R v Bellino & Conte

[1992] QCA 26

COURT OF APPEAL [1992] QCA 026

PINCUS JA
McPHERSON JA
BYRNE J

C A No 195 OF 1991 C A No 214 of 1991

THE QUEEN

and

GERALDO BELLINO and

VITTORIO CONTE

(Appellants)

BRISBANE

... DATE 4/2/92

ORDER against their convictions on charges of corruption. Paragraph 8(b) of the notice of appeal identifies a ground of appeal which is expressed as follows - I am speaking now of the notice of appeal filed on behalf of the appellant Conte:

"the adverse publicity connecting the appellant to alleged illegal activities, which publicity existed prior to, during and subsequent to the commission of inquiry into possible illegal and associated police misconduct, commonly known as the Fitzgerald Inquiry, the extent of which publicity was such that no jury could avoid taking account of matters which were irrelevant and inadmissible on the trial of the appellant."

That paragraph is expressed as an aspect of or in support of the general ground that the verdicts of the jury were unsafe or unsatisfactory.

In the course of this hearing, Mr McMillan of counsel on behalf of the appellant Conte has tendered to us four affidavits recently sworn in support of the ground specified in paragraph 8(b) of the notice of appeal of his client. The Crown objects to the reception of this new material.

We have considered the matter and have decided that the affidavits should not be received. Our reasons may be briefly summarised as follows. We are informed that the affidavits depose to what is said to be extensive adverse publicity preceding the trial. However, no application was made on behalf of Conte, either before the trial or at or after his arraignment or during the trial, that the proceedings against him be stayed, or that the trial not take place, or that it be adjourned, either indefinitely or even for only a specified period. In short, it is accurate to say, as was conceded by Mr McMillan, on behalf of his client, that no point, like that now sought to be raised about the impact of adverse publicity, was taken at any time by counsel who appeared at the trial on behalf of Mr Conte. It may be added that the complaint now made could scarcely have escaped the attention of counsel in the course of the trial, because the trial judge himself gave an early and emphatic warning to the jury to consider and decide the matter on, and only on, the evidence placed before it in Court and to exclude from consideration anything that they might have read or heard about the matter outside the confines of the Court. That warning was repeated in the course of the trial or in the summing up. The failure to take the point at the trial can, therefore, not be ascribed to oversight on the part of counsel, and, indeed, as we understood what Mr McMillan has said to us in the course of this hearing, the omission to ask for a stay of the proceedings or for relief of some other such kind was the result of a deliberate decision taken by counsel before the trial itself. 2

In those circumstances, we can see no basis on which the material now tended in the affidavits ought to be received and we would refuse the application that has been made to that effect on behalf of Mr Conte.

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