal trial proceeding was important in their reasoning, as I understand it.
MR GLYNN: Justice Jerrard said that but, in my submission, that part of his Honour’s findings really does not withstand, with respect, analysis. He said ‑ ‑ ‑
GLEESON CJ: I am just not sure about that, Mr Glynn. It is the experience of most judges, I think, that jurors take their responsibility very, very seriously.
MR GLYNN: Your Honour, I am not suggesting any wilful misconduct by jurors, rather, that prejudice can be of such a nature that it overcomes the best intentions to try to ignore it. In other words, if the prejudice engendered is sufficiently serious, it is very difficult for the best of us, with the possible exception of those such as judges who are experienced in dealing with this on a daily basis, to overcome that. At paragraph [174] and [175] of the judgment, which is at page 159 of the record, his Honour, under the heading of “Miscarriage of Justice” said:
This leaves for consideration the appellant’s argument that a miscarriage of justice has occurred because of the substantial risk of prejudice arising from that publicity. The appellant relies upon the same material for the arguments that a substantial risk of prejudice was unavoidable. I would put it that a risk of substantial prejudice was possible by the time of trial, but that three matters are relevant when assessing whether a miscarriage of justice has occurred.
Now, his Honour, firstly, makes the concession that but for the three matters that he is about to refer that there was a substantial risk of a miscarriage of justice having occurred because of the pre-trial publicity:
The first is that no judge would want to preside over a trial which was unfair, and the directions the trial judge actually gave show him trying very hard to prevent that.
There is no suggestion that the trial judge did other than try to prevent the effect of the publicity. The contention is that, given the accepted nature of the prejudice, the mere wish of the judge to overcome it is of no consequence whatsoever. In my submission, that point carries, with great respect to his Honour, no weight.
The second and third really are the same. They are to the effect that once you get into the minutiae of trials you forget about other things. With the greatest of respect, my submission is that that is, in fact, the reverse of reality, that reality is that once you get into the minutiae of the trial it is more likely to bring back to jurors in stark reality what they have heard and what they have read, or at least bring back to some who will raise it with others. The focusing on the trial has the reverse effect. It actually enlivens the effect of the publicity.
There is a judgment which is included in the book where the reverse point is put in a slightly different situation in the Attorney-General for New South Wales v John Fairfax Publications [1999] NSWSC 318 at paragraph 43 of the decision of Justice Barr. That was a case, of course, where his Honour was dealing with a question of contempt. I am not trying to suggest that the same principles are necessarily applicable to the question of contempt as apply to the issue of pre-trial publicity and prejudice. There, there had been put before his Honour material to show how people forget about things that they have read in newspapers and heard on television. At 43 his Honour said:
It seems to me that there are at least two fundamental differences between questions asked about a particular subject matter in a survey and the presentation of prompting information at a trial. First, at a trial, which may last several days, there is a continual and repeated process in which information is presented which may stir the memory. For example, jurors will see the accused’s name printed in court lists, on notice boards and in the newspapers and probably in documents tendered at the trial. They will hear the accused’s name repeated throughout the trial. They will hear other information, such as nicknames and other attributes of the accused which may become relevant. So a name or a face which provokes only a vestigial or uncertain memory at first may, when repeated or presented with other relevant information, revive the memory.
Then his Honour contrasts that with a survey. He said:
Secondly, participants in surveys are questioned individually. Indeed, it appears that special care may be taken to prevent the memory of any participant influencing that of any other. Yet that is the process that is likely to go on during the deliberations of the members of a jury at a trial. So a dim memory of one juror may spark or be sparked by the memory of another juror.
Now that only relates to issues about whether the name will be remembered and the associations made with the earlier publicity. Here was a case which sparked national interest, was virtually never out of the press between the fire and the trial and even the appeal. The jurors, therefore, had been constantly reminded of it and of what they no doubt had read about it before the arrest of the applicant.
My submission is that his Honour Justice Jerrard correctly said that he would put the risk of substantial prejudice was possible by time of trial, but he was wrong in saying that these three particular factors overcame it – quite the reverse. The last two are particularly likely and relevant to the question of reviving it in the jury’s memory. Every member of the court accepted the highly prejudicial nature of the material.
Now, the second point – and I am conscious of time – is that some of the material was released by people who were at least connected with or under the aegis, if I can say, of the Crown. That is, information about the accused’s criminal history was released by a police officer and it was released by a corrections officer to various members of the press. It is submitted that that in itself is a circumstance which enhances, is the way I
would put it, the need for the exercise of the power to stay when this is done by people who are under the control of, or under the aegis of the Crown.
I have not taken your Honours to the evidence in detail because I assume that your Honours have seen it in the judgment. The best summary of the material is that which is found in the judgment of Justice Jerrard from paragraphs [154] to about [164] of the judgment. Unless your Honours want me to go through that, I will not. I rely on that as a summary and, in my submission, it demonstrates that in this particular case the failure to grant a stay was an error which the Court of Appeal failed to correct. Unless there is something else, those are my submissions.
GLEESON CJ: Thank you, Mr Glynn. Yes, Mr Meredith.
MR MEREDITH: Your Honour, in relation to the question that your Honour put to my friend about the alternative version, the earlier lit fire, it was suggested by the defence that it could have been an accident, but there was very strong evidence from the prosecution that it could not have been so and, more importantly, there was a cushion that acted as a bridge between that fire and a sofa which the jury could have taken as being a deliberate attempt to spread the fire, and then that was the one that was disturbed by Neil Griffiths and that fire was taken away.
There was also strong evidence from Dr de Haan and Mr Casey that that could not have been a smouldering fire because there was not sufficient time, when the timings were worked out, for that to occur without there being a considerable amount of smoke. Once the jury quite properly were to come to the conclusion that was a deliberately lit fire, then the second fire, which was the fire that would caused the burning down of the building and the death of the deceased, it had to follow that it had to be a deliberate fire.
The point I make about that is that that was important in the context that Justice Jerrard was describing that there was a cogent case before the jury which they had to follow over something of the order of three weeks which gives strength to his Honour’s comments in paragraphs [174] and [175] that my friend just referred to.
The other point was – I may have misled my friend by agreeing to his question whether there was a challenge to the evidence – there was a challenge to the evidence of a threat to backpackers in general, as given by a witness called Kerris Rex, but there was not a challenge to the evidence of Lisa Duffy and Martin Cockhill who spoke to the applicant between about 11.20 and 11.55 just outside the back of the hostel, meaning that there was clear evidence that he was there that night. So it was not a case where the jury would have been invited, or even would have had any inclination, to put him at the scene because they may have heard something in the past.
There was evidence that was unchallenged that he was not only there but he made threats about Vishal Tomar and evidence from Vishal Tomar that was also not challenged that he swore at him inside the hostel earlier in the night. That meant that the jury were not making a jump about whether he was there and whether he had antagonism towards someone in particular, so that any pre-trial publicity that was prejudicial towards him would have been lost in the sea of evidence that linked him with the scene, so there was no danger of them filling in information.
They had to determine whether there was a deliberate fire, which, I submit, there was overwhelming evidence, and that he was responsible, for which I suggest there was also overwhelming evidence, as shown by the summary given by Justice Jerrard. The principal point though is that asked of my friend. He is, in effect, arguing that this man should never go to trial, even though there is a period of 20 months between the prejudicial evidence and the trial, strong warnings from the judge and not challenged, in fact, accepted as quite appropriate by the trial counsel and on appeal that his Honour did everything possible to ensure there was a fair trial, and then there was a cogently presented case that would have distracted the jury from anything they might have thought they remembered and made them concentrate on what, in fact, they did hear. In my submission, that ensures that the applicant got as fair a trial as was possible, which, given the amount of publicity that there are about horrific matters, is all ‑ ‑ ‑
GLEESON CJ: Mr Glynn said that there was some prejudicial information made available to the media by a police officer. What is that all about in terms of ‑ ‑ ‑
MR MEREDITH: With respect, the trial judge and the Court of Appeal decided that was not particularly important because it only appeared in New South Wales ‑ ‑ ‑
GLEESON CJ: What was the evidence about that?
MR MEREDITH: It is an affidavit that is in the back of the ‑ ‑ ‑
GLEESON CJ: Can you just state in summary form what the evidence about it was.
MR MEREDITH: Yes, that a reporter for the Sydney Daily Telegraph said that she approached a police officer who she believed was a police officer – they did not know his name, did not know where he came from – at an unstated café in Childers, could not give a description of him, could
not give anything that might identify him. She asked him what he was doing and he was sending a fax from the café and she asked him could she look at it, he allowed her to look at it, she then wrote down or made notes of it and printed some details as to his criminal history which she then published the following day. Now, that was in a Sydney paper.
The more relevant matter was the release of information, it would seem, by someone employed in Queensland Corrective Services about his criminal history that was reported in the Courier-Mail, but the Courier-Mail journalist said that she had access from their records and only went to confirm with prisons that that was, in fact, his criminal history. Now this occurred in the period between 23 and 28 June 2000. That is the period between the fire and when he was apprehended. Then nothing was printed after that time that was other than unexceptional reporting of the fact that he had been arrested, that he was charged, that the matter came for mentions and then committal and then the trial.
The case that is referred to by the applicant and, in particular, some comments by Justice Pincus about this, where there is a deliberate, it would seem, attempt to pollute the waters by persons for whom the prosecution would have responsibility, may in some cases justify a stay, but it is not clear that the police officer, if that police officer did exist, did or was in any way under the control of the prosecution in this matter and certainly the prison officer was not. There is certainly some connection, I would concede that, but there is no suggestion of control over them. It was not, as you would see from the judgment of the Court of Appeal, a deliberate attempt to pollute the waters. There was no concentrated action, there was nothing done on behalf of the police investigators who were conducting this matter, nor was there any, if that had been the case, follow-up. There was no more leaking of information. The only information that came out in the public was what was proper reporting of the proceeds of the criminal justice system. Consequently, in my submission, the case for staying the indictment is not made out.
GLEESON CJ: Yes, thank you. Yes, Mr Glynn.
MR GLYNN: Your Honours, just three points. The threat said to have been made to Mr Tomar was that he would be bashed, that that was the limit of the threat. Your Honours, the statement by Justice Pincus was to this effect:
It may be that it 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 –
In respect of the identity of the police officer, evidence was placed before the trial judge – and this is referred to in the appeal record at page 174 in footnote 6:
evidence that was placed before the trial judge from Detective Inspector Oliphant, one of the Queensland police in charge of the investigation, that he was aware that a Queensland police officer had released the applicant’s criminal history to the media.
That is consistent with the evidence that, in fact, that was a release by a Queensland police officer involved in the investigation. If the Court accepts as an appropriate proposition the statement of Justice Pincus in Lewis which is referred to in the summary, then this fits very clearly within that proposition. That is all I have, thank you.
GLEESON CJ: The decision of the Court of Appeal in this case turned on the application of well‑established principles to the facts and circumstances of the case. The case does not raise an issue suitable to a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant.
The application is dismissed.
AT 11.55 AM THE MATTER WAS CONCLUDED
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